Surface coal mine restoration: final report to opencast coal task force

PART 1

BACKGROUND

1. The Scottish Opencast Coal Taskforce was set up in 2013 in response to two coal company liquidations which had repercussions for employment, continued coaling and restoration at a number of sites across the Scottish coalfields. The Taskforce is represented by the affected councils, the Coal Authority, the relevant Unions, Coal Operators, Scottish Government including Partnership Action for Continuing Employment ( PACE ^[1] ), DECC, the Scotland Office, Parliamentarians representing the coalfield communities from across the political parties and SEPA.

2. The Taskforce and the Scottish Government are working together to ensure the optimum outcome for all concerned both for sustained employment, energy supply, host communities, the environment and for site restoration. This report focuses on restoration.

3. Since the Scottish Government's 2013 consultation 'Opencast Coal Restoration: Effective Regulation', two Taskforce sub-groups have been considering its findings. They have looked at how more effective regulatory processes could be put in place working alongside existing local authority structures but also taking evidence on how new forms of regulation and wider visibility over procedures and outputs might secure improvements. Crucially they have been considering perhaps the paramount concern which is to ensure that we prioritise a better understanding of financial guarantee options for site restoration and aftercare and take steps to underpin support in that complex field by addressing skills gaps. This report is the conclusion of those discussions and provides a platform for further initiatives and consultation on its recommendations by lead partners.

SUB-GROUPS' PURPOSE AND REMIT

4. The Taskforce set up two sub-groups during 2014 to consider in detail the specific compliance monitoring and financial factors relevant to surface coal mines restoration. A summary of the sub-group remits is given in Annexes A and B respectively. Operators and planning authorities need to be better equipped to ensure that future surface coal mines are operated effectively with better regulatory systems in place. Systems should ensure that planning authorities are safeguarded against incurring costs or bearing risks arising from departures from the terms of planning permissions so that sites are fully restored at no cost to the public purse. Exceptionally in the circumstances of a breach of a planning condition (i.e. a break in its terms), default or insolvency, an initial outlay recoverable from operators' or administrators' financial guarantees may be possible but that is complex. Some of the complexities are set out in the landowner liability section of this report and may be overcome by the opportunities concerning bank guarantees. Nonetheless, local authorities cannot be expected to forward-fund any works in the event of a breach of planning control by an operator.

5. The sub-groups were charged with exploring more effective regulation of continuing active and future surface coal mines. While this report only focusses on surface coal mining, the Task Force recognises that many of its recommendations could apply in due course to practice on other onshore minerals, landfill and electricity infrastructure developments, specifically the works associated with solar/ PV and transformer and energy storage systems. There is an opportunity to apply learning from this in other sectors.

6. Following consideration of the draft report at the December 2014 task force, the sub-groups' work was extended to a further four representative meetings. The first was held in January 2015 by CoalPro, COSLA, East Ayrshire Council, HOPS, Scottish Government and SOCA and then in April 2015 with a wider group to resolve matters of importance to Scottish Government and stakeholders concerning an appropriate level of oversight and guidance on bank guarantees. The January meeting was resolved by adjustments to this final report. A summary of the April meetings is given in Annex K with appropriate adjustments applied to the text of this report and its recommendations.

7. This report considers the future of surface coal mine restoration under the two broad headings of compliance/monitoring and finance: with supporting evidence and final recommendations. It then considers other matters to support the better regulation of restoration.

THE FUTURE OF COAL

8. National Planning Framework 3 ascribes national development status to the Carbon Capture and Storage ( CCS) Network and Thermal Generation, referring to the construction of new or refurbishments to thermal generation power stations including Grangemouth and Longannet. The closure in March 2016 of Longannet power station notwithstanding, Scottish Planning Policy also acknowledges the "national benefit of indigenous coal…in maintaining a diverse energy mix and improving energy security".

2013 Consultation main finding

The consultation was based on an assumption that coal will continue to play a role in Scotland's energy supply mix into the foreseeable future.

Communities that replied to the consultation are generally opposed to any future development of coal. Several respondents disagreed with the view of the future of the coal markets and economics of the industry presented within the consultation document. It was suggested that the starting point for the consultation should have been one of an industry in terminal decline.

Sub-groups' discussion

The profitability of future coal production is very dependent on the international price of coal as any coal produced in the UK will have to compete with imported coal that is available at the international price. The international coal price is set in US$ and is currently very low. There is uncertainty over when international coal prices will recover and indeed some market commentators have the view that no significant recovery may take place in the next one to two years. If international coal prices rose by between £5 and £10, either through a strengthening of coal prices or a weakening in Sterling, that would bring a lot more production options back into play other things being equal; for example power station demand.

Domestic coal prices remain comfortably above cost of production but domestic coal production yields are typically low and therefore can only be produced alongside a viable thermal coal market.

A proposal put before UK Government by industry which would provide a carbon price support ( CPS) exemption on restoration related coal is acknowledged by Treasury and is to be considered.

Carbon Capture and Storage ( CCS) would also create a market as supported by National Planning Framework 3 in the form of national development status. Indigenous producers have the ability to supply long-term fixed-price contracts (indexed to UK inflation measures). This can provide a CCS project with a cost of fuel that is more closely matched to energy off-take by providing greater insulation from variation in international coal prices, foreign exchange movements and greater security of supply. Linked in with a sterling based energy price or CfD contract, this would provide a very attractive project financing proposition.

Coal burn is also affected by the energy policy components reserved to UK Government. There will certainly be interest in further sites in Scotland with indigenous coal attractive even to a declining coal-fired electricity sector. ^{[2] [3]}

The indigenous coal sector is considered to have a life of 20 years or more although geographically it may become more isolated and concentrated as coalfield resources shrink because they are in hard-to-reach areas or are sterilised owing to other environmental and land use planning constraints to the point where economically recoverable resources diminish and become exhausted.

It was also remarked by environmental NGO sub-group members that some of the assumptions about future prospects including CCS, carbon tax, the future of coal after the proposed closure of Longannet power station are highly speculative.

LAND USE PLANNING CONTEXT

2013 Consultation main finding

The requirement for more detailed working methods plans to be submitted with planning applications, therefore reducing the likelihood for material variations to a planning permission and its associated planning obligation requiring to be made after site operations commence.

While site survey information was felt to be a matter of judgement for the operators, more effective regulation can be enhanced through a more rigorous approach to detailed information that supports planning applications. Given the recent issues regarding the restoration of sites in the wake of the liquidation of two main coal producers, there is very considerable support for change to ensure that such situations do not arise again in the future. Inevitably there is considerable variation in opinion on how that is best achieved.

Sub-groups' discussion

Whilst the 2013 consultation broached the question of more detailed knowledge about proposed sites only very cursorily, it is clear that adequate information provided to the Coal Authority may not reach the planning authority in the same format, nor did consultees agree that it would necessarily be well understood, whether for the planning assessment or for bonding requirements.

Less than adequate site surveys about the coal and its surrounding rock formations could give rise to problems later on. It is considered therefore that more detail should be identified in high geological risk areas by developers in pre-application discussions with planning authorities and agencies for example on the water environment, faults and the coal to overburden ratio etc., - i.e. better site surveys.

9. Put simply, surface coal mining is development of land requiring planning permission. Planning applications should be determined in accordance with the development plan and other material considerations.

10. All local development plans must be replaced at least every five years. Where recoverable coal resources or reserves may exist, they should be highlighted as a main issue in development plan preparation.

11. The National Planning Framework 3 Action Programme (Action 23) states: We will take action based on the outcome from our consultation on Opencast Coal Restoration: Effective Regulation. It is incumbent upon this report to progress the actions required. Scottish Planning Policy ( SPP) on minerals including coal is provided under the Promoting Responsible Extraction of Resources heading. Extracts are included in Annex I.

