Sixteenth Report
Instruments reported
The Committee has considered the following instruments
and has determined that the special attention of the House should
be drawn to them on the grounds specified.
A. Town and Country Planning (Control of Advertisements)
(England) Regulations 2007 (SI 2007/783)
Summary: These Regulations update controls on
the display of advertisements. The Government have described them
as part of a package of new measures to strengthen controls over
illegal advertising.
These Regulations are drawn to the special attention
of the House on the ground that they give rise to issues of public
policy likely to be of interest to the House.
1. The Department for Communities and Local Government
(DCLG) have made these Regulations under sections 220, 221, 223(1),
224(3) and 333(1) of the Town and Country Planning Act 1990. An
Explanatory Memorandum (EM) and Regulatory Impact Assessment (RIA)
have also been provided.
2. The EM states that the Regulations provide
a self-contained set of procedures relating to the display of
advertisements in England, and that they replace, with amendments,
the Town and Country Planning (Control of Advertisements) Regulations
1992 ("the 1992 Regulations"). The Regulations grant
consent for the display of certain classes of advertisement ("deemed
consent"). Where deemed consent is not granted, and express
consent is required, the procedure for making an application for
express consent is comparable to that for applying for planning
permission. The Regulations also contain procedures for appeals;
for discontinuing the display of advertisements; and for controlling
advertisements in particularly sensitive areas by means of areas
of special control, designated by local planning authorities.
3. In the RIA, DCLG explain that the 1992 provisions
for the regulation of outdoor advertising had become outdated.
For example, they did not take account of current technology,
e.g. on moving and sequential advertisements and illumination;
and they did not recognise advertising on telephone kiosks as
an issue. The RIA also mentions that experience since 1992 had
shown that there were interpretation problems, such as the difficulty
of establishing that a site had been used continually since April
1974 for the display of advertisements; and that both the application
and appeals procedures needed rationalisation. The latest Regulations
address these and other issues.
4. The Government have carried out two consultation
processes in relation to the updating of the 1992 Regulations.
The first was conducted between July and October 1999; the second
between July and September 2006. At paragraph 7.9, the EM sets
out the main changes made following consultation. Among these
changes is provision that the European Union flag, the flag of
the Commonwealth, the United Nations flag and county flags may
be flown without express consent. As well as including a helpful
account of the main issues raised by consultation respondents
in the EM, DCLG have published a summary of consultation responses
on their website.[1] This
makes it clear that the Department received a considerable number
of representations on the issue of whether flags may be flown
without express consent, particularly in relation to Cornish flags,
and the flag of the European Union.
5. On 15 March 2007, DCLG issued a press release
explaining that the Regulations were part of a package of new
measures to strengthen controls over illegal advertising. The
package also includes a new database for local planning authorities'
use "that will enable enforcement officers to enter and pull
out details of prosecutions and formal cautions against companies
and individuals who have unlawfully displayed advertisements.
The database will help them to build a case for prosecution within
their own areas providing background to a company's history and
help them to track down persistent offenders."[2]
6. The display of advertising raises issues of
amenity and public safety, and the innovative character of the
advertising industry makes it appropriate for controls over advertising
to be kept under review. We believe that the House will be interested
to see that, through these Regulations, the Government are seeking
to place such controls on an up-to-date footing, in parallel with
other measures to tackle illegal advertising.
B. Electricity Generating Stations and Overhead
Lines (Inquiries Procedure) (England and Wales) Rules 2007 (SI
2007/841)
Summary: These Rules replace those from 1990 which
currently set out the procedure for inquiries into applications
for large electricity generating stations (including nuclear power
stations) and overhead lines. The changes potentially limit the
ability of interested parties to take part in such inquiries and
the Government's Explanatory Memorandum does not adequately reflect
the concerns expressed on this issue in their consultation.
These Rules are drawn to the special attention
of the House on the ground that they give rise to issues of public
policy likely to be of interest to the House.
7. The Department of Trade and Industry (DTI)
have made these Rules under section 9 of the Tribunals and Inquiries
Act 1992. An Explanatory Memorandum (EM) and Regulatory Impact
Assessment (RIA) have also been provided.
8. The EM states that the Rules replace the existing
procedural rules ("the 1990 Rules")[3]
governing inquiries into applications for large electricity generating
stations and overhead lines under the Electricity Act 1989. It
explains that the Rules provide a range of tools which the Secretary
of State or inspector can use in order to manage and conduct the
proceedings of an inquiry held for such applications; and that
they provide a framework to ensure that each inquiry is fit for
purpose and allows appropriate exploration of the relevant issues.
