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

Annex F: Peatland restoration

Introduction

1. Class 20A specifies permitted development rights (PDR) for peatland restoration projects.

2. There are multiple reasons for preserving and restoring peatlands, ranging from carbon sequestration to ecosystem services that support climate adaptation and resilience. In addition to the obvious benefit of their potential to store carbon, these vital ecosystems, when restored, can enhance biodiversity, reduce flooding and improve water quality.

3. The 2020 update to the Scottish Government's Climate Change Plan^[9] sets a target to see restoration of at least 250,000 hectares of degraded peatland by 2030. The full range of economic and environmental benefits provided by peatland restoration are also noted in the Scottish Government’s Biodiversity Strategy and the Climate change- national adaptation plan.

4. This guidance is intended to assist those pursuing peatland restoration projects (restorers) and planning authorities in processing cases through planning requirements. It sets out the basic planning conditions and restrictions as regards peatland restoration PDR, including related prior notification/prior approval procedures – see also Annex A.

5. The guidance also refers to some of the other considerations that may apply in specific cases and which have separate statutory requirements. In some cases, the planning authority will be the relevant body, however, submitting information required by the prior notification/prior approval procedure does not cover all the statutory requirements that might apply. A restorer should consider what requirements may apply, and can check with the planning authority and, where relevant, other bodies, such as Scottish Forestry, to consider how best to approach any approval or screening procedures that may apply to a project.

Permitted Development Rights (PDR) – General

6. Permitted development rights is the term given to a grant of planning permission in legislation. This removes the need to apply to the planning authority for planning permission. Such PDR are often subject to conditions and limitations specified in the legislation. Such limitations may, for example, limit the scale of development authorised by the PDR or, as is the case for Class 20A, require the approval of certain aspects of a development before it can begin.

7. In addition, requirements under other legislation may apply – see paragraphs 35 to 51 below.

Peatland Action/ Peatland Code

8. Scottish Government funding for peatland restoration is administered largely through Peatland ACTION, including direct delivery partners, namely Forestry and Land Scotland, the two Scottish National Park Authorities, and Scottish Water. As part of their work in authorising funding, Peatland ACTION officers carry out an assessment of projects to ensure compliance with legislative requirements and good practice.

9. Further guidance on Peatland ACTION support and good practice can be found at: nature.scot/climate-change/nature-based-solutions/peatland-action-project.

10. There is also an International Union for Conservation of Nature (IUCN) mechanism – the Peatland Code – for validating schemes seeking private funding. The Peatland Code^[10] is a voluntary certification standard for UK peatland projects wishing to market, through the sale of verified carbon credits, the climate benefits of peatland restoration.

11. To access these voluntary carbon markets buyers need to be given assurance that the climate benefits being sold are real, quantifiable, additional and permanent. The Peatland Code is the mechanism through which such assurances can be given. The Peatland Code is currently a standard for verifying the abatement of greenhouse gas emissions, and is not a general code for restoration good practice. It can require projects to demonstrate how they have planned their restoration in line with best available guidance, such as from Peatland ACTION, as well as other specific guidance on peatland restoration and archaeology available from statutory agencies for the historic environment.

12. Restorers may be pursuing one, both or neither of these support mechanisms.

PDR – the grant of Planning Permission for Peatland Restoration

13. Class 20A grants planning permission for the carrying out on peatland of works for the restoration of that peatland^[11]. This includes works for the stabilisation, revegetation and re-profiling of bare peat and related drainage works, and the extraction of peat from within a peatland site for the sole purpose of the use of such peat in the restoration of peatland within that peatland site.

14. In this context:

“re-profiling” means changing the surface of the peatland to reduce water runoff and encourage revegetation by spreading turves across the bare surface,

“revegetation” means by planting, applying locally won turves or seeding with peatland plants,

“stabilisation” means re-establishment of vegetation by seeding and the introduction of pre-grown seedlings (known as plug plants) with the use of temporary protective coverings, including a plant mulch or manufactured stabilisation product or fertilisers.

15. Drainage works in this context can include structures to block ditches, flood land or divert watercourses. Such structure would normally be of soil, peat, locally won stone, (or other inert material), vegetation, timber, plastic or wooden dams.

16. The grant of planning permission does not extend to works for the formation or alteration of a private way (often referred to as a hill track). Class 27^[12] PDR grant planning permission for works within the boundary of an existing private way for the maintenance or improvement of that private way.

