Digital communications infrastructure: planning consultation

Proposed amendments to the General Permitted Development Order

Current legislation:

• The Town and Country Planning (General Permitted Development) Scotland Order 1992, as amended, "the GPDO.‟
  • Class 20, Part 67.

6. Currently, Class 67 of Schedule 1 to the Town and Country Planning (General Permitted Development) Scotland Order 1992 ^[7] as amended ('the GPDO') grants a Scotland wide planning permission for certain development by ECCOs. Class 67(1) specifies the grant of planning permission, Class 67(2) sets out those restrictions on the grant of permission, and Class 67(3) to (6) sets out the conditions attached to the permission. In proposing the following changes, we are also taking the opportunity to consolidate Class 67 and to generally bring this up to date. A consultative draft consolidated Class 67 is included in this consultation at Annex A.

7. Other parties, such as community groups, who are not ECCO, and so not subject to the benefits and obligations of the Electronic Communications Code, are also engaged in providing communications infrastructure, such as masts and antennas. They do not benefit from Class 67 PD rights, though may engage with companies who do. The research concluded that Class 67 PD rights should not extend beyond ECCO (Recommendation 6).

8. Consultees are encouraged to consider the detailed draft legislation in Annex A, including the definitions (for example of 'buildings and 'land') in the interpretations section, and in the Glossary ( Annex F) as well as the policy intentions set out in this paper when making a response.

Q.1 Do you agree Class 67 PD rights should continue to apply only to Electronic Communications Code Operators?

Please give reasons for your answer.

Class 67 General Conditions

Consultation Draft legislation:

• The Draft Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2016
  • Class 67 (19)-(23)

9. At present some general conditions apply to Class 67 PD rights:

• Requirements to give 28 days' advance notice to the planning authority of the installation of antennas or equipment housing (or in an emergency, as soon as possible after the emergency begins), including a description of the equipment, its location and, for antennas, declaration of compliance with the relevant International Commission on Non-Ionising Radiation Protection ( ICNIRP) guidelines;
• Equipment located on buildings must minimise the effect on the external appearance of the building as far as practicable (this does not apply to the use of land and buildings for moveable structures installed in an emergency); and
• Requirements for removing equipment when it is redundant or when time periods for apparatus installed in an emergency expire, and requiring restoration of the land or buildings.

10. We intend to broadly retain the general conditions outlined in paragraph 9 above, subject to changes to clarify the time periods for removing equipment installed under Class 67 PD rights.

11. The conditions on giving notice are also being amended so that:

• No notice is required where antennas and/or equipment housing are part of a development requiring prior approval (see section on 'New Ground Based Masts' below);
• It is clear that all Class 67 PD rights used in an emergency must be notified as soon as possible (see paragraphs 17-18 on emergency works).

12. Finally, we have taken the opportunity to clarify the conditions on the removal of equipment and restoration of land such that:

• Apparatus and other structures installed or constructed under Class 67 PD rights are to be removed once the need for the development ceases, with an additional absolute time limit for PD carried out in an emergency;
• In all cases, such land, buildings or other structures affected shall be restored to its condition before the development took place, or to any other condition as may be agreed in writing between the planning authority and the developer.

Q.2 Do you agree with the proposed update to the general conditions for Class 67 PD rights?

Please give reasons for your answer.

Designated Areas

13. Currently, PD rights in Class 67 are subject to a broad restriction in certain areas set out in Class 67(2)(a). Within these areas only certain Class 67 PD rights apply, including: emergency development; two small antennas on a building; and certain works relating to telegraph polls, overhead lines and changes to existing ground based masts.

14. The current list of 'designated areas' in Class 67 is:

- Conservation Areas
- Category A Listed Buildings and their settings
- Scheduled Monuments and their settings
- Historic Gardens and Designed Landscapes
- Historic Battlefields
- Sites of Special Scientific Interest ( SSSI)
- National Parks
- National Scenic Areas
- European Sites (e.g. special protection areas and special areas of conservation)

15. Some of these areas have their own consent procedures which apply irrespective of any grant of planning permission. For example, works affecting Category A listed buildings and schedule monuments require Listed Building Consent and Scheduled Monuments Consent respectively, though this requirement does not extend to proposals affecting the setting of such buildings and monuments. Operators are also subject to the requirements of the UK wide Electronic Communications Code (Conditions and Restrictions) Regulations 2003 ^[8] . These Regulations include a range of requirements to notify planning authorities and other bodies of proposals to construct or install equipment in different circumstances and with different levels of control applying in light of responses received. Such additional controls should be borne in mind when commenting on proposals throughout this paper for extending Class 67 PD rights for specific types of development, such as masts, equipment housing and other apparatus on buildings, in Class 67 designated areas.

