3 Regulatory and planning framework for transportation
This chapter presents a strategic review of the planning and regulatory framework relating to the impact, assessment and control of transport matters as they may apply to UOG developments in Scotland.
The regulatory framework for managing UOG development in Scotland was set out in guidance produced by the then Department for Energy and Climate Change ( DECC) in 2013  ( DECC now forms part of the Department for Business, Energy and Industrial Strategy). This guidance includes the "roadmap" which is reproduced as Figure 3 below.
Figure 3: DECC Roadmap for Regulation and permitting of UOG Development in Scotland
The part that concerns transport and potential community-level impacts is controlled by the planning system which is represented by the blue coloured boxes within the roadmap figure. Additionally, other regulatory requirements may also have an indirect impact on transport and associated impacts. For example, discharge consents issued under the Water Environment (Controlled Activities) (Scotland) Regulations 2011 (more commonly known as the Controlled Activity Regulations, CAR) may require flow back or produced water to be sent off site for treatment and disposal, with associated transport requirements. Alternatively, discharge consents may provide for treatment and discharge on site, which would result in fewer movements of vehicles for removal of wastes.
On 28 January 2015, the Scottish Government announced a moratorium on environmental and planning consents for all UOG development. Given the moratorium and the relative infancy of UOG developments in Scotland there is no specific regulatory or planning framework currently in place. This strategic review therefore considers existing development planning legislation and guidance which may provide the basis for assessing traffic impacts associated with UOG development and includes the following sources:
National Planning Context
- The Town & Country Planning (Scotland) Act 1997 / Planning etc. (Scotland) Act 2006
- Scottish Government 'National Planning Framework 3' 2014
- Scottish Government 'Scottish Planning Policy' 2014
Regional and Local Planning Framework
- Strategic Development Plans
- Local Development Plans
Environmental Impact Assessment Framework
- Environmental Impact Assessment Scotland Regulation 2011
- Institute of Environmental Assessment ( IEA) now the Institute of Environmental Management and Assessment, Guidance Notes No. 1: 'Guidelines for the Environmental Assessment of Road Traffic' 1993
- Institution of Highways and Transportation ( IHT) publication 'Guidelines for Traffic Impact Assessment' 1997
Development Management and Control
- Scottish Government Planning Circular 3/2013 ' Development Management Procedures'
- Transport Scotland 'Development Planning and Management Transport Appraisal Guidance ( DPMTAG) 2011
- Transport Scotland 'Transport Assessment Guidance' 2012
3.3 The Town & Country Planning Scotland (Act) 1997 / Planning etc. (Scotland) Act 2006
The Town & County Planning Scotland (Act) is the basis for the planning system and sets out the roles of Scottish Ministers and local authorities with regard to development plans, development management and enforcements. The Act was amended by the Planning etc. (Scotland) Act 2006.
The planning system in Scotland is 'plan-led' and the aforementioned Acts represent the legislation that creates the planning system.
The Town & County Planning Scotland (Act) notes that
'.."development" means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land' and that planning permission is required ' for the carrying out of development on land'.
UOG development would therefore accord with this definition of "development" and would require planning permission. The Planning etc. (Scotland) Act 2006 extends the definition of "development" to include fish farming.
When compared with The Town & Country Planning Scotland (Act) 1997 the key changes associated with The Planning etc. (Scotland) Act include the introduction of the National Planning Framework, a greater emphasis on consultation and development plans.
Figure 4 and the following paragraphs summarise the context of the planning system and how it may apply to UOG developments.
Figure 4: Summary of planning framework
3.4 National Planning Framework ( NPF) 3
NPF 3 is the statutory spatial expression of the Scottish Government's Economic Strategy and contains plans for investment in infrastructure. NPF 3 brings together 'plans and strategies in economic development, regeneration, energy, environment, climate change, transport and digital infrastructure to provide a coherent vision of how Scotland should evolve over the next 20 to 30 years'.
