Planning circular 2/2015: non-domestic permitted development rights - consolidated circular - updated 2021

Annex F

Guidance on prior notification and approval requirements in relation to agricultural and forestry private ways

Introduction

1. The Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2014 (SSI 2014 No. 300) came into effect on 15^th December 2014. The Order amends the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 ('the GPDO') ^[6] to require that, prior to the formation, or alteration, of agricultural or forestry private ways^[7] the developer or landowner must apply to the relevant planning authority ('PA') for a decision on whether the prior approval of the PA is needed before development begins. This process is known as 'prior notification'. The application must be accompanied by a description of the proposed development. The PA will then consider whether their prior approval is required. Existing permitted development rights for other forestry and agricultural operations are unaffected by these changes.

2. Separate arrangements apply to development relating to private ways for any other purposes, including sporting and recreational use. It is for the relevant PA to determine which planning procedures apply to any other private ways, however a full planning application would generally be required.

Background

3. Requiring planning applications in circumstances where the planning system can add little, or no, value imposes unnecessary costs and causes delays to development. Equally however, if permitted development rights are set too widely, there is a risk of inappropriate development taking place. Concerns have been expressed in recent years regarding the number and scale of private ways constructed, particularly but not exclusively, where these are located in sensitive upland areas. Landscape, visual and environmental impacts, flooding, drainage and erosion have all been identified as potential concerns

4. The introduction of the prior notification procedure is intended to balance these concerns by providing authorities with a means of regulating, where necessary, important aspects of agricultural and forestry development for which an application for full planning permission is not required by virtue of the the GPDO. Prior notification is therefore an important tool in preventing inappropriate construction of private ways. However, provided all other relevant GPDO requirements, including the necessity for, and use of, the track for agricultural or forestry purposes, are met, the principle of whether the development should be permitted need not be considered since this has already been established.

5. Long-term effective management of the landscape will often be served best by ensuring that farming and forestry are able to function successfully. Therefore, in operating these controls, a PA should always have full regard to the operational needs of the farming and forestry industries and to the normal considerations of reasonableness. However, they will also need to consider issues such as; the visual effect of the development on the landscape, flood risk, the impact on local amenity and environmental impacts to soils and the water environment, including wetlands.

6. Finally, there are opportunities for alignment of planning procedures with other relevant consenting regimes. For forestry private ways, for example, the applicant may decide to align their prior notification application with the forestry approval procedures administered by Forestry Commission Scotland (FCS). Further information on the alignment of forestry and planning procedures is provided in paragraphs 32-35 of this Annex.

The definition of a private way

7. A private way is defined in the GPDO (Article 2(1)) as meaning a road or footpath which is not maintainable at the public expense. 'Road' in this instance is further defined as having the meaning set out in section 151 of the Roads (Scotland) Act 1984. The definition of a road is;

'any way (other than a waterway) over which there is a public right of passage (by whatever means) and includes the road's verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof'.

The Town and Country Planning (Scotland) Act 1997 (as amended) defines footpath as having the meaning set out in section 47 of the Countryside (Scotland) Act 1967. The definition is;

'a way over which the public have the following, but no other, rights of way, that is to say, a right of way on foot with or without a right of way on pedal cycles.'

8. It should also be noted, for clarity, that although private ways are commonly referred to as 'tracks' or 'hilltracks', these terms are not used in either Class 18 or 22 of the GPDO and have no definition in planning terms.

