Town and Country Planning (Scotland) Act 1972 (repealed 27.5.1997)

Development requiring planning permission S

[84 F1 Issue of enforcement notice. S

(1) The planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them—

(a) that there has been a breach of planning control; and

(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.

(2) A copy of an enforcement notice shall be served—

(a) on the owner and on the occupier of the land to which it relates; and

(b) on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice.

(3) The service of the notice shall take place—

(a) not more than twenty-eight days after its date of issue; and

(b) not less than twenty-eight days before the date specified in it as the date on which it is to take effect.]

Textual Amendments

F1 Ss. 84, 84AA, 84AB substituted for s. 84 (24.2.1992 for purpose of enabling Secretary of State to make regulations under s. 84AA(10), otherwise 26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s.37 (with s. 84(5)); S.I. 1992/334, arts. 3, 4.

[F2 F2 84AA Contents and effect of notice. S

(1) An enforcement notice shall state—

(a) the matters which appear to the planning authority to constitute the breach of planning control; and

(b) the paragraph of section 83A(1) of this Act within which, in the opinion of the authority, the breach falls.

(2) A notice complies with subsection (1)(a) of this section if it enables any person on whom a copy of it is served to know what those matters are.

(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

(4) Those purposes are—

(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or

(b) remedying any injury to amenity which has been caused by the breach.

(5) An enforcement notice may, for example, require—

(a) the alteration or removal of any buildings or works;

(b) the carrying out of any building or other operations;

(c) any activity on the land not to be carried on except to the extent specified in the notice; or

(d) the contour of a deposit of refuse or waste materials on land to be modified by altering the gradient or gradients of its sides.

(6) An enforcement notice issued in respect of a breach of planning control consisting of demolition of a building may require the construction of a building (in this section referred to as a “replacement building”) which, subject to subsection (7) of this section, is as similar as possible to the demolished building.

(7) A replacement building—

(a) must comply with any requirement imposed by or under any enactment applicable to the construction of buildings;

(b) may differ from the demolished building in any respect which, if the demolished building had been altered in that respect, would not have constituted a breach of planning control;

(c) must comply with any regulations made for the purposes of this subsection (including regulations modifying paragraphs (a) and (b) of this subsection).

(8) An enforcement notice shall specify the date on which it is to take effect and, subject to section 85(3) of this Act, shall take effect on that date.

(9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part of this Act to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased.

(10) An enforcement notice shall specify such additional matters as may be prescribed, and regulations may require every copy of an enforcement notice served under section 84 of this Act to be accompanied by an explanatory note giving prescribed information as to the right of appeal under section 85 of this Act.

(11) Where—

(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and

(b) all the requirements of the notice have been complied with,

then, so far as the notice did not so require, planning permission shall be treated as having been granted under section 29 of this Act in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.

(12) Where—

(a) an enforcement notice requires the construction of a replacement building; and

(b) all the requirements of the notice with respect to that construction have been complied with,

planning permission shall be treated as having been granted under section 29 of this Act in respect of development consisting of that construction.]

Textual Amendments

F2 Ss. 84, 84AA, 84AB substituted for s. 84 (24.2.1992 for purpose of enabling Secretary of State to make regulations under s. 84AA(10), otherwise 26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss.37, 84(2) (with s. 84(5)); S.I. 1992/334, arts. 3, 4 .

Modifications etc. (not altering text)

C2 S. 84AA(10) extended (with modifications) (26.3.1992) by S.I. 1992/478, reg.2, Sch.

[F3 F3 84AB Variation and withdrawal of enforcement notices. S

(1) The planning authority may—

(a) withdraw an enforcement notice issued by them; or

(b) waive or relax any requirement of such a notice and, in particular, may extend any period specified in accordance with section 84AA(9) of this Act.

(2) The powers conferred by subsection (1) may be exercised whether or not the notice has taken effect.

(3) The planning authority shall, immediately after exercising the powers conferred by subsection (1), give notice of the exercise to every person who has been served with a copy of the enforcement notice or would, if the notice were re-issued, be served with a copy of it.

(4) The withdrawal of an enforcement notice does not affect the power of the planning authority to issue a further enforcement notice.]

