Planning permission and permitted development rights for agricultural and forestry tracks

Cairngorms Plan­ning Advice Note Plan­ning Per­mis­sion and Per­mit­ted Devel­op­ment Rights for Agri­cul­tur­al and Forestry Private Ways

Updated: Septem­ber 2022

The plan­ning sys­tem and private ways

Private ways — often referred to as ​‘tracks’ or ​‘hill­tracks’ — are an essen­tial part of the infra­struc­ture of the Nation­al Park. They help land man­agers to do their work and the pub­lic use them for recre­ation and enjoyment.

Private ways that are for agri­cul­ture or forestry pur­poses are classed as ​‘per­mit­ted devel­op­ment’ in plan­ning law and don’t nor­mally need plan­ning per­mis­sion to be formed or altered. How­ever, the plan­ning author­ity must be told about the pro­posed private ways on agri­cul­tur­al or forestry land before they are cre­ated or changed and can decide that it needs to approve the pro­posed ways before any work can take place.

The Scot­tish Gov­ern­ment has pro­duced com­pre­hens­ive guid­ance on pri­or noti­fic­a­tion and approv­al require­ments for private ways in Cir­cu­lar 2/2015. This Plan­ning Advice provides guid­ance in respect of applic­a­tions for private ways with­in the Cairngorms Nation­al Park.

All private ways that are not on agri­cul­tur­al or forestry land and are not for agri­cul­tur­al and forestry pur­poses need plan­ning per­mis­sion to be formed or altered.

Ask your plan­ning authority

The rules about plan­ning per­mis­sion, per­mit­ted devel­op­ment and private ways are com­plic­ated so you should always speak to your loc­al author­ity about what you’d like to do before you act. You should also refer to Cir­cu­lar 2/2015 for guid­ance. Your loc­al author­ity plan­ning team can explain wheth­er your pro­pos­al is likely to need plan­ning per­mis­sion or oth­er consents.

If you under­take work without the cor­rect approv­al or con­sent, the plan­ning author­ity may take enforce­ment action. This could cost you sig­ni­fic­antly more time and money than if you had fol­lowed the cor­rect process.

Pri­or notification

It is a leg­al require­ment¹ for any­one who intends to form or alter an agri­cul­tur­al or forestry way to make a ​‘pri­or noti­fic­a­tion’ applic­a­tion to the loc­al plan­ning authority.

A pri­or noti­fic­a­tion applic­a­tion for a private way with­in the Cairngorms Nation­al Park must include:

• Rel­ev­ant agri­cul­tur­al holding/​crafting/​forestry regis­tra­tion number
• Descrip­tion of agri­cul­tur­al activ­it­ies car­ried out with­in the agri­cul­tur­al unit
• Descrip­tion of the pro­posed use of the private way
• Scaled loc­a­tion plan show­ing the full extent of the agri­cul­tur­al or forestry unit and the pro­posed private way therein
• Scaled plan (or plans) show­ing and encom­passing the full extent of the pro­posed private way, includ­ing all areas of cut­ting or filling (or both), route edges, water cross­ings and oth­er operations
• Full details (includ­ing scale draw­ings, as neces­sary) of the design and means of con­struc­tion of the private way (includ­ing pro­posed mater­i­als and finishes,

under the Town and Coun­try Plan­ning (Gen­er­al Per­mit­ted Devel­op­ment) (Scot­land) Amend­ment (No. 2) Order 2014

• con­struc­tion meth­ods, seed­ing and verge rein­state­ment etc)
• Full details (includ­ing scale draw­ings, as neces­sary) of all engin­eer­ing oper­a­tions, sur­face water drain­age pro­vi­sion and any on-site pro­pos­als to dis­pose of waste mater­i­al res­ult­ing from the form­a­tion of the private way
• Screen­ing Opin­ion for Envir­on­ment­al Impact Assess­ment (EIA)

In addi­tion, fur­ther detail will be required in cir­cum­stances where;

• Water courses or bod­ies will be crossed — Full details (includ­ing scale draw­ings, as neces­sary) of the design and means of con­struc­tion of any cul­verts, bridges, or oth­er water cross­ings will required.
• Water courses/​bodies, oth­er water envir­on­ment resources and peat­land may be affected — A scale plan show­ing the loc­a­tion of any water courses, lochs/​lochans, wet­lands, flushes, ground­wa­ter-depend­ant ter­restri­al eco­sys­tems (GWDTE), peat­land, ground­wa­ter resources and private water sup­plies will be required.
• Cut­ting or filling (or both) is required or private ways will be formed on a gradi­ent — Full detail (includ­ing scale draw­ings, as neces­sary) of all cut­ting or filling (or both) or oth­er engin­eer­ing oper­a­tions will be required.
• Cut­ting or filling (or both) is required or private ways will be formed on a gradi­ent — Cross-sec­tion­al scale draw­ings for all sec­tions of the private way where (i) with regard to cut­ting or filling (or both), the cut and/​or fill exceeds 0.5m in height/​depth; and (ii) the exist­ing gradi­ent of the land exceeds I in 5/20%//11.31 degrees will be required.

