Town and Country Planning (Scotland) Act 1997 (c. 8)

(The document as of February, 2008)

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(2) The first review of a suspension order shall be undertaken not more than 5 years from the date on which the order takes effect.

(3) Each subsequent review shall be undertaken not more than 5 years after the previous review.

(4) If a supplementary suspension order is in operation for any part of the area for which a suspension order is in operation, they shall be reviewed together.

(5) If a planning authority have made a supplementary suspension order which requires the taking of steps for the protection of the environment in substitution for all the steps required to be taken by a previous suspension order or supplementary suspension order, the authority shall undertake reviews of the supplementary suspension order in accordance with sub-paragraphs (6) and (7).

(6) The first review shall be undertaken not more than 5 years from the date on which the order takes effect.

(7) Each subsequent review shall be undertaken not more than 5 years after the previous review.

Old mining permissions

10 (1) In this paragraph and Part II of this Schedule, "old mining permission" means any planning permission for development--

(a) consisting of the winning and working of minerals, or

(b) involving the depositing of mineral waste,

which is deemed to have been granted by virtue of paragraph 77 of Schedule 22 to the 1972 Act (development authorised under interim development orders after 10th November 1943).

(2) An old mining permission shall, if an application under Part II of this Schedule to determine the conditions to which the permission is to be subject is finally determined, have effect as from the final determination as if granted on the terms required to be registered.

(3) If no such development has, at any time in the period of 2 years ending with 16th May 1991, been carried out to any substantial extent anywhere in, on or under the land to which an old mining permission relates, that permission shall not authorise any such development to be carried out after 24 January 1992 unless--

(a) the permission has effect in accordance with sub-paragraph (2), and

(b) the development is carried out after such an application is finally determined.

(4) An old mining permission shall--

(a) if no application for the registration of the permission is made under Part II of this Schedule, cease to have effect on the day following the last date on which such an application may be made, and

(b) if such an application is refused, cease to have effect on the day following the date on which the application is finally determined.

(5) An old mining permission shall, if--

(a) such an application is granted, but

(b) an application under Part II of this Schedule to determine the conditions to which the permission is to be subject is required to be served before the end of any period and is not so served,

cease to have effect on the day following the last date on which the application to determine those conditions may be served.

(6) Subject to sub-paragraph (3), this paragraph--

(a) shall not affect any development carried out under an old mining permission before an application under Part II of this Schedule to determine the conditions to which the permission is to be subject is finally determined or, as the case may be, the date on which the permission ceases to have effect, and

(b) shall not affect any order made or having effect as if made under paragraphs 1 to 9 and 11.

Resumption of mineral working after suspension order

11 (1) Subject to sub-paragraph (2), nothing in a suspension order or a supplementary suspension order shall prevent the recommencement of development consisting of the winning and working of minerals or involving the depositing of mineral waste at the site in relation to which the order has effect.

(2) No person shall recommence such development without first giving the planning authority notice of his intention to do so.

(3) A notice under sub-paragraph (2) shall specify the date on which the person giving the notice intends to recommence the development.

(4) The planning authority shall revoke the order if the winning and working of minerals or the depositing of mineral waste has recommenced to a substantial extent at the site in relation to which the order has effect.

(5) If the authority do not revoke the order before the end of the period of 2 months from the date specified in the notice under sub-paragraph (2), the person who gave that notice may apply to the Secretary of State for the revocation of the order.

(6) Notice of an application under sub-paragraph (5) shall be given by the applicant to the planning authority.

(7) If he is required to do so by the person who gave the notice or by the planning authority, the Secretary of State shall, before deciding whether to revoke the order, give him and the planning authority an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(8) If the Secretary of State is satisfied that the winning and working of minerals or the depositing of mineral waste has recommenced to a substantial extent at the site in relation to which the order has effect, he shall revoke the order.

(9) If the Secretary of State revokes an order by virtue of sub-paragraph (8), he shall give notice of its revocation--

(a) to the person who applied to him for the revocation, and

(b) to the planning authority.

