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Welsh Statutory Instrument 2002 No. 1772
(W.168)
The Wildlife and Countryside (Sites of Special
Scientific Interest, Appeals) (Wales) Regulations 2002
© Crown Copyright 2002
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STATUTORY INSTRUMENTS
2002 No. 1772 (W.168)
COUNTRYSIDE, WALES
The Wildlife and Countryside (Sites of Special
Scientific Interest, Appeals) (Wales) Regulations 2002
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Made |
9th July 2002 |
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Coming into force |
31st July 2002 |
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The National Assembly
for Wales ("the National Assembly"), in exercise of the powers conferred
on the Secretary of State by sections 28F(6) and 28L(8) of the Wildlife
and Countryside Act 1981[1]
and paragraphs 11(2) and 17(3) of Schedule 11 to the Countryside and
Rights of Way Act 2000[2]
and which are now exercisable by the National Assembly[3],
hereby makes the following Regulations:
Citation, commencement,
and application
1.
- (1) These Regulations may be cited as the Wildlife and
Countryside (Sites of Special Scientific Interest, Appeals) (Wales)
Regulations 2002.
(2) These Regulations
come into force on 31st July 2002.
(3)
These Regulations apply to
Wales.
Interpretation
2. - (1) In these Regulations -
"the 2000 Act" ("Deddf 2000") means the Countryside and
Rights of Way Act 2000;
"the 1981 Act" ("Deddf 1981") means the Wildlife and
Countryside Act 1981;
"appointed person" ("person penodedig") means a person
appointed for the time being by the National Assembly under section
28F(8) or section 28L(10) of the 1981 Act to consider the written
representations relating to an appeal or, if the appeal is to take the
form of a local inquiry or hearing, to conduct the inquiry or hearing,
and to determine the appeal if authorised to do so;
"a consent appeal" ("apêl cydsyniad") means an appeal under
sections 28F(1) or 28F(2) of the 1981 Act;
"the Council" ("y Cyngor") means the Countryside Council for
Wales;
"a deemed refusal appeal" ("apêl gwrthodiad tybiedig") means
a consent appeal under section 28F(2) of the 1981 Act;
"electronic communication" ("cyfathrebu electronig") means a
communication transmitted (whether from one person to another, from one
device to another or from a person to a device or vice versa) by means
of a telecommunications system (within the meaning of the
Telecommunications Act 1984[4]
or by other means but while in an electronic form;
"electronic form" ("ffurf electronig") means a form capable
of being stored on, transmitted to and from, and read by means of a
computer;
"legible form" ("ffurf ddarllenadwy") means, in relation to a
document sent by means of an electronic communication, a form in which
it is capable of being read on a computer screen;
"a notice of appeal" ("hysbysiad apêl") means a notice by
which a consent appeal, a management notice appeal or a stop notice
appeal, as the case may be, is brought;
"a management notice appeal" ("apêl hysbysiad reoli") means
an appeal under section 28L(1) of the 1981 Act;
a "regulation 7(1)(b) party" ("parti rheoliad 7(1)(b)") means
a person to whom a notice is required to be sent by regulation 7(1)(b)
of these Regulations;
"the starting date" ("y dyddiad dechrau") has the meaning
given in regulation 9(3);
"a stop notice appeal" ("apêl hysbysiad stop") means an
appeal under paragraph 11(1) of Schedule 11 to the 2000 Act.
(2) In these Regulations, "the decision notice"
("yr hysbysiad penderfyniad") means -
(a) in the case of a consent appeal, the notice giving the consent
of the Council subject to conditions or for a limited period under
section 28E(4) of the 1981 Act or the notice given by the Council under
section 28E(5) or section 28E(6) of the 1981 Act, as the case may
be;
(b) in the case of a management notice appeal, the notice
given by the Council under section 28K of the 1981 Act;
(c) in
the case of a stop notice appeal, the notice given by the Council under
paragraph 9(3) of Schedule 11 to the 2000 Act;
to which the appeal relates.
