Office of Public Sector Information
SCHEDULE 8 continued PART II continued
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.
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.
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,
(c) the height of any deposit of mineral waste,
(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.
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
(c) which is a Phase II site by virtue of sub-paragraph (5),
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.
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
(c) a dormant site.
(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.
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.
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—
(a) be first published no later than the day upon which expires the period of three years, or such longer period as the Secretary of State may by order specify, from the date upon which the provisions of this Schedule come into force, and
(b) explain the consequences which will occur if no application is made under paragraph 9 in respect of an active Phase II site included in the list by the date specified in the list for that site.
6 (1) Any person who is the owner of any land, or is entitled to an interest in a mineral, may, if that land or interest is not a mineral site included in the first list and does not form part of any mineral site included in that list, apply to the planning authority for that land or interest to be included in that list.
(2) An application under sub-paragraph (1) shall be made no later than the day upon which expires the period of three months from the day when the first list was first advertised in accordance with paragraph 5.
(3) Where the planning authority consider that—
(a) the land or interest is, or forms part of, any dormant or active Phase I or II site, they shall accede to the application, or
(b) part only of the land or interest is, or forms part of, any dormant or active Phase I or II site, they shall accede to the application so far as it relates to that part of the land or interest,
but shall otherwise refuse the application.
(4) On acceding, whether in whole or in part, to an application made under sub-paragraph (1), the planning authority shall amend the first list as follows—
(a) where they consider that the land or interest, or any part of the land or interest, is a dormant site or an active Phase I or II site, they shall add the mineral site consisting of the land or interest or, as the case may be, that part, to the first list and shall cause the list to indicate whether the site is an active Phase I site, an active Phase II site or a dormant site;
(b) where they consider that the land or interest, or any part of the land or interest, forms part of any mineral site included in the first list, they shall amend the entry in the first list for that site accordingly.
(5) Where the planning authority amend the first list in accordance with sub-paragraph (4), they shall also—
(a) in a case where an active Phase I site is added to the first list pursuant to sub-paragraph (4)(a), cause that list to specify, in respect of that site, the date by which an application is to be made to the planning authority under paragraph 9;
(b) in a case where—
(i) the entry for an active Phase I site included in the first list is amended pursuant to sub-paragraph (4)(b), and
(ii) the date specified in that list in respect of that site as the date by which an application is to be made to the planning authority under paragraph 9 is a date falling less than 12 months after the date upon which the authority make their decision upon the application in question,
cause that date to be amended so as to specify instead the date upon which expires the period of 12 months from the date on which the applicant is notified under sub-paragraph (10) of the authority’s decision upon his application.
(6) Any date specified pursuant to sub-paragraph (5)(a) shall be a date—
(a) not earlier than the date upon which expires the period of 12 months from the date on which the applicant is notified under sub-paragraph (10) of the planning authority’s decision upon his application, and
(b) not later than the later of—
(i) the date upon which expires the period of three years from the date upon which the provisions of this Schedule come into force; and
(ii) the date mentioned in paragraph (a).
(7) On acceding, whether in whole or in part, to an application made under sub-paragraph (1), the planning authority shall, if the second list has been first advertised in accordance with paragraph 5 prior to the time at which they make their decision on the application, amend the second list as follows—
(a) where they consider that the land or interest, or any part of the land or interest, is an active Phase II site, they shall add the mineral site consisting of the land or interest or, as the case may be, that part, to the second list;
(b) where they consider that the land or interest, or any part of the land or interest, forms part of any active Phase II site included in the second list, they shall amend the entry in that list for that site accordingly.
(8) Where the planning authority amend the second list in accordance with sub-paragraph (7), they shall also—
(a) in a case where an active Phase II site is added to the second list pursuant to sub-paragraph (7)(a), cause that list to specify, in respect of that site, the date by which an application is to be made to the authority under paragraph 9;
(b) in a case where—
(i) the entry for an active Phase II site included in the second list is amended pursuant to sub-paragraph (7)(b), and
(ii) the date specified in that list in respect of that site as the date by which an application is to be made to the authority under paragraph 9 is a date falling less than 12 months after the date upon which the authority make their decision upon the application in question,
cause that date to be amended so as to specify instead the date upon which expires the period of 12 months from the date on which the applicant is notified under sub-paragraph (10) of the authority’s decision upon his application.
(9) Any date specified pursuant to sub-paragraph (8)(a) shall be a date—
(a) not earlier than the date upon which expires the period of 12 months from the date on which the applicant is notified under sub-paragraph (10) of the planning authority’s decision upon his application, and
(b) not later than the later of—
(i) the date upon which expires the period of six years from the date upon which the provisions of this Schedule come into force, and
(ii) the date mentioned in paragraph (a).
(10) When a planning authority determine an application made under sub-paragraph (1), they shall notify the applicant in writing of their decision and, in a case where they have acceded to the application, whether in whole or in part, shall supply the applicant with details of any amendment to be made to the first or second list in accordance with sub-paragraph (4) or (8).
(11) Where a planning authority—
(a) refuse an application made under sub-paragraph (1), or
(b) accede to such an application only so far as it relates to part of the land or interest in respect of which it was made,
the applicant may by notice appeal to the Secretary of State.
(12) A person who has made such an application may also appeal to the Secretary of State if the planning authority have not given notice to the applicant of their decision on the application within eight weeks of their having received the application or within such extended period as may at any time be agreed upon in writing between the applicant and the authority.