Default powers of Secretary of State

12 (1) If it appears to the Secretary of State that it is expedient that any order should be made under paragraph 1, 3, 5 or 6, he may himself make such an order.

(2) Such an order made by the Secretary of State shall have the same effect as if it had been made by the planning authority and confirmed by the Secretary of State.

(3) The Secretary of State shall not make such an order without consulting the planning authority.

(4) Where the Secretary of State proposes to make an order under paragraph 1 he shall serve a notice of the proposal on the planning authority.

(5) The notice shall specify the period (which must not be less than 28 days from the date of its service) within which the authority may require an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.

(6) If within that period the authority so require, the Secretary of State shall, before making the order, give the authority such an opportunity.

(7) The provisions of this Schedule and of any regulations made under this Act with respect to the procedure to be followed in connection with the submission by the planning authority of any order under paragraph 1, 3, 5 or 6, as the case may be, its confirmation by the Secretary of State and the service of copies of it as confirmed shall have effect, subject to any necessary modifications, in relation to any proposal by the Secretary of State to make such an order by virtue of sub-paragraph (1), its making by him and the service of copies of it.

Part II Registration of Old Mining Permissions

Application for registration

13 (1) Any person who is an owner of any land to which an old mining permission relates, or is entitled to an interest in a mineral to which such a permission relates, may apply to the planning authority for the permission to be registered.

(2) The application must specify the development which the applicant claims is authorised by the permission, including the land to which the permission relates, and the conditions (if any) to which the permission is subject.

(3) The application must be served on the planning authority before the end of the period of 6 months beginning on 24 January 1992.

(4) On an application under this paragraph, the planning authority must--

(a) if they are satisfied that (apart from paragraph 10(3)) the permission authorises development consisting of the winning and working of minerals or involving the depositing of mineral waste, ascertain--

(i) the area of land to which the permission relates, and

(ii) the conditions (if any) to which the permission is subject,

and grant the application, and

(b) in any other case, refuse the application.

(5) Where--

(a) application has been made under this paragraph, but

(b) the planning authority have not given the applicant notice of their determination within the period of 3 months beginning with the service of notice of the application (or within such extended period as may at any time be agreed upon in writing between the applicant and the authority),

the application is to be treated for the purposes of paragraph 10 and this Part of this Schedule as having been refused by the authority.

Determination of conditions

14 (1) The conditions to which an old mining permission is to be subject--

(a) may include any conditions which may be imposed on a grant of planning permission for development consisting of the winning and working of minerals or involving the depositing of mineral waste,

(b) may be imposed in addition to, or in substitution for, any conditions ascertained under paragraph 13(4)(a), and

(c) must include a condition that the winning and working of minerals or depositing of mineral waste must cease not later than 21st February 2042.

(2) Where an application for the registration of an old mining permission has been granted, any person who is an owner of any land to which the permission relates, or is entitled to an interest in a mineral to which the permission relates, may apply to the planning authority to determine the conditions to which the permission is to be subject.

(3) The application must set out proposed conditions.

(4) The application must be served on the planning authority--

(a) after the date mentioned in sub-paragraph (5), and

(b) except where paragraph 10(3) applies, before the end of the period of 12 months beginning with that date or such extended period as may at any time be agreed upon in writing between the applicant and the authority.

(5) The date referred to in sub-paragraph (4) is--

(a) the date on which the application for registration is granted by the planning authority, if no appeal is made to the Secretary of State under paragraph 17, and

(b) in any other case, the date on which the application for registration is finally determined.

(6) On an application under this paragraph--

(a) the planning authority must determine the conditions to which the permission is to be subject, and

(b) if, within the period of 3 months beginning with the service of notice of the application (or within such extended period as may at any time be agreed upon in writing between the applicant and the authority) the authority have not given the applicant notice of their determination, the authority shall be treated for the purposes of paragraph 10 and this Part of this Schedule as having determined that the permission is to be subject to the conditions set out in the application.