12. Planning conditions imposed on a grant of planning permission can enable many development proposals to proceed where it would otherwise have been necessary to refuse planning permission. Planning conditions should only be imposed where they are:

• necessary
• relevant to planning
• relevant to the development to be permitted
• enforceable
• precise
• reasonable in all other respects

13. In many cases surface coal sites also have planning obligations (legal agreements) attached to the permission to regulate other matters related to the use of the land. Historically they have covered the financial guarantee and other matters that cannot be conditioned. Developers and planning authorities therefore require expertise across a range of topics including access to monitoring, compliance and enforcement skills. Access to legal and financial expertise is also required by developers and local authorities in order to ensure that legal agreements and financial guarantees that incur no financial risk to councils for restoration are understood and implemented. In some local authorities those skills are not available in-house and require to be commissioned.

PRE-PLANNING PROCEDURES

14. Pre-application discussion provides a developer, a planning authority and relevant agencies with an opportunity to share information and to be advised on application content and process. It front-loads the process effectively and may support better prepared pre-application consultation and environmental statements ahead of more fully formed applications.

Sub-groups' discussion

COSLA argues that the planning fee penalty clause is a disincentive to supporting unfunded development management processes such as pre-application discussions. They recognise the importance of improved performance but consider the clause is inappropriate for the desired outcome without resources from full cost recovery. Better ways to improve performance are sharing best practice, investing in technology and recognising progress achieved in the last 2 years.

Community representatives on the sub-groups have commented that the submission of incomplete and inadequate applications by professional developers is unacceptable. They suggest that minimum national standards should apply, encouraging a deeper understanding of forthcoming surface coal mine proposals. Community representatives also raised the issue of transparency throughout the planning and mining process.

The industry value pre-application discussions but there's a cost to planning authorities as no fee applies.

Recommendation 1

For opencast coal proposals, the sub-groups recommend supporting and encouraging pre-application discussions in order to shape proposals ahead of the pre-application consultation, environmental assessment and application phases.

15. There are a number of examples of ways in which development proposals can be given wider prominence or alternative means of handling as discussed in the following paragraphs.

16. SEPA now publishes data under its Compliance Assessment Scheme ^[4] and it is recommended that planning authorities should do the same for surface coal mine developments both at the pre-consent stage and also during the life of the opencast and beyond if there is aftercare involved. Just across the border, Northumberland County Council provides open access on-line monitoring reports ^[5] .

17. The Scottish Government's Energy Consents and Deployment Unit gate-checks applications for new wind and hydro development proposals. A gate check can identify any issues at an early stage which may arise during the consultation and ideally quality-assure the application. It can streamline the process by avoiding the need for requests for supplementary information and late addenda. More detail is set out in Annex D.

18. In strategic environmental assessment ( SEA), which applies to plans and programmes rather than projects, the role of the statutory Consultation Authorities within SEA is to bring their individual environmental expertise to the assessment process. That can help to ensure that the future consultation process undertaken by a Responsible Authority is more robust. That in turn means that the public can gain a better understanding of the likely effect of a plan on the environment and meaningfully contribute to the plan's preparation process by offering an informed view.

19. Good standards are also important to environmental impact assessment ( EIA). Scottish Government's October 2014 EIA Forum ^[6] covered scoping for efficiency in order to highlight the application of minimum standards in environmental statements ahead of the submission of planning applications. Deficient or misleading environmental statements may be more a matter of perception rather than fact. However it is important that planning applications are better supported by clear up-to-date and appropriate information in environmental statements and that the presentation of information for example on mitigation and restoration is clearly presented and can be understood by communities. SEPA has introduced a pilot scoping response detailing the measures required to provide better evidence for environmental statements on hydro schemes. These turn on maps and plans, infrastructure placement and sensitivities focusing on the likely significant impacts in order to improve environmental outcomes rather than the provision of generic advice. It can not only improve but also streamline the process. SEPA believes this approach can be adapted to surface coal mine EIAs. SEPA and SNH have agreed to facilitate a joint approach and work commenced in May 2015.

20. Currently, the development management regulations state that the classes of development prescribed for the purposes of section 35A(1) of the Act (pre-application consultation) are national developments and major developments. For major developments (specified in the hierarchy regulations); and in minerals these comprise developments of over 2 hectares, statutory pre-application consultation with communities is required for 12 weeks. Pre-application consultation for an application under s.42 to vary the terms of an opencast planning permission is not necessary even though the proposal may have implications for a host community. Powers specified by section 26A of the Town and Country Planning Act 1997 (as amended) make provision for Scottish Ministers as respects a particular local development, to direct that the development is to be dealt with as if (instead of being a local development) it were to be a major development. Those powers can be used on merit. Section 35A(1) of the Act states that before submitting an application an applicant may pre-screen for pre-application consultation procedures.

21. The purpose of extending the reach of pre-application consultation would be to give wider publicity to development proposals that merit promotion from "local" to "major" but no more than is required to maintain proportionality in all the circumstances of the case. Representatives of the sub-groups have agreed that the provision of guidance on non-material variations would help to clarify the boundaries of extended reach.

22. The Scottish Government and COSLA have published Guidance On The Role Of Councillors In Pre-Application Procedures ^[7] . This clarifies the extent to which local authority members may feel confident in engaging at the pre-application stage on substantial development proposals, adding value to the process, while continuing to act within the terms of the Councillors' Code of Conduct.

23. Those examples indicate what can be done to enhance the consideration of development proposals. Enhanced pre-application procedures do not impact on determination timescales although clearly once an application has been validated any additional processes such as voluntary pre-application consultation in the circumstances described in paragraph 21 could have an effect on performance: the judgment to be made in each instance being the perceived value added in opencast coal application situations.

24. For surface-mined coal an additional layer of expertise may be beneficial to ensure that at the validation stage of a planning application, applications are comprehensive. The sub-groups place emphasis on the range of expertise necessary to front-load improvements in the development management process, far less the expertise that is also required to discharge conditions in planning consents and monitor and ensure compliance during and after site operations. They are also alert to the costs of such new procedures. They conclude that those examples indicate that as a matter of good practice, pre-application discussions ahead of a possible gate-check process by a planning authority or shared service could front-load and build capacity for the planning authority development management service. For major planning applications pre-application consultation with communities is mandatory. While some opencast proposals may not currently fall into that category it is recommended that as a matter of local discretion taking account of the precedent that may be set, there are opportunities to process them as if they were major in order that consultation takes place to ensure that all parties are involved in the pre-planning application stage. The existing opportunity to make variations to consents under Section 42 ^[8] is important and should not require additional consultation procedures. [See footnote 9 and recommendations 4 and 9.]

Recommendation 2

Scottish Government will work with SEPA, SNH, Historic Scotland and Heads Of Planning Scotland ( HOPS) in consultation with stakeholders on improving scoping information requirements at the EIA scoping stage.

Recommendation 3

The sub-groups recommend planning authorities should promote a skilled support gate-check procedure for surface-mined coal development proposals including EIA, so that proposals can be validated before entering the formal planning process.

Recommendation 4

The sub-groups recommend that further consideration be given to the extent to which applications for surface coal mines not classed as major developments may benefit from the same publicity and consultation procedures as if they were major applications (to make PAC mandatory) subject to;
* minor variations under section 42 applications not being subject to PAC
* local discretion depending on the nature of the application, and
* guidance on non-material variations being produced.

SECONDARY PLANNING LEGISLATION - MINE MONITORING FEES

2013 Consultation main finding

There was no specific question on the introduction of mine monitoring fees

A review of planning application fees for mining and quarrying development was suggested by a third sector organisation, which could provide funds in part for pre-approval review of applications.

Key concerns for the coal industry are increased costs associated with planning fees.

One local authority suggested these should now be introduced as a matter of routine within Scotland. It suggests that such fees should be proportionate to the nature and scale of development and the amount of time and resources used by the planning authority in regulatory activities.

Sub-group' discussion

Although with only some support as opinion remains split, the sub-groups discussed whether an appropriately scaled, mine monitoring fees could be introduced in a way which supports the other initiatives set out in this report.

While the sub-groups consider that mine monitoring fees may not achieve the outcomes all parties seek those matters are discussed below. There is a view that a specific developer contribution to an acoustician, hydrologist or other specialist might be more fit for purpose in order to secure full and adequate restoration but that isolates the opportunity to access the full range of skills under a single payment.

The absence of full cost recovery in the processing of planning applications was discussed. There is also the view that if a monitoring fee regime is introduced it should not be duplicated by costs borne under legal agreements that currently cover the same matters.

