Permitted Development Rights review - phase 2: consultation analysis

4. Port Development

PDR for ports

The Scottish Government is considering whether port operators' PDR are fit for purpose and whether amending them could support the Scottish and UK Governments' objectives for Green Freeports. The consultation paper explains that, following a UK Government decision to amend the Class B PDR that apply to port operators in England, the Scottish Government is minded to take forward similar measures in Scotland to ensure a level playing field between English and Scottish ports. In Scotland, port operator PDR are contained in Class 35 of Schedule 1 to the GPDO. Any new PDR would apply to all ports within Class 35 definition and not just to prospective Green Freeports.

Question 33 – Do you agree that, with respect to the PDR, there should be a level playing field between English and Scottish ports?

Responses to Question 33 by respondent type are set out in Table 28 below.

Table 28

Respondent type	Yes	No	Total
Organisations	21	2	23
% of organisations	91%	9%	100%
Planning authority	12	0	12
Professional or representative body	2	0	2
Public body or corporation	1	0	1
Private sector	6	0	6
Energy and transport	4	0	4
Hospitality	1	0	1
Other	1	0	1
Third sector	0	2	2
Active travel	0	0	0
Community Council	0	0	0
Other	0	2	2
Individuals	8	1	9
% of individuals	89%	11%	100%
All respondents	29	3	32
% of all respondents	91%	9%	100%

A substantial majority of those who answered the question – 91% – agreed that, with respect to PDR, there should be a level playing field between English and Scottish ports. Among organisations, only 'third sector – other' respondents disagreed.^[10]

Around 30 respondents provided an additional comment at Question 33, including several who did not answer the closed question. Most responses were relatively short although a small number of respondents provided more extensive content.

Reasons there should be a level playing field

Respondents agreed that, in principle, there should be a level playing field between English and Scottish ports, although in some cases adding caveats in relation to the detail of any potential changes to PDR. Reasons given in support of a level playing field were most frequently the economic importance of parity between ports in England and Scotland and the risk that Scottish ports could be placed at a competitive disadvantage in the absence of equivalent PDR. A level playing field was considered important both in the light of the likely mobility of investment funding, and a possibility that development could be attracted to less sustainable areas if some ports provide less of an obstacle for development than others. While some respondents noted general benefits to economic development arising from PDR parity with English ports, others highlighted the ability to compete for development associated with offshore renewables in particular.

It was also suggested that:

• Reducing the number of regionally specific criteria could benefit contractors that work in both countries.
• A level playing field should be extended to include private ports.

Rather than simply aspiring to a level playing field, a small number of respondents suggested that the Scottish Government could go further to identify positive differences that could act in Scotland's favour.

It was also suggested that PDR would be more effective if they cut across both marine developments (such as new quays) consented by Marine Scotland and land-based works consented by the local planning authority.

Some respondents referenced specific amendments they would welcome beyond the changes to Class B PDR implemented in England. These are included in the analysis at Question 35.

Reasons for caution

Lack of detail

Some respondents agreed with the consultation paper that it is not clear what type of development can now be carried out at English ports that would not have been permitted prior to the amendment or the nature of the changes that might result. There was also a view that any wholesale expansion in port-related PDR should be considered carefully as changes could have significant impacts, for example on amenity of neighbouring residents. Potential noise issues associated with port activities were highlighted.

Any PDR changes should be appropriate for Scotland

Both respondents who agreed there should be a level playing field and some who did not argued that, rather than necessarily mirroring changes to English planning policy, amendments to PDR in Scotland should be based on an understanding of benefits and impacts in Scotland. It was suggested that even if the effect is intended to be equivalent, the Scottish Government should consider whether the drafting of the PDR with respect to ports could be improved.

Retaining existing benefits

'Private sector – energy and transport' respondents were among those who highlighted a number of aspects of the existing PDR system that they would not wish to see changed, including that:

• Amended PDR should not result in a reduction in current permissions.
• Additional administrative requirements should not undermine PDR.

Potential administrative requirements – particularly a requirement for consultation with the planning authority – are discussed further at Question 34.

Question 34 – 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?

Around 25 respondents answered Question 34.

General comments included that the changes to PDR made in England are vague or that it is not clear what the practical effects of an equivalent change to Class 35 PDR would be. It was also argued that a further consultation on this proposed PDR should be carried out once more detail on the practical nature of changes has been gathered and an environmental assessment has been carried out.

However, there were also views that the effects would be to:

• Ensure a level playing field between English and Scottish ports.
• Significantly enhance existing PDR for ports and allow greater flexibility to undertake development.
• Support the various sectors that use ports by making development easier.
• Better support port-centric operations, assembly and processing activities.