(7) The condition to which an old mining permission is to be subject by reason of sub-paragraph (1)(c) is not to be regarded for the purposes of the planning Acts as a condition such as is mentioned in section 41(1)(b) (planning permission granted for a limited period).

(8) This paragraph does not apply to an old mining permission which has ceased to have effect since the application under paragraph 13 was granted.

Registration

15 (1) Where an application for the registration of an old mining permission is granted, the permission must be entered in the appropriate part of the register kept under section 36 and the entry must specify the area of land ascertained under paragraph 13(4)(a).

(2) Where an application to determine the conditions to which an old mining permission is to be subject is finally determined, the conditions must be entered in the appropriate part of that register.

(3) The matters required to be entered in the register under this paragraph must be entered as soon as reasonably practicable.

General provisions about applications

16 (1) An application under paragraph 13 or 14 is an application which is--

(a) made on an official form, and

(b) accompanied by an appropriate certificate.

(2) The applicant must, so far as reasonably practicable, give the information required by the form.

(3) Where the planning authority receive an application under paragraph 13 or 14, they must as soon as reasonably practicable give to the applicant a written acknowledgement of the application.

(4) Where the planning authority determine an application under either of those paragraphs, they must as soon as reasonably practicable give written notice of their determination to the applicant.

(5) An appropriate certificate is such a certificate--

(a) as would be required under sections 34 or 35 to accompany the application if it were an application for planning permission for development consisting of the winning and working of minerals or involving the depositing of mineral waste, but

(b) with such modifications as are required for the purposes of this Part of this Schedule.

(6) Sections 34(3) and (4) and 35(5) (offences) shall also have effect in relation to any certificate purporting to be an appropriate certificate.

Right of appeal

17 (1) Where the planning authority--

(a) refuse an application under paragraph 13, or

(b) in granting such an application, ascertain an area of land, or conditions, which differ from those specified in the application,

the applicant may appeal to the Secretary of State.

(2) Where, on an application under paragraph 14, the planning authority determine conditions that differ in any respect from the conditions set out in the application, the applicant may appeal to the Secretary of State.

(3) An appeal under this paragraph must be made by giving notice of appeal to the Secretary of State.

(4) In the case of an appeal under sub-paragraph (1), the notice must be given to the Secretary of State before the end of the period of 3 months beginning with the determination or, in the case of an application treated as refused by virtue of paragraph 13(5), beginning at the end of the period or extended period referred to in paragraph 13(5)(b).

(5) In the case of an appeal under sub-paragraph (2), the notice must be given to the Secretary of State before the end of the period of 6 months beginning with the determination.

(6) A notice of appeal under this paragraph is a notice which--

(a) is made on an official form, and

(b) is accompanied by an appropriate certificate.

(7) The appellant must, so far as reasonably practicable, give the information required by the form.

(8) Paragraph 16(5) and (6) shall apply for the purposes of sub-paragraph (7) as it applies for the purposes of paragraph 16(1).

Determination of appeal

18 (1) On an appeal under paragraph 17 the Secretary of State may--

(a) allow or dismiss the appeal, or

(b) reverse or vary any part of the decision of the planning authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to him in the first instance.

(2) Before determining such an appeal the Secretary of State must, if either the appellant or the planning authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.

(3) If at any time before or during the determination of such an appeal it appears to the Secretary of State that the appellant is responsible for undue delay in the progress of the appeal, he may--

(a) give the appellant notice that the appeal will be dismissed unless the appellant takes, within the period specified in the notice, such steps as are specified in the notice for the expedition of the appeal, and

(b) if the appellant fails to take those steps within that period, dismiss the appeal accordingly.

(4) The decision of the Secretary of State on such an appeal shall be final.

Reference of applications to Secretary of State

19 (1) The Secretary of State may give directions requiring applications under this Part of this Schedule to any planning authority to be referred to him for determination instead of being dealt with by the authority.

(2) The direction may relate either to a particular application or to applications of a class specified in the direction.