16. In the meantime, we welcome views specifically on whether the current list of designated areas could be reduced, for example in view of these additional controls. In any designated areas removed from the list in Class 67, the restrictions and conditions in Class 67(3) to (24) would apply as appropriate.

Q3.(a) In view of the controls in place outwith the planning system, should Category A listed buildings and scheduled monuments be removed from the general area based restrictions on Class 67 PD rights?

Q3.(b) Are there any other Class 67 designated areas which can be removed from the general area based restrictions?

Please give reasons for your answers.

Q.4 Do you have any other comments on the Class 67 designated areas in light of the proposals set out in this paper?

Extension of Existing Class 67 Permitted Development Rights

Emergency works

Consultation Draft legislation:

• The Draft Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2016
  • Class 67(1)(a), (b), (c) and (19)-(24)

17. Currently Class 67 PD rights allow equipment to be installed in an emergency for a period of up to 12 months. In some instances, this bypasses certain restrictions (including those for Class 67 designated areas) and conditions that would otherwise apply on the basis that the emergency - and the equipment - will be for a temporary period. Annex G of Circular 2/2015 ^[9] contains guidance on what may constitute an 'emergency' in this context.

18. In line with Recommendation 1 of the research, we propose increasing the time period for emergencies from 12 months to 18 months. All Class 67 PD to be carried out in an emergency must be notified to the planning authority as soon as possible, so that planning authorities can monitor the time limit for removal and restoration. Where Class 67 PD rights are used in an emergency, the use of the land or buildings will cease and any apparatus or structure installed or constructed must be removed 18 months from when the use started or when the need for the development ends, whichever of these two is the earlier.

Q.5 Do you agree with proposals to extend the time period for emergency works from 12 to 18 months?

Please give reasons for your answer.

Small antenna on buildings

Consultation Draft legislation:

• The Draft Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2016
  • Class 67(2) and (14)- (23)

19. Currently Class 67 PD rights allow 2 small antennas ^[10] on a dwellinghouse and its curtilage, and 8 small antennas on other buildings, whereas in the Class 67 designated areas up to 2 small antennas are allowed on all buildings. Various additional restrictions apply within different Class 67 designated areas regarding the location of small antennas.

20. The research has highlighted that 'small cells' are a likely feature of future infrastructure - i.e. antennas to boost capacity of networks in particular locations. The research did not however make any precise recommendation as to what PD rights would be needed to support 'small cells' in future. Respondents may wish to consider in particular the definitions of 'small antenna' and 'building' (see Glossary), as well as question 17(b) on 'Apparatus on buildings'.

21. In light of Recommendation 4 of the research, we are proposing to:

• Retain the existing Class 67 PD rights for up to two small antennas on a dwellinghouse in Class 67 designated areas and up to 8 small antennas on other buildings outside Class 67 designated areas;
• Increase Class 67 PD rights to allow up to 4 small antennas across a dwellinghouse and its curtilage outside designated areas;
• Increase Class 67 PD rights to allow 4 small antennas on buildings (other than dwellinghouses) in European Sites, SSSIs and Historic Battlefields.
• Remove the restriction that small antennas are not to be located on parts of a dwellinghouse or its curtilage that face on to a road in European Sites and SSSIs (this is already the case in Historic Battlefields).

Q.6 Do you agree with the proposed extension of Class 67 PD rights for small antenna on buildings, including dwellinghouses?

Please give reasons for your answer.

Alterations and replacements of existing ground based masts

Consultation Draft legislation:

• The Draft Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2016
  • Class 67(2)(e), (4), and (19) - (23).

