THE NITRATE VULNERABLE ZONES (ADDITIONAL DESIGNATIONS) (ENGLAND) (No 2) REGULATIONS 2002
The Appeal Procedure Guidance
Contents
Preface: Process Flow Chart
Guidance on the appeal procedure
Introduction
The effect of making an appeal
Who decides your appeal
How to make an appeal
Time limit for making an appeal
Action on receipt of an appeal
Written Representations
Hearings
Decisions on Appeals
After the decision
Other Points
Withdrawal of appeals
Confidentiality
Assessors
Costs
Complaints against the decision
Complaints against the Planning Inspectorate
Guidance on the Appeal Procedure
For appeals in Wales, please forward appeal documents to or contact: The
Planning Inspectorate, Crown Buildings, Cathay’s Park, Cardiff, CF10
3NQ, or telephone 029 2082 3857.
Introduction
1. This Guidance contains information about the procedure for appealing
against an adverse proposed decision on a review by ADAS Consulting
Ltd. (ADAS) following your objection to your land being included in a
designated Nitrate Vulnerable Zone (NVZ). ADAS has been appointed by
the Secretary of State for Environment, Food and Rural Affairs (Defra) to
undertake such reviews under the Regulations below. The Guidance
explains the legislative background to an appeal and highlights some of the
specific issues which may be the subject of an appeal. The information it
contains is believed to be correct at the time of publication and relates to
procedures in England only. This Guidance has no legal status but relies
on The Nitrate Vulnerable Zones (Additional Designations)(England) (No
2) Regulations 2002.
2. The appeal procedure is only intended for farmers who feel that their land
has been wrongly included within a NVZ due to an error in the application
of the methodology used by Defra to identify NVZs.
3. The Planning Inspectorate cannot deal with:
- appeals other than those objecting to a proposed decision made by
ADAS; - requests for land currently outside an NVZ to be included;
- queries initiated by any person other than the owner/occupier of the
land in question; - complaints against the methodology itself.
The effect of making an appeal
4. Where an appeal is lodged against the proposed decision made by ADAS,
this proposed decision will not come into effect until the appeal has been
decided or withdrawn.
Who decides your appeal
5. Appeals are decided by an Inspector appointed by the Planning
Inspectorate, which is an Executive Agency of the Department for Communities and Local Government. Further information about the Planning Inspectorate can be found on
our website: www.planning-inspectorate.gov.uk. Inspectors have been
given authority by Defra to determine NVZ appeals.
How to make and Appeal
6. An appeal should be made in writing and sent to the ADAS office in
Wolverhampton that issued the proposed decision. No charge is made for
lodging an appeal.
7. The notice of appeal must explain why you consider the ADAS proposed
decision is wrong and also include any documents to support your case.
When submitting an appeal please ensure that your full details, including
your address and telephone number are included.
Time limit for making an appeal
8. The appeal should be sent to ADAS within 28 days of the date of ADAS’
proposed decision. Appeals made outside the time limit are accepted only
in very exceptional circumstances.
Action on receipt of an appeal
9. When an appeal is received, ADAS will forward the notice of appeal and
accompanying documents, together with a copy of their proposed decision
to the Planning Inspectorate. The Inspectorate will check the appeal to see
if it is valid and then if everything is in order, write to you to let you know
the appeal is valid and ask whether you wish to proceed by way of written
representations or be heard by an Inspector at a hearing.
10. If you requested that the appeal proceed by way of written representations,
we will then ask ADAS if they agree to this or whether they wish to
proceed by a hearing. When the procedure has been confirmed, the
Inspectorate will advise you and ADAS of the start date for the appeal.
Written Representations
11. Appeals are dealt with in the spirit of the Town and Country Planning
(Appeals)(Written Representations Procedure)(England) Regulations 2000,
SI 2000, No 1628.
12. The written method of dealing with an appeal is an exchange of statements
between you and ADAS, followed by a visit to your land by the Inspector
who will determine the appeal. This is normally the quickest, simplest and
cheapest way of deciding an appeal.
13. You and ADAS will be asked to send 2 copies of the appeal statements to
the Inspectorate within 6 weeks of the start date. We will send a copy of
ADAS’ statement to you and likewise a copy of your statement to ADAS.
You and ADAS then have the opportunity to comment on all the
representations within 9 weeks of the start date.
14. Any representations made to the Inspectorate by interested parties will be
copied to you and ADAS and you will be given the opportunity to
comment on these representations.
15. Shortly after the final date for representations (at 9 weeks), an Inspector
will visit your land. It is normal practice for the Inspector to be
accompanied at the site visit by a representative of both parties in order to
gain access to the land. However, the Inspector will not allow any
discussion about the merits of the case and will restrict questions to the
physical features of the land itself.
Hearings
16. Hearings are conducted in the spirit of the Town and Country Planning
(Hearings Procedure)(England) Rules 2000, SI 2000 NO 1626. A hearing
allows the parties to present their case orally and it usually takes the form
of a discussion led by the Inspector, followed by a visit to the land in question. If the Inspector so decides, the discussion may be continued on
the land in question.