Textual Amendments

F3 Ss. 84, 84AA, 84AB substituted for s. 84 (24.2.1992 for purpose of enabling Secretary of State to make regulations under s. 84AA(10), otherwise 26.3.1992)) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss.37, 84(2) (with s. 84(5)); S.I. 1992/334, arts. 3, 4.

Modifications etc. (not altering text)

C3 S. 84AB extended (with modifications) (26.3.1992) by S.I. 1992/478, reg.2, Sch.

F4 84A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F4 S. 84A repealed (1.4.1996) by 1994 c. 39, s. 180(2), Sch. 14; S.I. 1996/323, art. 4(1)(b)(d), Sch. 2

85 Appeal against enforcement notice. S

—

[F5 (1) A person on whom an enforcement notice is served, or any other person having an interest in the land may, at any time before the date specified in the notice as the date on which it is to take effect, appeal to the Secretary of State against the notice on any of the following grounds—

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

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

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

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

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

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

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

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

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

F6 (2A) A person who gives notice under subsection (2) of this section shall submit to the Secretary of State, either when giving the notice or within such time as may be prescribed under subsection (2B) of this section, a statement in writing—

(a) specifying the grounds on which he is appealing against the enforcement notice; and

(b) giving such further information as may be so prescribed.

(2B) The Secretary of State may prescribe the procedure to be followed on appeals under this section, and (without prejudice to the generality of the foregoing provisions of this subsection) in so prescribing—

(a) may specify the time within which an appellant is to submit a statement under subsection (2A) of this section and the matters on which information is to be given in such a statement;

(b) may require the planning authority to submit, within such time as may be specified, a statement indicating the submissions which they propose to put forward on the appeal;

(c) may specify the matters to be included in such a statement;

(d) may require the authority or the appellant to give such notice of an appeal under this section as may be specified, [F7 to such persons as may be specified];

(e) may require the authority to send to the Secretary of State, within such period from the date of the bringing of the appeal as may be specified, a copy of the enforcement notice and a list of the persons on whom the notice has been served.

(2C) The Secretary of State—

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

(b) may allow an appeal and quash the enforcement notice if the planning authority fail to comply with any requirement imposed by virtue of paragraph (b), (c) or (e) of subsection (2B) above.

(2D) Subject to subsection (2C) above, the Secretary of State shall, if either the planning authority or the appellant so desire, afford to each of them an opportunity of appearing before, and being heard by, a person appointed by him for the purpose.

(3) Where an appeal is brought under this section, the enforcement notice shall be of no effect pending the final determination or the withdrawal of the appeal.

(4) On an appeal under this section—

[F8 (a) the Secretary of State may—

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

(ii) vary the terms of the enforcement notice,

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

(b) in a case where it would otherwise be a ground for determining the appeal in favour of the appellant that a person required by section [F9 84(2)]of this Act to be served with the notice was not served, the Secretary of State may disregard that fact if neither the appellant nor that person has been substantially prejudiced by the failure to serve him.

(5) On the determination of an appeal under this section, the Secretary of State shall give directions for giving effect to his determination, including, where appropriate, directions for quashing the enforcement notice F10 . . .; and the Secretary of State may—

[F11 (a) grant planning permission in respect of any of the matters stated in the enforcement notice as constituting a breach of planning control or any of those matters so far as relating to part of the land to which the notice relates;

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

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

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

[F12 (5A) The provisions of sections 90 to 90C of this Act mentioned in subsection (5B) of this section shall apply for the purposes of subsection (5)(d) of this section as they apply for the purposes of section 90 of this Act, but as if—

(a) any reference to an application for a certificate were a reference to the appeal and any reference to the date of such an application were a reference to the date on which the appeal is made; and

(b) references to the planning authority were references to the Secretary of State.

(5B) Those provisions are: sections 90(5) to (7), 90B(4) (so far as it relates to the form of the certificate), (6) and (7) and 90C.]

(6) In considering whether to grant planning permission under subsection (5) of this section, the Secretary of State shall have regard to the provisions of the development plan, so far as material to the subject-matter of the enforcement notice, and to any other material considerations; —

[F13 (6A) The planning permission which may be granted under subsection (5) of this section is any planning permission which might be granted on an application under Part III of this Act.

