Statutory Instrument 1995 No. 2258

The Town and Country Planning (Environmental Assessment and Unauthorised Development) Regulations 1995

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© Crown Copyright 1995

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1995 No. 2258

TOWN AND COUNTRY PLANNING, ENGLAND AND WALES

The Town and Country Planning (Environmental Assessment and Unauthorised Development) Regulations 1995

The Secretary of State of the Environment, as respects England, and the Secretary of the State for Wales, as respects Wales, being designated Ministers^[1] for the purposes of section 2(2) of the European Communities Act 1972^[2] in relation to measures relating to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment, in exercise of the powers conferred on them by that section, hereby make the following Regulations:

Citation, commencement and application
    1.—(1)  These Regulations may be cited as the Town and Country Planning (Environmental Assessment and Unauthorised Development) Regulations 1995 and shall come into force on 2nd October 1995.

    (2)  These Regulations apply in relation to enforcement notices issued under section 172 (issue of enforcement notice) of the Town and Country Planning Act 1990^[3] on or after the day on which these Regulations come into force.

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

"the Act" means the Town and Country Planning Act 1990;


"the 1988 Regulations" means the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988^[4];


"deemed application" means the application for planning permission deemed to be made by virtue of an appeal under section 174 (appeal against enforcement notice ) of the Act^[5];


"enforcement notice" means a notice issued under section 172 of the Act;


"environmental statement" means, subject to paragraph (2), a document or series of documents providing, for the purpose of assessing the likely impact upon the environment of the unauthorised development concerned, the information specified in paragraph 2 of Schedule 3 to the 1988 Regulations;


"ground (a) appeal" means an appeal under section 174 of the Act, so far as brought on the ground mentioned in subsection (2)(a) of that section;


"relevant planning authority" means the body by whom, assuming no direction were given under section 77 (reference of application to Secretary of State) of the Act^[6], an application for planning permission in respect of the unauthorised development concerned would be determined;


"Schedule 1" and "Schedule 2" mean, respectively, Schedule 1 and Schedule 2 to the 1988 Regulations;


"unauthorised development" means development which is (or is part of ) the subject matter of an enforcement notice and is—
 (a) of any description mentioned in Schedule 1; or
 (b) of any description mentioned in Schedule 2 and likely to have significant effects on the environment by virtue of factors such as its nature, size or location.

    (2)  The compiler of an environmental statement may include in the statement further information on any of the matters specified in paragraph 3 of Schedule 3 to the 1988 Regulations: provided that a non-technical summary of that information is also provided; and any such information and summary shall be treated for the purposes of these Regulations as part of the environmental statement.

    (3)  In the following provisions of these Regulations, unless the context otherwise requires—
 (a) references to sections are references to sections of the Act; and
 (b) expressions used in the Act and in these Regulations have the same meaning in these Regulations as they have in the Act; save that references to the Secretary of State shall not be construed as references to a person appointed by the Secretary of State under paragraph 1 of Schedule 6 (determination of certain appeals by person appointed by Secretary of State) to the Act^[7].

    (4)  Where the Secretary of State gives a direction or issues a notice (whether under these Regulations, the 1988 Regulations or the Town and Country Planning (Environmental Assessment and Permitted Development) Regulations 1995^[8]) which includes a statement that in his opinion particular development is of a description within Schedule 2 and is likely, or is not likely, to have significant effects on the environment by virtue of factors such as its nature, size or location, that statement shall be conclusive of that question for the purpose of determining whether that development is unauthorised development.

Prohibition on the grant of planning permission for unauthorised development
    3.    The Secretary of State shall not grant planning permission under subsection (1) of section 177 (grant or modification of planning permission on appeals to the Secretary of State) in respect of unauthorised development unless he has first taken into consideration—
 (a) the environmental statement; and
 (b) the representations (if any) made in relation to any part of that statement,
and states in his decision that he has done so.

