Law drafting instructions: Planning and Building (Public Inquiry) (Jersey) Order 2008.

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While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.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 (26/08/2008) regarding: Law drafting instructions: Planning and Building (Public Inquiry) (Jersey) Order 2008.

Decision Ref:	MD–PE–2008-0162
Subject:	Law drafting instructions: Planning and Building (Public Inquiry) (Jersey) Order 2008
Decision Summary Title :	DS – law draft instruction public inquiry
DS Author:	Kevin Pilley: Assistant Director, Policy and Projects
DS Date:	26 July 2008	DS Status:	Public
Written Report Title :	WR – law draft instruction public inquiry
WR Author:	Kevin Pilley, Assistant Director
WR Date	19 August 2008	WR Status:	Public
Oral Rapporteur:	Kevin Pilley, Assistant Director
Decision(s):	The Minister for Planning and Environment endorsed the law drafting instructions enabling the preparation of draft secondary legislation for the holding of public inquiries
Reason(s) for Decision:	The Minister for Planning and Environment is required to prescribe the manner in which public inquiries are to held by Order, which requires the issuing of law drafting instructions to prepare the said Order.
Legal and resource Implications:	Art. 12 of the PB(J)L 2002 requires the Minister to prescribe the form of public inquiries by Order. No bid for law drafting time to make this Order has previously been made.
Action required:	Request the Law Draftsman to prepare a draft Order.
Signature:
Position:	Minister for Planning and Environment
Date Signed:		Date of Decision (If different to Date Signed):

Law drafting instructions: Planning and Building (Public Inquiry) (Jersey) Order 2008.

Law drafting instructions

Planning and Building (Public Inquiry) (Jersey) Order 2008

Purpose

It is the purpose of these law drafting instructions to set out the parameters of a public inquiry that might enable the relevant order to be prepared such that the Minister can exercise his powers conferred by Article 12 and Article 19 of the Planning and Building (Jersey) Law 2002 (PB(J)L 2002).

Introduction

Article 12 of the PB(J)L 2002 requires a public inquiry to be held before the Minister for Planning and Environment determines a planning application where the proposed development, if it were to be carried out, would have a significant effect or where it would represent a not insubstantial departure from the Island Plan. The Minister is required to take into account the representations made at the public inquiry in the subsequent determination of the application.

An Order is required to prescribe the manner in which any such inquiry should be held and is required, in particular, to set out;

the manner in which notice of the enquiry should be given;
the procedure to be followed at an inquiry;
persons who may appear and be heard at an inquiry

Purpose of a public inquiry

A public inquiry shall be held, where the Minister for Planning and Environment is satisfied that if development proposals, submitted in the form of an application for planning permission, were to be carried out –

the development would be likely to have a significant effect on the interests of the whole or a substantial part of the population of the Island; or
the development would be a departure (other than an insubstantial one) from the Island Plan.

The purpose of a public inquiry is to test the development proposals before an independent inspector (or inspectors).

The inspector shall consider all of the representations and considerations relevant to the determination of the planning application and shall make recommendations to the Minister as to the acceptability of the proposal and as to any changes which should be made to the proposal.

The Minister for Planning and Environment will determine the application, having regard to all of the material considerations, including the inspector’s report.

The inquiry will be held in public and the inspector will consider all representations made in respect of the planning application.

Preliminaries

The inspector, and any assistant inspector or technical assessor, and the programme officer, should be appointed as soon as the requirement for a public inquiry is anticipated.

The States of Jersey website should, if possible and appropriate, be used to provide the main method of communication with all parties involved with the inquiry, and the public, and all material related to the inquiry should be posted on the website.

Notice of the inquiry

The Planning and Building (Application Publication)(Jersey) Order 2006 requires that planning applications for development proposals are publicised and a minimum period of 21 days given for representations to be received.

For development proposals that are to be the subject of a public inquiry, as determined by the Minister, a minimum period of 21 days shall be given for representations to be received.

Where notice of a public inquiry has not previously been given as part of the advertisement of a planning application, it shall be publicised by the Minister by local advertisement 1

Participation at the inquiry

Participation at the inquiry will be open to all those with an interest in the matter. It will specifically include the planning authority; the applicant and/or his agent(s); and anyone making a representation in relation to earlier consultation on the planning application but will also be extended to any other person or agency who wishes to be involved.

The inspector(s) may, at their discretion, invite others to take part in the inquiry, where their involvement might assist the process.

Format of preliminary inquiry submissions

The Minister for Planning and Environment will specify the format for inquiry submissions. A simple form should indicate the name, address and contact details of those submitting representations and whether they wish to be heard at the inquiry or whether they are content to rely on a written submission.

