UK: New Controls Over Hill Tracks

Last Updated: 8 September 2014
Article by Moray Thomson and Keith Campbell

The Scottish Government has announced new controls over the formation of tracks under permitted development (PD) rights. While PD rights for agricultural and forestry tracks will remain, it is proposed to introduce a prior notification and approval process later this year. This will give planning authorities greater control over the siting, design and appearance of tracks.

Background

The Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (the GPDO) grants planning permission for specified types or classes of development. Class 18 (Agricultural Buildings and Operations) includes PD rights for "the formation, alteration or maintenance of private ways" required for the purposes of agriculture within an agricultural unit. Class 22 (Forestry Buildings and Operations) permits the formation, alteration or maintenance of private ways reasonably necessary for the purposes of forestry. A private way is a road or footpath which is not maintainable at public expense.

This means, with limited exceptions1, that where a track is to be used for agricultural or forestry purposes it can be constructed without the need for an application for planning permission. The planning authority cannot control, or ultimately prevent, development of tracks through the planning application process and third parties do not have the opportunity to make representations on the proposed track.

The PD rights apply to the whole of rural Scotland, but have proved particularly controversial in sensitive upland areas including Scotland's national parks. This was reflected in responses to a 2011 – 12 Scottish Government consultation on potential amendments to the GPDO. Environmental and recreation groups, and some planning authorities, submitted that many PD hill tracks have had adverse habitat and visual effects. Rural business and landowner interests queried the extent of damage caused by hill tracks and highlighted the importance of the tracks in maintaining a fragile rural economy. In December 2012 the Scottish Government announced that PD rights for agricultural and forestry tracks would not be amended but would be kept under review.

Proposed amendment

Following further consultation with stakeholder groups the Scottish Government has decided to introduce a prior notification and approval process for tracks. This process already applies to many PD rights in the GPDO, including erection of new agricultural and forestry buildings. Details of a proposed track will have to be notified in advance to the planning authority. The planning authority then has 28 days to decide whether its prior approval is required for the siting, design and appearance of the track. The development cannot begin until the planning authority either confirms that prior approval is not required, or does not respond within 28 days, or confirms that prior approval is required and then gives such approval. The track must then be constructed in accordance with the approved details (where prior approval is required) or the notified details (where prior approval is not required).

The planning authority may refuse approval of a track which would have an unacceptable impact. Or, more likely, the siting or design of the proposed track could be amended through discussion and then approved. The new system is intended to strike a balance between increased control over hill tracks where this is necessary and allowing the majority of new tracks to proceed with a minimum of delay. It remains to be seen whether this will satisfy groups who have called for the complete removal of PD rights for agricultural and forestry tracks. In particular, prior approval is an internal process between the planning authority and the relevant landowner and, unlike a planning application, does not provide third party interests such as environment or recreation groups the opportunity to make representations.

It should be noted that this change only relates to tracks constructed under PD rights and for agricultural or forestry purposes. Other tracks, for example those associated with wind farm development, already require an application for planning permission and that position will not change.

Footnote

1. PD rights are removed or limited where environmental impact assessment of the proposed track is required, or where there is likely to be a significant effect on a European Site, or in National Scenic Areas

© MacRoberts 2014

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