Part 7

Crown application of planning Acts
Chapter 2

Scotland

Crown application

Crown application of Scottish planning Acts
90
1
In Part 12 of the Town and Country Planning (Scotland) Act 1997, before section 242 (preliminary definitions for Part 12) there is inserted the following section—

Application to the Crown
241A
1
This Act binds the Crown.
2
But subsection (1) is subject to express provision made by this Part.
2
In the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, after section 73 (application of Act to land and works of planning authorities) there is inserted the following section —

Application to the Crown
73A
1
This Act (except the provisions specified in subsection (2)) binds the Crown.
2
These are the provisions—
a
section 8,
b
section 10(3),
c
section 19(7),
d
section 38(1) and (8),
e
section 39,
f
section 49,
g
section 50,
h
section 53,
i
section 77.
3
But subsection (2)(a) does not have effect to prohibit the doing of anything by or on behalf of the Crown which falls within the circumstances described in section 8(3)(a) to (d) and the doing of that thing does not contravene section 6.
3
In the Planning (Hazardous Substances) (Scotland) Act 1997, after section 30 (application of Act to planning authorities) there is inserted the following section—

Application to the Crown
30A
1
This Act (except the provisions specified in subsection (2)) binds the Crown.
2
The provisions are—
a
section 6(3),
b
section 21,
c
section 25,
d
section 34,
e
section 35(2).
4
Schedule 5 amends the Scottish planning Acts in relation to the application of those Acts to the Crown.

National security

Special provision for certain circumstances where disclosure of information as to national security may occur: Scotland
91
1
In the Town and Country Planning (Scotland) Act 1997 (c. 8), there is inserted after section 265 (local inquiries) the following section—

Planning inquiries to be held in public subject to certain exceptions
265A
1
This section applies in relation to the holding of inquiries under section 265(1), paragraph 6 of Schedule 4, paragraph 5 of Schedule 6 or paragraph 8 of Schedule 7.
2
Subject to subsection (3), at any such inquiry oral evidence shall be heard in public and documentary evidence shall be open to public inspection.
3
If the Secretary of State is, or after consultation with the Secretary of State the Scottish Ministers are, satisfied in the case of any such inquiry—
a
that giving evidence of a particular description or, as the case may be, making it available for inspection would be likely to result in the disclosure of information as to any of the matters mentioned in subsection (4), and
b
that the public disclosure of that information would be contrary to the national interest,
he or as the case may be they may direct that evidence of the description indicated in the direction shall only be heard or, as the case may be, open to inspection at that inquiry by such persons, or persons of such descriptions, as may be specified in the direction.
4
The matters referred to in subsection (3)(a) are—
a
national security, and
b
the measures taken, or to be taken, to ensure the security of any premises or property.
5
The Lord Advocate may appoint a person to represent the interests of any person who—
a
if a direction is given under subsection (3), will be prevented from hearing or inspecting any evidence at any such inquiry; or
b
is so prevented by such a direction given before any appointment is made by virtue of paragraph (a).
6
By rules—
a
the Secretary of State may make provision as to the procedure to be followed by him before he gives a direction under subsection (3) in a case where a person has been appointed under subsection (5) and as to the functions of a person appointed under subsection (5),
b
the Scottish Ministers may make provision as to the procedure to be followed by them before they give such a direction in such a case and as to such functions.
7
If a person (the representative) is appointed—
a
under paragraph (a) of subsection (5) and either no direction in relation to the evidence in question has been given under subsection (3) or any such direction so given has been given by the Secretary of State, the Secretary of State may direct any person who he thinks,
b
under paragraph (a) of subsection (5) and such a direction has been given under subsection (3) by the Scottish Ministers, the Scottish Ministers may direct any person who they think,
c
under paragraph (b) of subsection (5) and the direction referred to in that paragraph was given by the Secretary of State, the Secretary of State may direct any person who he thinks,
d
under paragraph (b) of that subsection and the direction so referred to was given by the Scottish Ministers, the Scottish Ministers may direct any person who they think,
is interested in the inquiry, or prospective inquiry, in relation to a matter mentioned in subsection (4) (the responsible person) to pay remuneration or allowances to, and to reimburse any expenses incurred by, the representative.
8
If the representative and the responsible person are unable to agree an amount payable by virtue of—
a
paragraph (a) or (c) of subsection (7), the amount must be determined by the Secretary of State,
b
paragraph (b) or (d) of that subsection, the amount must be determined by the Scottish Ministers.
9
The Secretary of State must cause an amount payable by virtue of paragraph (a) or (c) of subsection (7) (whether determined under subsection (8) or agreed between the representative and the responsible person) to be certified.
10
The Scottish Ministers must cause an amount payable by virtue of paragraph (b) or (d) of subsection (7) (whether so determined or so agreed) to be certified.
11
An amount certified under subsection (9) or (10) is recoverable from the responsible person as a debt.
12
Subsections (7) to (11) apply even if the inquiry does not take place.
13
The power to make rules under—
a
paragraph (a) of subsection (6) must be exercised by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament,
b
paragraph (b) of that subsection must be exercised by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.
2
In Schedule 3 to the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (determination of certain appeals by person appointed by the Scottish Ministers), in paragraph 6, after sub-paragraph (6) there is inserted the following sub-paragraph—
7
Subsections (2) to (13) of section 265A of the principal Act apply to the holding of an inquiry under this paragraph as they apply to the holding of an inquiry under section 265 of that Act.
3
In the Schedule to the Planning (Hazardous Substances) (Scotland) Act 1997 (determination of certain appeals by person appointed by Scottish Ministers), in paragraph 6, after sub-paragraph (6) there is inserted the following sub-paragraph—
7
Subsections (2) to (13) of section 265A of the principal Act apply to the holding of an inquiry under this paragraph as they apply to the holding of an inquiry under section 265 of that Act.

