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

Annex J

Peatland Restoration

Introduction

1. The Town and Country Planning (General Permitted Development and Use Classes) (Scotland) Amendment Order 2020, introduces new Class 20A^[36], specifying permitted development rights (PDR) for peatland restoration projects.

2. The primary benefit of peatland restoration is in relation to climate change and storing carbon, though it has many other benefits including providing an internationally important habitat, improving water quality and reducing flood risk. The 2020 update to the Scottish Government's Climate Change Plan^[37] sets a target to see restoration of at least 250,000 hectares of degraded peatland by 2030. The Scottish Government's support for peatland restoration and what it can mean for the environment, are confirmed in a number of strategic documents, including the Climate Change Plan.

3. This guidance is intended to assist those pursuing peatland restoration projects (restorers) and planning authorities in processing cases through planning requirements. It sets out the basic planning conditions and restrictions as regards peatland restoration PDR, including related prior notification/ prior approval procedures (PN/PA).

4. The guidance also refers to some of the other considerations that may apply in specific cases and which have separate statutory requirements. In some cases, the planning authority will be the relevant body; however, submitting information required by the PN/PA procedure does not cover all the statutory requirements that might apply. A restorer should consider what requirements may apply, and can check with the planning authority and, where relevant, other bodies, such as Scottish Forestry, to consider how best to approach any approval or screening procedures that may apply to a project.

Permitted Development Rights (PDR) – General

5. Permitted development rights is the term given to a grant of planning permission in legislation. This removes the need to apply to the planning authority for planning permission. Such PDR are often subject to conditions and restrictions specified in the legislation. Such conditions may, for example, limit the scale of development authorised by the PDR or, as is the case for Class 20A, require the approval of certain aspects of a development before it can begin.

6. In addition, requirements under other legislation may apply – see paragraphs 37 to 41 and 49 to 65 below.

Peatland Action/ Peatland Code

7. Scottish Government funding for peatland restoration is administered largely through Peatland Action, including direct delivery partners, namely Forestry and Land Scotland, the two Scottish National Park Authorities, and Scottish Water. As part of their work in authorising funding, Peatland Action officers carry out an assessment of projects to ensure compliance with legislative requirements and good practice.

8. Further guidance on Peatland Action support and good practice can be found at: https://www.nature.scot/climate-change/nature-based-solutions/peatland-action-project.

9. Where a project is not relying on public funds, there is also an International Union for Conservation of Nature (IUCN) mechanism – the Peatland Code – for validating schemes seeking private funding. The Peatland Code^[38] is a voluntary certification standard for UK peatland projects wishing to market the climate benefits of peatland restoration.

10. To access these voluntary carbon markets buyers need to be given assurance that the climate benefits being sold are real, quantifiable, additional and permanent. The Peatland Code is the mechanism through which such assurances can be given. The Peatland Code is currently a standard for verifying greenhouse gas emissions, and is not a general code for restoration good practice. It can require projects to demonstrate how they have planned their restoration in line with best available guidance, such as from the IUCN^[39] and Peatland Action, as well as other specific guidance on peatland restoration and archaeology available from statutory agencies for the historic environment.

11. Restorers may be pursuing one, both or neither of these support mechanisms.

PDR – the grant of Planning Permission for Peatland Restoration

12. Class 20A grants planning permission for the carrying out on peatland of works for the restoration of that peatland^[40]. This includes works for the stabilisation, revegetation and re-profiling of bare peat and related drainage works, and the extraction of peat from within a peatland site for the sole purpose of the use of such peat in the restoration of peatland within that peatland site.

13. In this context:

"re-profiling" means changing the surface of the peatland to reduce water runoff and encourage revegetation by spreading turves across the bare surface,

"revegetation" means by planting, applying locally won turves or seeding with peatland plants,

"stabilisation" means re-establishment of vegetation by seeding and the introduction of pre-grown seedlings (known as plug plants) with the use of temporary protective coverings, including a plant mulch or manufactured stabilisation product or fertilisers.

14. Drainage works in this context can include structures to block ditches, flood land or divert watercourses. Such structure would normally be of soil, peat, locally won stone, (or other inert material), vegetation, timber, plastic or wooden dams.

