Surface coal mines: monitoring fees

Introduction

1. This consultation seeks views on the Scottish Government's proposal to enable planning authorities to charge operators for undertaking monitoring of surface coal mining permissions, including planning conditions; legal agreements and restoration financial guarantees. The proposal takes account of previous consultations ^[1] and the work of the Opencast Coal Task Force during 2013-2015. It also fulfils our commitment to consult further with stakeholders on the scope of a new fees regime. The intention is to lay Regulations in the Scottish Parliament in due course.

Summary

2. The main points to note in this paper are that the proposal:

• is only aimed at surface coal mining;

• sets a fee of £500 for each monitoring visit to an active site and £250 for an inactive site;

• allows planning authorities some level of flexibility when gauging the number of site visits required each year;

• limits the amount of chargeable visits to 8 per year for an active site and to once a year for an inactive site;

Policy context

3. The Scottish Government's five strategic objectives - to make Scotland wealthier and fairer; smarter; healthier; safer and stronger; and greener - focus on increasing sustainable economic growth. Activity in the surface coal mining industry across the UK remains modest whilst coal prices remain depressed. Coal continues to be extracted in Scotland principally providing fuel for specialist industrial and domestic markets. Whilst employment related to coal production has declined the restoration of former surface coal mines continues to provide valuable local employment in areas such as Ayrshire, Dumfries & Galloway, South Lanarkshire and Fife. With a focus on site restoration, the consultation supports the national outcome that ' We value and enjoy our built and natural environment and protect it and enhance it for future generations '. Coal extraction must be carefully managed so that impacts on local communities and the environment are minimised.

4. The role of development planning and development management is to guide development to appropriate locations and then to regulate those operations whilst they are being undertaken. Planning application procedures provide an important opportunity to ensure that those most likely to be affected by coal extraction are involved in decisions that affect them

5. If approved, this type of development would normally be subject to planning conditions and associated legal agreements, which seek to minimise impacts on local communities and the environment. Responsibility for ensuring development complies with conditions ultimately rests with the landowner. Operators too should comply with conditions and planning authorities should monitor conditions to ensure they are met and if necessary, appropriate enforcement action is taken. The Planning etc. (Scotland) Act 2006 includes provisions that strengthen the powers of planning authorities to take effective enforcement action where it is in the public interest to remediate a breach of planning control.

6. In order to establish that the developer meets the conditions of their consent, they may be monitored. In the past, routine and comprehensive monitoring has not been fully funded because the planning application fee has not been sufficient to cover both the processing and post-consent costs. As recommended in the final report to the Opencast Coal Task Force (2015) introducing Monitoring fees would provide for the partial recovery of monitoring costs from operators, in order to meet the monitoring expectations placed on a planning authority. It would also include a commitment to provide publicly available site visit reports.

7. Planning permissions issued for surface coal mining operations are often associated with a legal agreement under section 75 of the Town and Country Planning (Scotland) Act 1997 ('the 1997 Act) which provides for matters that cannot be dealt with by condition. The legal agreement is commonly the "vehicle" used to secure a financial restoration guarantee. It is important that both the terms of the agreement and of the guarantee are also monitored during the life of the development.

Background

8. The Scottish Government's 2003 consultation paper Monitoring and Enforcing Mineral Permissions ^[2] recognised that mineral planning permissions are unique in that they are implemented progressively as minerals are extracted. Development often lasts many years and can have a range of environmental, economic and social impacts if not regulated and controlled through a comprehensive suite of planning conditions and legal agreements. These conditions must be carefully monitored. Planning authorities cannot currently charge fees for undertaking this monitoring. This consultation paper signals the Scottish Government's intention to enable planning authorities to recover some of these costs from operators ensuring that they have sufficient resources to undertake monitoring duties effectively.

Conclusions from 2003 consultation

9. The Scottish Government's 2003 proposals were widely welcomed by planning authorities and communities. However, concern was expressed by the wider minerals industry that the proposals were neither proportionate nor flexible enough to deal with the broad range of minerals developments. The main issues arising from responses to the consultation, which are still relevant today, include:

• section 75 agreements have an important, and continuing, contribution to make to securing adequate arrangements for monitoring new proposals;

• best practice suggestions made in the overview of responses to the 2003 consultation paper including the need for community engagement, were broadly welcomed;

• dormant/inactive sites and those at the restoration and aftercare stage should be monitored less frequently;

• views differed over what action should be taken against operators that fail to pay the fee;

• support for the fees regime to be extended to other forms of development, particularly waste facilities/landfill sites;

• costs should recognise the need to balance effective monitoring activity with ensuring that unnecessary burdens are not imposed on operators.

