Guidance

Handling arrangements for relevant approvals under the Town and Country Planning (Border Facilities and Infrastructure) (EU Exit) (England) Special Development Order 2020

Published 3 March 2022

Applies to England

1. The Town and County Planning (Border Facilities and Infrastructure)(EU Exit)(England) Special Development Order 2020 (“the 2020 Order”)grants temporary permission for inland border facilities in England and infrastructure associated with this use. The planning permission is subject to several conditions, including securing the Secretary of State’s approval (“a relevant approval”) before the development of a specific site can start. When seeking a relevant approval (article 4) the relevant border department is required to submit an evidenced proposal for consideration that confirms that the environmental effects of the development accord with the conditions of the planning permission.

2. The development can only be carried out by, or on behalf of, a border department as defined in the 2020 Order. The Secretary of State for Levelling Up, Housing and Communities is not a border department. He is responsible for making relevant planning decisions under the 2020 Order.

3. The border departments as defined in the Order are:

a. the Commissioners for HM Revenue and Customs

b. the Secretary of State for the Environment, Food and Rural Affairs

c. the Secretary of State for Business, Energy and Industrial Strategy

d. the Secretary of State for Transport.

4. The 2020 Order (Article 3 (4)(a) and (b)) does not permit Schedule 1 development, or Schedule 2 development, as defined in regulation 2(1) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations), unless, in respect of Schedule 2 development, the Secretary of State has:

(a) concluded in determining a submission made under article 4(1)(a) that the development is not EIA development as defined in that regulation and has made a screening direction to that effect under regulation 5(3) of those Regulations; or

(b) directed under regulation 63(1) of those Regulations that the development is exempt from the requirements of those Regulations

5. Before granting a relevant approval the Secretary of State must first determine whether the planning proposal is EIA development. This screening stage makes sure that the form of development remains within the Order limits and reflects the screening process undertaken under the EIA Regulations. In the interests of transparency when considering relevant approvals made under the 2020 Order, we have chosen to set out in this document how we take decisions on a request for relevant approval made by or on behalf of a border department in respect of a particular site. This is consistent with cases where regulation 64(2) of the EIA Regulations applies.

6. Regulation 64(2) of the EIA Regulations provides that:

Where an authority, or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.

7. This note sets out the administrative arrangements, consistent with regulation 64(2) of the 2017 Regulations, with respect to submissions made under article 4 (1) (a) of the 2020 Order. The arrangements make sure that:

(i) The functions of the competent authority will be undertaken by persons provided with the necessary resources and acting impartially and objectively;

(ii) Any person acting or assisting in the handling of the relevant approval is prevented from being involved in promoting or assisting in the promotion of the planning submission; and

(iii) Any person acting on behalf of a border department and who is involved in the promotion, or assisting in the promotion, of the development is prohibited from giving any instructions to, or putting any pressure upon, any person acting or assisting in the handling of planning submission in the Department for Levelling Up, Housing and Communities (DLUHC), or from attempting to do so.

8. The administrative arrangements make sure that propriety guidance is followed (the Ministerial Code, the Civil Service Code and relevant professional standards) and that planning submissions are handled in a way that avoids any potential conflicts of interest, or any perception of a conflict, and/or that the decision-maker has been influenced by irrelevant considerations.

9. The arrangements that we have put in place make sure that ministers and officials who have formal responsibility for the establishment of Inland Border Facilities in England are explicitly excluded from the formal planning decision-making process.

10. These administrative arrangements do not prohibit those acting on behalf of the border departments, and officials in DLUHC from seeking or providing information that clarifies the requirements and procedures associated with submitting a request for a relevant approval under the 2020 Order. The National Planning Practice Guidance encourages such engagement to improve both the efficiency and effectiveness of the planning system. Such engagement includes working collaboratively and openly with interested parties at an early stage to identify, understand, and seek to resolve issues associated with a proposed development. Officials will also engage with the interested parties when dealing with formal proposals for a relevant approval for the purposes of clarification.

Proposed handling route for 2020 Order relevant approval casework

Ministerial level

Minister of State (Minister for Housing) with responsibility for planning is responsible, on behalf of the Secretary of State, for taking decisions on whether to give relevant approval in respect of the development of a particular site under the 2020 Order and any other applicable ministerial statutory responsibilities arising in respect of the determination of the submission for a relevant approval.

In the event that the Minister of State (Minister for Housing) with responsibility for planning recuses himself from making a decision, the Parliamentary Under Secretary of State (Minister for Rough Sleeping and Housing) will be responsible for exercising the functions on behalf of the Secretary of State.

The minister is not subject to paragraph 2.3 of the Ministerial Code or “collective Ministerial responsibility” in relation to any matter affecting the discharge of the duties of the Secretary of State under the 2020 Order making a decision following a planning submission for a relevant approval.

Other DLUHC ministers, or their special advisors, are prohibited from giving any instructions to, or putting any pressure upon, any person acting or assisting in the handling of a planning submission in DLUHC, or from attempting to do so.

Official level

The Director of Planning will have oversight of procedures and processes involved in any relevant approvals under the 2020 Order but does not provide professional planning advice.

The Head of the Planning Response Unit will manage the team of professional planning advisers (below) and provide professional planning advice to the minister making decisions on submissions for relevant approval under the 2020 Order.

Senior Planning Officer – provides planning professional oversight of case officers and provides planning advice. Planning Response Unit Case Officers – provide professional planning and other advice on submissions made under the Order.

Legal advisors to the Planning Response Unit – provide professional legal advice to the minister making decisions on submissions for relevant approval under the 2020 Order.

Freedom of Information (FOI) / Environmental Information (EIR)

Requests for information under the FOI / EIR will be considered in the normal way.

Detailed handling arrangements

To make sure the arrangements set out above are maintained, we propose to take the following actions:

• The proposed handling route above is adhered to and any DLUHC person acting or assisting in the handling of the relevant approval will not be involved in promoting or assisting in the promotion of the planning submission;
• Material related to the determination of relevant approval cases will not be stored on shared file spaces accessible by those outside of the DLUHC decision-making chain noted above and the Planning Response Unit team;
• Make sure this note is circulated to everyone working on relevant approvals for inland border facilities under the 2020 Order, and

• The note will be recirculated when there is a material amendment to the administrative arrangements.