There was a call for revisions to PDR to provide certainty on what activities are defined as port operations and it was argued that narrow interpretation or limited understanding of the regulations on the part of planning authorities could limit the scope of permitted development.

Some respondents commented in general terms on the possibility that potential changes to PDR might lead to excessive development, with a 'third sector – other' respondent taking the view that any moves away from port-related uses (for example to residential or retail purposes) should require a planning application. A 'private sector - energy and transport' respondent argued that the proposed changes should not and would not equate to giving carte blanche to development completely unrelated to port-related activities, and that a clear operational and/or strong commercial relationship to the port and associated marine environment activities should be required.

Specific amendments in England

Addition of '…or agents of development (including the erection or alteration of an operational building)'

This was described as a reasonable amendment with the additional wording seen as giving greater flexibility and as making PDR more widely available to the agents of development and not just those defined as statutory undertakers by the relevant legislation. There was also a view that rights should not be conferred on lessees.

It was suggested that it will be necessary to:

• Define 'agents of development' and to set out how they would demonstrate a relationship with the statutory undertaker. Rather than 'agents of development' one respondent suggested using the phrase 'such others as may be permitted by the statutory undertaker'.
• Define 'operational building'.

On the latter point it was suggested that the only definition of an operational building in the Scottish GPDO is solely in the context of airport PDR, leaving interpretation of what constitutes a port-related operational building with the planning authority. Clarification was proposed that an operational building would constitute any building on operational land that has been used, or is proposed to be used, for development within the descriptions under Class 35 of the Scottish GPDO. It was also suggested that, as a minimum, guidance should be issued by the Scottish Government to confirm that the term must be interpreted broadly to encompass the proposed changes to port and harbour buildings envisaged as part of its Green Freeport proposals.

Addition of '…in connection with the provision of services and facilities'

Some respondents welcomed the revised drafting with comments including that the amended wording has potential to remove administrative burden and delay due to current ambiguity over what falls within the parameters of Class B (a) or (b). It was anticipated that this will allow:

• Greater scope to deal with matters such as providing staff welfare facilities.
• Development of buildings, structures and plant involved in offshore maintenance and decommissioning activities, and activities related to other parts of the energy industry without the need to apply for planning permission.
• PDR for services and facilities, provided they relate to an operational capacity.

However, it was noted that no definition of 'services and facilities' is provided, and concerns were raised that:

• There would need to be case law to define these terms, the legislation may not be implemented as intended, and there may be varying interpretations.
• There is scope for this clause to be used too widely and not in direct relation to harbour related activities, with a risk of unintended consequences and a wide variety of industrial operational buildings being constructed.
• Some port facilities include scheduled monuments and sites of archaeological significance, and there is a risk that development could proceed without recording and, if appropriate, preservation of important archaeological remains.

Condition relating to the relevant statutory undertaker consulting the local planning authority before carrying out development

Some respondents referenced the requirement for consultation with planning authorities introduced as part of recent PDR changes in England, arguing that this should not be replicated in Scotland, as it would water down the current PDR by adding an additional administrative hurdle, or that any consultation must be proportionate. It was noted that, at present, Class 35 PDR does not require statutory undertakers or their lessees to consult the planning authority prior to carrying out development. Arguments in favour of retaining this position included:

• The range of other consenting processes to which port development and operations are already subject.
• The limited extent of PDR covering 'port related development' and the appropriate nature of such development within operational ports and harbours.
• A risk that an additional administrative burden could delay or discourage port-related development, potentially restricting the ability of port and harbour infrastructure to adapt swiftly to national and global emergencies.

Some 'planning authority' respondents also commented on the requirement for consultation, with views including both that the principle of consultation with the planning authority is welcome but also that the requirements in practice are unclear and that neither the form of such a consultation, nor any rights for the planning authority to block development are specified.

A further suggestion was that a requirement for consultation should be extended to include provision for engagement with local communities as appropriate, to ensure community interests are represented.

Exclusions

As a general point it was noted that the proposed exclusions are more extensive than under existing legislation.

Two respondents disagreed with inclusion at B (c) (ii) of '…where its design or external appearance would be materially affected' noting that, since 'materially affected' is undefined, it would fall to the planning authority to determine how this should be interpreted, with potential for uncertainty and delay. It was argued this text should not be added to Class 35 since article 3(8) of the Scottish GPDO already specifies that, where development is likely to have a significant effect on the environment, then the development is not permitted under Class 35.

Question 35 – Do you think there is potential to widen the scope of Class 35 PDR further?

Responses to Question 35 by respondent type are set out in Table 29 below.

