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

Annex B: Development by Statutory Undertakers

1. The Town and Country Planning (General Permitted Development) (Scotland) Order 1992 – also known as “the GPDO” grants certain statutory undertakers (and in some cases their lessees) permitted development rights (PDR) for a range of developments associated with their operational requirements. This reflects the specialised nature and operational necessity of much development by, or on behalf of, statutory undertakers.

2. There is a requirement for certain undertakings to give prior notification to a relevant planning authority and, if necessary, for the planning authority to give prior approval for such matters as the design and external appearance of buildings (for example; Classes 39 and 40, Part 13 of Schedule 1 of the GPDO). Planning authorities may consider any detrimental effect the development might have on the amenity of the neighbourhood; modifications which might be reasonably made to avoid or reduce any such effect; and whether the proposed development ought to, or could reasonably and without excessive cost, be sited elsewhere.

3. Where there is no statutory requirement to notify planning authorities, it may nevertheless be beneficial for informal arrangements to be established between planning authorities and statutory undertakers for advance notification of development proposals. There is potential for contact of this kind to be of mutual benefit. One benefit to be gained, for example, is that statutory undertakers themselves will be given timely warning of proposed development by other persons for which their services will be required and of proposed developments which might interfere with existing services provided by them. Statutory undertakers should consider informing planning authorities of proposals for permitted development which are likely to affect them significantly before the proposals are finalised.

4. In exceptional cases the authority may consider that normal planning control should apply and it will be open to them (except in the case of development under Part 11, Class 29 of the GPDO: Development under Local or Private Acts or Orders) to make and submit to the Scottish Ministers a Direction under article 4 of the GPDO.

Electricity Undertakings

5. Class 40 (Electricity Undertakings) of the GPDO provides PDR for certain development by electricity undertakers, defined as licence holders under section 6 of the Electricity Act 1989, required for the safe and efficient deployment and upgrading of electricity network infrastructure.

6. Class 40 PDR enable electricity undertakers to carry out development for the installation and replacement of electric lines, electricity substations and telecommunications lines, as well as site survey and investigation works, the erection of gates, fences, walls and other enclosures, and certain development on their operational land. Further guidance on the development permitted at Class 40 is provided below.

Electric Lines

7. Class 40(1)(a) permits electricity undertakers to install or replace electric lines provided that there is no requirement to apply to the Scottish Ministers for consent under section 37 of the Electricity Act 1989. This means that Class 40(1)(a) applies to all below ground electric lines and any above ground line electric lines listed amongst the exemptions identified at section 37(2) of the Electricity Act 1989 or within the Overhead Lines (Exemptions) Scotland Regulations 2013.

8. The term ‘electric line’ is defined at section 64(1) of the Electricity Act 1989. In broad terms, this definition covers any line used for the carrying of electricity for any purpose and includes its supports, such as pylons or wooden poles, and any other wires, cables or tubes carried or suspended in association with the electric line.

9. Class 40(1)(a) also permits electricity undertakers to construct shafts and tunnels and to install or replace electricity substation infrastructure (see below) reasonably necessary in connection with an electric line.

10. Works for the installation and replacement of electric lines permitted under Class 40(1)(a) are subject to conditions set out at Class 40(3)(a) and (b). These set out that any conditions relating to the height, design or position of an installed electric line should apply when it is replaced. They also require the removal of electric lines and the reinstatement of land following temporary diversions.

Electricity Substations

11. Electricity substations are needed to convert electricity into different voltages and regulate the flow of current. Class 40(1)(a) permits electricity undertakers to install or replace substation infrastructure reasonably necessary in connection with an electric line. This substation infrastructure includes feeder pillars, service pillars, transforming stations, switching stations and the chambers used to house such electrical apparatus.

12. Class 40(1)(a) does not apply to electricity substation infrastructure housed in a chamber which would exceed 3 metres in height or would have an overall capacity exceeding 45 cubic metres, however.

13. The Class 40(1)(a) PDR also do not apply in cases where electricity substation infrastructure is housed in a chamber with an overall capacity exceeding 29 cubic metres and would be located within 5 metres of a dwelling or within certain areas designated for their heritage or scenic value. These areas include National Scenic Areas, National Parks, conservation areas, historic gardens or designed landscapes, historic battlefields, World Heritage Sites, the curtilage of a listed building and the site of a scheduled monument.

Communications Lines

14. Communications lines are incorporated into electricity networks to ensure electrical safety and to monitor the operation of the network. They allow communication between substations and end points so that faults can be anticipated, and circuits can be switched off if necessary.

15. Class 40(1)(b) permits electricity undertakers to install any communications line which connects any part of an electric line to any electrical plant or building. Class 40(1)(b) also permits the supports needed for such communications lines. These PDR do not apply, however, in cases where communications lines are installed in National Scenic Areas or Sites of Special Scientific Interest. These PDR also do not apply where the communications line installed would exceed 1,000m in length or would be carried on a support exceeding 15m in height.

16. Class 40 (1)(ba) permits electricity undertakers to replace any communications line which connects any part of an electric line to any electrical plant or building. Class 40(1)(ba) also permits the supports needed for replacement communications lines. These PDR are subject to a condition included at Class 40(3)(ba) specifying that the dimensions, location and number of supports for the replacement communications line should be the same, or less impactful, than the original.

