Digital communications infrastructure: planning consultation

Annex A

Draft - 20 July 2016

Scottish Statutory Instruments

2016 No.

town and country planning

The Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2016

Made - - - - 2016
Laid before the Scottish Parliament 2016
Coming into force - - 2016

The Scottish Ministers make the following Order in exercise of the powers conferred by sections 30, 31 and 275 of the Town and Country Planning (Scotland) Act 1997( ^[13] ) and all other powers enabling them to do so.

Citation and commencement

This Order may be cited as the Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2016 and comes into force on [ ].

Amendment of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992

The Town and Country Planning (General Permitted Development) (Scotland) Order 1992( ^[14] ) is amended in accordance with articles 3 and 4.

After article 7 insert-

"Notification of an application for prior approval under class 67

7ZA.-(1) A planning authority must give notice in accordance with this article that an application has been submitted under sub-paragraph (24)(a) of class 67 (development by electronic communications code operators) of schedule 1.

(2) Notice under paragraph (1) is to be given where there are premises situated on neighbouring land to which the notice can be sent to the owner, lessee or occupier of such premises, by sending a notice addressed to "the Owner, Lessee or Occupier" to such premises.

(3) The notice to be given under paragraph (2) 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 applicant relates;
(e) include the postal address of the land to which the development relates, or if the land in question 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 proposed development and include information as to how and by which date such representations may be made (being a date not earlier than 14 days after the date 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.

(4) In this article "neighbouring land" has the same meaning as in article 7A(4).

7ZB. When the planning authority is in receipt of an application submitted under sub-paragraph (24)(a) of class 67 of schedule 1 which conforms to all of the requirements of sub-paragraph (24)(b) they must publish the information described in article 7ZA(3)(a) to (g) by means of the internet on their website until such time as they have determined the application.

7ZC. Before determining an application submitted under sub-paragraph (24)(a) of class 67 of schedule 1 the planning authority-

(a) must consult-
(i) Scottish Natural Heritage or Historic Environment Scotland, or both, in the circumstances specified in paragraphs 2(a) and 17 of schedule 5 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013( ^[15] ); and
(ii) where the proposed development would be located within 3 kilometres of the perimeter of an aerodrome, the Civil Aviation Authority, the Secretary of State for Defence or the aerodrome operator, as appropriate;

(b) must give not less than 14 days' notice to any authority, person or body required to be consulted that the planning authority is to give consideration to the siting and appearance of the development described in the application; and

(c) must allow the period of 14 days referred to in paragraph (b) to elapse.

7ZD. When determining an application submitted under sub-paragraph (24)(a) of class 67 of schedule 1 the planning authority must take into account any representations they receive before the expiry of the period referred to in article 7ZC(b)..

In schedule 1 (classes of permitted development)-

in sub-paragraph (2)(f) of class 2B (alterations to dwellinghouses) of Part 1( ^[16] ), after "6H(1)"
insert ", 67(1)";

in sub-paragraph (2)(f) of class 4A (alterations to flats) of Part 1ZA( ^[17] ), after "6H(1)"
insert ", 67(1)"; and
for Part 20 (development by telecommunications code system operators)( ^[18] ) substitute-

Development by electronic communications code operators

Class 67

(1) Development by or on behalf of an electronic communications code operator for the purpose of the operator's electronic communications network in, on, over or under land controlled by that operator or in accordance with the electronic communications code, consisting of-

(a) the construction, installation, alteration or replacement of any electronic communications apparatus;

(b) the use of land in an emergency for a period not exceeding 18 months to station and operate moveable electronic communications apparatus required for the replacement of unserviceable electronic communications apparatus, including the provision of moveable structures on land for the purposes of that use; or

(c) development involving the construction, installation, alteration or replacement of structures, equipment or means of access which are ancillary to and reasonably required for the construction, installation, alteration, replacement or use of equipment housing.

Development not permitted: National Parks etc

(2) Development is not permitted by sub-paragraph (1)(a) or (c) if it would be located in a national scenic area, National Park, conservation area, historic garden or designed landscape, site of special scientific interest, historic battlefield or European Site, or on a Category A listed building or a scheduled monument or within the setting of such a building or monument, unless the development-

(a) would consist of the installation, alteration or replacement of a small antenna and would result in there being no more than-
(i) two small antennas or, if greater, the number of small antennas present immediately before alteration or replacement of a small antenna-
(aa) on a building located in a national scenic area, National Park, conservation area, historic garden or designed landscape, or on a Category A listed building or a scheduled monument or on a building within the setting of such a building or monument; or
(bb) on a dwellinghouse located in a site of special scientific interest, a European Site or a historic battlefield;
(ii) 4 small antennas or, if greater, the number of small antennas present immediately before alteration or replacement of a small antenna on a building (other than a dwellinghouse) located in a site of special scientific interest, a European Site or a historic battlefield;

