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Town and Country Planning (Scotland) Act 1972 (repealed 27.5.1997)

Type Public General Act

Publication 1972-07-27

Last updated 2014-06-30

State In force

Department Statute Law Database

Source legislation.gov.uk

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Reform history JSON API

(a) either the erection of the building was not development to which these provisions (or Part I of the Act of 1965) applied, or it was such development but no office development permit was required for it; and

(b) either the proposed alteration or extension is not development to which these provisions apply or it is such development but no office development permit is required for it; and

(c) there will result from the proposed alteration or extension a building with an aggregate floor space of twice, or more than twice, the prescribed exemption limit,

the planning permission for the alteration or extension shall be granted subject to the condition specified in subsection (3) of this section (in addition to any other conditions imposed by the authority granting the permission).

(3) The said condition is that the use of the building as altered or extended, or as subsequently further altered or extended, shall be restricted so that (whether in consequence of a change of use or otherwise) it does not at any time contain office premises having an aggregate office floor space which exceeds the prescribed exemption limit.

(4) In the following two cases this section shall not apply—

(a) where the planning permission is in respect of a building which, after its alteration or extension, will be wholly residential; and

(b) where the planning permission is subject to conditions by virtue of section 68(5) or (6) of this Act and those conditions either restrict the office floor space which the building as extended or altered may contain or preclude it from containing any office floor space.

Planning permission for erection of two or more buildings where no office development permit required

78

(1) The provisions of this section shall have effect with respect to any planning permission for development involving the erection of two or more buildings on land which is within a controlled area when the planning permission is granted and was also within such an area when the application for planning permission was made, except in a case where all the buildings are exempt from this section.

(2) Any one of the said buildings shall be exempt from this section if—

(a) it is wholly residential; or

(b) the planning permission is subject to conditions by virtue of section 68(5) or (6) of this Act and those conditions either restrict the office floor space which the building may contain or preclude it from containing any office floor space.

(3) If the aggregate floor space of the buildings proposed to be erected (leaving out of account any which are exempt from this section) is twice, or more than twice, the prescribed exemption limit, and either the erection of the buildings is not development to which these provisions apply or it is such development but no office development permit is required for it, the planning permission shall be granted subject to the condition specified in subsection (4) of this section (in addition to any other conditions imposed by the authority granting the permission).

(4) The said condition is that the use of each one of the buildings (excluding any which are exempt from this section) shall be restricted so that (whether in consequence of a change of use or otherwise) it does not at any time contain office premises having an aggregate floor space which exceeds the limit for that building specified in the condition, which limit shall (subject to subsection (5) of this section) be a floor space bearing such proportion to the building's total floor space as the prescribed exemption limit bears to the aggregate floor space of all the buildings (excluding any which are exempt from this section) for whose erection the planning permission is granted.

(5) The authority granting the planning permission may in doing so specify in the said condition, as it applies to any building, a limit differing from the one provided by subsection (4) of this section, but not so that the total of the limits for all the buildings to which the condition applies exceeds the prescribed exemption limit.

(6) If after the grant of the planning permission a further application for planning permission is made in respect of all or any of the buildings to which the condition specified in subsection (4) of this section applies, and the further application involves a departure from the terms of the said condition as applying to any building, the application shall be subject to section 72(1) of this Act notwithstanding anything in these provisions exempting development from the requirements of that section in particular cases.

Provisions supplementary to ss. 76 to 78

79

(1) Any planning permission with respect to which section 76, 77 or 78 of this Act has effect shall not be invalid by reason only that the requirements of section 76(2), 77(2) or 78(3) of this Act. as the case may be, are not complied with; but in that case the planning permission shall be deemed to have been granted subject to the condition specified in section 76(3), 77(3) or 78(4) of this Act, as the case may be, or (if any other conditions are imposed by the authority granting the permission) to have been granted subject to the condition so specified in addition to the other conditions, and references in those sections to a condition imposed thereunder shall be construed accordingly as including references to a condition deemed to be imposed.

(2) In sections 76, 77 and 78 of this Act—

" controlled area " means an area to which these provisions apply, or, as respects any time before the commencement of this Act, Part I of the Act of 1965 applied;

" the prescribed exemption limit " means that number of square feet which, at the time when the planning permission in question is granted, is for the purposes of section 73 of this Act the prescribed exemption limit in relation to the land to which the planning permission relates, whether— by virtue of subsection (6) of that section; or if an order under subsection (7) of that section is for the time being in force and applies to the area, or part of an area, in which that land is situated, by virtue of that order;

" wholly residential " in relation to a building, means for use exclusively as a dwellinghouse or comprising only units of accommodation for such use.

Provisions as to conditions imposed or implied in pursuance of these provisions

80

(1) This section applies to any condition subject to which planning permission is granted in accordance with these provisions or subject to which planning permission is by virtue of these provisions deemed to have been granted, whether or not is it a condition which could have been imposed apart from these provisions.

(2) If the planning permission is or was granted by the local planning authority, the Secretary of State shall not be required to entertain an appeal under section 33 of this Act from the decision of the local planning authority, in so far as that decision relates or related to any condition to which this section applies.

(3) Where planning permission is granted subject to a condition to which this section applies, and it appears to the authority granting the permission that the condition could have been imposed apart from these provisions and would have been imposed if these provisions had not been enacted, the decision granting the permission may include a certificate to that effect; and, where such a certificate is included in a decision of the local planning authority—

(a) the Secretary of State shall not be required to entertain an appeal from the decision in so far as it includes the certificate; but

(b) subject to the preceding paragraph, section 33 of this Act shall have effect in relation to the certificate as it has effect in relation to any other part of the decision.