15. The grant of planning permission does not extend to works for the formation or alteration of a private way (often referred to as a hill track). Class 27^[41] PDR grant planning permission for works within the boundary of an existing private way for the maintenance or improvement of that private way.

16. Class 14^[42] PDR for temporary buildings and uses can be used in conjunction with Class 20A PDR during the course of restoration operations.

17. The Class 20A grant of planning permission is subject to conditions requiring the restorer to submit a 'peatland restoration scheme' to the planning authority, in what is often referred to as a prior notification/ prior approval process.

Prior notification/ Prior approval

18. The prior notification/ prior approval (PN/PA) process is a two stage process which allows a planning authority to consider whether a proposal requires closer scrutiny and approval of some aspects (in this case a peatland restoration scheme) of a proposal which is subject to PDR. This process must be gone through before the restoration works can begin.

19. Firstly, the restorer would need to seek a view from the planning authority as to whether the authority's prior approval is required – the prior notification stage. In doing so, the restorer must submit:

(i) a peatland restoration scheme (see paragraphs 32 to 36 below),

(ii) a map showing the location of the peatland site to be restored,

(iii) the relevant fee required to be paid,

20. Once the peatland restoration scheme (PRS) is submitted, the planning authority has 28 days to give a view on the need for prior approval.

21. The intention is that proposals with no obvious risk of any negative impacts, or where such potential impacts are minor, should be allowed to proceed without further consideration. Where the planning authority indicates this is the case or does not respond at all within the 28 day period, the restorer can proceed with the works as set out in the PRS.

22. Where the planning authority respond within the 28 day period to say their prior approval is required, then the restorer cannot proceed unless and until that prior approval is granted. In such cases, the planning authority will proceed to consider whether or not prior approval should be granted.

23. Where prior approval is required, the planning authority can refuse it or grant it, with or without conditions. They can also require additional information in order to make that decision.

24. Where prior approval is granted the restorer can proceed in accordance with the PRS as approved, and subject to any conditions attached by the planning authority.

25. Other than attaching conditions, the planning authority cannot amend the PRS itself.

26. However, a restorer could agree in writing with the planning authority changes to the scheme (e.g. to obtain prior approval without necessarily starting the whole PN/PA process again). Where a restorer later wishes to depart from the PRS as submitted (where no prior approval is required) or as approved, they can do so only with the written agreement of the planning authority.

27. The restorer should use their PRS to describe the works to be carried out and to demonstrate that they have considered any relevant planning impacts that may arise and, if appropriate, how their proposals mitigate such impacts – see paragraphs 32 to 36.

28. The planning authority will then consider the PRS. Where, for example, they consider it clear that the restorer has adequately identified any relevant issues with their project and suitably addressed them in the PRS, then the planning authority may decide that their prior approval is not required. In that case, the restorer can be allowed to proceed in accordance with the PRS as submitted, without the need to wait beyond the 28 days for prior approval.

29. As noted in paragraphs 7 to 11, proposed peatland restoration projects specifically may be subject to separate assessment and scrutiny outwith the planning process. For example, if financial support has been sought through Peatland Action or as part of the registration process under the Peatland Code. In such cases, that wider scrutiny may assist the planning authority in reaching a timely decision as to whether their prior approval is required, and subject to that, whether or not it should be granted – see paragraph 34 on providing information in this regard.

30. As indicated, compliance with these planning requirements does not necessarily mean a project can go ahead; and other legislative or legal considerations may apply in specific cases - see paragraphs 4, 37 to 41 and 49 to 65.

31. Where the planning authority is the relevant body for such other approvals and screening, the restorer should consider getting these before entering the PN/PA process. This could avoid the PN/PA process moving to the prior approval stage due merely to a separate approval or screening being required that might have a bearing on PN/PA.