Urgent development and works

Urgent Crown development: Scotland
92
1
In the Town and Country Planning (Scotland) Act 1997 (c. 8), before section 243 (control of development on Crown land: special enforcement notices) there is inserted the following section—

Urgent Crown development: application
242A
1
This section applies to a development if the appropriate authority certifies—
a
that the development is of national importance, and
b
that it is necessary that the development is carried out as a matter of urgency.
2
The appropriate authority may, instead of making an application for planning permission to the planning authority in accordance with Part 3, make an application for planning permission to the Scottish Ministers under this section.
3
If the appropriate authority proposes to make the application to the Scottish Ministers, it must publish in one or more newspapers circulating in the locality of the proposed development a notice—
a
describing the proposed development, and
b
stating that the authority proposes to make the application to the Scottish Ministers.
4
For the purposes of an application under this section the appropriate authority must provide to the Scottish Ministers—
a
any matter required to be provided by an applicant for planning permission in pursuance of regulations made under section 40,
b
a statement of the authority’s grounds for making the application.
5
If the appropriate authority makes an application under this section subsections (6) to (11) below apply.
6
The Scottish Ministers may require the authority to provide them with such further information as they think necessary to enable them to determine the application.
7
As soon as practicable after they are provided with any document or other matter in pursuance of subsection (4) or (6) the Scottish Ministers must make a copy of the document or other matter available for inspection by the public in the locality of the proposed development.
8
The Scottish Ministers must in accordance with such requirements as they may specify in a development order publish notice of the application and of the fact that such documents and other material are available for inspection.
9
The Scottish Ministers must consult—
a
the planning authority, and
b
such other persons as may be so specified,
about the application.
10
Subsection (7) above does not apply to the extent that the document or other matter is subject to any direction given under section 265A(3) of this Act.
11
Subsections (4) to (7) of section 46 apply to an application under this section as they apply to an application in respect of which a direction under section 46 has effect.
2
In section 237 of that Act, (validity of certain matters) in subsection (3) at the end there is added the following paragraph—
i
any decision on an application for planning permission under section 242A.

Urgent works relating to Crown land: Scotland
93
1
In the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (c. 9), after section 73A (inserted by section 90(2)) there is inserted the following section—

Urgent works relating to Crown land: application
73B
1
This section applies to any works proposed to be executed in connection with any building which is on Crown land if the appropriate authority certifies—
a
that the works are of national importance, and
b
that it is necessary that the works are carried out as a matter of urgency.
2
The appropriate authority may, instead of making an application for consent to the planning authority in accordance with this Act, make an application for consent to the Scottish Ministers under this section.
3
If the appropriate authority proposes to make the application to the Scottish Ministers it must publish in one or more newspapers circulating in the locality of the building a notice—
a
describing the proposed works, and
b
stating that the authority proposes to make the application to the Scottish Ministers.
4
For the purposes of an application under this section the appropriate authority must provide to the Scottish Ministers a statement of the authority’s grounds for making the application.
5
If the appropriate authority makes an application under this section subsections (6) to (11) below apply.
6
The Scottish Ministers may require the authority to provide them with such further information as they think necessary to enable them to determine the application.
7
As soon as practicable after they are provided with any document or other matter in pursuance of subsection (4) or (6) the Scottish Ministers must make a copy of the document or other matter available for inspection by the public in the locality of the proposed development.
8
The Scottish Ministers must in accordance with such requirements as may be prescribed publish notice of the application and of the fact that such documents and other material are available for inspection.
9
Subsection (7) above does not apply to the extent that the document or other matter is subject to any direction given under section 265A(3) of the principal Act.
10
The Scottish Ministers must consult—
a
the planning authority, and
b
such other persons as may be prescribed,
about the application.
11
Subsections (4) and (5) of section 11 apply to an application under this section as they apply to an application in respect of which a direction under section 11 has effect.
2
In section 57 of that Act (validity of certain matters), in subsection (2) at the end there is added the following paragraph—
d
any decision on an application for listed building consent under section 73B.