(4) If any condition imposed by an authority granting planning permission is inconsistent with any condition to which this section applies, the last-mentioned condition shall prevail in so far as it is inconsistent with the condition so imposed.

(5) Where on an application made as mentioned in section 29(1) of this Act (as modified by section 72(2) of this Act) planning permission is granted (either unconditionally or subject to conditions) for a building to be retained, or a use of a building to be continued, without complying with a condition to which this section applies (that condition being one subject to which a previous planning permission was granted or is deemed to have been granted), nothing in sections 75 to 79 of this Act or in the preceding provisions of this section shall be construed as preventing the subsequent planning permission from operating so as to extinguish or modify that condition, as the case may be.

Annual report

81

As soon as may be after the end of March in each year the Secretary of State shall prepare a report on the performance of his functions under these provisions, and shall lay the report before Parliament.

Interpretation of these provisions

82

(1) In these provisions—

" the Act of 1965 " means the Control of Office and Industrial Development Act 1965;

" building " includes any structure ;

" building contract " means a contract (other than a lease) which is made in relation to land whereby a person undertakes to erect or extend a building on that land in the course of the carrying on by him of a business consisting wholly or mainly of the execution of building operations, or of building operations and engineering operations;

" erection ", in relation to a building, includes re-erection;

" premises " means a part of a building;

" these provisions " has the meaning assigned to it by section 71(7) of this Act.

(2) In these provisions " office floor space " means gross floor space comprised in office premises; and for the purposes of these provisions the amount of. any such space shall be ascertained by external measurement of that space, whether the office premises in question are or are to be bounded (wholly or partly) by external walls of a building or not.

(3) In these provisions any reference to the granting of planning permission for the carrying out of any development of land is a reference to the granting of planning permission for that development—

(a) either in respect of that land taken by itself or in respect of that land together with other land; and

(b) either on an ordinary application or on an outline application (that is to say, an application for planning permission subject to subsequent approval on any matters).

(4) In these provisions any reference to a building containing office premises includes a reference to a building of which every part consists or is to consist of office premises; and in these provisions any reference to the addition of office premises includes a reference to the addition of office premises together with other premises.

(5) In these provisions any reference to land within any area to which these provisions apply or, as respects any time before the commencement of this Act, the Act of 1965 applied, shall be construed as a reference to land of which any part is within the area in question.

(6) In these provisions any reference to an application made as mentioned in section 29(1) of this Act includes a reference to an application which by virtue of section 85(7) or 91(6) of this Act is deemed to have been made for such planning permission as is mentioned in the said section 85(7) or, as the case may be, the said section 91(6).

Temporary operation of these provisions

83

(1) Unless Parliament otherwise determines, these provisions (other than this section) shall cease to have effect at the end of the period of seven years beginning with 5th August 1965.

(2) Where immediately before the end of that period any planning permission has effect subject to a condition subject to which the planning permission is by virtue of these provisions deemed to have been granted, the planning permission shall, as from the end of that period, have effect free from that condition.

(3) Where immediately before the end of that period any planning permission has effect subject to a condition imposed by the authority granting the permission in circumstances where that authority was required by these provisions to impose that condition, then unless the condition is the subject of a certificate under section 80(3) of this Act, the planning permission shall, as from the end of that period, have effect free from that condition.

(4) Subject to the preceding provisions of this section, at the end of that period section 38(2) of the Interpretation Act 1889 (effect of repeals) shall apply as if these provisions had, as from the end of that period, been repealed by another Act.

Part V — Enforcement of Control under Parts III and IV

Development requiring planning permission

Power to serve enforcement notice

84

(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.

Appeal against enforcement notice

85

(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;

(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.

(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;

(d) may require the authority or the appellant to give such notice of an appeal under this section as may be specified, 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—

(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 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 . . .; and the Secretary of State may—

(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.

(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; —

(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 in respect of the matters stated in the enforcement notice as constituting a breach of planning controland, 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. . . planning authority.

(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 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

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

Penalties for non-compliance with enforcement notice

86

(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.

Power to stop further development pending proceedings on enforcement notice

87

(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

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 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 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

(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 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.

Execution and cost of works required by enforcement notice

88

(1) If, within the period specified in an enforcement notice for compliance therewith, or within such extended period as the. . . planning authority may allow, any steps required by the notice to be taken . . .have not been taken, the. . . planning authority may enter on the land and take those steps, and may recover from the person who is then the owner or lessee of the land any expenses reasonably incurred by them in doing so; and if that person, having been entitled to appeal to the Secretary of State failed to make such an appeal, he shall not be entitled in proceedings under this subsection to dispute the validity of the action taken in accordance with the notice by the. . . planning authority.

(1A) In computing the amount of the expenses which may be recovered by them under subsection (1) above, a planning authority may include in that amount such proportion of their administrative expenses as seems to them to be appropriate.

(2) Any expenses incurred by the owner, lessee or occupier of any land for the purpose of complying with an enforcement notice served in respect of any breach of planning control . . .and any sums paid by the owner or lessee of any land under subsection (1) of this section in respect of expenses incurred by the. . . planning authority in taking steps required by such a notice to be taken, shall be recoverable from the person by whom the breach of planning control was committed.

(3) If on a complaint by the owner of any land it appears to the sheriff that the occupier of the land is proventing the owner from carrying out work required to be carried out by an enforcement notice, the sheriff may by warrant authorise the owner to go on to the land and carry out that work.

(4) A planning authority taking steps under subsection (1) above may sell any materials removed by them from the land unless those materials are claimed by the owner within 3 days of their removal by the planning authority; and where such materials have been sold the planning authority shall, after deducting therefrom any expenses recoverable by them from the owner, pay him the proceeds of such sale.

