Commentary on Sections Part 3 – Dealing With Tip Instability and Threats to Tip Stability Overview of Chapter Section 39 – Determination of appeals
159.Subsection (1) provides that an application made under section 38 to vary or cancel a notice issued under section 35 is to be determined by a person appointed by the Welsh Ministers (an “appointed person”). Section 74(4)(a) requires the Welsh Ministers to give guidance to persons appointed to determine applications under section 38. Section 74(5) requires that those persons must have regard to that guidance when exercising their functions.
160.In practice, it is intended that most applications under section 38 and 43 will be determined by Planning and Environment Decisions Wales (PEDW). PEDW carry out casework relating to the development and use of land in the public interest. They deal with, amongst other things, planning and enforcement appeals, Strategic and Local Development Plans and environment appeals. They currently have a team of 20 inspectors who make appeal decisions, supported by 25 support staff.
161.Subsection (2) allows the appointed person to vary or cancel the notice if the appointed person is satisfied that any of the grounds on which the application was made have been proven. Where a notice is varied, subsection (3) provides that the notice, and any copy of it given under section 37, is to be treated as always having effect as varied.
162.Subsection (4) provides that where an application is made under section 38 and it is not withdrawn, the period specified in the notice as the period within which operations must be completed does not expire before the application is determined. This means that the person to whom the notice has been given cannot be guilty of an offence under section 41 for failing to comply with the notice whilst the determination of the application is pending.
163.Subsection (5) provides that the appointed person may extend the time specified in the section 35 notice for completing operations. This power can be exercised whether the grounds for an application are made out or not. It may, for example, be used if, by the time an appeal is determined, the deadline for completion of the operations specified in the notice is imminent.
164.Subsections (6) and (7) set out the steps that the Welsh Ministers must take once an application under this section has been determined.