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.
2000 (S.I. 2000/1624)
2000 (S.I. 2000/1626)
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
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.
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