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

Annex G: Development by Electronic Communications Code Operators

Introduction

1. Class 67 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 – also known as “the GPDO” sets out permitted development rights (PDR) for certain works carried out by or on behalf of an electronic communications code operator for the purposes of the operator’s electronic communications network or carried out in accordance with the electronic communications code (see paragraph 3 below).

Context

2. Planning has an important role to play in strengthening digital communications capacity and coverage across Scotland and PDR for Class 67 have been substantially amended in recent years. The purpose of these changes has been to support a range of existing communication services and facilitate new services to help Scotland become a world class digital economy, in line with Scottish Planning Policy.

Permitted development under Class 67

3. Class 67(1) sets out PDR for development by or on behalf of an electronic communications code operator, for the purpose of the operator’s electronic communication network in, on, over or under land controlled by that operator or in accordance with the electronic communications code. The apparatus to which PDR refer is ‘electronic communications apparatus’ as defined in the Communications Act 2003^[16].

Limitation on PDR in designated areas

4. There are a number of limitations on PDR which apply in certain areas (designated areas), and these are set out in Class 67(2). Subject to exceptions, PDR under Class 67 will not apply in:

• National Scenic Areas,
• National Parks,
• conservation areas,
• historic gardens or designed landscapes,
• Sites of Special Scientific Interest,
• historic battlefields,
• European Sites (including Special Protection Areas and Special Areas of Conservation),
• World Heritage Sites
• the settings^[17] of Category A listed buildings, and
• the settings of scheduled monuments.

5. There are, however, a number of circumstances specified in Class 67(2) in which development under this class may be permitted in the above areas. These include:

• development carried out in an emergency,
• the installation, replacement or alteration of small cell systems or Regulation 2020/1070 small cell systems on buildings or other structures (other than in conservation areas or on dwellinghouses and in their curtilage),
• the installation, replacement or alteration in a conservation area, of up to two small cell systems or Regulation 2020/1070 small cell systems —

- on a building or other structure, or

- on a dwellinghouse and within its curtilage^[18],

• development consisting of a ‘link antenna’^[19] within the compound of an existing ground based mast.
• development that involves the installation of new telegraph poles, the replacement or alteration of existing telegraph poles, the installation of new overhead lines on telegraph poles, or development that is ancillary to such development.
• development (subject to limitations and requirements described in paragraphs 17 to 31 below) that involves the replacement or alteration of an existing ground based mast or the installation of additional equipment on an existing ground based mast, or development which is ancillary to such development. Further information on what constitutes ‘ancillary’ development in this context is provided in paragraphs 6 to 9 below,
• development consisting of the alteration or replacement of apparatus generally where the size and number of pieces of apparatus is the same or smaller and the location of apparatus is the same or substantially the same (unless specific restrictions in Class 67(2) apply, e.g. alterations to ground based masts).
• development consisting of the construction, installation, alteration or replacement of ground based equipment housing which would not exceed 2.5 cubic metres in volume.
• development consisting of the construction, installation, alteration or replacement on a building of equipment housing which would not exceed 2.5 cubic metres in volume.
• development permitted by virtue of Class 67 (10) which consists of the construction, installation, alteration or replacement of ‘other apparatus’ (e.g. back up power generators, maintenance ladder or fencing) on a building (other than a ground based mast) or would be ancillary to such development,
• the installation, alteration or replacement of development of an antenna (other than small cell system or Regulation 2020/1070 small cell system) on a building (other than a ground based mast) and the whole of the antenna up to 1.3 metres dish size, or the aggregate size of all dish antennas on the building would not exceed 10 metres, or in the case of antenna (other than a dish antenna) there would be no more than 5 antenna systems on the building.
• development which would consist of the construction or installation of apparatus under land and would not be located in a historic battlefield or World Heritage Site

Ancillary development related to telegraph poles and ground based masts

6. As noted above, Class 67(2)(e) and (g) provide that PDR for certain works associated with telegraph poles and ground based masts, including development which ‘is ancillary to such development’, apply in designated areas.

7. The Scottish Government considers that, in respect of Class 67, ancillary development means the installation of equipment providing necessary support to the primary activities or operation of an electronic communications code system. This includes, but is not necessarily restricted to, such items as equipment housing^[20], other ground based apparatus and associated cabling.

8. It may be necessary to have such ancillary equipment in place either prior to the installation, replacement or alteration of telegraph poles or ground based masts under PDR, or subsequent to such development.