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

(7) Where an appeal against an enforcement notice is brought under this section, the appellant shall be deemed to have made an application for planning permission [F14 in respect of the matters stated in the enforcement notice as constituting a breach of planning control]and, in relation to any exercise by the Secretary of State of his powers under subsection (5) of this section, the following provisions shall have effect—

(a) any planning permission granted thereunder shall be treated as granted on the said application;

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

(c) for the purposes of section 31 of this Act, the decision shall be treated as having been given by the Secretary of State in dealing with an application for planning permission made to the. . . F15 planning authority.

[F16 (7A) Where—

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

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

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

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

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F17

(9) Subject to section 279 of this Act, Schedule 7 to this Act applies to appeals under this section, including appeals under this section as applied by regulations under any other provision of this Act.

(10) The validity of an enforcement notice shall not, except by way of an appeal under this section, be questioned in any proceedings whatsoever on any of the grounds specified in paragraphs (b) to (e) of subsection (1) of this section.

F18 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F5 S. 85(1)(2) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 38(1), 84(2) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F6 S. 85(2)—(2D) substituted for s. 85(2) by Local Government and Planning (Scotland) Act 1982 (c.43), s. 69(2), Sch. 2 para. 20(b)

F7 Words in s. 85(2B)(d) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13, para. 20(a) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F8 S. 85(4)(a) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13, para. 20(b)(i) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

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

F10 Words in s. 85(5) repealed (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(6), Sch. 13, para. 20(c)(i), Sch. 19, Pt.IV (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F11 S. 85(5)(a)-(d) substituted for s. 85(a)(b) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13 para. 20(c)(ii) (with s. 84(5)), the substitution being in force at 26.3.1992 as regards s. 85(5)(a)-(c) by S.I. 1992/334, art. 4, Sch. 2 and 25.9.1992 otherwise by S.I. 1992/1937, art. 4

F12 S. 85(5A)(5B) inserted (25.9.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, Sch. 13, para. 20(d) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F13 S. 85(6A)(6B) inserted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13, para. 20(e) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F14 Words in s. 85(7) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13, para. 20(f) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F15 Word repealed by Local Government (Scotland) Act 1973 (c. 65), s. 172(2)

F16 S. 85(7A) inserted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 38(2), 84(2) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F17 S. 85(8) repealed by Housing and Planning Act 1986 (c. 63, SIF 123:2), s. 53(2), Sch. 12 Pt. IV

F18 S. 85(11) repealed (26.3.1992) by Planning and Compenstion Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2)(6), Sch. 13, para. 20(g), Sch. 19, Pt. IV (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

Modifications etc. (not altering text)

C4 S. 85 applied in part (with modifications) (1.5.1993) by S.I. 1993/323, reg. 19, Sch. 4 Pts.I, 5

C5 S. 85(2)–(5) extended by Town and Country Planning Act 1984 (c. 10, SIF 123:1, 2), s. 3(9)

C6 S. 85(10) extended (with modifications) (26.3.1992) by S.I. 1992/478, reg. 2, Sch.

Marginal Citations

M1 1980 c. 65

[86 F19 Offence where enforcement notice not complied with. S

(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

(2) Where the owner of the land is in breach of the notice he shall be guilty of an offence.

(3) In proceedings against any person for an offence under subsection (2) of this section, it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.

(4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.

(5) A person who, at any time after the end of the period for compliance with the notice, contravenes subsection (4) of this section shall be guilty of an offence.

(6) An offence under subsection (2) or (5) of this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence.

(7) Where—

(a) a person charged with an offence under this section has not been served with a copy of the enforcement notice; and

(b) the notice is not contained in the appropriate register kept under section 87A of this Act,

it shall be a defence for him to show that he was not aware of the existence of the notice.

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

(a) on summary conviction, to a fine not exceeding £20,0; and

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

(9) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.]

Textual Amendments

F19 S. 86 substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s.40 (with s. 84(5)); S.I. 1992/334, art.4.

Modifications etc. (not altering text)

C7 S. 86 extended (with modifications) (26.3.1992) by S.I. 1992/478, reg. 2, Sch.

S. 86 modified in part (1.5.1993) by S.I. 1993/323, reg. 21, Sch. 4 Pts.2, 5

[F20 87 Stop Notices. S

.

