PART III continued
(2) For the purposes of this Act, uses and operations are lawful at any time if—
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
(3) For the purposes of this Act, any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if—
(a) the time for taking enforcement action in respect of the failure has then expired; and
(b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.
(4) If, on an application under this section, the planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
(5) A certificate under this section shall—
(a) specify the land to which it relates;
(b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 19(2)(f) of this Act, identifying it by reference to that class);
(c) give the reasons for determining the use, operations or other thing to be lawful; and
(d) specify the date of the application for the certificate.
(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.
(7) A certificate under this section in respect of any use shall also have effect, for the purposes of the following enactments, as if it were a grant of planning permission—
(a) section 3(3) of the [1960 c. 62.] Caravan Sites and Control of Development Act 1960;
(b) section 5(2) of the [1974 c. 40.] Control of Pollution Act 1974; and
(c) section 36(2)(a) of the [1990 c. 43.] Environmental Protection Act 1990.
(1) If any person wishes to ascertain whether—
(a) any proposed use of buildings or other land; or
(b) any operations proposed to be carried out in, on, over or under land,
would be lawful, he may make an application for the purpose to the planning authority specifying the land and describing the use or operations in question.
(2) If, on an application under this section, the planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application they shall issue a certificate to that effect; and in any other case they shall refuse the application.
(3) A certificate under this section shall—
(a) specify the land to which it relates;
(b) describe the use or operations in question (in the case of any use falling within one of the classes specified in an order under section 19(2)(f) of this Act, identifying it by reference to that class);
(c) give the reasons for determining the use or operations to be lawful; and
(d) specify the date of the application for the certificate.
(4) There shall be an irrefutable presumption as to the lawfulness of any use or operations for which a certificate is in force under this section unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness.
(1) An application for a certificate under section 90 or 90A of this Act shall be made in such manner as may be prescribed by regulations under this Act or a development order and shall include such particulars, and be verified by such evidence, as may be required by such regulations or such an order or by any directions given under such regulations or such an order or by the planning authority.
(2) Provision may be made by such regulations or a development order for regulating the manner in which applications for certificates under those sections are to be dealt with by planning authorities.
(3) In particular, such regulations or such an order may provide for requiring the authority—
(a) to give to any applicant within such time as may be prescribed by the regulations or the order such notice as may be so prescribed as to the manner in which his application has been dealt with; and
(b) to give to the Secretary of State and to such other persons as may be prescribed by or under the regulations or the order, such information as may be so prescribed with respect to such applications made to the authority, including information as to the manner in which any application has been dealt with.
(4) A certificate under either of those sections may be issued—
(a) for the whole or part of the land specified in the application; and
(b) where the application specifies two or more uses, operations or other things, for all of them or some one or more of them,
and shall be in such form as may be prescribed by such regulations or a development order.
(5) A certificate under section 90 or 90A shall not affect any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted unless that matter is described in the certificate.
(6) In section 31 of this Act references to applications for planning permission shall include references to applications for certificates under section 90 or 90A of this Act.
(7) A planning authority may revoke a certificate under either of those sections if, on the application for the certificate—
(a) a statement was made or document used which was false in a material particular; or
(b) any material information was withheld.
(8) Provision may be made by such regulations or a development order for regulating the manner in which certificates may be revoked and the notice to be given of such revocation.
(1) If any person, for the purpose of procuring a particular decision on an application (whether by himself or another) for the issue of a certificate under section 90 or 90A of this Act—
(a) knowingly or recklessly makes a statement which is false or misleading in a material particular;
(b) with intent to deceive, uses any document which is false or misleading in a material particular; or
(c) with intent to deceive, withholds any material information,
he shall be guilty of an offence.
(2) A person guilty of an offence under subsection (1) of this section shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.”
(2) An order under section 68(2) of this Act may provide for established use certificates to have effect, in such circumstances and to such extent as may be specified in the order, for the purposes of section 90 of the 1972 Act as substituted by this section.
(1) After section 91 of the 1972 Act there is inserted—
(1) Any person duly authorised in writing by a planning authority may at any reasonable hour enter any land—
(a) to ascertain whether there is or has been any breach of planning control on the land or any other land;
(b) to determine whether any of the powers conferred on a planning authority by sections 84 to 91 or 100 of this Act should be exercised in relation to the land or any other land;
(c) to determine how any such power should be exercised in relation to the land or any other land;
(d) to ascertain whether there has been compliance with any requirement imposed as a result of any such power having been exercised in relation to the land or any other land,
if there are reasonable grounds for entering for the purpose in question.
(2) Any person duly authorised in writing by the Secretary of State may at any reasonable hour enter any land to determine whether an enforcement notice should be issued in relation to the land or any other land, if there are reasonable grounds for entering for that purpose.
