Judicial review 1990
Publisher: W.Green & Son Binding: Hardback
ISBN: 041400955X Pub Date: 1990 List price: £ 40.00
Public Inquiries
Public Inquiries offer the best chance that a local community have to effect the development proposals in their area, whether that’s a planning appeal or an inquiry into local plans, village greens or compulsory purchase of land for development. However it can also be time consuming and complex. Not quite a court of law, but run on very similar lines, which can be daunting for the local resident who just wants to speak their mind.
However a well prepared case, presented in a professional way can have a real effect on the decision maker, quite often making the difference between a good or a bad result. Especially if as the author of this briefing once found that the local community was the only effective opposition in a 12 week public inquiry, with on one side myself as the only effective representative of the local community with no resources, with the other side having 3 specialist barristers, one for the council, one for the developer and another for the public transport authority. Without our opposition, our cross examining of the witnesses, then the development would have been passed on the nod. the result was that we did not simply win, we won on every major point - ecology - transport - planning policy - economics and the effect on the local community. Had we not put up a fight then the £250 million development would now be built.
There are 4 main types of public inquiry that concern us, there are some differences to the procedures used, but generally, apart from village greens the inquiries themselves are for the most part, the same. Village/Town Greens do not actually have a set down decision making process, other than the local registration authority must make the decision (County or Unitary/Metropolitan). Most local authorities do though have differing degrees of tribunal/inquiry, as such inquiries and procedures for determining for Village Greens are found in the Village Green Forum.
The legislation
Primary legislation is The Town & Country Planning Act 1990. Within this there is provision for developers that are not happy with a decision to appeal to the Secretary of State (Environment, Transport and the Regions), appeal when the local authority fail to reach a decision in the time limit, and to allow the Secretary of State to call the application in for his consideration. In addition to this there are appeals and inquiry procedures, for mineral extraction and waste disposal, compulsory purchase, new roads and other transport infrastructure. A listing to all the various sections of primary legislation is found below.
Secondary Legislation - Most have their own secondary legislation that governs the procedure, time limits and types of appeal. We will deal with each aspect in turn, except where a full briefing is required for that type of inquiry, in which case the briefing will be found in that topic forum.
The processes are that of an inquiry on the papers, an informal inquiry, and a full public inquiry. In all cases the decision on an appeal against refusal of planning permission, an appeal agaimst non determination or an appeal against enforcement is taken by an Inspector, the only difference being that of the process used. With a call-in inquiry, where the Secretary of State reserves the decision to hemself then the Inspector hold the inquiry makes a recommendation, but the final decision rests with the Secretary of State (in reality the Regional Government Office). I set out below a brief overview of the 3 processes.
Public Inquiry on the Papers
The procedure for written representation is set down in the
Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000 SI 1628.
This process is very similar to that of the process undertaken by the local planning authority, an insspector will look at all representations made both by the LPA the developer and other statutory bodies, as well as the public. Notices are placed in the local paper, and those making representations to the LPA would also be informed of the appeal. Letters of objection are submitted, the inspector will then make a site visit, usually accompanied by the parties. He will then make his decision and publish it in the normal way. In theory there is no advantage, or disadvantage to this process, it is arguably faster, and for Joe Bloogs much easier to make representations as that is done in writing. Although Planning Saniuty would always prefer the full process as this gives a better chance of taking to task the developer, but in any event the developer will see your representation before he submits his final submission which is arguably unfair.
Informal Public Inquiry
The Informal inquiry procedure is governed by the
Town and Country Planning (Hearings Procedure) (England) Rules 2000 SI 1626.
This process is a cross between the writen and the full inquiry, whilst it offers less opportunity for challenging the developer. It is a very informal affair, conducted more like a round table debate, than the formal inquiry, so is more suited to the member of the public that is nervous and acting on their own. It allows some ability to put questions to the developers and to test evidence but not to the degree of a full inquiry.
Full Public Inquiry
The pocess for full public inquiries determined by inspectors is governed by the
Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 SI 1625. And for those determined by the Secretary of State by the
Town and Country Planning (Inquiries Procedure) (England) Rules 2000 SI 1624.
The public Inquiry Process
The public inquiry is a semi jucial inquiry, it is chaired by an inspector appointed by the Secretary of State, who is attached to the Planning Inspectorate. The decision of the inquiry depends on whether it is an appeal from the decision of the local planning authority, or whether the application is one in which the decision is reserved to the Secretary of State. The first of these categories the decision is for the inspector, where as where the Secretary of State reserves the decision to himselve then the inspector reports to the Secretary of State with recommendations, it is then for the Secretary of State to accept the recomendations in full or in part, or to reject them in full or in part, or substitute his own decision and reasons for that of the inspector.
Most inquiries are appeals against decisions of the LPA or appals against failing to make a dtermination. The applicant has a rioght within 6 months to appeal to the Secretary of State and to appear before and be heard by a person appointed for that purpose. There are though more and more inquiries now being decided on the papers alone, without a formal hearing. The public have very few rights to get public inquiries into planning proposals. The best that can be achieved is stout lobbying of the Secretary of State (Regional Government Ofice).
