Joint Committee on Statutory Instruments Twenty-Seventh Report



TWENTY-SEVENTH REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.[1]

ORDERED TO REPORT:

  1. The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

TOWN AND COUNTRY PLANNING (INQUIRIES PROCEDURE) (ENGLAND) RULES 2000 (S.I. 2000/1624)

TOWN AND COUNTRY PLANNING APPEALS (DETERMINATION BY INSPECTORS) (INQUIRIES PROCEDURE) (ENGLAND) RULES (S.I. 2000/1625)

TOWN AND COUNTRY PLANNING (HEARINGS PROCEDURE) (ENGLAND) RULES 2000 (S.I. 2000/1626)

TOWN AND COUNTRY PLANNING (APPEALS) (WRITTEN REPRESENTATIONS PROCEDURE) (ENGLAND) REGULATIONS 2000 (S.I. 2000/1628)

  2. The Committee draws the special attention of both Houses to these Instruments on the ground that they are defectively drafted and that in one respect, they fail to comply with proper drafting practice.

  3. These Rules and Regulations regulate the procedure to be followed in connection with local planning inquiries in England held by the Secretary of State before he determines applications referred to him or appeals made to him. The Rules concern planning permission, listed building consent and consent for the demolition of unlisted buildings in conservation areas.

  4. The Committee asked the Department of the Environment, Transport and the Regions to comment on three matters. The first concerned the definition of "starting date" and the way in which S.I. 2000/1624 defined that date as the later of (a) the date of the Secretary of State's notice to the applicant and the local planning authority that he has received all the documents and (b) the date of the Secretary of State's notice informing the applicant and the authority that the inquiry is to be held. The Committee asked the Department to identify the provision which requires the Secretary of State to give notice of receipt of the documents and explain why (a) has been included, by identifying the provisions in which "starting date" means the date of that notice. In the memorandum printed in the Appendix, the Department explains that definition (a) has been included because it will be the starting date in most cases. The Department also explains that there is no provision requiring the Secretary of State to give notice of the receipt of documents. In their view, a provision is unnecessary because the wording of the definition of "starting date" itself, "makes it clear that a written notice must be sent that the Secretary of State has received all the documents required to enable him to entertain the application or appeal". The Committee takes the view that this constitutes a failure to comply with proper drafting practice: an obligation to do something should not be imposed in a definition because a definition presupposes a substantive rule or regulation upon which that definition is based. The Committee accordingly reports S.I.s 1624, 1625, 1626 and 1628 for failure to follow proper drafting practice.

  5. The Committee raised a further question on S.I. 1628. In the part of the memorandum concerned with that instrument, the Department agrees with the Committee that sub-paragraph (a) of the definition of starting date is otiose: the Secretary of State will only be able to give the appellant and the local authority written notice of receipt of the appeal under regulation 4 once he has received all the documents specified in article 23 of the Town and Country Planning (General Development Procedure) Order 1995[2]. The Department do not foresee that practical difficulties will arise from the inclusion of this sub-paragraph but the Committee nevertheless reports regulation 4(a) for defective drafting: a provision which has no effect ought not to be included in an instrument.

  6. In S.I.s 2000/1624 and 1625 the Committee asked the Department why Rule 6(6) provides that the Secretary of State may require a person who has notified him of an intention to appear at an inquiry to send (a) 3 copies of their statement of case to him "within 4 weeks of being so required" and (b) a copy of their statement of case to any statutory party (with no similar time limit). The Department explains that the time limit of 4 weeks is meant to apply to both obligations. The drafting not only fails to give effect to the intended policy but, by the contrast between (a) and (b), is positively misleading. The Committee accordingly reports these two instruments for defective drafting.

  7. Rule 15(5) of S.I. 2000/1624 entitles a person who is entitled to appear at an inquiry to call evidence but this entitlement is made subject to paragraphs (6) (exclusion for irrelevance) and (7) (which relates to the status of proofs of evidence). In a similar context in rule 11(6) of S.I. 2000/1626, the entitlement is excluded for irrelevance and for disruptive behaviour. On being asked whether rule 15(5) ought not, therefore, to have been made subject to paragraph (9) (disruptive behaviour) and not (7), the Department admits there is an inconsistency. The Committee is clear that rule 15(5) ought to be subject to paragraphs (6) and (9) and it accordingly reports the instrument for defective drafting.

  8. In each case of defective drafting described above, the Committee has been told by the Department that it "will bear the point in mind for the future". In the view of the Committee this is not sufficient: in each case, the Committee expects the Department to issue corrective amendments in accordance with the procedures outlined in paragraphs 3.24 and 3.25 of Statutory Instrument Practice.


1   The Orders of Reference of the Committee are set out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back

2  S.I. 1995/419 Back


 
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