(3) The Secretary of State shall not so authorise any person without consulting the planning authority.
(4) Admission to any building used as a dwellinghouse shall not be demanded as of right by virtue of subsection (1) or (2) of this section unless 24 hours' notice of the intended entry has been given to the occupier of the building.
(1) If the sheriff is satisfied —
(a) that there are reasonable grounds for entering any land for any of the purposes mentioned in section 91A(1) or (2) of this Act; and
(b) that—
(i) admission to the land has been refused, or a refusal is reasonably apprehended; or
(ii) the case is one of urgency,
he may issue a warrant authorising any person duly authorised in writing to enter the land.
(2) For the purposes of subsection (1)(b)(i) of this section admission to land shall be regarded as having been refused if no reply is received to a request for admission within a reasonable period.
(3) A warrant authorises entry on one occasion only and that entry must be—
(a) within one month from the date of the issue of the warrant; and
(b) at a reasonable hour, unless the case is one of urgency.
(1) A person authorised to enter any land in pursuance of a right of entry conferred under or by virtue of section 91A or 91B of this Act (referred to in this section as “a right of entry”)—
(a) shall, if so required, produce evidence of his authority and state the purpose of his entry before so entering;
(b) may take with him such other persons as may be necessary; and
(c) on leaving the land shall, if the owner or occupier is not then present, leave it as effectively secured against trespassers as he found it.
(2) Any person who wilfully obstructs a person acting in the exercise of a right of entry shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) If any damage is caused to land or moveable property in the exercise of a right of entry, compensation may be recovered by any person suffering the damage from the authority who gave the written authority for the entry or, as the case may be, the Secretary of State.
(4) The provisions of section 168 of this Act shall apply in relation to compensation under subsection (3) of this section as they apply in relation to compensation under Part VIII of this Act.
(5) If any person who enters any land, in exercise of a right of entry, discloses to any person any information obtained by him while on the land as to any manufacturing process or trade secret, he shall be guilty of an offence.
(6) Subsection (4) does not apply if the disclosure is made by a person in the course of performing his duty in connection with the purpose for which he was authorised to enter the land.
(7) A person who is guilty of an offence under subsection (5) shall be liable on summary conviction to a fine not exceeding the statutory maximum or on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both.”
(2) In section 266(4) of the 1972 Act (compensation for damage caused in exercise of right of entry)—
(a) for “land is damaged” there is substituted “damage is caused to land or moveable property”; and
(b) for the words from “in respect of” to “in the land” there is substituted “may be recovered by any person suffering the damage”.
(1) In section 19 of the 1972 Act (meaning of “development”) after subsection (1) there is inserted—
“(1A) For the purposes of this Act “building operations” includes—
(a) demolition of buildings;
(b) rebuilding;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder.”
(2) In subsection (2) of that section after paragraph (f) there is inserted—
“(g) the demolition of any description of building specified in a direction given by the Secretary of State to planning authorities generally or to a particular planning authority.”
(3) After section 154(3) of the 1972 Act (compensation for refusal or conditional grant of planning permission formerly granted by development order) there is inserted—
“(3A) Regulations made by virtue of this subsection may provide that subsections (1) and (2) of this section shall not apply where planning permission granted by a development order for demolition of buildings or any description of buildings is withdrawn by the issue of directions under powers conferred by the order.”
(1) After subsection (3A) of section 19 (meaning of “development”) of the 1972 Act there is inserted—
“(3B) Where the placing or assembly of any tank in any part of any inland waters for the purpose of fish farming there would not, apart from this subsection, involve development of the land below, this Act shall have effect as if the tank resulted from carrying out engineering operations over that land; and in this subsection—
“fish farming” means the breeding, rearing or keeping of fish or shellfish (which includes any kind of crustacean or mollusc);
“inland waters” means waters which do not form part of the sea or of any creek, bay or estuary or of any river as far as the tide flows; and
“tank” includes any cage and any other structure for use in fish farming.”
(2) This section does not apply to the placing or assembly of any structure before this section comes into force.
(1) For section 24 of the 1972 Act (notification of applications for planning permission) there is substituted—
(1) A development order or regulations under this Act shall make provision—
(a) as to the notice of any application for planning permission to be given to any person (other than the applicant) who at the beginning of the period of twenty-one days ending with the date of the application was—
(i) the owner of, or
(ii) the tenant of any agricultural holding any part of which was comprised in,
any of the land to which the application relates; and
(b) requiring any applicant for such permission to issue a certificate as to the interests in the land to which the application relates or the purpose for which it is used,
and provide for publicising such applications and for the form, content and service of such notices and certificates.
