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Advice to Tom Henderson

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Enquiry

From
Tom Henderson
Date advice given
20 September 2012
Enquiry type
Email

We wish to raise a couple of points in relation to representations received by PINS on the M1 J10a scheme.

Firstly, we note that regulation 3(5) of the Infrastructure Planning (Examination Procedure) Rules 2010 provides that relevant representations must be made available "as soon as practicable" after receipt by PINS. In our view it would be practicable for Luton to be provided with the representations now, so that we can begin to consider them. Note that under the comparable procedure for Transport and Works Act orders, applicants are sent representations as and when they come in (see rule 22(1) of the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006). On that basis, could we ask for all representations received thus far to be forwarded, and any received up to Friday of this week to be forwarded as and when received?

Secondly, we're aware that some third parties have submitted representations in support of the scheme, but by letter instead of using the registration form on PINS' website. We are aware that to become an "interested party" in respect of the application, a person must register and complete the form. But in the absence of a registration form being filled out, our view is that PINS should still have regard to any correspondence received from third parties about the scheme, and publish it on the website in accordance with the policy of openness.
Those submissions can then be brought to the attention of the Examining Inspector, and taken into account in the decision-making process as appropriate. This would be consistent with section 104(2)(d) of the Planning Act 2008, which states that the Secretary of State can take into account "any matters [he] considers important and relevant".

Advice given

Thank you for your email of 17 September 2012 at 5.25pm in which you raise a couple of points about representations received and request that all representations received so far be forwarded to you, and any received up to Friday of this week to also be forwarded as and when received.

With regards your first point. If we were to forward any relevant representations (or other representations received that have not been made on the prescribed form) to you (on behalf of the applicant) alone, this would not in our view be in accordance with Rule 3(5) of the Infrastructure Planning (Examination Procedure) Rules. Rule 3(5) requires that relevant representations and other documents must be made available 'in accordance with Rule 21' (our italics).

Whilst we note the provisions that apply in relation to Transport and Works Act applications, Rule 21 provides (inter alia) that relevant representations must be made available to all interested parties and others by way of being published on a website. Since all applications for development consent are dealt with in an open examination process, and given the status of interested parties in that process, we would query whether the approach you propose would be in accordance with public law principles of fairness, and natural justice.

With regards your second point that the Planning Inspectorate (PINS) should still have regard to any correspondence received from third parties about the scheme that have not been made on the prescribed form. In our view, it is the Examining Authority (ExA), in examining and making a recommendation on an application, and/or the relevant Secretary of State (SoS) in making his/her decision on an application, that might wish to have regard to such representations rather than PINS, although whether they wished to do so would be a matter for the particular ExA/relevant SoS concerned in each case.

With regards the decision making powers of the SoS, we note that both s.104(2)(d) and s.105(2)(c) of the Planning Act 2008 (the 2008 Act) state that in deciding an application the SoS must have regard to 'any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State's decision', and other representations received that have not been made on the prescribed form could include such matters.

With regards publication, I would note that we publish as soon as practicable representations received that are not relevant representations, and make these available on the project page of the Planning Inspectorate pages of the Planning Portal website.