Peatland restoration schemes

32. As indicated, class 20A specifies that a PRS has to be prepared and submitted to the planning authority as part of the PN/PA process before works can begin. The purpose of the PRS is to set out the works to be undertaken in the restoration project and it is intended to highlight any issues, and mitigation, that may be relevant to the planning authority's consideration as to whether their prior approval is needed and, if so, whether it should be granted. From Class 20A:

33. "peatland restoration scheme" means a scheme setting out the work to be carried out to restore peatland within an area of peatland identified by the scheme and including details in respect of—

(a) any measures to mitigate—

(i) impacts of the proposed development on archaeology,

(ii) the risk of contamination or flooding as a result of the development on the peatland site,

(iii) the impacts of the proposed development on soil, and

(b) the removal, felling, lopping or topping of any trees,

34. In addition to the above, the PRS should include:

• the date, or latest date by when restoration works will be completed on the peatland site; and
• information on any engagement with regard to funding under Peatland Action or registration under the Peatland Code, in order to assist the planning authority's decision making.

35. "peatland site" is the area identified in the peatland restoration scheme as the area of peatland to be restored in accordance with that scheme,

36. It may be that some of the issues mentioned in paragraph 33(a) and (b) above are not relevant to a specific proposal, for example that mitigation is not required or no trees are to be removed, felled, lopped or topped. In those instances, the PRS should indicate the restorer's thinking as to why this is the case. It may be that particular locations or works raise other potential impacts of concern that should be mitigated, and so covered in the PRS. For example, where a project is proposed in or near a World Heritage Site.

Trees

37. There is specific reference in the PRS to the removal, felling, lopping or topping of trees. This is included primarily because such activity is exempt from the felling control regime^[43] where related development is authorised by PDR.

38. The Scottish Government's intention is that the relevant Forestry legislation will be amended to ensure this particular exemption from felling controls does not apply in relation to Class 20A PDR. This will mean where peatland restoration projects involve felling, the felling regime will apply.

39. Until such amendment comes into effect, restorers must indicate in the PRS any proposals for the removal, felling, topping or lopping of trees. They should also include details of any trees to be retained, and any proposal for restocking and how those retained and re-stocked trees will be protected^[44]. Advice and guidance can be obtained from Scottish Forestry in this regard^[45].

40. Where peatland restoration involves tree felling or removal, then as well as PN/PA, restorers will need to consider Forestry environmental impact assessment (EIA) requirements and, once the abovementioned exemption is amended, the need for felling permission^[46]. See paragraphs 49 to 65 below on EIA as regards separate requirements under the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017. EIA for peatland restoration might be required under Planning EIA requirements; but, where it is not, then, Forestry EIA requirements are still a consideration where felling or removal of trees is involved.

41. Where peatland restoration projects involve deforestation, it is the responsibility of the restorer to ensure they have the necessary approvals as regards planning and forestry legislation – see paragraph 4.

Efficient Handling of Notifications and Details Submitted for Approval

42. The Scottish Ministers attach great importance to the prompt and efficient handling of notifications and any subsequent submissions of details for prior approval under the provisions of PDR. The procedures adopted by authorities should be straightforward, simple, and easily understood. 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 received, so that the developer will know when the 28 day period begins.

43. Where the authority does not propose to require prior approval of the scheme, it should not merely wait for the 28 days to expire but should inform the developer as soon as possible, to avoid any uncertainty and possible delay. Where the authority does decide prior approval is required, it should write to the developer as soon as possible stating this and exactly what further details, if any, are needed. If additional information is sought, care should be taken not to request more than is absolutely necessary.

44. There will often be scope for informal negotiations with the developer – see paragraph 26. 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.

Records of Notifications

45. Although there is no statutory requirement to do so, planning authorities should keep records of such notifications.

Challenging decisions or lack of decisions on Prior Approval

46. The restorer has a right to appeal^[47] against a refusal of approval or conditions attached to an approval. They may, however, conclude that submission of a revised PRS to the PN/PA process could result in a favourable response more quickly.

47. Where the planning authority has specified prior approval is required and no decision to grant or refuse it has been issued within 2 months from prior notification being given, the restorer can also appeal on the grounds of non-determination.

Time limit on PDR

48. The restorer has 10 years from when prior approval is given to complete the works specified in the PRS. It is important that restorers include in their PRS the date, or latest date, by when restoration works will be completed – otherwise a planning authority may feel compelled to proceed to the prior approval stage merely to impose a time limit.