The plan­ning author­ity will use that inform­a­tion to decide wheth­er ​‘pri­or approv­al’ is needed. If suf­fi­cient detail is not provided, Pri­or Approv­al will be required.

You can con­tin­ue with your devel­op­ment in accord­ance with details sub­mit­ted if you:

1. get writ­ten notice from the plan­ning author­ity con­firm­ing that pri­or approv­al is not needed; or
2. have not had any response from the plan­ning author­ity with­in 28 days of the date they received your application.

The ​‘main­ten­ance’ of private ways includes routine repairs and does not require pri­or noti­fic­a­tion. How­ever, works includ­ing small alter­a­tions, re-sur­fa­cing, widen­ing or re-rout­ing and changes to drain­age are con­sidered to be ​‘alter­a­tions’ and will require Pri­or Noti­fic­a­tion. Fur­ther cla­ri­fic­a­tion can be found in Para. 17 of Cir­cu­lar 2/2015. You should get advice from your plan­ning author­ity before under­tak­ing main­ten­ance to an agri­cul­tur­al or forestry way.

Pri­or approval

If the plan­ning author­ity decides you need pri­or approv­al, they will tell you with­in 28 days of receiv­ing your pri­or noti­fic­a­tion applic­a­tion and may ask you for more inform­a­tion. They may also con­sult oth­er organ­isa­tions about your pro­pos­al. They will decide your applic­a­tion and will send you either:

1. a notice grant­ing pri­or approv­al for your pro­pos­al, with or without con­di­tions; or
2. a notice refus­ing pri­or approv­al for your pro­pos­al with reas­ons for it. If your pro­pos­al is refused you have a right of appeal.

If you receive pri­or approv­al from the plan­ning author­ity you can go ahead with your devel­op­ment as long as you com­ply with any con­di­tions attached by the plan­ning authority.

The role of the CNΡΑ

The CNPA ​‘calls-in’ plan­ning applic­a­tions that are par­tic­u­larly sens­it­ive or import­ant to the Nation­al Park². The CNPA has an agree­ment with loc­al author­it­ies that means it can also ​‘call-in’ pri­or approv­al decisions for agri­cul­tur­al or forestry ways that are ​‘sig­ni­fic­ant’ for the Nation­al Park.

The CNPA sees all pri­or noti­fic­a­tion applic­a­tions that are sub­mit­ted to a loc­al author­ity with­in the Nation­al Park and will advise the loc­al author­ity plan­ning team if it thinks a pro­pos­al is sig­ni­fic­ant and requires pri­or approv­al. The CNPA may call in and determ­ine pri­or approv­al applic­a­tions that are sig­ni­fic­ant to the Nation­al Park.

Oth­er things that will be con­sidered in all cases

Envir­on­ment­al Impact Assess­ment (EIA)

All agri­cul­tur­al or forestry private ways in the Cairngorms Nation­al Park have to be screened to see wheth­er an EIA is needed. You must ask your plan­ning author­ity for a scop­ing opin­ion before or at the time of mak­ing a pri­or noti­fic­a­tion application.

If your pro­pos­al is for an agri­cul­tur­al way and needs an EIA you will have to apply for plan­ning per­mis­sion. If your pro­pos­al is for a forestry way and an EIA is needed under Forestry EIA reg­u­la­tions, it won’t need a plan­ning applic­a­tion but will need pri­or noti­fic­a­tion and pos­sibly pri­or approval.

European Des­ig­nated Sites

If an agri­cul­tur­al or forestry way is likely to have a sig­ni­fic­ant effect on a European des­ig­nated site (Spe­cial Area of Con­ser­va­tion (SAC) or Spe­cial Pro­tec­tion Area (SPA)), per­mit­ted devel­op­ment rights are removed until the plan­ning author­ity gives writ­ten approv­al. This writ­ten approv­al is likely to come through a plan­ning per­mis­sion, a pri­or approv­al, or simply a let­ter from the plan­ning author­ity. No devel­op­ment can start till that writ­ten approv­al has been given.