Opinion as to need for environmental statement, etc.
    4.—(1)  Where it appears to the local planning authority by whom or on whose behalf an enforcement notice is to be issued that the matters constituting the breach of planning control comprise or include unauthorised development they shall serve with a copy of the enforcement notice a notice ("regulation 4 notice") which shall—
 (a) specify the description within Schedule 1 or, as the case may be, Schedule 2 by reference to which it is the authority's opinion that the development is unauthorised development; and if within a description mentioned in Schedule 2, the factors by virtue of which it is likely to have significant effects on the environment; and
 (b) require a person who gives notice of an appeal under section 174 to submit to the Secretary of State with the notice four copies of an environmental statement relating to that unauthorised development.

    (2)  The authority by whom a regulation 4 notice has been served shall send a copy of the notice to—
 (a) the Secretary of State;
 (b) the persons with whom, in accordance with article 10 (consultations before the grant of planning permission) of the Town and Country Planning (General Development Procedure) Order 1995^[9], the authority would be required to consult if an application for planning permission for the unauthorised development were before the authority for determination;
 (c) the following persons, if not referred to in sub-paragraph (b)—
 (i) any principal council for the area in which the land to which the unauthorised development relates is situated, other than the local planning authority;
 (ii) if the land to which the unauthorised development relates is situated in England, the Countryside Commission and the Nature Conservancy Council for England;
 (iii) if the land to which the unauthorised development relates is situated in Wales, the Countryside Council for Wales;
 (d) where the unauthorised development is of a description referred to in paragraph (3), the chief inspector for England and Wales appointed under section 16 of the Environmental Protection Act 1990^[10].

    (3)  The development referred to in paragraph (2)(d) is any development which in the opinion of the local planning authority—
 (a) involves mining operations, or manufacturing industry or the disposal of waste; and
 (b) is likely—
 (i) to give rise to waste, the disposal of which requires an authorisation under the Radioactive Substances Act 1993^[11], or to discharges (other than of domestic sewage) which are controlled waste or special waste within the meaning of Part II (waste on land) of the Environmental Protection Act 1990^[12] or are likely to require the licence or consent of the National Rivers Authority or a sewerage undertaker; or
 (ii) to involve works specified in Schedule 1 to the Health and Safety (Emissions into the Atmosphere) Regulations 1983^[13].

    (4)  Where an authority provide the Secretary of State with a copy of a regulation 4 notice they shall also provide him with a list of the other persons to whom, in accordance with paragraph (2), a copy of the notice has been or is to be sent.

Directions by the Secretary of State
    5.—(1)  Any person on whom a regulation 4 notice is served may apply to the Secretary of State for his direction on any matter stated in the notice.

    (2)  An application under paragraph (1) shall be accompanied by—
 (a) a copy of the regulation 4 notice;
 (b) a copy of the enforcement notice which accompanied it; and
 (c) such other information or representations as the applicant may wish to provide or make.

    (3)  The applicant shall send to the authority by whom the regulation 4 notice was served, at such time as he applies to the Secretary of State, a copy of the application under this regulation and of any information or representations provided or made in accordance with paragraph (2)(c).

    (4)  If the Secretary of State considers that the information provided in accordance with paragraph (2) is insufficient to enable him to give a direction, he shall notify the applicant and the authority of the matters in respect of which he requires further information; and the information so requested shall be provided by the applicant within such reasonable period as may be specified in the notice.

    (5)  The Secretary of State shall send a copy of his direction to the applicant and to the authority; and where he concludes that the matters which are alleged to constitute the breach of planning control comprise or include unauthorised development he shall send with the copy of the direction a written statement of the reasons for his conclusion.

    (6)  Without prejudice to paragraph (5), where the Secretary of State directs that the matters which are alleged to constitute the breach of planning control do not comprise or include unauthorised development, he shall send a copy of the direction to every person to whom a copy of the regulation 4 notice was sent.

Provision of information
    6.—(1)  Subject to paragraph (2), the relevant planning authority and any person, other than the Secretary of State, to whom a copy of the regulation 4 notice has been sent ("the consultee"), shall, if requested by the person on whom the regulation 4 notice was served ("the prospective appellant"), or may without such a request, enter into consultation with him to determine whether the consultee has in his possession any information which he considers relevant to the preparation of an environmental statement and, if he has, the consultee shall make that information available to the prospective appellant.

