1.By letter dated 24 February 2021, the Joint Committee on Statutory Instruments has requested a memorandum on the following points:
(a) the intended difference between “main reasons” in regulations 6(4), 14(4) and 19(4) and “reasons” in regulations 6(7), 15(4) and 18(3), and the purpose behind that intended difference; and
(b) why the Regulations do not include an express requirement for reasons in connection with other decisions (such as, for example, a decision to impose conditions on the grant of an application, a decision under regulation 7, or a decision to grant consent under regulation 15).
(2) In relation to the reference in regulation 12(3)(a) to a notice under regulation 11(3)(c): confirm that the reference should be to publication not service, having regard to the different terms used in regulation 11(3)(a) and (c).
2.In response to point 1(a), regulations 6(4), 6(7), 14(4), 18(3) and 19(4) are intended to transpose the provisions of Articles 4(5), 4(6), 8a(2), 2(4) and 9(2) (second paragraph) respectively of Directive 2011/92/EU (as amended by Directive 2014/52/EU). In each case, the use of “main reasons” or “reasons” in the regulations is intended to follow the wording of the corresponding provision of the Directive without amendment.
3.Regulation 15(4) is also intended to transpose Article 8a(2) of the Directive. We acknowledge that the requirement for “reasons” in regulation 15(4) is not the same as the corresponding requirement to provide “main reasons” in Article 8a(2) of the Directive. We are grateful to the Committee for identifying this discrepancy. We consider that as a matter of general public law, the obligation on the OGA under Regulation 15(4) to provide “reasons” requires the provision of at least all relevant reasons for its decision, which should be either identical to or broader than the “main reasons”. We therefore consider that compliance with the obligation imposed by regulation 15(4) would necessarily entail compliance with the corresponding provision of the Directive, and accordingly the requirements of Article 8a(2) have been fully transposed in the regulations.
4.In response to point 1(b), the provisions of the Directive identified above are all of those requiring the provision of “reasons” or “main reasons”. The Department did not seek to impose requirements for reasons for other decisions additional to those required to transpose the Directive. For example, Article 4(3) of the Directive did not require main reasons (or reasons) to be given in respect of decisions which are now regulation 7 decisions.
5.In response to point (2), we confirm that the reference in regulation 12(3)(a) to “service” of a notice under regulation 11(3)(c) should be to “publication” of such a notice. We are grateful to the Committee for drawing this to our attention. While we regret this error, we consider that the meaning of regulation 12(3)(a) is nevertheless sufficiently clear in the context of the overall scheme for publication and public consultation under regulations 11 and 12. The obligation to provide notice to the developer under regulation 12(3) also falls on the Secretary of State, not developers or the wider public, so the risk of confusion should be minimal to non-existent.
Department for Business, Energy and Industrial Strategy
1 March 2021