Statutory Instrument 1997 No. 10 (S.1)

The Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 1997

(The document as of February, 2008. Arhiv.Online Library)

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STATUTORY INSTRUMENTS

1997 No. 10 (S.1)

TOWN AND COUNTRY PLANNING, SCOTLAND

The Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 1997

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	Made	2nd January 1997
	Coming into force	30th January 1997

The Secretary of State, in exercise of the powers conferred on him by section 87 of the Local Government, Planning and Land Act 1980[1] and of all other powers enabling him in that behalf, hereby makes the following Regulations, a draft of which has been laid before and approved by each House of Parliament:

Application, citation, commencement and extent
    1. - (1) These Regulations may be cited as the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 1997 and shall come into force on the twenty-eighth day after the date on which they are made.

    (2) These Regulations apply to:-

(a) applications made on or after the day these Regulations come into force for-


(i) any planning permission or deemed application for planning permission;

(ii) approval of reserved matters;

(iii) a certificate of lawful use or development under sections 90 or 90A of the 1972 Act[2];

(iv) consent for the display of advertisements;

(v) a determination as to whether the planning authority's prior approval will be required in relation to development under Schedule 1 to the General Permitted Development Order.



(b) deemed applications for planning permission in connection with an enforcement notice issued on or after the day these Regulations come into force.

    (3) These Regulations extend to Scotland only.

Interpretation
    2. - (1) In these Regulations, unless the context otherwise requires-

"the 1972 Act" means the Town and Country Planning (Scotland) Act 1972[3];

"the 1984 Regulations" means the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984[4];

"the General Permitted Development Order" means the Town and Country Planning (General Permitted Development) (Scotland) Order 1992[5];

"dwellinghouse" means a building or part of a building which is used as a single private dwellinghouse, and for no other purpose;

"outline planning permission" and "reserved matters" have the same meaning as in the Town and Country Planning (General Development Procedure) (Scotland) Order 1992[6];

"the Schedule" means the Schedule to these Regulations;

"use of land" includes use of land for the winning and working of minerals.

    (2) Subject to paragraph (3) below, expressions used in these Regulations have, unless the context otherwise requires, the meaning which they bear in the 1972 Act.

    (3) Expressions used in regulation 14 have, unless the context otherwise requires, the meaning which they bear in the 1984 Regulations.

    (4) Any reference in these Regulations-

(a) to a numbered regulation, is a reference to the regulation so numbered in these Regulations;

(b) to a numbered paragraph, is a reference to the paragraph so numbered in the Schedule to these Regulations; and

(c) to a numbered Table is a reference to the Table so numbered in Part III of the Schedule to these Regulations.

Fees for planning applications
    3. - (1) Subject to regulations 4 to 9 and paragraph 8(3) of the Schedule, where an application is made to a planning authority for planning permission or for the approval of reserved matters, a fee shall be paid to that authority in accordance with the provisions of these Regulations.

    (2) The fee payable in respect of the application shall be calculated in accordance with the Schedule.

    (3) Where a fee is due in respect of an application it shall be paid to the planning authority with whom the application is lodged and shall accompany the application.

    (4) Any fee paid under this regulation shall be refunded if the application is rejected as invalidly made.

Exceptions
    4. - (1) Regulation 3 shall not apply where the planning authority to whom the application is made are satisfied that it relates solely to the carrying out of operations-

(a) in the curtilage or for the alteration or extension of a dwellinghouse, other than the erection of a dwellinghouse, for the purpose of providing means of access to or within the dwellinghouse for a disabled person who resides or proposes to reside in that dwellinghouse, or of providing facilities designed to secure his greater safety, health or comfort; or

(b) for the purpose of providing means of access for disabled persons to or within a building or premises to which members of the public are admitted.

    (2) In this regulation, "disabled person" means a person who is blind, deaf, dumb, or substantially and permanently handicapped by illness, injury or congenital deformity, and includes a mentally disordered person of any description.

    5. - (1) Regulation 3 shall not apply where the planning authority to whom the application is made are satisfied-

(a)


(i) that the application relates solely to development which is within one or more of the classes, other than Class 18, specified in Schedule 1 to the General Permitted Development Order; and

(ii) that the permission granted by article 3 of that Order does not apply in respect of that development by reason of and only by reason of-


(aa) a direction made under article 4 of that Order which is in force on the date when the application is made; or

(bb) the requirements of a condition imposed on a permission granted or deemed to be granted under Part III of the 1972 Act otherwise than by that Order; or



(b) that the application relates to development on land used for the purposes of agriculture, other than dwellinghouses or the buildings excluded by virtue of paragraph (2)(d) of Class 18 in Schedule 1 to the General Permitted Development Order from that class, and the development is to be used for purposes incidental to that use.

    (2) The reference in paragraph (1)(a)(i) to an application which relates to development which is within one or more of the classes specified in Schedule 1 to the General Permitted Development Order shall include an application for planning permission for the continuance of a use of land, or the retention of buildings or works, without compliance with a condition subject to which a previous planning permission has been granted, and which prohibits or limits the carrying out of any development which is within one or more of the said classes.

