Project de Loi: Planning and Building (Amendment No. 5) (Jersey) Law 200-

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.

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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

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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While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.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 (02/11/2009) regarding: Project de Loi: Planning and Building (Amendment No. 5) (Jersey) Law 200-.

Decision Ref:	MD–PE–2009-0173
Subject:	Project de Loi: Planning and Building (Amendment No.5)(Jersey) Law 200-
Decision Summary Title :	DS - pdl - p&b(j)l amnd 5 200910 - kjp
DS Author:	Kevin Pilley: Assistant Director, Policy and Projects
DS Date:	29 October 2009	DS Status:	Public
Written Report Title :	WR - pdl - p&b(j)l amnd 5 200910 - kjp
WR Author:	Kevin Pilley: Assistant Director, Policy and Projects
WR Date	29 October 2009	WR Status:	Public
Oral Rapporteur:	Kevin Pilley: Assistant Director, Policy and Projects
Decision(s):	The Minister for Planning and Environment; noted and approved the Planning and Building (Amendment No.5)(Jersey) Law 200-; noted and approved the Project de Loi for the Planning and Building (Amendment No.5)(Jersey) Law 200-, and advice from the Law Officer’s that it is Human Rights compliant; approved the lodging of the Project de Loi au Greffe; requested officers to liaise with the Greffier of the States to facilitate the expeditious consideration of the proposed Planning and Building (Amendment No.5)(Jersey) Law 200- and the associated Project de Loi
Reason(s) for Decision:	The proposed Planning and Building (Amendment No.5)(Jersey) Law 200- gives effect, in part, to the Minister’s Law Drafting instructions (MD-PE-2009-0135); the Projet de Loi enables consideration of the matter by the States; the draft amendment needs to be lodged au Greffe; the Minister wishes to ensure that amendment of the Law is in effect prior to the States consideration of the ongoing Island Plan Review.
Resource Implications:	There will be resource implications of this proposed amendment related to the potential requirement for further rounds of consultation in respect of new and substantive amendments to the draft Island Plan once lodged au Greffe by the Minister. The extent and nature of this cannot be foreseen and the requirement will need to be managed within the resources available to the Minister for Planning and Environment to meet his statutory plan-making responsibilities.
Action required:	Refer the proposed amendment to the Greffier of the States.
Signature:
Position:	Minister for Planning and Environment
Date Signed:		Date of Decision (If different to Date Signed):

Project de Loi: Planning and Building (Amendment No. 5) (Jersey) Law 200-

REPORT

Introduction

The Island Plan is an important document: it sets out the future planning policy framework for development in the Island. It is an important material consideration to which the Minister for Planning and Environment is obliged to pay the closest attention in determining applications for planning permission. The Minister is not legally bound to determine an application in accordance with the provisions of the Plan, but there is a strong presumption that he or she will do so.

Owing to the public significance and primacy of the Island Plan, it is important that there is an exacting process for the publication, consultation and decision-making when it comes to revisions and or reviews of the Island Plan: this is required by the primary Law and the Minister is legally bound to ensure that a rigorous and transparent process of consultation and scrutiny is undertaken.

The current Law makes it clear that it is the duty of the Minister to prepare and to present to the States any review or revisions of the Island Plan. The Law presently makes no provision for anyone else to prepare revisions to the Plan and a ruling of the former Bailiff made it clear that it would undermine the planning process if the Minister’s plan, or any revision to it, could be subject to amendment by other members without undergoing similar procedures for publication, consultation and transparency that are imposed upon the Minister. This means that, unusually, the Minister for Planning and Environment’s proposition to revise or review the Island Plan is not presently legally capable of amendment.

The Minister for Planning and Environment and others believe that it is, however, important that all States members have an opportunity to seek to amend the Minister’s proposition for a new Island Plan or a revision to it. To ensure, however, that the planning process is not undermined, it is important that this is enabled in an open and transparent manner which provides for appropriate publication, consultation and transparency of any such amendments, as appropriate. For this reason, the Minister for Planning and Environment is proposing to amend the Planning and Building (Jersey) Law 2002.