[F21 (1) Where the planning authority consider it expedient that any relevant activity should cease before the expiry of the period for compliance with an enforcement notice, they may, when they serve the copy of the enforcement notice or afterwards, serve a notice (in this Act referred to as a “stop notice”) prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land specified in the stop notice.

(2) In this section, “relevant activity” means any activity specified in the enforcement notice as an activity which the planning authority require to cease and any activity carried out as part of that activity or associated with that activity.

(2A) A stop notice may not be served where the enforcement notice has taken effect.

(2B) A stop notice shall not prohibit the use of any building as a dwellinghouse.

(2C) A stop notice shall not prohibit the carrying out of any activity if the activity has been carried out (whether continuously or not) for a period of more than four years ending with the service of the notice; and for the purposes of this subsection no account is to be taken of any period during which the activity was authorised by planning permission.

(2D) Subsection (2C) of this section does not prevent a stop notice prohibiting any activity consisting of, or incidental to, building, engineering, mining or other operations or the deposit of refuse or waste materials.

(3) A stop notice shall specify the date when it is to come into effect, and that date—

(a) must not be earlier than three days after the date when the notice is served, unless the planning authority consider that there are special reasons for specifying an earlier date and a statement of those reasons is served with the stop notice; and

(b) must not be later than twenty-eight days from the date when the notice is first served on any person.]

(4) A stop notice shall cease to have effect—(a)when it is withdrawn under the provisions of subsection (10) below;

(b) when the enforcement notice to which it relates is withdrawn or quashed; or

(c) when the period for compliance with that enforcement notice specified under section [F22 84AA(9)] of this Act has expired;

whichever is the earlier.

(5) Where the enforcement notice to which a stop notice relates is varied so that it no longer relates to any [F23 relevant activity], the stop notice shall cease to have effect in relation to that activity.

(6) A stop notice may be served by the planning authority on any person who appears to them to have an interest in the land or to be engaged in [F24 the relevant activity specified] in the enforcement notice.

(7) The planning authority may publicise a stop notice by displaying on the land a notice (to be referred to as a “site notice”) which shall state—

(a) the requirements of the stop notice;

(b) that the stop notice has been served on a particular person or persons; and

(c) the consequences under subsection (8) below of contravention of the stop notice.

[F25 (8) If any person contravenes a stop notice after a site notice has been displayed or the stop notice has been served on him he shall be guilty of an offence.

(8A) An offence under this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence.

(8B) It shall be a defence in any proceedings under subsection (8) of this section that the stop notice was not served on the accused and that he had no reasonable cause to believe that the activity was prohibited by the stop notice.

(8C) References in this section to contravening a stop notice include causing or permitting its contravention.

(8D) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £20,0; and

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

(8E) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.]

(9) A stop notice shall not be invalid by reason that the enforcement notice to which it relates was not served as required by section [F26 84] of this Act if it is shown that the planning authority took all such steps as were reasonably practicable to effect proper service.

(10) The planning authority may at any time withdraw a stop notice (without prejudice to their power to serve another) by notice which—

(a) shall be served on all persons who were served with the stop notice; and

(b) shall be publicised by displaying it for seven days in place of all or any relative site notices.]

Textual Amendments

F20 S. 87 substituted by Town and Country Planning (Scotland) Act 1977 (c. 10), s. 4

F21 S. 87(1)(2)-(2D)(3) substituted (26.3.1992) for s. 87(1)-(3) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 41(1), (with s. 84(5)); S.I. 1992/334, art.4.

F22 Words in s. 87(4)(c) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 21(a) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2

F23 Words in s. 87(5) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 21(b) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2

F24 Words in s. 87(6) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 21(c) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2

F25 S. 87(8)-(8E) substituted (26.3.1992) for s. 87(8) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 41(2) (with s. 84(5)); S.I. 1992/334, art.4.

F26 Word in s. 87(9) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 21(d) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2

Modifications etc. (not altering text)

C8 S. 87 extended (with modifications) (26.3.1992) by S.I. 1992/478, reg.2, Sch.

Development requiring planning permission S

[84 F1 Issue of enforcement notice. S

(1) The planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them—

(a) that there has been a breach of planning control; and

(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.

(2) A copy of an enforcement notice shall be served—

(a) on the owner and on the occupier of the land to which it relates; and

(b) on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice.

