The Management of Extractive Waste (Scotland) Regulations 2010

PART 9 APPEALS, ENFORCEMENT AND GENERAL PROVISION

Appeals

29.—(1) An operator may appeal to the Scottish Ministers against—

(a) the terms on which a planning authority approves a waste management plan under regulation 5(3) or regulation 13(3);

(b) the assessment by that authority of the size of financial guarantee required by virtue of regulation 15;

(c) where a waste management plan has been submitted but not approved—

(i) any terms that a planning authority notifies an operator that it would require before its approval will be given, or

(ii) a failure to approve the plan within six months of the date that the plan was submitted or within such extended period as may at any time be agreed upon in writing between the applicant and the authority;

(d) the outcome of any review undertaken under regulation 17, but only in respect of—

(i) any addition to, reduction from, or updating of the conditions attached to the permission, or

(ii) any adjustment of the size of financial guarantee required by virtue of regulation 15;

(e) any determination of the planning authority under regulation 26(3), (5) or (6).

(2) An appeal under paragraph (1) must be made by giving notice of appeal to the Scottish Ministers before the end of the period of three months beginning with the date on which the operator was notified, or was due to be notified, of the matter against which the appeal is taken and must be made on a form supplied by or on behalf of the Scottish Ministers for use for appeals under Schedule 10 to the 1997 Act and giving, so far as reasonably practicable, the information required by that form.

(3) Paragraphs 18 and 21(3) of Schedule 8 to the 1997 Act (determination of appeals) shall apply to appeals under paragraph (1) as they apply to appeals under paragraph 17 of that Schedule, and for their purposes an appeal under paragraph (1)(c)(ii) shall be deemed to be against a decision to refuse the application in question.

Enforcement

30.  For the purposes of these Regulations, Part 6 of the 1997 Act (enforcement) applies, and the following shall be treated as constituting a breach of planning control for the purposes of the application of that Part—

(a) carrying out development without any planning permission required by these Regulations;

(b) failure to comply with any condition or limitation subject to which such planning permission has been granted (including the mandatory conditions in Part 5 of these Regulations) or with any other requirement imposed on an operator by these Regulations;

(c) in the case of an extractive waste area or waste facility to which regulation 5(2) applies, commencing or continuing operations after 30th April 2012 without the approval of the planning authority for a waste management plan in respect of that area or facility;

(d) in the case of a waste facility to which regulation 5(4) applies, continuing to operate that facility after 30th April 2012 without the planning permission required by that regulation.

Compensation

31.—(1) This regulation shall apply where the requirements in paragraph (2) are met and—

(a) an application for approval of a waste management plan which requires to be made in accordance with regulation 5(2) is finally determined;

(b) an application for planning permission which requires to be made in terms of regulation 5(4) is finally determined; or

(c) where requirements imposed in pursuance of these Regulations have been finally determined on review in terms of regulation 17.

(2) The requirements for the purposes of paragraph (1) are—

(a) the conditions to which the mineral permissions relating to the site are to be subject, after that determination or review, differ from the conditions to which the mineral permissions relating to the site were subject immediately prior to that determination; and

(b) the effect of the later conditions, as compared with the effect of the previous conditions, except in so far as they are or were restoration or aftercare conditions, is to restrict working rights in respect of the site, and, for the purposes of this sub-paragraph, whether working rights are restricted shall be determined in accordance with paragraph 13(3) of Schedule 10 to the 1997 Act.

(3) In a case to which this regulation applies, but subject to paragraph (5), Parts IV (compensation for effects of certain orders) and X (statutory undertakers) of the 1997 Act shall apply and shall have effect as if an order made under section 65 of that Act—

(a) had been confirmed by the Scottish Ministers under section 66 of that Act at the time when the application in question was finally determined; and

(b) as so confirmed, had effect to modify those permissions to the extent specified in paragraph (5).

(4) For the purposes of this regulation, the order referred to in paragraph (3) is one whose only effect adverse to the interests of any person having an interest in the land or minerals comprised in the site is to restrict working rights in respect of the site to the same extent as the relevant restriction.

(5) For the purposes of Schedule 13 of the 1997 Act (regulations as to compensation) and of any regulations made under that Schedule, the permissions treated as being modified by the order mentioned in paragraph (4) shall be treated as if they were planning permissions for development which neither consists of nor includes any minerals development.

Electronic communications

32.—(1) Where the criteria in paragraph (2) are met, any document required or authorised to be sent by these Regulations may be sent by electronic communications and any requirement in these Regulations that any document is to be in writing is fulfilled.

(2) The criteria are—

(a) the recipient consents, or is deemed to have agreed under paragraph (3), to receive it electronically; and

(b) that document transmitted by the electronic communication is—

(i) capable of being accessed by the recipient;

(ii) legible in all material respects; and

(iii) sufficiently permanent to be used for subsequent reference.

(3) Any person sending a document using electronic communications is deemed to have agreed—

(a) to the use of such communications for all purposes relating to the application which are capable of being carried out electronically; and

(b) that the address for the purpose of such communications is the address incorporated into, or otherwise logically associated with, that communication.

(4) Deemed agreement under paragraph (3) subsists until that person gives notice to revoke the agreement.

(5) Notice of withdrawal of consent to the use of electronic communications or of revocation of agreement under paragraph (4) takes effect on a date specified by the person in the notice, but not less than seven days after the date on which the notice is given.

(6) In this regulation—

“address” includes any number or address used for the purpose of such communications or storage;

“document” includes any notice, consent, decision, representation, statement, list, report, form, plan, certificate or other information or communication;

“electronic communication” has the meaning given in section 15(1) of the Electronic Communications Act 2000(1);

“legible in all material respects” means that the information contained in the document is available to the recipient to no lesser extent than it would be if sent or given by means of a document in printed form; and

“sent” includes served, submitted or given and cognate expressions are to be construed accordingly.

(1)

2000 c.7, as amended by paragraph 158 of Schedule 17 to the Communications Act 2003 (c.21).