2 S.I.
2012/605: Reported for defective drafting
Town and Country Planning (Tree Preservation)
(England) Regulations 2012 (S.I. 2012/605)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in two respects.
2.2 The Regulations provide a new system of tree
preservation orders in England.
2.3 Regulation 2(1) defines "authority"
as a "local planning authority making, or having functions
under," a tree preservation order. Regulation 5(3) requires
authorities to make tree preservation orders available for inspection
once made, and adds "and where an order is made on behalf
of an authority, it shall be made available for inspection also
at the offices of the authority on whose behalf it was made".
The Committee asked the Department for Communities and Local
Government when an order might be made "on behalf of"
an authority, having regard to the definition of "authority".
In a memorandum printed at Appendix 2 the Department explains
that the reference to an order made on behalf of an authority
is intended to refer to the power conferred on the Secretary of
State by section 202 of the Town and Country Planning Act 1990,
under which the Secretary of State may make tree preservation
orders. The Department goes on to admit, however, that the Regulations
fail to make adequate provision for the case where an order is
made by the Secretary of State; the Department accepts that the
Regulations require modification to address that case thoroughly,
but adds that since the Secretary of State has not used these
powers and expects to do so only exceptionally, the modifications
are not urgent. Although the point attracted the Committee's
attention in relation to the express reference in regulation 5(3)
to the making of an order on behalf of an authority, the problem
as admitted by the Department is that the case for which that
reference is designed is not provided for adequately elsewhere
in the Regulations; accordingly the Committee reports the Regulations
for defective drafting, acknowledged by the Department.
2.4 Regulations 5(3) and 8 require documents to be
made available for inspection "free of charge". Other
regulations refer to documents made available in accordance with
regulation 5, which attracts the requirement that inspection be
"free of charge". Regulation 12(2), however, requires
a register of proceedings under the Regulations to be made available
for inspection but does not specify "free of charge".
The Committee asked the Department to explain the apparent inconsistency,
and drew attention to general powers under which local authorities
may levy charges. In its memorandum the Department explains that
the general powers referred to by the Committee do not confer
a power to charge in this case and adds that although there is
specific power to allow fees to be charged in these circumstances
it has not been exercised. The Department therefore admits that
the words "free of charge" are unnecessary and undertakes
to remove them "at the earliest legislative opportunity".
The Committee accordingly reports regulations 5(3) and 8 for
defective drafting, acknowledged by the Department.
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