Guidance

Sites of special scientific interest: appeal a management notice

Find out how to appeal if Natural England serves you with a management notice for works on a site of special scientific interest (SSSI).

Natural England can serve you with a management notice as the owner or occupier of an SSSI if you’ve not carried out works they previously requested in a management scheme and the the features of the land are being inadequately conserved and restored. They’ll only do this if they’ve been unable to reach agreement with you about how to manage the land.

This guidance applies to England only.

Natural England will post or email you (and any other owners or occupiers) a legal notice, or deliver it in person. This management notice will tell you:

  • which management requirements it believes you’ve not carried out
  • which features of special interest are being inadequately conserved or restored
  • timescales in which you must carry out the management requirements
  • how to appeal if you disagree with the notice

You can still get any payment Natural England offered you for carrying out works requested in the earlier management scheme.

Appeal deadlines and enforcement

Unless you agree an extension you have 2 months, from the date of Natural England’s notice, in which to appeal to the Secretary of State.

If you’re granted an appeal, Natural England won’t enforce the management notice until your appeal is decided.

Natural England may enforce a management notice if any requirements haven’t been met by deadlines in the notice, and as long as the appeal period has ended and no appeal is in progress.

You’ll be breaking the law if you don’t carry out works Natural England has specified. They could:

  • send you a notice to comply - you could face prosecution and an unlimited fine if you don’t
  • enter your land and carry out any work or enforce requirements - you’ll have to pay for the work
  • get a compulsory purchase to force you to sell your land to them (a last resort)

If you lose an appeal (the management notice is ‘affirmed’) and you’ve not met the requirements in the time given, Natural England can take the same 3 steps.

Who can appeal

You can appeal if you’ve been served a management notice and you disagree with the requirements. The reasons you give are known as your ‘grounds of appeal’.

You can also appeal if you think another owner or occupier should be responsible for all or some of the requirements of the management notice and associated costs, but you can’t appeal against the general financial terms offered by Natural England. In this case you’ll need to serve a copy of your appeal notice on each person you’ve named.

If you disagree with the payment Natural England offers you to carry out works in a management scheme or notice, speak to your SSSI adviser and, if needed and Natural England agrees to this, to the Centre for Effective Dispute Resolution.

Other parties you name in your appeal as responsible for works or costs are sometimes known as section 28L(2) parties.

You’ll need to explain why you disagree with the reasons Natural England gave for serving you with the management notice, or why someone else is responsible for the work or costs.

You’ll be able to supply supporting evidence, eg expert views, later on. However, if you don’t at least mention all of your main reasons when you request an appeal, it could lengthen the process and you might have to pay costs.

Before you appeal

Discuss your objections to the management notice with your SSSI adviser (particularly if you’ve not fully discussed the management scheme with them). If you can’t reach agreement you could use a mediator - this could be arranged by the Centre for Effective Dispute Resolution.

Contact Natural England if you don’t know your SSSI adviser.

You may be able to agree an extension of the appeal deadline with Natural England, eg if you’re working with them to reach an agreement to avoid a formal appeal. Agree the extension in writing before the end of 2-months from the date on the management notice. If you do end up appealing you’ll need to send a copy of the agreement to Defra, along with your appeal information.

Choose how to appeal

When you submit your notice of appeal and supporting information you’ll need to say which of the following procedures you’d like to follow:

  • appeal by written representations
  • appeal by hearing
  • appeal by inquiry

Defra will consider your choice but may decide the inquiry should follow a different procedure if it believes it’s more appropriate to the case. For example, if your case is very complex, of great public interest or where an inspector may need to cross-examine several witnesses, Defra is most likely to choose an inquiry even if you want to appeal by written representations. However, if any party wants either a hearing or an inquiry Defra must choose between these 2 options.

Whichever procedure your appeal goes through, an inspector from the Planning Inspectorate will consider your case and write a report for the Secretary of State based on the evidence.

First steps for all appeals

Your appeal will usually start in the same way whichever procedure it goes through.

The Secretary of State can change any deadline if they feel it’s necessary.

