Planning - permitted development rights review - phase 2: consultation

4. Port Development

4.1. Although not forming part of the original PDR work programme, the Scottish Government committed, in March 2021, to consider whether port operators' current PDR are fit for purpose, and whether amending them could support the Scottish and UK Government's objectives for Green Freeports. A bidding prospectus for Green Freeports in Scotland was published in March 2022.

4.2. The March 2021 commitment followed the UKG consulting on and subsequently amending^[14] the PDR that apply to port operators in England so that they are more closely aligned with those of airport operators. These changes apply to all ports in England; not just those designated as Freeports.

4.3. Prior to these amendments, the PDR for both seaports and airports in England were effectively the same as those in Scotland. In Scotland, the relevant provisions are contained in Class 35 and Class 44 of Schedule 1 to the GPDO, respectively (reproduced in Box 3 and 4 at the end of this Chapter). See also the general conditions and limitations on PDR that apply on these and other classes of PDR mentioned in paragraph 1.16 in the Introduction to this consultation paper.

4.4. Box 5 at the end of this Chapter sets out the specific changes made to port operator PDR in England. In summary, the amendments provide for:

• Development in connection with the provision of services and facilities to be carried out under PDR – unless it involves:
  • the erection of a building other than an operational building; or
  • the alteration or reconstruction of a building other than an operational building, where its design or external appearance would be materially affected.
• Development to be carried out by the port operator's "agent of development"
• A requirement for the developer to "consult" with the planning authority prior to carrying out development (unless it is of a specified description).

4.5. The UK Government consultation indicated that this alignment would enable a wider range of development and operational activities to take place under PDR. However, it is unclear what these additional types of development are – in other words, what type of development can be carried out at English ports under PDR that could not prior to the amendment.

4.6. We are keen to ensure that, with respect to PDR, there is a level playing field between Scottish and English ports. On that basis, we are minded to take forward similar measures to those that have been introduced by the UK Government in England.

4.7. Any new PDR would apply to all ports within the Class 35 definition and not just to prospective Green Freeports. However, before committing to making equivalent changes we would welcome views on what the practical effect of aligning port and airport would be. We are also interested to hear views on what – if any – wider changes could be made to Class 35 PDR to support Scotland's ports.

Q33. Do you agree that, with respect to the PDR, there should be a level playing field between English and Scottish ports? Please explain your answer.

Q34. With respect to the amendments in England (see Box 5), what do you think the practical effect of making an equivalent change to Class 35 PDR would be – in terms of developments/activities that would be permitted which are not currently? Please explain your answer.

Q35. Do you think there is potential to widen the scope of Class 35 PDR further? Please explain your answer.

4.8. As discussed at paragraph 1.14, once the relevant powers are implemented Masterplan Consent Areas (MCAs) will provide planning authorities with a new tool to proactively promote growth and development in specific locations. Because a MCA would be tailored to the particular circumstances of individual areas, they may be capable of providing much more extensive planning freedoms than is appropriate through a national PDR. As such, MCA could play a valuable role in supporting future development at Scotland's ports, including those which may be designated as Green Freeports.

Q36. Do you agree that MCA could be a useful tool to provide more extensive planning freedoms and flexibilities in Scotland’s ports? Please explain your answer

Box 3: Current PDR for port operators in Scotland (Class 35)

Dock, pier, harbour, water transport, canal or inland navigation undertakings

Class 35.—(1) Development on operational land by statutory undertakers or their lessees in respect of dock, pier, harbour, water transport, or canal or inland navigation undertakings, required—

(a) for the purposes of shipping; or

(b) in connection with the embarking, disembarking, loading, discharging or transport of passengers, livestock or goods at a dock, pier or harbour, or with the movement of traffic by canal or inland navigation or by any railway forming part of the undertaking.

