Gaming the holes in Scotland’s planning system

Yesterday I was notified by Highland Council that the planning application (Ref 23/04957/FUL) for a telecommunications mast and 2.4km of track in the Wild Land Area at the eastern end of Loch Mullardoch had been withdrawn.  A small bit of good news.

Highland Council has already withdrawn all the documentation associated with the application and the response from statutory consultees, including NatureScot, from the planning portal.  This wipes the developer’s slate clean.  There is no public explanation as to why the application has been withdrawn and there nothing to stop the developer now re-submitting the documentation as a new application forcing those who objected to do so all over again.

Generally telecommunications masts are treated under Scotland’s planning system as permitted developments if they are under 30m in height (see here for the law).  This particular telecommunications mast required full planning permission as it was in a protected area and also involved creation of a new track. The reason it was needed was also highly questionable as the area is only a “partial not spot” in terms of mobile coverage and the developer had provided no explanation as to why all four of the main mobile operators could not have shared the existing mast.

Once the local community council and recreational organisations had objected, therefore, as was the case with the proposed mast in the heart of Torridon, refusal of the application was highly likely. (The objections from outdoor recreational organisation and individuals were still on Highland Council’s planning portal this morning under public comments (see here)).  Rather than set a precedent for a mast being refused, just as in Torridon the consortium behind the application has withdrawn it.  This leaves them free to come back with a new application at any time.

While Wild Land Areas are not classed as protected areas under planning law, ostensibly they are given some protection under National Planning Framework 4 (NPF4) which states:

“Development proposals in areas identified as wild land in the Nature Scot Wild Land Areas map will only be supported where the proposal:
i. will support meeting renewable energy targets; or
ii. is for small scale development directly linked to a rural business or croft, or is required to support a fragile community in a rural area.
All such proposals must be accompanied by a wild land impact assessment…..”

This advice, however, only applies to developments requiring planning permission NOT permitted developments such telecommunications masts less than 30m high.  If the Mullardoch application had NOT been in a protected area and hadn’t involved construction of a new track (tracks to telecommunications masts do require planning permission unlike those for agriculture or freestry) Highland Council would have had little grounds for refusing it.  In my view, therefore, it is extremely unlikely that the reason the developer withdrew it was because it was in a Wild Land Area.

The Shared Rural Network programme and the position of the Scottish Government

The £1bn capital costs of Shared Rural Network programme which aims to remove total and partial not spots in mobile coverage in Scotland is being funded by the UK Government and mobile phone providers.  To date the recreational organisations concerned about protecting Wild Land have focussed their attention on the apparent source of the problem, the UK Government.  Early in the New Year they received welcome media coverage (see here) of the letter they had written with local communities to the Minister for Media, Data and Digital Infrastructure about the need to protect Scotland’s landscapes.

In the last six weeks, however, it has become apparent that the Scottish Government, while happy to leave the capital funding to the UK Government, is actively supporting the expansion of telecommunications masts across Scotland’s finest landscapes.

In order to improve mobile coverage to rural communities the Scottish Government has provided temporary relief from non-domestic rates for certain telecommunications masts (see here). Unfortunately,  there is no map showing the location of these masts, only a list of Grid References.  This makes it very difficult to understand which masts are being subsidised by the public.

In the Scottish Budget for 2024/25, published on 19th December, it was announced that “Telecommunications mast relief will be extended from 31 March 2029 to 31 March 2031.”  This appears intended to reduce the operating costs of the masts for mobile phone operators in remote areas – an encouragement to them to build masts on wild land.

Then on 23rd Decembe,r at the start of the media shut down over Xmas, the Scottish Government published new planning guidance on Digital Communications (see here).   I only came across this when checking the law on telecommunications masts and wild land for this post.  It shows beyond doubt that the Scottish Government is fully behind the extension of telecommunications masts across Scotland, whatever the impact on landscape and wild land:

“The planning system can assist in addressing the gaps in connectivity and barriers to digital access by supporting the delivery of new digital services and technological improvements, particularly in
areas with no or low connectivity capacity………………….

…………….At the time of writing, despite significant progress large parts of rural Scotland still have little or no mobile connectivity. These are often challenging areas in which to deploy mobile infrastructure because of areas of natural and cultural significance, topography and the economics of developing installations that might only serve small populations and low numbers of passing customers. To address the digital divide that has emerged in these areas, the Scottish Government, the UK
Government and the Mobile Network Operators (MNO) are working together to transform mobile coverage countrywide in the Scottish 4G Infill (S4GI) and Shared Rural Network (SRN) programmes. To gain maximum coverage, it is likely that some of the SRN infrastructure will be tall, but that should reduce the overall number of sites that may otherwise be required in some sensitive landscapes.”

This is really all you need to know.  The Scottish Government wants to maximise mobile coverage across Scotland, whatever the need, and the purpose of issuing the guidances appears to be to make that quite clear to planning authorities.

There has been no democratic mandate for this.  The guidance has not been considered by the Scottish Parliament and there appears to have been no public consultation by the Scottish Government.  Moreover, while the guidance refers to the importance of local development plans (LDPs), which are subject to public consultation, for directing where developments go, the Shared Rural Network postdates all current LDPs so none have been shaped by public opinion on this issue.

Instead, a group of civil servants – and possibly some Scottish Government Ministers – have sat in a room somewhere with the UK Government and mobile phone operators and agreed a programme that will destroy Scotland’s finest landscapes, as Robert Craig demonstrated on this blog last week (see here).

There are just two references to National Scenic Areas in the 40 page guidance, the first of which points out that permitted development rights don’t apply in NSAs and telecommunications masts therefore require full planning permission.  The second reference occurs in the only sentence which mentions Wild Land:

“NatureScot standing advice on planning consultations for telecommunication masts in National Scenic Areas, National Parks and Wild Land Areas may [my emphasis] also be helpful.”

“May” not “must”.  Instead of advising Planning Authorities that they should take full cognisance of the importance of landscape and remote areas free from human development in Scotland, the guidance is phrased in a way that suggests Planning Authorities don’t have to take much account of this.  The overall intention appears to be to get Planning Authorities to process these applications as quickly as possible before the UK funding comes to an end.

What needs to happen

Up until now campaigners trying to save some of Scotland’s finest landscapes from the being blighted by telecommunications masts have directed their attention towards the UK Government.  That is still required, particularly as providing £500m to install masts to provide coverage to remote areas when these will soon be covered by satellite technology makes no financial sense.  The UK Government money would be far better invested to improving other infrastructure to support remote local communities (including facilities that help manage visitor impacts).

However, recreational organisations and local communities now need to turn their fire towards the Scottish Government and try to force them into a re-think. Whatever Scottish Government Ministers think of the importance of wild land and landscape, the advent of satellite technology means there is absolutely no argument for wrecking wild land areas to assist mountain rescue services or anyone else who wants to use a phone in such places.

It should now be clear that NPF4 is fatally flawed in respect of the protection it offers Wild Land Areas.  By allowing permitted development rights to continue and supporting renewable energy developments in wild land areas, it effectively supports almost every type of development (including masts and tracks) that was ever likely to take place in some Scotland’s finest landscapes.

Despite these fundamental weaknesses in planning law, the Scottish Government could have issued guidance which emphasised to planning authorities the importance of protecting wild land and landscape, making it easier for them to direct masts to areas where they were needed by local communities.  They have chosen not to do so.  Recreational organisations, local communities and everyone else concerned about these masts should now demand that the Scottish Government withdraw its new planning guidance on telecommunications structures and withdraws non-domestic rates relief for new masts and instead invest the additional revenue in local communities.