Town and Country Planning (Scotland) Act 1972 (repealed 27.5.1997)

85 Appeal against enforcement notice. S

—

[F1 (1) A person on whom an enforcement notice is served, or any other person having an interest in the land may, at any time 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, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

(c) that those matters (if they occurred) do not constitute a breach of planning control;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

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

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 84AA(9) of this Act falls short of what should reasonably be allowed.

(2) An appeal under this section shall be made either—

(a) by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect; or

(b) by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date.]

[F2 (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, [F3 to such persons as may be specified];

(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—

[F4 (a) the Secretary of State may—

(i) correct any defect, error or misdescription in the enforcement notice; or

(ii) vary the terms of the enforcement notice,

if he is satisfied that the correction or variation will not cause injustice to the appellant or the planning authority;]

(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 [F5 84(2)]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 F6 . . . ; and the Secretary of State may—

[F7 (a) grant planning permission in respect of any of the matters stated in the enforcement notice as constituting a breach of planning control or any of those matters so far as relating to part of the land to which the notice relates;

(b) discharge any condition or limitation subject to which planning permission was granted;

(c) grant planning permission for such other development on the land to which the enforcement notice relates as appears to him to be appropriate; and

[F7 (d) determine whether on the date on which the appeal was made, any existing use of the land was lawful, any operations which had been carried out in, on, over or under the land were lawful or any matter constituting a failure to comply with any condition or limitation subject to which the permission was granted was lawful and, if so, issue a certificate under section 90 of this Act.]]

(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; —

[F8 (6A) The planning permission which may be granted under subsection (5) of this section is any planning permission which might be granted on an application under Part III of this Act.

(6B) Where the Secretary of State discharges a condition or limitation under subsection (5) of this section, 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 [F9 in respect of the matters stated in the enforcement notice as constituting a breach of planning control]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. . . F10 planning authority.

[F11 (7A) Where—

(a) the statement under subsection (2A) of section 85 of this Act specifies the ground mentioned in subsection (1)(a) of that section;

(b) any fee is payable under regulations made by virtue of section 87 (fees for planning applications etc.) of the M1 Local Government, Planning and Land Act 1980 in respect of the application deemed to be made by virtue of the appeal; and

(c) the Secretary of State gives notice in writing to the appellant specifying the period within which the fee must be paid,

then, if that fee is not paid within that period, the appeal, so far as brought on that ground, and the application shall lapse at the end of that period.]

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F12

(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.

F13 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 S. 85(1)(2) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 38(1) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F2 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)

F3 Words in s. 85(2B)(d) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 20(a) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2.

F4 S. 85(4)(a) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 20(b)(i) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F5 Words in s. 85(4)(b) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 20(b)(ii) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F6 Words in s. 85(5) repealed (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(6), Sch. 13, para. 20(c)(i), Sch. 19, Pt.IV (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F7 S. 85(5)(a)-(d) substituted for s. 85(5)(a)(b) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13, para. 20(c)(ii) (with s. 84(5)), the substitution being in force at 26.3.1992 as regards s. 85(5)(a)-(c) by S.I. 1992/334, art. 4, Sch.2 and (prosp.)as regards s. 85(5)(d).

F8 S. 85(6A)(6B) substituted (26.3.1992) for words in s. 85(6) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 20(e) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2.

F9 Words in s. 85(7) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13, para. 20(f) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F10 Word repealed by Local Government (Scotland) Act 1973 (c. 65), s. 172(2)

F11 S. 85(7A) inserted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 38(2), (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2.

F12 S. 85(8) repealed by Housing and Planning Act 1986 (c. 63, SIF 123:2), s. 53(2), Sch. 12 Pt. IV

F13 S. 85(11) repealed (26.3.1992) by Planning and Compenstion Act 1991 (c. 34, SIF 123:2), ss. 61, 84(6), Sch. 13, para. 20(g), Sch. 19, Pt. IV (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

Modifications etc. (not altering text)

C2 S. 84(2)–(5) extended by Town and Country Planning Act 1984 (c. 10, SIF 123:1, 2), s. 3(9)

C3 S. 85(10) extended (with modifications) (26.3.1992) by S.I. 1992/478, reg.2, Sch.

Marginal Citations

M1 1980 c. 65