    6.Regulation 3 shall not apply where the planning authority to whom the application is made are satisfied-

(a) that the application relates solely to the use of a building or other land for a purpose of any class specified in the Schedule to the Town and Country Planning (Use Classes) (Scotland) Order 1989[7];

(b) that the existing use of that building or other land is for another purpose of the same class; and

(c) that the making of an application for planning permission in respect of the use to which the application relates is necessary by reason of and only by reason of a condition imposed on a permission granted or deemed to be granted under Part III of the 1972 Act.

    7.Where all the conditions set out in regulation 8 and applicable to paragraph (a) or (b), as the case may be, are satisfied, regulation 3 shall not apply to an application which is made by the same applicant for-

(a) planning permission for development of the same character or description as development to which an earlier application relates and to no other development and following-


(i) the withdrawal, before notice of decision was issued, of that earlier application for planning permission;

(ii) the granting of planning permission for the development;

(iii) the refusal of planning permission; or

(iv) the making of an appeal to the Secretary of State under Section 34 of the 1972 Act (appeal in default of planning decision) in relation to an application for planning permission; or



(b) approval of one or more reserved matters following-



(i) the withdrawal before notice of decision was issued of an application for approval of the same reserved matters;

(ii) the granting of approval of the same reserved matters;

(iii) the refusal to approve the same reserved matters; or

(iv) the making of an appeal to the Secretary of State under section 34 of the 1972 Act in relation to an application for approval of the same reserved matters,



authorised by the same outline planning permission.

    8.The conditions referred to in regulation 7 are-

(a) that the application is made within 12 months of the date-


(i) when the earlier application was made, in the case of a withdrawn application;

(ii) of the relevant grant of planning permission or grant of approval of details of reserved matters, as the case may be;

(iii) of the refusal; or

(iv) when under the relevant provisions of the General Permitted Development Order, the period for the giving of notice of a decision on the earlier application expired, in the case of an application which is made following an appeal under section 34 of the 1972 Act;



(b) in the case of an application for planning permission which is not made in outline, that the planning permission which has been granted is not an outline planning permission or that the earlier application was also not made in outline;

(c) in the case of an application for planning permission, the application relates to the same site as that to which the earlier application related, or to part of that site, and to no other land except land included solely for the purpose of providing a different means of access to the site;

(d) in the case of an application for approval of reserved matters, the application relates to the same site as that to which the earlier application related, or to part of that site and to no other land;

(e) no application made by or on behalf of the same applicant in relation to the whole or any part of the site has already been exempted from regulation 3 by virtue of regulation 7 and this regulation; and

(f) the fee payable in respect of the earlier application was paid.

    9.Regulation 3 shall not apply to impose a fee in relation to an application to a planning authority for permission to carry out development consisting of the winning and working of minerals where the application-

(a) is for a permission which consolidates 2 or more subsisting permissions; or

(b) does not seek permission for development which is not authorised by a subsisting permission.

Fees for deemed applications
    10. - (1) Subject to paragraphs (3) and (6), a fee shall be paid to the Secretary of State where an application for planning permission is deemed to have been made by virtue of section 85(7) of the 1972 Act[8] (in consequence of an appeal against an enforcement notice).

    (2) Subject to paragraphs (3) and (4) and regulation 15(2), the fee payable in respect of a deemed application shall be calculated in accordance with the Schedule.

    (3)

(a) This paragraph applies where an application is deemed to have been made by virtue of section 85(7) of the 1972 Act;

(b) where this paragraph applies-


(i) a fee shall be paid in respect of the application by every person who has made a valid appeal against the relevant enforcement notice;

(ii) the fee payable shall be twice the fee calculated in accordance with the Schedule;

(iii) half the fee shall be paid to the Secretary of State and the other half shall be paid to the planning authority which served the relevant enforcement notice.

    (4) The fee due in respect of a deemed application shall accompany the written notice of the relevant appeal to the Secretary of State.

    (5) In the case of an application deemed to have been made by virtue of section 85(7) of the 1972 Act, this regulation shall not apply where the person who has appealed against the relevant enforcement notice had-

(a) before the date when the notice was served, made an application to the planning authority for planning permission for the development to which the relevant enforcement notice relates and had paid the fee payable in respect of that application; or

(b) before the date specified in the notice as the date on which the notice is to take effect, made an appeal to the Secretary of State under section 33 of the 1972 Act,

and at the date when the relevant enforcement notice was served that application or, in the case of an appeal made before the date on which the enforcement notice is to take effect, that appeal, had not been determined.

    (6) Regulations 4, 5 and 6 shall apply to a deemed application as they apply to an application for planning permission made to the planning authority, with the following modifications:-

(a) references to the planning authority to whom the application is made shall be construed as references to the Secretary of State; and

(b) references to the development to which the application relates shall be construed as references to the use of land or the operations to which the relevant enforcement notice relates.

