Town and Country Planning (Scotland) Act 1972 (repealed 27.5.1997)

85 Appeal against enforcement notice. S

(1) a person on whom an enforcement notice is served, or any other person having an interest in the land may, at any time [F1 before the date specified in the notice as the date on] which it is to take effect, appeal to the Secretary of State against the notice on any of the following grounds—

(a) that planning permission ought to be granted for the development to which the notice relates or, as the case may be, that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged;

(b) that the matters alleged in the notice do not constitute a breach of planning control;

[F2 (bb) that the breach of planning control alleged in the notice has not taken place;]

(c) in the case of a notice which, by virtue of section 84(3) of this Act, may be served only within the period of four years from the date of the breach of planning control to which the notice relates, that that period has elapsed at the date of service;

(d) in the case of a notice not falling within paragraph (c) of this subsection, that the breach of planning control alleged by the notice occurred before the beginning of 1965;

(e) that the enforcement notice was not served as required by section 84(5) of this Act;

(f) that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control;

(g) that the specified period for compliance with the notice falls short of what should reasonably be allowed.

[F3 (2) An appeal under this section shall be made by notice in writing to the Secretary of State.

(2A) A person who gives notice under subsection (2) of this section shall submit to the Secretary of State, either when giving the notice or within such time as may be prescribed under subsection (2B) of this section, a statement in writing—

(a) specifying the grounds on which he is appealing against the enforcement notice; and

(b) giving such further information as may be so prescribed.

(2B) The Secretary of State may prescribe the procedure to be followed on appeals under this section, and (without prejudice to the generality of the foregoing provisions of this subsection) in so prescribing—

(a) may specify the time within which an appellant is to submit a statement under subsection (2A) of this section and the matters on which information is to be given in such a statement;

(b) may require the planning authority to submit, within such time as may be specified, a statement indicating the submissions which they propose to put forward on the appeal;

(c) may specify the matters to be included in such a statement;

(d) may require the authority or the appellant to give such notice of an appeal under this section as may be specified, being notice which in the opinion of the Secretary of State is likely to bring the appeal to the attention of persons in the locality in which the land to which the enforcement notice relates is situated;

(e) may require the authority to send to the Secretary of State, within such period from the date of the bringing of the appeal as may be specified, a copy of the enforcement notice and a list of the persons on whom the notice has been served.

(2C) The Secretary of State—

(a) may dismiss an appeal if the appellant fails to comply with subsection (2A) above within the time prescribed under subsection (2B)(a) above; and

(b) may allow an appeal and quash the enforcement notice if the planning authority fail to comply with any requirement imposed by virtue of paragraph (b), (c) or (e) of subsection (2B) above.

(2D) Subject to subsection (2C) above, the Secretary of State shall, if either the planning authority or the appellant so desire, afford to each of them an opportunity of appearing before, and being heard by, a person appointed by him for the purpose.]

(3) Where an appeal is brought under this section, the enforcement notice shall be of no effect pending the final determination or the withdrawal of the appeal.

(4) On an appeal under this section—

(a) the Secretary of State may correct any informality, defect or error in the enforcement notice if he is satisfied that the informality, defect or error is not material;

(b) in a case where it would otherwise be a ground for determining the appeal in favour of the appellant that a person required by section 84(5) of this Act to be served with the notice was not served, the Secretary of State may disregard that fact if neither the appellant nor that person has been substantially prejudiced by the failure to serve him.

(5) On the determination of an appeal under this section, the Secretary of State shall give directions for giving effect to his determination, including, where appropriate, directions for quashing the enforcement notice or for varying the terms of the notice in favour of the appellant; and the Secretary of State may—

(a) grant planning permission for the development to which the enforcement notice relates or, as the case may be, discharge any condition or limitation subject to which planning permission for that development was granted;

[F4 (aa) grant planning permission for such other development on the land to which the enforcement notice relates as appears to him to be appropriate;]

(b) determine any purpose for which the land may, in the circumstances obtaining at the time of the determination, be lawfully used having regard to any past use thereof and to any planning permission relating to the land.

(6) In considering whether to grant planning permission under subsection (5) of this section, the Secretary of State shall have regard to the provisions of the development plan, so far as material to the subject-matter of the enforcement notice, and to any other material considerations; and any planning permission granted by him under that subsection may—

(a) include permission to retain or complete any buildings or works on the land, or to do so without complying with some condition attached to a previous planning permission;

(b) be granted subject to such conditions as the Secretary of State thinks fit;

and where under that subsection he discharges a condition or limitation, he may substitute for it any other condition or limitation.

(7) Where an appeal against an enforcement notice is brought under this section, the appellant shall be deemed to have made an application for planning permission for the development to which the notice relates and, in relation to any exercise by the Secretary of State of his powers under subsection (5) of this section, the following provisions shall have effect—

(a) any planning permission granted thereunder shall be treated as granted on the said application;

(b) in relation to a grant of planning permission or a determination under that subsection, the Secretary of State’s decision shall be final; and

(c) for the purposes of section 31 of this Act, the decision shall be treated as having been given by the Secretary of State in dealing with an application for planning permission made to the. . . F5 planning authority.

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6

(9) Subject to section 279 of this Act, Schedule 7 to this Act applies to appeals under this section, including appeals under this section as applied by regulations under any other provision of this Act.

(10) The validity of an enforcement notice shall not, except by way of an appeal under this section, be questioned in any proceedings whatsoever on any of the grounds specified in paragraphs (b) to (e) of subsection (1) of this section.

(11) Subsection (10) of this section shall not apply to proceedings brought under section 86 of this Act against a person who—

(a) has held an interest in the land since before the enforcement notice was served under section 84 of this Act; and

(b) did not have the enforcement notice served on him thereunder; and

(c) satisfies the court that—

(i) he did not know and could not reasonably have been expected to know that the enforcement notice had been served; and

(ii) his interests have been substantially prejudiced by the failure to serve him.

Textual Amendments

F1 Words substituted by Local Government and Planning (Scotland) Act 1982 (c.43), s. 69(2), Sch. 2 para. 20(a)(i)

F2 S. 85(1)(bb) inserted by Local Government and Planning (Scotland) Act 1982 (c.43), s. 69(2), Sch. 2 para. 20(a)(ii)

F3 S. 85(2)—(2D) substituted for s. 85(2) by Local Government and Planning (Scotland) Act 1982 (c.43), s. 69(2), Sch. 2 para. 20(b)

F4 S. 85(5)(aa) added by Local Government and Planning (Scotland) Act 1982 (c.43), s. 69(2), Sch. 2 para. 20(c)

F5 Word repealed by Local Government (Scotland) Act 1973 (c. 65), s. 172(2)

F6 S. 85(8) repealed by Housing and Planning Act 1986 (c. 63, SIF 123:2), s. 53(2), Sch. 12 Pt. IV

Modifications etc. (not altering text)

C1 S. 84(2)–(5) extended by Town and Country Planning Act 1984 (c. 10, SIF 123:1, 2), s. 3(9)

C2 S. 84(7A)(b)(10)(12), 85(10)(11), 86, 87, 87A, 89, 89A extended (with modifications) by S.I. 1984/995, reg. 2, Sch. (which S.I. was revoked (26.3.1992) by S.I. 1992/478, art. 3)