Almost half of the area of the Nation­al Park is covered by European des­ig­nated sites. All the water courses includ­ing trib­u­tary rivers, streams and even ditches that are con­nec­ted to the Rivers Spey, Dee, Tay and South Esk are SAC sites. This means that any devel­op­ment near to these water courses could have a sig­ni­fic­ant effect on them. The plan­ning author­ity can only give approv­al where it is cer­tain that the pro­pos­al will not affect the integ­rity of the site.

Nation­al Scen­ic Areas

All private ways (that are not part of an approved forestry scheme) in Nation­al Scen­ic Areas (NSAS) need plan­ning per­mis­sion. There are three Nation­al Scen­ic Areas with the Nation­al Park:

1. The Cairngorm Moun­tains NSA, that cov­ers a large part of the cent­ral Cairngorms and the Inshriach, Rothiemurchus and Glen­more areas north to the rail­way line on the north­east side of the river Spey;
2. Deeside and Loch­nagar NSA, that includes Deeside from the Linn of Dee in the west to close to Bal­later in the east; and
3. Loch Tum­mel NSA that cov­ers a small part of the Nation­al Park at Killiecrankie.

² See Cairngorms Plan­ning Advice Note: Apply­ing for Plan­ning Per­mis­sion in the Cairngorms Nation­al Park.

New or altered Private Ways and the Plan­ning System:

Is the private way required for agri­cul­tur­al or forestry operations?

YES

Is the private way loc­ated with­in a Nation­al Scen­ic Area (and not part of an approved affor­est­a­tion scheme)?

YES

NO

A Pri­or Noti­fic­a­tion applic­a­tion must be sub­mit­ted to the Plan­ning Author­ity who will decide one of two outcomes:

Pri­or Approv­al not required where the plan­ning author­ity noti­fies the applic­ant that pri­or approv­al is not required or no response is received with­in 28 days of receipt of the application.

NO

Plan­ning applic­a­tion is likely to be required*.

ElA required

EIA Screen­ing

Pri­or Approv­al is required where the plan­ning author­ity needs more inform­a­tion, assess­ment or changes. Pri­or Approv­al may be approved, approved sub­ject to con­di­tions or refused. If refused, the applic­ant has the right to appeal.

Envir­on­ment­al Impact Assess­ment (ΕΙΑ)

You must ask the plan­ning author­ity for an ElAscreen­ing opin­ion for any private way pro­pos­als with­in the Cairngorms Nation­al Park before or at the same time as sub­mit­ting a Pri­or Noti­fic­a­tion application.

*If a pro­pos­al needs an ElA then it also needs a plan­ning applic­a­tion unless it is a forestry track covered by forestry ElA regulations.

European Sites & Hab­it­ats Regulations

If a pro­pos­al is likely to have a sig­ni­fic­ant effect on a European des­ig­nated site (Natura SPA or SAC), per­mit­ted devel­op­ment rights are removed until the plan­ning author­ity has approved the pro­pos­al in writing.

Fur­ther advice

If you need a new private way, to alter an exist­ing way or to repair of an exist­ing way, The Scot­tish Government’s Cir­cu­lar 2/2015 Con­sol­id­ated Cir­cu­lar on Non-Domest­ic Per­mit­ted Devel­op­ment Rights (Plan­ning cir­cu­lar 2/2015: non-domest­ic per­mit­ted devel­op­ment rights — con­sol­id­ated cir­cu­lar — updated 2021 — gov.scot (www.gov.scot)) provides com­pre­hens­ive guid­ance on pri­or noti­fic­a­tion and pri­or approv­al require­ments in rela­tion to agri­cul­tur­al and forestry ways.

In addi­tion, NatureScot’s advice: Con­struc­ted Tracks in the Scot­tish Uplands, NatureScot, form­ally SNH, 2013 (updated, 2015) (Con­struc­ted tracks in the Scot­tish Uplands | NatureScot) will help you design in a way that is most likely to be giv­en plan­ning per­mis­sion or pri­or approval.

The Cairngorms Plan­ning Advice Note ​‘Apply­ing for Plan­ning Per­mis­sion in the Cairngorms Nation­al Park’ explains more about plan­ning per­mis­sion in the Park.

You can con­tact the CNPA plan­ning team for advice at planning@​cairngorms.​co.​uk or Tel: 01479 873535