2 S.I.
2011/2019: Reported for doubtful vires and defective
drafting
Access to the Countryside (Appeals against
Works Notices) (England) Regulations 2011 (S.I. 2011/2019)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the grounds that in one
respect there appears to be a doubt whether they are intra vires
and in three respects they are defectively drafted.
2.2 These Regulations are made, so far as is
relevant, under powers conferred by sections 38(6) and 44(2) of
the Countryside and Rights of Way Act 2000 and section 316(1)
of and paragraph 4(5) of Schedule 20 to the Marine and Coastal
Access Act 2009. As amplified below, they relate to land to which
members of the public have access. The 2000 Act covers inland
areas subject to public access and the 2009 Act covers coastal
land. Where authorities impose requirements on owners and occupiers
relating to works on the land there is scope for appeal.
2.3 Subsection (6) of section 38 of the 2000
Act confers power to make regulations as to the period within
which and manner in which appeals under that section are to be
brought, the advertising of such an appeal, and the manner in
which such appeals are to be considered. Section 44(2), so far
as is relevant, confers power to make such incidental, supplementary,
consequential or transitional provision as the person making the
regulations considers necessary or expedient.
2.4 Sub-paragraph (5) of paragraph 4 of Schedule
20 to the 2009 Act confers powers identical to those conferred
by section 38(6) of the 2000 Act but in respect of appeals brought
under that paragraph. Section 316(1) of the 2009 Act contains
provisions corresponding to those of section 44(2) of the 2000
Act.
2.5 Section 36(3) of the 2000 Act allows the
"access authority" to give the owner or occupier of
any access land a notice requiring him within a specified period
to carry out such works as may be specified in the notice, for
the purpose of remedying a failure to observe a restriction which
he is required to observe by an agreement under section 35 (which
relates to access to the land in question). Section 38(1) provides
that, where a notice under section 36(3) has been given to any
person in respect of any land, he or any other owner or occupier
of the land may appeal against the notice.
2.6 Paragraph 3(3) of Schedule 20 to the 2009
Act allows the "relevant authority" to give the owner
or occupier of land a notice stating that, after the end of the
period specified in the notice, it intends to take all necessary
steps for carrying out the works required for the purposes of
the coastal access duty. Paragraph 3(6) states that, where a notice
under paragraph 3(3) is given to any person as the owner or occupier,
the relevant authority must give a copy of the notice to every
other owner or occupier of the land. Paragraph 4(1) provides that
where a notice under paragraph 3(3) has been given to a person
in respect of any land, that person or any other owner or occupier
of the land may appeal to the Secretary of State.
2.7 Regulation 4, of this instrument, which is
entitled "Manner and period for appeal" includes at
paragraph (4), the following provision:
Where the appropriate authority gives notice under
-
(a) section 36(3) of the 2000 Act, or
(b) paragraph 3(3) of Schedule 20 [to the
2009 Act]
to the owner or occupier of any land, the appropriate
authority must take such steps as are reasonable to give a copy
of that notice to every other owner or occupier of the land.
2.8 The Committee asked the Department for Environment,
Food and Rural Affairs to identify the enabling power for regulation
4(4) and also to explain why regulation 4(4)(b) replicates the
provisions of paragraph 3(6) of Schedule 20 to the 2009 Act, albeit
in a less strict way.
2.9 In a memorandum printed at Appendix 2, the
Department states that the enabling power for regulation 4(4)(a)
is the power to make incidental or supplementary provision in
section 44(2) of the 2000 Act. It argues that that the provision
is incidental or supplementary because the exercise of the right
of appeal conferred by section 38(1) by any owner or occupier
of the land other than the recipient of the notice under section
36(3) is only reasonably practicable if the owner or occupier
in question receives a copy of that notice.
2.10 The Department also states that the enabling
power for regulation 4(4)(b) is the equivalent provision in section
316(1) of the 2009 Act, and gives the same explanation of why
this is considered to be the case.
2.11 The Committee does not agree with the Department's
arguments. Regulation 4(4) appears to be neither incidental nor
supplementary to a power to make provision as to the matters specified
in section 38(6) of the 2000 Act and paragraph 4(5) of Schedule
20 to the 2009 Act. Instead, it appears to supplement the provisions
of section 36 of the 2000 Act and paragraph 3 of Schedule 20 to
the 2009 Act, which are concerned with the giving of the notice
the giving of which gives rise to a right of appeal. The fact
that the Department acknowledges that regulation 4(4)(b) is otiose
in that it repeats the requirements of paragraph 3(6) of Schedule
20 to the 2009 Act (albeit in a watered-down fashion, requiring
the appropriate authority only to take such steps as are reasonable)
serves to support the Committee's view. It may be that the Department
had spotted that the 2000 Act should have included a provision
equivalent to paragraph 3(6) of Schedule 20 to the 2009 Act, and
decided to make good the deficit by including regulation 4(4)(a),
but it is not reasonable to conclude that the powers under which
this instrument is made extend so far as to permit the filling
of such gaps outside the scope of the appeal process itself. The
Committee accordingly reports regulation 4(4) for being of doubtful
vires.
