Search Legislation

Planning Act (Northern Ireland) 2011

Status:

This is the original version (as it was originally enacted).

PART 4ADDITIONAL PLANNING CONTROL

CHAPTER 1LISTED BUILDINGS AND CONSERVATION AREAS

Listed buildings

Lists of buildings of special architectural or historic interest

80.—(1) The Department—

(a)shall compile lists of buildings of special architectural or historic interest; and

(b)may amend any list so compiled.

(2) In considering whether to include a building in a list compiled under this section the Department may take into account not only the building itself but also—

(a)any respect in which its exterior contributes to the architectural or historic interest of any group of buildings of which it forms part; and

(b)the desirability of preserving, on the ground of its architectural or historic interest, any feature of the building which consists of a man-made object or structure fixed to the building or which forms a part of the land and which is comprised within the curtilage of the building.

(3) Before compiling or amending any list under this section, the Department must consult with the appropriate council and the Historic Buildings Council.

(4) As soon as may be after any list has been compiled under this section, or any amendments of such a list have been made, the Department must cause a copy of so much of the list, or so much of the amendments, as relates to the district of a council to be deposited with the clerk of that council.

(5) As soon as may be after the inclusion of any building in a list under this section, whether on the compilation of the list or by its amendment, or as soon as may be after any such list has been amended by the exclusion of any building from it, the Department must serve a notice in the prescribed form on every owner and occupier of the building, stating that the building has been included in, or excluded from, the list, as the case may be.

(6) The Department must keep available for inspection by the public at all reasonable hours copies of lists and amendments of lists compiled or made under this section.

(7) In this Act “listed building” means a building which is for the time being included in a list compiled under this section; and, for the purposes of the provisions of this Act relating to listed buildings, the following shall be treated as part of the building—

(a)any object or structure within the curtilage of the building and fixed to the building;

(b)any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1st October 1973.

Temporary listing: building preservation notices

81.—(1) If it appears to a council that a building in its district which is not a listed building—

(a)is of special architectural or historic interest; and

(b)is in danger of demolition or of alteration in such a way as to affect its character as a building of such interest,

it may serve on the owner and occupier of the building a notice (in this Act referred to as a “building preservation notice”).

(2) A building preservation notice served by a council must—

(a)state that the building appears to the council to be of special architectural or historic interest and that it has requested the Department to consider including it in a list compiled under section 80; and

(b)explain the effect of subsections (3) to (5) and section 83.

(3) A building preservation notice—

(a)comes into force as soon as it has been served on both the owner and occupier of the building to which it relates; and

(b)subject to subsection (4), remains in force for 6 months from the date when it is served or, as the case may be, last served.

(4) A building preservation notice ceases to be in force if the Department—

(a)includes the building in a list compiled under section 80, or

(b)notifies the council in writing that it does not intend to do so.

(5) While a building preservation notice is in force with respect to a building, the provisions of this Act (other than section 103) shall have effect in relation to the building as if it were a listed building.

(6) If, following the service of a building preservation notice, the Department notifies the council that it does not propose to include the building in a list compiled under section 80, the council must immediately give notice of that decision to the owner and occupier of the building.

(7) Following a notification by the Department under subsection (4)(b) no further building preservation notice in respect of the building shall be served by the council within the period of 12 months beginning with the date of the notification.

Temporary listing in urgent cases

82.—(1) If it appears to a council to be urgent that a building preservation notice should come into force, it may, instead of serving the notice on the owner and occupier of the building, affix the notice conspicuously to some object on the building.

(2) The affixing of a notice under subsection (1) shall be treated for all the purposes of section 81, this section, section 83 and sections 86 to 101 as service of the notice.

(3) A notice which is so affixed must explain that by virtue of being so affixed it is treated as being served for those purposes.

Lapse of building preservation notices

83.—(1) This section applies where a building preservation notice ceases to be in force by virtue of—

(a)the expiry of the 6 month period mentioned in subsection (3)(b) of section 81; or

(b)the service of a notification by the Department under subsection (4)(b) of that section.

(2) The fact that the notice has ceased to be in force shall not affect the liability of any person to be prosecuted and punished for an offence under section 85 or section 147 (as applied by section 157(6)) committed with respect to the building while it was in force.

(3) Any proceedings on or arising out of an application for listed building consent with respect to the building made while the notice was in force and any such consent granted while it was in force shall lapse.

(4) Any listed building enforcement notice served by the council while the building preservation notice was in force shall cease to have effect.

(5) Any proceedings relating to a listed building enforcement notice served by the council while the building preservation notice was in force shall lapse.

(6) Notwithstanding subsection (4), subsections (1) and (2) of section 146 (execution and costs of works required by enforcement notice), as applied by section 157(6), shall continue to have effect as respects any expenses incurred by the council or the owner or occupier as mentioned in that section and with respect to any sums paid on account of such expenses.

Issue of certificate that building is not intended to be listed

84.—(1) Where—

(a)an application has been made for planning permission for any development involving the alteration, extension or demolition of a building; or

(b)any such planning permission has been granted,

the issue by the Department, on the application of any person, of a certificate stating that it does not intend to list the building shall—

(i)preclude the Department, for a period of 5 years from the date of issue of the certificate, from exercising in relation to that building any of the powers conferred on it by section 80; and

(ii)preclude a council for that period from issuing a building preservation notice in relation to it.

(2) An application for the issue of a certificate under subsection (1) must be made to the Department in writing and section 42 shall apply, with the appropriate modifications, in relation to an application for the issue of a certificate under subsection (1) as it applies in relation to an application for planning permission.

(3) Before issuing any certificate under subsection (1), the Department must consult with the Historic Buildings Council and the council for the district in which the building is situated.

Control of works for demolition, alteration or extension of listed buildings

85.—(1) Subject to this Part, if a person executes or causes to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, and the works are not authorised under subsection (2), that person shall be guilty of an offence.

(2) Works for the demolition, alteration or extension of a listed building are authorised under this Part if—

(a)written consent for the execution of the works has been granted by a council or the Department and the works are carried out in accordance with the terms of the consent and any conditions which may be attached to the consent; and

(b)in the case of demolition—

(i)a person duly authorised in writing by the Department has been afforded reasonable access to the building for a period of at least one month following the grant of listed building consent and before the commencement of the works, for the purpose of recording it; or

(ii)the Department has stated in writing that it has completed its recording of the building or that it does not wish to record it.

(3) If written consent is granted by a council or the Department for the retention of works for the demolition of a listed building, or for its alteration or extension, which have been executed without consent under subsection (2), the works are authorised under this Part from the grant of the consent under this subsection.

(4) Consent under subsection (2) or (3) is referred to in this Act as “listed building consent”.

(5) Without prejudice to subsection (1), if a person executing or causing to be executed any works in relation to a listed building under a listed building consent fails to comply with any condition attached to the consent that person shall be guilty of an offence.

(6) A person guilty of an offence under subsection (1) or (5) shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding £100,000, or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine, or both,

and in determining the amount of any fine imposed on a person convicted of an offence under subsection (1) or (5) the court shall have particular regard to any financial benefit which has accrued or is likely to accrue to that person in consequence of the offence.

(7) In proceedings for an offence under this section it shall be a defence to prove the following matters—

(a)that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building;

(b)that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter;

(c)that the works carried out were limited to the minimum measures immediately necessary; and

(d)that notice in writing justifying in detail the carrying out of works was given to the council as soon as reasonably practicable.

