Joint Committee on Statutory Instruments Twenty-Fifth Report


Appendix 1 S.I. 2003/1266; S.I. 2003/1267; S.I. 2003/1269; S.I. 2003/1271: memorandum from the National Assembly for Wales

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)

Rule 2 of S.I. 2003/1266 defines "starting date" as the later of the two following dates: (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; (b) the date of the National Assembly's notice informing the applicant and the local planning authority that an inquiry is to be held.

Identify the provision which requires the National Assembly to give notice of the receipt of all necessary documents. The Department's attention is drawn to paragraph 4 of the Committee's 27th Report (Session 1999-2000) and paragraph 9 of its 33rd Report (Session 2001-2).

A corresponding question in relation to S.I. 2003/1267 and 1271.

1. The National Assembly lawyers instructed to adapt the corresponding existing Rules relating to England did not check whether the English Rules had been the subject of reports by the Committee (and neither was their attention drawn to that fact). This was an oversight. This appears to be the first example of Rules being made by the Lord Chancellor at the request of the Assembly Government and the Assembly lawyers' understanding of the respective roles of the Assembly and the Lord Chancellor's Department was not as clear as it should have been. The Assembly Government would respectfully argue that an express obligation on the Assembly to give the notice which triggers the "starting date" is not strictly necessary, although it would put the argument on a slightly different basis to that previously advanced by the Department of the Environment, Transport and the Regions in relation to the English rules. The Assembly Government would point, rather, to the fact that where the National Assembly is seized of an appeal or application it is under an implied duty under the Planning Acts to take the steps necessary to progress the case. Unless it gives the notice which triggers the "starting date" then the obligations on the parties to take the steps necessary for the case to progress will not arise and this would be contrary to that implied duty.

2. However, the Assembly Government accepts that it would be better were there to be an express duty on the Assembly to serve the notice in question. The Assembly has recently made regulations dealing with appeals in other fields which make just such provision (see the Wildlife and Countryside (Sites of Special Scientific Interest, Appeals) (Wales) Regulations 2002 (S.I. 2002/1772) and the Countryside Access (Appeals Procedures) (Wales) Regulations 2002 (S.I. 2002/1794) as amended by S.I. 2003/142).

3. Although the introduction of such a duty into the Rules under consideration would introduce a minor difference between the substance of the Rules applying in Wales and those applying in England, the Assembly's lawyers believe that an amendment to place the Assembly under a specific duty to serve the necessary notice can be effected without causing practical difficulty to the Planning Inspectorate in administering procedures across England and Wales. The Assembly Government therefore intends to formulate a proposal to amend the Rules and to consult with the Planning Inspectorate and other relevant interests on that proposal. It will also consider changes to its own Statutory Instruments relating to written representations and hearings procedures so as to ensure consistency.

Rule 6(6) of S.I. 2003/1266 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 that person's statement of case to it within 4 weeks if being so required; and (b) a copy of that person's statement of case to any statutory party. Explain why, unlike (a) no time limit is specified in (b). (The Department's attention is drawn to paragraph 6 of the Committee's 27th Report (Session 1999-2000).

A corresponding question in relation to S.I. 2003/1267.

4. As was admitted by DETR in paragraph 10 of its memorandum to the Committee relating to the corresponding English Rules (see the Appendix to the Committee's 27th Report for 1999/2000), that the intention of this provision (which has simply been copied in the Welsh Rules) was that the 4 week time limit should apply both to the sending of copies of the statement of case to the Assembly and to the sending of the statement of case to statutory parties. The Assembly Government will formulate a proposal for correcting the omission and will consult with interested parties with a view to requesting that the Lord Chancellor amend the Rules accordingly.

Rule 6(14) of S.I. 2003/1266 provides 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 the National Assembly and any statutory party within 9 weeks of the starting date. How is this intended to operate where a pre-inquiry meeting is held, given that rule 5(6) allows up to 16 weeks from the starting date for such a meeting to be held, and rule 6(1) and (3) allows up to 4 weeks after the conclusion of the pre-inquiry meeting for the service of statements of case?

A corresponding question in relation to rule 8(14) of S.I. 2003/1269.

5. The 9 week time-limit is clearly inappropriate where a pre-inquiry meeting is held. It is intended to apply where no pre-inquiry meeting is held and in such cases its effect is to allow 3 weeks for comments on statements of case after the date when they are required to be served, which is 6 weeks after the starting date (see rule 6(1)(a) and (3)(a) of S.I. 2003/1266 and rule 8(1)(a) and (3)(a) of S.I. 2003/1269). Where a pre-inquiry meeting is held the time-limit for service of statements of case is 4 weeks from the conclusion of the pre-inquiry meeting so the time-limit for comments in such cases should be 7 weeks from the conclusion of the pre-inquiry meeting. The practical difficulty arising out of the unworkable time-limit where a pre-inquiry meeting is held, can be overcome by use of the power to extend time-limits (rule 20 of S.I. 2003/1266 or rule 23 of S.I. 2003/1269). However, it is accepted by the Assembly Government that it is desirable to correct the error and it intends to include in proposals referred to above to amend the Rules under consideration a correction of this error too.

26 June 2003


 
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