Bidwells LLP and FarrPoint Ltd Research on Permitted Development Rights and Planning Guidance for Electronic Communications Infrastructure 25 May 2016 (Final Report) Report prepared by: Corinne MacDougall Bidwells LLP 5 Atholl Place Perth PH1 5NE Jan Miszalowski FarrPoint 28 Rutland Square, Edinburgh EH1 2BW The opinions expressed in this report are those of the authors. The authors would like to thank all of the people who contributed to this research, including: Development Management officers in Scottish local authorities and statutory/Non Statutory Stakeholders who completed the questionnaire, and/or discussed the issues with us by telephone and/or at the road testing workshop; Telecom operators and agents who contributed experience of current Permitted Development rights for electronic communications infrastructure and requirements for further extensions to Permitted Development rights, including approvals for the use of the information contained in Annex F of this report; Members of the client Steering Group comprising representatives of the Scottish Government’s Building Standards Division (BSD), Planning and Architecture Division (PAD), and the Scottish Government’s Directorate for Digital (DD). Applicants and Planning Authorities who contributed and assisted with preparation of the case studies included in Section 8 of this report. 2 Report commissioned by: Planning and Architecture Division Area 2H South Victoria Quay Edinburgh EH6 6QQ Tel: 0131 244 7825 e-mail: [email protected] web: http://www.gov.scot/Topics/Built-Environment/planning © Crown Copyright 2016 Applications for reproduction of any part of this publication should be addressed to: Planning and Architecture Division, Directorate for Local Government and Communities, Area 2H (South) Victoria Quay, Edinburgh, EH6 6QQ This report is published electronically to limit the use of paper, but photocopies will be provided on request to Planning and Architecture Division. 3 Contents 1 Executive Summary 5 2 Introduction 10 3 Research Approach 13 4 The Telecoms Industry and Evolving Requirements 16 5 General Permitted Development Order and Related Legislation 22 6 Industry Consultation 37 7 PA/Stakeholder consultation 46 8 Best Practice Case Studies 55 9 Research Findings 58 10 Recommendations 75 Annex A: Bibliography 82 Annex B: Stakeholder Consultees 86 Annex C: Scotland’s Legislative Landscape 88 Annex D: England’s Legislative Landscape 92 Annex E: Other References 98 Annex F: Types of Development (examples taken from the planning application sample)101 Annex G: Glossary of Terms 112 4 1 Executive Summary 1.1 Introduction 1.1.1 The Scottish Government appointed Bidwells LLP and FarrPoint Ltd to explore the possible extension of existing Permitted Development (PD) rights for electronic communications infrastructure for fixed and mobile systems, and to make detailed evidence based recommendations on the scope for further changes. 1.1.2 Class 67 of Schedule 1 to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (GPDO) grants planning permission (known as PD rights) for certain developments by Electronic Communications Code Operators subject to restrictions and conditions – removing the need to apply for planning permission. 1.1.3 The Electronic Communications Code ('the Code') enables electronic communications network providers to construct electronic communications networks. The Code enables these providers to construct infrastructure on public land (streets), to take rights over private land, either with the agreement with the landowner or applying to the County Court or the Sheriff in Scotland, and to make use of PD rights. The Code has effect in all cases subject to the conditions and restrictions set out in the Electronic Communications Code (Conditions and Restrictions) Regulations 2003. 1.2 Aims of this research project 1.2.1 The aims of this research project are threefold: Produce evidence based recommendations on the scope for legislative changes to further increase PD rights for electronic communications infrastructure; Identify and report on good practice case studies in handling planning applications for electronic communications infrastructure; Make suggestions on which aspects of the Planning Advice Note: Radio Telecommunications (PAN 62) can usefully be retained, and on the need for and content of any new advice required. 