Contents of a notice of
appeal
3. A notice of
appeal must -
(a) state the full name and address of the appellant and of any
person authorised to act on behalf of the appellant in relation to the
appeal;
(b) except in the case of a deemed refusal appeal, be
accompanied by a copy of the decision notice;
(c) in the case of
a consent appeal relating to a refusal to give consent for an operation,
give particulars of the operation for which consent has been refused
(unless such particulars are given in the decision notice);
(d)
in the case of a management notice appeal in relation to which the
grounds of appeal include a ground that some owner or occupier of land
other than the appellant should take all or any of the measures
specified in the decision notice, or should pay all or part of their
cost, state the full name and address of any such person;
(e)
state the grounds of the appeal;
(f) if the appellant wishes to
be heard by a person appointed by the National Assembly in connection
with the appeal (rather than that the appeal be determined on the basis
of written representations), say so and further state whether the
appellant wishes to be heard at a local inquiry or, alternatively, at a
hearing and, if a hearing, whether the appellant wishes the hearing to
be held in private if the person hearing the appeal agrees;
and
(g) if the appellant and the Council have agreed in writing
that the time by which the notice of appeal must be received should be
longer than that specified by the 1981 Act or, in the case of a
management notice appeal, that the period which is to apply under
Regulation 6(2)(a)(i) is to be longer than two months, be accompanied by
a copy of the document recording that agreement.
4. A notice of appeal may be
in either the English language or in the Welsh language but if the
appellant wishes the appeal to be dealt with in whole or in part through
the medium of the language other than that in which the notice of appeal
is expressed it should incorporate or be accompanied by a request to that
effect.
Starting an appeal
5. An appeal is started by sending a notice of appeal to the
National Assembly.
Action by the National Assembly on receipt of
a notice of appeal
6.
- (1) The National Assembly must, as soon as reasonably
practicable after receiving a notice of appeal, send a copy of it to the
Council, together with a copy of any other document which accompanied
it.
(2) Paragraph (1) does not
apply -
(a) to a notice of appeal received by the National Assembly:
(i) in the case of any appeal other than a deemed refusal appeal,
after the expiry of the period of two months (or such longer period as
has been agreed in writing by the appellant and the Council) beginning
with the date of the decision notice; or
(ii) in the case of a
deemed refusal appeal, after the expiry of the period of six months
(or such longer period as has been agreed in writing by the appellant
and the Council) beginning with the date on which the appellant sent
to the Council notice of a proposal to carry out the operation for
which consent is treated as having been refused;
(b) to a notice of appeal in respect of which the appellant has
failed, in a material respect, to comply with the requirements of
regulation 3, but in such a case the National Assembly may give notice
to the appellant of the nature of that failure and of the steps
necessary to rectify it and if the appellant, within 14 days of receipt
of such notice, takes the steps required, this sub-paragraph will no
longer apply to the notice of appeal in question.
Action by the Council on receipt of a copy of a notice of
appeal
7.
- (1) The Council must, within 14 days of receiving from the
National Assembly a copy of a notice of appeal, give notice in
writing -
(a) in the case of a consent appeal, to any person (other than the
appellant) who made representations to the Council in respect of the
decision on the part of the Council to which the appeal relates (or, in
the case of a deemed refusal appeal, in respect of any decision which
the Council might have taken if the appellant had not treated the
Council as having refused consent);
(b) in the case of a
management notice appeal in relation to which the grounds of appeal
include a ground that some owner or occupier of land other than the
appellant should take all or any of the measures specified in the
decision notice, or should pay all or part of their cost, to any such
person;
(c) to any other person who appears to the Council to
have a sufficient interest in the subject matter of the
appeal.
(2) A notice under paragraph (1)
must -
(a) identify the site of special scientific interest to which the
appeal relates;
(b) be dated;
(c) be accompanied by a copy
of the notice of appeal and of any decision notice;
(d) state
that, within 28 days beginning with the date of the notice, the
recipient may -
(i) make representations in writing, which may be in either the
English language or the Welsh language, to the National Assembly with
respect to the appeal and that, in that event, copies of those
representations will be provided to the appellant and to the Council;
and
(ii) request in writing to the National Assembly to be
notified of the decision on the appeal;
(e) state that if a local inquiry is to be held, or a hearing is to
be held which is to be wholly or partly in public, a recipient who makes
representations in accordance with paragraph (2)(d)(i) will be notified
of the date of the inquiry or hearing.