Permitted Development Rights for agricultural and forestry private ways

9. Permitted Development Rights (PDR) for agricultural private ways are set out in Class 18 of the GPDO. These PDR are granted subject to certain criteria and conditions. In summary these are:

• The private way must be on agricultural land,^[8] comprised in an agricultural unit;
• The area of agricultural land must be at least 0.4 hectares;^[9]
• It must be necessary for an agricultural use or purpose which is being carried out on that land;
• Schedule 1 development under the EIA Regulations^[10] is not permitted development. Schedule 2 development does not constitute permitted development unless the planning authority has adopted a screening opinion or the Scottish Ministers issued a screening direction to the effect that EIA is not required;
• No part of the development can be within 25m of the metalled portion of a trunk or classified road;
• Before construction or alteration of a private way, prior notification must be given to the relevant planning authority; and,
• The development must be carried out in accordance either with the details provided in the prior notification, or where prior approval has been issued in accordance with the details and requirements of that prior approval.
• The development must be completed within 3 years of the date on which prior approval is given or, if prior approval is not required, the date on which the information required to be submitted with the prior approval was given to the planning authority.

10. PDR for forestry private ways are set out in Class 22 of the GPDO. PDR is granted subject to certain criteria and conditions. These are very similar to the criteria and conditions that apply to agricultural private ways, although there is no minimum area of land required. Different EIA regulations and procedures apply; where EIA is required under the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017^[11] the development remains permitted development (i.e. a planning application is not required, but the prior notification and approval processes will still be followed). Consent may be required under those Regulations.

11. For completeness, the criteria and conditions that apply in respect of permitted development rights to forestry private ways are:

• The private way must be on land used for forestry purposes;
• It must be necessary for a forestry use or purpose (which includes afforestation) which is being carried out on that land;
• No part of the development can be within 25m of the metalled portion of a trunk or classified road;
• Before construction or alteration, prior notification must be given to the relevant planning authority; and,
• The development must be carried out in accordance either with the details provided in the prior notification, or where prior approval has been issued in accordance with the details and requirements of that prior approval;
• The development must be completed within 3 years of the date on which prior approval is given or, if prior approval is not required, the date on which the information required to be submitted with the prior approval was given to the planning authority.

12. Additional restrictions may also apply depending on the location of the private way:

• If the developer is proposing to construct a private way for vehicular use (i.e. a road rather than a footpath) and any part of the development falls within a National Scenic Area^[12], permitted development rights do not apply (except for forestry tracks which are part of an approved afforestation scheme);
• Where a development; (a) is likely to have a significant effect on a European site (as defined in The Conservation (Natural Habitats &c.) Regulations 1994^[13]), either alone or in combination with other plans or projects, and (b) is not directly connected with or necessary to the management of the site, permitted development rights do not apply unless approval is first obtained under the 1994 Regulations.
• Permitted development rights may be restricted or removed by conditions attached to a planning consent or by an Article 4 Direction.

13. It should be noted that, in the case of forestry development, there are PDR for 'borrow pits' to be formed on land held or occupied in connection with the forestry land for the purposes of obtaining materials to form the private way. Essentially, this means no further approval is required for operations to obtain the materials required for the work. This applies only to the extraction of materials for forming a private way and not to the extraction of materials for any other operations or works.

14. Private ways for other uses do not meet the criteria for permitted development rights under Classes 18 and 22 of the GPDO. It is for the relevant PA to determine which planning procedures apply to any other private ways, however a full planning application would generally be required.

Prior notification and approval for construction or alteration of agricultural or forestry private ways

15. Prior notification and approval is required when a person intends to exercise their permitted development rights to construct or alter a private way for agricultural or forestry uses.

16. Both Classes 18 and 22 of the GPDO set out rights for the 'formation, alteration or maintenance' of private ways, however prior notification and approval procedures are only required for the 'formation or alteration' of a private way. Prior notification is not required for 'maintenance' of agricultural or forestry private ways.

17. The distinction between 'alteration' and 'maintenance' may sometimes be difficult to determine. 'Maintenance' work could include routine repairs to private ways such as filling potholes or clearing drainage channels or replacing culverts in line with recommendations and guidance by SEPA to comply with good practice. Work such as resurfacing to provide a materially different road surface (for example replacing loose gravel with tarmacadam), or to widen or extend a track, would generally be considered an 'alteration'.