(5) Where a planning authority seek, under subsection (1) above, to recover any expenses from a person on the basis that he is the owner of any land, and such person proves that—

(a) he is receiving the rent in respect of that land merely as trustee, tutor, curator, factor or agent of some other person; and

(b) he has not, and since the date of the service on him of the demand for payment has not had, in his hands on behalf of that other person sufficient money to discharge the whole demand of the authority,

his liability shall be limited to the total amount of the money which he has or has had in his hands as aforesaid; but a planning authority who by reason of the foregoing provisions of this subsection have not recovered the whole of any such expenses from a trustee, tutor, curator, factor or agent may recover any unpaid balance from the person on whose behalf the rent is received.

(6) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) 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.

Enforcement notice to have effect against subsequent development

89

(1) Compliance with an enforcement notice, whether in respect of—

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

(b) the discontinuance of any use of land,

or in respect of any other requirements contained in the enforcement notice, shall not discharge the enforcement notice.

(2) Without prejudice to subsection (1) of this section, any provision of an enforcement notice requiring a use of land to be discontinued shall operate as a requirement that it shall be discontinued permanently, to the extent that it is in contravention of Part III of this Act; and accordingly the resumption of that use at any time after it has been discontinued in compliance with the enforcement notice shall to that extent be in contravention of the enforcement notice.

(3) Without prejudice to subsection (1) of this section, if any development is carried out on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice, the notice shall, notwithstanding that its terms are not apt for the purpose, be deemed to apply in relation to the buildings or works as reinstated or restored as it applied in relation to the buildings or works before they were removedor altered.

(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.

Certification of established use

90

(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 19(2)(f) of this Act, 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 Caravan Sites and Control of Development Act 1960;

(b) section 5(2) of the Control of Pollution Act 1974; and

Grant of certificate by Secretary of State on referred application or appeal against refusal

91

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Where an application is made to a. . . planning authority for a certificate under section 90 or 90A and is refused, or is refused in part, the applicant may by notice under this subsection appeal to the Secretary of State; and on any such appeal the Secretary of State shall—

(a) if and so far as he is satisfied that the authority’s refusal is not well-founded, grant to the appellant an established use certificate accordingly or, as the case may be, modify the certificate granted by the authority on the application; and

(b) if and so far as he is satisfied that the authority’s refusal is well-founded, dismiss the appeal.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Subject to section 279 of this Act, Schedule 7 to this Act applies to appeals under this section.

(7) Where the Secretary of State or a person appointed by him under Schedule 7 to this Act to determine an appeal grants a certificate under section 90 or 90A of this Act, the Secretary of State or that person shall give notice to the planning authority of that fact.

Listed buildings

Power to serve listed building enforcement notice

92

(1) Where it appears to the. . . planning authority that any works have been, or are being, executed to a listed building in their district and are such as to involve a contravention of section 53(1) or (4) of this Act, then,. . . , they may, if they consider it expedient to do so having regard to the effect of the works on the character of the building as one of special architectural or historic interest, serve a notice—

(a) specifying the alleged contravention; and

(b) specifying one of the following sets of steps—

(i) the steps required to restore the building to its former state;

(ii) the steps required to bring the building to the state it would have been in if the terms and conditions of any listed building consent for the works had been complied with;

(iii) subject to subsection (1A) below, the steps required to alleviate, in a manner acceptable to the planning authority, the effects of works executed without listed building consent; and

(1A) A planning authority may specify steps under sub-paragraph (iii) of paragraph (b) of subsection (1) above, if, but only if, it appears to them either—

(a) that complete restoration of the building to its former state is not reasonably practicable; or

(b) that such restoration is undesirable, having regard to the desirability of preserving—

(i) the character of the building; or

(ii) its features of architectural or historical interest.

(2) a notice under this section is in this Act referred to as a “listed building enforcement notice”.

(2A) Where such steps as are mentioned in subsection (1)(b)(iii) above have been taken in relation to works carried out on a building, listed building consent shall be deemed to have been granted in respect of those works as alleviated.

(3) a listed building enforcement notice shall be served on the owner, on the lessee and on the occupier of the building to which it relates and on any other person having an interest in the building, being an interest which in the opinion of the authority is materially affected by the notice.

(3A) Service under subsection (3) above shall be effected by the service of a copy of the notice; and references in this Act to service of listed building enforcement notices shall be so construed.

(4) A listed building enforcement notice—

(a) shall specify the date upon which it is to take effect, and, subject to section 93(3) of this Act, shall take effect on that date, and

(b) shall specify the period within which any steps are required to be taken and may specify different periods for different steps,

and, where different periods apply to different steps, references in this Part of this Act to the period for compliance with a listed building enforcement notice, in relation to any step, are to the period within which the step is required to be taken.

(5) The planning authority may—

(a) withdraw a listed building enforcement notice (without prejudice to their power to issue another); or

(b) waive or relax any requirement of such a notice and, in particular, may extend the period specified in accordance with section 92(4) of this Act,

and the powers conferred by this subsection may be exercised whether or not the notice has taken effect.

(5A) The planning authority shall, immediately after exercising the powers conferred by subsection (5), give notice of the exercise to every person who has been served with a copy of the listed building enforcement notice or would, if the notice were re-issued, be served with a copy of it

(6) Every. . . planning authority shall keep available for public inspection free of charge at reasonable hours and at a convenient place a list containing particulars of any building in their district in respect of which a listed building enforcement notice has been served.