NPF 3, along with Scottish Planning Policy, applied at national, strategic and local levels provides a national vision of the expectations of the planning system and the outcomes to be delivered for Scottish people. The vision for Scotland is of:
- A successful, sustainable place;
- A low carbon place;
- A natural, resilient place; and
- A connected place.
NPF 3 identifies National Developments (decided by Scottish Ministers). National Developments are identified as they are needed to deliver the overall spatial strategy for Scotland. UOG development is not identified in NPF 3.
With regard to transport, NPF 3 sets out a spatial strategy which is intended to consider and deliver sustainable transport links and routes between key cities and rural areas while setting out a programme for investment in transport infrastructure, particularly a decarbonised transport sector. An ambitious programme for investment is proposed including the Forth Replacement Crossing, M8 / M73 / M74 upgrade schemes and freight enhancements.
The strategy, actions and developments set out in NPF 3 are expected to be considered in strategic and local development plans, which are discussed in more detail in this chapter.
3.5 Scottish Planning Policy ( SPP)
SPP complements the vision for Scotland identified in NPF 3 and 'is a statement of Scottish Government policy on how nationally important land use planning matters should be addressed across the country'.
SPP introduces a policy presumption in favour of development that contributes to sustainable development and sets out planning priorities for the operation of the planning system. SPP is part of a series of planning and architecture documents which are material considerations in the planning system. Other planning policy documents include Planning Circulars, NPF, Creating Places, Designing Streets and Planning Advice Notes. All planning policy and guidance documents with the exception of NPF 3 are non-statutory.
The planning system provides the opportunity for everyone to engage with development proposals. Local authorities should communicate and consult with communities during the preparation of development plans and developers should consult with communities during the planning application process.
Relating to UOG, SPP states:
'…applicants should undertake a risk assessment for all proposals for shale gas and coal bed methane extraction. The assessment can, where appropriate, be undertaken as part of any environmental impact assessment and should also be developed in consultation with statutory consultees and local communities so that it informs the design of the proposal'.
In areas covered by a Petroleum Exploration and Development Licence ( PEDL) issued by the Scottish Government, local development plans 'should ensure applicants consider, where possible, transport of the end product by pipeline, rail or water rather than road'. Where numerous PEDLs are granted in overlapping areas 'consideration should be given to the most efficient sequencing of extraction'.
With regard to the impact and assessment of development related traffic, SPP notes that development plans should appraise transport impacts using Transport Scotland's Development Planning and Management Transport Appraisal Guidance (DPMTG). Appraisals should be carried out in sufficient time to inform local development plan spatial strategies and strategic environmental assessments. More detail relating to DPMTAG is included in section 3.12.
Where a new development is likely to generate a significant increase in the number of trips, a transport assessment should be carried out. Transport Assessment Guidance has been prepared by Transport Scotland, which is described in more detail in section 3.13.
3.6 Strategic Development Plans
Strategic Development Plans ( SDPs) set out the vision for the long term development of Scotland's city regions and again follow the overarching vision for Scotland identified in NPF 3 and SPP. There are four Scottish SDPs which replace previous Structure Plans. SDPs are formally approved by Scottish Ministers and are prepared by groups of planning authorities working together to deal with cross boundary issues such as housing and transport. SDPs are updated at least once every five years.
Within the Central Belt, Clydeplan and SESplan are the most relevant SDPs. With regard to UOG, the respective SDPs state the following:
Proposed Clydeplan 2016
Policy 15 of the proposed SDP for the Clyde area notes that:
- 'Any proposals for unconventional oil and gas extraction should be considered against Scottish Planning Policy and accord with the policies of the relevant local authority. The relevant local authorities will seek to ensure a consistent approach is taken in areas where licenses extend across local authority boundaries.'
Proposed SESplan 2016
The proposed SESplan identifies the requirement for Local Development Plans to 'identify coal, oil and gas reserves to support a diverse energy mix, giving weight to the avoidance of long term environmental impact and greenhouse gas emissions.'