(8) This section shall not apply to works for the demolition, alteration or extension of—

(a)an ecclesiastical building which is for the time being used for ecclesiastical purposes or would be so used but for the works; or

(b)a building for the time being included in the schedule of monuments compiled and maintained under Article 3 of the Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995 (NI 9);

and for the purposes of this subsection, a building used or available for use by a minister of religion wholly or mainly as a residence from which to perform the duties of that office shall be treated as not being an ecclesiastical building.

(9) Subsection (8) shall cease to have effect on such date as the Department may by order appoint.

Applications for listed building consent

86.—(1) Any application to a council for listed building consent—

(a)must be made in such form and in such manner as may be prescribed; and

(b)must include such particulars, and be verified by such evidence, as may be required by the regulations or by any direction given by the council under the regulations.

(2) Regulations must require an application for listed building consent of such description as is prescribed to be accompanied by such of the following as is prescribed—

(a)a statement about the design principles and concepts that have been applied to the works in relation to which the application is made;

(b)a statement about how issues relating to access to the building have been dealt with.

(3) The form and content of a statement mentioned in subsection (2) is such as is prescribed.

(4) Provision may be made by regulations with respect to—

(a)requirements as to publicity in relation to applications for listed building consent;

(b)the time within which such applications are to be dealt with by councils or the Department;

(c)requirements as to consultation in relation to such applications;

(d)prohibiting the determination of such applications during such period as is prescribed;

(e)requirements on the council or, as the case may be, the Department to take account of responses from persons consulted and to notify the persons responding of the decision of the council or the Department on the application.

(5) Subsections (1) and (4)(b) shall apply to applications to a council or the Department for any approval of the council or, as the case may be, the Department required by a condition imposed on a grant of listed building consent as they apply to applications for listed building consent.

Notification of applications for listed building consent to certain persons

87.—(1) Section 42 shall, with appropriate modifications, apply to applications for listed building consent in relation to any building as it applies to applications for planning permission in relation to any land.

(2) In the application of section 42(7) by virtue of subsection (1) for the words “specified in a development order” and “form so specified” there shall be substituted the words “prescribed” and “prescribed form”.

(3) References in the following provisions of this Part to section 42 are to that section as it applies by virtue of this section.

Call in of certain applications for listed building consent to Department

88.—(1) The Department may give directions requiring applications for listed building consent to be referred to it instead of being dealt with by councils.

(2) A direction under subsection (1) may relate either to a particular application, or to applications in respect of such buildings as may be specified in the direction.

(3) Where the Secretary of State or, as the case may be, the Department of Justice has certified that an application for listed building consent is an application to which section 235 (national security) applies, the Department of the Environment must give a direction to the council to which the application was made requiring the application to be referred to the Department of the Environment instead of being dealt with by the council.

(4) An application in respect of which a direction under this section has effect shall be referred to the Department accordingly.

(5) For the purpose of considering representations made in respect of an application for listed building consent to which section 235 applies which has been referred to it under this section, the Department must, subject to any rules made under section 235(2) or (5), cause a public local inquiry to be held by—

(a)the planning appeals commission; or

(b)a person appointed by the Department for the purpose.

(6) For the purpose of considering representations made in respect of an application for listed building consent referred to it under this section, other than an application mentioned in subsection (5), the Department may cause a public local inquiry to be held by—

(a)the planning appeals commission; or

(b)a person appointed by the Department for the purpose.

(7) Where a public local inquiry is not held under subsection (6), the Department must, before determining the application, serve a notice on the applicant and the appropriate council indicating the decision which it proposes to make on the application; and if within such period as may be specified in that behalf in the notice (not being less than 28 days from the date of service of the notice), the applicant or the council so requests in writing, the Department shall afford to each of them an opportunity of appearing before and being heard by—

(a)the planning appeals commission; or

(b)a person appointed by the Department for the purpose.

(8) In determining an application for listed building consent referred to it, the Department must, where any inquiry or hearing is held, take into account any report of the planning appeals commission or a person appointed by the Department for the purposes of the inquiry or hearing, as the case may be.

(9) The decision of the Department on an application for listed building consent referred to it under this section shall be final.

Duty to notify Department of applications for listed building consent

89.—(1) If a council to which an application is made for listed building consent intends to grant listed building consent it must first notify the Department of the application, giving particulars of the works for which the consent is required.

(2) The Department may within the period of 28 days beginning with the date of such a notification—

(a)direct the reference of the application to it under section 88; or

(b)give notice to the council that it requires further time in which to consider whether to require such a reference.

(3) The council must not grant listed building consent until—

(a)the period mentioned in subsection (2) has expired without the Department directing the reference of the application to it or giving the council notice under paragraph (b) of that subsection; or

(b)the Department has notified the council that it does not intend to require the reference of the application.

Directions concerning notification of applications, etc.

90.—(1) The Department may direct that, in the case of such descriptions of applications for listed building consent as it may specify, section 89 shall not apply.

(2) Where a direction is in force under subsection (1) in respect of any description of application, councils may determine applications of that description in any manner they think fit, without notifying the Department.

(3) Where a direction is in force under subsection (1), the Department may direct a council that section 89 shall nevertheless apply—

(a)to a particular application for listed building consent; or

(b)to such descriptions of application for listed building consent as are specified in the direction;

and such a direction has effect in relation to any such application which has not been disposed of by the council by its granting or refusing consent.

(4) Without prejudice to sections 86, 88 and 89, the Department may give directions to councils requiring councils, in such cases or classes of case as may be specified in the directions, to notify the Department and such other persons as may be so specified—

(a)of any applications made to the councils for listed building consent; and

(b)of the decisions taken by the councils on those applications.

(5) Directions under subsection (1) or (4) may be given to councils generally or to particular councils or descriptions of councils.

Decision on application for listed building consent

91.—(1) Listed building consent may be refused, or granted either unconditionally or subject to conditions.

(2) In considering whether to grant planning permission for development which affects a listed building or its setting, and in considering whether to grant listed building consent for any works, a council or, as the case may be, the Department must have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

(3) Without prejudice to sections 94 and 98, any grant of listed building consent shall (except in so far as the consent otherwise provides) have effect for the benefit of the building and of all persons for the time being having an estate therein.

(4) Without prejudice to the generality of subsection (1), the conditions subject to which listed building consent may be granted include conditions with respect to—

(a)the preservation of particular features of the building either as part of it or after severance from it;

(b)the making good, after the works are completed, of any damage caused to the building by the works; and

(c)the reconstruction of the building or any part of it following the execution of any works, with the use of original materials so far as practicable and with such alterations of the interior of the building as may be specified in the conditions.

(5) Listed building consent may be granted subject to a condition reserving specified details of the works (whether or not set out in the application) for subsequent approval by the council or, as the case may be, the Department.

(6) Listed building consent for the demolition of a listed building may be granted subject to a condition that the building shall not be demolished before a contract for the carrying out of works of redevelopment of the site has been made, and planning permission has been granted for the redevelopment for which the contract provides.

Power to decline to determine application for listed building consent

Power to decline to determine subsequent application for listed building consent

92.—(1) A council may decline to determine an application for listed building consent if—

(a)one or more of the conditions in subsections (2) to (4) is satisfied; and

(b)the council thinks there has been no significant change in any material considerations since the relevant event.

(2) The condition is that in the period of two years ending with the date on which the application mentioned in subsection (1) is received the Department has refused a similar application made under section 88.

(3) The condition is that in that period the planning appeals commission has dismissed an appeal—

(a)against the refusal of a similar application; or

(b)under section 97 in respect of a similar application.

(4) The condition is that—

(a)in that period the council has refused more than one similar application; and

(b)there has been no appeal to the planning appeals commission against any such refusal or, if there has been such an appeal, it has been withdrawn.