Some operators have indicated that statutory monitoring fees could be seen as a disincentive to invest any further in coal and that it is rather an "after the horse has bolted" reaction to a situation that is now behind us. They would also need to be matched by penalties in the absence of planning authority rigour in the monitoring process. The environmental NGO voice on the sub-groups sees no connection between such fees and any decision to invest.

The sub-groups wish to highlight two things in particular:(a) whether fees for site visits could be absorbed to the extent that companies for example with corporate responsibility manifestos or with ISO 14001 environmental management accreditation are not dissuaded from development investments and;(b) whether the regime would be welcomed in other quarters as a regulatory measure. SEPA charge the cost of their duties to permit holders and experience difficulties in recovering costs from some. The sub-groups have discussed one of SEPA's charging regimes which is scaled to process complexity, environmental risk and permit compliance. It has been suggested that charging could be set out more simply - perhaps to the size or life of the site.

25. Material provided to Heads of Planning Scotland by the Planning Advisory Service and CIPFA on costing the planning service in Scotland is instructive. Their survey methodology (which was focused on development management) indicates that, whilst not fully definitive, there are:

• direct costs (applications handling and preparation of legal agreements),
• indirect costs (other development management excluding enforcement and legal agreements),
• compliance and delivery costs (site, condition and legal agreement monitoring and enforcement) and
• planning policy costs (these are less robust owing to longer timescales involved)

26. The planning penalty clause is an outstanding matter for discussion between Scottish Government and COSLA through their high level group. The sub-groups have noted the increase in planning fees to cover the cost of processing planning applications. An approximate 5% increase in planning fees across the board took effect from 1 November 2014. The objective is to strengthen the resources and capability of planning authorities to deliver a high performing planning service whilst maintaining a supportive business environment which supports sustainable economic growth. For minerals sites the fee is now £202 for each 0.1 hectare of the site area subject to a maximum of £30,240.

See: http://www.legislation.gov.uk/ssi/2014/214/pdfs/ssi_20140214_en.pdf

27. An alternative is the introduction of mine monitoring fees to cover costs of inspection and monitoring. Fees for monitoring of mining and landfill sites in England were introduced in 2006 by Regulation (since amended by 2012 Regulations ^[9] ). On introduction, the rate charged in England was £288, with chargeable site visits limited to 8 a year. Preparations and draft Regulations were made by Scottish Government to do likewise but these were not introduced at the time given Ministers' focus on general increases in planning fees linked to improved performance.

28. The associated guidance in England explains mineral and landfill operations involve a continuous process of development, sometimes over many years and even decades in accordance with mineral and landfill waste permissions. Such permissions are subject to complex and technical planning conditions to mitigate the physical environmental impact of mineral and waste working. The objective of introducing fees is to ensure that permissions are monitored in accordance with good practice. In that respect surface coal mine sites are included within the scope of the Regulations in England.

Discussion

29. Aside from the routine monitoring and compliance role of planning authorities on planning permissions more generally and the subsequent enforcement role where required, the scale and at times the pace of surface coal mining (as distinct from aggregates quarries and landfills) requires operators and planning authorities to be vigilant as to the state of the site with reference to the consent at all times. Surface coal mines are dynamic operations from "cut 1" to "completion and aftercare" and may experience change, delay or suspension of normal operations requiring a degree of on-site flexibility to accommodate unforeseen circumstances such as geological formations or unfavourable weather. Arguably the limited introduction of a fees regime is a reaction to past events. Conversely, a structure that in part funds and otherwise addresses the skills gap and the need for regular and routine knowledge about site operations by the planning authority has credibility and may have been long overdue. The crux is the value of a fees regime leading to better land use planning, stewardship of the environment and confidence amongst coalfield communities. These are matters that should be considered in a public consultation and which could be tailored to a range of scenarios (for example whether it should be retrospective).

30. The associated regulations in England go much wider than would necessarily now be required in Scotland. At present our working assumption is that any such regulations if supported should only to apply to sites where the principal mineral to be worked was coal; such sites are often associated with the presence of recoverable fireclay reserves so that mineral would also be covered in a "whole-site" approach. Our assumption is that the regulations would apply to site extensions. Where coal is a secondary mineral our working assumption is that a fees regime would also be required. Where discarded coal is being reworked on a site that is substantially undergoing restoration under a revised planning permission, a fees regime would not necessarily be required but again those would be matters for a public consultation. Additionally, the Task Force has discussed an industry initiative on 'restoration related coal' with a reduced carbon price support tax to which the fees regime might also be applied. The fees regime would not in our assessment be required for the wider and more geographically dispersed construction aggregates and specialist minerals industry.

31. The money generated is therefore likely to be insufficient, in itself, to ensure rigorous monitoring of sites in Scotland unless underpinned by a minimum number of visits linked to the predicted life of the site (which can be calculated based on volume of recoverable coal divided by annual production rates) or by the consented or time-limited life of the site (to account for variations in production). The compliance sub-group discussed a proposal that would assume a fee per visit, assume the number of visits and calculate that as a lump sum charged up-front in order to provide a sufficient level for the specialist services that may be required. A previous Scottish consultation confirmed that, for some existing sites, adequate monitoring arrangements were already being secured as part of a Section 75 agreement and these often result in costs being met by operators that are considerably higher than could be achieved through a statutory fees regime. While monitoring should be specified in planning conditions, Section 75 agreements can now be modified or discharged following an application with the setting out of the changes which the applicant wishes to be made to the obligation and the grounds on which the applicant seeks modification or discharge of the planning obligation. The appointment of a compliance assessor, paid for by the developer but accountable to the planning authority, provides a means of ensuring that compliance, tailored to the needs of a particular site, can be carried out at no cost to a planning authority. The appointment of monitoring and compliance assessors has been considered further by the sub-groups, with Scottish Government and SOLAR considering how they may be secured at the expense of a developer either through a planning condition or legal agreement.

32. A ministerial group convened prior to the opencast coal task force was set up in order to address financial burdens arising from regulatory controls on an industry faced with high fixed costs, increased diesel prices and international competition. While recent lower oil prices have reduced fixed costs, introducing fees might be perceived as running counter to the direction of travel on reducing burdens but may also demonstrate that the Scottish Government recognises not only the value to local communities of local jobs but the impact of the industry on those who live in its midst. In isolation, fees are not the only effective means of better regulation but could sit alongside other measures as discussed in this report.

33. A consultation might address matters such as whether fees should apply retrospectively to the 12 or so sites coaling actively in late 2014; whether fees should apply to sites with inadequate bonding or to sites with planning permission but not yet started; or only to sites for which planning permission does not at present exist but might do after the introduction of the regulations.

34. Introduction of fees, if agreed, would require a public consultation, an associated business regulatory impact assessment and an equalities impact assessment to be undertaken before analysing responses ahead of ministerial consideration.

35. A consequence of fee-based structured monitoring could be the routine publication of site inspection reports. Since November 2014, SEPA has enhanced accessibility to its Compliance Assessment Scheme ^[10] and publishes assessment reports on-line. These include a search facility for all regulated activities including discharges from surface coal mines. Operators are provided with final assessment authorisations on a 6-point scale from Excellent to Very Poor. Lower risk operations will tend not to be inspected every year but every 2 or 5 years depending on compliance performance. Some councils publish monthly inspection reports. On the planning side it would be possible to replicate an inspection reports system that echoes the SEPA scheme but instead reports on compliance with planning conditions. It should be noted that responsible operators publish environmental audits. This is attractive to Scottish Ministers. Reporting would provide a level of oversight (and potentially early warning) that stops short of regulatory duplication over local authority responsibility. Publicly available reports would provide a wider audience with visibility over site activity, reporting on which has in any event been a feature of recent Task Force meetings. Sub-group representatives have discussed how this can be brought forward in a structured way along with other report-back topics featuring financial guarantees and community liaison (see Recommendations 19, 21 and 25).