Designated areas and Other Consent Regimes

49. Land and buildings may be subject to designation, under a variety of legislation, for natural architectural or historic interest^[48].

50. Whilst Class 20A does not contain any specific restrictions as regards peatland restoration PDR in designated areas, nevertheless, such works are subject to the PN/PA process, and separate statutory requirements could apply to such works in certain designated areas.

51. Some designated areas will be more likely than others to be the location of peatland restoration, such as sites of special scientific interest (SSSI), European sites (special protection areas and special areas of conservation), National Parks and national scenic areas.

52. European sites and SSSI are examples of designations where there are additional statutory requirements that may apply, depending on the specific nature of the works and the qualifying features of the designation.

53. The statutory requirements for these types of designation are specified under the Nature Conservation (Scotland) Act 2004^[49] and in the Conservation (Natural Habitats &c.) Regulations 1994 (the 1994 Regulations) respectively. The 1994 Regulations also contain provisions relating to European Protected Species.

54. Sites designated under the Ancient Monuments and Archaeological Areas Act 1979 also have associated consent requirements, The Controlled Activities Regulations^[50] specify requirements in certain cases where works are in or may affect the water environment generally. See also paragraphs 37 to 41 above as regards requirements for felling permission.

55. These are some, not necessarily all, of the statutory requirements that may arise in relation to a project. Such other statutory requirements apply in addition to requirements under the PDR. Where a planning authority indicates their prior approval is not required, or is required and then granted, that does not remove the need to obtain any consent or approval required under such other legislation.

56. Other sites, such as National Parks, national scenic areas, World Heritage Sites, historic battlefields, sites of archaeological interest and the settings of scheduled monuments and of listed buildings, are more dependent on the controls in planning legislation, i.e. in this case, the requirements in the PDR. This should be borne in mind when preparing 'peatland restoration schemes' and considering the need for, and granting of, prior approval for schemes in such areas.

Environmental Impact Assessment

57. As with most other classes of permitted development, the grant of planning permission by Class 20A is subject to the provisions of article 3(8) to (9) of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992.

58. Whilst the schedules to the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017^[51] (the Planning EIA Regulations) are to be interpreted widely, they do not specifically refer to 'peatland restoration' as a project to which Planning EIA applies. However, peat extraction falls within the scope of the Planning EIA Regulations.

59. Planning EIA is automatically required in relation to peat extraction where the surface area of the extraction site is over 150 hectares – as identified in Schedule 1(19) of the Planning EIA Regulations. Other peat extraction proposals must be screened by the planning authority to determine whether Planning EIA is required – as identified in Schedule 2(2) of the Planning EIA Regulations.

60. Whilst Class 20A PDR permit peat extraction, this is specifically only for the purposes of relocation for restoration purposes within the peatland restoration site. Such operations are likely to be significantly different in scale and considerably smaller in impact than those relating to commercial peat extraction.

61. For the purposes of Planning EIA screening, as a guide, rather than the whole peatland restoration site area itself, it would be important to consider the likely cumulative area, within that site, from which peat is likely to be moved in order to facilitate peatland recovery and restoration elsewhere within the site. This is typically at most between 5% to 20% of the total restoration site area.

62. Although it has to be considered on a case by case basis, it would most likely be the impacts of any relocation of peat within the site that would be considered where Planning EIA screening is required. It should also be borne in mind that the intended restoration itself should result in overall positive effects for the environment within the site and indeed more widely.

63. Where Planning EIA screening is required, PDR do not apply unless and until that screening has been undertaken and it concludes that Planning EIA is not required. Where PDR apply, this is subject to the PN/PA process.

64. Where Planning EIA is required, i.e. for Schedule 1 projects and those Schedule 2 projects where screening concludes Planning EIA is required, an application for planning permission would be needed.

65. Where Planning EIA is not required under the Planning EIA Regulations, and the project includes afforestation or deforestation, then requirements under the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017 may yet apply. In such circumstances, restorers would need to approach Scottish Forestry (though see paragraph 41).