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Advice to Marrons

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Enquiry

From
Marrons
Date advice given
22 February 2012
Enquiry type
Email

Under Schedule 13 of the Localism Act 2011, s38 Planning Act 2008, which makes provision for Secretary of State to prescribe the model provisions, is to be omitted. Do you have any further information on when the current model provisions are being revoked?

Can you please confirm whether, if the Model provisions have been revoked by the time we submit our application, we will then (contrary to guidance and the Prescribed Forms and Procedures Regs) no longer need to explain any departures in our draft Order from the model provisions in the Explanatory Memorandum?

Advice given

s.38 of the Planning Act 2008 (the 2008 Act) is the relevant substantive provision in the primary legislation for this regime dealing with model provisions - in particular, enabling the Secretary of State to prescribe model provisions and requiring that the Commission must have regard to these. Paragraph 6 of Schedule 13 to the Localism Act 2011 (2011 Act), states "Omit s.38 (Secretary of State may prescribe non-compulsory model provisions)". This provision of the 2011 Act, omitting s.38 of the 2008 Act, will come into force on 1 April 2012.

No decision has yet been made by the Government as to whether or not Guidance will be published to deal with model provisions. Any Guidance that might be published with regards model provisions would though be 'non-compulsory' - there would not be any express statutory requirement to have regard to it (compare with for example, at present s.38(2), and s.50(3) of the 2008 Act in relation to pre-application procedure Guidance).

In the event that the Model Provisions Order has been revoked prior to any Guidance being published, applicants will still be free to make use of the wording of those provisions, if they so wish, within the draft DCO they submit with their application, and also use them prior to that as a basis for any proposed draft(s) they prepare at the pre-application stage. Applicants may also still wish to set out in their explanatory memorandum any divergences from the (revoked) model provisions.