Office of Public Sector Information
SCHEDULE 13 continued
(4) The mineral planning authority shall, no later than the date upon which the second list is first advertised in accordance with paragraph 5 above, serve notice in writing of the second list having been prepared on each person appearing to them to be the owner of any land, or entitled to an interest in any mineral, included within an active Phase II site included in the second list, but this sub-paragraph is subject to sub-paragraph (7) below.
(5) A notice required to be served by sub-paragraph (4) above shall—
(a) indicate that the mineral site in question is an active Phase II site; and
(b) indicate the date specified in the second list in relation to that site as the date by which an application is to be made to the mineral planning authority under paragraph 9 below;
(c) explain the consequences which will occur if such an application is not made by the date so specified; and
(d) explain the right to apply to have that date postponed, and indicate the date by which such an application must be made.
(6) Where, in relation to any land or mineral included in an active Phase II site, the mineral planning authority—
(a) has served notice on any person under sub-paragraph (4) above; and
(b) has received no application under paragraph 9 below from that person by the date falling eight weeks before the date specified in the second list as the date by which such applications should be made in respect of the site in question,
the authority shall serve a written reminder on that person, and such a reminder shall—
(i) comply with the requirements of sub-paragraph (5)(a) to (c) above; and
(ii) be served on that person on or before the date falling four weeks before the date specified in the second list in respect of that site as the date by which an application is to be made to the authority under paragraph 9 below.
(7) Sub-paragraph (1) or (4) above shall not require the mineral planning authority to serve notice under that sub-paragraph upon any person whose identity or address for service is not known to and cannot practicably, after reasonable inquiry, be ascertained by them, but in any such case the authority shall cause to be firmly affixed, to each of one or more conspicuous objects on the land or, as the case may be, on the surface of the land above the interest in question, a copy of the notice which they would (apart from the provisions of this sub-paragraph) have had to serve under that sub-paragraph on the owner of that land or interest.
(8) If, in a case where sub-paragraph (7) above applies, no person makes an application to the authority under paragraph 9 below in respect of the active Phase I or II site which includes the land or interest in question by the date falling eight weeks before the date specified in the first or, as the case may be, the second list as the date by which such applications should be made in respect of that site, the authority shall cause to be firmly affixed, to each of one or more conspicuous objects on the land or, as the case may be, on the surface of the land above the interest in question, a copy of the written reminder that would, in a case not falling within sub-paragraph (7) above, have been served under sub-paragraph (3) or (6) above.
(9) Where by sub-paragraph (7) or (8) above a copy of any notice is required to be affixed to an object on any land that copy shall—
(a) be displayed in such a way as to be easily visible and legible;
(b) be first displayed—
(i) in a case where the requirement arises under sub-paragraph (7) above, no later than the date upon which the first or, as the case may be, the second list is first advertised in accordance with paragraph 5 above; or
(ii) in a case where the requirement arises under sub-paragraph (8) above, no later than the date falling four weeks before the date specified in the first or, as the case may be, the second list in respect of the site in question as the date by which an application is to be made to the authority under paragraph 9 below; and
(c) be left in position for at least the period of 21 days from the date when it is first displayed, but where the notice is, without fault or intention of the authority, removed, obscured or defaced before that period has elapsed, that requirement shall be treated as having been complied with if the authority has taken reasonable steps for protection of the notice and, if need be, its replacement.
(10) In sub-paragraphs (7) and (8) above, any reference to a conspicuous object on any land includes, in a case where the person serving a notice considers that there are no or insufficient such objects on the land, a reference to a post driven into or erected upon the land by the person serving the notice for the purpose of having affixed to it the notice in question.
(11) Where the mineral planning authority, being required—
(a) by sub-paragraph (3) or (6) above to serve a written reminder on any person; or
(b) by sub-paragraph (8) above to cause a copy of such a reminder to be displayed in the manner set out in that sub-paragraph,
fail to comply with that requirement by the date specified for the purpose, they may at any later time serve or, as the case may be, cause to be displayed, such a written reminder and, in any such case, the date by which an application in relation to the mineral site in question is to be made under paragraph 9 below is the date upon which expires the period of three months from the date when the reminder was served or posted in accordance with the provisions of this sub-paragraph.
9 (1) Any person who is the owner of any land, or who is entitled to an interest in a mineral, may, if that land or mineral is or forms part of a dormant site or an active Phase I or II site, apply to the mineral planning authority to determine the conditions to which the relevant planning permissions relating to that site are to be subject.
