Permitted development rights - extension and review: strategic environmental assessment - draft post adoption statement

Appendix A.2: Phase 1 finalised Regulations

Introduction

The text below sets out those ways in which the finalised regulations^[8] take into account the comments received in response to the Phase 1 consultation proposals and the Update to the 2019 Sustainability Appraisal, which are available via the following links:

• Permitted development rights - phase 1 priority development types: consultation - gov.scot (www.gov.scot)
• Permitted development rights - extension and review: sustainability appraisal update - gov.scot (www.gov.scot)

The Phase 1 Consultation took place between 1 October and 12 November 2020 and it sought views on proposals for changes and extensions to PDR for four development types: digital telecommunications infrastructure, agricultural developments, peatland restoration, and developments relating to active travel. The final number of submissions received was 119, of which 61 were from groups or organisations and 58 from individual members of the public.

The analysis of responses to the Phase 1 Consultation is available online at:

• Permitted Development Rights (PDR) - review and extension: consultation analysis - gov.scot (www.gov.scot)

Responses varied in their focus across the consultation. Most responses received addressed only a single development type (71 of 119 respondents answered questions under one development type, most commonly those related to ‘Active Travel’). Relatively few respondents answered questions across all four development types (19 of 119 respondents). Seven respondents provided comment on the Update to the 2019 Sustainability Appraisal. Overall, public bodies welcomed the Update to the 2019 Sustainability Appraisal, however several public bodies and planning professional respondents felt that the Update did not identify potential cumulative, secondary or synergistic assessment or otherwise considered that further detail could have been provided. Further detail on the comments received and how these have been taken into account are included below.

Digital Telecommunications Infrastructure

In response to concerns about the potential impact on cultural heritage of extending PDR for antenna systems on buildings in designated areas the finalised regulations make this subject to a determination on prior approval of the visual impact. Other controls on PDR in areas designated for their natural heritage and the future publication of updated good practice guidance on siting, design and installation were considered sufficient to address any concerns in other designated areas. It was decided to proceed with introducing PDR for equipment housing cabinets on the ground and on buildings up to a 2.5 cubic metre size limit in designated areas without a requirement for prior approval. This was because the current industry approach to siting and design, supported by new good practice guidance, was considered to be sufficient to address any negative impacts on cultural heritage. In response to concerns about the potential impact on cultural heritage of extending PDR for other apparatus on buildings, the finalised regulations make this subject to a determination on prior approval in areas designated for their cultural heritage. Similarly, a decision was taken not to introduce PDR for underground equipment in World Heritage Sites and Historic Battlefields, and to make PDR subject to a determination on prior approval in other areas designated for their cultural heritage.

Agricultural (and Forestry) Developments

In response to concerns about the potential visual and landscape impacts of buildings up to 1,000sqm being permitted under class 18, the finalised regulations provide that the previous maximum ground area (465sqm) will continue to apply in certain designated areas. The regulations provide that new classes 18B, 18C, 22A and 22B only apply to buildings that were in agricultural/forestry use before 5 November 2019. The consultation proposal to also apply these PDR to buildings erected after that date (where they have been in continuous use for 10 years) was not taken forward. This reflects concerns that the introduction of the new PDR for the conversion of agricultural (and forestry) buildings – in conjunction with existing class 18 PDR – could incentivise landowners to erect new agricultural buildings with the sole intention of converting them to homes or commercial premises at a later date. In the light of health and safety considerations, the regulations dis-apply the grant of planning permission by new classes 18B, 18C, 22A and 22B where buildings are situated in military explosives storage areas or safety hazard areas. In response to concerns about the potential impact on the long-term viability of crofting, the regulations do not grant planning permission for conversion of agricultural buildings to residential use on croft land. With regard to new PDR for the conversion of buildings to commercial use (class 18C and class 22B), the consultation proposed that prior notification/approval would only be required above a 150 sqm threshold. This was not taken forward on the basis that conversions below that limit can have impacts that ought to be considered through prior notification/approval, and to provide consistency with the PDR for residential conversions

Peatland Restoration

In response to concerns about the potential impact of projects that were not in receipt of Scottish Government funding (and hence had not been subject to scrutiny) through the Peatland Action programme, the regulations provide that PDR for peatland restoration schemes is subject to prior notification/approval of the peatland restoration scheme. Furthermore, in response to concerns that the grant of PDR for peatland restoration schemes would impact on the delivery of sustainable forest management (because any felling or woodland removal required as part of a scheme would no longer require a felling permission) it is proposed that changes will be made in 2021 to the Forestry (Exemptions) (Scotland) 2019 regulations. The effect of this is intended to ensure that any felling considered necessary to deliver a peatland restoration scheme under PDR will still require a felling permission (and consequent revisions to a Forest Plan) to ensure that the potential impacts of woodland removal and timber extraction are fully considered. In the meantime the removal and felling of trees must be included in peatland restoration schemes submitted to the prior notification/ prior approval process. In addition, to provide clarity on the sorts of operations that are permitted as part of peatland restoration schemes, several definitions and exclusions have been included in the Order.

Active Travel

Changes made to the Active Travel proposals following the consultation were a minor increase in the size of the bike stores permitted in the curtilage of a house or flat and the introduction of some additional restrictions on the siting of stores to address potential concerns about road safety and residential amenity. It was decided not to restrict the materials or colours of bike stores, including in conservation areas, because the potential impacts on amenity were considered to be minor. It was also decided, following comments received, to increase the permissible size of communal bike hangars on the public road and not to restrict their numbers in a street block. Instead control over siting and numbers of stores will be left to the Roads Authority, which will require separate authorisation for any communal storage structures placed on the roadway. Consideration by the Roads Authority was also considered sufficient to address any concerns about pedestrian access.

Aquaculture

In addition to the above development types, the finalised regulations also include new provision on aquaculture PDR. Using the criteria set out in Schedule 2 of the Environmental Assessment (Scotland) Act 2005, it was determined that the proposed aquaculture changes were considered unlikely to have significant environmental effects. The SEA consultation authorities agreed with this view hence it was concluded that a Strategic Environmental Assessment was not required for this aspect of the regulations.

The Update to the 2019 SA appraisal

The comments received have been taken into account in finalising the regulations. Where comments and suggestions regarding the content of the assessment have been made (including those relating to cumulative effects), we are satisfied that the overall findings of the assessment remain valid except where indicated otherwise. Phase 1 was part of an iterative and ongoing policy process which has been, and will continue to be, informed by the Sustainability Appraisal (SA).