(b) would consist of the installation, alteration or replacement of a small antenna on a dwellinghouse or within the curtilage of a dwellinghouse and-
(i) the highest part of the antenna would not be higher than the highest part of the roof of any dwellinghouse on which it would be installed;
(ii) it would be in a national scenic area, National Park, conservation area, historic garden or designed landscape, within the curtilage of a Category A listed building which is not a dwellinghouse or within the curtilage of a scheduled monument and would be on a part of the dwellinghouse, or within a part of the curtilage of a dwellinghouse, which does not front a road;
(iii) it would be on a part of a dwellinghouse which is a category A listed building or within the curtilage of such a dwellinghouse and that part of the dwellinghouse or the curtilage would not front a road;

(c) would consist of the installation, alteration or replacement of telegraph poles or the installation of overhead lines on telegraph poles, or would be ancillary to such development;

(d) would consist of the installation, alteration or replacement of apparatus under land; or

(e) would be development permitted by virtue of sub-paragraph (4) or would be ancillary to such development.

Development not permitted: ground based apparatus

(3) Development is not permitted by sub-paragraph (1)(a) if it would consist of the construction or installation of a ground based mast and the height of-

(a) the mast;
(b) any apparatus attached to the mast (other than an antenna); and
(c) any plinth or other structure constructed for the purpose of supporting the mast,

when measured together would exceed 25 metres.

(4)(a) Development is not permitted by sub-paragraph (1)(a) if it would consist of the alteration or replacement of an existing ground based mast-

(i) not exceeding 20 metres in height where the height of the mast as altered or replaced would exceed a height calculated by adding together-
(aa) the height of the original mast;
(bb) 10% of the height of the original mast; and

(cc) 5 metres;
(ii) exceeding 20 metres in height but not exceeding 50 metres in height where the height of the mast as altered or replaced would exceed the height of the original mast by more than 5 metres;
(iii) exceeding 50 metres in height where the height of the mast as altered or replaced would exceed a figure calculated by adding 15% to the height of the original mast;
(iv) where any increase in the width of the mast would exceed one metre or, if greater, one third of the width of the original mast;
(v) where any replacement mast would be situated more than 6 metres from the location of the original mast; and

(b) for the purposes of this sub-paragraph, the height or width of a ground based mast is to be calculated by adding together the height or width (as the case may be) of-
(i) the mast;
(ii) any apparatus attached to the mast (other than an antenna); and
(iii) any plinth or other structure constructed for the purpose of supporting the mast.

(5) Development is not permitted by sub-paragraph (1)(a) if it would consist of the construction or installation of ground based equipment housing and would exceed 3 metres in height or 90 cubic metres in volume.

(6) Development is not permitted by sub-paragraph (1)(a) if it would consist of the alteration or replacement of ground based equipment housing which would result in the equipment housing exceeding-
(a) 3 metres in height or, if greater, the height of the equipment housing before the proposed alteration or replacement; or
(b) 90 cubic metres in volume or, if greater, the volume of the equipment housing before the proposed alteration or replacement.

(7)(a) Development is not permitted by sub-paragraph (1)(a) if it would consist of-

(i) the construction, installation, alteration or replacement of ground based apparatus where the ground or base area of the development would exceed 1.5 square metres unless it would be-
(aa) a public call box;
(bb) apparatus which does not project above the surface of the ground;
(cc) equipment housing; or
(dd) an antenna;

(ii) the construction or installation of ground based apparatus and the apparatus would exceed a height of 15 metres above ground level;

(iii) the alteration or replacement of ground based apparatus and would result in the apparatus exceeding the height of the apparatus before the proposed alteration or replacement or, if greater, a height of 15 metres above ground level; and

(b) in this sub-paragraph "ground based apparatus" does not include ground based masts and in heads (ii) and (iii) does not include equipment housing.

Development not permitted: building based apparatus

(8) Development is not permitted by sub-paragraph (1)(a) if it would consist of the construction or installation on a building or other structure of equipment housing and the equipment housing would exceed 3 metres in height or 30 cubic metres in volume.

(9) Development is not permitted by sub-paragraph (1)(a) if it would consist of the alteration or replacement on a building or other structure of equipment housing and the equipment housing would exceed-
(a) 3 metres in height or, if greater, the height of the equipment housing before the proposed alteration or replacement; or
(b) 30 cubic metres in volume or, if greater, the volume of the equipment housing before the proposed alteration or replacement.

(10) Development is not permitted by sub-paragraph (1)(a) if it would consist of the installation on a building or other structure (other than a ground based mast) of an antenna system the whole of which would be located more than 15 metres above ground level and-
(a) any individual antenna would exceed 6 metres in height or 1.3 metres when measured horizontally;
(b) there would be more than 5 antenna systems (other than small antennas) on the building or structure; or
(c) the antenna system and its supporting apparatus would exceed 6 metres in height.

