Planning and Building (Public Inquires) (Jersey) Order 2008: Amendments: Law Drafting Instructions

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 25 November 2013:

Decision Reference: MD- PE- 2013 - 0136
Decision Summary Title:	Law Drafting – Amendments to the Planning and Building (Public Inquiries) (Jersey) Order 2008		Date of Decision Summary:	21 November 2013
Decision Summary Author:	Planning Performance Manager		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	Planning Performance Manager
Written Report Title:	Amendments to the Planning and Building (Public Inquiries) (Jersey) Order 2008		Date of Written Report:	21 November 2013
Written Report Author:	N/A		Written Report : Public or Exempt?	N/A
Subject: Law Drafting – Amendments to the Planning and Building (Public Inquiries) (Jersey) Order 2008
Decision(s): To request the Law Draftsman to prepare appropriate amendments to the Planning and Building (Public Inquiries) (Jersey) Order 2008 to clarify procedures around Public Inquiries.
Reason(s) for Decision: To clarify procedures around Public Inquiries as indicated in the attached report and to co-ordinate the changes with the forthcoming changes to legislation to introduce a revised process for appeals against decisions taken under the Planning and Building (Jersey) Law 2002 (MD–PE–2013–0116).
Resource Implications: The Drafting of the amendments has been programmed within existing resources
Action required: Request the Planning Performance Manager to liaise with Law Draftsman to progress the amendments to the Planning and Building (Public Inquiries) (Jersey) Order with a view to presenting the amendments to the States at the earliest opportunity.
Signature: Deputy R Duhamel		Position: Minister
Date Signed:		Date of Decision (If different from Date Signed):

Planning and Building (Public Inquires) (Jersey) Order 2008: Amendments: Law Drafting Instructions

MINISTER FOR PLANNING AND ENVIRONMENT

REPORT

MINISTERIAL DECISION MD/P&E/2013/0136

Amendments to the Planning and Building (Public Inquiries) (Jersey) Order 2008

Following the Public Inquiries in connection with three major applications in the past few years* comments from two of the Inspectors who undertook the Inquiries were sought over the suitability of the Planning and Building (Public Inquiries) (Jersey) Order in conducting the respective Inquiry.

*PP/2008/1680 Esplanade Quarter, P/2011/1673 Plemont Bay Holiday Village, P/2010/1717 Field 622 St. Ouen.

The Inspectors’ comments, along with consideration of the experience of the Department regarding the Public Inquiries, have led to a review of the Order. The issues to be addressed in the amendments are;

There is potential for confusion over some of the terms in the existing Order. For example “representations” are different to “initial representations” and are different to representations received in connection with the application for planning permission prior to the Public Inquiry is announced. As such the following terms are to be substituted

i) Initial representations will become Statements of Case and are a summary of the key points a person wishes to make in connection with an application

ii) Statements of Case will become Proofs of Evidence and will represent the full evidence that a person wishes to raise at the Public Inquiry

iii) Reference to hearings and the inquiry will be replaced with reference to the inquiry

There will be the opportunity for a pre-Inquiry meeting – to discuss and agree a programme, deadlines, procedure etc – which will wholly replace Thematic and Plenary hearings which are only appropriate in a plan making context.

The specific requirement for a website, and its administration, will be removed as it is not appropriate to include such a specification in legislation. With the pace of technology it may be that websites are obsolete sooner that one may imagine, or they may not. It will be replaced by a requirement to publicize and make available information relating to the Inquiry and this will be specified in any terms of reference the Minister will set the Inspector. If setting the terms of reference today that would be via a website but this may change and the legislation should be flexible enough to cope with any change.

Timescales for the submission of information is to be reviewed to make it easier to make submissions without unduly delaying the process

The existing Order excludes cross-examination of persons appearing at the Inquiry. This has proved to be very problematic for the Inspectors who have essentially had to question persons themselves in order to fully understand their case and explore their points. This is not the role of the Inspector in Inquiries regarding applications for planning permission rather the Inspector controls proceedings whilst allowing parties to put their case but also to be challenged on that case. This allows full inclusion and thorough testing of the issues.

The rules and procedures of the Inquiry will remain in force during any visit to the site by the Inspector

The Inspector provides a report for the Minister who then makes a decision in light of the Inspector’s findings. This is the determination of the application and the Minister will explain any decision in the context of the report. It is therefore the Minister’s responsibility to publish the report at the time of the decision. It is also the Minister’s responsibility to inform everyone involved in the Inquiry of the decision. In the existing Order these responsibilities lie with the Inspector and this is neither appropriate nor practical.

The amendments in themselves are necessary in the interest of good governance but are also required to coincide with the forthcoming implementation of a revised appeals process against decisions taken under the Planning and Building (Jersey) Law as agreed by the States and as previously requested (MD – PE – 2013 – 0116).