  1. You send Defra a notice of appeal including all of the required information and documents.
  2. Defra reviews your appeal notice. As long as it decides your notice of appeal is valid and you’ve submitted all the information and documents needed by the 2-month deadline, the Secretary of State will forward copies to Natural England and any other named party as soon as possible, explaining the implications of the notice.
  3. Within 2 weeks of receiving your appeal notice and information, Natural England and any other named party tell Defra whether they’d like to be heard - ie by hearing or inquiry.
  4. Defra writes to all parties to confirm which appeal procedure they’ve decided is appropriate, at least 2 weeks after notifying Natural England and any other parties. The date on this letter will be your appeal start date, which later deadlines relate to.
  5. Within 2 weeks of your appeal start date, Natural England must give notice of the appeal to any interested parties (these parties will have 4 weeks to send Defra their ‘written representations’ - their views on the case). Natural England will also tell you, Defra and any named party who they’ve contacted, and share any representations received so far.
  6. Within 6 weeks of the start date you, Natural England and any named party must send Defra your statements of case, and any interested parties must send Defra written representations.
  7. Defra shares each party’s statements and any representations as soon as possible.

The next steps vary depending on whether you appeal by written representations, hearing or inquiry.

Appeal by written representations

This is likely to be cheapest and quickest. It’s still likely to take at least 8 months to get a decision, but if you appeal by hearing or inquiry it could take a year or longer.

You won’t need to attend any meeting and costs can’t be awarded against you.

If your appeal involves complex ecological, legal or other matters, or if there are likely to be many interested parties, Defra may decide that a hearing or inquiry is more suitable.

An appeal by written representations will go through the standard steps for all appeals. It will then go through these steps.

  1. Within 3 weeks of exchange of statements and representations, you, Natural England and any named party send Defra any comments.
  2. Defra shares each party’s comments.
  3. Within 3 weeks of the date on the notice sent with the representations, you, Natural England and any named party may make comments on the representations. These will be shared by Defra
  4. An inspector from the Planning Inspectorate considers your case and may visit your site.
  5. The inspector reports to the Secretary of State.
  6. The Secretary of State decides on the appeal and Defra sends you and other parties a decision notice and report.

If you send information to Defra once a deadline has passed or that doesn’t relate to grounds given in your initial appeal it may not be considered.

Appeal by hearing

A hearing is a discussion of your appeal led by an inspector from the Planning Inspectorate. It’s less formal than an inquiry, eg witnesses aren’t cross-examined - and is usually quicker and cheaper.

An appeal by hearing will go through the standard steps for all appeals as well as these steps.

  1. The Secretary of State sets a date for the hearing. You’ll be given at least 6 weeks’ notice of the confirmed hearing date unless everyone agrees to hold it at an earlier date.
  2. Within 3 weeks of exchange of statements and representations, you, Natural England and any named party send Defra any comments.
  3. Defra shares each party’s comments.
  4. At least 4 weeks before hearing, you and Natural England and any named party submit any witness statements or statement of common ground.
  5. At least 3 weeks before the hearing, Defra puts notice of appeal in the local press.
  6. Hearing takes place. The inspector visits the site during or after hearing.
  7. The inspector reports to Secretary of State.
  8. The Secretary of State decides on the appeal and Defra sends you and other parties a decision notice and report.

In rare cases an inspector could adjourn a hearing if they decide the case would be better heard at an inquiry. Defra would then need to re-advertise the appeal as an inquiry.

Appeal by inquiry

An inquiry is also led by an inspector from the Planning Inspectorate, but usually takes longer and is more expensive than appealing by written representations or by hearing. However, Defra may decide to hold an inquiry if matters are complex and there’s public interest in the case.

An appeal by inquiry will go through the standard steps for all appeals as well as these steps.

