On 18 March 2011, the Town and Country Planning (General Permitted Development)(Non-Domestic Microgeneration)(Scotland) Amendment Order 2011 (the “Order”), came into force, allowing “deemed planning permission” for the installation, alteration and replacement of certain microgeneration equipment on or in the curtilage of non-domestic buildings as required under s71 of the Climate Change (Scotland) Act 2009.

A “non-domestic building” includes any building other than a dwelling or a building containing a dwelling, where a dwelling is a dwellinghouse, a building containing one or more flats or a flat contained within such a building. Permitted development rights already allow for the installation, alteration and replacement of certain microgeneration equipment in relation to domestic properties.

The amendment to Permitted Development Rights means that provided the specific criteria defined within each Class of the Order are met, there will be no requirement to make an application for planning permission, and no obligation to consult with owners, occupiers and neighbours. Conversely, if all the criteria- including exclusions and conditions- are not met, the developer may become subject to planning enforcement action if planning permission is not otherwise obtained.

It is hoped that the extension of permitted development rights to buildings with non-domestic uses, will further encourage the use of renewable energy technologies. In its Consultation Paper “Permitted Development Rights for Microgeneration Equipment on Non-Domestic Properties”, the Scottish Government outlined its aim to “encourage wider uptake of the technology whilst managing the adverse impacts on neighbours, and maintaining the positive qualities of the built and natural environment.”

The Order introduces the following new general Classes of development to the 1992 Order:

Class 6I: The installation, alteration or replacement of underground pipes (within the curtilage of a non-domestic building) in connection with a ground source heat pump and/or a water source heat pump;

Class 6J: The installation, alteration or replacement of Solar PV or Solar Thermal equipment on a non-domestic building;

Class 6K: Works on agricultural land, for the erection, extension or alteration of a non-domestic building or structure for: the generation of energy from burning biomass; the generation of energy from anaerobic digestion of biomass; or the storing of biomass; all including works for the installation, alteration or replacement of a flue forming part of the biomass equipment;

Class 6L: Works on forestry land, for the erection, extension or alteration of a non-domestic building or structure for: the generation of energy from burning biomass; the generation of energy from anaerobic digestion of biomass; or the storing of biomass; all including works for the installation, alteration or replacement of a flue forming part of the biomass equipment;

Class 6M: The extension or alteration of an industrial building or warehouse for: the generation of energy from burning biomass; and/or the storage of biomass; both including works for the installation, alteration or replacement of a flue forming part of the biomass equipment.

Specific exclusions and conditions restrict the scope of each class of development. On this basis, developers should seek legal advice on the extent of rights permitted under each class, in order to determine whether a proposed development might benefit from deemed planning permission.

Whilst the Order goes some way to encouraging the increased use of microgeneration technology in non-domestic buildings, the Government appear to have taken a step back from their original proposals. The Order puts in place a significantly narrower regime from the proposals originally included in the Consultation Paper. Fewer technologies will benefit from permitted development rights, with notable exclusions being wind turbines, micro hydro and free standing solar technologies. Nonetheless, the amendments are a positive development, allowing properties which were previously excluded from permitted development rights in relation to microgeneration technologies, to benefit from a more certain, faster and less costly process.

For further information, please contact Alastair McKie, Cecilia O’Connell or Jennifer Dunlop.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.