(2) A development order or such regulations may require an applicant for planning permission to certify, in such form as may be prescribed by the order or the regulations, or to provide evidence, that any requirements of the order or the regulations have been satisfied.
(3) A development order or such regulations making any provision by virtue of this section may make different provision for different cases or different classes of development.
(4) A planning authority shall not entertain any application for planning permission unless any requirements imposed by virtue of this section have been satisfied.
(5) If any person—
(a) issues a certificate which purports to comply with any requirement imposed by virtue of this section and contains a statement which he knows to be false or misleading in a material particular; or
(b) recklessly issues a certificate which purports to comply with any such requirement and contains a statement which is false or misleading in a material particular,
he shall be guilty of an offence.
(6) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(7) In this section—
“agricultural holding” has the same meaning as in the [1991 c. 55.] Agricultural Holdings (Scotland) Act 1991; and
“owner” in relation to any land means any person who—
under the Lands Clauses Acts would be enabled to sell and convey the land to the promoters of an undertaking and includes any person entitled to possession of the land as lessee under a lease the unexpired period of which is not less than seven years; or
in the case of such applications as may be prescribed by a development order or by regulations, is entitled to an interest in any mineral so prescribed,
and the reference to the interests in the land to which an application for planning permission relates includes any interest in any mineral in, on or under the land.
(8) Proceedings for an offence under this section may be brought at any time within the period of two years following the commission of the offence.”
(2) For section 26(3) of the 1972 Act there is substituted—
“(3) Where an application for planning permission is accompanied by such a certificate as is mentioned in subsection (1)(b) or (3) of section 24 of this Act a development order or regulations under this Act may—
(a) provide that a planning authority shall not determine an application for planning permission before the end of such period as may be prescribed;
(b) require a planning authority—
(i) to take into account in determining such an application such representations, made within such period, as may be prescribed; and
(ii) to give to any person whose representations have been taken into account such notice as may be prescribed of their decision.
(3A) A development order or regulations making any provision by virtue of this section may make different provision for different cases or different classes of development.”
(1) After section 26 of the 1972 Act there is inserted—
(1) A planning authority may decline to determine an application for planning permission for the development of any land if—
(a) within the period of two years ending with the date on which the application is received, the Secretary of State has refused a similar application referred to him under section 32 of this Act or has dismissed an appeal against the refusal of a similar application; and
(b) in the opinion of the authority there has been no significant change since the refusal or, as the case may be, dismissal mentioned in paragraph (a) of this subsection in the development plan, so far as material to the application, or in any other material considerations.
(2) For the purposes of this section an application for planning permission for the development of any land shall only be taken to be similar to a later application if the development and the land to which the applications relate are in the opinion of the planning authority the same or substantially the same.
(3) The reference in subsection (1)(a) of this section to an appeal against the refusal of an application includes an appeal under section 34 in respect of an application.”.
(2) In section 34 (appeal in default of planning decision) of the 1972 Act—
(a) the word “either” is omitted; and
(b) after paragraph (a) there is inserted—
“(ab) give notice to the applicant that they have exercised their power under section 26A of this Act to decline to determine the application; or”.
After section 26 of the 1972 Act there is inserted—
(1) The Secretary of State may by regulations under this Act make provision about the consideration to be given, before planning permission for development of any class specified in the regulations is granted, to the likely environmental effects of the proposed development.
(2) The regulations—
(a) may make the same provision as, or provision similar or corresponding to, any provision made, for the purposes of any Community obligation of the United Kingdom about the assessment of the likely effects of development on the environment, under section 2(2) of the [1972 c. 68.] European Communities Act 1972; and
(b) may make different provisions for different classes of development.
(3) Where a draft of regulations made in exercise both of the power conferred by this section and the power conferred by section 2(2) of the European Communities Act 1972 is approved by resolution of each House of Parliament, no statutory instrument containing such regulations shall be subject to annulment by virtue of subsection (2) of section 273 (regulations and orders) of this Act.”
(1) In subsection (2) of section 50 (agreements regulating development or use of land) of the 1972 Act, after “Sasines” there is inserted “or, as the case may be, registered in the Land Register of Scotland,”.
(2) In subsection (1) of section 254 (agreements relating to Crown land) of the 1972 Act—
(a) after “agreements” there is inserted “(a)”; and
(b) after “thereto” there is inserted—
“and
(b) for the purpose of restricting or regulating the development or use of the land,
either permanently or during such period as may be prescribed by the agreement.”
(3) After subsection (1) of that section there is inserted—
“(1A) Subject to subsection (1B) of this section an agreement made under subsection (1)(b) of this section may, if it has been recorded in the appropriate Register of Sasines or, as the case may be, registered in the Land Register of Scotland, be enforceable at the instance of the planning authority against persons deriving title to the land from the appropriate authority.