(3) The service of the notice shall take place—

(a) not more than twenty-eight days after its date of issue; and

(b) not less than twenty-eight days before the date specified in it as the date on which it is to take effect.]

Textual Amendments

F1 Ss. 84, 84AA, 84AB substituted for s. 84 (24.2.1992 for purpose of enabling Secretary of State to make regulations under s. 84AA(10), otherwise 26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s.37 (with s. 84(5)); S.I. 1992/334, arts. 3, 4.

F4 84A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F4 S. 84A repealed (1.4.1996) by 1994 c. 39, s. 180(2), Sch. 14; S.I. 1996/323, art. 4(1)(b)(d), Sch. 2

85 Appeal against enforcement notice. S

—

[F5 (1) A person on whom an enforcement notice is served, or any other person having an interest in the land may, at any time before the date specified in the notice as the date on which it is to take effect, appeal to the Secretary of State against the notice on any of the following grounds—

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

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

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

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

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

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

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

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

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

F6 (2A) A person who gives notice under subsection (2) of this section shall submit to the Secretary of State, either when giving the notice or within such time as may be prescribed under subsection (2B) of this section, a statement in writing—

(a) specifying the grounds on which he is appealing against the enforcement notice; and

(b) giving such further information as may be so prescribed.

(2B) The Secretary of State may prescribe the procedure to be followed on appeals under this section, and (without prejudice to the generality of the foregoing provisions of this subsection) in so prescribing—

(a) may specify the time within which an appellant is to submit a statement under subsection (2A) of this section and the matters on which information is to be given in such a statement;

(b) may require the planning authority to submit, within such time as may be specified, a statement indicating the submissions which they propose to put forward on the appeal;

(c) may specify the matters to be included in such a statement;

(d) may require the authority or the appellant to give such notice of an appeal under this section as may be specified, [F7 to such persons as may be specified];

(e) may require the authority to send to the Secretary of State, within such period from the date of the bringing of the appeal as may be specified, a copy of the enforcement notice and a list of the persons on whom the notice has been served.

(2C) The Secretary of State—

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

(b) may allow an appeal and quash the enforcement notice if the planning authority fail to comply with any requirement imposed by virtue of paragraph (b), (c) or (e) of subsection (2B) above.

(2D) Subject to subsection (2C) above, the Secretary of State shall, if either the planning authority or the appellant so desire, afford to each of them an opportunity of appearing before, and being heard by, a person appointed by him for the purpose.

(3) Where an appeal is brought under this section, the enforcement notice shall be of no effect pending the final determination or the withdrawal of the appeal.

(4) On an appeal under this section—

[F8 (a) the Secretary of State may—

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

(ii) vary the terms of the enforcement notice,

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

(b) in a case where it would otherwise be a ground for determining the appeal in favour of the appellant that a person required by section [F9 84(2)]of this Act to be served with the notice was not served, the Secretary of State may disregard that fact if neither the appellant nor that person has been substantially prejudiced by the failure to serve him.

(5) On the determination of an appeal under this section, the Secretary of State shall give directions for giving effect to his determination, including, where appropriate, directions for quashing the enforcement notice F10 . . .; and the Secretary of State may—

[F11 (a) grant planning permission in respect of any of the matters stated in the enforcement notice as constituting a breach of planning control or any of those matters so far as relating to part of the land to which the notice relates;

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

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

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

[F12 (5A) The provisions of sections 90 to 90C of this Act mentioned in subsection (5B) of this section shall apply for the purposes of subsection (5)(d) of this section as they apply for the purposes of section 90 of this Act, but as if—

(a) any reference to an application for a certificate were a reference to the appeal and any reference to the date of such an application were a reference to the date on which the appeal is made; and

(b) references to the planning authority were references to the Secretary of State.

(5B) Those provisions are: sections 90(5) to (7), 90B(4) (so far as it relates to the form of the certificate), (6) and (7) and 90C.]

(6) In considering whether to grant planning permission under subsection (5) of this section, the Secretary of State shall have regard to the provisions of the development plan, so far as material to the subject-matter of the enforcement notice, and to any other material considerations; —

[F13 (6A) The planning permission which may be granted under subsection (5) of this section is any planning permission which might be granted on an application under Part III of this Act.