9. Planning authorities should bear in mind that ancillary development does not necessarily need to be adjacent, or visually linked, to a telegraph pole or existing ground based mast to serve an ancillary purpose. Planning authorities should take into account any supporting evidence that the proposed development is ancillary to development involving telegraph poles or ground based masts, and therefore that the PDR under Class 67 are applicable. Operators are also encouraged to provide such evidence when giving notice, where required under Class 67(15), to the planning authority of their intention to start development.

Telegraph poles

10. PDR apply to various development related to telegraph poles, namely the installation of new telegraph poles, the replacement or alteration of existing poles, the installation of new overhead lines on such poles and work which is ancillary to such development. These PDR apply in designated areas. See paragraphs 34 and 35 on general limits on ground based apparatus.

New Ground based masts

11. Class 67(3) covers the PDR for the construction or installation of a new ground based mast^[21] up to 30 metres in height above ground level and located outside designated areas. These PDR are subject to a prior notification/ prior approval procedure (paragraphs 68 to 98 below). While new ground based masts within the specified parameters in PDR should generally be acceptable in principle in planning terms, the planning authority can impose a requirement for prior approval with regard to the siting and/ or appearance of a specific proposal.

12. In calculating the height of a mast in accordance with the PDR in Class 67(3), add together the height of the plinth or supporting structure, the mast itself and any apparatus (including antennas) on it contributing to the height and subtract from that total the height of the antenna to the extent that it protrudes above the top of the mast – i.e. it is not simply the height of the structure without the antennas on it.

13. The intention is to allow a new mast slightly above 30 metres in height where antennas protrude above the top of the mast element. This may require supporting rods that exceed the limit of 30 metres to attach such antennas. But to avoid allowing supporting rods which add excessively to the height of the new structure, these rods can only extend above the height of the mast element by, at most, the height of the antenna.

14. For example, with heights:

Plinth = 1 metre

Mast element = 29 metres

Antenna on the top of the mast = 1 metre

Supporting rod = 1 metre

i) If the supporting rod holds the antenna such that the bottom of the antenna is 1 m clear of the top of the mast element, the mast is not PD: overall height of the structure is 1m + 29m + 1m + 1m = 32m. Subtracting the extent to which the antenna protrudes above the mast is 32m – 1m = 31m.

ii) If the rod holds the antenna such that the bottom of the antenna is flush with the top of the mast element it is permitted development – i.e. in this case the supporting rod is not adding to the overall height of the structure, so the latter is 1m + 29m + 1m = 31m. Subtracting the extent to which the antenna protrudes above the mast is 31m – 1m = 30m.

15. Once a new ground based mast has been constructed or installed under PDR, the other PDR in relation to such masts will apply thereafter.

16. New ground based masts above the height limit or in a designated area would require an application for planning permission. The 30 metres limit under PDR does not mean new masts significantly above this height, for which an application would be required, are unacceptable. Taller masts can improve coverage, reduce the need for more, smaller masts (e.g. due to wider coverage and allowing multiple operators to share) and can be the difference between service coverage being viable in a remote area and not. Also, in more rural locations, taller masts can address topographical challenges and the need for direct line of sight transmission dishes to link to the wider network (‘backhaul’).

Alteration and replacement of ground based masts

17. Class 67(4) specifies the PDR for the replacement or alteration of an existing ground based mast or the installation of apparatus on such a mast. There are limitations on the increase of the overall height and/or width of the structure (i.e. the mast and any other apparatus – other than antennas - attached to it) and the repositioning/ replacement of the mast being no more than 6 metres from the original mast, i.e. the mast as first installed.

18. Class 67(19) subjects the PDR for the alteration or replacement of ground based masts (including the installation of apparatus on the mast) to a condition on minimising the visual and environmental impact as far as practicable (see paragraph 57 to 59).

19. Under Class 67(2)(g), these PDR for the replacement or alteration of an existing mast, or work ancillary to such development, apply in designated areas.

20. Where the existing mast has a height of 30 metres or less, it can be increased up to 50% of the height of the original mast.

21. Where the existing mast has a height of more than 30 metres it can be increased up to 50 metres in height. Where the existing mast is over 50 metres in height, an increase up to the height of the original mast plus 20% of its heights is permitted development.

22. The height of the original mast, the existing mast and the resulting mast after any alteration or replacement is calculated by adding: the height of the mast; any apparatus (other than antennas) on it that adds to the height of the structure; and any plinth or other structure required for the purposes of supporting the mast. Here, it is the height of the overall structure without any antennas that matters. This is different from the calculation for new ground based masts installed under PDR – see paragraph 14.

23. The overall width of the structure can be increased by up to either:

• 2 metres; or
• one half of the width of the original mast,

whichever is the greater.

