Town and Country Planning (Scotland) Act 1997 (c. 8)

(The document as of February, 2008)

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(4) A person who, without the grant of planning permission in that behalf, carries out any development on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice shall be guilty of an offence, and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

139 Power of Secretary of State to serve enforcement notice

(1) If it appears to the Secretary of State that it is expedient that an enforcement notice should be served in respect of any land, he may himself serve such a notice under section 127.

(2) An enforcement notice served by the Secretary of State shall have the same effect as if it had been served by the planning authority.

(3) The Secretary of State shall not serve such a notice without consulting the planning authority.

(4) The provisions of this Act relating to enforcement notices apply, so far as relevant, to an enforcement notice served by the Secretary of State as they apply to an enforcement notice served by a planning authority, but with the substitution for any reference to the planning authority of a reference to the Secretary of State, and any other necessary modifications.

Stop notices

140 Stop notices

(1) Where the planning authority consider it expedient that any relevant activity should cease before the expiry of the compliance period in respect of 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.

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

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

(5) 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 4 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.

(6) Subsection (5) 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.

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

(a) must not be earlier than 3 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 28 days from the date when the notice is first served on any person.

(8) 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 the relevant activity specified in the enforcement notice.

(9) The planning authority may at any time withdraw a stop notice (without prejudice to their power to serve another) by notice which shall be--

(a) served on all persons who were served with the stop notice, and

(b) publicised by displaying it for 7 days in place of all or any relative site notices.

141 Stop notices: supplementary provisions

(1) A stop notice shall cease to have effect when--

(a) the enforcement notice to which it relates is withdrawn or quashed,

(b) the compliance period specified under section 128(9) expires, or

whichever occurs first.

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

(3) Where a stop notice has been served in respect of any land, the planning authority may publicise it by displaying on the land a notice (in this section and section 144 referred to as a "site notice")--

(a) stating that a stop notice has been served on a particular person or persons,

(b) indicating its requirements, and

(4) A stop notice shall not be invalid by reason that a copy of the enforcement notice to which it relates was not served as required by section 127 if it is shown that the planning authority took all such steps as were reasonably practicable to effect proper service.

142 Power of the Secretary of State to serve stop notice

(1) If it appears to the Secretary of State that it is expedient that a stop notice should be served in respect of any land, he may himself serve such a notice under section 140.

(2) A stop notice served by the Secretary of State shall have the same effect as if it had been served by the planning authority.

(3) The Secretary of State shall not serve such a notice without consulting the planning authority.

(4) The provisions of this Act relating to stop notices apply, so far as relevant, to a stop notice served by the Secretary of State as they apply to a stop notice served by a planning authority, but with the substitution for any reference to the planning authority of a reference to the Secretary of State, and any other necessary modifications.

143 Compensation for loss due to stop notice

(1) Subject to the provisions of this section, where a stop notice under section 140 ceases to have effect a person who, when the stop notice is first served, has an interest, whether as owner or occupier or otherwise, in the land to which the notice relates shall be entitled to be compensated by the planning authority in respect of any loss or damage directly attributable to the prohibition contained in the notice or, in a case within subsection (1)(b), the prohibition of such of the activities prohibited by the stop notice as cease to be relevant activities.

(2) For the purposes of this section a stop notice ceases to have effect when--

(a) the enforcement notice is quashed on grounds other than those mentioned in paragraph (a) of section 130(1),

(b) the enforcement notice is varied (otherwise than on the grounds mentioned in that paragraph) so that any activity the carrying out of which is prohibited by the stop notice ceases to be a relevant activity within the meaning of section 140(2),

(c) the enforcement notice is withdrawn by the planning authority otherwise than in consequence of the grant by them of planning permission for the development to which the notice relates, or

(d) the stop notice is withdrawn.

(3) A claim for compensation under this section shall be made to the planning authority within the prescribed time and in the prescribed manner.

(4) The loss or damage in respect of which compensation is payable under this section in respect of a prohibition shall include any sum payable in respect of a breach of contract caused by the taking of action necessary to comply with the prohibition.

(5) No compensation is payable under this section--

(a) in respect of the prohibition in a stop notice of any activity which, at any time when the notice is in force, constitutes or contributes to a breach of planning control, or

(b) in the case of a claimant who was required to provide information under section 125, 126 or 272 in respect of any loss or damage suffered by him which could have been avoided if he had provided the information or had otherwise co-operated with the planning authority when responding to the notice.

(6) Except in so far as may be otherwise provided by any regulations made under this Act, any question of disputed compensation under this Part shall be referred to and determined by the Lands Tribunal.

(7) In relation to the determination of any such question, the provisions of sections 9 and 11 of the [1963 c. 51.] Land Compensation (Scotland) Act 1963 shall apply subject to any necessary modifications and to the provisions of any regulations made under this Act.

