The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993

Appeal against enforcement notice

85.—(1) A person on whom a hazardous substances contravention 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 contravention of hazardous substances control specified in the notice, hazardous substances consent ought to be granted for the quantity of the hazardous substance present on, over or under the land or, as the case may be, the condition concerned ought to be discharged;

(b) that the matters alleged to constitute a contravention of hazardous substances control have not occurred;

(c) that those matters (if they occurred) do not constitute a contravention of hazardous substances control;

(d) that copies of the hazardous substances contravention notice were not served as required by or under section 97B(4) of this Act;

(e) that the steps required by the notice to be taken exceed what is necessary to remedy any contravention of hazardous substances control;

(f) that any period specified in the notice in accordance with section 97B(5)(b) 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 appeal to the Secretary of State before the date specified in the hazardous substances contravention 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.

(2A) A notice under subsection (2) of this section shall be accompanied by a copy of the hazardous substances contravention notice, together with a statement in writing—

(a) specifying the grounds on which the appeal is being made against the hazardous substances contravention notice; and

(b) setting out the appellant’s submissions in relation to each ground of appeal.

[(2B) This subsection is omitted]

(2C) The Secretary of State—

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

(b) may allow an appeal and quash the hazardous substances contravention notice if the planning authority fail to comply with regulation 20(2) of the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993.

(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) This subsection is omitted]

(4) On an appeal under this section—

(a) the Secretary of State may—

(i) correct any defect, error or misdescription in the hazardous substances contravention notice; or

(ii) vary the terms of the hazardous substances contravention notice,

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

(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(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 hazardous substances contravention notice fi and the Secretary of State may—

(a) grant hazardous substances consent for the presence of the hazardous substance on, over or under the land to which the hazardous substances contravention notice relates;

(b) discharge any condition subject to which hazardous substances consent was granted.

• [(5A) & (5B) These subsections are omitted]

(6) In considering whether to grant hazardous substances consent under subsection (5) of this section, the Secretary of State shall have regard to the considerations specified in section 56E(2) of this Act.

(6A) Any hazardous substances consent that may be granted under subsection (5) of this section is any hazardous substances consent that might be granted on an application under Part IV of this Act.

(6B) Where under subsection (5) of this section the Secretary of State discharges a condition he may substitute for it any other condition or limitation.

(7) Where an appeal against a hazardous substances contravention notice is brought under this section, the appellant shall be deemed to have made an application for hazardous substances consent in respect of the matters specified in the hazardous substances contravention notice as constituting a contravention of hazardous substances 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 hazardous substances consent granted thereunder shall be treated as granted on the said application;

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

(c) for the purposes of section 56N of this Act, the decision shall be treated as having been given by the Secretary of State in dealing with an application for hazardous substances consent made to the planning authority.

(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 56DA of this Act 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 asbrought on that ground, and the application shall lapse at the end of that period.

(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 a hazardous substances contravention 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.