(5) The relevant event is—

(a)for the purposes of subsections (2) and (4) the refusal of the similar application;

(b)for the purposes of subsection (3) the dismissal of the appeal.

(6) An application for listed building consent is similar to another application if (and only if) the council thinks that the building and works to which the applications relate are the same or substantially the same.

Power to decline to determine overlapping application for listed building consent

93.—(1) A council may decline to determine an application for listed building consent which is—

(a)made on the same day as a similar application; or

(b)made at a time when any of the conditions in subsections (2) to (4) applies in relation to a similar application.

(2) The condition is that a similar application is under consideration by the council and the determination period for that application has not expired.

(3) The condition is that a similar application is under consideration—

(a)by the Department under section 88 and the Department has not issued its decision; or

(b)by the planning appeals commission on an appeal under section 96 or 97 and the commission has not issued its decision.

(4) The condition is that a similar application—

(a)has been granted by the council;

(b)has been refused by the council; or

(c)has not been determined by the council within the determination period,

and the time within which an appeal could be made to the planning appeals commission under section 96 or 97 has not expired.

(5) If a council exercises its power under subsection (1)(a) to decline to determine an application made on the same day as a similar application, it may not also exercise that power to decline to determine the similar application.

(6) An application for listed building consent is similar to another application if (and only if) the council thinks that the building and works to which the applications relate are the same or substantially the same.

(7) The determination period is—

(a)the period prescribed for the determination of the application; or

(b)such longer period as the applicant and the council have agreed for the determination of the application.

Duration of listed building consent

94.—(1) Subject to the provisions of this section, every listed building consent must be granted subject to the condition that the works to which it relates must be begun not later than—

(a)5 years beginning with the date on which the consent is granted; or

(b)such other period (whether longer or shorter) beginning with that date as the council or, as the case may be, the Department may direct, being a period which the council or the Department considers appropriate having regard to any material considerations.

(2) If listed building consent is granted without the condition required by subsection (1), it shall be deemed to have been granted subject to the condition that the works to which it relates must be begun not later than the expiration of 5 years beginning with the date of the grant.

(3) Nothing in this section applies to any consent to the retention of works granted under section 85(3).

Consent to execute works without compliance with conditions previously attached

95.—(1) This section applies to applications for listed building consent for the execution of works to a building without complying with conditions subject to which a previous listed building consent was granted.

(2) Regulations may make provision with respect to—

(a)the form and content of such applications; and

(b)the procedure to be followed in connection with such applications.

(3) On such an application the authority which granted the previous listed building consent must consider only the question of the conditions subject to which listed building consent should be granted, and—

(a)if the council or the Department decides that listed building consent should be granted subject to conditions differing from those subject to which the previous consent was granted, or that it should be granted unconditionally, the council or, as the case may be, the Department must grant listed building consent accordingly; and

(b)if the council or the Department decides that listed building consent should be granted subject to the same conditions as those subject to which the previous consent was granted, the council or, as the case may be, the Department must refuse the application.

(4) This section does not apply where the application is made after the previous listed building consent has become time-expired, that is to say, the previous consent having been granted subject to a condition as to the time within which the works to which it related were to be begun, that time has expired without the works having been begun.

(5) Listed building consent shall not be granted under this section to the extent that it has effect to change a condition subject to which a previous listed building consent was granted by extending the time limit within which the works must be begun.

Appeal against decision

96.—(1) Where an application is made to a council—

(a)for listed building consent; or

(b)for any approval of the council required by a condition imposed on a grant of listed building consent,

then, if that consent or approval is refused or is granted subject to conditions, the applicant may by notice in writing under this subsection appeal to the planning appeals commission.

(2) Subsection (1) does not apply to any application referred to the Department under section 88.

(3) Any notice under this section must be served on the planning appeals commission within 4 months from the date of notification of the decision to which it relates or such other period as may be prescribed.

(4) Where an appeal is brought under this section from a decision of a council, the planning appeals commission, subject to subsections (5) and (6), may allow or dismiss the appeal or may reverse or vary any part of the decision whether the appeal relates to that part of the decision or not and may deal with the application as if it had been made to it in the first instance.

(5) Before determining an appeal under this section, the planning appeals commission must, if either the applicant or the council so wishes, afford to each of them an opportunity of appearing before and being heard by the commission.

(6) Sections 87 and 95 and any provisions made under regulations made in accordance with section 86(4)(a) shall apply, with any necessary modifications, in relation to an appeal to the planning appeals commission under this subsection as they apply to an application for listed building consent.

Appeal against failure to take decision

97.  Where any such application as is mentioned in section 96(1) is made to a council, then unless within such period as may be prescribed, or within such extended period as may be agreed upon in writing between the applicant and the council, the council gives notice to the applicant of its decision on the application or gives notice to the applicant that it has exercised its power under section 92 or 93 to decline to determine the application, section 96 shall apply in relation to the application—

(a)as if the consent or approval to which it relates had been refused by the council; and

(b)as if notification of the council’s decision had been received by the applicant at the end of the prescribed period, or at the end of the extended period, as the case may be.

Revocation or modification of listed building consent by council

98.—(1) If it appears to a council, having regard to the local development plan and to any other material considerations, that it is expedient to revoke or modify listed building consent in respect of any works to a building within its district, being consent granted on an application made under this Part, the council may, subject to subsection (2), by order revoke or modify the consent to such extent as (having regard to those matters) it considers expedient.

(2) The power conferred by this section to revoke or modify listed building consent in respect of any works may be exercised at any time before those works have been completed, but the revocation or modification shall not affect so much of those works as has been previously carried out.

Procedure for section 98 orders: opposed cases

99.—(1) Except as provided in section 100, an order made by a council under section 98 shall not take effect unless it is confirmed by the Department.

(2) Where a council submits such an order to the Department for confirmation it must serve notice on—

(a)the owner of the building affected;

(b)the occupier of that building; and

(c)any other person who in the opinion of the council will be affected by the order.

(3) The notice must specify the period (which must not be less than 28 days after its service) within which any person on whom it is served may require an opportunity of appearing before and being heard by the planning appeals commission.

(4) If within that period a person on whom the notice is served so requires, the Department must give such an opportunity both to that person and to the council before it confirms the order.

(5) The Department may confirm an order submitted to it under this section either without modification or subject to such modifications as it considers expedient.

Procedure for section 98 orders: unopposed cases

100.—(1) This section applies where—

(a)a council has made an order under section 98 revoking or modifying a listed building consent granted by it; and

(b)the owner and occupier of the land and all persons who in the council’s opinion will be affected by the order have notified the council in writing that they do not object to the order.

(2) Where this section applies, instead of submitting the order to the Department for confirmation the council must—

(a)advertise in the prescribed manner the fact that the order has been made, specifying in the advertisement—

(i)the period within which persons affected by the order may give notice to the Department that they wish for an opportunity of appearing before and being heard by the planning appeals commission; and

(ii)the period at the end of which, if no such notice is given to the Department, the order may take effect by virtue of this section without being confirmed by the Department;

(b)serve notice to the same effect on the persons mentioned in subsection (1)(b);

(c)send a copy of any such advertisement to the Department not more than 3 days after its publication.

(3) The period referred to in subsection (2)(a)(i) must not be less than 28 days from the date on which the advertisement first appears.

(4) The period referred to in subsection (2)(a)(ii) must not be less than 14 days from the end of the period referred to in subsection (2)(a)(i).