17. Class 14^[13] PDR for temporary buildings and uses can be used in conjunction with Class 20A PDR during the course of restoration operations.

18. The Class 20A grant of planning permission is subject to conditions requiring the restorer to submit a ‘peatland restoration scheme’ to the planning authority, in what is often referred to as a prior notification/ prior approval process.

Prior notification/ Prior approval

19. The prior notification/ prior approval process allows a planning authority to consider whether a proposal requires closer scrutiny and approval of some aspects (in this case a peatland restoration scheme) of a proposal which is subject to PDR. This process must be gone through before the restoration works can begin. Annex A provides a general overview of prior notification/prior approval.

20. Firstly, the restorer would need to seek a view from the planning authority as to whether the authority’s prior approval is required – the prior notification stage. In doing so, the restorer must submit:

(i) a peatland restoration scheme (see paragraphs 28 to 33 below),

(ii) a map showing the location of the peatland site to be restored,

(iii) the relevant fee required to be paid,

21. The restorer should use their Peatland Restoration Scheme (PRS) to describe the works to be carried out and to demonstrate that they have considered any relevant planning impacts that may arise and, if appropriate, how their proposals mitigate such impacts – see paragraphs 28 to 33.

22. Once the PRS is submitted, where, for example, the planning authority consider it clear that the restorer has adequately identified any relevant issues with their project and suitably addressed them in the PRS, then the planning authority may decide that their prior approval is not required. In that case, the restorer can be allowed to proceed in accordance with the PRS as submitted, without the need to wait beyond the 28 days for prior approval.

23. Where the planning authority indicates their prior approval is required, they can give or refuse it or grant it with conditions. Other than attaching conditions, the planning authority cannot amend the PRS itself.

24. However, a restorer could agree in writing with the planning authority changes to the scheme (e.g. to obtain prior approval without necessarily starting the whole prior notification/ prior approval process again). Where a restorer later wishes to depart from the PRS as submitted (where no prior approval is required) or as approved, they can do so only with the written agreement of the planning authority.

25. As noted in paragraphs 8 to 12, proposed peatland restoration projects specifically may be subject to separate assessment and scrutiny outwith the planning process. For example, if financial support has been sought through Peatland ACTION or as part of the registration process under the Peatland Code. In such cases, that wider scrutiny may assist the planning authority in reaching a timely decision as to whether their prior approval is required, and subject to that, whether or not it should be granted – see paragraph 30 on providing information in this regard.

26. As indicated, compliance with these planning requirements does not necessarily mean a project can go ahead; and other legislative or legal considerations may apply in specific cases - see paragraphs 5 and 35 to 51.

27. Where the planning authority is the relevant body for such other approvals and screening, the restorer should consider getting these before entering the prior notification/prior approval process. This could avoid the prior notification/prior approval process moving to the prior approval stage due merely to a separate approval or screening being required that might have a bearing on prior notification prior approval.

Peatland restoration schemes

28. As indicated, Class 20A specifies that a PRS has to be prepared and submitted to the planning authority as part of the prior notification/prior approval process before works can begin. The purpose of the PRS is to set out the works to be undertaken in the restoration project and it is intended to highlight any issues, and mitigation, that may be relevant to the planning authority’s consideration as to whether their prior approval is needed and, if so, whether it should be granted. From Class 20A:

29. “peatland restoration scheme” means a scheme setting out the work to be carried out to restore peatland within an area of peatland identified by the scheme and including details in respect of—

(a) any measures to mitigate—

(i) impacts of the proposed development on archaeology,

(ii) the risk of contamination or flooding as a result of the development on the peatland site,

(iii) the impacts of the proposed development on soil, and

(b) the removal, felling, lopping or topping of any trees,

30. In addition to the above, the PRS should include:

• the date, or latest date by when restoration works will be completed on the peatland site; and
• information on any engagement with regard to funding under Peatland ACTION or registration under the Peatland Code, in order to assist the planning authority’s decision making.

31. “peatland site” is the area identified in the peatland restoration scheme as the area of peatland to be restored in accordance with that scheme,

32. It may be that some of the issues mentioned in paragraph 29 (a) and (b) above are not relevant to a specific proposal, for example that mitigation is not required or no trees are to be removed, felled, lopped or topped. In those instances, the PRS should indicate the restorer’s thinking as to why this is the case. It may be that particular locations or works raise other potential impacts of concern that should be mitigated, and so covered in the PRS. For example, where a project is proposed in or near a World Heritage Site.