Appeal against listed building enforcement notice

93

(1) a person on whom a listed building enforcement notice is served, or any other person having an interest in the building to which it relates, 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 the building is not of special architectural or historic interest;

(b) that the matters alleged to constitute a contravention of section 53(1) or (4) of this Act have not occurred;

(ba) that those matters (if they occurred) do not constitute such a contravention;

(c) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building, that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter, and that the works carried out were limited to the minimum measures immediately necessary;

(d) that listed building consent ought to be granted for the works, or that any relevent condition of such consent which has been granted ought to be discharged, or different conditions substituted;

(e) that the notice was not served as required by section 92(3) of this Act

(f) that the requirements of the notice exceed what is necessary for restoring the building to its condition before the works were carried out;

(g) that the period specified in the notice as the period within which any steps required thereby are to be taken falls short of what should reasonably be allowed;

(h) that the steps required by the notice to be taken would not serve the purpose of restoring the character of the building to its former state.

(i) that the steps specified under sub-paragraph (ii) of section 92(1)(b) of this Act exceed what is necessary to bring the building to the state mentioned in that sub-paragraph;

(j) that the steps specified under sub-paragraph (iii) of the said section 92(1)(b) exceed what may reasonably be required in terms of that sub-paragraph;

(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 listed building 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.

(2A) The provisions of subsections (2A) to (2D) of section 85 of this Act (which relates to appeals against enforcement notices) shall apply to appeals under this section as they apply to appeals under that section.

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

(4) On an appeal under this section,—

(a) the Secretary of State may—

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

(ii) vary the terms of the listed building enforcement notice,

if he is satisfied that the correction or variation will not cause injustice to the appellant or the local 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 92(3) of this Act to be served with the notice was not served, the Secretary of State may disregard that fact if he is satisfied that the person has not 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 listed building enforcement notice . . ., and the Secretary of State may—

(a) grant listed building consent for the works to which the notice relates or, as the case may be, discharge any condition subject to which such consent was granted and substitute any other condition, whether more or less onerous;

(b) . . .

(c) if he thinks fit, exercise his power under section 52 of this Act to amend any list compiled or approved thereunder by removing from it the building to which the appeal relates or his power under subsection (8) of that section to direct that that subsection shall no longer apply to the building.

(6) Any listed building consent granted by the Secretary of State under subsection (5) above shall be treated as granted on an application for such consent made under Part I of Schedule 10 to this Act.

(7) The validity of a listed building 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) or (e) of subsection (1) of this section.

(8) Subject to section 279 of this Act, Schedule 7 to this Act applies to appeals under this section.

Penalties for non-compliance with listed building enforcement notice

94

(1) Where, after the end of the period for compliance with the notice, any step required by a listed building enforcement notice to be taken has not been taken, the person who is for the time being owner of the land is in breach of the duty under this subsection.

(2) If at any time the owner of the land is in breach of a listed building enforcement notice he shall be guilty of an offence.

(3) 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.

(4) In proceedings against any person for an offence under this section, it shall be a defence for him to show—

(a) that he did everything he could be expected to do to secure that all the steps required by the notice were taken; or

(b) that he was not served with a copy of the listed building enforcement notice and was not aware of its existence.

(5) 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.

(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.

Execution and cost of works required by listed building enforcement notice

95

(1) If, within the period allowed for compliance with a listed building enforcement notice, any steps required by the notice to be taken have not been taken, the authority may enter on the land and take those steps, and may recover from the person who is then the owner or lessee of the land any expenses reasonably incurred by them in doing so.

(2) Any expenses incurred by the owner, lessee or occupier of a building for the purpose of complying with a listed building enforcement notice, and any sums paid by the owner or lessee of a building under subsection (1) of this section in respect of expenses incurred by the. . . planning authority in taking steps required by such a notice to be taken, shall be deemed to be incurred or paid for the use and at the request of the person who carried out the works to which the notice relates.

(3) The provisions of section 88(3) and (4) of this Act shall apply in relation to a listed building enforcement notice as they apply in relation to an enforcement notice; and any regulations made by virtue of this subsection may provide for the charging on the land on which the building stands of any expenses recoverable by a. . . planning authority under subsection (1) of this section.

(4) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) 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.

Enforcement by, or by direction of, the Secretary of State

96

(1) If it appears to the Secretary of State, after consultation with the. . . planning authority, to be expedient that a listed building enforcement notice should be served in respect of any land, he. . . may himself serve such a notice; and any notice so served by the Secretary of State shall have the like effect as a notice served by the. . . planning authority.

(2) In relation to a listed building enforcement notice served by the Secretary of State, the provisions of sections 94(3) and 95 of this Act shall apply as if for any reference therein to the. . . planning authority there were substituted a reference to the Secretary of State.

Works for preservation of unoccupied listed building in cases of urgency

97

(1) Where it appears to the planning authority or the Secretary of State that works are urgently necessary for the preservation of—

(a) a listed building, or

(b) a building in respect of which a direction has been given by the Secretary of State that this section shall apply,

they or he may, subject to the following provisions of this section, execute the works, which may consist of or include works for affording temporary support or shelter for the building.

(2) The ground on which the Secretary of State may give a direction that this section shall apply to a building is that the building is in a conservation area and it appears to him that its preservation is important for maintaining the character or appearance of the conservation area.

(3) If the building is occupied works may be carried out only to those parts which are not in use; and no action may be taken in respect of an excepted building within the meaning of section 56(2) of this Act.

(4) The owner of the building shall be given not less than 7 days’ notice in writing of the intention to carry out the works and the notice shall describe the works proposed to be carried out.

