Joint Committee on Statutory Instruments Twenty-Fifth Report


Instruments reported


The Committee has considered the following instruments, and has determined that the special attention of both Houses should be drawn to them on the grounds specified.

1 S.I. 2003/1266: defective drafting and failing to comply with proper drafting practice;

S.I. 2003/1267: defective drafting and failing to comply with proper drafting practice;

S.I. 2003/1269: defective drafting;

S.I. 2003/1271: failing to comply with proper drafting practice

Town and Country Planning (Inquiries Procedure) (Wales) Rules 2003 (S.I 2003/1266); Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (Wales) Rules 2003 (S.I 2003/1267);
Town and Country Planning (Enforcement) (Inquiries Procedure) (Wales) Rules 2003 (S.I 2003/1269);
Town and Country Planning (Hearing Procedure) (Wales) Rules 2003 (S.I 2003/1271)

1.1 The Committee draws the special attention of both Houses to these Instruments on the grounds that S.I.s 1266, 1267 and 1269 are defectively drafted and that, in one respect, S.I.s 1266, 1267 and 1271 fail to comply with proper drafting practice.

1.2 These Rules, which were made by the Lord Chancellor, regulate the procedure to be followed in connection with local planning inquiries and hearings caused to be held in Wales by the National Assembly for Wales. They follow closely certain instruments which were made in respect of England in 2000 and 2002, and which were reported by the Committee in its 27th Report of the 1999-2000 Session and its 33rd Report of the 2001-02 Session.

1.3 Rule 2 of S.I.s 1266, 1267 and 1271 defines the "starting date" (a date which starts time running for the taking of specified steps) as the later of (a) the date of the National Assembly's written notice to the applicant and the local planning authority that it has received all the documents required to enable it to entertain the application or appeal and (b) the date of the National Assembly's notice informing the applicant and the authority that an inquiry is to be held. No separate provision of the Rules requires the National Assembly to give the notice described in paragraph (a).

1.4 In a memorandum printed at Appendix 1, the National Assembly acknowledges that the Rules do not expressly require such a notice to be given and that it would have been better if they had done so, but argues that the imposition of such a duty is not strictly necessary because the National Assembly is under an implied duty under the Planning Acts to take the steps necessary to progress an appeal and a failure to give the notice referred to would be contrary to that implied duty. This argument does not seem to the Committee to be relevant. The Acts leave matters such as this to be set out in subordinate legislation, which has been done in these instruments by including the requirement to give notice within the definition of "starting date". As the Committee said in paragraph 4 of its 27th Report of the 1999-2000 Session, and repeated in paragraph 9 of its 33rd Report of the 2001-02 Session, it considers that imposing a substantive obligation in a definition constitutes a failure to follow proper drafting practice, a conclusion which the National Assembly appears to accept. The Committee accordingly reports rule 2 of S.I.s 1266, 1267 and 1271 for failure to follow proper drafting practice, as acknowledged by the National Assembly.

1.5 In respect of S.I.s 1266 and 1267 the Committee asked the Department why Rule 6(6) provides that the National Assembly may require a person who has notified it 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 Committee reported similar provisions in paragraph 6 of its 27th Report of the 1999-2000 Session. The National Assembly explains that the time limit of 4 weeks is meant to apply to both obligations, and admits that the drafting is defective. The Committee accordingly reports rule 6(6) of S.I.s 1266 and 1267 for defective drafting, acknowledged by the National Assembly.

1.6 Rule 6(14) of S.I. 1266 and rule 8(14) of S.I. 1269 provide that, if the local planning authority or the applicant wish to comment on another person's statement of case, they must ensure that copies of their comments are received by other parties within 9 weeks of the starting date. The Rules, however, allow a pre-inquiry meeting to be held up to 16 weeks after the starting date and, where such a meeting is held, a further 4 weeks after the end of that meeting for the service of statements of case. There could therefore be circumstances where the time for commenting on a statement of case falls some 11 weeks before that statement is received. The National Assembly accepts that the 9 week time limit is inappropriate in cases where a pre-inquiry meeting is held. The Committee therefore reports rule 6(14) of S.I. 1266 and rule 8(14) of S.I. 1269 for defective drafting, acknowledged by the National Assembly.

1.7 The National Assembly states that it proposes to amend these Rules to rectify the defects identified in this report. It also acknowledges at the beginning of its memorandum that the lawyers instructed to adapt for Wales the Rules relating to England did not check to see whether the latter had been the subject of reports by the Committee. The Committee considers it unacceptable that the National Assembly should have copied earlier instruments without paying attention to the Committee's reports on them. It expects all those in Departments who are involved in the preparation of statutory instruments to read and take notice of its reports.


 
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