Planning - unauthorised EIA development - time limits for enforcement action: consultation

1. Introduction

1.1. The Scottish Government is inviting comments on proposals to disapply Section 124 of the Town and Country Planning (Scotland) Act 1997 (‘the 1997 Act’) concerning the time limits for taking enforcement action on unauthorised development which requires an Environmental Impact Assessment (‘EIA’).

1.2. This consultation follows a case of unauthorised development in Northern Ireland for which an EIA was required, but not undertaken. The need for EIA was only identified after the time limit for enforcement had expired and the development was immune from enforcement action. As the Scottish planning system is similar to the system in Northern Ireland, the Scottish Government considers it is possible, although unlikely, that a similar situation could arise in Scotland.

Environmental Impact Assessment (EIA)

1.3. EIA is a means of drawing together, in a systematic way, the likely significant effects of development proposals on the environment. In this way, EIA aims to ensure the predicted effects of development proposals, and the scope for reducing any adverse effects or enhancing positive effects, are properly understood by the public and the planning authority before it makes its decision. The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 set out the procedures that must be followed.

1.4. EIA is required for development proposals considered likely to have a significant effect on the environment by virtue of the nature, scale, or location of the proposal. Consequently, only a very small proportion of development in Scotland for which a planning application is required will require an EIA. Early engagement with the relevant planning authority, including around the need for an EIA, as well as on the scope of any assessment, are a feature of the process and consequently the likelihood of an unauthorised development requiring EIA is considered to be low.

1.5. The EIA Regulations contain “assimilated law” which is the new name for the law which originated from EU obligations and has been retained following EU exit. The proposal to disapply the time limits for taking enforcement action for unauthorised EIA Development, would not impact on Scotland’s regulatory standards around EIA. In fact, it could be considered as a strengthening, ensuring we are protecting our environment from unauthorised EIA development and ensuring such developments should not become lawful, without consideration of the likely significant environmental effects.

Aarhus Convention

1.6. The Aarhus Convention is an international treaty under the United Nations Economic Commission for Europe (UNECE). The UK ratified the Convention in 2005. The Convention contains three pillars - providing the public with access to information; participation in decision making; and, access to justice in environmental matters.

1.7. The Aarhus Convention Compliance Committee (ACCC) was established by the Convention’s decision-making body, the Meeting of the Parties (MOP), to review and monitor compliance by the Parties with their obligations under the Convention.

1.8. This consultation concerns relevant findings of the Aarhus Convention Compliance Committee in Decision VII/8s about an unauthorised EIA development in Northern Ireland, for which an EIA was not undertaken but which was retrospectively granted planning permission.

With regards to the case in Northern Ireland, the ACCC recommended that decisions to permit certain activities, outlined in the Aarhus Convention and likely to have a significant effect on the environment, should not be taken after the activity has commenced or has been constructed, save in highly exceptional cases and subject to strict and defined criteria. Paragraph 3.1 below addresses this point further.

1.9. In Scotland, provisions for an appeal, through planning enforcement, which might have previously provided a route for a retrospective grant of planning permission without a planning application first being made, were removed in 2009. Consequently, there are 2 routes for unauthorised development, including unauthorised EIA Development, to become lawful.

1.10. The first route would be through submission of a retrospective planning application, this would however include all relevant statutory EIA procedures where applicable. As with any planning application, the outcome of a retrospective application would be to grant planning permission, grant permission subject to conditions, or to refuse planning permission. Further information on enforcement powers available to planning authorities is set out in paragraphs 1.13 to 1.19 below.

1.11. There is a second route which could theoretically occur following an application to the relevant planning authority for a certificate of lawful use or development (CLUD) on grounds of immunity from enforcement action due to the time period elapsed. This route is discussed further below, and proposals to remove such immunity for EIA development form the focus of this consultation.

Certificate of Lawful Use or Development (CLUD)

1.12. The CLUD procedure provides a mechanism for establishing the planning status of land; i.e., whether an existing or proposed use or development is considered lawful for planning purposes. To be considered lawful for the purposes of obtaining a CLUD for an existing use or development the applicant would need to demonstrate beyond reasonable doubt that either

i. the development did not require planning permission, or

ii. benefitted from permitted development rights which granted planning permission, or

iii. that it was immune from enforcement action to remediate any negative impacts on amenity or the environment due to the time period elapsed since the use or development first occurred.

1.13. It is already the case that an EIA development could not benefit from a CLUD on grounds i) or ii) above. Permitted development rights generally are disapplied where development is EIA development^[1]. As set out below, however, it is theoretically possible under current planning legislation for EIA development to gain immunity from enforcement action due to the time period elapsed since the use or development first occurred. We are therefore consulting on the proposal to remove this possibility in line with the ACCC recommendation. The Scottish Government committed, in our response^[2] to the ACCC of 13 October 2023, to consult on proposals to amend the relevant legislation. This consultation meets that commitment and sets out proposals for changes to Section 124 of the 1997 Act.

Enforcement against breaches of planning control

1.14. Planning legislation sets out a range of enforcement powers available to planning authorities to enable them to act against breaches of planning control and remediate the impacts of unauthorised development, including unauthorised EIA development. These powers are extensive and include powers to;

• require the immediate cessation of any activity that breaches planning control,
• require the removal of any unauthorised development and restoration of the site to its original condition

1.15. A breach of planning control is defined as being either;

• The carrying out of development without the appropriate planning permission, or
• failing to comply with any condition or limitation subject to which any planning permission has been granted.

1.16. Formal enforcement action involves the issue of a notice to the landowner or developer. This may be a notice requiring a retrospective planning application to be made, an enforcement notice, or a breach of condition notice. The relevant planning authority must consider each case on its merits and decide on the most appropriate solution.

1.17. Should the landowner or other responsible person fail to undertake any remedial action or cessation of activities required by planning enforcement the planning authority has powers to seek prosecution. Provisions in the Planning (Scotland) Act 2019 require the Courts to take account of any benefit, financial or otherwise, that may have arisen from the unauthorised development in setting any penalty on conviction.

1.18. Planning authorities also have powers, in the event of non-compliance with any requirements of a planning enforcement notice, to take direct action to access the site and carry out any remedial works required by the notice. The authority also has powers to recover the costs of such action. Direct action can be taken alongside prosecution through the Courts.

1.19. As previously set out, under the Town and Country Planning (Scotland) Act 1997 planning authorities can accept and determine applications for planning permission where the development has already commenced or been completed. Such retrospective applications are determined in the same manner as any other planning application, this includes applying procedures for undertaking EIA where appropriate.

1.20. Guidance on the various enforcement powers available to planning authorities is set out in the Scottish Government Planning Circular 10/2009: Planning Enforcement

Time limits for enforcement action

1.21. The use of any enforcement powers has to be taken within specified periods of time from when the breach of planning control originally occurred. The time periods are set out in Section 124 of The Town and Country Planning (Scotland) Act 1997). The time periods are;

• Where the breach consists of carrying out any building, engineering, mining or other operations without planning permission, four years,
• Where the breach consists of a change of use of any building to a single dwellinghouse, four years.
• Where the breach consists of any other change of use of land or buildings, ten years.

1.22. Where the above periods have expired in relation to any unauthorised development, the development becomes immune from planning enforcement action. This means that enforcement action cannot be taken against a breach of planning control where it can be demonstrated that the development in question meets the relevant time threshold; as previously indicated, this could include any unauthorised EIA development