17. Either party may request a hearing or the Inspectorate may decide a hearing
is needed if comparatively complex issues are involved. Hearings will
follow the procedure set out in Circular 05/2000. The timetable for
submission of evidence is the same as that for written representations ie
within 6 and 9 weeks of the start date. Local residents and other interested
parties are allowed to attend a hearing and at the discretion of the Inspector,
give their views. The Inspector has the powers to hold part or all of the
hearing in private, but it is expected that this will happen only rarely, for
example in cases involving commercial confidentiality or national security.
18. However, there may be occasions when particularly complex issues are
raised or give rise to considerable controversy where a more formal
procedure would be appropriate. In such cases the hearing would be more
akin to a public inquiry including any appropriate pre-hearing procedures.
The Inspector will decide which procedure is to be adopted at the hearing
after considering all the material on the file.
19. You and ADAS will be asked to send 2 copies of your hearing statement to
the Inspectorate within 6 weeks of the start date. We will send you a copy
of ADAS’ statement and your statement will be copied to ADAS. If any
interested parties have made comments we will also send you copies. You
and ADAS will then have the opportunity to make any further
representations within 9 weeks of the start date.
Decisions on Appeals
20. The Inspector’s decision will be sent to you and ADAS at the same time.
Copies will be sent to interested parties where one has been requested,
unless confidentiality is involved. The decision will include the important
and relevant points that give effect to the Inspector’s decision.
After the decision
21. A copy of the Inspector’s decision will also be sent to the Secretary of State
for Defra but she has no power to amend it. The decision is final and there
is no further right of appeal. (See paragraph 31.)
a) If your appeal has been allowed
The NVZ boundary will be revised accordingly and will be included
in the next amendment to the current Regulations This amendment
will take place when all the appeals have been decided. In the interim,
details of the boundary amendment will be forwarded to the
Environment Agency. The Agency is responsible for enforcing the
Action Programme measures within NVZs and has agreed to suspend
enforcement activity in any area removed by the revised boundary.
b) If your appeal has been dismissed
You will need to comply fully with the NVZ Action Programme
measures in respect of the agricultural land in question. Farmers
failing to adhere to the Action Programme measures may be subject to
enforcement action by the Environment Agency, and non-compliance
could result in prosecution. The maximum fine in the Crown Court on
conviction for an offence under the Regulations is £20,000.
22. Copies of decision letters are available to interested persons at a small
charge. These may be obtained from:
The Planning Inspectorate
Decision Letter Library
Room 3/15B Eagle Wing
Temple Quay house
2 The Square
Temple Quay
Bristol BS1 6PN
Tel: 0117 372 8759
Fax : 0117 372 8372
Other Points
Withdrawal of appeals
23. An appellant may withdraw the appeal at any time, as long as written
notification is sent to the Planning Inspectorate and a copy sent to ADAS.
Confidentiality
24. In cases where the appellant considers that matters of confidentiality will
arise during the appeal, the Inspector will decide the appeal but deal with
these points in confidence.
Assessors
25. Exceptionally, in some hearing cases an assessor may be appointed by the
Planning Inspectorate to advise the Inspector on specific technical issues.
The assessor will write a report to the Inspector, and the contents of which
will be made public (unless issues of confidentiality are involved) when the
decision is issued.
26. Where an assessor is appointed, everyone entitled to appear at the hearing
will be notified of the assessor’s name and the matters on which he or she
is to advise the Inspector.
Costs
27. You and ADAS normally have to pay your own expenses for an appeal.
However, under Regulation 7, if either party considers that the cost of an
appeal is increased because of the unreasonable behaviour of the other
party, an application for costs can be made to the Inspector appointed to
determine the appeal.
28. In hearing cases, an application for costs should be made at the hearing and
normally will be heard towards the end of proceedings. For appeals being
decided by written representations, a written application for costs should be
made to the Planning Inspectorate before the date the Inspector is to visit
the site. The Inspector will give the other party the opportunity to make
representations on the costs application before making a decision on it.
29. If the Inspector considers that the appeal has been lodged without merit or
is of the opinion that the appeal costs have increased because of
unreasonable behaviour of one or both of the parties, the Inspector may
order the party at fault to pay the whole or part of the other party’s costs.
Complaints against the Decision
30. Once the Inspector’s decision letter has been sent to you, the decision is
final. The Inspector can no longer consider further representations or make
any further comments on the merits or otherwise of the case.
31. The decision can only be challenged in the courts by judicial review. An
application for judicial review must be made within 6 weeks of the
Inspector’s decision. If the appeal is quashed following the proceedings
before any court, the main parties will be notified and asked to provide any
further representations within 28 days. The Secretary of State may then ask
for a hearing to be held or re-opened and the appeal will be re-determined.
Complaints about the Planning Inspectorate
32. The letter acknowledging receipt of the appeal will give the name of the
Case Officer. The Case Officer should be the first person contacted with
the queries or complaints about the handling of the appeal. If this is not
satisfactory, the Complaints Officer can be contacted at the following
address:
The Complaints Officer
The Planning Inspectorate
Room 4/09 Kite Wing
Temple Quay House
2 The Square
Temple Quay
Bristol, BS1 6PN Tel 0117 372 8334