Table 29

Respondent type	Yes	No	Total
Organisations	9	6	15
% of organisations	60%	40%	100%
Planning authority	3	5	8
Professional or representative body	1	1	2
Public body or corporation	1	0	1
Private sector	3	0	3
Energy and transport	2	0	2
Hospitality	0	0	0
Other	1	0	1
Third sector	1	0	1
Active travel	0	0	0
Community Council	0	0	0
Other	1	0	1
Individuals	3	2	5
% of individuals	60%	40%	100%
All respondents	12	8	20
% of all respondents	60%	40%	100%

A majority of those who answered the question – 60% – thought that there is potential to widen the scope of Class 35 PDR further. However, their additional comments suggested that some respondents may have interpreted the question as referring to an extension of the existing Class 35 PDR to give parity with English ports and others to an extension of Class 35 beyond that required to give parity with PDR for English ports.

Around 25 respondents provided an additional comment at Question 35.

Reasons Class 35 PDR are wide enough

Some respondents considered that the scope of Class 35 PDR is already wide, and potentially too wide, with one suggestion that existing provisions may be used inappropriately. Others felt that providing parity with rights now available in England would be adequate.

As an alternative to a broad extension of PDR it was suggested that it would be more appropriate to recognise the strategic importance of port infrastructure through the National Planning Framework, Regional Strategies and Development Plans. In this context it was thought that MCAs may be more a more suitable option. MCAs are considered further at Question 36.

Reasons there is potential to widen scope further

Some respondents who thought PDR could be widened further made general points including:

• Encouraging the Scottish Government to engage with port operators and also to ensure that any additional proposals take account of local community interests.
• Highlighting the importance of avoiding potential harm to the historic environment through any process or system.

Suggestions for other revisions

Specific suggestions for extending the scope of PDR were largely made by 'private sector - energy and transport' and 'private sector - other' respondents. Actions suggested are summarised below.

Consider higher thresholds: It was suggested that leaving the EU creates an opportunity to reconsider the thresholds for Environmental Impact Assessment (EIA) Screening in Schedule 1 (relating size of vessels) and Schedule 2 (including the area of the works of harbour projects). Particularly with respect to offshore green energy, it was argued that an expansion of size thresholds would widen the opportunities for Scottish ports and surrounding communities. With respect to Schedule 2, an increase from the current threshold of one hectare to four hectares or 20,000 square metres was proposed.

Authorise assembly and processing of goods: Amendments were suggested to expressly support economic activity associated with sustainability related infrastructure, including the assembly of products. A new class that explicitly authorises development for the 'assembly and processing of goods' was proposed in support of renewable energy infrastructure and activities such as wind turbine assembly and manufacturing. Greater certainty that such development is authorised under Class 35 of the Scottish GPDO was suggested to be essential.

It was also suggested that:

• There should be specific provision for processing of goods which transit through ports. In addition to general processing and assembly, benefits to green offshore energy and processing of seafood were highlighted.
• Class 35(1) (b) should be modified to read '…transport of passengers, livestock or goods (including the assembly, alteration and processing of goods) at a dock, pier or harbour…'

Specify operation and maintenance facilities for the offshore renewable sector: It was reported that securing planning permission through a traditional application process can cause delays and it was argued provision of these facilities should be made available through PDR.

Authorise development for Green Freeports: General liberalisation of planning control for Green Freeports was suggested, with inclusion of a new category that explicitly authorises development 'required for the purposes of the development, operation and maintenance of a Green Freeport'.

Include marinas: It was suggested to be unclear if marinas would be classified as docks and that marinas could be added if there was a desire to widen the scope of the PDR.

Reconsider environmental and historical conservation designations: It was observed that Scotland has a large number of environmental and historical conservation designations where PDR does not apply, putting Scottish ports at a disadvantage. Since PDR does not apply when an EIA is needed, or if there are Likely Significant Effects (LSE) under The Conservation (Natural Habitats, &c.) Regulations 1994, it was argued developments which can be completed under PDR will be limited.

It was also argued that PDR should support demolition and redevelopment for port-related use of older stone buildings (including listed buildings) that remain in some port areas.

Review use of Article 4 direction: If concerned that a development should not proceed or should obtain planning permission, a planning authority can seek to restrict permitted development through the use of an Article 4 direction. It was reported that this is often used in relation to environmental conservation and that some planning authorities use this as a blanket requirement covering all port developments, leading to delays. A simpler system to allow PDR to be used where appropriate was requested.

Clarify responsibilities: An improved process to agree responsibilities in the intertidal area was requested as it was reported development in this area can be delayed by disagreements about which body leads on planning approvals.

It was also suggested Class 35 could recognise that Harbour Authorities are Relevant Authorities under the Habitat Regulations. It was argued projects being considered under The Conservation (Natural Habitats, &c.) Regulations 1994 do not need to be considered by planning authorities, in that LSE are appropriately considered and Appropriate Assessments completed by the Harbour Authority in line with the regulations.