(5) If—

(a)no person claiming to be affected by the order has given notice to the Department as mentioned in subsection (2)(a)(i) within the period referred to in that subsection; and

(b)the Department has not directed within that period that the order be submitted to it for confirmation,

the order shall take effect at the end of the period referred to in subsection (2)(a)(ii) without being confirmed by the Department as required by section 99(1).

Revocation or modification of listed building consent by the Department

101.—(1) If it appears to the Department that it is expedient that an order should be made under section 98 revoking or modifying any listed building consent granted on an application under this Part, it may make such an order revoking or modifying the consent to such extent as it considers expedient.

(2) In performing its functions under subsection (1) the Department must have regard to any material considerations.

(3) The Department must not make an order under that subsection without consulting the appropriate council.

(4) Where the Department proposes to make such an order it must serve notice on—

(a)the owner of the building affected;

(b)the occupier of that building; and

(c)any other person who in its opinion will be affected by the order.

(5) The notice must specify the period (which shall not be less than 28 days after its service) within which any person on whom it is served may require an opportunity of appearing before and being heard by the planning appeals commission.

(6) If within that period a person on whom it is served so requires, before the Department makes the order it must give such an opportunity both to that person and to the council.

(7) The power conferred by this section to revoke or modify listed building consent in respect of any works may be exercised at any time before those works have been completed, but the revocation or modification shall not affect so much of those works as has been previously carried out.

(8) An order under this section shall have the same effect as if it had been made by the council under section 98 and confirmed by the Department under section 99.

Applications to determine whether listed building consent required

102.—(1) If any person who proposes to execute or cause to be executed any works to a listed building wishes to have it determined whether those works would involve the alteration or extension of the building in any manner which would affect its character as a building of special architectural or historic interest, that person may apply to the council to determine that question.

(2) The provisions of sections 86(1), 96 and 97 shall, subject to any necessary modifications, apply in relation to any application under this section, and to the determination of that application, as those sections apply in relation to applications for listed building consent and to the determination of such applications.

(3) Where an application for listed building consent is made to a council and it appears to the council that the execution of the works specified in the application does not involve the alteration or extension of a listed building in any manner which would affect its character as a building of special architectural or historic interest, the council may treat the application for listed building consent as an application under this section and may make an appropriate determination.

Acts causing or likely to result in damage to listed buildings

103.—(1) Where a building, not being a building excluded by subsection (8) of section 85 from the operation of that section, is included in a list compiled under section 80, then, if any person who, but for this section, would be entitled to do so—

(a)does or permits the doing of any act which causes or is likely to result in damage to the building (other than an act for the execution of excepted works); and

(b)does or permits the act with the intention of causing such damage,

that person shall be guilty of an offence and liable—

(i)on summary conviction to a fine not exceeding the statutory maximum; or

(ii)on conviction on indictment, to a fine.

(2) In subsection (1) “excepted works” means—

(a)works authorised by planning permission granted in pursuance of an application under this Act; or

(b)works for which listed building consent has been given under this Act.

(3) Where a person convicted under this section fails to take such reasonable steps as may be necessary to prevent any damage or further damage resulting from the offence, that person shall be guilty of a further offence and liable on summary conviction to a fine not exceeding one-tenth of level 5 on the standard scale for each day on which the failure continues.

Areas of special architectural or historic interest

Conservation areas

104.—(1) A council may designate areas of special architectural or historic interest within its district the character or appearance of which it is desirable to preserve or enhance.

(2) The Department may from time to time determine that any part of an area within a council’s district which is not for the time being designated as a conservation area is an area of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance; and, if the Department so determines, it may designate that part as a conservation area.

(3) Before making a determination under subsection (2) the Department must consult the council concerned.

(4) A designation under subsection (1) or (2) may be varied or cancelled by the authority which made the designation.

(5) Subject to subsection (6), before making, varying or cancelling a designation under this section, the council or, as the case may be, the Department must consult with—

(a)the Historic Buildings Council;

(b)such other persons or bodies as may be prescribed.

(6) A designation under this section may be made without consulting the persons or bodies mentioned in subsection (5)(b), but a designation made without such consultation shall only have effect for a period of 6 months beginning on the date on which the designation was made.

(7) A council must give notice of the designation of any part of its district as a conservation area under subsection (1) and of any variation or cancellation of any such designation to the Department.

(8) The Department must give notice of the designation of any part of the district of a council as a conservation area under subsection (2) and of any variation or cancellation of any such designation to the council.

(9) A notice under subsection (7) or (8) must contain sufficient particulars to identify the area affected.

(10) Notice of any such designation, variation or cancellation as is mentioned in subsection (7) or (8), with particulars of its effect and sufficient particulars to identify the area affected, must be published in at least one newspaper circulating in the council’s district, by that council or, as the case may be, the Department.

(11) Where any area is for the time being designated as a conservation area, special regard must be had, in the exercise, with respect to any buildings or other land in that area, of any powers under this Act, to the desirability of—

(a)preserving the character or appearance of that area in cases where an opportunity for enhancing its character or appearance does not arise;

(b)enhancing the character or appearance of that area in cases where an opportunity to do so does arise.

(12) In this Act “conservation area” means an area designated under subsection (1) or (2).

Control of demolition in conservation areas

105.—(1) This section applies to all buildings in conservation areas other than—

(a)listed buildings;

(b)buildings of a class specified in section 85(8);

(c)buildings in relation to which a direction under subsection (4) is for the time being in force.

(2) A building to which this section applies shall not be demolished without the consent (in this Act referred to as a “conservation area consent”) of the appropriate authority.

(3) The appropriate authority for the purposes of this section is—

(a)in relation to applications for consent made by councils, the Department;

(b)in relation to other applications for consent, the council or the Department.

(4) The Department may direct that this section shall not apply to a description of buildings specified in the direction.

(5) Where the Department gives a direction under subsection (4), it must publish a copy of the direction in the Belfast Gazette and in a newspaper circulating in the area in which the buildings are situated.

(6) Sections 85 to 102, 107, 157 to 160, 181 and 191 shall have effect in relation to buildings to which this section applies as they have effect in relation to listed buildings, subject to such exceptions and modifications as may be prescribed.

(7) If this section ceases to apply to a building—

(a)any proceedings on or arising out of an application for conservation area consent made while this section applied to the building shall lapse;

(b)any conservation area consent granted with respect to the building shall also lapse;

(c)the cesser shall not affect the liability of any person to be prosecuted and punished for an offence under section 85 or 157 (as applied by subsection (6)) committed by that person with respect to the building while this section applied to it.

(8) For the purposes of this section, any reference to demolition, in relation to a building to which this section applies, includes a reference to any structural alteration of that building where the alteration consists of demolishing part of the building.

Grants in relation to conservation areas

106.—(1) The Department may, in relation to any conservation area, make grants or loans for the purpose of defraying in whole or in part any expenditure incurred or to be incurred in or in connection with, or with a view to the promotion of, the preservation or enhancement of the character or appearance of the area or any part thereof.

(2) A grant or loan under this section may be made subject to such conditions as the Department thinks fit.

(3) Any loan under this section must be made on such terms as to repayment, payment of interest and otherwise as the Department may with the approval of the Department of Finance and Personnel determine; and all sums received by the Department by way of interest on, or repayment of, such a loan shall be paid into the Consolidated Fund.

Land and works of councils

Application of Chapter 1, etc., to land and works of councils

107.—(1) In relation to land of an interested council, section 80 shall have effect subject to such exceptions and modifications as may be prescribed.

(2) The provisions listed in subsection (3) shall apply in relation to applications by interested councils relating to the execution of works for the demolition, alteration or extension of listed buildings, subject to regulations made by virtue of this subsection.

