Memorandum by the Scottish Office
TOWN AND COUNTRY PLANNING APPEALS (DETERMINATION
BY APPOINTED PERSON) (INQUIRIES PROCEDURE) (SCOTLAND) RULES 1997
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
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