(3) Where an application is referred to him under this paragraph--

(a) subject to paragraph (b) and sub-paragraph (4), the following provisions of this Schedule--

(i) paragraph 13(1) to (4),

(ii) paragraph 14(1) to (6)(a), (7) and (8),

(iii) paragraphs 15 and 16, and

(iv) paragraphs 20 to 22,

shall apply, with any necessary modifications, as they apply to applications which fall to be determined by the planning authority,

(b) before determining the application the Secretary of State must, if either the applicant or the planning authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose, and

(4) Where an application under paragraph 13 is so referred to him, paragraph 14(5) shall apply as if for paragraphs (a) and (b) there were substituted "the date on which the application for registration is finally determined".

Two or more applicants

20 (1) Where a person has served an application under paragraph 13 or 14 in respect of an old mining permission--

(a) he may not serve any further application under the paragraph in question in respect of the same permission, and

(b) if the application has been determined, whether or not it has been finally determined, no other person may serve an application under the paragraph in question in respect of the same permission.

(2) Where--

(a) a person has served an application under paragraph 13 or 14 in respect of an old mining permission, and

(b) another person duly serves an application under the paragraph in question in respect of the same permission,

then for the purpose of the determination of the applications and any appeal against such a determination, this Part of this Schedule shall have effect as if the applications were a single application served on the date on which the later application was served and references to the applicant shall be read as references to either or any of the applicants.

Application of provisions relating to planning permission

21 (1) Subject to paragraph 15, section 36 and any provision of regulations or a development order made by virtue of that section shall have effect with any necessary modifications as if references to applications for planning permission included applications under paragraph 13 or 14.

(2) Where the planning authority are not the authority required to keep the register under that section, the planning authority must provide the authority required to keep the register with such information and documents as that authority requires to comply with paragraph 15 and with that section as applied by this paragraph.

(3) Sections 237 and 239 (validity of certain decisions and proceedings for questioning their validity) shall have effect as if the action mentioned in section 237(3) included any decision of the Secretary of State on an appeal under paragraph 17 or on an application referred to him under paragraph 19.

Interpretation

22 (1) In this Part of this Schedule--

"official form" means, in relation to an application or appeal, a document supplied by or on behalf of the Secretary of State for use for the purpose in question, and
"owner" in relation to any land means any person who under the Lands Clauses Acts would be enabled to sell and convey the land to the promoters of an undertaking and includes any person entitled to possession of the land as lessee under a lease the unexpired portion of which is not less than 7 years.

(2) For the purposes of paragraph 10 and this Part of this Schedule, an application under paragraph 13 or 14 is finally determined when the following conditions are met--

(a) the proceedings on the application, including any proceedings on or in consequence of an application under section 239, have been determined, and

(b) any time for appealing under paragraph 17, or applying or further applying under that section (where there is a right to do so), has expired.

Section 74.

SCHEDULE 9 Review of old mineral planning permissions

Interpretation

1 (1) In this Schedule--

"dormant site" means a Phase I or Phase II site in, on or under which no minerals development has been carried out to any substantial extent at any time in the period beginning on 22nd February 1982 and ending with 6th June 1995 otherwise than by virtue of a planning permission which is not a relevant planning permission relating to the site;
"first list", in relation to a planning authority, means the list prepared by them pursuant to paragraph 3;
"mineral site" has the meaning given by sub-paragraph (2);
"old mining permission" has the meaning given by paragraph 10(1) of Schedule 8;
"owner", in relation to any land, has the meaning given by paragraph 22(1) of Schedule 8;
"Phase I site" and "Phase II site" have the meaning given by paragraph 2;
"relevant planning permission" means any planning permission, other than an old mining permission or a planning permission granted by a development order, granted after 30th June 1948 for minerals development; and
"second list", in relation to a planning authority, means the list prepared by them pursuant to paragraph 4.