(3) The provisions are—

(a)the provisions included in this Chapter (except for sections 92, 93 and 102);

(b)the provisions of Part 5;

(c)sections 181 and 186;

(d)the provisions of Part 7 (except for section 192);

(e)sections 223 and 242.

(4) Regulations made under subsection (2) may—

(a)provide for any of the provisions listed in subsection (3) to apply subject to prescribed exceptions or modifications or not to apply;

(b)make new provision as to any matter dealt with in any of those provisions.

(5) Regulations made under subsection (2) may in particular provide—

(a)for the making of applications for listed building consent to the Department; and

(b)for the procedure to be followed on such applications.

(6) In this section “interested council”, in relation to any land, means any council which exercises any functions of a council under this Chapter in relation to that land and, for the purposes of this section, land is land of a council if the council has any estate in it.

CHAPTER 2HAZARDOUS SUBSTANCES

Requirement of hazardous substances consent

108.—(1) Subject to the provisions of this Part, the presence of a hazardous substance on, over or under land requires the consent of the council (in this Act referred to as “hazardous substances consent”) unless the aggregate quantity of the substance—

(a)on, over or under the land;

(b)on, over or under other land which is controlled by the same person and which, in all the circumstances (including in particular the purpose for which the land and the land mentioned in paragraph (a) is used), forms with the land so mentioned a single establishment;

(c)on, over or under other land which is within 500 metres of the land mentioned in paragraph (a) and controlled by the same person; or

(d)in or on a structure controlled by the same person any part of which is within 500 metres of the land mentioned in paragraph (a),

is less than the controlled quantity.

(2) A quantity of a substance which falls within more than one paragraph of subsection (1) shall only be counted once.

(3) The temporary presence of a hazardous substance while it is being transported from one place to another is not to be taken into account unless—

(a)it is unloaded; or

(b)it is present on, over or under land in respect of which there is a hazardous substances consent for any substance, or in respect of which (not taking into account the quantity of the substance being transported) there is required to be such a consent for any substance.

(4) The Department—

(a)must by regulations specify—

(i)the substances that are hazardous substances for the purposes of this Act;

(ii)the quantity which is to be the controlled quantity of any such substance;

(b)may by regulations provide that hazardous substances consent is not required or is only required—

(i)in relation to land of prescribed descriptions;

(ii)by reason of the presence of hazardous substances in prescribed circumstances;

(c)may by regulations provide that, except in such circumstances as may be prescribed, all hazardous substances falling within a group specified in the regulations are to be treated as a single substance for the purposes of this Act.

(5) Regulations which—

(a)are made by virtue of paragraph (a)(i) of subsection (4); or

(b)are made by virtue of paragraph (a)(ii) of that subsection and reduce the controlled quantity of a substance,

may make such transitional provision as appears to the Department to be appropriate.

(6) Bodies corporate which are inter-connected for the purposes of the Fair Trading Act 1973 (c. 41) are to be treated as being one person for the purposes of this section and sections 109 to 117 and 162.

Applications for hazardous substances consent

109.—(1) Provision may be made by regulations with respect to—

(a)the form and manner in which applications for hazardous substances consent are to be made;

(b)the particulars which they are to contain and the evidence by which they are to be verified;

(c)the manner in which they are to be advertised; and

(d)the time within which they are to be dealt with.

(2) Regulations may provide that an application for hazardous substances consent, or an appeal against the refusal of such an application or against the imposition of a condition on such a consent, must not be entertained unless it is accompanied by a certificate in the prescribed form and corresponding to one or other of those described in section 42(1)(a) to (d); and any such regulations may—

(a)include requirements corresponding to sections 42(4) and 45(4); and

(b)make provision as to who is to be treated as in actual possession of land for the purposes of any provision of the regulations.

(3) If any person issues a certificate which purports to comply with the requirements of regulations made by virtue of subsection (2) and which contains a statement which that person knows to be false or misleading in a material particular, or recklessly issues a certificate which purports to comply with those requirements and which contains a statement which is false or misleading in a material particular, that person shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) Regulations—

(a)may require an applicant for hazardous substances consent or the council or both to give publicity to an application for hazardous substances consent in such manner as may be prescribed;

(b)may require the council to consult with the Health and Safety Executive for Northern Ireland and with such other bodies or persons as may be prescribed before determining applications for hazardous substances consent;

(c)may provide for the manner in which such a consultation is to be carried out and the time within which—

(i)such a consultation;

(ii)any stage in such a consultation,

is to be completed;

(d)may require the council to determine applications for hazardous substances consent within such time as may be prescribed;

(e)may require councils to give prescribed persons or bodies prescribed information about applications for hazardous substances consent, including information as to the manner in which such applications have been dealt with;

(f)may prohibit councils from granting hazardous substances consent during such period as may be prescribed.

Determination of applications for hazardous substances consent

110.—(1) Subject to the following provisions of this Act, where an application is made to a council for hazardous substances consent, the council, in dealing with the application, must have regard to any material considerations, and—

(a)may grant hazardous substances consent, either unconditionally or subject to such conditions as it thinks fit; or

(b)may refuse hazardous substances consent.

(2) Without prejudice to the generality of subsection (1), in dealing with an application the council must have regard—

(a)to any current or contemplated use of the land to which the application relates;

(b)to the way in which land in the vicinity is being used or is likely to be used;

(c)to any planning permission that has been granted for development of land in the vicinity;

(d)to the provisions of the local development plan; and

(e)to any advice which the Health and Safety Executive for Northern Ireland has given following consultations in pursuance of regulations made under section 109(4).

(3) If an application relates to more than one hazardous substance, the council may make different determinations in relation to each.

(4) It shall be the duty of a council, when granting hazardous substances consent, to include in that consent—

(a)a description of the land to which the consent relates;

(b)a description of the hazardous substance or substances to which it relates; and

(c)in respect of each hazardous substance to which it relates, a statement of the maximum quantity permitted by the consent to be present at any one time and of all conditions relating to that substance subject to which the consent is granted.

(5) Without prejudice to the generality of subsection (1), a council may grant hazardous substances consent subject to conditions with respect to any of the following—

(a)how and where any hazardous substance to which the consent relates is to be kept or used;

(b)times between which any such substance may be present;

(c)the permanent removal of any such substance—

(i)on or before a date specified in the consent; or

(ii)before the end of a period specified in it and commencing on the date on which it is granted;

(d)the consent being conditional on the commencement or partial or complete execution of development on the land which is authorised by a specified planning permission.

(6) A council may only grant consent subject to conditions as to how a hazardous substance is to be kept or used if the conditions are conditions to which the Health and Safety Executive for Northern Ireland has advised the council that any consent it might grant should be subject.

Grant of hazardous substances consent without compliance with conditions previously attached

111.—(1) This section applies to an application for hazardous substances consent without a condition subject to which a previous hazardous substances consent was granted.

(2) Regulations may make provision with respect to—

(a)the form and content of such applications; and

(b)the procedure to be followed in relation to such applications.

(3) On such an application the authority which granted the previous hazardous substances consent must consider only the question of the conditions subject to which hazardous substances consent should be granted, and—

(a)if it determines that hazardous substances consent should be granted subject to conditions differing from those subject to which the previous consent was granted, or that it should be granted unconditionally, the authority must grant hazardous substances consent accordingly; and

(b)if it determines that hazardous substances consent should be granted subject to the same conditions as those subject to which the previous consent was granted, the authority must refuse the application.