Enforcement

Enforcement in relation to Crown land: Scotland
94
1
In the Town and Country Planning (Scotland) Act 1997 (c. 8), section 245 (exercise of powers in relation to Crown land) is omitted.
2
After section 245 there is inserted the following section—

Enforcement in relation to the Crown
245A
1
No act or omission done or suffered by or on behalf of the Crown constitutes an offence under this Act; but the Court of Session may, on the application of a public authority or office-holder responsible for the enforcement of anything required to be done, or prohibited, by or under this Act, declare unlawful any act or omission so done or suffered.
2
A planning authority must not take any step for the purposes of enforcement in relation to Crown land unless it has the consent of the appropriate authority.
3
The appropriate authority may give consent under subsection (2) subject to such conditions as it thinks appropriate.
4
A step taken for the purposes of enforcement is anything done in connection with the enforcement of anything required to be done or prohibited by or under this Act.
5
A step taken for the purposes of enforcement includes—
a
entering land,
b
initiating proceedings,
c
the making of an application.
6
A step taken for the purposes of enforcement does not include—
a
service of a notice,
b
the making of an order (other than a court order).
3
In the Town and Country Planning (Scotland) Act 1997 (c. 8), after section 245A (inserted by subsection (2) above) there is inserted the following section—

References to an interest in land
245B
1
Subsection (2) applies to the extent that an interest in land is a Crown interest.
2
Anything which requires or is permitted to be done by or in relation to the owner of the interest in land must be done by or in relation to the appropriate authority.
3
An interest in land includes an interest only as occupier of the land.
4
In the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (c. 9) after section 73C (inserted by Schedule 5) there are inserted the following sections—

Enforcement in relation to the Crown
73D
1
No act or omission done or suffered by or on behalf of the Crown constitutes an offence under this Act; but the Court of Session may on the application of a public authority or office-holder responsible for the enforcement of anything required to be done, or prohibited, by or under this Act, declare unlawful any act or omission so done or suffered.
2
A planning authority must not take any step for the purposes of enforcement in relation to Crown land unless it has the consent of the appropriate authority.
3
The appropriate authority may give consent under subsection (2) subject to such conditions as it thinks appropriate.
4
A step taken for the purposes of enforcement is anything done in connection with the enforcement of anything required to be done or prohibited by or under this Act.
5
A step taken for the purposes of enforcement includes—
a
entering land,
b
initiating proceedings,
c
the making of an application.
6
A step taken for the purposes of enforcement does not include—
a
service of a notice,
b
the making of an order (other than a court order).

Reference to an interest in land
73E
1
Subsection (2) applies to the extent that an interest in land is a Crown interest.
2
Anything which requires or is permitted to be done by or in relation to the owner of the interest in land must be done by or in relation to the appropriate authority.
3
An interest in land includes an interest only as occupier of the land.
5
In the Planning (Hazardous Substances) (Scotland) Act 1997, after section 30A (inserted by section 90(3)) there are inserted the following sections—

Enforcement in relation to the Crown
30B
1
No act or omission done or suffered by or on behalf of the Crown constitutes an offence under this Act; but the Court of Session may, on the application of a public authority or office-holder responsible for the enforcement of anything required to be done, or prohibited, by or under this Act, declare unlawful any act or omission so done or suffered.
2
A planning authority must not take any step for the purposes of enforcement in relation to Crown land unless it has the consent of the appropriate authority.
3
The appropriate authority may give consent under subsection (2) subject to such conditions as it thinks appropriate.
4
A step taken for the purposes of enforcement is anything done in connection with the enforcement of anything required to be done or prohibited by or under this Act.
5
A step taken for the purposes of enforcement includes—
a
entering land,
b
initiating proceedings,
c
the making of an application.
6
A step taken for the purposes of enforcement does not include—
a
service of a notice,
b
the making of an order (other than a court order).

Reference to an interest in land
30C
1
Subsection (2) applies to the extent that an interest in land is a Crown interest.
2
Anything which requires or is permitted to be done by or in relation to the owner of the interest in land must be done by or in relation to the appropriate authority.
3
An interest in land includes an interest only as occupier of the land.