  1. Planning Inspectorate suggests a date for the hearing. You’ll be given at least 6 weeks’ notice of the confirmed date unless everyone agrees to an earlier date.
  2. Within 3 weeks of exchange of statements and representations, you, Natural England and any named party send Defra any comments.
  3. Defra shares each parties’ comments.
  4. At least 4 weeks before inquiry, you, Natural England and any named party must submit any proofs of evidence and written statements. Natural England must submit a statement of common ground they’ve prepared with you and any named party.
  5. At this stage the inspector could hold a pre-inquiry meeting (you’ll get at least 2 weeks’ notice).
  6. At least 3 weeks before the inquiry, Defra puts notice of appeal in local press.
  7. Inquiry takes place. The inspector visits the site during or after inquiry.
  8. The inspector reports to Secretary of State.
  9. The Secretary of State decides on the appeal and Defra sends you and other parties a decision notice and report.

Pre-inquiry meeting

In exceptional complex cases and where Defra anticipates an inquiry could last for more than 8 days, the inspector could decide to hold a pre-inquiry meeting.

The meeting will be used to:

  • clarify the grounds of appeal
  • help you, Natural England and any named party prepare for the inquiry
  • agree an approximate timetable for the inquiry

Request your appeal

Write to Defra to request an appeal - this is known as submitting an appeal notice.

You can use the management notice appeal form if you want to.

Email your appeal request to defra.helpline@defra.gsi.gov.uk or post it to Defra.

Casework Management Unit
Defra
Horizon House
Deanery Road
Bristol
BS1 5AH

Information to include

You must send Defra the following information when you appeal:

  • your name, address and phone number
  • your email address (if you have one)
  • the name, address, phone number, and email address (if available), of any agent acting on your behalf
  • a statement of your grounds of appeal
  • full details of other parties if you’re appealing on the grounds that another owner or occupier is responsible for carrying out all or part of the work or requirements specified in the notice, or should pay all or part of the costs
  • a statement indicating how you’d like to appeal - ie by written representations, hearing or inquiry
  • a list of all the documents you’re providing form the next list, including the date of each document

Documents to include

You must send Defra the following documents when you appeal:

  • a copy of the management notice Natural England sent you, including any maps and plans they supplied
  • any correspondence between you and Natural England that you intend to rely upon
  • a copy of your agreement with Natural England to extend the deadline for appeal beyond 2 months, if you have one and you’re appealing after this time (our appeal notice must be received within the agreed extended time)

If any document you supply refers to any other document (such as a map, photograph or report, whether published or not) you must also supply a copy of that document.

Number of copies

The number of copies of each piece of information or document you’ll need to send to Defra depends on the way you request your appeal.

How you’re requesting your appeal Information list (each item) Documents list (each item)
By email 1 copy 1 copy
By post 2 copies 1 copy
By post, and you’re naming another owner or occupier in your appeal 3 copies 2 copies

Keep a copy of all the documents you send.

Any documents you submit will be shared by the agencies and parties involved in your appeal and made available to the public. Don’t include personal information unless you’re happy for it to be seen - and if you include the details of other people, check they’re happy for you to do so first.

Supporting evidence

Statement of case

Unless your initial notice of appeal, including your grounds of appeal, fully explains all of your objections to the management notice, you’ll need to write a ‘statement of case’ too. You’re most likely to need a statement of case if your case is complex enough to merit and inquiry but you may also decide you need one if you appeal another way.

Make sure Defra receives your statement of case no later than 6 weeks after the official start date of your appeal.

It’s up to you how you structure your statement of case, but if you plan to have witnesses you’ll need to include a list of the documents they’ll refer to.

Statement of common ground

A statement of common ground lists the matters that you, Natural England and any other named party agree on. You must have one if you appeal by inquiry and you can choose to have one if you appeal by hearing. A statement of common ground helps the inspector focus only on the points over which you and the other parties disagree, which can save time and costs.

You should prepare the statement with Natural England but they’re responsible for submitting it (at least 4 weeks before an inquiry).

The statement should include information such as:

  • a description of the site
  • details of any agreements you’ve reached
  • the main issues over which you still disagree

Witness statements

You can ask expert witnesses to speak on your behalf if you apply by hearing or inquiry. If you plan to do this, you need to state it in your statement of case.

You must send witness statements to Defra at least 4 weeks in advance if you’re inviting witnesses to an inquiry. You can also choose to do so for a hearing - eg if you think they’ll make the arguments clearer to the inspector.