Summary on mine monitoring fees - benefits and disbenefits

36. Benefits include:

• cost-recovery for planning authority monitoring input
• potential lump sum available for specialist services
• an assurance to communities that the Scottish Government is prepared to act, yet proportionately
• across the board - a strengthened regulatory approach to environmental stewardship
• partial parity in monitoring and inspection control between England and Scotland
• the polluter pays

37. Disbenefits include:

• Risk (potentially low) of a fees regime turning away future surface coal mine investment
• The time it would take to implement a regulatory instrument
• The regulatory burden upon operators
• More effective arrangements can be secured through existing planning legislation (Section 75 agreements)

38. This section has sought to conclude whether a fees regime should be introduced. It is considered on balance that a limited fees regime alongside other measures is a credible proposal meriting a positive recommendation to the Task Force. While this relates to opencast coal only, financial cover for decommissioning and restoration for example in the onshore wind and infrastructure sectors is widely recognised ^[11] .

Recommendation 5

The sub-groups recommend that Ministers should consider and consult on a mineral monitoring fees regime during 2015.

Recommendation 6

In combination with Recommendation 5 the sub-groups recommend that work should be undertaken based on the SEPA charging model which could consider bespoke charging - scaled to the size and lifespan of the site, the bought-in service and moderated by the frequency of visits depending on performance.

OPTIONS OPEN TO MINISTERS IN THE STATUTORY PLANNING PROCESS

39. Determination of planning applications is conducted under the development management system - the process of deciding whether to grant or refuse planning permission and other related consents. Planning authorities normally deal with applications for planning permission. Scottish Ministers become involved in a very small minority of cases, but only do so where it involves a matter of genuine national interest.

40. The Town and Country Planning (Scotland) Act 1997 requires that decisions on planning applications should be made in accordance with the development plan unless material considerations indicate otherwise. Material considerations should be related to the development and use of land. More information on material considerations is provided in Circular 3/2013: Development Management Procedures.

41. Scottish Planning Policy states that where relevant policies in a development plan are out-of-date or the plan does not contain policies relevant to the proposal, then the presumption in favour of development that contributes to sustainable development will be a significant material consideration. Decision-makers should also take into account any adverse impacts which would significantly and demonstrably outweigh the benefits when assessed against the wider policies in this SPP. The same principle should be applied where a development plan is more than five years old.

42. Where planning authorities intend to grant planning permission for surface-mined coal working where the site boundary falls within 500 metres of an existing community or sensitive establishment, they are required to notify Scottish Ministers who can then review the application and decide whether to call it in for their own determination or whether to return the application to the council without further intervention.

43. With the case for Scottish Ministers becoming routinely involved in surface coal mine development proposals turning on national interest, the bar is set relatively high and there would need to be an evidence-base for recommending a change. The legacy, concentration and scale of unrestored sites have been identified as a national risk. The life of active sites (and commonplace extensions thereto) can extend across generations. This led to sub-group representatives' discussions on two fronts:

• the scope and case for time-limited consents and
• the Scottish Ministers' role in the statutory planning process and how that might be modified to provide further oversight concerning activity in the surface coal mining sector and how that might be achieved.

CoalPro has indicated it is not averse to the idea of time-limited consents; achievable by a diligent approach to an evidence base about the site and its surroundings at the pre-planning application phase. The idea is considered worthy of exploration in order to give decision-takers a clear idea of the development they are to determine and communities a sense of predictability that a surface coal mine development can be concluded (achieving restoration) within a set time-frame.

44. The two principal areas where coal is worked at the surface are East Ayrshire and South Lanarkshire although there are substantial reserves elsewhere in Dumfries and Galloway, Fife, West Lothian and at an unworked site in Midlothian. East Ayrshire and South Lanarkshire have minerals development plans providing planning policies and detailed assessment criteria for new proposals and site extensions. To provide confidence, these and planning policies elsewhere require to be implemented effectively in the development management situation set out in other recommendations in this report.

45. The Coal Authority has also published Coalfield Plans for Local Planning Authority areas ^[12] which enable planning authorities locally to take informed decisions on a number of matters relating to coal mining risk area plans, legacy plans and surface coal resource plans. In principle these information sources add to the argument that decisions can be made locally without further intervention by Scottish Ministers provided matters such as geological risk are better understood at the outset.

46. In any event Scottish Ministers have powers to issue case-specific directions requiring planning authorities to notify them of applications where they intend to grant planning permission. That allows Ministers to review any application in much the same way as they would do under the 500m notification criterion on surface coal mine proposals. This does not mean that they would routinely use those powers or that they would decide to call-in applications for their own determination unless there was a clear national interest. The important point is that they have such powers and may use them if required.

47. Ministers can also alter the criteria for notification. With surface mining envisaged for the next 20 years or so, there is an opportunity to review the criteria in the notification direction specific to coal. While the sub-groups believe that rigorous compliance, monitoring and financial cover exercised locally, linked to our proposals to provide additional support that might justify the continuance of current arrangements there is an additional compelling pressure. Further discussions by sub-group representatives and Scottish Ministers' interests in enhanced oversight have concluded that the time is right to take the opportunity to consult on the matter of extending the reach of the notification direction . A working assumption is that notification for example, could extent to 'major' category developments.

Recommendation 7

The sub-groups recommend the Scottish Government works with SOLAR and other stakeholders to explore the scope for time-limited consents; the circumstances in the coal sector when it may be appropriate to apply such a constraint and provide guidance on the matter (see Recommendation 20).

Recommendation 8

The sub-groups recommend that, taking account of risk management, and potential enhancements to oversight the current arrangements for Scottish Ministers on notification and call-in should be the subject of a short and focused consultation on additional notification criteria.

MINE PROGRESS PLANS

2013 Consultation main finding

There was 93% support for the idea that Mine Progress Plans have a more central role in the planning and planning compliance programmes. There was 85% support for MPPs being available to the public although less so from the business sector who commented they are already available in support of applications. There was also some support for assessors' reports of MPPs being made available.

Sub-groups discussion

The sub-groups' view of mine progress plans is that they rightly accommodate the necessary flexibility to account for changes in site conditions but that there should be clarity about their purpose. The impression that they are only secured by condition post-consent was corrected. They are up-front plans submitted with the application. They are publicly available. They should cross-refer to inspection reports.

48. Mine progress plans were commonly derived from 'method working' statements and are now an integral and vital part of the process of compliance monitoring. Our consultation reflected the view that the right resources are required to ensure MPPs are kept up-to-date and reviewed by competent people. The MPP can provide the baseline and record progress over an agreed period reinforced by legal obligations. They can be used to identify material change whilst accounting for difficult operating conditions. MPPs need to be read in conjunction with a 'mine programme plan' and any proposed change, if material, would require to be subject to an application under s.42 of the 1997 Act. Non-material variations can be addressed by a planning authority under s.64 of the Act. Where a planning condition requires any material change in the MPP to be notified to the planning authority for its approval taking account of the views of consultees as specified in the condition, a judgement needs to be made on whether that amounts to a material change requiring the submission of an application for variation and all of the public engagement and other procedures that entails.

49. MPPs are living plans subject to modification and should be monitored by the planning authority with professional or shared service support to identify changes on site, the reasons for them and appropriate modification ^[13] . Mine progress plans are tools for routine monitoring and do not necessarily require enforcement. The important point is to ensure that the relevant skills are available to the local authority to allow MPPs to be monitored more effectively - with open channels of communication to the planning authority's enforcement service.

Recommendation 9

The sub-groups recommend that Mine Progress Plans need to be sustained and improved and be secured by condition. MPPs and their periodic assessments are of value to site Technical Working Groups and Community Liaison Committees and should be signed off to ensure that progressive coaling and restoration conforms to the MPP. MPPs should be made available publicly (as part of the site inspection report) on planning authority e-planning websites.

PLANNING ENFORCEMENT

2013 Consultation main findings

The majority of planning authorities and the opencast coal operators were in agreement that no change was required.

Enforcement action, however immediate and efficient, cannot always be relied upon as a means of resolving breaches of planning control. It can often be too late to avoid irreversible damage to the environment reinforcing the importance of complementing any enforcement work with a robust compliance monitoring of developments to lower the risk of such scenarios taking place.

Planning conditions are ineffective in regulating site restoration in the event of default by the operator, in such circumstances direct action by the local authority under section 135 of the Planning Act is the only real solution, albeit with significant financial implications and uncertainties as set out in the report under landowner liability.