(2) Development is not permitted by this class if it consists of or includes—

(a) the construction or erection of a hotel, or of a bridge or other building not required in connection with the handling of traffic;

(b) the construction or erection otherwise than wholly within the limits of a dock, pier or harbour of—

(i) a building used for educational purposes; or

(ii) a car park, shop, restaurant, garage or petrol filling station.

(3) For the purposes of this class references to the construction or erection of any building or structure include references to the reconstruction or alteration of a building or structure where its design or external appearance would be materially affected and the reference to operational land includes land designated by an order made under section 14 or 16 of the Harbours Act 1964.

Box 4: Current PDR for airport operators in Scotland (Class 44) Class 44.— Development at an airport

(1) The carrying out on operational land by a relevant airport operator or its agent of

development (including the erection or alteration of an operational building) in connection with the provision of services and facilities at a relevant airport.

(2) Development is not permitted by this class if it would consist of or include-

(a) the construction or extension of a runway;

(b) the erection of a building other than an operational building;

(c) the alteration or reconstruction of a building other than an operational building, where its design or external appearance would be materially affected.

(3) Development is permitted by this class subject to the condition that the relevant airport operator shall consult the planning authority before carrying out any development, unless that development falls within the description in sub-paragraph (4).

(4) Development falls within this sub-paragraph if-

(a) it is urgently required for the efficient running of the airport; and

(b) it consists of the carrying out of works, or the erection or construction of a structure or of an ancillary building, or the placing on land of equipment, and the works, structure, building, or equipment do not exceed 4 metres in height or 200 cubic metres in capacity

N.B. "operational building" is defined for the purposes of this provision as meaning a building, other than a hotel, required in connection with the movement or maintenance of aircraft, or with the embarking, disembarking, loading, discharge or transport of passengers, livestock or goods at a relevant airport

Box 5: Amendment to Port PDR in England made by SI 2021/428 (underlined text denotes the amendments)

B. Permitted Development

Development on operational land by statutory undertakers or their lessees oragents of development (including the erection or alteration of an operationalbuilding) in respect of dock, pier, harbour, water transport, or canal or inland navigation undertakings, required—

(a) for the purposes of shipping,or

(b) in connection with the embarking, disembarking, loading, discharging or transport of passengers, livestock or goods at a dock, pier or harbour, or with the movement of traffic by canal or inland navigation or by any railway forming part of the undertaking,or

(c) in connection with the provision of services andfacilities.

Development notpermitted

Development is not permitted by Class B if it consists of or includes—

(a) the construction or erection of a hotel, or of a bridge or other building not required in connection with the handling of traffic; or

(b) the construction or erection otherwise than wholly within the limits of a dock, pier or harbour of—

(i) an educational building, or

(ii) a car park, shop, restaurant, garage, petrol filling station or other building provided under transport legislation, or

(c) where the development falls within paragraph B(c)—

(i) the erection of a building other than an operational building; or

(ii) the alteration or reconstruction of a building other than an operational building, where its design or external appearance would be materially affected.

Condition

B.1A..—(1) Development is permitted by Class B subject to the condition that the relevant statutory undertaker consults the local planning authority before carrying out any development, unless that development falls within the description in paragraph B.3.

Interpretation of Class B

For the purposes of Class B—

(a) references to the construction or erection of any building or structure include references to the reconstruction or alteration of a building or structure where its design or external appearance would be materially affected, and

(b) the reference to operational land includes land designated by an order made under section 14 or 16 of the Harbours Act 1964 (orders for securing harbour efficiency etc., and orders conferring powers for improvement, construction etc., of harbours), and which has come into force, whether or not the order was subject to the provisions of the Statutory Orders (Special Procedure) Act 1945 .

Development falls within this paragraph if—

(a) it is urgently required for the efficient running of the dock, pier, harbour, water transport, canal or inland navigation undertaking, and

(b) it consists of the carrying out of works, or the erection or construction of a structure or of an ancillary building, or the placing on land of equipment, and the works, structure, building, or equipment do not exceed 4 metres in height or 200 cubic metres in capacity.