Planning & Environment

For many years there have been calls to tighten planning controls on hills tracks. Although an amendment to the Planning (Scotland) Bill was defeated, it may revive during Stage 3 proceedings.

Background

Agriculture and forestry have wide permitted development rights, including construction of tracks. That means that no formal planning application needs to be submitted.

In 2013, Scottish Environment LINK’s report ‘Track Changes’ was published following a period of rapid expansion in the number of driveable hill tracks appearing across Scotland’s rural landscapes.

The report called for the existing system of permitted development (PD) rights to be replaced by a requirement for full planning permission for agriculture and forestry tracks, with a view to addressing key environmental concerns arising from the numbers and construction methods used in relation to such tracks.

In December 2014, the Scottish Government responded by introducing a less onerous requirement for Prior Notification to the relevant planning authority in advance of commencing works.

By way of follow up to their 2013 report, earlier this autumn the LINK’s Hilltracks Campaign published ‘Changing Tracks’, which considers the impact of the new prior notification system and, ultimately, calls for further changes to both relevant legislation and administrative practice.

Key Issues in ‘Changing Tracks’

Having monitored track development in key upland areas for the past three years, the report considers that:

  • The system of PD rights afforded to agricultural and forestry tracks in the past is no longer fit for purpose on account of the predominance of heavy machinery and vehicles used in these industries, leaving the countryside vulnerable to significant damage. Comparable tracks used for wind farms or hydro-electric schemes are subject to a requirement for full planning permission.
  • PD rights apply even in designated areas – in National Parks, Wild Land Areas, Sites of Special Scientific Interest and Natura Sites. This is inconsistent with the aims of such designations to protect aspects such as landscape, habitats, biodiversity and species.
  • The Prior Notification system is insufficiently robust: the lack of a precise definition of an agricultural or forestry track allows for abuse of the system where the track will primarily be used for another purpose such as shooting or other field sports.
  • The Prior Notification system lacks scrutiny: proposals submitted are often poor quality; there is minimal opportunity for public comment and the lack of a fee does not help planning authorities to adequately resource the review process.
  • Potentially unlawful works may only become apparent some years after construction has taken place, particularly for tracks in remote locations. It can be difficult to prove or disprove the presence of a pre-existing track and/or the extent to which work that has taken place could be considered to be genuine maintenance for which there is no requirement of Prior Notification.

Proposed Reforms

The report recommends removing PD rights from vehicle tracks which are built for agricultural purposes and requiring full planning applications for these tracks.

In contrast, LINK considers that PD rights could continue to apply to forestry tracks in the immediate future.

The reason for the difference in approach is due to the additional layer of regulation applying to forestry tracks through the requirement for forestry plans to be approved by planning authorities. As a result, LINK found that there were much fewer instances of tracks being used other than for legitimate forestry purposes.

What Next?

During Stage 2 of the Planning (Scotland) Bill, two amendments were sought to be made in relation to hill tracks:

  1. to require tracks on land used for shooting and field sports to be subject to full planning consent; and
  2. to extend the need for planning consent to tracks in National Scenic Areas, National Parks, designations under the Nature Conservation (Scotland) Act 2004 and battlefields.

The amendments were ultimately rejected, albeit there is scope for further amendments to be proposed during Stage 3.

In discussing the proposed amendments, however, Kevin Stewart, Planning Minister, emphasised that the place for reforms of this nature was the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 and that the Scottish Government is committed to carrying out a review of the GPDO at the completion of the bill.

For the moment those with interests in agriculture and forestry have escaped an additional regulatory burden but in the longer term, particularly in the context of any wholesale review of the GPDO, the road ahead is unclear.

Victoria Lane

Victoria Lane

Senior Solicitor at Brodies LLP
Victoria is a senior solicitor in the Planning team. She has worked on a broad spectrum of transactions, gaining experience of working for landowners, developers, local authorities and other public sector bodies. Victoria has worked on a variety of projects, including the acquisition of a shopping centre, a quarry planning permission appeal, a wind met mast appeal, and proposals for planning restrictions on pay day lenders.
Victoria Lane