Town and Country Planning (Scotland) Act 1997

239 Proceedings for questioning the validity of other orders, decisions and directions. S

(1) If any person—

(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—

(i) that the order is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that order, or

(b) is aggrieved by any action on the part of the Secretary of State [F1 , or on the part of a planning authority,] to which this section applies and wishes to question the validity of that action on the grounds—

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the Court of Session under this section.

(2) Without prejudice to subsection (1), if the authority directly concerned with any order to which this section applies, or with any action on the part of the Secretary of State to which this section applies, wish to question the validity of that order or action on any of the grounds mentioned in subsection (1), the authority may make an application to the Court of Session under this section.

(3) An application under this section must be made within 6 weeks from the date on which the order is confirmed (or, in the case of an order under section 65 which takes effect under section 67 without confirmation, the date on which it takes effect) or, as the case may be, the date on which the action is taken.

(4) This section applies to any such order as is mentioned in subsection (2) of section 237 and to any such action on the part of the Secretary of State as is mentioned in subsection (3) of that section [F2 or on the part of a planning authority as is mentioned in subsection (3A) of that section].

(5) On any application under this section the Court of Session—

(a) may, subject to subsection (6), by interim order suspend the operation of the order or action in question until the final determination of the proceedings;

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements in relation to it, may quash that order or action.

(6) Paragraph (a) of subsection (5) shall not apply to applications questioning the validity of tree preservation orders.

(7) In relation to a tree preservation order, or to an order made in pursuance of section 183(4), the powers conferred on the Court of Session by subsection (5) shall be exercisable by way of quashing or (where applicable) suspending the operation of the order either in whole or in part, as the court may determine.

(8) References in this section to the confirmation of an order include the confirmation of an order subject to modifications as well as the confirmation of an order in the form in which it was made.

(9) In this section “the relevant requirements”, in relation to any order or action to which this section applies, means any requirements of this Act or of the M1 Tribunals and Inquiries Act 1992, or of any order, regulations or rules made under this Act or under that Act which are applicable to that order or action.

(10) Any reference in this section to the authority directly concerned with any order or action to which this section applies—

(a) in relation to any such decision as is mentioned in section 237(3)(e), where the Secretary of State confirms the notice in question, wholly or in part, with the substitution of another local authority or statutory undertakers for the planning authority, includes a reference to that local authority or those statutory undertakers;

(b) in any other case, is a reference to the planning authority.

Textual Amendments

F1 Words in s. 239(1)(b) inserted (12.12.2008 for specified purposes, 3.8.2009 in so far as not already in force) by Planning etc. (Scotland) Act 2006 (asp 17), ss. 19(4)(a), 59(2); S.S.I. 2008/411, art. 2(2)(3)(a), S.S.I. 2009/219, art. 2, sch.

F2 Words in s. 239(4) added (12.12.2008 for specified purposes, 3.8.2009 in so far as not already in force) by Planning etc. (Scotland) Act 2006 (asp 17), ss. 19(4)(b), 59(2); S.S.I. 2008/411, art. 2(2)(3)(a), S.S.I. 2009/219, art. 2, sch.

Modifications etc. (not altering text)

C1 S. 239 applied (with modifications) (1.4.2010) by The Management of Extractive Waste (Scotland) Regulations 2010 (S.S.I. 2010/60), regs. 1(1), 10(5) (with regs. 4, 5)

C2 S. 239 applied (with modifications) (1.6.2015) by The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 2015 (S.S.I. 2015/181), regs. 1, 54(1)(3)

C3 S. 239: power to apply conferred (27.5.1997) by 1997 c. 10, ss. 23(1)(b), 31, 40(2) (with ss. 9(3), 10(5), 38(6)

S. 239(1)(b),(2): extended (1.8.1999) by S.S.I. 1999/1, reg. 43

C4 S. 239(1)(b) modified (16.5.2017) by The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 (S.S.I. 2017/102), regs. 1, 47 (with regs. 2(10), 38, 39, 40, 60(7))

C5 S. 239(2) modified (16.5.2017) by The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 (S.S.I. 2017/102), regs. 1, 47 (with regs. 2(10), 38, 39, 40, 60(7))

Marginal Citations

M1 1992 c. 53.