(3) A notice under paragraph (1) which is sent
to a regulation 7(1)(b) party must be accompanied by a statement that if
that party wishes to be heard by a person appointed by the National
Assembly in connection with the appeal, (rather than that the appeal be
determined on the basis of written representations), any representations
made to the National Assembly by that party should be accompanied by a
statement to that effect and if so by a further statement as to whether
that party wishes to be heard at a local inquiry or, alternatively, at a
hearing .
Response by the Council to an
appeal
8. The Council
must, within 28 days of receiving from the National Assembly a copy of a
notice of appeal, send to the National Assembly, to the appellant and to
any regulation 7(1)(b) party -
(a) a statement whether it opposes the appeal and, if so, of its
grounds for doing so;
(b) in the case of a consent appeal, a copy
of any relevant notice of a proposal to carry out the operation
(together with accompanying plans and documents) given to the Council
under section 28E(1) of the 1981 Act;
(c) copies of any relevant
correspondence between the appellant and the Council;
(d) copies
of any representations made to the Council by any person other than the
appellant in respect of the decision on the part of the Council to which
the appeal relates (or, in the case of a deemed refusal appeal, in
respect of any decision which the Council might have taken if the
appellant had not treated the Council as having refused
consent);
(e) a statement of the names and addresses of any
persons to whom the Council have sent a notice under regulation 7(1) and
the date on which such notice was sent; and
(f) if the Council
wishes to be heard by a person appointed by the National Assembly in
connection with the appeal, a statement to that effect and if so,
whether the Council wishes to be heard at a local inquiry or,
alternatively, at a hearing and, if a hearing, whether the Council
objects to the hearing being held in private if the appellant so
requests.
Notification of appeal procedure
9. - (1) The National Assembly must, no
earlier than 28 days after the latest of any dates identified by the
Council in accordance with regulation 8(e) as the dates on which the
Council sent notices under regulation 7(1), but as soon as practicable
thereafter, send to:
(a) the appellant;
(b) the Council; and
(c) any person
to whom a notice was sent under regulation 7(1),
a notice specifying the form which the appeal is to
take.
(2) The notice given under paragraph
(1) must be dated and must state whether the appeal is to take the form
of:
(i) a local inquiry;
(ii) a hearing; or
(iii)
neither, and will therefore be determined on the basis of written
representations.
(3) The date of the notice given under
paragraph (1) is the "starting date" for the purposes of these
Regulations.
(4) The notice given under
paragraph (1) must also state whether the person who is to be appointed to
consider such written representations or, if the appeal is to take the
form of a local inquiry or hearing, to conduct the inquiry or hearing, is
to be the person to whom the function of determining the appeal is to be
delegated but if it does so the National Assembly may at any time decide
instead that it is to determine the appeal itself and must, if it so
decides, give notice of that decision, as soon as reasonably practicable,
to those persons to whom such notice under paragraph (1) has been
given.
Provision of other representations to the appellant and
to the Council
10. The
National Assembly must, as soon as reasonably practicable after they are
received, send to the appellant, to the Council and to any regulation
7(1)(b) party, copies of any representations received by the National
Assembly from anyone other than the Council and the appellant, which the
National Assembly intends to take into account in relation to the
appeal.
Withdrawal of an appeal
11. - (1) The appellant may withdraw an
appeal by giving notice in writing to the National Assembly of a wish to
do so.
(2) The National Assembly must, as
soon as reasonably practicable after receiving notice of withdrawal of an
appeal, give notice of that fact to all those persons to whom a notice was
given under regulation 9(1).
Change to the form of an
appeal
12. If at any
time it appears to the National Assembly that it is more appropriate that
the appeal should be determined in a way which is different from the form
which was notified under regulation 9(2) it may, after obtaining any
consent of the Council or of the appellant required by the provisions of
the 1981 Act, determine that the appeal is to continue in a form other
than that notified and may give any consequential guidance as to the
procedure to be applied in relation to the appeal, including identifying
any steps which are required to be taken by the parties under these
Regulations which are to be deemed to have already been taken and varying
as necessary the time within which any such step which has not already
been taken must be taken.
Appeals determined on the basis of
written representations
13. - (1) This regulation applies to an appeal
which is to be determined on the basis of written
representations.