A Minerals Technical Note dated July 2015 accompanies SESplan and notes the following:
'For areas covered by Petroleum Exploration and Development
Local Development Plans should:
- recognise that exploration and appraisal is likely to be the initial focus of development activity, with production probably requiring a separate decision;
- address constraints on production and processing;
- identify factors that will be taken into account when determining planning applications for wellhead and transmission infrastructure; and
- provide a consistent approach to extraction where licences extend across local authority boundaries.
The SESplan area 'contains reserves of onshore gas including coal bed methane. As required by SPP, development plans should identify the factors that will be taken into account when deciding planning applications for well heads and transmission infrastructure'.
3.7 Local Development Plans
Local Development Plans ( LDP) provide the vision for how communities will grow and develop in the future. They provide certainty for communities and investors as to where development should take place and the supporting infrastructure required for growth. LDPs sit, where applicable, within the framework of the SDP and are process driven. The LDP process includes an evidence based approach, followed by the Main Issues Report, subsequent Proposed Plan and any following examination prior to adoption. Throughout the LDP process, stakeholders including the public, are provided with opportunities to make comment on the LDP.
Local authorities including National Park Authorities have a statutory obligation to prepare a LDP setting out specific land use allocations and strategies over a 10 year period. LDPs are updated at least once every five years.
LDPs are typically supported by a Strategic Environmental Assessment ( SEA). The SEA sets out the likely impacts the plan will have on the environment and highlights ways of mitigating such impacts. The LDP should also be supported by a Transport Appraisal ( DPMTAG). The Transport Appraisal typically considers the cumulative operational impacts of proposed developments and identifies mitigating measures to accommodate developments such as junction improvements. The mechanism for delivering mitigating transport measures is also identified, typically within Supplementary Guidance which may include developer contributions that may be secured through planning conditions or in accordance with Section 75 of the Planning etc. (Scotland) Act 2006.
Local authorities should also prepare a Minerals Plan or equivalent which may form part of the LDP. The Minerals Plan identifies the context and location of mineral resources within a local authority area.
The adopted Clackmannanshire Local Development Plan (August 2015) contains a Policy on the extraction of coal bed methane which states that proposals would be supported where they can demonstrate the following criteria:
- "The proposal should not have significant adverse impacts on communities, the environment or the local economy;
- The proposal meets the criteria in Policy EP10 - Minerals - General Principles policy;
- The proposal would not result in a significant adverse impact on residential amenity or the built and natural environment or have an adverse effect on the integrity of the Firth of Forth SPA either alone or in combination with other projects and plans;
- The end product would be transported from the extraction point via pipeline, rail or water transport rather than by road, unless this is not practicable;
- On completion of exploration and production, all plant, equipment and buildings would be removed, and high quality restoration and aftercare of the sites would be delivered."
Policy EP10 on Minerals referred to in the Coal Bed Methane Policy considers transport issues. The policy states that proposals should include " information on how any adverse impacts on settlements as a result of haulage, including road safety, environmental and amenity impacts, will be mitigated. This should include provision for routing haulage vehicles away from settlements wherever possible".
3.8 Environmental Impact Assessment (Scotland) Regulations 2011
Environmental Impact Assessment ( EIA) has been introduced in Scotland mainly as a result of Directives from the European Community ( EC). The requirements of the EC Directives are transposed into Scots law by Regulations made by the Scottish Government.
The types of project which are subject to the EIA process are listed in Schedules to the Environmental Impact Assessment (Scotland) Regulations 2011 ( EIASR 2011). Every project must be 'screened' by the approving authority to see if it should be subject to EIA procedures. All projects listed in Schedule 1 of the EIASR 2011 must be subject to EIA. Whether projects of a kind listed in Schedule 2 of the EIASR 2011 are to be subject to EIA depends on their nature, scale or location and whether they would be likely to have significant effects on the environment. Project proposers can ask competent authorities for a screening opinion, which will decide whether the project is to be subject to EIA. The Scottish Ministers also have powers to issue a screening direction.
UOG is not specifically included in Schedule 1 of EIASR 2011. However, a development for 'extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes per day in the case of petroleum and 500,000 cubic metres per day in the case of gas' would warrant an EIA.
