Appendix 2
S.I. 2011/2019: memorandum from
the Department for Environment, Food and Rural Affairs
Access to the Countryside (Appeals against
Works Notices) (England) Regulations 2011 (S.I. 2011/2019)
The Committee has asked the Department for Environment,
Food and Rural Affairs for a memorandum on the following points:
(1) Identify the enabling power in respect
of regulation 4(4).
1. The enabling power in respect of regulation 4(4)(a),
which provides for the appropriate authority to give a copy of
a notice under section 36(3) of the Countryside and Rights of
Way Act 2000 (c.37) ("the 2000 Act") to every other
owner or occupier of the land, is the power to make incidental
or supplementary provision in section 44(2)(b) of that Act, which
enables the Secretary of State to make such incidental or supplementary
provision as she considers necessary or expedient. The provision
made in regulation 4(4)(a) is incidental or supplementary to provision
in regulation 4(2) and (3) as to the period within which appeals
are to be brought. This is because the exercise of the right of
appeal provided by section 38(1) of the 2000 Act by any other
owner or occupier of the land within the period specified in the
notice under section 36(3) is only reasonably practicable if the
owner or occupier in question receives a copy of that notice.
2. With regard to the enabling power for regulation
4(4)(b) which provides for the appropriate authority to give a
copy of a notice under paragraph 3(3) of Schedule 20 to the Marine
and Coastal Access Act 2009 (c.23) ("the 2009 Act"),
section 316(1) of that Act provides a similar power to make incidental
or supplemental provision in relation to regulations made under
that Act. The provision made in regulation 4(4)(b) is again incidental
or supplemental to provision in regulation 4(2) and (3) as to
the period within which appeals are to be brought for reasons
analogous to those mentioned in paragraph 1 above in relation
to a notice under section 36(3) of the 2000 Act.
(2) 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.
3. The Department accepts that, since paragraph 3(6)
of Schedule 20 to the 2009 Act makes provision for a notice under
paragraph 3(3) of that Schedule to be given to every other owner
or occupier of the land, regulation 4(4)(b) is otiose. The Department
will accordingly amend regulation 4(4) at the next available opportunity.
(3) Explain the reference in regulation 7(1)
to the Secretary of State receiving the information to be supplied
in accordance with regulation 6, given that the information referred
to -
(a) in regulation 6(a) appears not to be expressly
required, and
(b) elsewhere in regulation 6 appears not to be
required,
to be sent to the Secretary of State by that provision.
4. The reference in regulation 7(1) 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 considers it is clear from regulation 5(2)
and regulation 6(a) that the questionnaire must be sent to the
Secretary of State.
(4) Why does the text of Chapter 1 of Part
3 (and in particular regulation 15) not contain anything to restrict
its application to appeals which are to be determined on the basis
of written representations?
5. Regulation 14 makes it clear that the Secretary
of State or the inspector may proceed to a decision on the appeal
on the basis of written representations, and since regulation
15 follows directly afterwards, the Department considers that
it is clear from the context that regulation 15 similarly applies
only in relation to decisions on such appeals. This is particularly
the case when these provisions are read with the cross-heading
to Chapter 1 of Part 3 of the Regulations, which the Department
considers to be an aid to the construction of that Chapter, and
the corresponding cross-headings to Chapter 2 (which follows immediately
after regulation 15) and Chapter 3 (which indicate that appeals
to be determined by way of a hearing or inquiry are governed by
Chapters 2 and 3 respectively), and in the light of the separate
provisions of regulations 23, 24, 36 and 37 in relation to the
notification of decisions in appeals determined by way of a hearing
or inquiry.
Department for Environment, Food and Rural Affairs
1st November 2011
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