Ensuring that any proposal is sound in every respect prior to the granting of planning permission with robust compliance monitoring arrangements in place rather than relying on enforcement action as a means of reacting to and rectifying issues if and when they arise.

Sub-group's discussion

The sub-group has discussed the shortcomings of section 135 of the Act (execution and cost of works required by enforcement notice). There is a view that enforcement provisions are written very widely and not designed to deal with situations such as large water-filled voids or large quantities of misplaced overburden. However their wide scope ranging from planning contravention to interdict means that they apply in equal measure.

The comment has been made that a local authority's enforcement charter sets out the expectations of the service within which coal operators should not be singled out. Planning Performance Framework ^[14] National Headline Indicators include key outcomes on review of enforcement charters every 2 years with the number of breaches identified/resolved.

Complications may arise in targeting the offence to the appropriate parties where breaches on part of the site if under joint and several ownership have occurred. With limited statutory fines levied in the courts, the prospect of counter-actions increase financial risks to planning authorities which is why direct action under (s.135 (1)(b) of the Act is rare.

Subsequent discussion amongst sub-group representatives has identified scope in the light of current circumstances and experience, to enhance the minerals section (paragraphs 33-36) of Circular 10/2009 'Planning Enforcement'.

50. Adequate financial cover and a transparent mine progress plan will not necessarily prevent the need for enforcement action.

51. Enforcement is a discretionary power. Part VI of the Act provides that non-compliance with an enforcement notice or breach of conditions notice is an offence. Circular 10/2009 - Planning Enforcement, provides that the general principles and policies applicable to enforcement apply equally to cases of mineral working. Nevertheless, unique problems may arise from unauthorised developments of this type. In particular, the issuing of an enforcement notice, combined where appropriate with a stop notice, may prevent damage either to the site itself or to the surrounding area, which would otherwise be irreversible or irremediable. A temporary stop notice may be used if the matter is urgent. Where necessary, planning authorities may decide to apply for an interdict. Examples of situations requiring rapid enforcement action might be where an operator is moving soil materials in contravention of planning conditions, so as to jeopardise the restoration and aftercare of the site; or if unauthorised excavations outside the permitted boundary cause concern for the safety and stability of surrounding land. However, it always remains preferable for liaison and contacts between planning authorities and mineral operators to be sufficiently good to avoid such contraventions, and to resolve any problems through discussion and co-operation. The purpose of planning enforcement is to resolve the problem rather than to punish the mistake. In addition, any action taken has to be appropriate to the scale of the breach. ¹⁵ Priority will be given to significant breaches of planning control including:

• breaches of condition for major development;
• irreversible damage to listed buildings;
• unauthorised felling of trees and matters affecting trees protected by Tree Protection Orders;
• significant detrimental impact on amenity

Enforcement charters will set out where it can be expected that enforcement action will be taken against any unauthorised development that unacceptably harms public amenity, public safety or the existing use of land and buildings which need protecting in the public interest. Scottish Ministers will take an interest in the effectiveness of the enforcement regime in the surface coal mining sector in the recommendation that periodic reports should be submitted to Scottish Government by planning authorities (Recommendation 19).

52. As set out in the Scottish Government's consultation on Opencast Coal: Restoration: Effective Regulation, Circular 10/2009 Planning Enforcement provides advice on enforcement of planning control over mineral working. While suggestions were made in the consultation for amendments to the advice, they were limited to slight adjustments to indicate "very serious" situations requiring rapid enforcement. Direct action is a complex area - often the option of last resort if all else fails and as discussed under the section of this report concerning landowner liability. The comment has been made at the Task Force in the context of the two 2013 company liquidations about the difficulties concerning pursuit of company directors for damages.

53. In summary, the sub-groups recognise the limitations placed on planning authorities by enforcement primary legislation but also that action on breaches of control may need to be taken.

Recommendation 10

The sub-groups recommend minor adjustments are made to Circular 10/2009 (Planning Enforcement) with a focus on the minerals section (paragraphs 33-36).

The sub-groups recommend that monitoring takes place for the coal sector arising from Planning Performance Framework headline indicators on breaches identified and resolved and reported to Scottish Ministers annually.

LEGAL AGREEMENTS - Planning ^[16]

2013 Consultation main findings

There was an 82% response to the question about the provision of a central resource for legal advice and 84% support for the idea although with qualifications.

For example there is a strong feeling amongst the local authorities for retaining ownership on legal agreements or bought-in legal advice to prepare agreements.

Sub-group's discussion*

The sub-groups know that a local authority planning service relies heavily on legal services to support the effective preparation of legal agreements and the matters they cover. Since in some authorities, there is only limited or indeed no requirement to prepare surface coal mine legal agreements, expertise in the sector is inconsistent.

The need for expertise is recognised and whether that comes from central services through an organisation like Scottish Futures Trust or from another source may be an option. Local authorities are likely to be reluctant to support a formal national shared service but SOLAR sees the value of a small group of lawyers acquainted with the minerals sector sharing expertise. Much will depend on drive and initiative yet to be addressed or the geographical concentration of future sites and in which local authority areas future development pressures will be felt and which is consistent across Scotland.

There is a strong view that the 6 month target for legal agreement sign-off can be improved upon and that it can combat drift which is a concern to communities.

At the very least the heads of terms of the agreement should be available in draft to decision-takers when applications are being determined and be approved with the application.

Further discussion by sub-group representatives in April 2015 has identified an area of debate concerning whether the instrument for the financial guarantee should be a planning condition or whether it is more appropriate to stick with the more conventional wrapper of a legal agreement. The debate turns on the point that a guarantee is not a payment (which could not be required by condition) and the ease with which a planning authority may gain access to the guarantee monies if required. A conclusion to the debate is being pursued by Scottish Government, SOLAR and HOPS.

* external to the sub-groups, a SOLAR view was requested ^[17] .

54. Scottish Government officials met with the SOLAR General Committee on 23 January 2015. They committed, along with HOPS, to closer short-term engagement in relation to skills services and options to support the sharing of expertise. HOPS conducted a short consultation until 20 February 2015 on a Position Statement on the Operation of Financial Mechanisms to Secure Decommissioning, Restoration and Aftercare of Development Sites including (a) an analysis and risk assessment of financial guarantee types and (b) a Section 75 Planning Obligation - Restoration And Aftercare Bonding template. This is an example of good collaboration in areas where this report's recommendations can avoid duplication of effort. The HOPS position statement has now been published. ¹⁸

55. Findings on legal support services are inconclusive. The conclusion of legal agreements efficiently is essential in order to improve planning performance. On legal agreements as such, the Scottish Government has with the COSLA High-Level Group been working towards a target to conclude (or reconsider) legal agreements on applications within 6 months of 'resolving to grant' which will require production of supporting guidance, following wider stakeholder input. We believe this initiative can be augmented by providing a template approach on the required content of legal agreements for surface coal mines suitably supported by oversight by the expertise required for quality assurance purposes. As far as legal agreement sign-off is concerned, there are already examples of the ultimate sanction in the dismissal of planning appeals in the face of uncompleted legal agreements and of planning authorities who will review progress on legal agreements after 2 months with recourse thereafter to committee for a decision to refuse if conclusion cannot be reached.

Recommendation 11

The sub-groups recommend that standard templates for legal agreements for surface coal mines should be drawn up and kept up to date; including the financial elements agreements are expected to cover, and that agreements are concluded effectively and efficiently well within 6 months. This should be consistent with a consultation conducted by HOPS (see paragraph 55).

Recommendation 12

The sub-groups recommend prioritisation and supply of legal support required to achieve planning performance targets. Monitoring legal agreement content should be explored further. To achieve that, Scottish Government has begun work with SOLAR and the Improvement Service and others to identify the skills gaps and bring that work to a conclusion during 2015.

STANDARD PLANNING CONDITIONS

56. Whilst recognising that each site is different, there are many common factors and themes that enable a standard approach to planning conditions to be considered - the 30 model conditions in Annex C of Planning Advice Note 64 refer. For example, there is a legislative requirement for a mandatory planning condition attached to planning permissions in order that extractive waste is managed in accordance with a waste management plan and that it is accompanied by the necessary documentation. ¹⁹

2013 Consultation main findings

80% response and 94% positive support for this idea.