The statements can be a summary rather than a word-for-word account of what will be said on the day.

Proofs of evidence

If you’ll give evidence or call expert witnesses at an inquiry you must submit written evidence to support your claims (known as proofs) to Defra at least 4 weeks in advance. Defra will then share Natural England’s proofs and those of any other party with you. You can also choose submit proofs of evidence for a hearing.

Include supporting documents like reports, maps and photographs. Focus on your objections - don’t include evidence on matters that are not disputed by Natural England. You may need to cross-reference your objections and supporting evidence so the relationship is clear.

If a proof is longer than 1,500 words you should provide a summary of no more than 1,000 words. The inspector may decide that parties will only read out their summaries, but any decision will still be based upon consideration of all of the information given in the proof of evidence.

At a hearing or inquiry, Natural England will usually be represented by a lawyer, accompanied by members of Natural England’s local team and technical experts.

It’s up to you if you represent yourself or hire a specialist such as a an ecological consultant or a solicitor. Whatever you choose to do, the inspector should make sure you have full opportunity to state your case and reply to others.

What happens at hearings and inquiries

The inspector is in charge and will begin by:

  • explaining how the hearing or inquiry will be run
  • summarising the issues to be discussed and clarified

You’ll also have a chance to raise issues.

The inspector will decide on the order of opening statements and evidence but the usual order is:

  • you or your representative give your opening views
  • any named party gives its opening views
  • Natural England gives its opening views
  • other interested parties can comment - they can also make statements if they submitted a written representation

After the opening statements the usual order is:

  • Natural England presents its case and witnesses - you and any named party can ask questions
  • you present your case and witnesses
  • any named party presents its case and witnesses
  • any other interested parties comment

At inquiries only, the parties and witnesses can be cross-examined after presenting their evidence.

You, Natural England and any named party will then make closing statements - you’ll usually go first. You should summarise your main points - you can’t introduce new arguments at this stage.

Who attends

Hearings and inquiries are usually held in public. However, your appeal can be held partly or wholly in private if you request this and the inspector agrees on the Secretary of State’s behalf.

Other interested parties who’ve made written representations can speak. People who’ve not made representations don’t have a right to speak but the inspector can choose to let them.

The inspector can require any person to attend an inquiry, at a time and place stated in a summons, to give evidence or to produce documents. Expenses will be reimbursed. Anyone who refuses or deliberately fails to attend, or who deliberately alters, suppresses, conceals, destroys, or refuses to produce any document they’re required to could be fined or imprisoned.

Site visits by inspectors

Whichever way you appeal it’s likely the inspector will visit the site.

If you appeal by written representation the Planning Inspectorate will let you, Natural England and any other named party know when the visit will take place. You can attend the site visit.

If you appeal by hearing or inquiry the inspector will usually visit while it takes place and invite all parties to join them.

The inspector may ask about features of the site, but if any party tries to raise points of evidence the inspector could stop the visit.

Changes to procedure

Defra can change procedure at any time up until an inquiry or hearing opens. It might do this if it decides an inquiry is more appropriate than a hearing, for example. You, Natural England and any named party can also request a change.

If you’re appealing by written representations, but any party thinks the case merits a hearing or inquiry, you can request this as long as the inspector is yet to report. Write to the Defra case officer.

Changes are likely to lengthen the appeal process.

Withdrawing your appeal

You can withdraw your appeal at any point up until the Secretary of State makes a decision on the case.

Call your Defra case officer as soon as soon as you decide to withdraw your appeal. Write to them to confirm your decision. You must also tell Natural England as soon as possible.

If you withdraw your appeal after Defra has arranged a hearing or inquiry and Natural England or another interested party can show you acted unreasonably, you may have to pay costs.

Suspending an appeal

If you can show you’re working with Natural England and any named parties to reach agreement so you can withdraw your appeal, Defra might agree to suspend your appeal - also known as holding an appeal in abeyance. You might want to do this if new information is available that could mean you can reach agreement.

Defra will only give you an abeyance of more than 3 months in exceptional circumstances.