(2) The Council must,
within 28 days of the starting date, send to the National Assembly, to the
appellant and to any regulation 7(1)(b) party, a copy of any further
written representations or other documents, in addition to those already
sent to the National Assembly in accordance with regulation 7, on which it
wishes to rely in opposing the appeal or, if it does not wish to rely on
any such further representations or other documents, a notice to that
effect.
(3) The appellant must, within 28
days of receiving any further representations or other documents in
accordance with paragraph (2) (or a notice that the Council does not
intend to rely on any), send to the National Assembly, to the Council and
to any regulation 7(1)(b) party, a copy of any further written
representations or other documents, in addition to those already sent to
the National Assembly in accordance with regulation 3, on which the
appellant wishes to rely in support of the appeal or, if the appellant
does not wish to rely on any such further representations or other
documents, a notice to that effect.
(4) The
National Assembly may, in a particular case, invite the Council and the
appellant to send to the National Assembly, to each other and to any
regulation 7(1)(b) party, within such reasonable time as it may specify,
such further representations or other documents as it believes are
necessary in order to enable the appeal to be decided, including any
comments on any representation received by the National Assembly after the
starting date from any person other than the appellant and the Council
which the National Assembly proposes to take into account when deciding
the appeal and of which the National Assembly has sent copies to the
appellant and the Council.
Appeal to be decided after a
hearing
14.
- (1) This regulation applies to an appeal which is to be
decided after a hearing.
(2) Except as
otherwise provided in these Regulations, the appointed person may
determine the procedure relating to a
hearing.
(3) The Council and the appellant
must, within 42 days of the starting date, send to the National Assembly,
to each other and to any regulation 7(1)(b) party, a written statement
(together with copies of any documents, photographs, maps or plans
referred to in that statement) containing full particulars of the case
which that person proposes to put forward at the
hearing.
(4) The National Assembly may by
notice in writing require the Council or the appellant to provide, within
such reasonable time as it may require, such further specified information
as appears to the National Assembly to be relevant to the appeal and any
party required to provide such further information must, when sending it
to the National Assembly, send a copy to the other
party.
(5) The National Assembly must, not
less than 42 days before the date which it has fixed for the holding of
the hearing (or such shorter period as the appellant and the Council may
agree), give the appellant, the Council and any regulation 7(1)(b) party
notice of the date time and place of that hearing and the name of the
person appointed to conduct it.
(6) The
National Assembly must, not less than 21 days before the date fixed for
the hearing -
(i) publish, in at least one newspaper circulating in the area in
which the land to which the appeal relates is situated, a notice
containing the same information as that required to be given to the
appellant and the Council under paragraph (5); and
(ii) send a
copy of that notice to any person to whom a notice was sent under
regulation 7(1)(a) or 7(1)(c) and who has made representations in
writing to the National Assembly.
(7) The National Assembly may vary the date
fixed for the hearing, in which case paragraphs (4) and (5) apply to the
date as varied as they apply to the date originally
fixed.
(8) The National Assembly may vary
the time or place fixed for the hearing, in which case it must give such
notice of such variation as appears to it to be
reasonable.
(9) The persons entitled to be
heard at a hearing are -
(a) the appellant;
(b) the Council;
(c) any regulation
7(1)(b) party,
(d) any person to whom a notice was sent under
regulation 7(1)(a) or 7(1)(c) and who has made representations in
writing to the National Assembly.
(10) The person who conducts the hearing may
permit any other person to be heard and such permission must not be
unreasonably withheld.
(11) The hearing may
be held wholly or partly in private if the appellant so requests and the
person conducting the hearing agrees.
(12)
The person conducting the hearing may from time to time adjourn it and if
the date time and place of the resumed hearing are announced at the
hearing when it is adjourned, no further notice is to be
required.
Appeal to be decided after a local
inquiry
15. The National
Assembly must, at the same time as sending a notice under regulation 9(1)
that an appeal is to take the form of a local inquiry, give notice in
writing to the persons referred to in regulation 9(1)(a),(b) and (c) of
the procedure which is to apply and may from time to time thereafter give
such further guidance as to the procedure to be followed as is
appropriate.