(2) An application under this paragraph shall be in writing and shall—
(a) identify the mineral site to which the application relates;
(b) specify the land or minerals comprised in the site of which the applicant is the owner or, as the case may be, in which the applicant is entitled to an interest;
(c) identify any relevant planning permissions relating to the site;
(d) identify, and give an address for, each other person that the applicant knows or, after reasonable inquiry, has cause to believe to be an owner of any land, or entitled to any interest in any mineral, comprised in the site;
(e) set out the conditions to which the applicant proposes the permissions referred to in paragraph (c) above should be subject; and
(f) be accompanied by the appropriate certificate (within the meaning of sub-paragraph (3) or (4) below).
(3) For the purposes of sub-paragraph (2) above, as respects England and Wales the appropriate certificate is such a certificate—
(a) as would be required, under section 65 of the 1990 Act (notice etc. of applications for planning permission) and any provision of a development order made by virtue of that section, to accompany the application if it were an application for planning permission for minerals development, but
(b) with such modifications as are required for the purposes of this paragraph,
and section 65(6) of that Act (offences) shall also have effect in relation to any certificate purporting to be the appropriate certificate.
(4) For the purposes of sub-paragraph (2) above, the appropriate certificate is, as respects Scotland, each of the certificates which would be required, under or by virtue of sections 23 and 24 of the 1972 Act (notice etc. of applications for planning permission), to accompany the application if it were an application for planning permission for minerals development, but with such modifications as are required for the purposes of this paragraph; and sections 23(3) and 24(5) of that Act (offences) shall have effect in relation to any certificate purporting to be the appropriate certificate.
(5) Section 65 of the 1990 Act or, as respects Scotland, section 24 of the 1972 Act (by virtue of which a development order may provide for publicising applications for planning permission) shall have effect, with any necessary modifications, as if subsection (1) of that section also authorised a development order to provide for publicising applications under this paragraph.
(6) Where the mineral planning authority receive an application under this paragraph in relation to a dormant site or an active Phase I or II site they shall determine the conditions to which each relevant planning permission relating to the site is to be subject; and any such permission shall, from the date when the conditions to which it is to be subject are finally determined, have effect subject to the conditions which are determined under this Schedule as being the conditions to which it is to be subject.
(7) The conditions imposed by virtue of a determination under sub-paragraph (6) above—
(a) may include any conditions which may be imposed on a grant of planning permission for minerals development;
(b) may be in addition to, or in substitution for, any existing conditions to which the permission in question is subject.
(8) In determining that a relevant planning permission is to be subject to any condition relating to development for which planning permission is granted by a development order, the mineral planning authority shall have regard to any guidance issued for the purpose by the Secretary of State.
(9) Subject to sub-paragraph (10) below, where, within the period of three months from the mineral planning authority having received an application under this paragraph, 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 notice to the applicant of their decision upon the application, the authority shall be treated as having at the end of that period or, as the case may be, that extended period, determined that the conditions to which any relevant planning permission to which the application relates is to be subject are those specified in the application as being proposed in relation to that permission; and any such permission shall, from that time, have effect subject to those conditions.
(10) Where a mineral planning authority, having received an application under this paragraph, are of the opinion that they are unable to determine the application unless further details are supplied to them, they shall within the period of one month from having received the application give notice to the applicant—
(a) stating that they are of such opinion; and
(b) specifying the further details which they require,
and where the authority so serve such a notice the period of three months referred to in sub-paragraph (9) above shall run not from the authority having received the application but from the time when the authority have received all the further details specified in the notice.
(11) Without prejudice to the generality of sub-paragraph (10) above, the further details which may be specified in a notice under that sub-paragraph include any—
(a) information, plans or drawings; or
(b) evidence verifying any particulars of details supplied to the authority in respect of the application in question,
which it is reasonable for the authority to request for the purpose of enabling them to determine the application.
10 (1) This paragraph applies in a case where—
(a) on an application made to the mineral planning authority under paragraph 9 above in respect of an active Phase I or II site the authority determine under that paragraph the conditions to which the relevant planning permissions relating to the site are to be subject;
(b) those conditions differ in any respect from the proposed conditions set out in the application; and
(c) the effect of the conditions, other than any restoration or aftercare conditions, so determined by the authority, as compared with the effect of the conditions, other than any restoration or aftercare conditions, to which the relevant planning permissions in question were subject immediately prior to the authority making the determination, is to restrict working rights in respect of the site.
(2) In a case where this paragraph applies, the mineral planning authority shall, upon giving to the applicant notice of the conditions determined by the authority under paragraph 9 above, also give to the applicant notice—
(a) stating that the conditions determined by the authority differ in some respect from the proposed conditions set out in the application;
(b) stating that the effect of the conditions, other than any restoration or aftercare conditions, determined by the authority, as compared with the effect of the conditions, other than any restoration or aftercare conditions, to which the relevant planning permissions relating to the site in question were subject immediately prior to the making of the authority’s determination, is to restrict working rights in respect of the site;
(c) identifying the working rights so restricted; and
(d) stating whether, in the opinion of the authority, the effect of that restriction of working rights would be such as to prejudice adversely to an unreasonable degree—
(i) the economic viability of operating the site; or
(ii) the asset value of the site.