    (2)  Paragraph (1) shall not require the disclosure by a person of confidential information.

    (3)  A reasonable charge reflecting the cost of making the relevant information available may be made by a person who in accordance with paragraph (1) supplies information sought by a prospective appellant.

Appeal to the Secretary of State without an environmental statement
    7.—(1)  Where on consideration of an appeal under section 174 the Secretary of State is of the opinion that the matters which are alleged to constitute the breach of planning control comprise or include unauthorised development, and the documents submitted to him for the purposes of the appeal do not include an environmental statement, he shall, subject to paragraph (2), within the period of 21 days beginning with the day on which he receives the appeal, or such longer period as he may reasonably require, notify the appellant in writing of his opinion and of the reasons for it and of the requirements of paragraph (3) below.

    (2)  Notice need not be given under paragraph (1) where the appellant has submitted an environmental statement to the Secretary of State for the purposes of an appeal under section 78 (right to appeal against planning decisions and failure to take such decisions)^[14] which—
 (a) relates to the development to which the appeal under section 174 relates; and
 (b) is to be determined at the same time as that appeal;
and that statement and the representations (if any) made in relation to any part of it shall be treated as the environmental statement and representations for the purposes of regulation 3 of these Regulations.

    (3)  The requirements of this paragraph are that the appellant shall, within the period specified in the notice or such longer period as the Secretary of State may allow, submit to the Secretary of State four copies of an environmental statement relating to the unauthorised development in question.

    (4)  The Secretary of State shall send to the relevant planning authority a copy of any notice sent to the appellant under paragraph (1).

    (5)  If an appellant to whom notice has been given under paragraph (1) fails to comply with the requirements of paragraph (3), the deemed application and the ground (a) appeal (if any) shall lapse at the end of the period specified or allowed (as the case may be).

    (6)  As soon as reasonably practicable after the occurrence of the event mentioned in paragraph (5), the Secretary of State shall notify the appellant and the local planning authority in writing that the deemed application and the ground (a) appeal (if any) have lapsed.

Procedure where the Secretary of State receives an environmental statement
    8.—(1)  Where the Secretary of State receives an environmental statement in connection with an enforcement appeal (otherwise than as mentioned in regulation 7(2)) he shall—
 (a) send a copy of it to the relevant planning authority, advise the authority that the statement will be taken into consideration in determining the deemed application and the ground (a) appeal (if any), and inform them that they may make representations; and
 (b) notify the persons to whom a copy of the relevant regulation 4 notice was sent that the statement will be taken into consideration in determining the deemed application and the ground (a) appeal (if any), and inform them that they may make representations and that, if they wish to receive a copy of the statement or any part of it, they must notify the Secretary of State of their requirements within 7 days of the receipt of the Secretary of State's notice.

    (2)  The Secretary of State shall respond to requirements notified in accordance with paragraph (1)(b) by providing a copy of the statement or of the part requested (as the case may be).

Further information and evidence respecting environmental statements
    9.—(1)  The Secretary of State may in writing require an appellant who has submitted an environmental statement otherwise than as mentioned in regulation 7(2) to provide such further information as may be specified concerning any matter which is required to be, or may be, dealt with in the statement; and where the Secretary of State is of the opinion that—
 (a) the appellant could (having regard in particular to current knowledge and methods of assessment) provide further information about any matter mentioned in paragraph 3 of Schedule 3 to the 1988 Regulations; and
 (b) that further information is reasonably required to give proper consideration to the likely environmental effects of the unauthorised development,
he shall notify the appellant in writing accordingly, and the appellant shall provide that further information within the period specified in the notice or such longer period as the Secretary of State may, by notice in writing to the appellant, allow.

    (2)  If an appellant to whom notice has been given under paragraph (1) fails to provide the further information within the period specified or allowed (as the case may be), the deemed application and the ground (a) appeal (if any) shall lapse at the end of that period.

    (3)  Regulation 8 shall apply in relation to further information received by the Secretary of State in accordance with paragraph (1) as if references in that regulation to an environmental statement were references to the further information.