5 1.3 Methodology 1.3.1 The research recommendations are based on findings from the following in relation to electronic communications infrastructure: 1.3.1.1 Literature review to capture the state of the industry, emerging trends, the Scottish Government telecoms policy, planning regime, PD rights and associated guidance (PAN 62); 1.3.1.2 Analysis of a sample of submitted planning applications for years 2013-14 and 2014-15; 1.3.1.3 Captured industry needs for extensions to PD rights and associated rationale/justification; 1.3.1.4 Views of Planning Authorities (PA) and Stakeholders on industry requests for PD rights extensions; 1.3.1.5 Industry, PAs and Stakeholders’ views on which aspects of PAN 62 can usefully be retained, and on the need for and content of any new advice required; 1.3.1.6 Examples highlighted by industry and PAs on best practice. 1.4 Context 1.4.1 The Scottish Government has a vision for world-class, future proofed infrastructure that will deliver digital connectivity across Scotland. This will be driven by many factors, including technology, the market, targeted government initiatives and an effective regulatory and legislative landscape. The Scottish Government has a key role to play in encouraging and incentivising investment in digital infrastructure in Scotland, to achieve policy objectives and meet increasing consumer demand for connectivity. 1.4.2 The Scottish Government recognises the importance of mobile coverage for Scotland economically, socially and in terms of resilience. The Scottish Government is committed to working in collaboration with industry to improve mobile coverage in Scotland, particularly in hard to reach areas or those parts of Scotland likely to be out with the commercial rollout of 4G services. This research work is part of a wider package of measures under consideration to encourage the provision of mobile services in remote and rural areas. 6 1.4.3 The UK Government on 17th March 2016 announced a significant package of planning relaxations to support the deployment of mobile infrastructure in England, and to seek views on the complementary changes needed to the Electronic Communications Code (Conditions & Restrictions) Regulations 2003. Scotland has to be mindful of these outcomes, to ensure that the Scottish planning system is flexible and encourages suitable build in the right areas in line with Scottish Government objectives. 1.4.4 This research work has captured a need from industry for certainty and flexibility to be provided through the planning system to enable the optimal deployment of electronic communications infrastructure. Mobile Network Operators (MNOs) have emphasised the need for PD rights extensions to enable greater height increases to existing masts and for construction and installation of new ground based masts for improving mobile coverage, particularly in rural areas. 1.4.5 This study has identified a high planning application approval rate for electronic communications infrastructure based on PA’s and industry feedback, and the sample of planning applications analysed. The Code of Best Practice on Mobile Network Development in England (but also applied by operators to proposals in Scotland) is considered by mobile and wireless operators to offer effective guidance towards achieving a successful planning outcome. A separate code applies to fixed line operators. The research work has captured two case studies (see Section 8) demonstrating how a successful planning outcome can be achieved through applying best practice and effective engagement between the PA, applicant and other relevant bodies/organisations. Such evidence suggests that proposals following best practice are in the main appropriate, with an argument to be made that electronic communications infrastructure could benefit from further extensions of PD rights. 1.4.6 The findings of this research work based on the views of PA’s, Stakeholders, industry and the lack of objections noted in the planning application sample analysed would suggest that public concern has reduced since the publication of PAN 62 (2001). The need for connectivity and the resultant social and economic benefits may be changing the perception of the public on the value of telecoms infrastructure. However, no firm conclusion can be drawn based on the extent of research work conducted. 1.5 Recommendations 1.5.1 This research work has established scope for further PD rights extensions to Class 67 of the GPDO as amended by the Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2014, and makes the following recommendations: 7 1.5.1.1 Extension of the time period for emergency works from 12 months to 18 months. To reflect the timescales required to fully address, emergency issues and to reduce the impact of loss in service; 1.5.1.2 Further height increase (plus 10% of existing height in addition to existing 5 metres) for alterations and replacement of existing masts up to 20 metres in height; with relocation distance increased from 4 metres to 6 metres. To provide greater flexibility to Electronic Communications Code Operators for mast alterations/replacements