22. Currently, Class 67 grants PD rights for the alteration or replacement of existing ground based masts - including within the Class 67 designated areas - provided:

• for existing masts up to 50 metres in height, the height of the original structure is not exceeded by more than 5 metres;
• for existing masts over 50 metres in height, the original mast height is not increased by more than 15%;
• altered or replacement masts do not exceed the width of the original by one third or by one metre, whichever is the larger; and
• a replacement mast is no more than 4 metres from the existing mast.

23. Recommendation 2 of the research proposes a number of relaxations to the above restrictions. In light of this recommendation, we propose that in future PD rights should apply to the alteration or replacement of existing ground based masts, including in Class 67 designated areas, as follows:

• Where the existing mast is 20 metres in height or less, it can be increased by a maximum of 5 metres plus 10% of the original height of the structure;
• For masts above 20 metres up to 50 metres in height and those over 50 metres in height the existing 5 metre and 15% thresholds for height increases respectively will continue to apply;
• The limit on the distance between the original and a replacement mast will be increased to 6 metres;
• The current width limitations will remain;
• Clarification that height and width constraints do not include the antennas themselves; and
• New requirements for prior approval (see below) would not apply to the alteration or replacement of existing masts.

Q.7 Do you agree with the proposed increase in height allowed for altered or replaced ground based masts under Class 67 PD rights?

Please give reasons for your answer.

Q.8 Do you agree with the proposed increase in the maximum distance allowed between the original and replacement ground based masts under Class 67 PD rights?

Please give reasons for your answer.

Q.9(a) Should the current width restriction of one third the original or one metre (whichever is the larger) for alterations to ground based masts be increased?

Q9(b) What should the new restriction be?

New Class 67 Permitted Development Rights

New ground based masts

Consultation Draft legislation:

• The Draft Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2016
  • Class 67(2), (3), (7), and (17) to (24)

24. Currently there are no Class 67 PD rights for new ground based masts in Scotland, though such rights have existed in some parts of the UK for at least 20 years. Recommendation 3 of the research proposes the introduction of new Class 67 PD rights - outside the Class 67 designated areas - for the construction or installation of new ground based masts up to 25m, subject to an approval mechanism on the siting and appearance of the development.

25. The proposed height restriction of 25m in Class 67(3) is intended to include any plinth or supporting structure for the mast and any apparatus (other than antennas - see paragraph 44). Detailed proposals for a 'prior approval' mechanism for new masts are set out in paragraphs 27 to 31 below.

Q.10(a) Do you agree with proposals to introduce PD rights for new ground based masts outside the Class 67 designated areas?

b) do you agree the proposed height restriction of 25m?

c) do you agree a prior approval should be required on siting and appearance?

Please give reasons for your answers (including any alternative proposals).

Q.11(a) Is there scope to introduce Class 67 PD rights for new ground based masts within any, or all, of the Class 67 designated areas?

b) if yes, within which of the Class 67 designations should such PD rights apply?

Please give reasons for your answer.

c) Should any conditions (e.g. prior approval) and/or restrictions
(e.g. on height) apply?

If so, what should these be?

Prior Approval for new ground based masts

Consultation Draft legislation:

• The Draft Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2016
  • Article 3 (inserting new articles 7ZA, 7ZB, 7ZC and 7ZD to the GPDO) and Class 67(24)

26. The research has recommended that Class 67 PD rights for new ground based masts should be subject to a condition requiring the Planning Authority's approval of the detailed siting and appearance of the mast. There are a variety of existing mechanisms in place both within Scotland and elsewhere in the UK for prior notification / approval procedures for different classes of PD, and we have drawn on elements of these in the proposals below:

Prior approval for new ground based masts

27. The following prior approval process is proposed:

i. The developer submits an application for prior approval to the Planning Authority
ii. The Planning Authority publishes the application for prior approval on its website; and, carries out neighbour notification.
iii. The Planning Authority consults statutory consultees (see paragraph 28) as appropriate.
iv. Consultees, including the public, have a minimum of 14 days to make representations.
v. The Planning Authority has 40 days to determine whether to grant prior approval, taking into account any representations received regarding siting and appearance.
vi. The developer may appeal a decision to refuse prior approval, or may appeal against non-determination of the application after the 40 day period. Any such appeal would be to the Scottish Ministers.
vii. The developer has 3 years to complete the development.

