Joint Committee on Statutory Instruments Fifth Report


APPENDIX VI

Memorandum by the Scottish Office

TOWN AND COUNTRY PLANNING APPEALS (DETERMINATION BY APPOINTED PERSON) (INQUIRIES PROCEDURE) (SCOTLAND) RULES 1997 (S.I. 1997/750)

TOWN AND COUNTRY PLANNING (INQUIRIES PROCEDURE) (SCOTLAND) RULES 1997 (S.I. 1997/796)

  1. This Memorandum is submitted to the Joint Committee on Statutory Instruments in response to their letter of 18 June in which they ask for an explanation of the following points arising in connection with the above statutory instruments.

  2. Rule 2(3) of S.I. 1997/750 provides that in certain specified cases rule 4(1) is not to apply and that the references in the Rules to statutory parties are to be omitted. Ought not rule 7(4) and 12(3) to have been disapplied also, given that they are not meaningful with the omission of the reference to statutory parties. Same point on rule 2(3) of S.I. 1997/796 in relation to rule 7(4) and 13(3).

  It is accepted that rule 7(4) and 12(3) are not meaningful with the omission of the references to statutory parties and that it might therefore have been more helpful to the reader specifically to have disapplied these. However, the Scottish Office considers that the inclusion in rule 2(3) of the words "the references in these Rules to statutory parties shall be omitted" serves in practice to disapply rules 7(4) and 12(3). The position is different relative to rule 4(1) which does not include any reference to statutory parties and therefore needed to be expressly disapplied. The same points apply relative to the provisions in S.I. 1997/796 mentioned in the Committee's letter.

  3. Is the requirement in rule 7(4) of each instrument that notice be given to all statutory parties stating the time and place at which the statement of case may be inspected intended to apply to an amended or additional statement of case sent to the Secretary of State under rule 10? If so, why is this not expressly stated? If this is not the intention, explain why no provision is made for notifying the statutory parties of the amended or additional statement of case and the time and place at which it may be inspected.

  Policy is that the requirement in rule 7(4) relative to notice should apply to an amended or additional statement of case sent to the Secretary of State under rule 10. The Scottish Office accepts, however, that the position is not clear and that an express reference to amended or additional statements of case should have been included in rule 7(4).

  4. Rule 12(2) of S.I. 1997/750 (and rule 13(2) of S.I. 1997/796) require the planning authority to afford to any person who so requests a reasonable opportunity to inspect and, where practicable, take copies of any statement of case or other document which, or a copy of which, has been served on them in accordance with certain provisions including rule 7. Explain the reference to rule 7, given that rule relates to service by the authority of their statement of case rather than the service of a statement or other document on the authority.

  The Scottish Office accepts that the references to rule 7 are drafting errors and should not have been included.

  5. Rule 18 of S.I. 1997/750 provides that the appointed person may in place of the Secretary of State take such steps as the Secretary of State is required or enabled to take by virtue of certain specified provisions, including rule 10 and 16. Explain what steps the Secretary of State is required or enabled to take by virtue of rule 10, and whether it is intended that rule 18 should apply to the step under rule 16(2) requiring the Secretary of State to make available a representative of his department to attend the inquiry or transmit the application to another government department.

  Rule 10(c) enables the Secretary of State to require the provision of further information. The reference in rule 18 to rule 16 is a drafting error and should not have been included.

  6. The Scottish Office is grateful to the Joint Committee for bringing these points to its attention and intends to deal with them by way of making amending Rules in early course.

23rd June 1997


 
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