Trees

Penalties for non-compliance with tree preservation order

98

(1) If any person, in contravention of a tree preservation order, cuts down, uproots or wilfully destroys a tree, or wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it, he shall be guilty of an offence and shall be liable—

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

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

and, in determining the amount of any fine to be imposed on a person convicted . . ., 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.

(2) If any person contravenes the provisions of a tree preservation order otherwise than as mentioned in subsection (1) of this section, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) This section shall apply to an offence under section 59A above as it applies to a contravention of a tree preservation order.

Enforcement of duties as to replacement of trees

99

(1) If it appears to the. . . planning authority that the provisions of section 60 of this Act, or any conditions of a consent given under a tree preservation order which require the replacement of trees, are not complied with in the case of any tree or trees, that authority may, at any time within two years from the date on which the failure to comply with the said provisions or conditions came to their knowledge, serve on the owner of the land a notice requiring him, within such period as may be specified in the notice, to plant a tree or trees of such size and species as may be so specified.

(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.

(3) a person on whom a notice under this section is served may, 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,, appeal to the Secretary of State against the notice on any of the following grounds—

(a) that the provisions of the said section 60 or the conditions aforesaid are not applicable or have been complied with;

(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;

(b) that the requirements of the notice are unreasonable in respect of the period or the size or species of trees specified therein;

(c) that the planting of a tree or trees in accordance with the notice is not required in the interests of amenity or would be contrary to the practice of good forestry;

(d) that the place on which the tree is or trees are required to be planted is unsuitable for that purpose;

and the provisions of section 85(2) to (2D), (3) and (4)(a) of this Act, and of so much of section 85(5) of this Act as enables the Secretary of State to give directions, shall apply in relation to any such appeal as they apply in relation to an appeal against an enforcement notice.

(4) Subject to section 279 of this Act, Schedule 7 to this Act applies to appeals under subsection (3) of this section.

(5) In section 88 of this Act, and in regulations in force under that section, references to an enforcement notice and an enforcement notice served in respect of any breach of planning control shall include references to a notice under this section; and in relation to such a notice the reference in subsection (2) of that section to the person by whom the breach of planning control was committed shall be construed as a reference to any person, other than the owner, responsible for the cutting down, destruction or removal of the original tree or trees.

(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.

Other controls

Enforcement of orders under s. 49

100

(1) Any person who, without the grant of planning permission in that behalf,—

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

(i) for any purpose for which an order under section 49 of this Act 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

(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 section 49A of this Act has prohibited; or

(c) contravenes, or causes or permits to be contravened, any such requirement as is specified in section 49A(3) or (4) of this Act,

shall be guilty of an offence.

(2) Any person who contravenes any requirement of a suspension order or a supplementary suspension order 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) If—

(a) any step required by an order under section 49 of this Act to be taken for the alteration or removal of any buildings or works or any plant or machinery; or

(b) any step required by an order under section 49A of this Act 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,

has not been taken within the period specified in the order, or within such extended period as the planning authority may allow, the planning authority may enter the land and take that step, and may recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.

(5) A planning authority taking any step in terms of subsection (4) of this section may sell any materials removed by them from any land unless those materials are claimed by the owner within three days of their removal by the planning authority; and where such materials have been sold the planning authority shall, after deducting therefrom any expenses recoverable by them from the owner, pay him the proceeds of such sale.

(6) 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.

(7) If any person charged with an offence under this section alleges 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 seven 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.

Enforcement of control as to advertisements

101

(1) The matters for which provision may be made by regulations under section 61 of this Act shall include provision for enabling the. . . planning authority to require the removal of any advertisement which is being displayed in contravention of the regulations, or the discontinuance of the use for the display of advertisements of any site which is being so used in contravention of the regulations, and for that purpose for applying any of the provisions of this Part of this Act with respect to enforcement notices or the provisions of section 166 of this Act, subject to such adaptations and modifications as may be specified in the regulations.

(2) Without prejudice to any provisions included in regulations made under section 61 of this Act by virtue of subsection (1) of this section, if any person displays an advertisement in contravention of the provisions of the regulations he shall be guilty of an offence and liable on summary conviction to a fine of such amount as may be prescribed by the regulations, not exceeding level 3 on the standard scale and, in the case of a continuing offence, one-tenth of level 3 on the standard scale for each day during which the offence continues after conviction.

(3) For the purposes of subsection (2) of this section, and without prejudice to the generality thereof, a person shall be deemed to display an advertisement if—

(a) the advertisement is displayed on land of which he is the owner or occupier; or

(b) the advertisement gives publicity to his goods, trade, business or other concerns:

Acquisition and appropriation of land

Compulsory acquisition of land in connection with development and for other planning purposes

102

(1) A local authority . . . shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily—

(a) any land within their area which is suitable for and is required in order to secure the carrying out of one or more of the following activities, namely, development, redevelopment and improvement;

(b) any land which is in their area and which is required for a purpose which it is necessary to achieve in the interests of the proper planning of an area in which the land is situated.

(1A) A local authority and the Secretary of State in considering for the purposes of subsection (1)(a) above whether land is suitable for development, re-development or improvement shall have regard—

(a) to the provisions of the development plan, so far as material;

(b) to whether planning permission for any development on the land is in force; and

(c) to any other consideration which, on an application for planning permission for development on the land, would be material for the purpose of determining that application.

(1B) Where a local authority exercise their powers under subsection (1) above in relation to any land, they shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily—

(a) any land adjoining that land which is required for the purposes of executing works for facilitating its development or use; or

(b) where the land forms part of a common or open space, any land which is required for the purpose of being given in exchange for the land which is being acquired.

