Part I: Legislative Provisions
18. The intention is to lay Regulations - Town and Country Planning (Fees for Monitoring Surface Coal Mining Sites) (Scotland) Regulations 2017 (the "draft Regulations") before the Scottish Parliament setting out how certain components of the fees regime would operate. A copy of the draft regulations is provided in Annex A.
19. This part of the consultation paper explains the intention of the Scottish Government's proposed legislative provisions. The provisions are limited to those considered necessary to ensure planning authorities have the appropriate means to undertake monitoring visits whilst allowing for some level of flexibility and discretion to recognise that scrutiny levels may vary from site to site.
20. It is proposed that the following definitions are covered in the Regulations:
A. Surface coal mining permission;
B. Surface coal mining site;
C. Site Monitoring visit;
D. Monitoring report;
E. Active and inactive sites;
Question 1: Do you agree with the list definitions that are to be included in the Regulations?
Question 2: If not, on what basis do you disagree?
A Surface coal mining permission
21. The intention is to define " surface coal mining permission" as " planning permission for development consisting of the winning and working of coal and associated minerals, including the depositing of mineral waste, and the restoration and re-establishment of a beneficial after-use consisting of the planning permission certificate and planning conditions; associated with Section 75 legal agreements and restoration financial guarantee/s"
22. The "winning and working of minerals" is not defined in the Regulations or other planning legislation but has come to be known as the extraction and primary processing ( e.g. grading and crushing) of minerals. The "depositing of mineral waste" is defined in the Town and Country Planning (Scotland) Act 1997 as "any process whereby a mineral working deposit is created or enlarged and "depositing of refuse or waste materials" includes the depositing of mineral waste."
Question 3: Do you agree with the proposed definition of surface coal mining permissions?
Question 4: If not, what amendments do you consider necessary?
B Surface coal mining sites
23. The intention is to define " surface coal mining site" as " land to which either a single surface coal mining permission relates or the aggregate of land to which two or more permissions relate where the aggregate of the land is worked as a single site or would be treated as a single site for the purposes of a review under Schedules 9 or 10 of the Town and Country Planning (Scotland) Act 1997".
24. This definition provides the means to allow an area of land, irrespective of the number of planning permissions relating to it, to be defined as a single site, and therefore subject to a single monitoring visit. It is expected that the vast majority, if not all, of the surface coal mining sites to be monitored under this regime would be those where there are one or more specific planning permissions granted subject to a number of planning conditions. These sites may also have the benefit of limited permitted development rights, i.e. for ancillary working rights.
25. Some surface coal mining operations may rely for supply on one or more "satellite" sites at which coal is extracted and at which waste may be deposited. The resulting coal may then be sent to a dedicated processing facility for secondary treatment i.e. Wash plant. Some "satellite" sites may be active, whilst others may be held in reserve to be brought into production in the future.
26. Whether or not "satellite" sites should be grouped with the main extraction site and regarded as one mining site or several different mining sites depends upon factors such as:
- their location;
- their distance from each other and from the main extraction site;
- whether it is clear that the various sites form part of a co-ordinated surface coal mining operation; and
- whether it makes practical sense to monitor them all at the same time or separately.
27. In most cases, what constitutes a site should be clear from the planning history of the development. Ultimately it is for the planning authority to define the area of the site and the extant permissions to be monitored, having agreed with the operator the most appropriate and efficient aggregation of areas and permissions.
Question 5: Do you agree with the proposed definition of surface coal mining site?
Question 6: If not, what amendments do you consider necessary?
C Active and inactive sites
28. An " active site" is one where " development to which a surface coal mining permission relates or, other works to which a condition attached to the permission relates, is being carried out to any substantial extent". An inactive site is any other site and includes dormant sites.
29. An active site can therefore include those sites which are "mothballed" but may be subject to on-going restoration or aftercare. Fees will cease to be charged for monitoring visits on the completion of the period of aftercare required by a condition of the planning permission. An inactive site includes both a dormant surface coal mining site and a "mothballed" site where no restoration and aftercare is being carried out to any substantial extent. Where an active site is "mothballed" but subject to restoration works, then the site should receive fewer monitoring visits than an active site where mineral extraction or processing is being carried out.
30. Planning authorities would have to charge a reduced fee for monitoring visits to inactive sites and could only charge for one site visit in any twelve month period.
Question 7: Do you agree with the proposal to treat active and inactive sites differently with regards to the required frequency of monitoring visits?
Question 8: If not, do you consider they should be subject to the same level of monitoring and why?
D Site monitoring visit
31. The definition of site visit, in terms of the planning authority's existing powers to enter a site for enforcement purposes, is taken from Section 156 of the Town and Country Planning (Scotland) Act 1997. This states a site visit is restricted to those cases where a planning authority, or any person duly authorised in writing by a planning authority, enters the surface coal mining site to monitor compliance with planning control, to consider whether enforcement action should be taken, and to ensure compliance with any such action. Whilst the definition of a site visit provides the legal basis for officers entering a surface coal mining site, the rationale for monitoring visits is for authorities and operators to work together constructively to review compliance with permissions in the light of the stage of development reached and possible changing operational circumstances and needs. In this way problems can be avoided and formal enforcement action is less likely to be necessary.