10. The 2003 proposals were overtaken by an increase in planning application fees across the board, to focus on raising performance. Nevertheless the points raised remain relevant.

11. Following the collapse of Scottish Coal and ATH Resources in 2013, the report by the Opencast Coal Task Force into the operation of the planning system revealed issues arising from an unsystematic approach to compliance monitoring as well as practice by operators which had fallen far short of the expectations placed upon them. Recommendations in a report to the Scottish Opencast Coal Task Force sub group concluded that a consultation on monitoring fees should take place. The report stated:

Benefits include:

- cost-recovery for planning authority monitoring input,

- potential lump sum available for specialist services,

- an assurance to communities that the Scottish Government is prepared to act - proportionately,

- across the board - a strengthened regulatory approach to environmental stewardship,

- partial parity in monitoring and inspection control between England and Scotland that the polluter pays.

Disbenefits include:

- Risk (potentially low) of a fees regime turning away future surface coal mine investment,

- The time it would take to implement a regulatory instrument,

- The regulatory burden upon operators,

- More effective arrangements can be secured through existing planning legislation (Section 75 agreements).

Scope of monitoring regime

12. Many forms of development such as waste management facilities, other minerals sites and onshore wind farms can benefit from regular monitoring during their lifetime and it is recognised that this can place pressure upon local authority resources. However, there are particular benefits of phased monitoring for complex developments like surface coal mining operations and this, together with the recent failures in the surface coal mining sector, has led to this consultation.

13. At present the Scottish Government considers that fees for monitoring are merited in order to recover some of the on-going costs of ensuring that conditions imposed to mitigate impacts are properly implemented and monitored. This includes associated legal agreements and financial guarantees including restoration bonds. The Scottish Government has no current plans at this time to widen the scope of the proposed regime beyond surface coal mining operations. However, there is a wider consultation on planning fees as part of independent review of planning.

Way forward

14. In response to the Coal Task Force, the Scottish Government believes that a limited statutory fees regime for surface coal mining operations should be introduced. The proposed fee regime is not intended to replace other measures, such as those set out in extant Section 75 agreements, that are put in place to ensure that activities at surface coal mining sites are properly monitored. For example, the appointment of a compliance assessor, paid for by the developer but accountable to the planning authority, provides a means of ensuring that compliance is tailored to the needs of a particular site.

15. Conditions should also be used to require an operator to monitor specific on-site activities, maintain records and report findings to the planning authority. However it may also be that legal agreements require monitoring, where it is essential that operational or restoration provisions have the potential to result in significant adverse effects if not properly implemented. In the case of a financial guarantee containing review milestones and a flexible value linked to the cost of restoration over time, it is right to expect parties to be open about its accuracy in case it needs to be recalculated, supplemented by additional financial provision or called in. It is evident that monitoring has become a complex operation, requiring appropriate resourcing and experienced professionals. However, it is considered that a dedicated fees regime, and associated site visits by planning officials, will not only provide additional assurances but ensure that robust monitoring takes place.

16. The intention is to keep regulatory burdens to a minimum, enabling planning authorities to undertake their monitoring functions with consistency and certainty while allowing a certain level of flexibility for different monitoring requirements at individual sites. New on-line guidance would be required once the proposal for a monitoring regime has been established. Draft guidance is referred to in Part II of this consultation.

17. Powers in the Planning etc. (Scotland) Act 2006 enable the Scottish Ministers to make regulations which provide for the payment of fees to be made to planning authorities for the performance of their functions. It is therefore intended to use these powers to make the Town and Country Planning (Fees for Monitoring Surface Coal Mining Sites) (Scotland) Regulations 2017.

• Part I of this consultation considers, and seeks comments on the Scottish Government's draft legislative proposals.

• Part II considers what further guidance should be given to planning authorities and operators to support the implementation of the new regime.

• Part III presents a Business and Regulatory Impact Assessment ( BRIA).