Office of Public Sector Information
SCHEDULE 9 continued
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 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) should be subject, and
(f) be accompanied by the appropriate certificate.
(3) For the purposes of sub-paragraph (2), 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.
(4) Section 35 shall have effect, with any necessary modifications, as if subsection (1) also authorised a development order to provide for publicising applications under this paragraph.
(5) Where the 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.
(6) The conditions imposed by virtue of a determination under sub-paragraph (5)—
(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.
(7) 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 planning authority shall have regard to any guidance issued for the purpose by the Secretary of State.
(8) Subject to sub-paragraph (9), where, within the period of three months from the 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.
(9) Where a 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 (8) 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.
(10) Without prejudice to the generality of sub-paragraph (9), 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 planning authority under paragraph 9 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 planning authority shall, upon giving to the applicant notice of the conditions determined by the authority under paragraph 9, 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), a 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.
11 (1) Where the planning authority—
(a) on an application under paragraph 9 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 10(2)(d), 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 paragraph 10(2)(d)(i) and (ii),
the person who made the application may appeal to the Secretary of State.
(2) An appeal under sub-paragraph (1) 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), where no application under paragraph 9 in respect of an active Phase I or II site has been served on the 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 in so far 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) 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 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 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), 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 in respect of that site, and
(b) that permission has effect in accordance with paragraph 9(5).
(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 in so far 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 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 239, have been determined, and
(b) any time for appealing under paragraph 6(11) or (12), or applying or further applying under paragraph 6(1), (where there is a right to do so) has expired.
13 (1) The Secretary of State may give directions requiring applications under paragraph 9 to any 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), the following provisions of this Schedule—
(i) paragraph 9(5) and (6),
(ii) paragraph 10, and
(iii) paragraph 14 so far as relating to applications under paragraph 9,
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
(c) the decision of the Secretary of State on the application shall be final.
14 (1) Where a planning authority have received from any person a duly made application under paragraph 7(1) or 9—
(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 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 planning authority have received from any person in respect of a mineral site a duly made application under paragraph 7(1) or 9, and
(b) the authority receive 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 in respect of an active Phase I or II site is finally determined, and
(b) the requirements of either sub-paragraph (2) or (3) are satisfied.
(2) The requirements 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 planning authority,
(b) no appeal was made under paragraph 11(1)(a) in respect of that determination or any such appeal was withdrawn or dismissed, and
(c) the authority gave notice under paragraph 10(2)(d) 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 paragraph 10(2)(d)(i) and (ii), 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) in respect of the giving of the notice has been allowed.
(3) The requirements 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) or upon a reference under paragraph 13) and—
(a) in a case where those conditions were determined upon an appeal under paragraph 11(1)(a) either—
(i) the planning authority gave notice under paragraph 10(2)(d) 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 paragraph 10(2)(d)(i) and (ii), or
(ii) the authority gave a notice under paragraph 10(2)(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) 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, the Secretary of State gave notice under paragraph 10(2)(d) 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 paragraph 10(2)(d)(i) and (ii).
(4) In a case to which this paragraph applies Parts IV and X of this Act shall have effect as if an order made under section 65 had been confirmed by the Secretary of State under section 66 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).
(5) For the purposes of sub-paragraph (4), the order which is treated by virtue of that sub-paragraph as having been made under section 65 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 Schedule 13 and of any regulations made under that Schedule, the permissions treated as being modified by the order mentioned in sub-paragraph (4) 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 paragraph 6(11) or (12) or 11(1).
(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 18 of Schedule 8 shall apply to an appeal to which this paragraph applies as it applies to appeals under paragraph 17 of that Schedule.
(4) Sections 237 to 239 shall have effect as if the action mentioned in section 237(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 referred to him under paragraph 13.
(5) Schedule 4 shall apply to appeals to which this paragraph applies.
Town and Country Planning (Scotland) Act 1997