Joint Committee on Statutory Instruments Twenty-Fifth Report


APPENDIX 1

Memorandum by the Department of the Environment, Transport and the Regions

TOWN AND COUNTRY PLANNING (MAYOR OF LONDON) ORDER 2000 (S.I. 2000/1493)

  1. The Committee has asked for a memorandum on the following point—

  "Explain whether the Secretary of State's direction under article 5(8) prohibiting the authority from implementing the Mayor's direction under article 5(1) can only be given before the local planning authority has refused a planning application in implementation of the Mayor's direction. If this is the intention, explain whether it is intended that the authority should be able to preclude the Secretary of State from giving a direction by refusing the application immediately on receipt of the Mayor's direction. If the Secretary of State's direction can be given after the refusal, explain what effect that direction would have on the refusal."

  2. Article 5(8) is made under section 74(1B)(b) of the Town and Country Planning Act 1990 ('the 1990 Act') (inserted by section 344(9) of the Greater London Authority Act 1999). Where the Mayor of London has given a direction to a local planning authority to refuse a planning application, section 74(1B)(b) enables provision to be made by a development order "for prohibiting a local planning authority to which any such direction is given from implementing the direction in prescribed circumstances or during prescribed periods".

  3. Article 5(8) reflects the wording of this section. Provisions similar to section 74(1B)(b) are well precedented in planning law. For example, section 77 of the 1990 Act enables the Secretary of State to give directions requiring applications for planning permission to be referred to him for determination instead of being dealt with by local planning authorities. There is no specific requirement as to the timing of such directions. Similarly, section 74(1)(a) of the 1990 Act enables provision to be made by a development order "for enabling the Secretary of State to give directions restricting the grant of planning permission by the local planning authority, either indefinitely or during such period as may be specified in the directions". Article 14 of the Town and Country Planning (General Development Procedure) Order 1995 (S.I. 1995/419) is made under section 74(1)(a) of the Town and Country Planning Act 1990 and is of similar form to article 5(8).

  4. Although not explicitly stated, a direction by the Secretary of State under article 5(8) could only have effect if issued before a local planning authority refused planning permission for the relevant application. Consequently, an authority could theoretically preclude the Secretary of State from issuing a direction if it refused planning permission immediately on receipt of the Mayor's direction. However, in practice article 5 will only be relevant where an authority intend to grant permission. In the Department's view, therefore, it is unlikely that an authority would immediately refuse planning permission in this way. They will also be aware of the Secretary of State's power to issue a direction under article 5(8) and of the requirement for the Mayor to send a copy of his direction to the Secretary of State under article 5(7) at the same time as he gives the direction to the local planning authority.

3rd July 2000


 
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