24. The width of the structure is measured horizontally at the widest point of the original structure (though this does not include any plinth or other structure required for the purposes of supporting the mast). When calculating this point it should be borne in mind that the width of the original structure includes any apparatus (other than antennas) attached to the original mast. The widest part of the structure is not therefore necessarily at the foot of the mast, and may be at some distance above ground level. The resulting structure, after alteration or replacement, is measured in the same way.

25. In effect, the limits on these PDR for altering masts do not include the antennas that may contribute to the height and width of the overall structure.

Safeguarded areas

26. Safeguarding maps for planning authorities are issued by the Civil Aviation authority, the Secretary of State for Defence and the Met Office. These maps identify safeguarded areas around aerodromes, technical sites, meteorological technical sites and military explosive storage areas^[22]. Where an existing ground based mast is to be increased in height and/or replaced under PDR in a safeguarded area, under Class 67(16) the developer must first notify the relevant body, which is:

• Where a safeguarding map has been issued by the CAA, the owner or operator of the aerodrome or technical sites identified on the map;
• Where a safeguarding map is issued by the Secretary of State for Defence, the Secretary of State for Defence; and
• Where the safeguarding map is issued by the Met Office, the Met Office.

27. Planning authorities can advise developers whether a site is within a safeguarded area and which body should be so notified.

28. In this case, the notice to the relevant body must include:

(i) the date on which the notice is sent;

(ii) the name and address of the developer and, where an agent is acting on behalf of the developer, the name and address of that agent;

(iii) the postal address of the land to which the development relates or, if the land has no postal address, a description of the location of the land;

(iv) a description of the development to which the notice relates, including its siting, appearance and dimensions (including the height of any mast and the height of any apparatus attached to the mast to the extent that it would protrude above the highest part of the mast); and

(v) a grid reference (to at least 6 figures each of Eastings and Northings) and the elevation height of the site (to an accuracy of 0.25 metres above Ordnance Datum.

29. Such notice must be given at least 28 days before development is to commence. Where development is carried out in an emergency, notice must be given as soon as possible after the emergency arises.

30. It will be for the developer and the relevant body to resolve any issues arising for the potential impact of the exercise of these PDR.

31. Similar requirements apply to PDR for new ground based masts in safeguarded areas and link to the prior notification/ prior approval procedure (paragraphs 77 to 80).

Ground based equipment housing

32. Class 67(5) and (6) place limitations on PDR for development involving ground based equipment housing. The PDR allow the installation or construction of ground based equipment housing provided it does not exceed 3 metres in height or 90 cubic metres in volume. PDR further allow the replacement or alteration of such equipment housing provided that after the replacement or alteration either:

• the equipment housing does not exceed 3 metres in height or 90 cubic metres in volume; or
• if the equipment housing being replaced or altered exceeds either or both of the above limits, the equipment housing as replaced or altered is no greater in height or volume than the equipment housing it replaces or alters.

33. In designated areas PDR allows for the construction, installation, alteration or replacement of ground based equipment housing which would not exceed 2.5 cubic metres in volume.

Other ground based apparatus

34. Class 67(7) places limitations on PDR for development involving the installation, alteration or replacement of ground based apparatus. Class 67(7)(a)(i) specifies that for ground based apparatus, with exceptions^[23], the ground or base area of the structure must not exceed 1.5 square metres. Where existing apparatus already exceeds this limit, it can be altered or replaced up to the existing ground or base area.

35. Class 67(7)(a)(ii) and (iii) deal with the height of apparatus. Class (7)(a)(ii) limits the height permitted for apparatus installed under PDR to 15 metres above ground level. Where existing apparatus is being altered or replaced Class 67(7)(a)(iii) limits the height of the altered or replacement apparatus to the height of the existing apparatus or 15 metres above ground level, whichever is the greater. These limits do not apply to ground based masts (Class 67(3) and (4)) or ground based equipment housing (Class 67(5) and (6)).

Development on a building or other structure

36. Developers should be aware of the condition set out in Class 67(18), that any apparatus installed, altered or replaced, on a building^[24] (other than a ground based mast) under the PDR granted by Class 67(1)(a), and any development ancillary to equipment housing carried out under the PDR granted by Class 67(1)(c), shall, as far as is practicable, be sited so as to minimise its effect on the external appearance of the building (see paragraph 57). This includes ‘small antennas’ and ‘small cell systems’.

37. In some instances, the carrying out of works for the alteration of a building which affect only the interior of the building or do not materially affect its external appearance do not constitute development requiring planning permission. In the event of any question of planning enforcement, it would be for the planning authority, in the first instance, to consider such a question in the circumstances of the case.

