Part II: Draft Guidance on Implementing the Fees Regime
The Scottish Government intends to produce online guidance in 2017 to support the implementation of the Regulations. It is recognised that new legislation has to provide the necessary flexibility to allow planning authorities to take account of the different requirements for specific sites. This part of the paper therefore seeks views on what should be included in this guidance.
40. The Town and Country Planning (Fees for Monitoring Surface Coal Mining Sites) (Scotland) Regulations 2017 provide an important opportunity to secure improved arrangements for monitoring surface coal mining permissions. These permissions are generally subject to a considerable number of detailed conditions and associated legal agreements that are intended to control potentially negative impacts on neighbouring communities and the environment. Effective monitoring of conditions is necessary to ensure on-going operations are in line with the planning permission and to encourage high environmental standards. The associated legal agreements and financial guarantees for restoration purposes also require routine monitoring in order to ensure that they too are sufficient and capable of providing the necessary funds to undertake the restoration of the mining operations in the event of a default by the site operator.
41. The aim of the Regulations is to support the development of local procedures that promote a positive relationship between planning authorities, operators and communities. Regular site visits can support an atmosphere of on-going dialogue where issues can be discussed openly and constructively. This should enable difficulties to be addressed quickly and increase the potential for identifying and addressing any problems before they escalate and lead to conflict. Site specific measures should be tailored to individual sites but measures should always aim to put in place a systematic, documented, periodic and objective evaluation of how well each site is performing.
42. The Regulations do not prescribe how monitoring is to be undertaken in practice given that there is a need for flexibility to take into account of the specific circumstances of individual sites. The purpose of this guidance is to consider how the regime might work in order to achieve its purpose of securing good practice in undertaking monitoring. However, final decisions on implementing the scheme would rest locally with planning authorities and should be tailored to the specific requirements of individual sites. Planning authorities may wish, therefore, to produce their own guidance on local operational issues to supplement this more general guidance.
43. Prior to implementing the requirement of the new regulations, planning authorities should consider what internal staffing resources are necessary to enable effective monitoring to take place ( i.e. adapting existing staffing structures; changing the responsibilities of existing staff; employing new staff or appointing consultants). The Regulations do not prevent authorities from working jointly so that monitoring functions could be carried out by a team operating across planning authority boundaries. If an authority intends to appoint a private consultant to undertake monitoring, then fees that can be recovered from the operator would be capped at the level set out in the Regulations.
44. The Scottish Government is working with Heads of Planning Scotland and the local authority Improvement Service on training, joint working, benchmarking and options concerning the best use of available skills and expertise. Operators and local communities are entitled to expect that functions are carried out to a high standard and authorities should, therefore, consider the following good practice recommendations:
- authorities should regularly review the range of skills needed to monitor compliance effectively;
- monitoring should be undertaken by either planning authority staff or consultants with appropriate expertise and experience;
- senior staff should visit problem sites and be involved in discussions with operators;
- planning committee members should be given opportunities to accompany monitoring officers to give an appreciation of operational issues and what is involved in monitoring work;
- adequate supporting staff resources should be provided ( e.g. clerical and technical);
- specialist advice may need to be sought to monitor more complex issues such as noise, hydrology or landscape impacts;
- adequate powers should be delegated to officers to act promptly on breaches of planning control.
45. Early consideration should also be given to how best to involve local communities in the monitoring process. The need for doing so, including liaison and complaints mechanisms, is likely to vary from site to site and influenced by the presence of both formal and informal community groups representing the interests of those living nearby, including already established site liaison groups. The intention should be for local groups and individuals (including political representatives) to be aware of opportunities to contribute to the monitoring process. Such involvement should foster positive relationships between communities and operators which could be enhanced by providing opportunities for a community representative to attend site visits.
Question SG1: What guidance should be given on the arrangements needed to ensure effective structures and mechanisms are in place to support monitoring activities?