Sub-group's discussion

There has to be a case for at least having the majority of standard conditions being provided in a template for all to use. This would achieve consistency on the key elements of what is required to ensure sound planning and compliance but allow for variations for local or site-specific issues. Whether HOPS or SG in consultation with LAs should produce this is a matter for discussion about who leads but a series of central planning and other templates that all can use is needed.

Recommendation 13

The sub-groups recommend that a suite of standard planning conditions which would not be exhaustive, should be progressed by Scottish Government in association with HOPS during 2015 in consultation with stakeholders. This shall include a reference to the mandatory extractive waste condition referred to in paragraph 57.

Recommendation 14

Legislation concerning a mandatory condition as set out in the Management of Extractive Waste (Scotland) Regulations 2010 ^[20] shall be notified to all planning authorities for clarification, by Scottish Government during 2015.

PRIMARY AUTHORITY

57. Following public consultation during 2013 an analysis of consultation responses found that there is clear support for a Primary Authority model to be available in Scotland as part of a Better Regulation toolkit. It was also clear that primary authority should not encroach on the legitimacy of local democracy. Under the provisions of the scheme within the Regulatory Reform (Scotland) Act regulatory function has the same definition as for other provisions within the act so ' does not include any such functions exercisable by a planning authority'.

58. The surface mined coal sector relies on a number of public sector services regulating the planning, water environment, noise, air quality, habitat management elements of the development. To some extent these can be regarded as fragmented across the local authority and wider public sector. It may be however that individual specialisms could be identified; representing a pool of expert advice that can be drawn down. This would require further work, given that a carefully constructed centre of excellence for the sector may be at risk if it were to rely on one individual then they leave or retire. Drift of expertise and retirement out of public sector minerals planning is an issue that has been identified by the UK Minerals Forum.

59. As with primary authority the Scottish Regulators' Strategic Code of Practice also came out of the Regulatory Reform (Scotland) Act. This Code will apply to regulators listed in Schedule 1 of the Act (see glossary) and will set out a high level, strategic approach to encourage and support regulators in applying regulatory principles and contribute to achieving sustainable economic growth. The Code was laid before the Scottish Parliament on 12 January 2015 before it can be issued.

Sub-groups' discussion

The sub-groups have discussed t he UK Government's established Primary Authority scheme which offers business the opportunity to form a partnership with one local authority in order to receive tailored advice in relation to a specified range of regulation and The Scottish Government's work concerning Primary Authority Partnerships for devolved regulatory matters ^[21] . Primary Authority works on the principle that a business operating in at least two local authority areas can form partnerships with one local authority to receive robust and reliable advice for specific regulatory matters. This then becomes the template that other local authorities must take into account.

There is sense that if the way an operator and a local authority in putting together an opencast plan have developed something that is seen to work and is deemed good or best practice, then it could form the basis for that operator working elsewhere. While each opencast will have some of its own issues there are many similarities and given the resource and expertise constraints that are discussed and highlighted elsewhere in this paper, considering what has been learned from Primary Authority would seem sensible.

There may be merit in growing a 'centre of excellence' in a 'primary authority' or 'national standard' type way and this is discussed later in the report in the context of what might flow from the idea of a Coalfield Planning Officers Forum.

Recommendation 15

The sub-groups recommend that Scottish Government and COSLA monitor any benefits to effective regulation from primary authority noting that it is not intended that a primary authority scheme in Scotland would apply to planning

NATIONAL STANDARDS

2013 Sub-groups' discussion

From reports and issues produced and highlighted by the Scottish Government's independent Regulatory Review Group and others it has become clear that there is general agreement across all stakeholders that some things are better being done the same way across Scotland and are mandated to be so. National Standards are how these have manifested themselves in the Regulatory Reform (Scotland) Act 2014 which now provides the vehicle for this to happen. National Standards apply where all parties involved in something agree that it should be done the same way across Scotland; and that it would be beneficial. Through both sub-groups and from previous working groups on opencast there is a desire for consistency and 'templates' that all can use. National Standards could be used and are already partly in place but less likely in planning yet where best practice is merited. What now needs careful consideration is to assemble the elements of an opencast operation that would be best done through National Standards. There could be difficulties with a 'one-size-fits-all' approach.

We have looked at national standards across the board and believe that our recommendations on bespoke improvements for example on templates for conditions and legal agreements, growing skills and sharing expertise addresses the criticism of the 'one-size-fits-all' approach.

60. The Regulatory Reform (Scotland) Act 2014 introduces a range of measures to deliver consistent and proportionate regulation and promote in all Scottish regulators a broad and deep alignment with the Government's overall Purpose of sustainable economic growth. This includes powers to make the delivery of regulations more consistent through national standards and systems.

61. The provisions within the Act apply to regulators listed within Schedule 1 of the Act. This includes local authorities but it excludes the regulatory functions " exercisable by a planning authority" It was considered that the application of the Act provisions to Planning was not the appropriate way to deal with matters. However as set out below, continuous improvement and minimum standards are important to planning performance in a number of areas addressed in this report: environmental assessment, gate checking, processing agreements, conditions and legal agreements. There is nothing to prevent us working to achieve consistency and national standards in those planning-related issues.

62. The Planning Performance Framework ^[22] was introduced by Scottish Government and Heads of Planning Scotland ( HOPS) in 2012. It has been the culmination of an intensive period of discussions and consultations undertaken by HOPS with the Scottish Government, RTPI, COSLA, SOLACE, the Improvement Service, Key Agencies and a range of private sector organisations. It has still to be ascertained whether the provisions of the Regulatory Reform Act would apply in all the circumstances surrounding the consenting and operation of an opencast mine. Scottish Government, Scottish Futures Trust and HOPS with input from industry and other sources as appropriate will work to achieve consistent and standard approaches. It will be dependent on the scale of future developer interest recognising that each planning authority will wish to retain autonomy and local accountability for statutory functions.

Recommendation 16

The sub-groups support a consistent approach to implementation of the report's recommendations; standardisation through nationally agreed templates and 'mandatory' roles to achieve greater control of the process.

PROCESSING AGREEMENTS

2013 Consultation main finding

The majority of respondents supported wider use of processing agreements.

Sub-groups' discussion

The compliance sub-group discussed the view that processing agreements may bring limited value to the sector and is perceived to build in certain risks to developers. It was clarified that it is a two-way idea but strongly encouraged by Scottish Government.

Processing agreements do not short-circuit statutory public consultation nor are they intended to trigger a questionable decision by a planning authority in order to achieve targets.

63. A minimum standard is provided in planning by the promotion of further use of Processing Agreements ^[23] . Ministers in cooperation with the COSLA High-Level Group have been discussing them as a matter of good practice in modernising planning to provide certainty. Taking into account the proposal for gate checking and whilst processing agreements are chiefly planning authority-applicant project management tools, they can provide greater clarity about the process of determining planning applications, consultation with statutory bodies and agreed timescales. Planning authorities recognise that not all developers wish to be part of a processing agreement.

64. It is implicit that the skills need to be available to service a processing agreement application. Concerns raised in relation to the continuing right of appeal against non-determination are covered in Circular 3/2013.

Recommendation 17

The sub-groups recommend that all surface coal mine development proposals should be associated with a processing agreement.

MONITORING AND COMPLIANCE - EXPERTISE AND PRACTICE

65. This section focuses on the areas for development and improvement supporting the planning function. The financial guarantee element is dealt with later in this report and our recommendations bring together those two complementary streams.

66. The central question of an independent compliance unit floated in the Scottish Government's consultation [question 6] gave rise to a detailed response. It was in three parts and it is important that this report sets out the main findings once again.

2013 Consultation main findings

Question 6A: What roles should rest with local and national government in relation to compliance monitoring?

6 out of 8 local authorities, 5 businesses, 4 out of 5 responses from the third sector, 2 professional bodies, 1 consultant and 2 political responses stated that it is the role of planning authorities to ensure compliance with planning conditions.