Electronic communications apparatus on a building or other structure (other than a ground based mast)

38. Class 67(10) sets out a general height limitation on PDR for the installation of apparatus on a building or other structure, other than a ground based mast. Equipment housing has its own specific height limit in this regard. Equipment housing and other apparatus also have other restrictions, detailed below, other than in relation to height.

39. Class 67(10)(a) permits the installation of apparatus subject to limitations on the height of the apparatus itself – namely up to either 10 metres or, in the case of alteration or replacement, up to the existing height of the apparatus, if greater than 10 metres.

40. Class 67(10)(b) deals with the extent to which the apparatus can protrude above the highest part of the building – namely 8 metres where the building is 15 metres or more in height and 6 metres where it is below 15 metres in height. Again, where the existing apparatus already protrudes beyond these limits, it can be altered or replaced up to the extent to which it currently protrudes above the highest part of the building.

41. In designated areas the PDR allows for the construction, installation, alteration or replacement of apparatus on buildings permitted by virtue of Class 67(10). This is subject to a prior notification/prior approval requirement where the development is to be located in a conservation area, a historic garden or designed landscape or within the setting of a category A listed building or a scheduled monument.

Equipment housing on a building

42. Class 67(8) and (9) cover, respectively, the construction or installation and replacement or alteration of equipment housing on a building. These provisions are very similar to those of Class 67(5) and (6) relating to ground based equipment housing, with the only difference being in respect of the volume of the equipment housing. The PDR allow the installation or construction of equipment housing on a building provided the housing does not exceed 3 metres in height or 30 cubic metres in volume. PDR further allow the replacement or alteration of equipment housing on a building provided that the housing as replaced or altered either:

• does not exceed 3 metres in height or 30 cubic metres in volume, or
• if the equipment housing being replaced or altered exceeds either or both of the above limits, the housing as replaced or altered is no greater in height or volume than the equipment housing it replaces or alters.

Small cell systems or Regulation 2020/1070 small cell systems

43. Other than in conservation areas, and on dwellinghouses and in their curtilages, there are no limits on the installation of small cell systems^[25] on buildings and other structures.

44. Class 67(13) limits PDR for the installation of electronic communications apparatus on, or within the curtilage of, a dwellinghouse to small cell systems permitting up to 4 small cell systems in total across the dwellinghouse and its curtilage. The small cell systems must not be installed so that they would protrude above the highest part of the roof of the dwellinghouse. In conservation areas the total number of small antennas on dwellinghouses and in their curtilage is two, and a further restriction that they are not located where they would front a road applies.

Dish antennas and antenna systems on buildings and other structures (other than dwellinghouses and their curtilages)

45. Class 67(11) and (12) set out PDR in relation to dish antennas and antenna systems on buildings and other structures (other than dwellinghouses and in their curtilages) and distinguish respectively between such apparatus located below a height of 15 metres and such apparatus located above that height. These restrictions do not apply to small cell systems or Regulation 2020/1070 small cell systems or to antennas installed on ground based masts.

46. When installing a dish antenna on a building or structure the maximum size of dish antenna that can be installed is 1.3 metres when measured in any dimension. PDR do not apply if the aggregate size of all the antennas which would be on the building or other structure would exceed 10 metres.

47. If existing dishes on a building or other structure exceed the above limits, they can be altered or replaced up to their existing size or aggregate size.

48. When installing an antenna system on a building or other structure PDR only apply if, as a result, there would be no more than 5 such systems on the building or structure at whatever heights. Again, if what already exists on the building or structure exceeds these limits, antenna systems can be altered or replaced up to the existing level. An antenna system is defined in the GPDO for the purposes of Class 67 as: ‘a set of antennas installed on a building or structure and operated in accordance with the electronic communications code’.

49. This PDR is subject to a prior notification/prior approval requirement in circumstances where the development is to be located in a conservation area, a historic garden or designed landscape, the setting of a category A listed building or a schedule monument, on a historic battlefield or in a World Heritage Site.

Access tracks

50. Class 67(14) permits the construction of an access track of no more than 50 metres in length which is ancillary to equipment housing.

Conditions on Class 67 PDR

Notification and declaration requirements

51. Under Class 67(15), where development consists of the construction or installation of one or more antennas or of equipment housing, or the alteration or replacement of a ground based mast, PDR is subject to the condition that the developer is required to give written notice to the relevant planning authority. This must be given at least 28 days before the start of development, unless development is carried out in an emergency, when the developer must give written notice to the planning authority as soon as possible after the emergency arises. This provision does not apply to development falling within Class 67 (23) or 67(23B).

52. The notification must consist of a detailed description of the apparatus, and a plan indicating its proposed location. The description should include specifications such as purpose, dimensions, materials and colour, and the location plan should show the layout of the apparatus.