If you want an appeal to be held in abeyance, discuss this with the other parties and then write to your Defra case officer, who will ask the other parties for their comments. Natural England and any named party may also request an appeal be held in abeyance, in which case you’ll be asked for your comments.

Once your appeal is in abeyance, your Defra case officer will ask you, Natural England and any named party for updates. Defra will take the appeal out of abeyance if it thinks your discussions are not going to resolve the issues.

Postponing a hearing or inquiry

Defra will only postpone in exceptional circumstances and if there’s time to tell everyone involved. For example Defra could agree to postpone if you and Natural England find new common ground on the issues or if a crucial witness can’t attend.

Speak to your Defra case officer if you need a postponement. A postponement is likely to significantly delay your appeal decision.

Decisions

The inspector will write a report for the Secretary of State. The inspector will say whether they think the management notice should be quashed (cancelled), modified (changed), or affirmed (upheld), but the Secretary of State will make the final decision.

If you’ve appealed on the grounds that another party is responsible for all or part of the work of costs the inspector could recommend that the management notice is changed to impose the requirements (or some of them) on that party, or that a payment must be made by that party.

The Secretary of State will consider the inspector’s report and their recommendations alongside the duty:

  • to take reasonable steps to further conserve and enhance SSSIs (Wildlife and Countryside Act 1981 as amended)
  • to have regard to the desirability of conserving the natural beauty and amenity of the countryside (Countryside Act 1968)
  • to have regard to the needs of agriculture and forestry, and to the economic and social interests of rural areas (Countryside Act 1968)
  • to comply with the requirements of the European Habitats and Birds Directives when a SSSI is also a Special Protection Area (SPA) or Special Area of Conservation (SAC) (or a candidate SAC, site of community importance, potential SPA or Ramsar site), (Conservation of Habitats and Species Regulations 2010 as amended)

How and when you’ll get a decision

You’ll get a decision in writing - it will include a summary of the Secretary of State’s conclusions, and you’ll get a copy of the inspector’s report. Natural England and any interested parties will also get a copy of the decision and report.

If you appeal by written representations it’s likely to take at least 4 months to get a decision. Hearings and inquiries take longer, but Defra will normally conclude an appeal within 9 months to a year of the start date.

Costs

There’s no fee for making an appeal but you’ll normally cover your own expenses - eg for legal fees, travel and admin.

The Secretary of State could award you ‘costs’ to cover your expenses if you go to a hearing or inquiry and one party’s unreasonable behaviour - eg late introduction of evidence - leads to unnecessary expense.

Natural England and interested parties could apply for costs to be awarded against you if you do something that causes unnecessary expense - eg you withdraw your appeal without giving enough notice. Other parties could include ecological specialists, organisations such as wildfowling clubs, the Tenant Farmers Association and the local parish council.

Apply for costs

You can ask for costs to be awarded at a hearing or inquiry if you believe Natural England or a named party has caused you unnecessary expense. You can tell other parties you intend to do this before the day but you don’t have to.

Where a party wants to apply for costs because an appeal is withdrawn, applications should be made to the Secretary of State within 4 weeks of the notification of withdrawal. Late applications are rarely considered.

How costs decisions are made

If an application for costs is made at a hearing or inquiry, the inspector will invite the party against whom the application has been made to respond. The inspector will then report in writing to the Secretary of State. The Secretary of State will also invite written representations from the parties involved

Based on the inspector’s recommendations and parties’ written representations, the Secretary of State will decide whether to award costs and if so, whether they should be full or partial. They’ll do this when they make their decision on your appeal. You and other parties will then have to agree on the amount of costs. If you can’t agree, Defra will give you details of an independent assessment process.

Questions about your appeal

If you have questions about your appeal you can contact Defra.

Defra Helpline

Seacole Building
2 Marsham Street

London
SW1P 4DF

The quickest way to get a response is to call our Helpline which is open Monday to Friday 8:30am to 5:00pm (find out about call charges at www.gov.uk/call-charges). Alternatively you can email us, or write to us at the postal address given above. We aim to reply to emails or letters within fifteen working days.

Published 2 June 2015