DEVELOPING LAND

A key purpose of many rewilding projects is to restore the land to a wilder landscape and in doing so, rewilders should be aware of various land use issues, particularly with regards to planning permission and environmental impact assessments. This note aims to provide a high level overview of these issues.

2.1 Overview

Planning permission from the relevant planning authority is required for any development of land¹ in Scotland subject to some exceptions. Development of land 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 use of any buildings or land² . A key exception to planning permission are developments which are classified as “permitted developments”³ , as further explained in this note.

Below we have set out planning law considerations that rewilding projects should be considering when rewilding land. Note that, as described below, many planning permission obligations do not apply to land used for agricultural or forestry purposes as they are excluded from the statutory definition of “development”.

There are also a few general points that it is worth being aware of when considering what planning permission may be required for rewilding activities:

• All applications for planning permission in Scotland must be in accordance with the relevant planning authority’s Local Development Plan (“LDP”). LDPs guide decisions on all planning applications and contain the relevant planning authority’s planning policies.
• Please be aware that the Scottish Government are currently preparing their Fourth National Planning

Framework (the “NPF4”)⁴ . This Framework provides guidance to planning authorities on the requirements for LDPs.

• LDPs allocate sites in a planning authority area to be protected as Green Belt areas. The Draft NPF4 at Policy 8 sets out that development proposal within a green belt should not be supported unless it falls within the listed exceptions. Some rewilding practices may fall within the list of exceptions (the list includes development relating to agriculture, woodland creation, forestry, flood risk management and horticulture). However, this will be dependent upon the relevant planning authority’s LDP and the exact rewilding activity that is to take place.
• The Draft NPF4 at Policy 4, sets out the Scottish Government’s high expectations of LDPs to protect natural spaces. This may positively impact landowners applying for planning permission as planning authorities’ LDPs will have to promote the protection and restoration of natural assets, which rewilding can do.

2.2 When is planning permission generally required?

The basic rules mean that planning permission is required for:

• Building operations, which include demolition of buildings, rebuilding, structural alterations of or additions to buildings, and other operations normally undertaken by a person carrying on business as a builder.⁵
• Engineering operations, which are defined as operations usually undertaken by or under the supervision of an engineer or which would require engineering skills, irrespective of whether an engineer is actually involved.
• Other operations, for which there is no definition in the Act. It has been suggested that these are operations of a positive, constructive and identifiable character which result in some physical alteration

of the land.⁶ In a rewilding context, this could involve e.g., blocking land drains or other activities impacting groundwater levels.

• Material change in land use: all land in Scotland has a designated use in accordance with the use classes set out in The Town and Country Planning (Use Classes) (Scotland) Order 1997 (the “UCO”). Certain changes of use are declared to be material and therefore require planning permission (e.g. sub-division of a single dwelling house resulting in its house as two or more separate dwellinghouses) whereas some changes are considered not to involve development and, therefore, do not require planning permission (e.g., a change of use within any class specified in the UCO, or the change of use to agricultural or forestry use (see below)).

The practical application of these definitions is considered in the practical scenarios at the end of this note.

2.3 Are there any exceptions to planning permissions that may apply to rewilding projects?

Maintenance and improvement works

Works for the maintenance, improvement or other alternation of any building do not constitute “development” and therefore do not require planning permission to the extent they only affect the interior of the building or do not materially affect the external appearance of a building⁷ .

Permitted developments – general

There are a number of types of development which are generally “permitted” and therefore do not require specific planning permission.⁸ The permitted development rights in relation to agricultural and forestry land (see below) are likely to be some of the most relevant for rewilders. However, depending on exactly what development is being planned, other permitted development rights may also be applicable.

It is important to note that, whilst permitted development generally does not require planning permission, certain categories – including agricultural and forestry buildings and operation, and demolition – still require completion of a prior notification and approval process. This process allows a planning authority to consider whether a proposal requires closer scrutiny before it is approved.

Permitted Developments on agricultural and forestry land – Use Classes 18 and 18C

The Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (the “GPDO”) allows a wide range of developments to proceed on agricultural and forestry land without the need for a full planning application. Some temporary uses of land are also permitted if they run for no more than 28 days in a year.

For the purposes of the GDPO, agricultural land means:

“Land which, before development permitted under Order is carried out, is land in use for agriculture and which is used for the purposes of trade or business and excludes any dwellinghouse or garden or any land used for the purposes of fish farming.”⁹

It will be a question of fact as to whether or not the activities of a particular rewilding project fall within this definition of “agricultural land”. See below for what is meant by “agriculture”.

Under Class 18, permitted agricultural development rights apply to: erecting, extending or altering buildings (other than dwellinghouses); forming, altering or maintaining private roadways, and excavation or engineering operations (although, additional conditions relating to size, nature and location of a development apply and should be referred to in the GDPO).