Schedule 2 of EIASR 2011includes reference to a development area in excess of 0.5 hectares for 'surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale'. The majority of exploration and all production sites are likely to extend to at least 0.5 hectares in area, including any site likely to generate significant traffic movements. A planning authority should therefore consider whether a development meeting this criterion is likely to have significant effects on the environment, and if so, an EIA should be required. Additionally, the industry made a formal commitment to undertake EIAs for all exploration wells that involve hydraulic fracturing in January 2014.  This would be linked to an individual planning application, so may potentially apply to a single well, or to a group of wells located on a single site.
On this basis, it is concluded that all UOG developments capable of generating significant traffic movements would either require an EIA as Schedule 1 development, or could be required to have an EIA as Schedule 2 development with potentially significant effects on the environment, or could be required to have an EIA on the basis of the industry commitment.  In the unlikely event of none of these criteria applying to a future development, an applicant could be required to give detailed consideration to transportation impacts to an equivalent standard to an EIA as part of a planning application.
The application of the EIA or planning regulations would result in the application of further regulatory provisions which may be relevant to traffic impacts. For example, these may include the requirement for screening and (if necessary) appropriate assessment under the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended in Scotland).
Where a scheme warrants an EIA the developer can seek support from the planning authority to identify the parameters which determine the Environmental Statement ( ES) assessment scope, including detail on the consultation process with stakeholders including the public. The ES provides the opportunity to assess the impacts and environmental effects of a proposal on traffic and transport as well as identifying any mitigating measures.
3.9 Environmental Impact Assessment Consultation
The Scottish Government is currently running a consultation (from 9 th August 2016 to 31 October 2016) on Environmental Impact Assessment in relation to amending Scottish Environmental Impact Assessment Regulations to Transpose Directive 2014/52/ EU. This consultation sets out the proposals for the transposition of an EU directive into Scottish Legislation. The main change associated with the stated EIA process relevant to this research is the addition of a new EIA stage entitled "monitoring / Enforcement / Penalties". The new EU Directive states that member states should lay down penalties applicable to infringements with the penalties being effective, proportionate and dissuasive.
3.10 Guidelines for the Environmental Assessment of Road Traffic
Where EIA is applicable, an ES should be prepared which contains a chapter on Access, Traffic and Transport. The ES should be prepared in accordance with relevant guidance and for Access, Traffic and Transport the relevant guidance is provided by the Institute of Environmental Assessment ( IEA) now the Institute of Environmental Management and Assessment ( IEMA) in their publication entitled Guidance Notes No. 1: 'Guidelines for the Environmental Assessment of Road Traffic' and Institution of Highways and Transportation ( IHT) publication 'Guidelines for Traffic Impact Assessment'.
The purpose of the IEA Guidelines is to provide the basis for a systematic, consistent and comprehensive approach to the appraisal of traffic impacts for a wide range of development projects irrespective of whether the sites are to be subjected to a formal EIA.
The IEA Guidelines consider the environmental effect of traffic in respect of:
- Traffic impacts;
- Noise and vibration;
- Accidents and safety;
- Driver delay;
- Fear and intimidation;
- Air pollution;
- Dust and dirt;
- Pedestrian / cycle amenity and delay; and
- Severance (the division between people and places or other people caused by a road artery).
The IEA Guidelines state that two rules can be adopted to delimit the scale and extent of the assessment.
- Rule 1: Include road links where traffic flows would increase by more than 30% (or the number of HGVs would increase by more than 30%); and
- Rule 2: Include any other specifically sensitive areas where traffic flows would increase by 10% or more.
The IEA Guidelines suggest that where the predicted increase in traffic flows is lower than the above thresholds, the significance of the impacts can be stated to be low or insignificant and further detailed assessments are not required.