Agreeing the number of visits
46. Planning authorities should contact surface mining site operators to discuss and agree with them the number of visits to be undertaken annually and publicise that on local authority websites on their Planning homepage in an easily accessible and recognisable format. The following factors should be taken into account when agreeing this:
- size and type of development;
- number and complexity of conditions;
- number of issues, including any relevant Section 75 agreement or restoration financial guarantee that require monitoring;
- stage of development. For example, more frequent visits to surface coal mines are likely to be needed during initial site preparation ( e.g. construction of site access and wheel washing equipment, installation and commissioning of processing plant/offices), soil stripping and replacement and the creation of soil storage and screening mounds, restoration planting and the final removal of plant equipment on completion of restoration;
- progressive nature of working/restoration;
- sensitivity of sites in relation to local communities and environmental designations;
- breaches of planning control observed;
- complaints received for a site which has proven to be justified.
47. When discussing how these factors relate to individual sites, planning authorities may wish to consider adopting indicative thresholds to be applied for establishing the number of visits to all sites within their area. The consultation paper sets out the Scottish Government's recommendations for the initial number of site visits to be undertaken in the first year dependent on the phase of operation at individual sites. Authorities should consider sending their own guide to operators within their areas with an indication of how they propose to categorise their site. Clear reasons should be given and the operator's agreement to the assessment should be sought. The planning authority has ultimate responsibility for setting the number of visits. If an operator considers that they are being subjected to an excessive number, their recourse would be to follow the planning authority's complaints procedures. Where the operator is unhappy with the outcome, it may ask the Scottish Public Services Ombudsman to investigate.
48. When setting the number of annual site visits, past performance can be taken into account. Whilst it is only one of a number of factors that could be considered, it would clearly be justifiable for planning authorities to increase the number of visits in cases of serious and justifiable complaints, accidents, incidents or serious occurrences of non-compliance that arise throughout the year.
49. The number of annual site visits can be decreased or increased to take account of the outcome of visits. Planning authorities should consider undertaking more visits to sites where the risk of non-compliance is higher, or where operators fail to comply with certain planning conditions e.g. geotechnical instabilities requiring emergency remedial action, without agreement in advance with planning authorities. While the Regulations specify a maximum of 8 chargeable annual site visits to active sites (additional visits can be undertaken but fees would not be payable by the operator), it is likely that, on average, active sites should be inspected at least quarterly. However, the actual number of visits should be determined on the basis of an assessment of a number of factors. Consistently compliant sites should expect fewer visits than those sites where breaches of planning control have been a feature, including where complaints about operations have revealed a number of breaches of planning control.
50. More than 4 visits in a year would only be needed at particularly sensitive stages of a site's development, or where the authority has concerns about compliance. Minor breaches of control at an otherwise consistently compliant site would not normally attract an increased frequency of visits in the following year. A general guide on the recommended initial frequency of site visits is provided in Annex B.
51. Inactive sites require no more than one visit for which a fee will be payable each year. Any additional visits cannot be charged.
Question SG2: Is the proposed guidance on setting the number of site visits appropriate?
Question SG3: If not, what other guidance would you welcome?
Reduction in number of site visits
52. Section 24 of the Planning etc. (Scotland) Act 2006 introduced provisions relating to good neighbour agreements ( GNAs). These are voluntary agreements entered into by operators and community bodies and in some instances individuals. Although GNAs do not remove the need for effective monitoring of planning conditions they could be considered as relevant when setting the number of annual visits and be used to reaffirm the operator's obligations in relation to the community and to ensure that local people have an on-going role in site activities. These objectives are consistent with the Scottish Government's desire for engagement between communities and operators; delivering higher environmental standards; and providing communities with the capacity to resolve local issues. In such circumstances, good neighbour agreements may be able to provide local communities with a transparent and accountable route that gives important reassurances that site activities comply with planning permissions.