28. The proposed statutory consultees for the purposes of Class 67 prior approval are:

i. The relevant airport authority where development is within 3km of an aerodrome;
ii. SNH where development may affect an SSSI;
iii. HES where development may affect a World Heritage Site, Historic Garden and Designed Landscape, Royal Park or Palace a Scheduled Monument or its setting, a Category A Listed Building or its setting, or an Historic Battlefield.

29. The prior approval covers the new mast and any associated equipment housing or other permitted development installed with the new ground based. Prior approval would not apply where Class 67 PD rights are exercised in an emergency. Ground based mast authorised via prior approval may subsequently be altered or replaced under Class 67 PD rights, subject to the specified restrictions and conditions.

30. The Scottish Government has committed to working with all parties to progress new Planning for Digital Communications Advice, to replace the current Planning Advice Note: 62 (Radio Communications). It is our intention that this new advice will sit alongside any new Class 67 PD rights and will clearly set out agreed best practice for the siting and design of new masts; and, the expectations for the different parties' roles within the development management process, including the new prior approval procedures and their associated information requirements.

Q.12 (a) Do you agree with the proposed mechanism for prior approval of new ground based masts?

b) In particular, do you agree with the proposed publicity requirements, including neighbour notification and on-line publication?

c) Do you agree with the proposed list of statutory consultees for the purposes of Class 67 prior approval?

Q.13 Please explain your answers and any suggestions for alternative requirements. Do you have any further comments on the proposed prior approval process for new ground based masts?

Fee for prior approval of new ground based masts

31. Currently the fee for prior notification/ approval under other Classes of development within the GPDO is £78 ^[11] , however none of the existing notification / approval procedures included the publicity or consultation provisions outlined above. Currently, the corresponding fee for an application for planning permission for a new mast is £401. Planning fees generally are under consideration as part of the Review of the Planning System in Scotland. In the meantime we are proposing a fee of £150 for prior approval for ground based masts.

Q.14 Do you agree with the proposed fee of £150 for prior approval for new ground based masts?

Please give reasons for your answer.

Ground based equipment housing

Consultation Draft legislation:

• The Draft Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2016
  • Class 67(2), (5)-(7) and (19)-(24)

32. We are interested in views on whether PD rights for ground based equipment housing would be appropriate in some or all of the Class 67 designated areas and what restrictions and conditions should apply to such rights.

33. Class 67 PD rights also include PD rights for development ancillary to equipment housing, such as security equipment, fences, handrails and ramps (see Class 67(1)(c) and the interpretation section in the draft amendment order in Annex A), and these PD rights are also restricted in Class 67 designated areas. So, any extension of Class 67 PD rights for ground based equipment housing in designated areas would need PD rights for such ancillary development.

Q.15(a) What should the Class 67 PD rights be for ground based equipment housing (and development ancillary to such equipment housing) within the various Class 67 designated areas?

Q.15(b) Please explain your answer, including any proposed conditions and restrictions on such PD rights.

Apparatus on buildings

Consultation Draft legislation:

• The Draft Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2016
  • Class 67(2), (8)-(15) and (17)-(23).

34. In line with existing and proposed Class 67 PD rights elsewhere in the UK, we propose increasing the current Class 67 PD rights to allow up to five antenna systems located more than 15m above ground level on a building outside Class 67 designated areas (currently PD rights allow up to four such systems).

Q.16 Do you agree with the proposed increase in Class 67 PD rights to allow up to five antenna systems on a building outside Class 67 designated areas?

Please give reasons for your answer.

35. Existing PD rights for apparatus (other than small antennas) on buildings outside the Class 67 designated areas are set out in sub-paragraphs (8) to (15) of the draft amendment order (see Annex A). They include restrictions on sizes of equipment housing, antennas, numbers of antenna systems and heights above the building. In some instances a distinction is made between apparatus located above and below 15 metres in height. These provisions set limits on installing new apparatus under PD, but allow for replacement or alteration of existing equipment where the latter already exceeds these limits ^[12] .

36. We propose to clarify that - where existing apparatus on a building is larger or is present in greater quantities than allowed under PD rights, and has the necessary planning permission - such existing apparatus can be altered or replaced provided it does not get any larger or the quantity does not increase. This is in line with other Class 67 PD rights for equipment housing.