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

(7) Where an appeal against an enforcement notice is brought under this section, the appellant shall be deemed to have made an application for planning permission [F14 in respect of the matters stated in the enforcement notice as constituting a breach of planning control]and, in relation to any exercise by the Secretary of State of his powers under subsection (5) of this section, the following provisions shall have effect—

(a) any planning permission granted thereunder shall be treated as granted on the said application;

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

(c) for the purposes of section 31 of this Act, the decision shall be treated as having been given by the Secretary of State in dealing with an application for planning permission made to the. . . F15 planning authority.

[F16 (7A) Where—

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

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

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

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

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F17

(9) Subject to section 279 of this Act, Schedule 7 to this Act applies to appeals under this section, including appeals under this section as applied by regulations under any other provision of this Act.

(10) The validity of an enforcement notice shall not, except by way of an appeal under this section, be questioned in any proceedings whatsoever on any of the grounds specified in paragraphs (b) to (e) of subsection (1) of this section.

F18 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F5 S. 85(1)(2) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 38(1), 84(2) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F6 S. 85(2)—(2D) substituted for s. 85(2) by Local Government and Planning (Scotland) Act 1982 (c.43), s. 69(2), Sch. 2 para. 20(b)

F7 Words in s. 85(2B)(d) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13, para. 20(a) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F8 S. 85(4)(a) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13, para. 20(b)(i) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

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

F10 Words in s. 85(5) repealed (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(6), Sch. 13, para. 20(c)(i), Sch. 19, Pt.IV (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F11 S. 85(5)(a)-(d) substituted for s. 85(a)(b) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13 para. 20(c)(ii) (with s. 84(5)), the substitution being in force at 26.3.1992 as regards s. 85(5)(a)-(c) by S.I. 1992/334, art. 4, Sch. 2 and 25.9.1992 otherwise by S.I. 1992/1937, art. 4

F12 S. 85(5A)(5B) inserted (25.9.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, Sch. 13, para. 20(d) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F13 S. 85(6A)(6B) inserted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13, para. 20(e) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F14 Words in s. 85(7) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2), Sch. 13, para. 20(f) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F15 Word repealed by Local Government (Scotland) Act 1973 (c. 65), s. 172(2)

F16 S. 85(7A) inserted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 38(2), 84(2) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

F17 S. 85(8) repealed by Housing and Planning Act 1986 (c. 63, SIF 123:2), s. 53(2), Sch. 12 Pt. IV

F18 S. 85(11) repealed (26.3.1992) by Planning and Compenstion Act 1991 (c. 34, SIF 123:2), ss. 61, 84(2)(6), Sch. 13, para. 20(g), Sch. 19, Pt. IV (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2.

Modifications etc. (not altering text)

C4 S. 85 applied in part (with modifications) (1.5.1993) by S.I. 1993/323, reg. 19, Sch. 4 Pts.I, 5

C5 S. 85(2)–(5) extended by Town and Country Planning Act 1984 (c. 10, SIF 123:1, 2), s. 3(9)

C6 S. 85(10) extended (with modifications) (26.3.1992) by S.I. 1992/478, reg. 2, Sch.

Marginal Citations

M1 1980 c. 65

[86 F19 Offence where enforcement notice not complied with. S

(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

(2) Where the owner of the land is in breach of the notice he shall be guilty of an offence.

(3) In proceedings against any person for an offence under subsection (2) of this section, it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.

(4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.

(5) A person who, at any time after the end of the period for compliance with the notice, contravenes subsection (4) of this section shall be guilty of an offence.

(6) An offence under subsection (2) or (5) of this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence.

(7) Where—

(a) a person charged with an offence under this section has not been served with a copy of the enforcement notice; and

(b) the notice is not contained in the appropriate register kept under section 87A of this Act,

it shall be a defence for him to show that he was not aware of the existence of the notice.

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

(a) on summary conviction, to a fine not exceeding £20,0; and

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

(9) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.]

Textual Amendments

F19 S. 86 substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s.40 (with s. 84(5)); S.I. 1992/334, art.4.

Modifications etc. (not altering text)

C7 S. 86 extended (with modifications) (26.3.1992) by S.I. 1992/478, reg. 2, Sch.