53. This information is primarily intended to ensure planning authorities are aware of antenna installations in their area and potentially large developments such as equipment housing. Planning authorities may wish to provide comment to the operator on proposals notified in this way, but there is no statutory requirement in Class 67 for such comments to be taken on board by an operator. However, an operator may wish to consider comments from the planning authority when considering compliance with other conditions and limitations such as the conditions on minimising the impacts (see paragraphs 57 to 59), or when considering what constitutes the setting of a scheduled monument or category A listed building.

54. Class 67(15) sets out a further requirement where the development involves the construction or installation of one or more antennas. A declaration that the proposed equipment and installation is designed to be in full compliance with ICNIRP^[26] public exposure guidelines on radiofrequency radiation^[27] has to be submitted along with the notification required under Class 67(15). An example of the format of this declaration is given at the end of this annex.

55. Other legislation also governs the activities of electronic communications code operators. The Electronic Communication Code (Conditions and Restrictions) Regulations 2003, include provisions for such operators to give advance notice of works to, for example, planning authorities and/or Scottish Natural Heritage in certain circumstances, and set out what such parties can do in response. Notifications should be clear about the legislation under which they are being made.

Safeguarded areas

56. Please see the paragraphs of this annex regarding the alteration and replacement of ground based masts (paragraphs 26 to 31) or the installation of new ground based masts (paragraphs 77 to 80) in safeguarded areas under PDR and the requirements specified in conditions as regards notifying the relevant body.

Minimising the impact of development under these PDR

57. Class 67(18) and (19) contain conditions on minimising the impact of development carried out under PDR. Apparatus installed, constructed, altered or replaced under Class 67(1)(a) or development ancillary to equipment housing described in Class 67(1)(c) on a building (other than a ground based mast) must, as far as practicable, be sited to minimise the effect of the development on the appearance of the building.

58. Similarly permitted development consisting of the alteration or replacement of a ground based mast is subject to the condition that the visual and environmental impact of the development is minimised as far as is practicable.

59. ‘As far as is practicable’ can relate to a number of issues, such as: the technological requirements of the equipment; interference issues (e.g. the presence of trees or overhead power lines); the availability of alternative locations (e.g. site acquisition issues), the structural limitations of masts, the need for and availability of underground services.

Removal of equipment

60. Class 67(20) and (21) impose conditions requiring the removal of development carried out under these PDR. Any development carried out under Class 67 PDR in an emergency must be removed as soon as the need for the development ends, subject to a maximum of 18 months from development commencing. Where development is carried out under Class 67(1)(a) and (c) in the normal course of events, i.e. not in an emergency, then the development must be removed once it is no longer needed for electronic communications purposes.

61. In any event, when the development is removed, the land or building must be restored to its condition before development took place or to any other condition agreed upon in writing with the planning authority.

The Conservation (Natural Habitats &c.) Regulations 1994

62. PDR generally are subject to regulations 60 to 63 of the Conservation (Natural Habitats &c.) Regulations 1994 (The Habitats Regulations). In effect these add another condition to Class 67 PDR and others potentially requiring an appropriate assessment to be carried out and consent obtained from the planning authority in relevant cases adversely affecting European Sites i.e. not just development in a European Site.

63. This consent under the Habitats Regulations is in addition to any prior approval procedure in Class 67. Consequently, for example, even if prior approval is granted, is not required, or the planning authority does not issue a decision on prior approval within the 56 day period, development, in relevant cases, would not be authorised without the consent under the Habitats Regulations.

64. Most European Sites in Scotland are also sites of special scientific interest (SSSI). The Nature Conservation (Scotland) Act 2004 contains additional requirements as regards approval of works affecting a SSSI. These include requirements to obtain consent from SNH for any operation that is likely to damage the features of a SSSI, including those allowed under permitted development - unless this has been specifically approved by the local authority in accordance with requirements of the 2004 Act.

Work carried out in an emergency

65. Although there is no statutory definition of what would constitute emergency development under Class 67, the definition of "emergency works" given in the electronic communications code may be helpful as a general guide in the context of development by electronic code system operators. The electronic communications code is now in Schedule 3A of the Communications Act 2003^[28].

66. Class 67(1) (b) grants PDR for the temporary use of land in an emergency to station and operate moveable apparatus. ‘Moveable’ in this context does not necessarily mean the apparatus or other structure is not installed or attached in some way (e.g. it does not have to be on wheels) – the idea is it is not a permanent structure. PDR under Class 67(1)(a) and (c) can be used in an emergency, but the restrictions in Class 67(2) to (13) will apply.