(3) In determining whether, in their opinion, the effect of that restriction of working rights would be such as is mentioned in sub-paragraph (2)(d) above, a mineral planning authority shall have regard to any guidance issued for the purpose by the Secretary of State.
(4) In this paragraph, “the applicant” means the person who made the application in question under paragraph 9 above.
11 (1) Where the mineral planning authority—
(a) on an application under paragraph 9 above determine under that paragraph conditions that differ in any respect from the proposed conditions set out in the application; or
(b) give notice, under paragraph (d) of paragraph 10(2) above, stating that, in their opinion, the restriction of working rights in question would not be such as to prejudice adversely to an unreasonable degree either of the matters referred to in sub-paragraphs (i) and (ii) of the said paragraph (d),
the person who made the application may appeal to the Secretary of State.
(2) An appeal under sub-paragraph (1) above must be made by giving notice of appeal to the Secretary of State before the end of the period of six months beginning with the date on which the authority give notice to the applicant of their determination or, as the case may be, stating their opinion.
12 (1) Subject to paragraph 8(11) above, where no application under paragraph 9 above in respect of an active Phase I or II site has been served on the mineral planning authority by the date specified in the first or, as the case may be, the second list as the date by which applications under that paragraph in respect of that site are to be made, or by such later date as may at any time be agreed upon in writing between the applicant and the authority, each relevant planning permission relating to the site shall cease to have effect, except insofar as it imposes any restoration or aftercare condition, on the day following the last date on which such an application may be made.
(2) The reference in sub-paragraph (1) above to the date specified in the first or, as the case may be, the second list as the date by which applications under paragraph 9 above are to be made in respect of any Phase I or II site is a reference to the date specified for that purpose in respect of that site in that list as prepared by the mineral planning authority or, where that date has been varied by virtue of any provision of this Schedule, to that date as so varied.
(3) Subject to sub-paragraph (4) below, no relevant planning permission which relates to a dormant site shall have effect to authorise the carrying out of minerals development unless—
(a) an application has been made under paragraph 9 above in respect of that site; and
(b) that permission has effect in accordance with sub-paragraph (6) of that paragraph.
(4) A relevant planning permission which relates to a Phase I or II site not included in the first list shall cease to have effect, except insofar as it imposes any restoration or aftercare condition, on the day following the last date on which an application under sub-paragraph (1) of paragraph 6 above may be made in respect of that site unless an application has been made under that sub-paragraph by that date in which event, unless the site is added to that list, such a permission shall cease to have effect when the following conditions are met—
(a) the proceedings on that application, including any proceedings on or in consequence of the application under section 288 of the 1990 Act or, as the case may be, section 233 of the 1972 Act, have been determined, and
(b) any time for appealing under paragraph 6(11) or (12) above, or applying or further applying under paragraph 6(1) above, (where there is a right to do so) has expired.
13 (1) The Secretary of State may give directions requiring applications under paragraph 9 above to any mineral planning authority to be referred to him for determination instead of being dealt with by the authority.
(2) Any such 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 the Secretary of State in accordance with such a direction—
(a) subject to paragraph (b) below, the following provisions of this Schedule—
(i) paragraph 9(6) and (7),
(ii) paragraph 10, and
(iii) paragraph 14 so far as relating to applications under paragraph 9 above,
shall apply, with any necessary modifications, as they apply to applications which fall to be determined by the mineral planning authority;
(b) before determining the application the Secretary of State must, if either the applicant or the mineral 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
(c) the decision of the Secretary of State on the application shall be final.
14 (1) Where a mineral planning authority has received from any person a duly made application under paragraph 7(1) or 9 above—
(a) that person may not make any further application under the paragraph in question in respect of the same site; and
(b) if the application has been determined, whether or not in the case of an application under paragraph 9 above it has been finally determined, no other person may make an application under the paragraph in question in respect of the same site.
(2) Where—
(a) a mineral planning authority has received from any person in respect of a mineral site a duly made application under paragraph 7(1) or 9 above; and
(b) the authority receives from another person a duly made application under the paragraph in question in respect of the same site,
then for the purpose of the determination of the applications and any appeal against such a determination, this Schedule shall have effect as if the applications were a single application received by the authority on the date on which the later application was received by the authority and references to the applicant shall be read as references to either or any of the applicants.
15 (1) This paragraph applies in a case where—
(a) an application made under paragraph 9 above in respect of an active Phase I or II site is finally determined; and
(b) the requirements of either sub-paragraph (2) or (3) below are satisfied.