(11) Development is not permitted by sub-paragraph (1)(a) if it would consist of the alteration or replacement of an antenna system on a building or other structure (other than a ground based mast) and the whole of the antenna system would be located more than 15 metres above ground level and-
(a) any individual antenna would exceed 6 metres in height or 1.3 metres when measured horizontally or, if greater, the height or width of that individual antenna before alteration or replacement;
(b) the antenna system and its supporting apparatus would exceed 6 metres in height or, if greater, the height of the antenna system and its supporting apparatus before alteration or replacement.

(12) Development is not permitted by sub-paragraph (1)(a) if it would consist of the installation on a building or other structure (other than a ground based mast) of an antenna system any part of which would be located fewer than 15 metres above ground level and-
(a) any individual antenna would exceed 3 metres in height or 0.9 metres when measured horizontally;
(b) there would be more than 4 antenna systems (other than small antennas) on the building or structure; or
(c) the antenna system and its supporting apparatus would exceed 6 metres in height.

(13) Development is not permitted by sub-paragraph (1)(a) if it would consist of the alteration or replacement of an antenna system on a building or other structure (other than a ground based mast) and any part of the antenna system would be located fewer than 15 metres above ground level and-
(a) any individual antenna would exceed 3 metres in height or 0.9 metres when measured horizontally or, if greater, the height or width of that individual antenna before alteration or replacement;
(b) the antenna system and its supporting apparatus would exceed 6 metres in height or, if greater, the height of the system and its supporting apparatus before alteration or replacement.

(14) Development is not permitted by sub-paragraph (1)(a) if it would consist of the construction or installation on a building or other structure (other than a ground based mast) of apparatus (other than equipment housing or an antenna system) and-
(a) the height of the apparatus (including the height of any equipment housing on which it would be mounted) would exceed 6 metres; or
(b) the apparatus would exceed two metres measured horizontally.

(15) Development is not permitted by sub-paragraph (1)(a) if it would consist of the alteration or replacement on a building or other structure (other than a ground based mast) of apparatus (other than equipment housing or an antenna system) and-
(a) the height of the apparatus (including the height of any equipment housing on which it would be mounted) would exceed 6 metres or, if greater, the height of the apparatus (including the height of any equipment housing on which it is mounted) before alteration or replacement;
(b) when measured horizontally the apparatus would exceed two metres or, if greater, the horizontal measurement of the apparatus before the proposed alteration or replacement.

Development not permitted: small antennas on dwellinghouses

(16) Development is not permitted by sub-paragraph (1)(a) if it would consist of the construction, installation, alteration or replacement of any apparatus on a dwellinghouse or within the curtilage of a dwellinghouse and the apparatus-
(a) would not be a small antenna; or
(b) would be a small antenna and-
(i) the number of small antennas on that dwellinghouse or within the curtilage of the dwellinghouse would, when added together, exceed 4;
(ii) would be installed on a dwellinghouse and the highest part of it would be higher than the highest part of the roof on which it would be installed;

Development not permitted: small antennas on buildings which are not dwellinghouses

(17) Development is not permitted by sub-paragraph (1)(a) if it would consist of the installation, alteration or replacement of a small antenna on a building other than a dwellinghouse and it would result in the presence of more than 8 small antennas on the building.

Development not permitted: access tracks

(18) Development is not permitted by sub-paragraph (1)(c) if it would consist of the construction of an access track of more than 50 metres in length.

Conditions

(19)(a) Development under sub-paragraph (1)(a) consisting of the construction or installation of one or more antennas or of equipment housing, other than development notified under sub-paragraph (20) or development to be carried out in connection with the construction or installation of a ground based mast, is permitted subject to the condition that the developer must give notice in writing to the planning authority of the intention to carry out the development at least 28 days before development is to commence; and
(b) the notice to be given under head (a) must include-
(i) a detailed description of the development;
(ii) a plan showing the location of the development; and
(iii) in the case of development consisting of the installation of one or more antennas, an ICNIRP declaration.

(20) Development under sub-paragraph (1)(a) or (c) which is carried out in an emergency or development under sub-paragraph (1)(b) is permitted subject to the condition that the developer must, as soon as possible after the emergency arises, give notice in writing to the planning authority which meets the requirements of sub-paragraph (19)(b).

(21) Development under sub-paragraph (1)(a) or (c) is permitted subject to the condition that if the development, or any part of it, is on a building it must, so far as is practicable, be sited so as to minimise its effect on the external appearance of the building.

(22) Development under sub-paragraph (1)(a) or (c) is permitted subject to the condition that it must be removed from the land, building or structure on which it is situated-
(a) if it was carried out in an emergency, 18 months from the use commencing or, if earlier, when the need for that use ceases; or
(b) in any other case, as soon as it is no longer needed for electronic communication purposes,

and such land, building or structure must be restored to its condition before the development took place, or to any other condition as may be agreed in writing with the planning authority.