67. There are exemptions from and specific provision in certain of the conditions where PDR under Class 67(1)(a), (b) or (c) is carried out in an emergency: there is no requirement for prior approval (see paragraph 72) and notices must be served as soon as possible after an emergency arises rather than a specified time period in advance of development (see paragraphs 29 and 51). Such emergency permitted development has separate requirements as regards the timescales for removal of the works (see paragraphs 60 and 61), and for Class 67(1)(b) PDR the conditions on limiting impacts do not apply (see paragraphs 57 to 61).

Prior notification/ prior approval – new ground based masts

68. The PDR for new ground based masts are subject to a condition in Class 67(23)(b) that the developer must first apply to the planning authority for a determination as to whether its prior approval is required with regard to the siting and appearance of the development. The procedures in this regard under Class 67(22) and (23) differ from those for other classes of PDR. There are, for example, requirements for: advance notice to be served on any other owners and any agricultural tenants of the land by the developer (Class 67(22)(b)); for consultation (article 7ZC) and neighbour notification (article 7ZA) by the planning authority; a different period for the procedure (56 days for a decision on whether prior approval is required and within which such approval is to be granted or refused if prior approval is required - Class 67(23)(d)); and a different fee applies here compared to other, similar procedures.

69. Another significant difference is that even where the planning authority respond that their prior approval is required, if no decision on whether or not to grant that prior approval is given within the 56 day period (or within any agreed extension - see below) the developer can proceed in accordance with the submitted details (Class 67(23)(f)(ii).

70. The planning authority and the developer can agree a longer period than the statutory 56 period within which decisions have to be made – Class 67(23)(d).

71. This procedure applies to (Class 67(23)(a)) the construction or installation of a ground based mast^[29], including the development associated with the construction or installation of the mast which would consist of the construction or installation of apparatus or be development ancillary to the construction, installation or use of equipment housing permitted under Class 67(1)(a) or (c). That is, all the permitted development that will be on the new mast site is to be included in the application.

72. This prior approval requirement does not apply to a ground based mast being installed under Class 67 in an emergency (i.e. temporarily) – Class 67(23)(a).

73. In the event an application for a determination is made for a ground based mast which does not comply with the Class 67 PDR, e.g. such as the height limits or restriction on such development in a designated area, then the application should be returned explaining why it is not being accepted.

Pre-application notices to site owners and agricultural tenants

74. Prior to making an application for a determination as to whether the prior approval of the planning authority is required, the developer must send a notice to anyone other than the applicant who is the owner of the land on which the development would be located and any agricultural tenant of that land (Class 67(22)(b)).

75. In the event that there are known to be owners or agricultural tenants, but the developer cannot identify them, despite having taken reasonable steps to do so, they should indicate in their application that this is the case, including a description of what steps they took (see paragraph 81(h)).^[30]

76. Class 67(22)(c) sets out the required content of the notice to any other site owners and agricultural tenants:

(i) the date on which the notice is sent;

(ii) the name and address of the developer and, where an agent is acting on behalf of the developer, the name and address of that agent;

(iii) the postal address of the land to which the development relates or, if the land has no postal address, a description of the location of the land;

(iv) a description of the development to which the notice relates, including its siting, appearance and dimensions (including the height of any mast and the height of any apparatus attached to the mast to the extent that it would protrude above the highest part of the mast); and

(v) a statement that the developer is to apply to the planning authority in whose area the land to which the development relates would be located for a determination as to whether the prior approval of the authority will be required as to the siting and appearance of the development;

(vi) the name and address of the planning authority to which the application referred to in head (v) is to be made;

(vii) a statement that the application will be available for public inspection at the offices of the planning authority;

(viii) a statement that written representations may be made to the planning authority with regard to the siting and appearance of the development; and

(ix) information as to how representations may be made and the period within which they may be made, being a period of 21 days beginning on the day after the day on which the notice is sent.

Pre-application Notices - Safeguarded Areas

77. As indicated in paragraph 56, there are issues with mast related development in safeguarded areas. In such cases, before applying for a determination as to the need for prior approval, the developer must notify the relevant body for the safeguarded area (Class 67(22)(d)).

78. The notice to the relevant body must include the information contained in Class 67(22)(c) for notices to owners – see paragraph 76 - and a grid reference (to at least 6 figures each of Eastings and Northings) and the elevation height of the site (to an accuracy of 0.25 metres above Ordnance Datum).

79. This gives the relevant body an opportunity to make any representations to the planning authority within the timescale for prior notification and prior approval.