(1B) An agreement made under subsection (1)(b) of this section shall not be enforceable against a third party who has in good faith and for value acquired right (whether completed by infeftment or not) to the land prior to the agreement being recorded or, as the case may be, registered as aforesaid or against any person deriving title from such a third party.”
(1) After section 33(7) of the 1972 Act (appeals against planning decisions) there is inserted—
“(7A) If at any time before or during the determination of an appeal under this section it appears to the Secretary of State that the appellant is responsible for undue delay in the progress of the appeal, he may—
(a) give the appellant notice that the appeal will be dismissed unless the appellant takes, within the period specified in the notice, such steps as are specified in the notice for the expedition of the appeal; and
(b) if the appellant fails to take those steps within that period, dismiss the appeal accordingly.”
(2) In paragraph 2(1)(a) of Schedule 7 to that Act (powers and duties of person determining appeals) for “subsections (3) and (5)” there is substituted “subsections (3), (5), and (7A)”.
Schedule 8 to this Act (which, among other things, provides for after-care where permission is given to deposit refuse or waste materials and provides for altering the provisions relating to compensation for restrictions on mineral working and depositing mineral waste) shall have effect.
After section 49G of the 1972 Act there is inserted
(1) In this section and Schedule 10A to this Act, “old mining permission” means any planning permission for development—
(a) consisting of the winning and working of minerals, or
(b) involving the depositing of mineral waste,
which is deemed to have been granted by virtue of paragraph 77 of Schedule 22 to this Act (development authorised under interim development orders after 10th November 1943).
(2) An old mining permission shall, if an application under that Schedule to determine the conditions to which the permission is to be subject is finally determined, have effect as from the final determination as if granted on the terms required to be registered.
(3) If no such development has, at any time in the period of two years ending with 16th May 1991, been carried out to any substantial extent anywhere in, on or under the land to which an old mining permission relates, that permission shall not authorise any such development to be carried out after the coming into force of this section unless—
(a) the permission has effect in accordance with subsection (2) above; and
(b) the development is carried out after such an application is finally determined.
(4) An old mining permission shall—
(a) if no application for the registration of the permission is made under that Schedule, cease to have effect on the day following the last date on which such an application may be made, and
(b) if such an application is refused, cease to have effect on the day following the date on which the application is finally determined.
(5) An old mining permission shall, if—
(a) such an application is granted; but
(b) an application under that Schedule to determine the conditions to which the permission is to be subject is required to be served before the end of any period and is not so served,
cease to have effect on the day following the last date on which the application to determine those conditions may be served.
(6) Subject to subsection (3) above, this section—
(a) shall not affect any development carried out under an old mining permission before an application under that Schedule to determine the conditions to which the permission is to be subject is finally determined or, as the case may be, the date on which the permission ceases to have effect; and
(b) shall not affect any order made or having effect as if made under section 49 or 49A to 49F of this Act (discontinuance, etc., orders).”.
Without prejudice to section 17(2) of the [1978 c. 30.] Interpretation Act 1978, any regulations made, or having effect as if made, by virtue of section 167A (regulations as to mineral compensation) of the 1972 Act shall, to the extent that they are in force on the coming into force of paragraph 13 of Schedule 8 to this Act, have effect as if made under section 167A of that Act as substituted by that paragraph.
(1) In section 98 of the 1972 Act (penalties for non-compliance with tree preservation order), in subsection (1)—
(a) for paragraph (a) there is substituted—
“(a) on summary conviction to a fine not exceeding £20,000;”
(b) the words “on indictment”, where second occurring, are omitted; and
(c) subsection (3) is omitted.
(2) In section 99 of the 1972 Act (enforcement of duties as to replacement of trees)—
(a) for subsection (2) there is substituted—
“(2) A notice under subsection (1) of this section shall specify a period at the end of which it is to take effect, being a period of not less than twenty-eight days beginning with the date of service of the notice.”;
(b) in subsection (3)—
(i) for the words from “at any time” to “take effect” there is substituted “either by giving written notice to the Secretary of State before the end of the period specified in accordance with subsection (2) of this section, or 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 the end of that period,”; and
(ii) after paragraph (a) there is inserted—
“(ab) that in all the circumstances of the case the duty imposed by the said section 60(1) should be dispensed with in relation to any tree;”; and
(c) at the end there is inserted—
“(6) Any person who wilfully obstructs a person acting in the exercise of the power under section 88(1) of this Act (as applied by subsection (5) of this section) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.”
(3) After section 99 there is inserted—