32. Planning authorities undertaking a site visit should check compliance with surface coal mining permissions. Monitoring the alignment of the restoration financial guarantee with the progress through the coal mining operation is a specialist area requiring expertise. The monitoring report should contain sufficient information relating to the extent of the void (quantum of the void) created by the mining operations and overburden material stored for use in the final restoration that will enable an assessment of maximum financial exposure to be determined and ensure that the guarantee can provide sufficient resources in the event of a default. Those matters are best addressed by specialist compliance officers retained by the planning authority and funded by the operator. The site visit should also provide the opportunity to record any actual or potential material variations to working methods in order that the mine programme or progress plans can be amended and where necessary, new or amended financial guarantees secured. This can be seen as a de-risking exercise.
33. A fee is only payable when planning authorities enter a surface coal mining site for the purpose of monitoring compliance with surface coal mining permissions and a monitoring report identifying the outcome of any visit is provided to the operator within 10 working days of the visit. A "drive by" assessment or any assessment by a planning authority or appointed agent at a site which is not followed by entry to that site would not be deemed a site visit for which a fee is charged.
Question 9: Do you agree with the proposed definition of site monitoring visit?
Question 10: If not, what other definition do you consider necessary?
34. The fees regulations in England are not considered to provide an appropriate benchmark for the calculation of fees that would apply in Scotland. In England the current fee for a site visit is £331 where the whole or part of the site is active, or £110 in any other case. However, the true costs of undertaking the monitoring of surface mining sites exceeds £331. It is considered that a more appropriate fee level is £500 for a site visit where the whole or part of the site is active and £250 in any other case.
35. In the Scottish Government's view, this is considered the best approach for setting an appropriate fee levels in Scotland where the costs of monitoring sites is likely to vary considerably depending on the complexity of individual sites and length and complexity of associated legal agreement content and financial guarantees. The time invested in a site monitoring visit are outlined in the partial Business and Regulatory Impact Assessment that forms part of this consultation. The suggested fee level may or may not represent full cost-recovery of the monitoring process but needs to take into account the time spent on the visit, the size of the site, the seniority of the official making the visit and the time it takes to write up the monitoring report. A 'time sheet' is suggested at the end of the model form for a surface coal mine site visit (Annex C).
Question 11: Do you agree with the proposed fee levels?
Question 12: If not, what level do you consider to be appropriate?
Question 13: What mechanisms should be put in place to ensure that future fee levels recover the costs of planning authorities' monitoring functions?
F Who is liable to pay the fee?
36. Ownership and operation of mining sites can be complicated. There may be one or more owners of the land who may or may not also be owners of the extraction interest and who may or may not be the site operator. Planning permission may be sought by either an owner of the land or of the mineral interest, or an operator. It is also possible that there might be one or more operators with an interest in respect of a planning permission ( e.g. through subletting). Monitoring is intended to ensure compliance with operating conditions attached to permissions and with planning agreements. In addition, there is a need to ensure that no unauthorised development is taking place. As a result, the operator should pay the fee for the monitoring, even though it is possible that, in some cases, the permission will have been granted to a different person - e.g. the owner - and that it is the owner against whom the authority has ultimate sanction in enforcement proceedings.
37. The proposed definition of an "operator" confirms that a single operator of a surface coal mine is liable to pay the monitoring fee. Alternatively, where there is more than one operator on a site then the operator in overall control of the site, which may be the head lessee or head licensee, would be liable to pay the fee. In most cases, there is either one operator or one person in overall control of the site. For sites in multiple operation, any operator in overall control may choose to make separate arrangements for recouping a contribution towards the fees from subsidiary operators. Subsidiary operators include any person who is carrying out surface coal mining development but is not in overall control of the site.
38. The proposed definition of "operator" also confirms that if there is no person who falls within the definition of operator (as described above), liability to pay the monitoring fee rests with the owner.
Question 14: Do you agree with proposals to make the operator responsible, in the first instance, for paying the fee?
Question 15: If not, who in the first instance do you consider should pay the fee?
G Monitoring Reports
39. Better awareness of surface coal mining activity, and greater transparency of monitoring processes, is clearly in the public interest. Enhanced reporting processes are therefore proposed within the draft regulations which, define "monitoring report" as a report prepared by a planning authority setting out the results of a site visit. Regulation 5 connects the ability of a planning authority to charge a fee with the provision of a monitoring report to the operator within 10 days of the site visit. Regulation 4 requires the planning authority to provide a copy of this report to the Scottish Environment Protection Agency ( SEPA), the Coal Authority, the Health and Safety Executive and to the Scottish Ministers and to make it publicly available. Such reports should provide confirmation to operators of the outcome of site visits. Draft Regulation 3(1) confirms that the operator must pay the fee within 28 days of receipt of the monitoring report.
Question 16: Do you agree that monitoring reports should be issued within 10 days of the site visit to the parties set out above and that this should be the trigger for generating a fee paid by the operator?
Question 17: If not, what other time period do you suggest for submission of monitoring reports and what alternative mechanism for triggering a fee invoice do you recommend?