3 businesses and 2 third sector responses questioned the skills, experience and resource of local authorities to undertake this role with 1 third sector response favouring an independent agency.

3 local authority responses commented that it is the role of national government to provide policy advice, direction and guidance to ensure consistency of approach.

Question 6B: Is there a role for an alternative method such as a shared or independent service to undertake effective restoration bonding regulation?

There was majority support but only a 68% response rate on Q6B and Q6C and uncertainty about operation of a unit although support for a shared service. Some businesses expressed the opinion that local authorities do not currently have the capability to undertake assessments of different financial packages to meet restoration liabilities.

Of the 6 local authority responses to Q6A, 1 response also suggested the assistance of independent specialist expertise to assist planning authorities with compliance monitoring.

The majority of local authority respondents considered that the advice from such a unit should be discretionary for a planning authority.

There was strong but not unanimous support (Q7) that an independent unit should be a statutory consultee under secondary legislation and that by definition this was proportionate.

In relation to building skills capacities (Q24) some businesses cautioned against duplication of the local authority function by any central unit.

Question 6C: If so can you describe how you might see that operating and how it might be funded?

Local authority and third party respondents expressed their strong concerns about any cost burdens being placed on them to cover the funding of the service. Instead, local authority respondents suggested that the service be funded either by the developer or from additional government funding. On the understanding that such a service would undertake all of the development management functions of the planning authority, the majority of business respondents felt that such a service should be funded from planning application fees.

The majority of respondents identified the need for further investigation and discussion on the delivery and funding of such a service.

Question 21: Do you consider that another authority or agency such as the Coal Authority could perform an advisory function to planning authorities when considering the status of the licence applicant or licensee in deciding whether to issue or transfer a surface coal mining licence? Please provide supporting information.

There was a general view that the Coal Authority might play a more active advisory role although there were comments on its resource capability and impartiality.

Sub-groups' discussion

The sub-groups have been presented with shared service or compliance unit models that would be scaled to the size of the task on active sites across the Scottish coalfields with opt-in or opt-out provisions. Some disagree with the consultation finding that advice from a unit or service should be discretionary and instead that it should be accepted without question.

The sub-groups also recognise the downward pressures on planning authorities to multi-task, placing specialist skills at a premium - in fact there may be skills gaps - all the more reason to explore ways and means of building expertise, sharing services and enhancing processes as set out in this report.

The other ideas worked up in this paper do however provide certainty that front-loading the development management process can be enhanced based on a series of straightforward measures. There is an opportunity to learn from the Planning Officers Society in England.

67. While there is support for local authority autonomy sustained by additional professional services, this report points to a need to move us from theories and options to implementation. It must take us beyond the status quo sufficiently to make a lasting and robust difference. Research conducted into the failure to restore opencast coal sites in South Wales recommended that planning authorities could use the expertise of an adjoining authority which has more familiarity with opencast projects and the benefits of a 'centre of excellence'. ^[24] With something of the order of 12 active surface coal mines across Scotland and with the other options on the table e.g. further developer charges for specific services and a potentially improving wider financial guarantee landscape and better understanding of it, the case for an independent unit with statutory consultee status would need to be overwhelming. Should such a unit or centre of expertise ultimately be established, its role would be dependent on the scale of future planning applications for opencast coal mining and the geographical spread of developer interest. Individual planning authorities have expressed the view that they would want to retain a considerable degree of autonomy in determining and regulating an opencast coal proposal.

68. A response to the Scottish Government consultation remarked on whether more centralised control was appropriate given the small scale of the remaining industry in Scotland. The sub-groups recognise that it is not the scale of the industry but the risk of significant impacts and further reputational damage arising from difficulties at individual sites. Furthermore, a unit would need to be set up following a public consultation and on best estimates that might be two years off even assuming a funding model could be developed for it and that the unit could be staffed. Simply extending consultee arrangements to SEPA and the Coal Authority would not provide the best fit but the Coal Authority's skills were referred to in the Scottish Government consultation although the question of its impartiality had been raised in the consultation. The Coal Authority has responded that as an organisation it has no agenda on the scale of the industry ^[25] .

69. Whilst we have focused on the legal and financial aspects of skills deficiencies, research for the Welsh Government with our emphasis concludes: "It has become evident from our discussions, that the designing, accumulation, holding, management and phased release of a bond is a specialist and very time consuming activity which can run throughout the operation of a site. It falls over and above the normal LPA task of processing and conditioning the original planning application / permission for the site, along with the subsequent monitoring of the project in terms of liaison and auditing compliance with the planning conditions."

70. " The design and control of bonds requires significant initial inputs from lawyers / engineers / surveyors / quantity surveyors experienced in large mineral, earthmoving and restoration projects, to establish the size and cashflow mechanisms of the bond . But once the project is operational, it will require regular inputs from those specialists, to ensure that operations are in accordance with the programme upon which the bond is based and monies are being accumulated. Any significant departure from that programme must be assessed, and any adverse implications on the level of bond cover identified and a correction negotiated. As the site liabilities pass their peak and start to diminish, those overseeing the management of the bond, must ensure that the bond is released at a rate commensurate with that diminution in liability, but not at a rate which leaves a shortfall. The objective must be to adequately recompense the operator and not tie up their funds unnecessarily whilst retaining adequate protection for the LPA. The costs of these activities, and the need to provide basic quantity data and cost estimates should fall on the operator. It would be advantageous to establish a clear protocol by which the site operator should, annually, provide to the LPA, a review of current site earthworks quantities in terms of void and overburden heaps, and an estimate of the cost of site restoration at that time and at any future worst case. The LPA could then use this data as a start point to review the adequacy of the current and future adequacy of the bond provision for the site. The site operator should be required to notify the LPA of any departure from the anticipated programme of works if it would increase the scale of restoration cost and bond requirement determined at the previous review.

71. Finally it is worth noting that LPAs and the Coal Authority have very clear and legally defined roles in relation to the licencing and planning / operational compliance for opencast coal sites, but both bodies shared a view that over and above those formal roles they might well benefit from closer dialogue and the exchange of information, views and difficulties."

72. In accordance with findings in Wales it is right to look at the skills-base and skills gaps. There is not surprisingly a similarity between the Welsh and Scottish situations (see consultation main finding below). The Scottish Government consultation responses noted the infrequency of opencast submissions - a factor echoed in the Welsh research which noted that some LPAs might receive only one or two applications per decade, and hence be unable to fully employ, afford or retain such specialist staff. Comments ascribed to that research are not accepted verbatim by Scottish local authorities.

2013 Consultation main finding:

A high 82% response to questions on skills referred to lack of specialist experience.

A shared service/ central body (or certification of individuals by such a body) was suggested by several respondents as the most efficient means of providing this expertise (along with potentially expertise in other monitoring, compliance, planning and restoration issues, and occasional legal advice),rather than its being held in-house in planning authorities.

A business suggested that the Coal Authority could provide this service.

* Skills gaps:

* Compliance, Monitoring and Restorations, Legal Advice

73. The Welsh research recommended a closer working relationship between the Coal Authority and planning authorities for example by the Coal Authority attending the Wales Planning Officers Waste and Minerals Forum. That might be regarded as too informal a way of securing lasting planning performance improvements but it might be an appropriate stepping stone towards shared expertise or to develop the more formal recommendations set out in this report. Owing to limited staff resources and increased pressures, it has been a number of years now since the disbanded Scottish Minerals Officers Forum met but that could be reinvigorated. However, it is important to recognise that the HOPS Energy and Resources sub-committee now address the issues previously covered by that forum although it has yet to be considered whether it has the resources to pick up all of the slack. New fora could be modelled on the Restoration Bonds Working Group which advised the Task Force in its early stages - the key being to gather coalfield planning authorities around the table periodically in order to inspire mutual support connected with a programme of action. What is clear is that if this skills gap is not addressed and resolved much of what is recommended in this report will not work.