(13) An appeal under sub-paragraph (11) or (12) must be made by giving notice of appeal to the Secretary of State before the end of the period of six months beginning with—
(a) in the case of an appeal under sub-paragraph (11), the determination, or
(b) in the case of an appeal under sub-paragraph (12), the end of the period of eight weeks mentioned in that sub-paragraph or, as the case may be, the end of the extended period mentioned in that sub-paragraph.
7 (1) Any person who is the owner of any land, or of any interest in any mineral, comprised in—
(a) an active Phase I site included in the first list, or
(b) an active Phase II site included in the second list,
may apply to the planning authority for the postponement of the date specified in that list in respect of that site as the date by which an application is to be made to the authority under paragraph 9 (in this paragraph referred to as “the specified date”).
(2) Subject to sub-paragraph (3), an application under sub-paragraph (1) shall be made no later than the day upon which expires the period of three months from the day when—
(a) in the case of an active Phase I site, the first list, or
(b) in the case of an active Phase II site, the second list,
was first advertised in accordance with paragraph 5.
(3) In the case of—
(a) an active Phase I site—
(i) added to the first list in accordance with paragraph 6(4)(a); or
(ii) in respect of which the entry in the first list was amended in accordance with paragraph 6(4)(b);
or
(b) an active Phase II site—
(i) added to the second list in accordance with paragraph 6(7)(a); or
(ii) in respect of which the entry in the second list was amended in accordance with paragraph 6(7)(b),
an application under sub-paragraph (1) shall be made no later than the day upon which expires the period of three months from the day on which notice was given under paragraph 6(10) of the planning authority’s decision to add the site to or, as the case may be, so to amend the list in question.
(4) An application under sub-paragraph (1) shall be in writing and shall—
(a) set out the conditions to which each relevant planning permission relating to the site is subject,
(b) set out the applicant’s reasons for considering those conditions to be satisfactory,
(c) set out the date which the applicant wishes to be substituted for the specified date, and
(d) be accompanied by the appropriate certificate.
(5) For the purposes of sub-paragraph (4)(d), the appropriate certificate is each of the certificates which would be required, under or by virtue of sections 34 and 35, 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 34(3) and (4) and 35(5) shall have effect in relation to any certificate purporting to be the appropriate certificate.
(6) Where the planning authority receive an application made under sub-paragraph (1)—
(a) if they consider the conditions referred to in sub-paragraph (4)(a) to be satisfactory they shall agree to the specified date being postponed in which event they shall determine the date to be substituted for that date,
(b) in any other case they shall refuse the application.
(7) Where the planning authority agree to the specified date being postponed they shall cause the first or, as the case may be, the second list to be amended accordingly.
(8) When a planning authority determine an application made under sub-paragraph (1), they shall notify the applicant in writing of their decision and, in a case where they have agreed to the postponement of the specified date, shall notify the applicant of the date which they have determined should be substituted for the specified date.
(9) Where, within three months of the planning authority having received an application under sub-paragraph (1), 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, under sub-paragraph (8), to the applicant of their decision upon the application, the authority shall be treated as—
(a) having agreed to the specified date being postponed, and
(b) having determined that the date referred to in sub-paragraph (4)(c) be substituted for the specified date,
and sub-paragraph (7) shall apply accordingly.
8 (1) The planning authority shall, no later than the date upon which the first list is first advertised in accordance with paragraph 5, serve notice in writing of the first 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 a mineral site included in the first list, but this sub-paragraph is subject to sub-paragraph (7).
(2) A notice required to be served by sub-paragraph (1) shall—
(a) indicate whether the mineral site in question is a dormant site or an active Phase I or II site, and
(b) where that site is an active Phase I site—
(i) indicate the date specified in the first list in relation to that site as the date by which an application is to be made to the planning authority under paragraph 9,
(ii) explain the consequences which will occur if such an application is not made by the date so specified, and
(iii) explain the right to apply to have that date postponed, and indicate the date by which such an application must be made.
(3) Where, in relation to any land or mineral included in an active Phase I site, the planning authority—
(a) have served notice on any person under sub-paragraph (1), and
(b) have received no application under paragraph 9 from that person by the date falling eight weeks before the date specified in the first 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) indicate that the land or mineral in question is included in an active Phase I site,
(ii) comply with the requirements of sub-paragraph (2)(b)(i) and (ii), and
(iii) be served on that person on or before the date falling four weeks before the date specified in the first list in respect of that site as the date by which an application is to be made to the authority under paragraph 9.
(4) The planning authority shall, no later than the date upon which the second list is first advertised in accordance with paragraph 5, 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).
(5) A notice required to be served by sub-paragraph (4) shall—
(a) indicate that the mineral site in question is an active Phase II site,
(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 planning authority under paragraph 9,
(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 planning authority—
(a) have served notice on any person under sub-paragraph (4), and
(b) have received no application under paragraph 9 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), 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.
(7) Sub-paragraph (1) or (4) shall not require the 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) applies, no person makes an application to the authority under paragraph 9 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), have been served under sub-paragraph (3) or (6).
(9) Where by sub-paragraph (7) or (8) 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), 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, or
(ii) in a case where the requirement arises under sub-paragraph (8), 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, 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 have taken reasonable steps for protection of the notice and, if need be, its replacement.
(10) In sub-paragraphs (7) and (8), 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 planning authority, being required—
(a) by sub-paragraph (3) or (6) to serve a written reminder on any person, or
(b) by sub-paragraph (8) 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 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.
Town and Country Planning (Scotland) Act 1997