Site Investigations

17. Site investigation works are required to collect information on, assess and report potential hazards or constraints associated with projects for the upgrading and expansion of electricity networks. They are critical for understanding potential environmental impacts and informing project design and mitigation.

18. Class 40(1)(c) permits electricity undertakers to carry out works for the purpose of survey or investigation, as well as the installation of any plant or machinery reasonably necessary in connection with such works.

19. These PDR are subject to a condition at Class 40(3)(c) that, on the completion of the development or at the end of a period of six months from the beginning of that development (whichever is sooner), any such plant or machinery shall be removed, and the land shall be restored as soon as reasonably practicable. The land must be restored to its condition before the installation took place, or to such condition as may have been agreed in writing between the planning authority and the developer.

Gates, Fences, Walls and Other Means of Enclosure

20. The Electricity Safety, Quality and Continuity Regulations 2002 place a number of requirements on the delivery of electricity network infrastructure to ensure public safety. Part III of these Regulations specify that substations are enclosed where necessary to prevent, so far as is reasonably practicable, danger or unauthorised access. These regulations also specify that any part of an electricity substation, which is open to the air and contains live equipment, which is not encased, is enclosed behind a fence or wall not less than 2.4m in height.

21. Class 40(1)(ca) therefore permits electricity undertakers to erect, construct, maintain, improve or alter a gate, fence wall or other means of enclosure for the purposes of ensuring the safety and security of electricity network infrastructure.

22. These PDR are subject to a general limitation included in article 3(5)(a) of the GPDO on development that creates an obstruction to the view of persons using any road used by vehicular traffic. Limitations included at Class 40(2)(ba) also restrict the erection or construction of any such gates, fences, walls or enclosures exceeding 3 metres in height, and improvement or alteration works that would cause any such gate, fence, wall or enclosure to exceed its former height or 3 metres above ground level.

Development on ‘Operational Land’

23. Class 40(1)(d) to (f) permits electricity undertakers to carry out certain development on their operational land. In this context, ‘operational land’ is defined at sections 215 and 216 of the Town and Country Planning (Scotland) Act 1997.

24. Class 40(1)(d) to (f) permits a range of development on operational land including the extension or alteration of buildings and the erection of new buildings for the protection of plant or machinery. These PDR are subject to certain limitations and conditions detailed below.

25. Class 40(1)(d) permits electricity undertakers to extend or alter buildings on their operational land. Limitations at Class 40(2)(c) restrict these PDR where the height, cubic content or floor area of the original building would be exceeded by certain thresholds, with lower thresholds applying in conservation areas and National Scenic Areas.

26. Class 40(1)(e) permits electricity undertakers to erect buildings solely for the protection of plant or machinery on their operational land. These PDR do not apply to such buildings exceeding 15 metres in height, however. In cases where such a building would exceed 3m in height, Class 40(3)(d) also requires electricity undertakers to undertake a prior notification/prior approval process with the planning authority on the siting, design and external appearance of the building. Annex A provides a general overview of the prior notification/ prior approval process. Prior notification applications under Class 40(3) must be accompanied by:

• a written description of the proposed development and the materials to be used;
• a plan indicating the site; and
• any fee required to be paid.

Such development shall be carried out–

(a) where approval has been given by the planning authority, within a period of five years from the date on which approval was given;

(b) in any other case, within a period of five years from the date on which the planning authority were given the information in the prior notification.

27. Class 40(1)(f) permits electricity undertakers to carry out any other development in, on, over or under their operational land. Limitations at Class 40(2)(e) restrict these PDR where such development would include the erection of a building, or the reconstruction or alteration of a building where its design or external appearance would be materially affected. These PDR are also limited in cases where the installation of additional or replacement plant or machinery would be greater than 15m in height or would exceed the height of any plant or machinery to be replaced.

Sewerage Undertakings

28. Class 43A covers sewerage development undertaken by a sewerage authority or by a person authorised under section 3A of the Sewerage (Scotland) Act 1968. The class covers development both under and over ground.

29. Class 43A(2) requires planning authorities to be notified of the proposed works (both above and/or underground) and their location not less than 28 days prior to the commencement of works. Good practice would be for early liaison between the sewerage authority and the planning authority. Planning authorities should have information on environmentally sensitive sites, archaeological sites and proposals for development etc., which would be essential to the sewerage authority in planning their works.

30. PDR under Class 43A cover any development not above ground level which involves the provision, improvement, maintenance or repair of a sewer, outfall pipe or sludge main or any associated apparatus. Above ground, PDR allow certain works subject to the following restrictions:

Type of development:

Control kiosk for a pump station or monitoring station

Restrictions:

Dimensions of the kiosk do not exceed;

6 cubic metres total volume;

2 metres in height;

3 metres in width; and,

1 metre in depth.

Type of development:

Sewer pipe supported on pillars or truss above ground to maintain a gradient

Restrictions:

1 metre in height

Type of development:

Raised manhole covers or sampling chamber

Restrictions:

1 metre in height

1 metre in width

Type of development:

Vent pipe

Restrictions:

3 metres in height

Type of development:

Concrete head wall for sewer discharge pipes

Restrictions:

1.5 metres in height

1.5 metres in length

0.5 metres in depth