144 Penalties for contravention of stop notice

(1) 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.

(2) 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.

(3) It shall be a defence in any proceedings under subsection (1) that--

(a) the stop notice was not served on the accused, and

(b) he had no reasonable cause to believe that the activity was prohibited by the stop notice.

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

(5) A person guilty of an offence under this section shall be liable--

(a) on summary conviction, to a fine not exceeding £20,000, and

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

(6) 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.

Breach of condition notices

145 Enforcement of conditions

(1) This section applies where planning permission for carrying out any development has been granted subject to conditions.

(2) The planning authority may, if any of the conditions is not complied with, serve a notice (in this Act referred to as a "breach of condition notice") on--

(a) any person who is carrying out or has carried out the development, or

(b) any person having control of the land,

requiring him to secure compliance with such of the conditions as are specified in the notice.

(3) References in this section to the person responsible are to the person on whom the breach of condition notice has been served.

(4) The conditions which may be specified in a notice served by virtue of subsection (2)(b) are any of the conditions regulating the use of the land.

(5) A breach of condition notice shall specify the steps which the authority consider ought to be taken, or the activities which the authority consider ought to cease, to secure compliance with the conditions specified in the notice.

(6) The authority may by notice served on the person responsible withdraw the breach of condition notice, but its withdrawal shall not affect the power to serve on him a further breach of condition notice in respect of the conditions specified in the earlier notice or any other conditions.

(7) The period allowed for compliance with the notice is--

(a) such period of not less than 28 days beginning with the date of service of the notice as may be specified in the notice, or

(b) that period as extended by a further notice served by the planning authority on the person responsible.

(8) If, at any time after the end of the period allowed for compliance with the notice--

(a) any of the conditions specified in the notice is not complied with, and

(b) the steps specified in the notice have not been taken or, as the case may be, the activities specified in the notice have not ceased,

the person responsible is in breach of the notice.

(9) If the person responsible is in breach of the notice he shall be guilty of an offence.

(10) An offence under subsection (9) 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 that subsection by reference to any period of time following the preceding conviction for such an offence.

(11) It shall be a defence for a person charged with an offence under subsection (9) to prove--

(a) that he took all reasonable measures to secure compliance with the conditions specified in the notice, or

(b) where the notice was served on him by virtue of subsection (2)(b), that he no longer had control of the land.

(12) A person who is guilty of an offence under subsection (9) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(13) In this section--

(a) "conditions" includes limitations; and

(b) references to carrying out any development include causing or permitting another to do so.

Interdicts

146 Interdicts restraining breaches of planning control

(1) Whether or not they have exercised or propose to exercise any of their other powers under this Act, a planning authority may seek to restrain or prevent any actual or apprehended breach of any of the controls provided for by or under this Act by means of an application for interdict.

(2) On an application under subsection (1) the court may grant such interdict as it thinks appropriate for the purpose of restraining or preventing the breach.

(3) In this section "the court" means the Court of Session or the sheriff.

Registers

147 Register of enforcement, breach of condition and stop notices

(1) Every planning authority shall, with respect to enforcement notices, breach of condition notices and stop notices which have been served in relation to land in their district, keep a register--

(a) in such manner, and

(b) containing such information,

as may be prescribed; and there may also be prescribed circumstances in which an entry in the register shall be deleted.

(2) Every register kept under this section shall be available for inspection by the public at all reasonable hours.

Enforcement of orders for discontinuance of use, etc.

148 Penalties for contravention of orders under section 71 and Schedule 8

(1) Any person who without planning permission--

(a) uses land, or causes or permits land to be used--

(i) for any purpose for which an order under section 71 or paragraph 1 of Schedule 8 has required that its use shall be discontinued, or

(ii) in contravention of any condition imposed by such an order by virtue of subsection (1) of that section or, as the case may be, sub-paragraph (1) of that paragraph,

(b) resumes, or causes or permits to be resumed, development consisting of the winning and working of minerals or involving the depositing of mineral waste the resumption of which an order under paragraph 3 of that Schedule has prohibited, or

(c) contravenes, or causes or permits to be contravened, any such requirement as is specified in sub-paragraph (3) or (4) of that paragraph,

shall be guilty of an offence.

(2) Any person who contravenes any requirement of a suspension order or a supplementary suspension order under paragraph 5 or 6 of Schedule 8 or who causes or permits any requirement of such an order to be contravened shall be guilty of an offence.

(3) Any person guilty of an offence under this section shall be liable--

(a) on summary conviction, to a fine not exceeding the statutory maximum, and

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

(4) It shall be a defence for a person charged with an offence under this section to prove that he took all reasonable measures and exercised all due diligence to avoid commission of the offence by himself or by any person under his control.