18. Developers and/or landowners are strongly advised to check with the relevant PA where they are unsure whether any proposed development is 'maintenance' or 'alteration' of a private way. Planning authorities should consider setting out in guidance what they consider to be covered by the respective terms.

Requirement to comply with conditions and restrictions of Permitted Development Rights.

In order to benefit from PDR a person must comply with all the requirements of the relevant class as set out in the GPDO, otherwise the PDR do not apply. This means that where prior notification and approval is required a developer or landowner:

• must submit a prior notification before starting construction or alteration of a private way;
• must not start construction or alteration before the prior notification is determined, the 28 day period expires or, where appropriate, prior approval is received; and,
• must construct the private way in accordance with the details of the route, design and method of construction supplied in the prior notification or, where appropriate, as detailed in the prior approval.

The development must of course comply with all the other criteria and conditions that apply as set out above. The fact that a private way may benefit from PDR does not remove any requirements to comply with other legislation. For example; any engineering works in the vicinity of the water environment will need to comply with the Water Environment (Controlled Activities) Scotland Regulations 2011. Similarly, any waste material will need to be managed in accordance with the Waste Management Licensing (Scotland) Regulations 2011.

Prior notification Application Process

19. Before starting development, the developer or their agent is required to provide the PA with a written description of the development, including details of the design and manner of construction, a plan showing the route of the private way and details of the materials to be used. The PA will then consider whether the development meets the criteria for PDR. If the criteria are not met, the PA should inform the developer that the prior notification application cannot be considered and that a full planning application is required.

20. Where the PA agrees that the development benefits from PDR it should next consider whether prior approval is required. The PA must give notice to the applicant within 28 days following the date on which the application was received by the PA that either:

• Prior approval is not required and the development can proceed in accordance with the details submitted; or,
• That prior approval is required.

21. Where the PA consider that the development benefits from PDR and are also content with the details of the development, they should inform the applicant that prior approval is not required. The applicant can then proceed with the development in accordance with the details submitted in the prior notification.

22. Alternatively, if the PA considers that there are insufficient details or that alterations to the details submitted may be required, they should inform the applicant that an application for prior approval is needed. Planning authorities should also provide reasons for their opinion, and should set out any additional information they require the applicant to submit.

Prior approval

23. Prior approval allows the PA to consider the proposed design and manner of construction of the private way, the details of the materials to be used and the route, and to request any amendments they consider necessary to these details in the context of its setting. Where amendments are considered necessary it is expected that the planning authority will require that the private way is constructed or altered in accordance with the amended details that they approve. For forestry private ways, as a matter of good practice the PA should consider consulting FCS and take any comments or views expressed by FCS into account.

24. Provided all other relevant GPDO requirements, including the necessity for, and use of, the track for agricultural or forestry purposes, are met, the principle of whether the development should be permitted need not be considered since this has already been established Subject to the normal criteria governing the use of conditions in planning permission, conditions may be imposed when prior approval is given. Prior approval may also be refused where there are clear reasons for doing so. There is a right of appeal against refusal of prior approval and against any conditions attached to a prior approval.

Time limit for consideration of a prior approval

As is the case with planning applications, there is no set time limit for a PA to issue a prior approval decision. If prior approval is not issued within 2 months then the applicant has the option, if they wish, to appeal to Scottish Ministers on the grounds of non-determination.

25.

Development to be carried out within 3 years

26. The proposed development has to be carried out within 3 years of the date on which approval is given. Where the planning authority does not give notification as to whether prior approval is required or not within the 28 day period following submission of the application then the development must be carried out within 3 years from the date the prior notification application was received.

Efficient Handling of Notifications and Details Submitted for Approval

27. As with all planning applications, the Scottish Ministers attach great importance to the prompt and efficient handling of notifications and any subsequent submissions of details for approval under the provisions of the GPDO. Undue delays could have serious consequences for agricultural and forestry businesses, which are more dependent than most on seasonal and market considerations. The procedures adopted by authorities should therefore be straightforward, simple, and easily understood.