(4) Where—

(a)hazardous substances consent has been granted for the presence on, over or under land of more than one hazardous substance; and

(b)an application under this section does not relate to all the substances,

the authority shall only have regard to any condition relating to a substance to which the application does not relate to the extent that it has implications for a substance to which the application does relate.

(5) Where—

(a)more than one hazardous substances consent has been granted in respect of the same land; and

(b)an application under this section does not relate to all the consents,

the authority shall only have regard to any consent to which the application does not relate to the extent that it has implications for consent to which the application does relate.

Revocation or modification of hazardous substances consent

112.—(1) If it appears to a council that—

(a)there has been a material change of use of land to which a hazardous substances consent relates; or

(b)planning permission has been granted for development the carrying out of which would involve a material change of use of such land and the development to which the permission relates has been commenced,

it may by order—

(i)if the consent relates only to one substance, revoke it;

(ii)if it relates to more than one, revoke it or revoke it so far as it relates to a specified substance.

(2) A council may by order—

(a)revoke a hazardous substances consent which relates to only one substance if it appears to the council that that substance has not for at least 5 years been present on, over or under the land to which the consent relates in a quantity equal to or exceeding the controlled quantity; and

(b)revoke a hazardous substances consent which relates to a number of substances if it appears to the council that none of those substances has for at least 5 years been so present.

(3) A council may by order revoke a hazardous substances consent or modify it to such extent as it considers expedient if it appears to the council, having regard to any material consideration, that it is expedient to revoke or modify it.

(4) An order under this section must specify the grounds on which it is made.

Confirmation by Department of section 112 orders

113.—(1) An order under section 112 shall not take effect unless it is confirmed by the Department.

(2) The Department may confirm any such order submitted to it either without modification or subject to such modification as it considers expedient.

(3) Where a council submits an order under section 112 to the Department for its confirmation under this section, the council must serve notice of the order—

(a)on any person who is an owner of the whole or any part of the land to which the order relates;

(b)on any person other than an owner who appears to it to be in control of the whole or any part of that land;

(c)on any other person who in its opinion will be affected by the order.

(4) A notice under subsection (3) must specify the period (which must not be less than 28 days from the service of it) within which any person on whom the notice is served may require an opportunity of appearing before and being heard by the planning appeals commission.

(5) If such a person so requires, the Department, before confirming the order, must give that person and the council such an opportunity.

(6) Where an order under section 112 has been confirmed by the Department, the council must serve a copy of the order on every person who was entitled to be served with notice under subsection (3).

Call in of certain applications for hazardous substances consent to Department

114.—(1) The Department may give directions requiring applications for hazardous consent to be referred to it instead of being dealt with by a council.

(2) A direction under subsection (1)—

(a)may be given either to a particular council or to councils generally; and

(b)may relate either to a particular application or to applications of a class specified in the direction.

(3) Where the Secretary of State or, as the case may be, the Department of Justice has certified that an application for hazardous substances consent is an application to which section 235 (national security) applies, the Department of the Environment must give a direction to the council to which the application was made requiring the application to be referred to the Department of the Environment instead of being dealt with by the council.

(4) Where an application for hazardous substances consent is referred to the Department under this section, sections 109 and 110 shall apply, with any necessary modifications, as they apply to such an application which falls to be determined by a council.

(5) Any application in respect of which a direction under this section has effect shall be referred to the Department accordingly.

(6) For the purpose of considering representations made in respect of an application to which section 235 applies which has been referred to it under this section, the Department must, subject to any rules made under subsection (2) or (5) of that section, cause a public local inquiry to be held by—

(a)the planning appeals commission; or

(b)a person appointed by the Department for the purpose.

(7) For the purpose of considering representations made in respect of an application referred to it under this section, other than an application mentioned in subsection (6), the Department may cause a public local inquiry to be held by—

(a)the planning appeals commission; or

(b)a person appointed by the Department.

(8) Where a public local inquiry is not held under subsection (7), the Department must, before determining the application, serve a notice on the applicant and the appropriate council indicating the decision which it proposes to make on the application; and if within such period as may be specified in that behalf in the notice (not being less than 28 days from the date of service thereof), either the applicant or the council so requests in writing, the Department shall afford to each of them an opportunity of appearing before and being heard by—

(a)the planning appeals commission; or

(b)a person appointed by the Department.

(9) In determining an application referred to it under this section, the Department shall, where any inquiry or hearing is held, take into account the report of the planning appeals commission.

(10) The decision of the Department on an application referred to it under this section shall be final.

Appeals

115.—(1) Where an application for hazardous substances consent is made to a council, then if that consent is refused or is granted subject to conditions the applicant may by notice in writing under this section appeal to the planning appeals commission.

(2) Subsection (1) does not apply to any application referred to the Department under section 114.

(3) Any notice under this section must be served on the planning appeals commission within 4 months from the date of notification of the decision to which it relates or such other period as may be prescribed.

(4) Where an appeal is brought under this section the planning appeals commission—

(a)must publish notice of the appeal in at least one newspaper circulating in the locality in which the land to which the appeal relates is situated; and

(b)must not determine the appeal before the expiration of 14 days from the date on which notice of the appeal is first published in a newspaper in pursuance of paragraph (a).

(5) Where an appeal is brought under this section from a decision of a council, the planning appeals commission, subject to subsection (6), may allow or dismiss the appeal or may reverse or vary any part of the decision whether the appeal relates to that part of the decision or not, and may deal with the application as if it had been made to it in the first instance.

(6) Before determining an appeal under this section, the planning appeals commission must, if either the applicant or the council so desires, afford to each of them an opportunity of appearing before and being heard by the commission.

(7) Where an application for hazardous substances consent is made to a council then unless within the prescribed period, or within such extended period as may be agreed upon in writing between the applicant and the council, the council either—

(a)gives notice to the applicant of its decision on the application; or

(b)gives notice to the applicant that the application has been referred to the Department under section 114,

subsections (1) to (6) shall apply in relation to the application—

(i)as if the consent to which it relates had been refused by the council; and

(ii)as if notification of the council’s decision had been received by the applicant at the end of the prescribed period, or at the end of the extended period, as the case may be.

Effect of hazardous substances consent and change of control of land

116.—(1) Without prejudice to the provisions of this Part, any hazardous substances consent shall (except in so far as it otherwise provides) have effect for the benefit of the land to which it relates and of all persons for the time being having an estate therein.

(2) A hazardous substances consent shall cease to have effect if there is a change of the person in control of part of the land to which it relates, unless an application for the continuation of the consent has previously been made to the council.

(3) Regulations may make provision in relation to applications under subsection (2) corresponding to any provision that may be made by regulations under section 109 in relation to applications for hazardous substances consent.

(4) Subsections (2) and (3) do not apply if the control of land changes from one emanation of the Crown to another.

(5) When such an application is made, the council, having regard to any material consideration—

(a)may modify the consent in any way it considers appropriate; or

(b)may revoke it.

(6) Without prejudice to the generality of subsection (5), in dealing with an application the council must have regard to—

(a)the matters to which it is required to have regard by section 110(2); and

(b)any advice given by the Health and Safety Executive for Northern Ireland in relation to the application.

(7) If an application relates to more than one consent, the council may make different determinations in relation to each.

(8) If a consent relates to more than one hazardous substance, the council may make different determinations in relation to each.

(9) It shall be the duty of the council, when continuing hazardous substances consent, to attach to the consent one of the following—

(a)a statement that it is unchanged in relation to the matters included in it by virtue of section 110(4);

(b)a statement of any change in respect of those matters.