74. The sub-groups note that the UK Minerals Forum ^[26] receives a small contribution of funding from the Confederation of British Industry to support operations, meetings, consumables and venue hire. In subsequent discussions with SOLAR, central funding of the Electoral Management Board for Scotland ( EMB) which was created by the Local Electoral Administration (Scotland) Act 2011, was discussed and its funding model can be pursued. Scottish Government, HOPS, SOLAR, CIPFA (if required), the Improvement Service and CoalPro will enter into discussions and gather evidence about financial and operational support (see paragraph 76), service capacity, aggregation of specialist services (potentially a Coalfield Planning Officers Forum) and oversee this wider work bringing proposals back to Scottish Ministers and Council Leaders. The forum could include legal support, a planning presence from SEPA, SNH, industry input and others as required and Scottish Government representation on planning, environmental quality and finance, in order to develop an authoritative source of information, advice and standards freely available at the point of delivery to relevant planning authorities. Its task would be to ensure that each part of the process that this report recommends, is supported and managed by those that have the appropriate skills to do so.

Recommendation 18

The sub-groups recommend the idea of a Coalfield Planning Officers Forum and development of further proposals in that respect.

Recommendation 19

That planning authorities follow the SEPA model on publishing inspection reports concerning opencast coal sites including monitoring and compliance reports ^[27] and that these are submitted to Scottish Ministers quarterly.

75. The sub-groups have considered further information about the structure of the skills and support that would improve compliance and monitoring whilst maintaining planning authority autonomy. It is acknowledged that expertise in a range of disciplines is required at the beginning of the application process and through the life of the consent with all that entails.

Consultation main finding

Recognising that some degree of variation to the approved working of a site is common as coaling progresses and with potential restoration cost implications, monitoring for compliance and re-evaluation of the financial guarantees is essential throughout the working life of sites. There is perceived to be a serious skills shortage within planning authorities to undertake such work; a number of options for the future require further consideration.

Sub-groups' discussion

If there is support amongst the planning authorities for independent advice, how it is commissioned and the extent to which such advice is actioned, its status needs to be clear. However the sub-groups recognise the challenge that conflicting views from consultees, the basis of any independent advice, the position of decision-takers at official and political levels may present. The sub-groups are clear that without legislative change there needs to be a way of securing that buy-in.

76. Scottish Government has provided Heads of Planning Scotland ( HOPS) - represented on our sub-groups, with £20,000 to provide minerals planning training in order to upskill the next generation. The Scottish Government is working with the Improvement Service to deliver training (which commenced in April 2015), primarily targeted at mid-career planners but also involving experienced officers. A further £40,000 was provided to HOPS in March 2015 focused on coal-specific support to:

• provide information on any existing or emerging shared services / joint working in planning
• consider innovative approaches to shared services / joint working more generally, and
• define required governance arrangements.

77. The initial training is being designed in co-operation with industry to comprise site visits, as well as facilitating inter-authority benchmarking and sharing of good practice. The second tranche will require HOPS to embark on the elements and detail of the better regulation project highlighted above, with a Scottish Government steer on expected outcomes. Given that experience in dealing with minerals applications can be fragmented over time and between authorities, training should be harmonised with HOPS' Energy and Resources sub-committee effort to explore the potential of a community of coalfield officers. This can include local authority environmental health officers who have a day-to-day role in regulating matters such as noise, dust and blasting. We will explore with HOPS whether this can be established as a sub-group of their Energy and Resources sub-committee and are investigating scope for Scottish Government to provide support to the group on a longer term basis.

78. In line broadly with the Scottish Government consultation's findings, HOPS has already identified 4 main skills gaps: 1 restoration and aftercare, 2 mine progress plans, 3 legal agreements and 4 financial guarantees.

79. Where any Coalfield Planning Officers Forum's experience develops it should draw in expertise on legal advice to enhance consistency of approach. A question remains about how to draw on other expertise such as mine engineering, quantity surveying and financial services but we believe the Improvement Service can also be asked to bring forward workable proposals or identify the barriers that require to be overcome. The main finding coming out of the skills discussion is about how to ensure advice provided by any independent support is adopted by the consenting authority. If support is to be pursued, its remit will need to be carefully thought through; positioning the weight given to its advisory role by individual planning authorities. That is something that will require further work as set out in recommendation 18. The HOPS skills gap analysis is key to any recommendation on securing a platform for better advice and its providers.

UPDATING SCOTTISH GOVERNMENT PLANNING ADVICE

2013 Consultation main finding

66% response and 97% support for an update to Planning Advice Note 64 - Reclamation of Surface Mineral Workings (2002).

Support for new advice on forms of acceptable financial guarantees.

Sub-groups' discussion

Broadly supported.

80. With such strong support, an update to PAN 64 will be required. Typically consultation on new planning advice does not undergo wide public consultation. However there will be greater interest in this revised advice than might otherwise be the case given the focus on the surface coal mine restoration legacy. It may be that only a partial revision and 're-brand' is required and in any event its role will be to support Scottish Planning Policy, not other regulatory regimes other than where necessary by appropriate signposting. Planning authorities feel that there is also a case for a review of Standards set out in PAN 50 'Controlling the Environmental Effects of Surface Mineral Working; and its 4 Annexes.

Recommendation 20

The sub-groups recommend that Scottish Government should bring forward draft revised Planning Advice Note 64 on reclamation of surface mineral workings during 2015 then conduct a 12 week public consultation.

Areas for inclusion may be processing agreements, standard conditions, templates for legal agreements, financial guarantees, a structure for community liaison and advice on the regulation of material and non-material variations.

COMMUNITY INVOLVEMENT

2013 Consultation main finding

Community liaison committees are already by and large custom and practice. 94% support for setting up committees prior to site commencement

Question about whether they can lead to more effective regulation.

Question about whether planning authorities could resource CLCs from within existing budgets but developers positive about making staff available.

Role for PAN64 to provide further advice.

Sub-groups' discussion

Communities will now have an even stronger view that they need to be involved in what happens in the future. From the community input to the sub-groups, one of the issues has been the differing ways that planning authorities involve communities affected and there is again no consistency across Scotland. What is clear is that communities need a more transparent view of what is going on and how it is being managed. While Local Groups can help, their history has not been always positive. However if our recommendation of mandatory multilateral pre-application consultation is accepted then community involvement is on firmer foundations and can be built into each situation.

Further discussion by sub-group representatives in April 2015 identified the importance of attending to a more structured approach to community liaison. For example it is important that a site visit is offered to CLCs over and above typical evening round-table meetings. Scottish Ministers will welcome periodic reporting on such engagement.

81. The Scottish Government sponsors the 'charette' approach to community involvement in connection with the Scottish Sustainable Communities Initiative ^[28] . While that is directed at design of new development, it suggests that there may be merit in gathering the coalfield communities of interest together to evaluate some of the recommendations in this report either in their development or once in place and in practice. There may be an opportunity for some support to take stock of the community involvement element of the enhancements to the planning process this report recommends, in respect of the ultimate goal of achieving full site restoration. It could for example be piloted with an existing CLC concerning the bedding down of new processes where relevant to a site in question. We propose to work potentially with an existing CLC, the Association of Community Councils, a volunteer planning authority or group of coalfield community interests to provide for consistency. It was suggested that a day be set aside for this in summer 2015. In relation to liaison committee meetings, current practice in some planning authorities ensures that CLCs are established as a requirement of the section 75 planning agreement and they may be the model nationally. Evolving practice is that the developer will pay for the meeting; it will be chaired by the planning authority and minuted. These records can be made public on websites. It will always be helpful to have the right representatives around the table including operators, landowners, agencies, the community council (where active) but also individuals. This can be promoted on operator or council websites constituted in such a way as to manage numbers.

Recommendation 21

The sub-groups support best practice on Community Liaison Committees ( CLCs) at every site or assemblage of adjacent sites and recommend that Scottish Government targets main stakeholders to ensure that they are consulted on draft Planning Advice on reclamation of surface mineral workings to promote a more structured approach on CLCs. Publishing of planning documents and monitoring compliance and inspection reports should also help communities to be more involved in what is going on. Engagement with communities should be structured around periodic site visits, formally minuted, made available publicly and reported to Scottish Ministers periodically but not less than annually.

Recommendation 22

Scottish Government Planning and Architecture Division will explore an opportunity for a 'community engagement' type project to research some of the multi-lateral proposals in this report.