80. In an emergency, while the prior approval procedure does not apply, the developer should still advise the relevant body that a ground based mast is being erected for a temporary period, supplying the information specified in Class 67(16)(b)(aa) – i.e. the more limited information that would be notified for an increase in height or replacement of an existing ground based mast – see paragraph 28. This is allow an opportunity to consider any concerns arising from even the temporary presence of such apparatus.

Application procedure

81. The application for a determination as to whether prior approval is required must include the information in Class 67(23)(c), namely:

(a) the name and address of the developer and, where an agent is acting on behalf of the developer, the name and address of that agent;

(b) a description of the development to which the application relates, including its siting, appearance and dimensions (including the height of any mast and the height of any apparatus attached to the mast to the extent that it would protrude above the highest part of the mast);

(c) the postal address of the land to which the development relates or, if the land has no postal address, a description of the location of the land;

(d) a plan sufficient to identify the land on which the development would be located and showing the situation of that land in relation to neighbouring land^[31];

(e) other plans and drawings which are necessary to describe the development to which the application relates, showing in particular the dimensions, appearance and position of development on the site;

(f) where the application relates to an antenna, an ICNIRP declaration;

(g) any fee required to be paid; and

(h) where relevant, evidence of compliance with the requirements on notifying any other owners and/ or agricultural tenants or the relevant body as regards development in a safeguarded area.

82. The planning authority should notify the developer as soon as possible whether the application has been validly made, i.e. in accordance with the list in Class 67(23)(c). Given the nature of this particular form of prior approval procedure, it is important that the date when a valid application was received by the planning authority is identified – in order to calculate the 56 day period.

83. Even where the application is made in accordance with the statutory requirements, the planning authority, if requiring prior approval, can ask for further information necessary to determine whether prior approval should be granted. However, information beyond that required by Class 67(23)(c) requested by or submitted to the planning authority does not affect the start and end of the 56 day period (or any agreed extension to that period) within which a decision must be given to the applicant.

84. It is always better, therefore, if developers and planning authorities can identify in advance of an application any particular information requirements, which should be proportionate to the development and proposal site. Planning authorities should consider setting out in guidance any additional information they will need in particular circumstances. The good practice planning guidance on rolling out this infrastructure should form the basis for pre-application discussions or guidance on information requirements.

85. The planning authority is required to carry out neighbour notification. This is essentially the same as for an application for planning permission^[32]. Where there are premises on neighbouring land to which such notice can be sent, the planning authority are to send a notice addressed to “the Owner, Lessee of Occupier” to such premises.

86. Under article 7ZA(3) of the GPDO, the notice must:

(a) state the date on which the notice is sent;

(b) state the name of the applicant and, where an agent is acting on behalf of the applicant, the name and address of that agent;

(c) include any reference number given to the application by the planning authority;

(d) include a description of the development to which the application relates;

(e) include the postal address of the land to which the application relates, or if the land has no postal address, a description of the location of the land;

(f) state how the application and other documents submitted in connection with it may be inspected;

(g) state that representations may be made to the planning authority with regard to the siting and appearance of the development and include information as to how representations may be made and the period within which they may be made (which must be not less than 14 days beginning with the day after the day on which the notice is sent); and

(h) be accompanied by a plan showing the situation of the land to which the application relates in relation to neighbouring land.

87. Under Article 7ZC, the planning authority has to make the information described in (b) to (g) of paragraph 86 above available on its web site until the application has been dealt with. They must also make the application available at an office of the planning authority. Clearly the specific arrangement in this regard should be reflected in the neighbour notification (point (f) in paragraph 86).

88. Where an application relates to a proposal in the area of Cairngorm National Park, Article 7ZB requires the planning authority to notify the Park Authority of the application with 5 days of its receipt.

89. Article 7ZD sets out various requirements for planning authorities to consult other bodies where certain criteria are met, and the time periods for responses.

90. Article 7ZE includes a requirement to consider representations received within the specified timescales for statutory consultees. This should also in practice also cover responses to the planning authority arising from the notices issued by the developer prior to making the application - which have a set limit of 21 days for responses.

Decisions

91. The planning authority has 56 days beginning with the date of receipt of a valid application to give the developer their decision as to whether their prior approval is required, and, where it is required, to give the developer a decision as to whether or not it is granted. The planning authority and the developer can agree a longer period than the 56 days, and the references to the 56 day period in the following paragraphs on Decisions should be read as including any such period.

92. In the event the planning authority does not notify a decision as regards the need for prior approval within the 56 day period, then the developer can proceed in accordance with the plans as submitted (Class 67(23)(d)(iii)).

93. Where the planning authority gives their decision within the 56 day period that its prior approval is required, but does not give the developer a decision on whether or not to grant such approval within the same 56 day period, the developer can proceed in accordance with the details as submitted (Class 67(23)(d)(ii)(bb)).