9. By way of background, the EM states that the
substance of the 1990 Rules has not been updated since their introduction,
whereas the inquiry rules for other infrastructure consented under
the Town and Country Planning Act 1990 have been updated. The
most recent such updating was effected, for major infrastructure
projects, by means of the Town and Country Planning (Major Infrastructure
Project Inquiries Procedure) (England) Rules 2005 (SI 2005/2115).[4]
10. The EM states that the objectives of these
Rules are "to improve the efficiency of inquiries, provide
more certainty for all participants on how long the inquiry stage
of the planning process may last, and deliver improvements quickly."
It explains that the Rules generally reflect and incorporate the
appropriate best practice for inquiry procedures introduced for
major infrastructure projects granted consent under the Town and
Country Planning Act.
11. DTI carried out consultation on the proposed
Rules at the end of 2006. 39 responses were received from industry
groups, local authorities, the planning community, non-government
organisations, major generators and utilities. All but two respondents
supported the proposals, as conducive to improved certainty and
efficiencies without compromising scrutiny or the opportunity
for participation in the inquiry. The EM states that "those
who broadly disagreed with the proposals were concerned about
potential participants' rights being curtailed … [However]
the Government is confident that all potential participants will
continue to be able to make relevant contributions at inquiries,
because by providing a clear inquiry process and early circulation
of information, it will be easier to identify whether and how
interested parties wish to participate."
12. In accordance with section 9 of the Tribunals
and Inquiries Act 1992, DTI have consulted the Council on Tribunals
on these proposals. The EM states that the Council "considered
that the rules, taken as a whole, are proportionate and not unreasonable
or objectionable." DTI have published the full text of the
Council's comments on their website.[5]
13. In the Committee's view, the summary of those
comments in the EM fails to convey the overall import of the Council's
response. We are therefore quoting the Council's remarks in full:
"Although the Council considers that the draft
rules, taken as a whole, are proportionate and not unreasonable
or objectionable, there is always the possibility that people
will to a greater or lesser degree feel shut out of an inquiry
or unable to put over their arguments properly. Some general statement
at the beginning of the guidance, to the effect that the new rules
are designed to maintain the principle that the inquiry will continue
to be a forum in which all appropriate interests have a voice
and all the relevant issues are fully and fairly considered, while
improving the efficiency of the process and avoiding disproportionate
and unjustifiable delay in decisions, might be helpful."
14. We believe that the Council is right to identify
the possibility that individuals or organisations concerned about
an application subject to an inquiry may well feel excluded from,
or disadvantaged in, the conduct of such an inquiry. It seems
to us that such a possibility is increased by the powers given
to an inspector under Rule 19 to refuse to permit cross-examination
of persons giving evidence. DTI have told us that they will publish
guidance to accompany the Rules, which will give an indication
of the matters which might lead an inspector to use this discretion.
We welcome the fact that such guidance will be provided, but we
would reiterate that the availability of this discretion may well
reinforce the concern already mentioned about exclusion.
15. We have pressed DTI to clarify the scope
of the Rules: they will apply to applications for a nuclear generating
station located onshore with a capacity of greater than 50MW in
England and Wales, a point not made explicit in the EM and which
we consider should have been.
16. We believe that the House will be interested
to know that the Government have brought forward these Rules,
in order to improve the efficiency of inquiries into applications
for large electricity generating stations and overhead lines.
The changes potentially limit the ability of interested parties
to take part in such inquiries and the Government's Explanatory
Memorandum does not adequately reflect the concerns expressed
on this issue in their consultation.
1 See: http://communities.gov.uk/pub/754/ControlofAdvertisementsRegulationsSummaryofConsultationResponses_id1508754.pdf Back
2
See DCLG press release: http://www.communities.gov.uk/index.asp?id=1002882&PressNoticeID=2375 Back
3
The Electricity Generating Stations and Overhead Lines (Inquiries
Procedure) Rules 1990 (SI 1990/528). Back
4
The Committee drew SI 2005/2115 to the special attention of the
House, in the 8th Report of Session 2005-06 (HL Paper 42). Back
5
See: http://www.dti.gov.uk/files/file37344.pdf Back
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