(2) For the purposes of this Schedule, but subject to sub-paragraph (3), "mineral site" means--

(a) in a case where it appears to the planning authority to be expedient to treat as a single site the aggregate of the land to which any two or more relevant planning permissions relate, the aggregate of the land to which those permissions relate, and

(b) in any other case, the land to which a relevant planning permission relates.

(3) In determining whether it appears to them to be expedient to treat as a single site the aggregate of the land to which two or more relevant planning permissions relate a planning authority shall have regard to any guidance issued for the purpose by the Secretary of State.

(4) Any reference (however expressed) in this Schedule to an old mining permission or a relevant planning permission relating to a mineral site is a reference to the mineral site, or some part of it, being the land to which the permission relates; and where any such permission authorises the carrying out of development consisting of the winning and working of minerals but only in respect of any particular mineral or minerals, that permission shall not be taken, for the purposes of this Schedule, as relating to any other mineral in, on or under the land to which the permission relates.

(5) For the purposes of this Schedule, a mineral site which is a Phase I site or a Phase II site is active if it is not a dormant site.

(6) For the purposes of this Schedule, working rights are restricted in respect of a mineral site if any of--

(a) the size of the area which may be used for the winning and working of minerals or the depositing of mineral waste,

(b) the depth to which operations for the winning and working of minerals may extend,

(d) the rate at which any particular mineral may be extracted,

(e) the rate at which any particular mineral waste may be deposited,

(f) the period at the expiry of which any winning or working of minerals or depositing of mineral waste is to cease, or

(g) the total quantity of minerals which may be extracted from, or of mineral waste which may be deposited on, the site,

is restricted or reduced in respect of the mineral site in question.

(7) For the purposes of this Schedule, where an application is made under paragraph 9 for the determination of the conditions to which the relevant planning permissions relating to the mineral site to which the application relates are to be subject, those conditions are finally determined when--

(a) the proceedings on the application, including any proceedings on or in consequence of an application under section 239, have been determined, and

(b) any time for appealing under paragraph 11(1), or applying or further applying under paragraph 9, (where there is a right to do so) has expired.

Phase I and II sites

2 (1) This paragraph has effect for the purposes of determining which mineral sites are Phase I sites, which are Phase II sites, and which are neither Phase I nor Phase II sites.

(2) A mineral site is neither a Phase I site nor a Phase II site where--

(a) all the relevant planning permissions which relate to the site have been granted after 21st February 1982, or

(b) some only of the relevant planning permissions which relate to the site have been granted after 21st February 1982, and the parts of the site to which those permissions relate constitute the greater part of that site.

(3) With the exception of those mineral sites which, by virtue of sub-paragraph (2), are neither Phase I nor Phase II sites, every mineral site is either a Phase I site or a Phase II site.

(4) Subject to sub-paragraph (2), where any part of a mineral site is situated within--

(a) a site in respect of which a notification under section 28 of the [1981 c. 69.] Wildlife and Countryside Act 1981 (sites of special scientific interest) is in force,

(b) an area designated as a National Scenic Area under section 262C of the 1972 Act, or

(c) an area designated as a Natural Heritage Area under section 6 of the [1991 c. 28.] Natural Heritage (Scotland) Act 1991,

that site is a Phase I site.

(5) Subject to sub-paragraphs (2) and (4), where--

(a) all the relevant planning permissions which relate to a mineral site, and which were not granted after 21st February 1982, were granted after 7th December 1969, or

(b) the parts of a mineral site to which relate such of the relevant planning permissions relating to the site as were granted after 7th December 1969 but before 22nd February 1982 constitute a greater part of the site than is constituted by those parts of the site to which no such relevant planning permission relates but to which a relevant planning permission granted on or before 7th December 1969 does relate,

the mineral site is a Phase II site.

(6) Every other mineral site, that is to say any mineral site other than one--

(a) which is, by virtue of sub-paragraph (2), neither a Phase I nor a Phase II site,

(b) which is a Phase I site by virtue of sub-paragraph (4), or

is a Phase I site.