33. Please note that since the PDR were introduced, amendments to the Forestry (Exemptions) (Scotland) Regulations 2019 mean separate requirements for a felling permission apply in relation to peatland restoration projects under these PDR – see paragraphs 35 to 39 below.

Time limit on PDR

34. The restorer has 10 years from when prior approval is given to complete the works specified in the PRS. It is important that restorers include in their PRS the date, or latest date, by when restoration works will be completed – otherwise a planning authority may feel compelled to proceed to the prior approval stage merely to impose this time limit.

Trees

35. Where peatland restoration involves tree felling, it is the responsibility of the restorer(s) to comply with:

• The Forestry and Land Management (Scotland) Act 2018
• The Felling (Scotland) Regulations 2019
• The Forestry (Exemptions) (Scotland) Regulations 2019.

36. Legislative compliance requires the restorer(s) to apply for felling permission from Scottish Forestry.

37. Any tree felling without restocking will be assessed against the Scottish Government’s Policy on the Control of Woodland Removal.

38. Where peatland restoration involves deforestation or afforestation, the restorer(s) will also need to consider compliance with the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017^[14] (the Forestry EIA Regulations) by contacting Scottish Forestry. This is a separate consideration from any requirement for environmental impact assessment under the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 (the Planning EIA Regulations) – see following section on environmental impact assessment.

39. Further guidance on woodland removal is available online at Scottish Forestry - Woodland removal

Environmental Impact Assessment

40. As with most other classes of permitted development, the grant of planning permission by Class 20A is subject to environmental impact assessment (EIA) requirements under articles 3(8) to (9) of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 – see paragraphs 10 to 12 of the main circular.

41. Whilst the schedules to the Planning EIA Regulations^[15] are to be interpreted widely, they do not specifically refer to ‘peatland restoration’ as a project to which Planning EIA applies. However, peat extraction falls within the scope of the Planning EIA Regulations.

42. Planning EIA is automatically required in relation to peat extraction where the surface area of the extraction site is over 150 hectares – as identified in Schedule 1(19) of the Planning EIA Regulations. Other peat extraction proposals must be screened by the planning authority to determine whether Planning EIA is required – as identified in Schedule 2(2) of the Planning EIA Regulations.

43. Whilst Class 20A PDR permit peat extraction, this is specifically only for the purposes of relocation for restoration purposes within the peatland restoration site. Such operations are likely to be significantly different in scale and considerably smaller in impact than those relating to commercial peat extraction.

44. For the purposes of Planning EIA screening, as a guide, rather than the whole peatland restoration site area itself, it would be important to consider the likely cumulative area, within that site, from which peat is likely to be moved in order to facilitate peatland recovery and restoration elsewhere within the site. This is typically at most between 5% to 20% of the total restoration site area.

45. Although it has to be considered on a case by case basis, it would most likely be the impacts of any relocation of peat within the site that would be considered where Planning EIA screening is required. It should also be borne in mind that the intended restoration itself should result in overall positive effects for the environment within the site and indeed more widely.

46. Where Planning EIA screening is required, PDR do not apply until screening has been undertaken and the opinion is that Planning EIA is not required. Where PDR apply, this is subject to the prior notification/prior approval process.

47. Where Planning EIA is required, i.e. for Schedule 1 projects and those Schedule 2 projects where screening concludes Planning EIA is required, an application for planning permission would be needed.

48. Where Planning EIA is not required under the Planning EIA Regulations, and the project includes afforestation or deforestation, then requirements under the Forestry EIA Regulations may yet apply. In such circumstances, restorers would need to approach Scottish Forestry.

49. More guidance is available online regarding screening procedures and other statutory requirements under both the Planning EIA Regulations and the Forestry EIA Regulations.

Designated areas and Other Consent Regimes

50. In addition to the preceding section on EIA requirements, see Paragraphs 13 to 22 of the main circular on issues relating Conservation (Natural Habitats &c.) Regulations 1994 and other consents and regulations, some of which are specific to certain land designations.

51. Sites, such as National Parks, National Scenic Areas, World Heritage Sites, historic battlefields, sites of archaeological interest and the settings of scheduled monuments and of listed buildings, rather than having their own consent requirements, are more dependent on the controls in planning legislation, i.e. in this case, the requirements in the PDR. This should be borne in mind when preparing ‘peatland restoration schemes’ and considering the need for, and granting of, prior approval for schemes in such areas.