S. 86 modified in part (1.5.1993) by S.I. 1993/323, reg. 21, Sch. 4 Pts.2, 5

[F20 87 Stop Notices. S

.

[F21 (1) Where the planning authority consider it expedient that any relevant activity should cease before the expiry of the period for compliance with an enforcement notice, they may, when they serve the copy of the enforcement notice or afterwards, serve a notice (in this Act referred to as a “stop notice”) prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land specified in the stop notice.

(2) In this section, “relevant activity” means any activity specified in the enforcement notice as an activity which the planning authority require to cease and any activity carried out as part of that activity or associated with that activity.

(2A) A stop notice may not be served where the enforcement notice has taken effect.

(2B) A stop notice shall not prohibit the use of any building as a dwellinghouse.

(2C) A stop notice shall not prohibit the carrying out of any activity if the activity has been carried out (whether continuously or not) for a period of more than four years ending with the service of the notice; and for the purposes of this subsection no account is to be taken of any period during which the activity was authorised by planning permission.

(2D) Subsection (2C) of this section does not prevent a stop notice prohibiting any activity consisting of, or incidental to, building, engineering, mining or other operations or the deposit of refuse or waste materials.

(3) A stop notice shall specify the date when it is to come into effect, and that date—

(a) must not be earlier than three days after the date when the notice is served, unless the planning authority consider that there are special reasons for specifying an earlier date and a statement of those reasons is served with the stop notice; and

(b) must not be later than twenty-eight days from the date when the notice is first served on any person.]

(4) A stop notice shall cease to have effect—(a)when it is withdrawn under the provisions of subsection (10) below;

(b) when the enforcement notice to which it relates is withdrawn or quashed; or

(c) when the period for compliance with that enforcement notice specified under section [F22 84AA(9)] of this Act has expired;

whichever is the earlier.

(5) Where the enforcement notice to which a stop notice relates is varied so that it no longer relates to any [F23 relevant activity], the stop notice shall cease to have effect in relation to that activity.

(6) A stop notice may be served by the planning authority on any person who appears to them to have an interest in the land or to be engaged in [F24 the relevant activity specified] in the enforcement notice.

(7) The planning authority may publicise a stop notice by displaying on the land a notice (to be referred to as a “site notice”) which shall state—

(a) the requirements of the stop notice;

(b) that the stop notice has been served on a particular person or persons; and

(c) the consequences under subsection (8) below of contravention of the stop notice.

[F25 (8) If any person contravenes a stop notice after a site notice has been displayed or the stop notice has been served on him he shall be guilty of an offence.

(8A) An offence under this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence.

(8B) It shall be a defence in any proceedings under subsection (8) of this section that the stop notice was not served on the accused and that he had no reasonable cause to believe that the activity was prohibited by the stop notice.

(8C) References in this section to contravening a stop notice include causing or permitting its contravention.

(8D) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £20,0; and

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

(8E) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.]

(9) A stop notice shall not be invalid by reason that the enforcement notice to which it relates was not served as required by section [F26 84] of this Act if it is shown that the planning authority took all such steps as were reasonably practicable to effect proper service.

(10) The planning authority may at any time withdraw a stop notice (without prejudice to their power to serve another) by notice which—

(a) shall be served on all persons who were served with the stop notice; and

(b) shall be publicised by displaying it for seven days in place of all or any relative site notices.]

Textual Amendments

F20 S. 87 substituted by Town and Country Planning (Scotland) Act 1977 (c. 10), s. 4

F21 S. 87(1)(2)-(2D)(3) substituted (26.3.1992) for s. 87(1)-(3) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 41(1), (with s. 84(5)); S.I. 1992/334, art.4.

F22 Words in s. 87(4)(c) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 21(a) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2

F23 Words in s. 87(5) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 21(b) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2

F24 Words in s. 87(6) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 21(c) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2

F25 S. 87(8)-(8E) substituted (26.3.1992) for s. 87(8) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 41(2) (with s. 84(5)); S.I. 1992/334, art.4.

F26 Word in s. 87(9) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 21(d) (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2

Modifications etc. (not altering text)

C8 S. 87 extended (with modifications) (26.3.1992) by S.I. 1992/478, reg.2, Sch.