The explanatory text in Paragraphs 3.16 to 3.19 of the IEA Guidelines state that 'projected changes in traffic of less than 10% create no discernible environmental impact'. Given that daily variations in background traffic are frequently +/-10%, and other environmental impacts ( e.g. pollution, ecology, etc.) are less sensitive to traffic flow changes, the Guidelines conclude that 'a 30% change in traffic flow represents a reasonable threshold for including a highway link within the assessment'.
The impacts of development traffic are dependent on a number of factors including: volume of traffic, traffic speeds, operational characteristics and traffic composition.
The Guidelines note that the ES should identify "worst case" impacts and the frequency of this impact. The "worst case" environmental impact is likely to include the effects of "greatest change" as well as "highest impact".
The IEA Guidelines identifies groups, locations and special interests 'which may be sensitive to changes in traffic conditions'. The following check list identifies groups and special interests which should be considered:
- People at home;
- People in work places;
- Sensitive groups including children, elderly and disabled;
- Sensitive locations, e.g. hospitals, churches, schools, historical buildings;
- People walking or cycling;
- Open spaces, recreational sites, shopping areas; and
- Sites of ecological / nature conservation value and tourist attractions.
The Guidelines identify potential measures which could be introduced to mitigate the traffic impacts and effects of a development. These include restriction on the size of vehicles, specifying traffic routes, restricting the hours of site operation and installing traffic calming measures.
3.11 Guidelines for Traffic Impact Assessment
The IHT publication 'Guidelines for Traffic Impact Assessment' recommends that ESs should be assessed in accordance with the IEA Guidelines.
3.12 Development Planning and Management Transport Appraisal Guidance
DPMTAG provides guidance on the preparation of a Transport Appraisal to inform the preparation of development plans with a specific focus on the cumulative operational aspects of proposed developments on the strategic transport network. The DMPTAG process can be used to quantify impacts of land use decisions on the environment, safety, the economy and accessibility.
3.13 Transport Assessment Guidance
'Transport Assessment Guidance' sets out the requirements for the undertaking of Transport Assessments ( TA) in Scotland. A TA is typically prepared in support of a planning application for development. TA principally relate to developments that generate significant long-term operational increases in traffic as a result of their function, such as retail parks and residential developments. The Guidance provides advice on the preparation of a TA including consideration to scoping and data collection.
In respect of environmental impacts, the Guidance notes:
'The environmental impacts of a development proposal are generally outside the remit of the TA process, as they should be picked up through an Environmental Impact Assessment ( EIA). For some types of development an EIA is always required; for others it is required if the planning authority considers that the development is likely to have significant effects on the environment'.
The screening and scoping process for a development proposal should identify if a TA is required and what the scope of the TA should be.
3.14 Planning Circular 3/2013 Development Management Procedures
This planning circular provides guidance on the various stages of the planning application process. The guidance focuses on an open dialogue between a developer and the planning authority and provides guidance on the process for engaging with the public.
The circular details the type of information required to support a planning application which may include a transport assessment, EIA and design and access statement.
This chapter provides a strategic review of the planning and regulatory framework which would currently apply to UOG and UCG developments in respect of the impacts and effects of traffic. At present, there is no specific planning framework relating to UOG: applications for UOG development would be through considered through the existing regulatory and planning framework. This has an emphasis on stakeholder and public engagement throughout. Scottish Planning Policy sets principles for UOG development, including a requirement for risk assessment and establishing the principle of minimising road transportation of products. At this stage, potential development sites are not identified in NPF, SDP or LDPs. Developments which are not included in NPF, SDP or LDP are typically viewed less favourably at the planning application stage and would require an additional level of scrutiny.
Each UOG development can be required to undergo the Environmental Impact Assessment ( EIA) process, in view of legal obligations for larger scale development, local authority powers to require an EIA for smaller scale developments, and industry undertakings to carry out EIAs.
With regard to transport, the IEA Guidelines provide the most relevant framework for assessing the impacts and environmental effects of traffic. The IEA Guidelines detail the requirement to assess the "worst" traffic impacts and provide guidance on the mitigation of impacts. Mitigation measures can be implemented through planning conditions or in accordance with Section 75 of the Planning etc. (Scotland) Act 2006.