Circular 1/1997
Appendix A
FEES FOR DEEMED PLANNING APPLICATIONS IN ENFORCEMENT NOTICE APPEALS TO THE SECRETARY OF STATE
1. Under Regulation 10 fees have to be paid for deemed planning applications associated with enforcement notice appeals including Certificate of Lawful Use Applications arising from such appeals. The fee payable in an enforcement appeal is double that for the appropriate category with half paid to the Secretary of State, and enclosed with the appeal, and half to the planning authority. The new rate of fee will be payable for appeals made on or after commencement or 1 October 1997 as appropriate.
2. The fee to be levied on deemed planning applications in such cases falls to be assessed in exactly the same way as the fee for corresponding express applications; and they are subject to the same exemptions, except that there are no exemptions similar to those in Regulations 7 and 8 for revised applications. However in the case of a deemed application in consequence of an enforcement notice appeal, a refund is due if the enforcement notice is withdrawn by the planning authority at any stage. A refund is also due if the related appeal is withdrawn so that there are at least 21 days between the date of withdrawal and the date of the public inquiry, or the site visit made when the written submissions procedure is being used. For the purposes of this provision an appeal is regarded as withdrawn on the date on which the Secretary of State receives notice in writing of the withdrawal. In addition - and this reflects the fact that the fee is a charge solely for considering a deemed planning application (not for considering appeals as such) - refunds are due if:-
a. an enforcement notice appeal succeeds on any of the grounds (b) to (e) in Section 85(1) of the Town and Country Planning (Scotland) Act 1972;
b. the Secretary of State declines jurisdiction on the relevant appeal under Section 85 of the 1972 Act on the grounds that it does not comply with one or more of the requirements of subsection (1) of that section or he dismisses the appeal (on the grounds that the appellant has failed to comply with subsection (2B)(a) of that section;
c. an enforcement notice is quashed and the appeal allowed by the Secretary of State because the planning authority have failed to submit prescribed information within a prescribed period;
d. an enforcement notice is found to have no subject matter to appeal against since the purported enforcement notice had no legal effect.
3. Only a single fee is payable when an enforcement notice alleges that more than one development has taken place. The fee payable is determined according to the criteria relating to mixed development (see paragraph 33 of the Annex to this Circular).
4. Where an enforcement notice is served on a number of different people, an appeal by one of the persons will suspend all enforcement proceedings until the appeal is resolved or withdrawn. A fee is payable for each appeal made against an enforcement notice.
5. Charging for deemed planning applications in this way has the effect that anyone who carries out unauthorised developments is not able to obtain planning permission for it after the event without paying any fee which would have been due on a prior application.
6. However, if an appellant has already applied for planning permission to the planning authority before the enforcement notice was issued, and has paid the appropriate fee, and provided that his application or an appeal to the Secretary of State against its refusal had not been determined on or before the date of issue of the enforcement notice, he does not need to pay a further fee for his deemed application. This provision is to avoid the situation where an appellant would pay twice for an application to regularise the unauthorised development. No fee shall be payable where, in the case of an application deemed to have been made by virtue of Section 85(7) of the 1972 Act, the appellant had made an appeal to the Secretary of State under Section 33 of the 1972 Act before the date specified in the notice as the date on which it is to take effect.
More than one development alleged in Enforcement Notice
7. In relation to deemed applications arising in connection with enforcement appeals a fee is payable, in accordance with the provisions of the Regulations, in respect of each appeal. Where an enforcement notice is served relating to a number of different activities (either changes of use or operations) which come within more than one category in the Schedule to the Regulations the amount of the fee due in respect of the appeal is to be calculated as indicated in paragraph 3 above. However, where more than one enforcement notice has been served in respect of activities on the same site and the appellant has appealed in respect of more than one of those notices, a separate fee is payable in respect of the development to which each of those notices relates.
8. Planning authorities are asked, at the same time as they serve an enforcement notice:-
i. to inform each recipient how much the planning application fee for the use of land or operations to which the notice relates would be and advise him to send a payment for that amount with any appeal he makes to the Secretary of State; and
ii. to send the recipient a duplicate copy of the enforcement notice, and any enclosure, so that it can be sent to the Secretary of State with any appeal which may be made.
FEES FOR APPLICATIONS FOR CERTIFICATES OF LAWFUL USE OR DEVELOPMENT
10. Certificates of Lawful Use or Development were introduced in 1992 and replaced the procedures for Established Use Certificates. The procedure provides a single coherent mechanism for establishing the planning status of land, ie whether an existing or proposed use or development is lawful for planning purposes. Anyone (not just a person with an interest in the land) can apply to a planning authority for a decision on whether a specified existing or proposed use, operational development, or failure to comply with a planning condition or limitation, which has already been carried out on land, is lawful for planning purposes. Each application lodged with a planning authority must be accompanied by the appropriate fee as prescribed in Regulation 12 of the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 1997. There are certain exceptions, exemptions and maximum charges prescribed in the Regulations, but fees are payable in respect of applications regardless of the fact that the subject matter of the application may prove to be lawful for any reason.
11. Circular 36/1992 (paragraph 47 et seq) deals more fully with Certificates of Lawful Use and paragraphs 57 and 58 detail the fee levels to be applied. The following should be substituted:
11.1 In paragraph 57b for "£46" read "£90" on commencement and "£95" on or after 1 October 1997.
11.2 In paragraph 58a for "£92" read "£180" on commencement and "£190" on or after 1 October 1997, and for "£4,600" read "£9,000" on commencement and "£9,500" on or after 1 October 1997. The fee stated to be £46 for each dwellinghouse if the use is established was removed by SI 1993 No 3211 (S.310) which came into force on 3 January 1993.