2.12 The Committee also reports the inclusion
of regulation 4(4)(b) for defective drafting, acknowledged by
the Department.
2.13 Regulation 5 of this instrument requires
the Secretary of State, as soon as practicable after having received
all the information required in order to be able to entertain
the appeal, to notify the appropriate authority in writing, and
by virtue of paragraph (2) of that regulation the notice must
be accompanied by a questionnaire in respect of the information
required by the Secretary of State to determine the appeal.
2.14 Regulation 6 provides that the appropriate
authority must ensure that, within two weeks of its receipt of
the notification under regulation 5, the appellant receives information
and documents including: (a) the questionnaire mentioned in regulation
5(2) duly completed by the relevant authority (which must also
state the date on which it is sent to the Secretary of State)
together with a copy of each document referred to in it.
2.15 Regulation 7(1) requires the Secretary of
State to give notice of various matters "as soon as practicable
after receiving the information to be supplied in accordance with
regulation 6"
2.16 The Committee asked the Department to explain
the italicised words. The Department states that the reference
to the Secretary of State receiving information supplied in accordance
with regulation 6 is a reference to the information supplied to
the Secretary of State in the form of the questionnaire mentioned
in regulation 5(2). Regulation 6(a) requires the appropriate authority
to state the date on which the questionnaire is sent to the Secretary
of State. The Department accordingly considers it clear from regulation
5(2) and 6(a) that the questionnaire must be sent to the Secretary
of State.
2.17 The Department appears to the Committee
to have failed to notice that fact that regulation 6(a) requires
the appropriate authority to ensure that the appellant
receives the questionnaire. There is nothing in the Regulations
requiring the appellant to forward the questionnaire to the Secretary
of State (and indeed if that were the intended procedure it would
be impossible for the appropriate authority to state, as required
by regulation 6(a), the date on which it was sent to the Secretary
of State).
2.18 It appears clear to the Committee that two
structural elements are missing from the Regulations. First, a
requirement that the appropriate authority send the completed
questionnaire to the Secretary of State, and secondly a requirement
that the appropriate authority send a copy of the completed
questionnaire to the appellant. The Committee accordingly reports
regulations 5 and 6 for defective drafting.
2.19 The Regulations provide for appeals to be
determined in any of three ways: on the basis of an inquiry, a
hearing, or written representations only. Part 3 of the Regulations,
headed "Determination of Appeals", is divided into three
numbered Chapters. Chapter 1 is headed "Appeals to be determined
on the basis of written representations", Chapter 2 "Appeals
to be determined by way of a hearing", and Chapter 3 "Appeals
to be determined by way of an inquiry". Although it is possible
to infer from the content of Chapters 2 and 3 that they apply
only in the circumstances described by their headings, it is not
so clear in the case of Chapter 1, and in particular regulation
15. This regulation states what the Secretary of State must do
once a decision on an appeal has been made, and is capable of
applying in the case of any of the three types of appeal procedure.
2.20 The Department states that it is clear from
the context. First, regulation 14 makes it clear that the Secretary
of State or the inspector may proceed to a decision on the basis
of written representations. (This is not strictly accurate: regulation
14 allows a decision to be made on the basis only of such statements
of case, representations and comments as have been received within
a specified time limit.) Secondly, the cross-headings to the Chapters
should be used as an aid to construction. Thirdly, equivalent
but different provision concerning the action to be taken following
a decision is contained in Chapters 2 and 3.
2.21 The Committee accepts that a court, if it
needed to reach a view on the scope of Chapter 1, might well rely
on the arguments adduced by the Department but considers that
the possibility of relying purely on the combination of context
and non-operative words such as headings for purposes of interpretation
should not be used to excuse a failure to set out clearly what
is intended in the text of the instrument, and considers that
the fact that two different provisions may each be capable of
applying in the same given circumstances is evidence of structural
incompleteness. The Department could instead have made the wording
of the three Chapters clearer as to the circumstances in which
they apply, or perhaps more simply have added an additional Chapter
at the beginning of Part 3 indicating when each of the following
Chapters applies. The Committee accordingly reports Part 3
of the Regulations for defective drafting.
| 