Permission is only granted for development which is “requisite” for the purposes of agriculture on agricultural land comprised within an agricultural unit. The word “requisite” has caused issues with interpretation in the past and has been understood to mean “reasonably necessary” for agriculture in certain cases.¹⁰

In addition, Class 18C now allows the conversion of agricultural buildings to a ‘flexible commercial use’, subject to certain conditions and limitations. ‘Flexible commercial use’ is defined and includes use for (among others): shops, food and drink, business, storage or distribution and ‘non-residential institutions’. This last use category has its own detailed definition which includes activities relating to education and the use as a public hall, among others. The building must have been used solely for agricultural use on or prior to 4 November 2019.

Class 22 gives permitted development status to forestry buildings and operations, similar to those permitted for agricultural purposes by Class 18, and subject to similar conditions.

Exceptions to change of use rules for agriculture and forestry (including afforestation)

As discussed above, certain changes of use are declared to be material and therefore require planning permission. However, an important exception to this rule, and one which may be important for rewilders, is any change of use to agricultural or forestry.

A change from any use to agricultural use, or between agricultural uses does not require planning permission,¹¹ (although any associated building or other work is considered separately and may require planning permission, unless,of course, it is a permitted development as discussed above). Provided the primary use is agricultural, no planning permission is required for ancillary uses either, such as the sale of farm produce to the public on a farm (although if produce is brought in for sale, the retail element may become a separate use in its own right and, therefore, require planning permission).

Agriculture has a statutory definition that includes:

“horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens

and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes.”¹²

In addition, the purposes of agricultural use have been held to include the grazing of horses¹³ and the keeping of allotments¹⁴. Even where the agricultural activity takes place entirely within a building or buildings (although this is unlikely to be the case on a rewilding project), this still counts as the use of ‘land’ for the purpose of agriculture and falls within the exemption.¹⁵ Please note that the carrying out of drainage for agriculture or of any other water management project for that purpose (excluding irrigation work) also does not require planning permission.¹⁶

In terms of forestry, we are given no statutory definition apart from the fact that forestry includes afforestation. Forestry has been held to include “the science and art of forming and cultivating forests, management of growing timber”;¹⁷ it has also been held that forestry and use of land as woodlands does not cease when the timber is grown but may well include operations necessary to render the timber marketable or disposable to profitable use as timber.¹⁸

Much of the land used for rewilding projects will be agricultural or forestry land, and exemptions and permitted rights like those discussed above may help streamline the planning process for some rewilding projects if the activities continue to count as “agriculture” or “forestry”. However, these exemptions are not unlimited, and many conditions apply. ‘Rewilding’ has yet to be defined in statute, which means that there is still a degree of uncertainty as to how rewilding activities, and land used for rewilding projects, fits within current planning laws.

Rewilders may find it helpful to consider the following when determining whether a project requires planning permission, although in each case we would advise seeking guidance from the relevant local planning authority:

• Whilst the definition of ‘agricultural’ under the Act is wide, rewilding activity will not necessarily fall within its scope. For example, it may be argued that an activity is agricultural in nature, and, although there may be certain linkages, it still might prove difficult to convince a planning authority. Rewilders should also be aware of the definition of ‘agricultural land’ and the potential for land to fall outwith its scope.
  • In addition, there are rules which apply to specific types of land: for example, agricultural activity on historic battlefields or land within 25m of the metalled portion of a trunk or classified road will require planning permission. The 1997 Act should be closely referred to in each case.
• Rewilders should keep in mind that some rewilding projects may constitute a change of use. A change from any use to agricultural use, or between agricultural uses does not require planning permission; however, if a project materially changes the agricultural site’s land use so that all agricultural activity ceases, planning permission may be required.
  • Be aware that the character of the use of land is determined by the primary or main use. Once an ancillary or incidental use is no longer subordinate and linked to the main use, or becomes a main use in its own right, a material change of use may have occurred
• Permitted development rights are extensive, but there are also limitations. For example, even if a new building is designed for agricultural purposes, it must still meet the various conditions set down in the Act. It is also important to remember that the GDPO introduced a prior notification and approval procedure in respect of certain categories of permitted development, and this includes agricultural and forestry buildings and operations.

• Regarding forestry, without the matter being tested and in the absence of a statutory definition, it is unclear whether planting a forest for its biodiversity and climate benefits, with no intention to fell the trees, constitutes “forestry” for these purposes – however, it is arguable that this still falls within “forming and cultivating forests”. To avoid breaching planning law, rewilders should exercise caution. We would advise seeking advice from the local planning authority in each case.

4.1 What are EIAs?

Environmental Impact Assessments (EIA) are a means of drawing together, in a systematic way, an assessment of the likely significant environmental effects arising from a proposed development.