Proposed amendments

Definition of the Island Plan

It is proposed to change the definition of the Island Plan in the Law to make it clear that that which the Minister for Planning and Environment brings to the States is a draft Island Plan. This applies to both a complete review of the existing Plan and a review of part of it. This has the effect of making clear that the Minister’s draft Plan is capable of amendment by others and that the plan only becomes the new or amended Island Plan when it is approved by the States.

Dealing with amendments

It is proposed to insert a new provision in to the principal Law to enable and set out the process by which amendments to a draft Island Plan, lodged by the Minister, will be considered. This includes the following:

that a draft Island Plan must be lodged for 12 weeks before it can be debated;
four weeks are provided for any amendments to the draft Plan to be made;
a further two weeks is permitted for any amendments to amendments to be submitted.

The purpose of requiring amendments to be lodged for a longer period of time than would apply under Standing Orders is to allow sufficient time for the Minister to consult upon the amendment. This specifically addresses the point in the former Bailiff’s ruling that any proposals for a new or amended plan ought to be published and consulted upon, prior to adoption, as required for those proposals to review or amend the Island Plan as brought by the Minister. Accordingly, a period of six weeks is provided for any such consultation to take place once amendments have been submitted and prior to a States debate.

The requirement for consultation and the form of it is proposed, however, to be flexible and discretionary on the part of the Minister. The reason for this is to enable the Minister to undertake some form of further consultation on amendments only where an amendment raises matters which are new and of substance and which have not been the subject of earlier consultation and scrutiny. It is relevant to note that, under the current legal framework, any draft Island Plan or revision of an Island Plan is required to go through extensive and exacting procedures for consultation and scrutiny, where there is considerable opportunity for issues to be raised, considered and debated, as well as being considered independently through a public inquiry. Some of these issues may remain unresolved and will become the subject of amendments that will need to be determined by the States: where they have already been the subject of consultation and independent scrutiny it is considered that there is little value or purpose in repeating the exercise. It is not considered desirable or necessary for matters previously consulted upon in the draft Plan or considered in an Examination in Public, to be reviewed again through a further process of consultation. It is only considered necessary for this provision to be required, recognising the requirement for an open and transparent process for a new or amended Island Plan, where matters raised by amendments are substantive and new, where they have not been previously considered in the plan-making process.

The form and nature of any such consultation is proposed to remain at the discretion of the Minister. Where necessary, the Minister may seek the agreement of the States to defer the date of debate beyond that set for six weeks from the date of the last amendment if he or she feels that this is insufficient time to properly deal with the matter at hand. The proposed amendment to the Law also seeks to enable a further amendment to brought by the Minister within the last six weeks prior to debate, without the requirement for further consultation and delay to the debate, if the States is agreeable to this to enable the practical and timely business of government, where there is agreement to do so.

Consultation

There has been no formal process of consultation on this proposed amendment on the basis that it is designed to deal with a procedural issue of direct relevance to States members in the plan-making process whilst seeking to ensure that due process and rigour, as already required by the Law, is integrated into the proposed amendments.

Subject to the necessary approvals, it is envisaged that the amended Law would come into effect prior to the States’ consideration of the draft Island Plan presently the subject of review, which is due to be presented to the States in mid-2010.

Resources

There will be resource implications of this proposed amendment related to the potential requirement for further rounds of consultation in respect of new and substantive amendments to the draft Island Plan once lodged au Greffe by the Minister. The extent and nature of this cannot be foreseen and the requirement will need to be managed within the resources available to the Minister for Planning and Environment to meet his statutory plan-making responsibilities. It is, however, possible that the extensive consultation procedures built into the current plan-making process may serve to reduce or limit the number and substance of amendments in response to the Minister’s lodged draft Plan.

European Convention on Human Rights

Article 16 of the Human Rights (Jersey) Law 2000 requires the Minister in charge of a Project de Loi to make a statement about the compatibility of the provisions of the Projet with the Convention rights (as defined by Article 1 of the Law). The Minister for Planning and Environment made the following statement –

In the view of the Minister for Planning and Environment the provisions of the Planning and Building (Amendment No.5)(Jersey) Law 200- are compatible with the Convention Rights.