    (4)  The Secretary of State may by notice in writing require the appellant to produce such evidence as he may reasonably call for to verify any information in the environmental statement.

Publicity for environmental statements
    10.—(1)  Where an authority receive a copy of an environmental statement by virtue of regulation 8(1)(a) they shall publish in a local newspaper circulating in the locality in which the land to which the enforcement notice relates is situated ("the locality") a notice stating—
 (a) the name of the appellant and that he has appealed to the Secretary of State against the enforcement notice;
 (b) the address or location of the land to which the notice relates and the nature of the development;
 (c) that a copy of the environmental statement may be inspected by members of the public at all reasonable hours;
 (d) an address in the locality at which the statement may be inspected, and the latest date on which it will be available for inspection (being a date not less than 20 days later than the date on which the notice is published);
 (e) that any person wishing to make representations about any matter dealt with in the statement should make them in writing, no later than 14 days after the date named in accordance with sub-paragraph (d), to the Secretary of State; and
 (f) the address to which any such representations should be sent.

    (2)  The authority shall as soon as practicable after publication of a notice in accordance with paragraph (1) send to the Secretary of State a copy of the notice certified by or on behalf of the authority as having been published in a named newspaper on a date specified in the certificate.

    (3)  Where the Secretary of State receives a certificate under paragraph (2) he shall not determine the deemed application or the ground (a) appeal in respect of the development to which the certificate relates before the expiry of 14 days from the date stated in the published notice as the last date on which the environmental statement was available for inspection.

Public inspection of documents
    11.—(1)  The relevant planning authority shall make available for public inspection at all reasonable hours at the place where the appropriate register (or relevant part of that register^[15]) is kept a copy of—
 (a) every regulation 4 notice given by the authority;
 (b) every direction received by the authority under regulation 5;
 (c) the accompanying statement of reasons (if any);
 (d) every notice received by the authority under regulation 7; and
 (e) every environmental statement received by the authority by virtue of regulation 8(1)(a);
and copies of those documents shall remain so available for a period of two years or until particulars of the notice or direction are entered in Part II of the register in accordance with paragraph (2), whichever is the sooner.

    (2)  Where particulars of any planning permission granted by the Secretary of State under section 177 are entered in Part II of the appropriate register^[16], the local planning register authority shall take steps to secure that that Part also contains—
 (a) such particulars of—
 (i) any regulation 4 notice;
 (ii) any direction given under regulation 5; and
 (iii) any notice given under regulation 7,
as are relevant to the development for which permission has been granted; and
 (b) a copy of the environmental statement received by the authority by virtue of regulation 8(1)(a) relevant to that development.

    (3)  In this regulation—

"appropriate register" means the register kept pursuant to section 69 of the Act^[17]; and


"the local planning register authority" has the same meaning as in article 25(1) of the Town and Country Planning (General Development Procedure) Order 1995.

Service of notices etc.
    12.    Any notice or other document to be served or given under these Regulations may be served or given in a manner specified in section 329.

Application to the High Court
    13.    For the purposes of Part XII of the Act (validity of certain decisions), the reference in section 288 to action of the Secretary of State which is not within the powers of the Act shall be taken to extend to a grant of planning permission in contravention of regulation 3 of these Regulations.

Signed by authority of the Secretary of State

Paul Beresford

Parliamentary Under-Secretary of State,
Department of the Environment

23rd August 1995
Signed by authority of the Secretary of State for Wales

Gwilym Jones

Parliamentary Under-Secretary of State,
Welsh Office

29th August 1995

These Regulations are concerned with the implementation in England and Wales of Council Directive 85/337/EEC (OJ No. L175, 5.7.85, p.40).

Section 177 of the Town and Country Planning Act 1990 enables the Secretary of State when determining an appeal against an enforcement notice issued under section 172 of that Act to grant planning permission in respect of any matter stated in the notice as constituting a breach of planning control. Where an application for planning permission for the development to which an enforcement notice relates would have required environmental assessment in accordance with the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 ("the Environmental Assessment Regulations"), regulation 3 of these Regulations precludes the Secretary of State from granting planning permission on the determination of the enforcement notice appeal without first considering an environmental statement relating to the development.