The local authority on the lodging of the appeal, or notification by the Secretary of State that he is to hold an inquiry, places a notice at the at the site, and places a notice in a local paper circulating in the area, for two consecutive weeks. This notice informs the public where they can send objections, the latest date for objections, and basic details of the proposal, and where more info can be viewed.
There is a time table set out that should be aimed at, it can be as flexible as the inspector allows. First the LPA will produce a statement of case, this is then followed by a statement of case by the appellant. The public do not have to produce statements of case, but the Secretary of State can request that a person who informs him of their intention of appearing at the inquiry produces a statement of case. A statement of case is broadly an overview of that persons case, the issues they are likely to be raising, attached to it should be copies of any reports that are going to be relied upon. However it should not be too indepth, that is the role of the next set of documents, the proofs of evidence.
Each witness will produce a proof of evidence, and where they extend to more than 1800 words (two to 3 pages) a supplementary proof of evidence. These are indepth presentation of a case, tailored to the specifics of the line of evidence of the individual witness, especially where that witness is a professional in a given field of expertise. The supplementary proofs of evidence are actually read out at the public inquiry, expanding upon points as needed, and refering to the main proof, which is taken as read.
There are 3 other documents that relate to evidence. Rebutal proofs of evidence, which as the name inplies relates to the answring of the evidence in opposing proofs. The appealant has the right to give an opening speech, and each of the parties give a closing submission, normally not presented in written form until the time of giving the speech, often having been hand writen in the lunch break before the end of the inquiry.
The rebuttal is a good opportunity to redress issues raised by the other parties in writing, as the inspector will have these before him for reference when making his final decision. The opening spech sets out the case as the appellant sees it. And the closing is the final opportunity to stress issues that you want the inspector to take on board, to point to the failing of your opponents evidence, and generally sum up your case, it cannot be used to raise new issues.
Unfortunately the level of participation of members of the public is at the discresion of the inspector. Although the public should not be denied the opportunity to speak, few inspectors will allow cross examination of opponents. However there is a process known as 'Rule 6 Status', whereby members of the public can be granted similar status to other parties. This process comes out of Rule 6.6 of the Inquiry Procedure Rules and is granted to a person who notifies the Secretary of State that they intend to appear at the inquiry. Note this is the Secretary of State, not the Planning Inspectorate. You should write to the Secretary of State at the relevant regional government office, stating you intend appearing at the inquiry, if appropriate point out that you are the representative of so and so local group.
Rule 6 status is also useful because you have a more formal role in the inquiry, you should also be given copies of all documents, and be allowed to crosas examine witnesses for those supportinmg the development, but not those of fellow opponents. And you will be allowed to give a closing speech, but not to make comments (except at the discresion of the inspector) on the proposed conditions, or section 106 agreements. You should make your application at the earliest opportunity after the announcement of the inquiry.
Larger inquiries will have what is termed a pre-inquiry meeting, this is basically an agenda setting meeting, and an opportunity for the inspector to inform the parties of the issues he wants specifically to hear about. In smaller inquiries this is normally done at the opening of the inquiry. Larger inquiries will also have a clerk whos job is to keep a library of all the documents, and to take care of procederal issues, such as the agenda. At smaller inquiries these jobs will be split between the inspector and one of the council team.
The process in the inquiry is that the inspector open the inquiry, followed by the appellant giving an opening speech, followed by calling each of his witnesses, who will read their supplementary proofs expanding upon issues, normally the legal representative (where represented) of the party will take the witness through his case, asking questions as appropriate. The opposing parties then cross examine the witness, followed by re-examination by the appellant, finally the inspector will ask questions of the witness. Each of the parties go through this process, starting with any other supporters, then the local authority (if they are opponents, if they are supporters they go before other supporters), then the other opponents, and lastly members of the public. The process being the same for each witness.
The inspector will normally have carried out an unaccompanied site visit before the inquiry begins, and then will hold a formal site visit normally after the evidence has been given, this entails all the parties visiting the site, whilst evidence cannot be put at the site meting it is permissable to point out salient features. This site visit may also at the discretion of the inspector include alternative sites, and other relevant areas, such as road junctions. After the site vist the parties will give their closing speeches, followed by presetations by the local authority and the appellant of issuies relating to conditions. The Inspector then closes the inquiry, depending on who is the final decision maker the decision will be made in a formal reasoned statement/report some time later.
Where the inspector is making the decision on his own then he will issue a decision letter, normally within 3 to 4 weeks. If the Secretary of State is making the decision, then the Inspector prepares a report, which is then submitted to the Secretary of State, who then makes his decision, this can take a considerable time, from 6 weeks to over a year. The inspectors report and Secretary of State's decision letter being published together. However in reality, except in the most controversial major developments, the decision is made not by the Secretary of State or one of his Ministers, but by the regional government office.
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