37. The research has also indicated (Recommendation 4) that there is scope to extend Class 67 PD rights for the construction, installation, alteration or replacement of electronic communications apparatus on buildings within the Class 67 designated areas. The research found that stakeholders generally were supportive of development on existing buildings to reduce the need for new ground based masts. Currently Class 67 PD rights for apparatus on buildings in these areas are limited primarily to small antennas and emergency development. The research suggested further work was required in establishing what additional Class 67 PD rights may be appropriate.

38. We welcome views as to what additional PD rights might apply in any or all of the Class 67 designated areas for apparatus on buildings.

39. As indicated previously ( paragraph 33), there are also PD rights for development ancillary to apparatus consisting of equipment housing; therefore, any increase in PD rights for equipment housing in Class 67 designated area would need to include PD for such ancillary development.

Q.17 What additional PD rights should apply to apparatus on buildings in Class 67 designated areas? Please explain your answer - including any different restrictions and/or conditions that might apply in different Class 67 designated areas.

Q.18(a) Are any changes required to current PD rights for apparatus on buildings and structures to further support deployment of 'small cell' technology in future? ( Paragraph 20 of the consultation refers).

Q.18(b) If yes, what particular PD rights are needed? Please give reasons for your answer.

Miscellaneous

Supporting equipment for ground based masts

40. The research ( Recommendation 5) concludes that further work is required to scope any additional PD rights that may be appropriate for supporting equipment for ground based masts (where there is no alteration to the mast itself). We welcome examples of the type of development involved (e.g. equipment housing, fences, security equipment or other) as well as the circumstances in which additional PD rights may be appropriate.

Q.19(a) Is there scope to extend PDR for supporting equipment (ground based masts)?

Q19(b) If yes, please describe the type of development involved and the circumstances in which additional PD rights should apply (for example, should these apply within the Class 67 designated areas)?

Underground equipment in Class 67 designated areas

41. We have taken the opportunity to clarify that Class 67 PD rights for underground equipment apply in Class 67 designated areas - Class 67(2)(d) refers.

Development ancillary to equipment housing

42. We have added to Class 67(1)(c) such that the Class 67 PD rights for development ancillary to the construction, installation and use of equipment housing, also include that ancillary to the alteration and replacement of equipment housing.

43. We have refined the restrictions in Class 67(2) to (18) so that they do not apply to development permitted under Class 67(1)(b) (the use of land in an emergency and for the positioning of moveable structures on that land) on the basis that development is temporary (maximum 18 months) and subject to conditions on restoring the land, building or structure involved.

Masts and Antennas

44. We also intend clarifying that the constraints on the height and width of masts when constructed, installed, altered or replaced do not include the antennas on the mast (Class 67(4)(b) refers).

Q.20 Do you have any further comments on the proposed miscellaneous changes to Class 67?

Q.21 Do you have any comments on any other aspects of the proposed Class 67 PD rights?

Strategic Environmental Assessment

45. We consider that the changes contained in the draft Amendment Order are likely to have only minimal impacts on the environment. We are also inviting views on the potential for additional Class 67 PD rights and will formalise our view on the potential for environmental effects in accordance with the Environmental Assessment (Scotland) Act 2005 once the Amendment Order has been fully defined, and in light of the consultation responses.

Q.22 Do you have any comments or information relevant to the SEA aspects of this issue? If so, please elaborate.

Partial Business and Regulatory Impact Assessment ( Annex B)

46. Comments are invited on the Partial Business and Regulatory Impact Assessment set out in Annex B.

Q.23 Do you agree with the conclusions of the partial BRIA, in particular regarding the anticipated benefits of the proposed changes? Do you have any further comments or information to support the final BRIA?

Partial Equalities Impact Assessment Record ( Annex C)

Q.24 In relation to the partial Equality Impact Assessment, please tell us about any potential impacts, either positive or negative, you feel the proposals in this consultation document may have on any particular groups of people.

Q.25 In relation to the partial Equality Impact Assessment, please tell us what potential there may be within these proposals to advance equality of opportunity between different groups and to foster good relations between different groups.

Children's Rights and Wellbeing Impact Assessment ( CRWIA)

47. We have considered the issue of a CRWIA and having screened the proposals concluded such an assessment is not required in this instance.