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27/01/2022

Lords vexed by use of secondary legislation to make permanent PDR for marquees

Words: Laura Edgar
Review / Cosma, Shutterstock_70706149

The House of Lords Secondary Legislation Scrutiny Committee has outlined concerns about instruments laid before Parliament that change building regulations and planning law.

The concerns were raised during the committee’s 26th report of session 2021/22.

Lord German, member of the Secondary Legislation Scrutiny Committee, said the committee’s November 2021 special report Government by Diktat: A Call to Return Power to Parliament raised concerns about departments providing insufficient explanatory material to allow Parliament to carry out effective scrutiny of secondary legislation and examined how secondary legislation could be used to make temporary measures permanent when such changes would have been more appropriately made using primary legislation.

The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 3) Order 2021, makes permanent a permitted development right (PDR) for marquees and gazebos to be erected and used at pubs, cafés, restaurants or historic visitor attractions without the need for planning permission, among other measures. It was originally a temporary right introduced in 2020 to aid businesses during the Covid-19 pandemic.

The committee acknowledged DLUHC’s support of the economic recovery but is concerned that “some of the temporary measures originally introduced to address these effects are now being made permanent despite the adverse impact they may have on members of the public”. Those with concerns about a development will no longer be able to raise their concerns through the planning process.

Furthermore, the committee is concerned that the outcome of a public consultation on these rights held between September and November 2021 has not been published, especially given that the “results show that while there was support for making the changes permanent, two-thirds of individuals who responded expressed concerns about noise and the impact such moveable structures might have on the appearance and access to heritage sites”.

Introducing changes being made permanent through secondary legislation is a concern for the committee because they will not be subject to the “robust parliamentary scrutiny and debate that would have been guaranteed had they been implemented using primary legislation”.

The Building Regulations etc. (Amendment) (England) Regulations 2021 facilitate changes to increase energy-efficiency standards for buildings.

An explanatory memorandum was set out alongside the amendment regulations; it includes links to consultation responses and impact assessments. For the committee, this explanatory memorandum assumes “an extensive understanding of the current building regulations and how they are being developed”. The committee said it doesn’t explain the effects of the changes or how they will operate.

As part of its scrutiny work, the committee had to obtain further information from DLUHC and “strongly” feels the public shouldn’t need to consult additional sources to understand the instrument, particularly given that it is “complex and technical”.

The committee recommends that the DLUHC should revise the explanatory memorandum and also drew special attention to the house of the regulations as the memorandum provides “insufficient information” to make sure it is clearly understood.

German explained: “For an explanatory memorandum to fulfil its purpose, it must provide Parliament, those affected by changes in the law and the wider public with a clear and accessible, stand-alone explanation of the effect of an instrument and how it is intended to operate. The Building Regulations (Amendment) 2021 fails on this point and needs to be revised accordingly.

“The changes introduced by the Town and Country (Amendment) (No. 3) Order making permanent previously time-limited provisions to the planning regulations around moveable structures may have an adverse impact on members of the public and yet they will have no right to object under the planning process. This issue may outweigh any economic benefits to towns and city centres arising from their implementation.

“It is regrettable that despite previous concerns raised, the department has continued to employ secondary legislation to make temporary measures introduced during the pandemic permanent and also that the department implements these changes prior to publishing the government’s response to their consultation, especially given the concerns raised by two-thirds of the respondents.”

Image credit | Cosma, Shutterstock

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