(7) In ascertaining, for the purposes of sub-paragraph (2) or (5), whether any parts of a mineral site constitute the greater part of that site, or whether a part of a mineral site is greater than any other part, that mineral site shall be treated as not including any part of the site--

(a) to which an old mining permission relates, or

(b) which is a part where minerals development has been (but is no longer being) carried out and which has, in the opinion of the planning authority, been satisfactorily restored;

but no part of a site shall be treated, by virtue of paragraph (b), as being not included in the site unless the planning authority are satisfied that any aftercare conditions which relate to that part have, so far as relating to that part, been complied with.

The "first list"

3 (1) A planning authority shall, in accordance with the following provisions of this paragraph, prepare a list of mineral sites in their area (the "first list").

(2) A site shall, but shall only, be included in the first list if it is a mineral site in the area of the planning authority and is either--

(a) an active Phase I site,

(b) an active Phase II site, or

(3) In respect of each site included in the first list, the list shall indicate whether the site is an active Phase I site, an active Phase II site or a dormant site.

(4) In respect of each active Phase I site included in the first list, that list shall specify the date by which an application is to be made to the planning authority under paragraph 9.

(5) Any date specified pursuant to sub-paragraph (4) shall be a date--

(a) not earlier than the date upon which expires the period of 12 months from the date on which the first list is first advertised in accordance with paragraph 5, and

(b) not later than the date upon which expires the period of three years from the date upon which the provisions of this Schedule come into force.

(6) The preparation of the first list shall be completed before the day upon which it is first advertised in accordance with paragraph 5.

The "second list"

4 (1) A planning authority shall, in accordance with the following provisions of this paragraph, prepare a list of the active Phase II sites in their area (the "second list").

(2) The second list shall include each mineral site in the planning authority's area which is an active Phase II site.

(3) In respect of each site included in the second list, that list shall indicate the date by which an application is to be made to the planning authority under paragraph 9.

(4) Subject to sub-paragraph (5), any date specified pursuant to sub-paragraph (3) shall be a date--

(a) not earlier than the date upon which expires the period of 12 months from the date on which the second list is first advertised in accordance with paragraph 5, and

(b) not later than the date upon which expires the period of six years from the date upon which the provisions of this Schedule come into force.

(5) The Secretary of State may by order provide that sub-paragraph (4)(b) shall have effect as if for the period of six years referred to in that paragraph there were substituted such longer period specified in the order.

(6) The preparation of the second list shall be completed before the day upon which it is first advertised in accordance with paragraph 5.

Advertisement of the first and second lists

5 (1) This paragraph makes provision for the advertisement of the first and second lists prepared by a planning authority.

(2) The planning authority shall advertise each of the first and second lists by causing to be published, in each of two successive weeks, in one or more newspapers circulating in its area, notice of the list having been prepared.

(3) In respect of each of those lists, such notice shall--

(a) state that the list has been prepared by the authority, and

(b) specify one or more places within the area of the authority at which the list may be inspected, and in respect of each such place specify the times (which shall be reasonable times) during which facilities for inspection of the list will be afforded.

(4) In respect of the first list, such notice shall--

(a) be first published no later than the day upon which expires the period of three months from the date upon which the provisions of this Schedule come into force,

(b) explain the general effect of a mineral site being classified as a dormant site or, as the case may be, as an active Phase I site or an active Phase II site,

(c) explain the consequences which will occur if no application is made under paragraph 9 in respect of an active Phase I site included in the list by the date specified in the list for that site,

(d) explain the effects for any dormant or active Phase I or II site not included in the list of its not being included in the list and--

(i) set out the right to make an application to the authority for that site to be included in the list,

(ii) set out the date by which such an application must be made, and

(iii) state that the owner of such a site has a right of appeal against any decision of the authority upon such an application, and

(e) explain that the owner of an active Phase I site has a right to apply for postponement of the date specified in the list for the making of an application under paragraph 9, and set out the date by which an application for such postponement must be made.

(5) In respect of the second list, such notice shall--

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