(1C) It is immaterial by whom the local authority propose any activity or purpose mentioned in subsection (1) or (1B)(a) above is to be undertaken or achieved (and in particular the local authority need not propose to undertake that activity or achieve that purpose themselves).

(2) Where under subsection (1) of this section the Secretary of State has power to authorise a local authority to whom this section applies to acquire any land compulsorily he may, after the requisite consultation, authorise the land to be so acquired by another authority, being a local authority within the meaning of this Act.

(3) Before giving an authorisation under subsection (2) of this section, the Secretary of State shall consult the local authority within whose area the land is situated.

(4) The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply to the compulsory acquisition of land under this section and accordingly shall have effect as if this section had been in force immediately before the commencement of that Act.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Compulsory acquisition of land by Secretary of State for the Environment

103

(1) The Secretary of State for the Environment may acquire compulsorily any land necessary for the public service.

(2) The power of acquiring land compulsorily under this section shall include power to acquire a servitude or other right over land by the grant of a new right:

(3) The said Act of 1947 shall apply to any compulsory acquisition by the Secretary of State for the Environment under this section as it applies to a compulsory acquisition by another Minister in a case falling within section 1(1) of that Act.

Compulsory acquisition of listed building in need of repair

104

(1) Where it appears to the Secretary of State, in the case of a building to which this section applies, that reasonable steps are not being taken for properly preserving it, the Secretary of State may authorise the. . . planning authority for the district in which the building is situated to acquire compulsorily under this section the building and any land comprising or contiguous or adjacent to it which appears to the Secretary of State to be required for preserving the building or its amenities, or for affording access to it, or for its proper control or management.

(2) Where it appears to the Secretary of State, in the case of a building to which this section applies, that reasonable steps are not being taken for properly preserving it, he may be authorised under this section to acquire compulsorily the building and any land comprising or contiguous or adjacent to it which appears to him to be required for the purpose mentioned in subsection (1) of this section.

(3) This section applies to any listed building, not being an excepted building as defined in section 56(2) of this Act.

(4) The Secretary of State shall not make or confirm a compulsory purchase order for the acquisition of any building by virtue of this section unless he is satisfied that it is expedient to make provision for the preservation of the building and to authorise its compulsory acquisition for that purpose.

(5) The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply to the compulsory acquisition of land under this section and accordingly shall have effect—

(a) as if this section had been in force immediately before the commencement of that Act; and

(b) as if references therein to the Minister of Transport and to the enactments specified in section 1(1)(b) of that Act included respectively references to the Secretary of State and to the provisions of this section.

(6) Any person having an interest in a building which it is proposed to acquire compulsorily under this section may, within twenty-eight days after the service of the notice required to be served under paragraph 3(b) of Schedule 1 to the said Act of 1947, apply to the sheriff for an order prohibiting further proceedings on the compulsory purchase order; and, if the sheriff is satisfied that reasonable steps have been taken for properly preserving the building, he shall make an order accordingly.

(7) Any person aggrieved by the decision of the sheriff on an application under subsection (6) of this section may appeal against the decision to the Court of Session, but on a question of law only.

Repairs notice as preliminary to compulsory acquisition under s. 104

105

(1) Neither a. . . planning authority nor the Secretary of State shall start the compulsory purchase of a building under section 104 of this Act unless at least two months previously they have served on the owner of the building, and not withdrawn, a notice under this section (in this section referred to as a “repairs notice”)—

(a) specifying the works which they consider reasonably necessary for the proper preservation of the building; and

(b) explaining the effect of sections 104 to 107 of this Act.

(2) Where a. . . planning authority or the Secretary of State have served a repairs notice, the demolition of the building thereafter shall not prevent them from being authorised under section 104 of this Act to acquire compulsorily the site of the building, if the Secretary of State is satisfied that he would have confirmed or, as the case may be, would have made a compulsory purchase order in respect of the building had it not been demolished.

(3) A. . . planning authority or the Secretary of State may at any time withdraw a repairs notice served by them; and if they do so, they shall forthwith give notice of the withdrawal to the person who was served with the notice.

(4) For the purposes of this section a compulsory acquisition is started when the. . . planning authority or the Secretary of State, as the case may be, serve the notice required by paragraph 3(b) of Schedule 1 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947.

Compensation on compulsory acquisition of listed building

106

Subject to section 107 of this Act, for the purpose of assessing compensation in respect of any compulsory acquisition of land including a building which, immediately before the date of the compulsory purchase order, was listed, it shall be assumed that listed building consent would be granted for any works for the alteration or extension of the building.. . . . . ..

Minimum compensation in case of listed building deliberately left derelict

107

(1) A. . . planning authority proposing to acquire a building compulsorily under section 104 of this Act, if they are satisfied that the building has been deliberately allowed to fall into disrepair for the purpose of justifying its demolition and the development or re-development of the site or any adjoining site, may make a direction for minimum compensation.

(2) Subject to the provisions of this section, where the Secretary of State acquires a building compulsorily under section 104 of this Act, he may, if he is satisfied as mentioned in subsection (1) of this section, include a direction for minimum compensation in the compulsory purchase order.

(3) The notice required to be served in accordance with paragraph 3(b) of Schedule 1 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (notices stating effect of compulsory purchase order or, as the case may be, draft order) shall, without prejudice to so much of that paragraph as requires the notice to state the effect of the order, include a statement that the authority have made. . . a direction for minimum compensation or, as the case may be, that the Secretary of State has included such a direction in the draft order prepared by him in accordance with paragraph 7 of that Schedule and shall in either case explain the meaning of the expression “direction for minimum compensation”.

