Guidance

Sites of special scientific interest: appeal a refusal or change of consent

Find out when and how to appeal if Natural England refuses you consent to carry out an activity on a site of special scientific interest.

Natural England can refuse consent or grant consent with conditions if they think your proposed activity, such as ploughing or removing plants, could damage a site of special scientific interest (SSSI). They can also change or withdraw a consent they previously gave you.

Check if you need permission for an activity and find out how to apply.

This guidance applies to England only.

Natural England will send you a letter explaining their reasons if they:

  • refuse consent for an activity you’ve proposed
  • give consent but with specific conditions - such a time limit for the consent
  • withdraw or change a consent they previously gave you

The letter will also tell you how you can appeal and may contain other information such as details of payments Natural England will make if you carry out the work.

Appeal deadlines

You have 2 months, from the date of Natural England’s notice, in which to appeal to the Secretary of State.

If you haven’t received a decision from Natural England within 4 months of the date you sent them your request for consent, you must appeal within the 2 months following those 4 months.

Who can appeal

You can appeal as an SSSI owner or occupier if:

  • you’ve been refused consent for works or an activity
  • you don’t agree to the conditions attached to a consent - eg a time limit
  • Natural England haven’t given you their decision within 4 months of your application (which you can treat as a refusal of consent)
  • a previous consent has been changed or withdrawn

You’ll need to explain why you disagree with Natural England refusing you consent. The reasons you give are known as your ‘grounds of appeal’.

You’ll be given a chance to supply supporting statements, 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

You may be able to avoid an appeal by discussing your reasons for wanting to carry out the activity with your Natural England SSSI adviser (particularly if you didn’t do this before you applied for consent). 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 to avoid the need for a formal appeal. However, you must agree any extension in writing before the 2-month appeal period ends. If you do end up appealing you’ll need to send a copy of this agreement to Defra along with your appeal.

Choose how to appeal

When you submit your notice of appeal 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

The Secretary of State will consider your choice but may decide the appeal 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.

If any party asks to be heard in connection with the appeal there must be a hearing or inquiry.

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

First steps for all appeals

The Secretary of State can change any deadline if they believe it necessary.

Your appeal will start with these steps whichever procedure it goes through.

  1. You send Defra a notice of appeal including all of the required information and documents.
  2. Defra reviews your appeal notice and, as long as it decides it’s valid, the Secretary of State forwards it to Natural England who have 2 weeks to say which procedure they would like the appeal to follow. Within 4 weeks of the date the Secretary of State wrote to Natural England, the Secretary of State will write to tell all parties the procedure the appeal will follow. The date of this letter is the start date of your appeal.
  3. Within 2 weeks of the start date Natural England gives notice of the appeal to any interested parties (giving them 4 weeks to submit representations), and tells you and Defra who they’ve contacted. You’ll get a copy of any representations later on.
  4. Within 6 weeks of the start date you and Natural England send Defra your statement of case and interested parties send Defra their representations.
  5. Defra then sends you Natural England’s statement, and sends yours to them if you’ve provided one.

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. You’ll still usually have to wait at least 4 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, you and Natural England send Defra any comments.
  2. Defra shares each parties’ comments.
  3. Defra shares any representations made (including by interested parties) and you and Natural England have 3 weeks from receiving them to make any comments.
  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 the information you send 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. It’s less formal than an inquiry - eg witnesses aren’t cross-examined - and it’s 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 and Natural England send Defra any comments.
  3. Defra shares each parties’ comments.
  4. At least 4 weeks before the hearing, you and Natural England 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 the hearing.
  7. The inspector reports to the 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. It usually takes longer and costs more than appealing by written representations or by hearing. However, Defra may decide your appeal must go through 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 hearing date unless everyone agrees to hold it at an earlier date.
  2. Within 3 weeks of exchange of statements and representations, you and Natural England send Defra any comments.
  3. Defra shares each parties’ comments.
  4. At least 4 weeks before the inquiry, you and Natural England submit any proofs of evidence and written statements. Natural England must also submit a statement of common ground they’ve prepared with you.
  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. Inspector visits the site during or after inquiry.
  8. Inspector reports to the 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 circumstances and where Defra anticipates an inquiry could last for more than 8 days, they’ll arrange a pre-inquiry meeting.

The meeting will be used to:

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

Request your appeal

Write to Defra to request an appeal.

You can use the appeal form if you want to. The form sets out the information you need to provide, like your ‘grounds of appeal’.

You’ll also need to choose an appeal procedure.

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 for your appeal notice to be valid:

  • 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
  • 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, including the date of each document

Send 1 copy of each piece of information if you apply by email and 2 copies if you apply by post.

Documents to include

You must send Defra the following documents when you appeal:

  • the notice Natural England sent you when your land was designated as an SSSI
  • the letter Natural England sent to tell you they’d refused consent, including the reasons they gave you and any maps and plans they sent
  • 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.

Send 1 copy of each document if you apply by email and 2 copies if you apply by post.

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 explain all of your objections, 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 and Natural England 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 Natural England 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 before an inquiry if you’re inviting witnesses. 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 before the inquiry. Defra will then share Natural England’s proofs with you. You can choose to 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.

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 an ecological consultant or a solicitor. Whatever you choose to do, the inspector will 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 usual order is then:

  • you give your views
  • Natural England give their views
  • other parties can comment

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 at hearings and inquiries. 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 face a fine or imprisonment.

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 and Natural England 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 both 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 and Natural England can also request a change.

If you’re appealing by written representations, but either 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 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 to reach agreement, 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 Natural England and then write to your Defra case officer, who will ask Natural England for their comments. Natural England 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 and Natural England 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 Secretary of State will consider the inspector’s report and 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’ll include a summary of the Secretary of State’s conclusions, and you’ll get a copy of the inspector’s report. Natural England and 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 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’ if you go to a hearing or inquiry and one party’s unreasonable behaviour - eg late introduction of evidence - leads to unnecessary expense.

You may also be awarded costs if you’re appealing the withdrawal or modification of consent because you’re defending rights set out in an earlier consent, a bit like appealing a compulsory purchase order. In this scenario you’re most likely to be awarded costs if your appeal is upheld - Natural England doesn’t have to be judged to have behaved unreasonably.

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 and organisations such as wildfowling clubs and the Tenant Farmers Association.

Apply for costs

Ask for costs to be awarded at a hearing or inquiry if you believe Natural England has caused you unnecessary expense. You can discuss your intention with Natural England before the day but you don’t have to.

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

How costs decisions are made

Based on the inspector’s recommendations and parties’ written representations, the Secretary of State will decide whether to award you 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