(10) The modifications which the council may make by virtue of paragraph (a) of subsection (5) include, without prejudice to the generality of that paragraph, the making of the consent subject to conditions with respect to any of the matters mentioned in section 110(5).

(11) Subject to subsection (12), section 115 shall have effect in relation to applications under subsection (2) and to decisions on such applications as though they were applications for hazardous substances consent.

(12) In the application of section 115 by virtue of subsection (11)—

(a)subsection (2) of that section is omitted; and

(b)in subsection (7) of that section for the words from “either” to the end there are substituted the words “gives notice to the applicant of its decision on the application, the application shall be deemed to have been granted.”.

Offences

117.—(1) Subject to the provisions of this Part, if there is a contravention of hazardous substances control, the appropriate person shall be guilty of an offence.

(2) There is a contravention of hazardous substances control—

(a)if a quantity of a hazardous substance equal to or exceeding the controlled quantity is or has been present on, over or under land and either—

(i)there is no hazardous substances consent for the presence of the substance; or

(ii)there is hazardous substances consent for its presence but the quantity present exceeds the maximum quantity permitted by the consent;

(b)if there is or has been a failure to comply with a condition subject to which a hazardous substances consent was granted.

(3) In subsection (1) “the appropriate person” means—

(a)in relation to a contravention falling within paragraph (a) of subsection (2)—

(i)any person knowingly causing the substance to be present on, over or under the land;

(ii)any person allowing it to be so present; and

(b)in relation to a contravention falling within paragraph (a) or (b) of that subsection, the person in control of the land.

(4) A person guilty of an offence under this section shall be liable—

(a)on summary conviction, to a fine not exceeding £100,000;

(b)on conviction on indictment, to a fine,

and in determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to that person in consequence of the offence.

(5) In any proceedings for an offence under this section it shall be a defence for the accused to prove—

(a)that the accused took all reasonable precautions and exercised all due diligence to avoid commission of the offence; or

(b)that commission of the offence could be avoided only by the taking of action amounting to a breach of a statutory duty.

(6) In any proceedings for an offence consisting of a contravention falling within subsection (2)(a), it shall be a defence for the accused to prove that at the time of the alleged commission of the offence the accused did not know, and had no reason to believe,—

(a)if the case falls within paragraph (a)(i) of that subsection—

(i)that the substance was present; or

(ii)that it was present in a quantity equal to or exceeding the controlled quantity;

(b)if the case falls within paragraph (a)(ii) of that subsection, that the substance was present in a quantity exceeding the maximum quantity permitted by the consent.

(7) In any proceedings for an offence consisting of a contravention falling within subsection (2)(b), it shall be a defence for the accused to prove that the accused did not know, and had no reason to believe, that there was a failure to comply with a condition subject to which hazardous substances consent had been granted.

Emergencies

118.—(1) If it appears to the Department—

(a)either—

(i)that the community or part of it is being or is likely to be deprived of an essential service or commodity; or

(ii)that there is or is likely to be a shortage of such a service or commodity affecting the community or part of it; and

(b)that the presence of a hazardous substance on, over or under land specified in the direction in circumstances such that hazardous substances consent would be required, is necessary for the effective provision of that service or commodity,

it may direct that, subject to such conditions or exceptions as it thinks fit, the presence of the substance on, over or under the land is not to constitute a contravention of hazardous substances control so long as the direction remains in force.

(2) A direction under this section—

(a)may be revoked at any time;

(b)must in any case cease to have effect at the end of the period of 3 months beginning with the day on which it was given, but without prejudice to the Department’s power to give a further direction.

(3) The Department must send a copy of any such direction to the council in whose district any land affected by the direction is situated and to the Health and Safety Executive for Northern Ireland.

Health and safety requirements

119.—(1) Nothing in—

(a)any hazardous substances consent granted or deemed to be granted; or

(b)any hazardous substances contravention notice issued under section 162 (hazardous substances contravention notices),

shall require or allow anything to be done in contravention of any of the relevant statutory provisions or any prohibition notice or improvement notice served under or by virtue of any of those provisions; and to the extent that such a consent or notice purports to require or allow any such thing to be done, it shall be void.

(2) Where it appears to a council after a hazardous substances consent has been granted, or is deemed to have been granted, or after a hazardous substances contravention notice has been issued that the consent or notice or part of it is rendered void by subsection (1), the council must, as soon as is reasonably practicable, consult the Health and Safety Executive for Northern Ireland with regard to the matter.

(3) If the Executive advises the council that the consent or notice is rendered wholly void, the council must revoke it.

(4) If the Executive advises that part of the consent or notice is rendered void, the council must so modify it as to render it wholly operative.

(5) In this section, “relevant statutory provisions”, “improvement notice” and “prohibition notice” have the same meanings as in the Health and Safety at Work (Northern Ireland) Order 1978 (NI 9).

Applications by councils for hazardous substances consent

120.—(1) The provisions listed in subsection (2) shall apply in relation to granting hazardous substances consent to councils, subject to regulations made by virtue of this subsection.

(2) The provisions are—

(a)the provisions of this Chapter;

(b)the provisions of Part 5;

(c)sections 182, 184, 223 and 242.

(3) Regulations made under subsection (1) may—

(a)provide for any of the provisions listed in subsection (2) to apply subject to prescribed exceptions or modifications or not to apply;

(b)make new provision as to any matter dealt with in any of those provisions.

(4) Subject to the provisions of paragraph 3(3) of Schedule 8 to the Electricity (Northern Ireland) Order 1992 (NI 1), any regulations made under subsection (1) may in particular provide for securing—

(a)that any application by a council for hazardous substances consent in respect of the presence of a hazardous substance on, over or under land shall be made to the Department and not to the council;

(b)that any order or notice authorised to be made, issued or served under this Chapter or Part 5 shall be made, issued or served by the Department and not by the council.

CHAPTER 3TREES

Planning permission to include appropriate provision for trees

121.  It shall be the duty of a council, and the Department, to—

(a)ensure, wherever it is appropriate, that in granting planning permission for any development, adequate provision is made, by the imposition of conditions, for the preservation or planting of trees; and

(b)make such orders under section 122 as appear to the council or, as the case may be, the Department to be necessary in connection with the grant of such permission, whether for giving effect to such conditions or otherwise.

Tree preservation orders: councils

122.—(1) Where it appears to a council that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in its district, it may for that purpose make an order (in this Act referred to as a “tree preservation order”) with respect to such trees, groups of trees or woodlands as may be specified in the order; and in particular, provision may be made by any such order—

(a)for prohibiting (subject to any exemptions for which provision may be made by the order) the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees except with the consent of the council, and for enabling the council to give its consent subject to conditions;

(b)for securing the replanting, in such manner as may be specified by or under the order, of any part of a woodland area which is felled in the course of forestry operations permitted by or under the order;

(c)for applying, in relation to any consent under the order and to applications for such consent, any of the provisions of Part 3, subject to such adaptations and modifications as may be specified in the order.

(2) A tree preservation order may be made so as to apply, in relation to trees to be planted pursuant to any such conditions as are mentioned in section 121(a), as from the time when those trees are planted.

(3) A tree preservation order shall not take effect until it is confirmed by the council and the council may confirm any such order either without modification or subject to such modifications as it considers expedient.

(4) The Department may make regulations as to the form of tree preservation orders and the procedure to be followed in connection with the making and confirmation of such orders; and the regulations may, in particular, make provision as follows—

(a)that, before a tree preservation order is confirmed by a council, notice of the making of the order shall be given to the owners and occupiers of land affected by the order and to such other persons, if any, as may be specified in the regulations;

(b)that objections and representations with respect to the order, if duly made in accordance with the regulations, shall be considered before the order is confirmed by the council; and

(c)that copies of the order, when confirmed by the council, must be served on such persons as may be specified in the regulations.