28. Planning authorities should consider setting out in guidance the information they consider they require to make a decision, taking into account local circumstances. Equally, it is in the developers interest to prepare sufficiently detailed information to support the prior notification.

29. Delegation of decisions to officers will help to achieve prompt and efficient handling, and should be extended as far as possible. It is essential that authorities acknowledge receipt of each prior notification, giving the date on which it was validated^[14], so that the developer will know when the 28 day period begins.

30. Where the authority does not require the submission of details for prior approval, it should not wait for the 28 days to expire but should inform the developer as soon as possible, without delay. Where the authority does decide submission of details is required, it should write to the developer as soon as possible stating clearly and precisely which details are needed. Care should be taken not to request more information than is necessary to determine the prior approval.

31. There will often be scope for informal negotiations with the developer. If, as a result of discussions, the developer's original proposal is modified by agreement, he or she is not required to re-notify it formally to the authority in order to comply with the terms of the PDR condition, but the authority should give its written approval to the modification to make it clear that the developer has authority to proceed with the modified proposals.

Alignment with existing procedures

32. There are opportunities for aligning planning procedures with other relevant consenting regimes. This is especially true in relation to forestry private ways where there are existing and long-established statutory consultation procedures for forestry projects, including tracks, as well as the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017 which cover amongst other things, forestry roads, tracks, quarries and borrow-pits.

33. Accordingly, where an applicant so wishes, prior notification for forestry private ways should be considered by the relevant PA alongside FCS decisions on EIA determinations or consent, as well as approval of Forest Plans, Felling Licences or Woodland Creation applications.

34. In most circumstances, it is expected that where the PA are satisfied that sufficient information is supplied through the aligned notification process, further information would not be required and the need for prior approval would be minimised.

35. For those applications where the PA is of the view that prior approval may be required, consultation between the PA, FCS and the applicant at an early stage (ie prior to the formal decision as to whether or not prior approval is necessary) should be considered. Screening and scoping of substantial forestry projects is routine between applicants, FCS and other statutory consultees, including planning authorities, and, as such, provides a good opportunity for initial discussion.

Alignment of planning and forestry procedures

For forestry private ways, the applicant may decide to align their prior notification application with the forestry approval procedures administered by Forestry Commission Scotland (FCS) for Forest Plans, felling licences, EIA Forestry determinations, and woodland creation projects. Further information along with more detailed guidance on how this can be undertaken can be obtained from FCS.

Aligning processes provides opportunity for more efficient handling of applications and reduces the need for duplication of information. Planning authorities may use the forestry approval procedures, on which they are routinely consulted by FCS, to better understand the forestry context and purpose of the activities proposed, as well as the standards required for FCS approval. In this way authorities can seek to minimise the need for further formal scrutiny and prior approval processes.

Aligning processes does not however remove the need to comply with the legal requirements to submit a prior notification and to obtain either prior approval, or the planning authority's agreement that prior approval is not required.

Records of Notifications

36. Although there is no statutory requirement to do so, planning authorities should keep records of prior notifications. In the interests of transparency and public awareness, planning authorities may wish to publish details of prior notifications and approvals on-line in the planning application register and other available lists.

Enforcement

37. The prior notification arrangements are intended to fit in with the existing enforcement provisions in the Town and Country Planning (Scotland) Act 1997. Circular 10/2009 provides guidance on enforcement procedures and practice.

38. Anyone wishing to carry out development under the permitted development provisions is required to notify the planning authority - this is a condition of the planning permission deemed to be granted under these provisions. If a developer fails to notify an authority the usual enforcement action for a breach of planning control would be open to that authority.

39. Where a development has been notified and the authority has requested further details and advised that prior approval is required, the development may not proceed until the details have been submitted and approved. 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.

40. If a private way, or an alteration to an existing private way, is proposed as being for an agricultural or forestry use, but this turns out not to be the case, then enforcement action may likewise be taken.