Regulation 4 requires a local planning authority to inform the recipient of an enforcement notice, the Secretary of State and the persons who would have been consulted if an application for planning permission had been made, if it is the authority's opinion that the matters to which the enforcement notice relates constitute development to which the Environmental Assessment Regulations would have applied, and that any appeal to the Secretary of State must be accompanied by an environmental statement unless the Secretary of State otherwise directs.

Regulation 5 enables a person on whom notice has been served under regulation 4 to seek a direction from the Secretary of State, and regulation 6 enables him to obtain from the local planning authority and others information relevant to the preparation of his environmental statement.

Regulation 7 enables the Secretary of State to require an appellant who has not provided an environmental statement with his appeal documents to do so, unless he has provided such a statement in connection with a parallel appeal against the refusal of planning permission for the same development as that to which the enforcement appeal relates. If the appellant fails to submit an environmental statement within the period allowed, his deemed application for planning permission and, if he appealed on the ground that planning permission should be granted, his appeal on that ground, lapse at the end of that period.

Regulation 8 requires the Secretary of State to give specified persons the opportunity of making representations in relation to environmental statements.

Regulation 9 enables the Secretary of State to require an appellant to provide further information and evidence and requires the Secretary of State to give specified persons the opportunity of making representations in relation to any further information provided. If the appellant fails to submit the further information within the period allowed, his deemed application for planning permission and, if he appealed on the ground that planning permission should be granted, his appeal on that ground, lapse at the end of that period.

Regulation 10 requires the local planning authority to advertise the receipt by them of an environmental statement and to indicate the procedure for making representations to the Secretary of State.

Regulation 11 makes provision for public inspection of documents issued and received by local planning authorities under the Regulations.

Regulation 12 provides for service of documents, and regulation 13 allows for an appeal to the High Court in respect of any grant of planning permission in contravention of regulation 3.

A compliance cost assessment of the effect that this instrument would have on the cost of business is available from Planning Division 4, Department of the Environment, Tollgate House, Houlton Street, Bristol BS2 9DJ (telephone 0117 987 8605) or from the Planning Division, Welsh Office, Cathays Park, Cardiff CF1 3NQ (telephone 01222 8233882).

[1] S.I. 1988/785. back

[2] 1972 c. 68. back

[3] 1990 c. 8; section 172 was substituted by the Planning and Compensation Act 1991 (c. 34), section 5. back

[4] S.I. 1988/1199; amended by S.I. 1990/367, 1992/1494 and 1994/677. back

[5] Section 174 was amended by the Planning and Compensation Act 1991, section 6(1) and Schedule 7, paragraph 22. See also section 177(5) which was amended by the Planning and Compensation Act 1991, Schedule 7, paragraph 24. back

[6] Section 77 was amended by the Planning and Compensation Act 1991, Schedule 7, paragraph 18. back

[7] See paragraph 2(9) of Schedule 6 to the Town and Country Planning Act 1990. back

[8] S.I. 1995/417. back

[9] S.I. 1995/419. back

[10] 1990 c. 43. back

[11] 1993 c. 12. back

[12] 1990 c. 43. See the definitions of "controlled waste" and "special waste" in section 75 of the Environmental Protection Act 1990 and paragraph 9(2) of Part I of Schedule 4 to the Waste Management Licensing Regulations 1994 (S.I. 1994/1056). back

[13] S.I. 1983/943, amended by S.I. 1989/319. back

[14] Section 78 was amended by section 17(2) of the Planning and Compensation Act 1991. back

[15] See article 25(10) of the Town and Country Planning (General Development Procedure) Order 1995 (S.I. 1995/419). back

[16] See section 177(8) of the Town and Country Planning Act 1990 and article 25(4) of the Town and Country Planning (General Development Procedure) Order 1995. back

[17] Section 69 was amended by the Planning and Compensation Act 1991, Schedule 7, paragraph 13. back