Preliminary inquiry submissions should enable the inspector, and other parties, to readily understand the key issues which are to be raised, and provide any background information in a useful, clear and accessible form. Those making submissions to the inquiry should submit a statement of not more than 1500 words which sets out and summarises the key points which they wish to make. Succinct appendices may also be submitted, where they provide supporting information.

Inquiry matters and participants

At the conclusion of the 21 day submission period and following a review of the representations made, the inspector(s), assisted by the programme officer, will produce a draft list of matters that they consider should be examined at the inquiry. They will also produce a list of the participants, including the planning authority and the applicant and/or his agent, whom they believe should be invited to take part in the formal part of the inquiry. These will be selected to give the widest possible range of views and will include those – both in support of and against the proposal – who the inspector(s) believes can best help them to test the proposal thoroughly.

These lists will be published and a minimum period of 14 days given for representations on the draft list of inquiry matters and participants to be received. Either the matters or participants may be revised at the discretion of the inspector(s) on the basis of the representations received.

The final list of matters and participants will be published no later than 14 days preceding the inquiry. An inquiry timetable may also be published.

Preliminary meetings/ seminars

A preliminary inquiry meeting will normally be held, organised by the programme officer and chaired by the inspector, or his representative, prior to the commencement of the inquiry. The purpose of the preliminary inquiry meeting is to explain to participants how the inquiry is to be organised and to answer questions.

The programme officer will produce notes for participants as to how they should approach the inquiry, together with details of dates, deadlines, format of additional inquiry statements and inquiry procedures.

The inspector(s) may, at their discretion, hold technical seminars preceding the inquiry on topics that are likely to be particularly important or complex. The purpose of any such seminars is to ensure that both the inspector(s) and all the other participants, together with any members of the public who may wish to attend, are fully informed on these topics and are given an opportunity to consider any technical and/or supporting background. There will and can be no debate on the merits of the case at any technical seminar. The inspector may request that further technical work is carried out as a result of any technical seminar.

There may also be an accompanied site visit preceding the inquiry.

Format of additional inquiry statements

Individuals participating at formal inquiry sessions, as determined by the inspector, will be invited to submit additional inquiry statements, of not more than 2000 words. This will enable them to summarise and reinforce their key messages, and also to respond to the submissions and evidence submitted by others, or to take account of any new information.

Additional inquiry statements should be submitted to the programme officer by a date to be specified, but normally no later than seven days before the inquiry.

The programme officer will ensure that all inquiry submissions are circulated to other participants and are publicly available.

In addition, the inspector may seek briefing notes on particular topics from the applicant, the planning authority or other participants, especially on technical matters. The programme officer will ensure that any briefing notes are circulated to other participants and are publicly available.

The parties will be encouraged to continue to meet during the whole of this period and to seek to resolve differences; any such agreements should be reported to the inspector and made public.

Communications

The programme officer will manage all arrangements for the inquiry. A liaison officer, from the States of Jersey, may be required to support and provide assistance to the programme officer.

In order to maintain their independence, the inspector will not communicate directly with any of the parties. All communication between the inspector, the applicant, the planning authority and any other parties will be through the programme officer.

Inquiry

The inquiry may comprise of two distinct parts:

Formal inquiry sessions may be held, involving those participants previously identified and notified by the inspector, on each of the topic areas previously identified and notified by the inspector. In these formal inquiry sessions, the inspector will chair a round table session, held in public, on each of the topics that have been identified and according to the timetable that has been published. The aim and purpose of these sessions is to test the proposal as thoroughly as possible and the inspector will be proactive in asking questions and encouraging debate around the table.

Statements will not be read; legal representation will not be necessary; and cross-examination will not be permitted.

The introduction of new material will not be permissible at this stage: all the materials upon which parties intend to rely should have been included in earlier representations.

Informal inquiry sessions, also held in public, will enable other respondents who have not been invited to take part in the formal inquiry sessions but who wish to address the inspector to do so.

The format of the informal inquiry sessions will be determined by the inspector and will depend on the number of respondents who wish to take part. It may take the form of open meetings or timed sessions for each participant, or a combination of the two.

A public address system should normally be available at inquiry sessions and it is desirable for the proceedings to be recorded.

The inspector will also be required to take into account written representations.

Post-inquiry

The inspector will produce a report to the Minister for Planning and Environment on the inquiry proceedings, setting out all the material considerations to which the Minister should have regard in the determination of the planning application, as well as clear recommendations.

It will be for the Minister to determine whether to accept the recommendations, giving clear reasons for his decision in each case.

1 ‘by local advertisement’ has the meaning assigned to it by PB(Appln Pub)JO 2006.