94. In the event that an application is called in by the Cairngorm National Park Authority, then the 56 day period, or any extended period agreed between the planning authority and the developer, will start again from the date of call-in (Class 67(23)(e)).

95. Class 67(23)(f) allows the planning authority to agree to changes to the details that are approved or, where the developer can proceed without prior approval being granted, to the details as submitted. The expectation is that this is akin to the powers planning authorities have to agree non-material changes to applications for planning permission without the need for a new application.

96. Class 67(23)(g) specifies that development must be started within a 3 year period from the date of a grant of prior approval or, where the developer can proceed without a grant of prior approval, from the date the planning authority receives a valid application for a determination on the need for prior approval.

97. Conditions can be attached to a grant of prior approval. As well as the usual tests for conditions (necessity, related to planning, related to the development, precise, enforceable and reasonable in all other respects),it should be noted that the use of other PDR cannot be restricted by condition in a grant of prior approval in the way they can be with a condition on a grant of planning permission. The developer will have a right of appeal against refusal of prior approval or against conditions attached to grant of prior approval.

98. If prior approval is not required, the planning authority should inform the developer without delay. Similarly, where prior approval is required, the planning authority should inform the developer of that as soon as possible and include any request for further information needed to decide on whether to grant prior approval – bearing in mind the effect of not issuing a decision one way or another within 56 days or any extended period agreed (see paragraph 83).

Prior Notification/Prior approval – ‘other apparatus’ on buildings, antennas (not small cell systems) and underground apparatus

99. In certain circumstances, before beginning development the developer must apply to the planning authority as to whether prior approval will be required in respect of:

• the siting and visual impacts of the construction or installation of apparatus, permitted by virtue of Class 67 (10) on a building and which would be located in a conservation area, a historic garden or designed landscape, or within the setting of a category A listed building or a scheduled monument.
• the siting, design and appearance of the installation of dish and other antennas (other than small cell systems or Regulation 2020/1070 small cell systems) on buildings (other than ground based masts) and which would be located in a conservation area, a historic garden or designed landscape, within the setting of a category A listed building or a scheduled monument, on a historic battlefield or in a World Heritage Site.
• the impact of the proposed development of underground apparatus which is to be located in a conservation area, a historic garden or designed landscape, the curtilage of a category A listed building, or a site of archaeological interest.

100. Such prior notification applications must be accompanied by

• a written description of the proposed development,
• details of the design and the materials to be used,
• a plan indicating the location,
• the dimensions of the proposed development,
• any fee required to be paid.

101. Development may not commence before the occurrence of one of the following-

• the receipt by the applicant from the planning authority of a written notice of their determination that such prior approval is not required
• where the planning authority has given the applicant notice within 28 days following the date of receiving the application of their determination that such prior approval is required, the giving of such approval
• the expiry of 28 days following the date on which the application was received by the planning authority without the planning authority making any determination as to whether such approval is required or notifying the applicant of their determination.

102. The development must, except to the extent that the planning authority otherwise agree in writing, be carried out—

(i)where prior approval is required, in accordance with the details approved, or

(ii)where prior approval is not required, in accordance with the details submitted with the application,

The development is to be carried out—

(i)where approval has been given by the planning authority, within a period of 3 years from the date on which approval was given,

(ii)in any other case, within a period of 3 years from the date on which the planning authority were given the application and all the accompanied documentation, as referred to above.

103. Where a development has been notified and the authority have given notice that prior approval of the authority is required, the development cannot proceed until that approval is given. It is therefore in the developer's own interests to submit the details as soon as possible. If however, the developer proceeds without submitting details or without, or in contravention of, the authority's approval, the normal enforcement measures would again be available for use as the authority deem appropriate in the circumstances of any particular case.

Form of ICNIRP Declaration

Declaration of Conformity with ICNIRP Public Exposure Guidelines

(“ICNIRP Declaration”)

[Operator name]

[Operator address]

[Operator address]

[Operator address]

[Operator address]

Declares that the proposed equipment and installation as detailed in the attached planning application/notification under Class 67(3) of the Town and Country Planning (General Permitted Development ) (Scotland) Order 1992 at:

(Address)

is designed to be in full compliance with the requirements of the radiofrequency (RF) public exposure guidelines of the International Commission on Non-ionizing Radiation Protection (ICNIRP), as expressed in EU Council recommendation of 12 July 1999* “on the limitation of exposure of the general public to electromagnetic fields (0Hz to 300 GHz)”.

* Reference: 1999/519/EC

Date …

Signed…

Name…

Position…