Refunds of fees for deemed applications
    11. - (1) In the case of an application deemed to have been made by virtue of section 85(7) of the 1972 Act, the amount of any fee paid in respect of the deemed application shall be refunded to the appellant in the following circumstances:-

(a) where the Secretary of State declines jurisdiction on the relevant appeal under section 85 of the 1972 Act[9] on the grounds that it does not comply with one or more of the requirements of subsection (1) of that section;

(b) where the Secretary of State under section 85(2C)of the 1972 Act[10]-


(i) dismisses the appeal on the grounds that the appellant has failed to comply with subsection (2A) within the time prescribed under subsection (2B)(a) of that section; or

(ii) allows the appeal and quashes the enforcement notice on the grounds that the planning authority failed to comply with any requirement imposed by virtue of paragraph (b), (c) or (e) of subsection (2B) of that section;



(c) where the planning authority withdraws the relevant enforcement notice before it takes effect or if the Secretary of State considers that there was no subject matter to appeal against since the purported enforcement notice had no legal effect; and

(d) save in the case of an application deemed to have been made in connection with an enforcement notice alleging a breach of planning control by the use of land as a caravan site or where, on the determination of the appeal, the Secretary of State issues a certificate under section 90 of the 1972 Act in accordance with section 85(5)(d) of that Act[11], where the Secretary of State allows the appeal against the relevant enforcement notice on any of the grounds set out in section 85(1)(b) to (e) of the 1972 Act.

    (2)

(a) In the event of the relevant appeal under section 85 or 91 of the 1972 Act[12] being withdrawn with the result that there are at least 21 days between the date of withdrawal and-


(i) the date or, in the event of postponement, the latest date appointed for the holding of an inquiry into that appeal; or

(ii) in the case of an appeal which is being dealt with by way of written submissions, the date or, in the event of postponement, the latest date appointed for the inspection of the site to which the enforcement notice relates,



any fee paid in respect of the deemed application shall be refunded to the appellant.

(b) For the purposes of this paragraph an appeal shall be treated as being withdrawn on the date on which notice in writing of the withdrawal is received by the Secretary of State.

    (3) The reference in paragraph (2) to an appeal being dealt with by way of written submissions shall be construed as a reference to an appeal in respect of which no local inquiry is to be held under section 267 of the 1972 Act[13].

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Notes:

[1] 1980 c.65; section 87(3) was amended by the Planning and Compensation Act 1991 (c.34) Schedule 13, paragraph 45 and section 87(9) was inserted by the Environmental Protection Act 1990 (c.43), Schedule 13, paragraph 13.back

[2] Section 90 was substituted and section 90A of the Town and Country Planning Act 1972 (c.52) was inserted by Section 42(1) of the Planning and Compensation Act 1991 (c.34) (see S.I. 1992/1937).back

[3] 1972 c.52.back

[4] S.I. 1984/467.back

[5] S.I. 1992/223, amended by S.I. 1992/1078, 92/2084, 93/1036, 94/1442, 2586 and 3294, and 1996/1266.back

[6] S.I. 1992/224, amended by S.I. 1993/1039, 1994/2585 and 3293, 1995/2043 and 1996/467.back

[7] S.I. 1989/147, as amended by S.I. 1993/1038.back

[8] Section 85(7) of the Town and Country Planning (Scotland) Act 1972 (c.52) was amended by the Planning and Compensation Act 1991 (c.34) Schedule 13, paragraph 20, and by the Local Government (Scotland) Act 1994 (c.39) Schedule 13, paragraph 92(57).back

[9] Section 85 of the Town and Country Planning (Scotland) Act 1972 (c.52) was substituted by section 38 of the Planning and Compensation Act 1991 (c.34).back

[10] Section 85(2A) to (2D) was inserted by the Local Government and Planning (Scotland) Act 1982 (c.43), Schedule 2, paragraph 20(b).back

[11] Section 85(5)(d) was substituted by paragraph 20(c)(ii) of Schedule 13 to the Planning and Compensation Act 1991 (c.34).back

[12] Section 91 of the Town and Country Planning (Scotland) Act 1972 (c.52) was repealed in part and amended by the Local Government (Miscellaneous Provisions) (Scotland) Act 1981 (c.23) Schedule 4 was amended and repealed in part by the Planning and Compensation Act 1991 (c.34) Schedule 13, paragraph 26 and Schedule 19 and was amended by the Local Government etc. (Scotland) Act 1994 (c.39) Schedule 13, paragraph 92 (57).back

[13] Section 267 of the Town and Country Planning (Scotland) Act 1972 (c.52) has been amended by the Refuse Disposal (Amenity) Act 1978 (c.3) section 8(4), the Housing and Planning Act 1986 (c.63) Schedule 11, paragraph 39 and the Debtors (Scotland) Act 1987 (c.18) section 8(4), Schedule 6.back

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