(5) Without prejudice to any other exemptions for which provision may be made by a tree preservation order, no such order shall apply to the cutting down, uprooting, topping or lopping of trees which are dead or have become dangerous or the cutting down, uprooting, topping or lopping of any trees in compliance with any obligations imposed by or under any statutory provision or so far as may be necessary for the prevention or abatement of a nuisance.

Provisional tree preservation orders

123.—(1) If it appears to a council that a tree preservation order proposed to be made by that council should take effect immediately without previous confirmation, it may include in the order as made by it a direction that this section shall apply to the order.

(2) Notwithstanding section 122(3), an order which contains such a direction—

(a)shall take effect provisionally on such date as may be specified in it; and

(b)shall continue in force by virtue of this section until—

(i)the expiration of a period of 6 months beginning with the date on which the order was made; or

(ii)the date on which the order is confirmed,

whichever first occurs.

Power for Department to make tree preservation orders

124.—(1) If it appears to the Department, after consultation with the appropriate council, to be expedient that a tree preservation order or an order amending or revoking such an order should be made, the Department may make such an order.

(2) Any order so made by the Department shall have the same effect as if it had been made by the appropriate council and confirmed by it under this Chapter.

(3) The provisions of this Chapter and of any regulations made under it with respect to the procedure to be followed in connection with the making and confirmation of any order to which subsection (1) applies and the service of copies of it as confirmed shall have effect, subject to any necessary modifications—

(a)in relation to any proposal by the Department to make such an order,

(b)in relation to the making of it by the Department, and

(c)in relation to the service of copies of it as so made.

Replacement of trees

125.—(1) If any tree in respect of which a tree preservation order is for the time being in force—

(a)is removed, uprooted or destroyed in contravention of the order; or

(b)except in the case of a tree to which the order applies as part of a woodland, is removed, uprooted or destroyed or dies at a time when its cutting down or uprooting is authorised only by virtue of section 122 on the grounds that it is dying or dead or has become dangerous,

it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as the owner reasonably can.

(2) The duty imposed by subsection (1) does not apply to an owner if on application by the owner the council dispenses with it.

(3) In respect of trees in a woodland it shall be sufficient for the purposes of this section to replace the trees removed, uprooted or destroyed by planting the same number of trees—

(a)on or near the land on which the trees removed, uprooted or destroyed stood; or

(b)on such other land as may be agreed between the council and the owner of the land,

and in such places as may be designated by the council.

(4) In relation to any tree planted pursuant to this section, the relevant tree preservation order shall apply as it applied to the original tree.

(5) The duty imposed by subsection (1) on the owner of any land shall attach to the person who is from time to time the owner of the land.

Penalties for contravention of tree preservation orders

126.—(1) If any person, in contravention of a tree preservation order, cuts down, uproots or wilfully destroys a tree, or wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it, that person shall be guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding £100,000;

(b)on conviction on indictment, to a fine.

(2) In determining the amount of any fine to be imposed on a person convicted of an offence under subsection (1), the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to that person in consequence of the offence.

(3) If any person contravenes a tree preservation order otherwise than as mentioned in subsection (1), that person shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Preservation of trees in conservation areas

127.—(1) Subject to the provisions of this section and section 128, any person who, in relation to a tree to which this section applies, does any act which might by virtue of section 122(1)(a) be prohibited by a tree preservation order shall be guilty of an offence.

(2) Subject to section 128, this section applies to any tree in a conservation area in respect of which no tree preservation order is for the time being in force.

(3) It shall be a defence for a person charged with an offence under subsection (1) to prove—

(a)that that person served notice of his or her intention to do the act in question (with sufficient particulars to identify the tree) on the council in whose district the tree is or was situated; and

(b)that that person did the act in question—

(i)with the consent of the council in whose district the tree is or was situated; or

(ii)after the expiry of the period of 6 weeks from the date of the notice but before the expiry of the period of 2 years from that date.

(4) Section 126 shall apply to an offence under this section as it applies to a contravention of a tree preservation order.

(5) An emanation of the Crown must not, in relation to a tree to which this section applies, do any act mentioned in subsection (1) unless—

(a)the first condition is satisfied; and

(b)either the second or third condition is satisfied.

(6) The first condition is that the emanation serves notice of an intention to do the act (with sufficient particulars to identify the tree) on the council in whose district the tree is or was situated.

(7) The second condition is that the act is done with the consent of the council in whose district the tree is or was situated.

(8) The third condition is that the act is done—

(a)after the end of the period of 6 weeks starting with the date of the notice; and

(b)before the end of the period of 2 years starting with that date.

Power to disapply section 127

128.—(1) The Department may by regulations direct that section 127 shall not apply in such cases as may be specified in the regulations.

(2) Regulations under subsection (1) may, in particular, be framed so as to exempt from the application of that section cases defined by reference to all or any of the following matters—

(a)acts of such descriptions or done in such circumstances or subject to such conditions as may be specified in the regulations;

(b)trees in such conservation areas as may be so specified;

(c)trees of a size or species so specified; or

(d)trees belonging to persons or bodies of a description so specified.

(3) Regulations under subsection (1) may, in particular, exempt from the application of section 127 cases exempted from section 122 by subsection (5) of that section.

CHAPTER 4REVIEW OF MINERAL PLANNING PERMISSIONS

Review of mineral planning permissions

129.—(1) Schedules 2 and 3 have effect.

(2) Without prejudice to the generality of section 32, a development order may make, in relation to any planning permission which is granted by a development order for minerals development, provision similar to any provision made by Schedule 2 or 3.

(3) In this section and in Schedules 2 and 3 “minerals development” means development consisting of mining operations or involving the deposit of mineral waste.

CHAPTER 5ADVERTISEMENTS

Control of advertisements

130.—(1) Subject to this section, provision must be made by regulations under this Act for restricting or regulating the display of advertisements so far as appears to the Department to be expedient in the interests of amenity or public safety.

(2) Without prejudice to subsection (1), any such regulations may provide—

(a)for regulating the dimensions, appearance and position of advertisements which may be displayed, the sites on which advertisements may be displayed and the manner in which they are to be affixed to the land;

(b)for requiring the consent of the council to be obtained for the display of advertisements;

(c)for applying in relation to any such consent and to applications for such consent any of the provisions of Part 3 or 7 of this Act or Part 3 of the Act of 1965 subject to such adaptations and modifications as may be specified in the regulations.

(3) Without prejudice to the generality of subsection (1), the regulations may prohibit the display in any area of special control of all advertisements except advertisements of such classes (if any) as may be prescribed.

(4) Areas of special control for the purposes of regulations under this section may be defined by means of orders made or approved by the Department in accordance with the regulations.

(5) Where the Department is authorised by the regulations to make or approve any such order as is mentioned in subsection (4), the regulations must provide—

(a)for the publication of notice of the proposed order in such manner as may be prescribed;

(b)for the consideration of objections duly made to it; and

(c)for the holding of such inquiries or other hearings by the planning appeals commission as may be so prescribed,

before the order is made or approved.

(6) Where the display of advertisements in accordance with regulations made under this section involves development of land, planning permission for that development shall be deemed to be granted by virtue of this section, and no application shall be necessary in that behalf under Part 3.

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open The Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act without Schedules as a PDF

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open the Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open the Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made):The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Notes

Text created by the Northern Ireland Assembly department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes accompany all Acts of the Northern Ireland Assembly.

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources