Planning circular 2/2024: non-domestic permitted development rights

Permitted Development

2. Permitted development rights (“PDR”) refer to those forms of development which are granted planning permission through legislation, meaning they can be carried out without a planning application having to be submitted to (and approved by) the local authority. In doing so, PDR can provide certainty to developers and save the time and expense associated with applying for planning permission. They can also reduce burdens on planning authorities, allowing them to focus resources on more complex and strategic cases.

3. The title of the legislation containing PDR is the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 – also known as “the GPDO”. Article 3 of the GPDO grants planning permission for development specified in Schedule 1 to the GPDO. The Schedule is organised into a series of "classes". Each class specifies the type (or types) of development for which planning permission is granted. Most classes of PDR are subject to conditions and limitations.

4. These limitations and conditions may, for example, specify the maximum size or scale of what is permitted, restrict or dis-apply the rights in certain locations (e.g. conservation areas, National Scenic Areas etc.). A limited number of classes are subject to a condition requiring the developer to notify the planning authority, and provide certain details, before development is carried out (see Annex A). Development contrary to any limitation or condition is not permitted. In practice, this means that development of a description in Schedule 1 to the GPDO can be undertaken without the need for a planning application but only provided that it complies with all the limitations and conditions attached.

5. The fact that a particular development may benefit from PDR does not remove any requirements to comply with other legislation. For example, any engineering works in the vicinity of the water environment will need to comply with the Water Environment (Controlled Activities) Scotland Regulations 2011. Similarly, any waste material will need to be managed in accordance with the Waste Management Licensing (Scotland) Regulations 2011.

6. There are a number of development types that are specifically excluded from the GPDO and which do not benefit from PDRs. Article 3(4) provides that development cannot be carried out under the GPDO if it would be contrary to a planning condition attached to a planning permission. Article 3(4A) further establishes that PDR associated with a building or use do not apply if that building or use is unlawful.

7. Other restrictions apply to certain developments, including:

• Development, other than development permitted by Parts 9, 11, 24 and Class 31 of Schedule 1, that requires or involves the formation, laying out or material widening of an access to an existing trunk or classified road or creates an obstruction to the view of any vehicular traffic;
• Laying or construction of a notifiable^[1] pipeline, except where this is being done by a public gas transporter in accordance with Class 39 of Schedule 1;
• Demolition of a building except in certain circumstances; and,
• Where an Environmental Impact Assessment (EIA) is required. Please see paragraphs 10 to 12 below.
• Where a development; (a) is likely to have a significant effect on a European site (as defined in The Conservation (Natural Habitats &c.) Regulations 1994^[2]), either alone or in combination with other plans or projects, and (b) is not directly connected with or necessary to the management of the site, PDR do not apply unless approval is first obtained under these Regulations. Please see paragraphs 13 to 15 below.

Directions restricting permitted development – Article 4 Directions

8. The GPDO contains provisions, set out in article 4 of the GPDO, allowing planning authorities or Scottish Ministers to make directions (commonly known as Article 4 Directions) removing PDR for particular types of development or classes of development. For example, Article 4 Directions limiting householder permitted development are often associated with conservation areas.

9. The process to be followed, particularly whether the approval of Scottish Ministers is required can vary depending on the content and scope of the direction. Different procedures apply to directions restricting development in respect of minerals under Classes 54 (development relating to mineral explorations) or 56 development related to mining), which are covered by article 7 of the GPDO.

Environmental Impact Assessment

10. Most classes of PDR^[3] are subject to the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017. PDR do not apply to ‘Schedule 1 development’ as defined in those 2017 Regulations, consequently an application for planning permission would be required for such development.

11. PDR would only apply to ‘Schedule 2 development’ under those 2017 Regulations where the proposal had been screened by the planning authority, or by Scottish Ministers, and, respectively, the resulting screening opinion or screening direction indicated that no EIA was required. Where screening concluded that EIA was required, then a planning application accompanied by an EIA report would be required.

12. More guidance on EIA can be found in Planning Circular 1/2017: Environmental Impact Assessment regulations.

The Conservation (Natural Habitats &c.) Regulations 1994

13. Article 3(1) of the GPDO applies The Conservation (Natural Habitats &c.) Regulations 1994 to PDR. Under these 1994 Regulations, a separate written approval would be required from the planning authority for development covered by PDR which:

a) is likely to have a significant effect on a European site in Great Britain or a European offshore marine site (either alone or in combination with other plans or projects), and

(b) is not directly connected with or necessary to the management of the site.

14. In such cases an ‘appropriate assessment’ would be required to inform the decision to approve the proposal or not. More information on ‘appropriate assessment’ can be found at Habitats Regulations Appraisal (HRA) | NatureScot.

15. ‘European sites’ and ‘European offshore marine site’ are defined in those 1994 regulations. In many cases these ‘European sites’ are underpinned by designation as a Site of Special Scientific Interest (see paragraphs 18 below).

Other Consents and Approvals

16 Other additional consents or legislative requirements may apply to development even where PDR grant planning permission. The following paragraphs cover the main ones, but are not exhaustive. It is the responsibility of the developer to ensure that they comply with statutory requirements and have all the consents and permissions necessary to carry out their development.

17. Where appropriate, development will need to comply with Building Standards requirements, and may need a building warrant. Please see information on: Building standards

18. Sites of Special Scientific Interest (SSSIs) are those areas of land and water that we consider best represent our natural heritage with regard to certain aspects, such as flora and fauna. Certain works in SSSI will require a consent from NatureScot. See: Sites of Special Scientific Interest (SSSIs) | NatureScot.

19. Under the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest will require listed building consent. Planning authorities will be able to confirm whether a property is located in a conservation area. Historic Environment Scotland’s website has information about listed buildings

20. Under that same Act, demolition of a building in a conservation area will require conservation area consent (CAC). There is a direction exempting certain demolition in a conservation area from the requirement for CAC^[4].

21. Requirements under the Ancient Monuments and Archaeological Areas Act 1979 may also apply to works, for example Scheduled Monument Consent – see : What is Scheduled Monument Consent? | Historic Environment Scotland.

22. If you intend to carry out any activity which may affect Scotland’s water environment, you must abide by regulations and, if necessary, obtain an authorisation to proceed. For further information on this and the Water Environment (Controlled Activities) (Scotland) Regulations 2011, see Water | Scottish Environment Protection Agency (SEPA).

Further guidance

23. Detailed guidance on some individual classes of the GPDO is contained in the annexes to this Circular.