Trees

Tree preservation orders: Scotland
95
For section 162 of the Town and Country Planning (Scotland) Act 1997 (Orders affecting land where Forestry Commissioners interested) there is substituted the following section—

Tree preservation: Forestry Commissioners
162
1
A tree preservation order does not have effect in respect of anything done—
a
by or on behalf of the Forestry Commissioners on land placed at their disposal in pursuance of the Forestry Act 1967 or otherwise under their management or supervision;
b
by or on behalf of any other person in accordance with a relevant plan which is for the time being in force.
2
A relevant plan is a plan of operations or other working plan approved by the Forestry Commissioners under—
a
a forestry dedication agreement within the meaning of section 5 of the Forestry Act 1967, or
b
conditions of a grant or loan made under section 1 of the Forestry Act 1979.
3
A reference to a provision of the Forestry Act 1967 or the Forestry Act 1979 includes a reference to a corresponding provision replaced by that provision or any earlier corresponding provision.

Trees in conservation areas in Scotland: acts of Crown
96
In the Town and Country Planning (Scotland) Act 1997 (c. 8), after section 172(4) (preservation of trees in conservation areas) there are inserted the following subsections—
5
An emanation of the Crown must not, in relation to a tree to which this section applies, do an act mentioned in subsection (1) above unless—
a
the first condition is satisfied, and
b
either the second or third condition is satisfied.
6
The first condition is that the emanation serves notice of an intention to do the act (with sufficient particulars to identify the tree) on the planning authority in whose area the tree is situated.
7
The second condition is that the act is done with the consent of the authority.
8
The third condition is that the act is done—
a
after the end of the period of six weeks starting with the date of the notice, and
b
before the end of the period of two years starting with that date.

Miscellaneous

Old mining permissions: Scotland
97
1
Subsection (2) applies if—
a
an old mining permission relates to land which is Crown land, and
b
the permission has not been registered in pursuance of Part 2 of Schedule 8 to the Town and Country Planning (Scotland) Act 1997.
2
Paragraph 10 of that Schedule and that Part apply to the old mining permission subject to the following modifications—
a
in sub-paragraph (3) of that paragraph, for “16th May 1991” there is substituted “ the date of commencement of section 97(2) of the Planning and Compulsory Purchase Act 2004 ”,
b
in paragraph 13(3) of that Part, for “24 January 1992” there is substituted “ the date of commencement of section 97(2) of the Planning and Compulsory Purchase Act 2004 ”.
3
“Old mining permission” must be construed in accordance with paragraph 10 and Part 2 of that Schedule.
4
“Crown land” must be construed in accordance with Part 12 of the Town and Country Planning (Scotland) Act 1997.

Subordinate legislation: Scotland
98
1
The Scottish Ministers may by order provide that relevant subordinate legislation applies to the Crown.
2
The order may modify such subordinate legislation to the extent that the Scottish Ministers think appropriate for the purposes of its application to the Crown.
3
Relevant subordinate legislation is an instrument which—
a
is made under or (wholly or in part) for the purposes of any of the Scottish planning Acts,
b
is made before the commencement of section 90 of this Act, and
c
is specified in the order.
4
In subsection (3), “instrument” includes an instrument made under an Act of the Scottish Parliament.
S. 91 in force at 6.8.2004 for specified purposes by S.I. 2004/2097, art. 2
S. 92(1) in force at 20.3.2006 for specified purposes by S.S.I. 2006/101, art. 2
S. 93(1) in force at 20.3.2006 for specified purposes by S.S.I. 2006/101, art. 2
S. 98 in force at 20.3.2006 by S.S.I. 2006/101, art. 2
S. 92(1) in force at 11.5.2006 in so far as not already in force by S.S.I. 2006/243, art. 3
S. 92(2) in force at 11.5.2006 by S.S.I. 2006/243, art. 3
S. 93(1) in force at 11.5.2006 in so far as not already in force by S.S.I. 2006/243, art. 3
S. 93(2) in force at 11.5.2006 by S.S.I. 2006/243, art. 3
S. 94(4) in force at 11.5.2006 by S.S.I. 2006/243, art. 3
S. 91 in force at 7.6.2006 in so far as not already in force by S.I. 2006/1281, art. 3
S. 90 in force at 12.6.2006 by S.S.I. 2006/268, art. 3(a)
S. 94(1)-(3) (5) in force at 12.6.2006 by S.S.I. 2006/268, art. 3(b)
S. 95 in force at 12.6.2006 by S.S.I. 2006/268, art. 3(b)
S. 96 in force at 12.6.2006 by S.S.I. 2006/268, art. 3(b)
S. 97 in force at 12.6.2006 by S.S.I. 2006/268, art. 3(b)