(4) a direction for minimum compensation, in relation to a building compulsorily acquired, is a direction that for the purpose of assessing compensation it is to be assumed, notwithstanding anything to the contrary in the Land Compensation (Scotland) Act 1963 or this Act, that planning permission would not be granted for any development or re-development of the site of the building and that listed building consent would not be granted for any works for the demolition, alteration or extension of the building other than development or works necessary for restoring it to, and maintaining it in, a proper state of repair; and if a compulsory purchase order is confirmed or made with the inclusion of such a direction, the compensation in respect of the compulsory acquisition shall be assessed in accordance with the direction.

(5) Where a. . . planning authority make a direction for minimum compensation, or the Secretary of State includes such a direction in a draft compulsory purchase order prepared by him, any person having an interest in the building may, within twenty-eight days after the service of the notice required by paragraph 3(b) of Schedule 1 to the said Act of 1947, apply to the sheriff for an order that the. . . planning authority’s direction for minimum compensation be reversed or, as the case may be, that such a direction be not included in the compulsory purchase order as made by the Secretary of State; and if the sheriff is satisfied that the building has not been deliberately allowed to fall into disrepair for the purpose mentioned in subsection (1) of this section, he shall make the order applied for.

(6) a person aggrieved by the decision of the sheriff on an application under subsection (5) of this section may appeal against the decision to the Court of Session, but on a question of law only.

(7) The rights conferred by subsections (5) and (6) of this section shall not prejudice those conferred by section 104(6) and (7) of this Act.

Extinguishment of rights over land compulsorily acquired

108

(1) Subject to the provisions of this section, upon the completion by the acquiring authority of a compulsory acquisition of land under this Part of this Act, all private rights of way and rights of laying down, erecting, continuing or maintaining any apparatus on, under or over the land and all other rights or servitudes in or relating to that land shall be extinguished, and any such apparatus shall vest in the acquiring authority.

(2) Subsection (1) of this section shall not apply to any right vested in, or apparatus belonging to, statutory undertakers for the purpose of the carrying on of their undertaking or to any right conferred by or in accordance with the telecommunications code on the operator of a telecommunications code system or to any telecommunication apparatus kept installed for the purposes of any such system.

(3) In respect of any right or apparatus not falling within subsection (2) of this section, subsection (1) of this section shall have effect subject—

(a) to any direction given by the acquiring authority before the completion of the acquisition that subsection (1) of this section shall not apply to any right or apparatus specified in the direction; and

(b) to any agreement which may be made (whether before or after the completion of the acquisition) between the acquiring authority and the person in or to whom the right or apparatus in question is vested or belongs.

(4) Any person who suffers loss by the extinguishment of a right or servitude or the vesting of any apparatus under this section shall be entitled to compensation from the acquiring authority.

(5) Any compensation payable under this section shall be determined in accordance with the Land Compensation (Scotland) Act 1963.

Acquisition of land by agreement

109

(1) A. . . planning authority,. . . may acquire by agreement—

(a) any land which they require for any purpose for which a. . . planning authority may be authorised to acquire land under section 102 of this Act;

(b) any building appearing to them to be of special architectural or historic interest; and

(c) any land comprising or contiguous or adjacent to such a building which appears to them to be required for preserving the building or its amenities, or for affording access to it, or for its proper control or management.

(2) The Lands Clauses Acts (except the provisions relating to the purchase of land otherwise than by agreement and the provisions relating to access to the special Act, and except sections 120 to 125 of the Lands Clauses Consolidation (Scotland) Act 1845) and sections 6 and 70 of the Railways Clauses Consolidation (Scotland) Act 1845, and sections 71 to 78 of that Act, as originally enacted and not as amended for certain purposes by section 15 of the Mines (Working Facilities and Support) Act 1923, shall be incorporated with this section, and in construing those Acts as so incorporated this section shall be deemed to be the special Act and references to the promoters of the undertaking or to the company shall be construed as references to the authority authorised to acquire the land under this section.

Acquisition of land for purposes of exchange

110

Without prejudice to the generality of the powers conferred by the preceding provisions of this Part of this Act, any power of a local authority to acquire land thereunder, whether compulsorily or by agreement, shall include power to acquire land required for giving in exchange for land appropriated under section 111 of this Act.

Appropriation of land forming part of common or open space

111

Appropriation of land held for planning purposes

112

Disposal of land held for planning purposes

113

(1) Where any land has been acquired or appropriated by a. . . planning authority for planning purposes, and is for the time being held by the authority for the purposes for which it was so acquired or appropriated, the authority may dispose of the land to such person, in such manner and subject to such conditions as may appear to them to be expedient in order to secure the best use of that or other land and any buildings or works which have been, or are to be, erected, constructed or carried out thereon, whether by themselves or by any other person, or to secure the erection, construction or carrying out thereon of any buildings or works appearing to them to be needed for the proper planning of the area of the authority.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Subject to the provisions of subsection (6) of this section, any land disposed of under this section shall not,. . . , be disposed of otherwise than at the best price or on the best terms that can reasonably be obtained.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Where representations are made to the Secretary of State—

(a) that a. . . planning authority have refused to dispose of any land under this section to any person or to agree with him as to the manner in which, or the terms or conditions on or subject to which, it is to be disposed of to him; and

(b) that the refusal constitutes unfair discrimination against that person or is otherwise oppressive,

the Secretary of State may cause the representations to be intimated to the authority; and after considering any statement in writing made to him by the authority, the Secretary of State may, if he thinks fit, cause a public local inquiry to be held and after considering the report of the person appointed to hold the inquiry (if any), may, if it appears to him that the representations are well founded and that it is expedient as mentioned in subsection (1) of this section that the authority should dispose of the land under this section to that person, require the authority to offer to dispose of it to him, and give directions as to the manner of the disposal and as to all or any of the terms or conditions on or subject to which it is to be offered to him.