(2) The requirements, referred to in sub-paragraph (1)(b) above, of this sub-paragraph are—
(a) that the conditions to which the relevant planning permissions relating to the site are to be subject were determined by the mineral planning authority;
(b) no appeal was made under paragraph 11(1)(a) above in respect of that determination or any such appeal was withdrawn or dismissed; and
(c) the authority gave notice under paragraph (d) of paragraph 10(2) above and either—
(i) that notice stated that, in the authority’s opinion, the restriction of working rights in question would be such as to prejudice adversely to an unreasonable degree either of the matters referred to in sub-paragraphs (i) and (ii) of the said paragraph (d); or
(ii) that notice stated that, in the authority’s opinion, the restriction in question would not be such as would so prejudice either of those matters but an appeal under paragraph 11(1) above in respect of the giving of the notice has been allowed.
(3) The requirements, referred to in sub-paragraph (1)(b) above, of this sub-paragraph are that the conditions to which the relevant planning permissions are to be subject were determined by the Secretary of State (whether upon an appeal under paragraph 11(1)(a) above or upon a reference under paragraph 13 above) and—
(a) in a case where those conditions were determined upon an appeal under paragraph 11(1)(a) above either—
(i) the mineral planning authority gave notice under paragraph (d) of paragraph 10(2) above stating that, in their opinion, the restriction of working rights in question would be such as to prejudice adversely to an unreasonable degree either of the matters referred to in sub-paragraphs (i) and (ii) of the said paragraph (d), or
(ii) the authority gave a notice under the said paragraph (d) stating that, in their opinion, the restriction in question would not be such as would so prejudice either of those matters but an appeal under paragraph 11(1)(b) above in respect of the giving of that notice has been allowed;
or
(b) in a case where those conditions were determined upon a reference under paragraph 13 above, the Secretary of State gave notice under paragraph (d) of paragraph 10(2) above stating that, in his opinion, the restriction of working rights in question would be such as to prejudice adversely to an unreasonable degree either of the matters referred to in sub-paragraphs (i) and (ii) of the said paragraph (d).
(4) In a case to which this paragraph applies—
(a) as respects England and Wales, Parts IV and XI of the 1990 Act, or
(b) as respects Scotland, Parts VIII and XI of the 1972 Act,
shall have effect as if an order made under section 97 of the 1990 Act or, as the case may be, section 42 of the 1972 Act, had been confirmed by the Secretary of State under section 98 of the 1990 Act or, as the case may be, section 42 of the 1972 Act at the time when the application in question was finally determined and, as so confirmed, had effect to modify those permissions to the extent specified in sub-paragraph (5) below.
(5) For the purposes of sub-paragraph (4) above, the order which is treated by virtue of that sub-paragraph as having been made under section 97 of the 1990 Act or section 42 of the 1972 Act is one whose only effect adverse to the interests of any person having an interest in the land or minerals comprised in the mineral site is to restrict working rights in respect of the site to the same extent as the relevant restriction.
(6) For the purposes of section 116 of the 1990 Act and section 167A of the 1972 Act and of any regulations made under those sections, the permissions treated as being modified by the order mentioned in sub-paragraph (4) above shall be treated as if they were planning permissions for development which neither consists of nor includes any minerals development.
16 (1) This paragraph applies to appeals under any of the following provisions of this Schedule—
(a) paragraph 6(11) or (12) above; or
(b) paragraph 11(1) above.
(2) Notice of appeal in respect of an appeal to which this paragraph applies shall be given on a form supplied by or on behalf of the Secretary of State for use for that purpose, and giving, so far as reasonably practicable, the information required by that form.
(3) Paragraph 6 of Schedule 2 to the 1991 Act (determination of appeals) shall, as respects England and Wales, apply to an appeal to which this paragraph applies as it applies to an appeal under paragraph 5 of that Schedule.
(4) As respects England and Wales, sections 284 to 288 of the 1990 Act (validity of certain decisions and proceedings for questioning their validity) shall have effect as if the action mentioned in section 284(3) of that Act included any decision of the Secretary of State—
(a) on an appeal to which this paragraph applies; or
(b) on an application under paragraph 9 above referred to him under paragraph 13 above.
(5) Paragraph 6 of Schedule 10A to the 1972 Act (determination of appeals) shall, as respects Scotland, apply to an appeal to which this paragraph applies as it applies to appeals under paragraph 5 of that Schedule.
(6) As respects Scotland, sections 231 to 233 of the 1972 Act (validity of certain decisions and proceedings for questioning their validity) shall have effect as if the action mentioned in section 231(3) included any decision of the Secretary of State—
(a) on an appeal to which this paragraph applies; or
(b) on an application under paragraph 9 above referred to him under paragraph 13 above.
(7) As respects Scotland, Schedule 7 to the 1972 Act shall apply to appeals to which this paragraph applies.
Environment Act 1995