The aim of EIAs is to protect the environment to ensure that the environmental implications of decision making on development proposals, both positive and negative, are known by the planning authority and are taken into account before decisions are made. EIAs require options to prevent, reduce or mitigate any adverse impacts to be considered and included, to off-set any significant environmental impacts that are identified.

4.2 When are EIAs required?

EIAs under the Town and Country Planning (Environmental Impact Assessment) Scotland Regulations 2017 (the “2017 Regulations”)¹⁹

An EIA is always required by developments covered by Schedule 1 of the 2017 Regulations: this focuses on larger developments, such as airports or motorways and is unlikely to be relevant to rewilding projects.

Developments under Schedule 2 of the 2017 Regulations may require an EIA. An EIA will only be required for development that is likely to have significant effects on the environment by virtue of among other things, its nature, size or location. It is for the planning authority (or, in some cases, the Scottish Ministers) to determine whether an EIA is required. As such, it is possible that some activities undertaken within a rewilding project could be a Schedule 2 development and require an EIA.

This is determined through what is known as a screening opinion. If the authority adopts a screening opinion that the development is likely to have significant effects on the environment, then it becomes what is known as an ‘EIA development’ and an assessment is required.

The more environmentally sensitive the location, the more likely it is that the effects on the environment will be significant and will require an EIA. Certain designated sites are defined in regulation 2(1) as sensitive areas – for example, sites of special scientific interest (SSSIs) and national parks – and these will require an EIA in most cases of Schedule 2 developments.

We have highlighted below examples of Schedule 2 development that may be relevant to rewilders and which require EIAs in circumstances where they meet various size thresholds or are being undertaken in sensitive areas:

• Water management (excluding irrigation projects);
• Permanent camp sites (that exceed 1 hectare); and
• Reclamation of land from the sea

For more detailed guidance on whether an EIA is required for a specific rewilding project please refer to NatureScot’s Environmental Impact Assessment Handbook V5²¹ and seek independent legal advice on whether an EIA is required.²²

EIAs for forestry projects

There is a specific EIA regime applicable to forestry projects which are likely to have significant effects on the environment by virtue of factors such as nature, size or location and which meet various other criteria²³.

Note that if a forestry project requires an EIA this must also be submitted to Scottish Forestry. Please refer to their guidance when making an application²⁴.

5.1 Felling Permissions

The felling of trees in Scotland is regulated through the issuing of Felling Permissions²⁵. A Felling Permission provides legal authority to fell the trees covered by the permission and may include conditions for example to ensure trees are replanted.

There are a number of specified circumstances in which Felling Permissions are not required. A full list is available. Of likely most relevance to rewilding, Felling Permissions are not required to cut:

• up to 5 cubic metres of timber in any set calendar quarter (not including native broadleaved woodland and Caledonian Pinewood Inventory sites);
• any trees with a diameter of 10cm or less, as measured at a height of 1.3m;
• trees in orchards, gardens, churchyards, burial grounds and public open spaces;
• to prevent immediate danger to persons or to property;
• dead trees; and
• elm trees affected by Dutch elm disease where the greater part of the crown is dead.

Note that there is not a general exemption permitting the felling of trees affected by ash dieback. This guidance note provides useful information on permissions required for felling trees affected by this disease.

Therefore, for example, if a rewilder intended to fell a monoculture plantation of sitka spruce and replace it with a mix of native broadleaf and conifer trees, a Felling Permission would be required (which may include conditions as to replanting) unless the trees are still young and have trunks of less than 10cm at a height of 1.3 metres above ground level.

Rewilding projects in Scotland should be aware that 38% of Scotland is moorland. Although it’s unlikely to form part of rewilding activities, should any burning of moorland vegetation (including grass and gorse) be planned, it will need to comply with the provisions of the Hill Farming Act 1964.

The Muirburn Code, produced for the Scottish Government by Scotland’s Moorland Forum, provides good practice guidance for burning and cutting of vegetation. It also sets out statutory restrictions, and to highlight these the word MUST is used. If these restrictions are not followed, the muirburn activity will be in breach of statute.

Any activities which may affect Scotland’s water environment (including groundwater) are subject to very detailed regulations which are beyond the scope of this note. If you intend to undertake any activities including e.g. creating new bodies of water or re-naturalising rivers and streams, you may need additional licences and authorisations. Please consult the Scottish Environment Protection Agency (SEPA) website for information.

The following hypothetical examples illustrate how planning law may apply in practice.

Landholder A holds mixed land. Some of it is arable (on which she currently grows cereal crops), some of it is pasture (on which she grazes sheep and cattle) and there is a large area of upland heath where the sheep graze in the summer months. Part of the upland heath is a SSSI due to the fact that it is important foraging territory for raptors and a good example of dwarf-shrub heath plant communities. There is also a barn where the sheep are lambed and sheared as well as some sheds where the cattle are housed in winter. Finally, there is a 4 hectare plantation of mature larch.