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The Town and Country Planning (Environmental Impact Assessment) Regulations 2017

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Appeal to the Secretary of State without a screening opinion or screening direction

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40.—(1) Where on consideration of an appeal under section 174 of the Act (Appeal against enforcement notice) it appears to the Secretary of State that the matters which are alleged to constitute the breach of planning control comprise or include Schedule 1 development or Schedule 2 development, the Secretary of State must, before any notice is served pursuant to regulation 41, make a screening direction.

(2) Where an inspector is dealing with an appeal under section 174 of the Act (Appeal against enforcement notice) and a question arises as to whether the matters which are alleged to constitute the breach of planning control comprise or include Schedule 1 development or Schedule 2 development, the inspector must refer that question to the Secretary of State.

(3) Before receiving a screening direction the inspector must not determine the application which is deemed to have been made by virtue of the appeal under section 174 of the Act (Appeal against enforcement notice) (“the deemed application”) except to refuse that application.

(4) The Secretary of State must make a screening direction—

(a)in a case where a question is referred to the Secretary of State under paragraph (2) within—

(i)3 weeks beginning with the date on which the question was referred;

(ii)where no notice is given under paragraph (8), such longer period as may be reasonably required not exceeding 90 days from the date on which the appellant submits the information required under regulation 38(a); or

(iii)where the Secretary of State gives notice under paragraph (8), such longer period as may be reasonably required, not exceeding 90 days from the date on which the person making the request for a screening direction submits the information required by the notice given under paragraph (8).

(b)in all other cases falling within this regulation within—

(i)3 weeks beginning with the date on which an appeal under section 174 of the Act (Appeal against enforcement notice) was lodged; or

(ii)where the Secretary of State gives notice under paragraph (8), such longer period not exceeding 90 days beginning with the date on which the person making the appeal submits the information required by notice given under paragraph (8) as may be reasonably required.

(5) Where the Secretary of State considers that, due to exceptional circumstances relating to the development, it is not practicable for the Secretary of State to adopt a screening direction within the period of 90 days beginning with the dates referred to in paragraphs (4)(a)(iii) and (4)(b)(ii), the Secretary of State may extend that period by giving notice in writing to the person who made the request for a screening direction.

(6) The Secretary of State must state in any notice given under paragraph (5) the reasons justifying the extension and the date when the determination is expected.

(7) The Secretary of State must send a copy of any screening direction made pursuant to paragraph (2) to the inspector.

(8) If the Secretary of State considers that sufficient information to make a screening direction has not been provided, the Secretary of State must give notice in writing to the appellant and the authority by whom the regulation 37 notice was served of the matters in respect of which additional information is required; and the information so requested must be provided by the appellant within such reasonable period as may be specified in the notice.

(9) A person providing additional information pursuant to a notice under paragraph (8) must, where that information is of a type specified in regulation 6(2) or (3), prepare that information in accordance with the requirements of regulation 6(4).

(10) If an appellant to whom notice has been given under paragraph (8) fails to comply with the requirements of that notice the appeal in so far as it is brought under the ground mentioned in section 174(2)(a) of the Act (Appeal against enforcement notice) (“the ground (a) appeal”) shall lapse at the end of the period specified in the notice.

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