53. Many operators belong to trade associations which require their members to adhere to Environmental Codes of Practice. Many larger minerals companies also operate Environmental Management Schemes both for their organisations and for individual operations for example ISO 14001  accreditation with schemes such as these should be considered a relevant factor when agreeing the number of annual monitoring visits. The Scottish Government supports these initiatives.
Question SG4: Should the annual number of site visits be reduced if good neighbour agreements and/or self-regulating schemes such as ISO 14001 are in place?
Question SG5: If so, please explain your reasoning and recommendation.
54. Fees are chargeable for site visits to monitor surface coal mining permissions (from their initial implementation to the end of the period of aftercare required by a condition of the planning permission) and any planning agreements or restoration financial guarantees relating to:
- the winning and working of coal by surface mining methods and associated ancillary operations.
55. The amount of time spent on monitoring a site can depend on the number and type of planning conditions or aspect of the operations that are being monitored. Individual visits may be tailored to monitor specific aspects of operations but, over the year, planning authorities should ensure that all the following (where applicable) are monitored:
- all planning conditions;
- development permitted under the provisions of the Town and Country Planning (General Permitted Development) (Scotland) Order 1995;
- the operation of mining waste facilities;
- planning agreements;
- good neighbour agreements;
- the adequacy of the financial guarantee to address restoration;
- compliance with Environmental Management Schemes such as ISO 14001;
- boundary limits;
56. Planning authorities should ensure appropriate arrangements are in place to avoid as far as possible duplication with the responsibilities of the Scottish Environment Protection Agency and the Health and Safety Executive. The assumption should be that other control regimes are being properly applied and enforced and should not be controlled or monitored using planning conditions. Operators should not be billed twice for monitoring the same matters. This may require liaison between planning authority and SEPA to ensure that there is no duplication of regulatory control or monitoring effort.
57. The final annual visit should include a meeting to discuss operational progress over the year and to set the number of chargeable monitoring visits for the following year.
Question SG6: Is the proposed guidance on monitoring appropriate?
Question SG7: If not, what do you consider would be appropriate?
58. A written site monitoring report should be completed by the planning authority and sent to the operator after every visit. The draft Regulations require that site visit reports must be made available to the operator within 10 days of the inspection visit and subsequently made available to the Scottish Environment Protection Agency, the Coal Authority, the Health and Safety Executive and to the Scottish Ministers within a further 10 days. Thereafter they should be publicly available. This can be achieved routinely on local authority website planning pages. The report should detail the matters reviewed, the points arising, including identifying agreed improvements in working practices, any breaches of conditions, and the action required by both the operator and the planning authority, including timescales.
59. In most cases therefore the site visit report should be available to the public (allowing for 5 working days to upload onto websites) no more than 25 days in arrears from the date of the site visit.
60. The completion of a proforma may be appropriate. A suggested model form for a surface coal mine site is provided at Annex C. Where a red, amber, green code is used to indicate what action can be taken, a description of the actions and timing underlying red and amber factors should be given. For example if enforcement action, such as a stop notice is intended it should be clear that red indicates immediate action. Amber might indicate an activity would most likely occur within a month or on the next available committee cycle. Whatever is chosen, it should be clear to the reader what parameters apply to proposed actions.
Question SG8: Is the proposed guidance on reporting appropriate?
Question SG9: If not, what do you consider would be appropriate?
61. A fee for a site visit should only be charged after the visit has occurred. A monitoring report should be provided to the operator within 10 days of the site visit. The fee should be paid by the operator within 28 days of receipt of the monitoring report. All local authorities should have established procedures for taking action against those who default on required payments and these should be used in relation to non-payment of monitoring fees. If an invoice is not issued within 28 days of the issue of the monitoring report then the planning authority is effectively waiving the right to charge a fee.
Question SG10: Is the proposed guidance on invoicing appropriate?
Question SG 11: If not, what do you consider would be appropriate?