(5) If in any case the defence provided by subsection (4) involves an allegation that the commission of the offence was due to the act or default of another person or due to reliance on information supplied by another person, the person charged shall not, without the leave of the court, be entitled to rely on the defence unless, within a period ending 7 clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of the other person as was then in his possession.

149 Enforcement of orders under section 71 and Schedule 8

(1) This section applies where--

(a) any step required by an order under section 71 or paragraph 1 of Schedule 8 to be taken for the alteration or removal of any buildings or works or any plant or machinery,

(b) any step required by an order under paragraph 3 of that Schedule to be taken--

(i) for the alteration or removal of plant or machinery, or

(ii) for the removal or alleviation of any injury to amenity, or

(c) any step for the protection of the environment required to be taken by a suspension order or a supplementary suspension order under paragraph 5 or 6 of that Schedule,

has not been taken within the period specified in the order or within such extended period as the planning authority may allow.

(2) Where this section applies the planning authority may enter the land and take the required step and may recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.

(3) A planning authority taking any step under subsection (1) may sell any materials removed by them from any land unless those materials are claimed by the owner within 3 days of their removal by the planning authority.

(4) Where such materials have been sold the planning authority shall pay the owner the net proceeds of the sale after deducting any expenses recoverable by them from him.

Certificate of lawful use or development

150 Certificate of lawfulness of existing use or development

(1) If any person wishes to ascertain whether--

(a) any existing use of buildings or other land is lawful,

(b) any operations which have been carried out in, on, over or under land are lawful, or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the planning authority specifying the land and describing the use, operations or other matter.

(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 26(2)(f), identifying it by reference to that class),

(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

151 Certificate of lawfulness of proposed use or development

(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 26(2)(f), identifying it by reference to that class),

(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.

152 Certificates under sections 150 and 151: supplementary provisions

(1) An application for a certificate under section 150 or 151 shall be made in such manner as may be prescribed by regulations 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 section 150 or 151 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 150 or 151 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 36 references to applications for planning permission shall include references to applications for certificates under section 150 or 151.

(7) A planning authority may revoke a certificate under section 150 or 151 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.

153 Offences

(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 150 or 151 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

he shall be guilty of an offence.

(2) A person guilty of an offence under subsection (1) shall be liable--

(a) on summary conviction, to a fine not exceeding the statutory maximum, and

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

154 Appeals against refusal or failure to give decision on application

(1) Where an application is made to a planning authority for a certificate under section 150 or 151 and--

(a) the application is refused or is refused in part, or

(b) the planning authority do not give notice to the applicant of their decision on the application within such period as may be prescribed by regulations or a development order or within such extended period as may at any time be agreed in writing by the applicant and the authority,

the applicant may appeal to the Secretary of State.

(2) An appeal under subsection (1) shall be by notice given within such period (not being less than 28 days) as may be prescribed by regulations or a development order.

(3) On any such appeal, if and so far as the Secretary of State is satisfied--

(a) in the case of an appeal under subsection (1)(a), that the authority's refusal is not well-founded, or

(b) in the case of an appeal under subsection (1)(b), that, if the planning authority had refused the application, their refusal would not have been well-founded,

he shall grant the appellant a certificate under section 150 or 151 accordingly or, in the case of a refusal in part, modify the certificate granted by the authority on the application.

(4) If and so far as the Secretary of State is satisfied that the authority's refusal is or, as the case may be, would have been well-founded, he shall dismiss the appeal.

(5) Schedule 4 applies to appeals under this section.

155 Further provisions as to appeals to the Secretary of State

(1) Before determining an appeal under section 154(1), the Secretary of State shall, if either the appellant or the planning authority so wish, give each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(2) Where the Secretary of State or a person appointed by him under Schedule 4 to determine an appeal grants a certificate under section 150 or 151, the Secretary of State or that person shall give notice to the planning authority of that fact.

Rights of entry for enforcement purposes

156 Right to enter without warrant

(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 127 to 138, 140, 141, 144, 145 and 147 to 155 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) unless 24 hours' notice of the intended entry has been given to the occupier of the building.

157 Right to enter under warrant

(1) If the sheriff is satisfied--

(a) that there are reasonable grounds for entering any land for any of the purposes mentioned in section 156(1) or (2), 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) 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.

158 Rights of entry: supplementary provisions

(1) A person authorised to enter any land in pursuance of a right of entry conferred under or by virtue of section 156 or 157 (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 86 shall apply in relation to compensation under subsection (3) as they apply in relation to compensation under Part IV.

(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 (5) 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--

(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 2 years or a fine or both.

Part VII Special Controls

Chapter I Trees

General duty of planning authorities as respects trees

159 Planning permission to include appropriate provision for preservation and planting of trees

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