Clarify operational land: It was noted that Section 215 of the 1997 Act defines operational land in relation to statutory undertakers as land used for the purposes of the undertaking and land in which an interest is held for that purpose. It was suggested it would be useful to include this definition of operational land because land held by a port but not in operational use would not have PDR.

Masterplan Consent Areas

The consultation paper notes that, once the relevant powers are implemented, MCAs will provide planning authorities with a new tool to proactively promote growth and development in specific locations. Because MCAs 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. MCAs could therefore play a valuable role in supporting future development at Scotland's ports.

Question 36 – Do you agree that MCA could be a useful tool to provide more extensive planning freedoms and flexibilities in Scotland's ports?

Responses to Question 36 by respondent type are set out in Table 30 below.

Table 30

Respondent type	Yes	No	Total
Organisations	18	2	20
% of organisations	90%	10%	100%
Planning authority	10	0	10
Professional or representative body	3	0	3
Public body or corporation	1	0	1
Private sector	3	1	4
Energy and transport	1	1	2
Hospitality	0	0	0
Other	2	0	2
Third sector	1	1	2
Active travel	0	0	0
Community Council	0	0	0
Other	1	1	2
Individuals	6	1	7
% of individuals	86%	14%	100%
All respondents	24	3	27
% of all respondents	89%	11%	100%

A substantial majority – 89% of those who answered the question – thought that MCAs could be a useful tool to provide more extensive planning freedoms and flexibilities in Scotland's ports.

Around 25 respondents provided an additional comment at Question 36, including several who had not answered the closed question.

Reasons MCAs could be a useful tool

Some respondents agreed MCAs could provide greater flexibility and an opportunity for a place-specific approach, targeting development opportunities in specific areas while also setting limitations and ensuring the right development happens in the right place.

Other potential benefits identified included that MCAs could:

• Afford opportunities for co-operation and constructive working between the various parties before implementation.
• Provide a basis for connecting terrestrial planning with Marine Master Planning Partnerships.
• Simplify the approvals process, create certainty and reduce costs relating to individual developments by front-loading the process in terms of technical surveys and assessments.
• Help ensure new uses do not increase flood risk and, where site constraints are identified, ensure the relevant key agency is consulted.
• Support developments associated with the offshore renewables sector which are likely to be location specific.
• Support regeneration and development associated with Green Freeports.

In some cases, respondents suggested that use of MCAs could be preferable to a broad expansion of PDR, allowing greater input from the planning authority while also providing the operator with the certainty of having a consent at the end of the process. For example, it was suggested that an MCA could present a more nuanced approach for the port of Grangemouth, where both the interests of the local community and the protection of an adjacent special protection area also need to be considered.

Since extending Class 35 PDR would apply not only to ports but also to canals, piers etc. it was also suggested that MCAs could allow for more extensive PDR within larger port areas.

Caveats and limitations

While there was broad support for use of MCAs, several caveats were added including that subordinate legislation introducing MCAs has yet to be put in place and they are not yet proven in practice. It was also argued that MCAs may not make the development process any more efficient than under current consenting processes.

Both the extensive work needed to establish a MCA and the significant resource allocation this will require on the part of local authorities were highlighted, with a view that this may not be feasible given current pressures. It was suggested that the Scottish Government should provide certainty around funding for MCAs. It was also argued that MCAs may not be developed quickly enough or widely enough to support the expansion of the renewables industry needed to meet climate change targets.

Related to these points there was a concern that the MCA process might be seen as an alternative to or might 'water down' potential relaxation of PDR for ports. Although seen as having potential as an additional tool for planning authorities in some circumstances – for example where large-scale redevelopment is proposed –some respondents were clear that MCAs cannot provide the flexibility for incremental development afforded by relaxation of PDR.

Other issues raised included that:

• Their effectiveness will depend on how frequently MCAs are updated to reflect the changing demands of ports and harbours.
• Care should be taken to avoid creating inequality between ports that have an MCA and those that do not, and to avoid disincentivising existing operations at other ports.
• Some projects are also subject to marine licencing which will become a constraining factor.
• MCAs should reflect local context and historic character, and should be informed by the views of local experts (including on the historic environment), communities and stakeholders.

Reasons MCAs are not a useful tool

A small number of respondents did not think MCAs will provide a useful tool. A 'third sector – other' respondent echoed a view also expressed at Question 22 that the proposed use misunderstands the intention for which MCAs were designed, namely to give greater confidence to developers by front-loading planning permissions, but not to remove planning protections.

A 'private sector - energy and transport' respondent argued that MCAs could present an obstacle to port development and do not currently offer any operational benefits. They were concerned that, once in place, planning authorities will be unwilling to modify MCAs which could thus act as a constraint on change in ports and harbours.