(23) Development under sub-paragraph (1)(b) is permitted subject to the condition that when the period of 18 months referred to in sub-paragraph (1)(b) expires or, if earlier, when the need for the use ends, it must be removed from the land and the land must be restored to its condition before the development took place, or to any other condition as may be agreed in writing with the planning authority.

(24)(a) Development under sub-paragraph (1)(a) or (c) which would-
(i) consist of the construction or installation of a ground based mast;
(ii) be associated with the construction or installation of that mast and would-
(aa) consist of the construction or installation of apparatus; or
(bb) be development ancillary to the construction, installation or use of equipment housing,

is permitted subject, except in case of emergency, to the condition that before commencing the development the developer must obtain the prior approval of the planning authority in respect of the siting and appearance of the development and comply with the requirements of heads (b) to (e);

(b) an application for approval must-

(i) contain-
(aa) a written description of the proposed development;
(bb) the postal address of the relevant land or, if the relevant land has no postal address, a description of its location; and
(cc) 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; and

(ii) be accompanied by-
(aa) a plan sufficient to identify the relevant land and showing the situation of that land in relation to the locality and in particular in relation to neighbouring land;
(bb) such other plans and drawings as are necessary to describe the development to which it relates;
(cc) where the application relates to an antenna, an ICNIRP declaration; and
(dd) any fee required to be paid;

(c) the development described in the application for approval may not commence unless and until the planning authority notifies the developer that prior approval is granted;

(d) the development must, unless the planning authority otherwise agree in writing, be carried out in accordance with the details approved by the planning authority; and

(e) the development is to be carried out within a period of 3 years beginning on the date on which the planning authority approves the details.

Interpretation

(1) In this Part-
"antenna system" means a set of antennas installed on a building or other structure and operated in accordance with the electronic communications code;
"apparatus" means electronic communications apparatus;
"electronic communications apparatus", "electronic communications service" and "electronic communications code" have the same meaning as in the Communications Act 2003( ^[19] );
"existing mast" means a mast with attached electronic communications apparatus;
"ground based mast" means a mast constructed on the ground either directly or on a plinth or other structure constructed for the purpose of supporting the mast;
" ICNIRP declaration" means a declaration by the developer that the antenna is designed to be in full compliance with the requirements of the radio frequency public exposure guidelines of the International Commission on Non-Ionising Radiation Protection, as expressed in EU Council recommendation of 12th July 1999 (1999/519/EC, OJ L 1999, 30.7.1999) on the limitation of exposure of the general public to electromagnetic fields (0Hz to 300GHz)( ^[20] );
"land controlled by an operator" means land occupied by the operator in respect of which either under the Lands Clauses Acts he would be enabled to sell the land to the promoters of an undertaking or he holds a lease granted for a term of not fewer than 10 years;
"mast" means a structure erected by or on behalf of an electronic communications code operator for the support of one or more antennas including any mast, pole, tower or other similar structure;
"neighbouring land" means an area or plot of land which, or part of which, is conterminous with or within 20 metres of the boundary of the land on which development which is the subject of an application made under sub-paragraph (24)(a) is located;
"public call box" means any kiosk, booth, acoustic hood, shelter or similar structure which is erected or installed for the purpose of housing or supporting a public telephone and at which call box services are provided (or are to be provided) by an electronic communications code operator;
"small antenna" means an antenna which-
(a) operates on a point to multi-point basis or area basis in connection with an electronic communications service;
(b) may be described as a femtocell, picocell, metrocell or microcell antenna;
(c) has, in two-dimensional measurement, a surface area of 5,000 square centimetres or less; and
(d) has a volume of 50,000 cubic centimetres or less,
and any calculation for the purposes of heads (c) and (d) is to include any power supply unit or casing, but does not include any mounting, fixing, bracket or other support structure.

(2) For the purposes of sub-paragraph (1)(c), development which is ancillary to and reasonably required for the construction, installation, alteration, replacement or use of equipment housing includes security equipment, perimeter walls, fences, handrails, steps and ramps, other than on land within a site of special scientific interest..

Authorised to sign by the Scottish Ministers
St Andrew's House,
Edinburgh
2016

Explanatory Note

(This note is not part of the Order)

This Order amends the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 ("the 1992 Order"). The 1992 Order grants planning permission for classes of development described in schedule 1 of that Order.

Article 3 of this Order inserts new articles 7ZA to 7ZD into the 1992 Order. Those articles impose obligations on planning authorities with regard to applications for prior approval made by electronic communications code operators.

Article 4 of this Order inserts a new class 67 into schedule 1 of the 1992 Order, which grants permitted development rights for development by electronic communications code operators, subject to limitations and conditions.