(6) In relation to land acquired or appropriated for planning purposes for a reason mentioned in section 102(1)(a). . . of this Act the powers conferred by this section on a. . . planning authority,. . . , shall be so exercised as to secure, so far as may be practicable, to persons who were living or carrying on business or other activities on any such land which the authority have acquired as mentioned in subsection (1) of this section, who desire to obtain accommodation on such land, and who are willing to comply with any requirements of the authority as to the development and use of such land, an opportunity to obtain thereon accommodation suitable to their reasonable requirements, on terms settled with due regard to the price at which any such land has been acquired from them.

In this subsection “development” includes redevelopment.

(7) Where land is disposed of under this section by a. . . planning authority to any person for the erection of a church or other building for religious worship or buildings ancillary thereto, then, unless the parties otherwise agree, such disposal shall be by way of feu.

(8) In relation to any such land as is mentioned in subsection (1) of this section, this section shall have effect to the exclusion of the provisions of any enactment, other than this Act, by virtue of or under which the. . . planning authority are or may be authorised to dispose of land held by them.

Development of land held for planning purposes

114

(1) The functions of a. . . planning authority shall include power for the authority, notwithstanding any limitation imposed by law on the capacity of the authority by virtue of its constitution, to erect, construct or carry out any building or work on any land to which this section applies, not being a building or work for the erection, construction or carrying out of which, whether by that authority or by any other person, statutory power exists by virtue of, or could be conferred under, an alternative enactment.

(2) This section applies to any land which has been acquired or appropriated by a. . . planning authority for planning purposes and is for the time being held by the authority for the purposes for which it was so acquired or appropriated.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The functions of a. . . planning authority shall include power for the authority, notwithstanding any such limitation as is mentioned in subsection (1) of this section, to repair, maintain and insure any buildings or works on land to which this section applies, and generally to deal therewith in a proper course of management.

(6) Nothing in this section shall be construed as authorising any act or omission on the part of a. . . planning authority which is actionable at the instance of any person on any ground other than such a limitation as is mentioned in subsection (1) of this section.

(7) In this section “alternative enactment” means any enactment which is not contained in this Part of this Act. . . .

Special provisions as to features and buildings of architectural and historic interest

115

(1) In the exercise of the powers of appropriation, disposal and development conferred by the provisions of sections 112, 113 and 114(1) of this Act, a. . . planning authority shall have regard to the desirability of preserving features of special architectural or historic interest, and in particular, listed buildings;. . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In this section “preserving”, in relation to a building means the preserving thereof either in its existing state or subject only to such alterations or extensions as can be carried out without serious detriment to its character, and “development” includes redevelopment.

(4) This section is without prejudice to the provisions of section 262(5) of this Act.

Management etc. of listed buildings acquired by local planning authority or Secretary of State

116

(1) Where a. . . planning authority acquire any building or other land under section 104(1) or 109(1)(b) of this Act, they may make such arrangements as to its management, use or disposal as they consider appropriate for the purpose of its preservation.

(2) Where the Secretary of State acquires any building or other land under section 104(2) of this Act, subsection (3) of section 5 of the Historic Buildings and Ancient Monuments Act 1953 (management, custody and disposal), except so much of it as refers to subsection (4) of that section, shall apply in relation thereto as it applies in relation to property acquired under that section.

Power to override servitudes and other rights

117

(1) The erection, construction or carrying out, or maintenance, of any building or work on land which has been acquired or appropriated by a. . . planning authority for planning purposes, whether done by the. . . planning authority or by a person deriving title from them, is authorised by virtue of this section if it is done in accordance with planning permission, notwithstanding that it involves interference with an interest or right to which this section applies, or involves a breach of a restriction as to the use of land arising by virtue of any deed or contract:

(2) This section applies to the following interests and rights, that is to say, any servitude, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support.

(3) In respect of any interference or breach in pursuance of subsection (1) of this section, compensation shall be payable under section 61 of the Lands Clauses Consolidation (Scotland) Act 1845 or under section 6 of the Railways Clauses Consolidation (Scotland) Act 1845 to be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections in respect of injurious affection where the compensation is to be estimated in connection with a purchase under those Acts or the injury arises from the execution of works on land acquired under those Acts.

(4) Where a person deriving title from the. . . planning authority by whom the land in question was acquired or appropriated is liable to pay compensation by virtue of subsection (3) of this section, and fails to discharge that liability, the liability shall be enforceable against the. . . planning authority:

(5) Nothing in this section shall be construed as authorising any act or omission on the part of any person which is actionable at the instance of any person on any ground other than such an interference or breach as is mentioned in subsection (1) of this section.

Provisions as to churches and burial grounds

118

(1) Any land, consisting of a church or other building used or formerly used for religious worship, or the site thereof, or a burial ground, which has been acquired by a Minister, a. . . planning authority or statutory undertakers under this Part of this Act or compulsorily under any other enactment, or which has been appropriated by a. . . planning authority for planning purposes, may, subject to the following provisions of this section—

(a) in the case of land acquired by a Minister, be used in any manner by him or on his behalf for any purpose for which he acquired the land; and

(b) in any other case, be used by any person in any manner in accordance with planning permission,

notwithstanding anything in any enactment relating to churches or such other buildings as aforesaid or to burial grounds or any obligation or restriction imposed under any deed or agreement or otherwise as respects that church or other building or burial ground:

. . .

(1A) In the case of land—

(a) which has been acquired by the Secretary of State under section 79(1) of the National Health Service (Scotland) Act 1978; and

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