Site visit
16. - (1) The appointed person may visit the land
to which the appeal relates but must give the appellant and the Council
reasonable notice in writing of an intention to do so and give them or any
person authorised to act on their behalf a reasonable opportunity of being
present.
(2) An appellant must take such
steps as are reasonably within the appellant's power to enable the
appointed person to obtain access to the land to be
visited.
Decision by an appointed
person
17. If the
function of determining the appeal has been delegated to the appointed
person, that person must give notice in writing of the decision, and the
reasons for it, to all persons entitled to appear at a hearing of the
appeal (whether or not a hearing took place) and any other person who made
a request to be notified of the decision in accordance with regulation
7(2)(d)(ii).
Decision by the National
Assembly
18. If
regulation 17 does not apply to the determination of an appeal, the person
appointed to consider the written representations or to conduct the local
inquiry or hearing, as the case may be, must prepare a report in writing
to the National Assembly, incorporating that person's conclusions and
recommendations and the National Assembly must, having considered that
report, give notice in writing of the decision, and the reasons for it, to
all persons entitled to appear at a hearing of the appeal (whether or not
a hearing took place) and any other person who made a request to be
notified of the decision in accordance with regulation
7(2)(d)(ii).
Further or different
procedures
19. The
National Assembly may, if the circumstances relating to a particular
appeal make it necessary, require any specified steps to be taken, either
in addition to, or in substitution for, those prescribed by these
Regulations and may extend the time prescribed by these Regulations, or
otherwise required under these Regulations, for the taking of any step but
must, before doing so, unless the effect is limited to an extension of
time, consult the appellant and the Council and consider any
representations which they may make as to the desirability of such a
requirement.
Powers of an appointed
person
20. The powers
and duties of the National Assembly under these Regulations may be
exercised by an appointed person and references in these Regulations to
the National Assembly are to be construed accordingly.
Use of
electronic communication
21. Any document required or authorised to be sent by one
person to another under the provisions of these Regulations may, as an
alternative to any other method, be sent by means of an electronic
communication, provided the person who sends the document has reasonable
grounds for believing that the document will come to the attention of the
person to whom it is sent, in legible form, within a reasonable
time.
Signed on behalf of the National Assembly for Wales
under section 66(1) of the Government of Wales Act 1998[5]
John
Marek
The Deputy Presiding Officer of the Assembly
9th July
2002
EXPLANATORY NOTE
(This note is not
part of the Regulations)
Part III of and Schedule 9 to
the Countryside and Rights of Way Act 2000 ("the 2000 Act") substitutes
new sections 28 to 28R in the Wildlife and Countryside Act 1981 ("the 1981
Act"). Part III of and Schedule 11 to the 2000 Act makes transitional
provisions in relation to the 1981 Act.
These Regulations make
procedural provision, in relation to Wales, for appeals to the National
Assembly for Wales by the owners or occupiers of sites of special
scientific interest under -
(a) section 28F(1) of the 1981 Act, against a refusal by the
Countryside Council for Wales ("the Council"), to consent to certain
operations on the land, against the conditions attached to such a
consent, against the modification or withdrawal of such a consent, or
against the failure of the Council to determine an application for
consent within the period prescribed by the 1981 Act;
(b) section
28(L)(1) of the 1981 Act, against a management notice served by the
Council;
(c) paragraph 11(1) of Schedule 11 to the 2000 Act,
against a stop notice served by the Council in respect of operations on
the land.
These Regulations also prescribe the time within which an appeal under
section 28(L)(1) of the 1981 Act must be brought, namely that it must be
received by the National Assembly within the period of 2 months beginning
with the date of the management notice to which it relates unless a longer
period has been agreed by the Council and the appellant.
Notes:
[1] 1981 c.69; section 28 was replaced
by sections 28 to 28R under section 75(1) of and Schedule 9, paragraph 1
to the Countryside and Rights of Way Act 2000 (c.37).back
[2] 2000 c.37.back
[3] The powers of the Secretary of State in so far as
exercisable in relation to Wales have been transferred to the National
Assembly for Wales: see Article 2 of and Schedule 1 to the National
Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672), as
amended by section 99 of the Countryside and Rights of Way Act 2000.back
[4] 1984 c.12.back
[5] 1998 c.38.back
Cymraeg
(Welsh)
ISBN 0 11090546 6
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