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Important Legal Notice

Need representation at an inquiry or a formal written presentation to your planning or village green authority. Planning Sanity may be able to help see our representation forum for more details.

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The vast majority of village green applications are now determined by holding a local inquiry that then reports back to the registration authority for a final decision. These are more correctly termed 'Non Statutory Local Inquiries', as they have no basis in law other than to give a fair procedure and as an evidence gathering exercise to better inform the Registration Authority as to whether all the required criteria has been established. They are usually held by an inspector who is a barister specialising in public law appointed by the Registration Authority. However, increasingly Inspectors from the Planning Inspectorate are now being appointed to hold the inquiries.

Whilst there is no set down procedure and some Inspectors will have their own preferences for running inquiries they all follow the same basic procedures. The Registration Authority will advertise the application in the local media and by writing to any known land owners, and adjoining land owners, if they receive any objections they will then decide whether a local inquiry should be held, if there is no objection then they will normally proceed to determine the application on the papers submitted by the Applicant, in most cases that would result in registration being a formality. Where there is objection, and that objection is deemed to have some merit, then the Applicant will be sent copies of the objection for comment, an Inspector will be appointed, and an inquiry organised. This will again be advertised in the local media, and may also have notices put up on the land.

It is for the Applicant to prove their case, all the objector has to show is that what is being asserted by the Applicant is not correct, or that on the facts of the case any one of the 4 criteria that has to be proven cannot be established. Evidence is based on the notion of probability as opposed to absolute, so the Applicant is not expected, as would be the case with a criminal prosecution, to demonstrate without reasonable doubt, they simply have to show that on the evidence presented to the inquiry that all four points are more likely to be in their favour than against. However, this process is not the scene played out in Rumbold of the Baily, it is quite sedate and can be quite boring to the onlooker.

Before the inquiry a date will be set for the Applicant and the main objectors to exchange what are known as proofs of evidence (more info on these below) and supporting documents, this would usually be, but not always, 28 days before the inquiry date, this should be an exchange on the same date so that there is no benefit or disadvantage to any of the parties. An Applicant would usually be required to supply a copy for each of the main objectors, the Registration Authority and the Inspector, so where there is only one objector you would supply 3 copies. There is then the opportunity of giving writen rebuttal evidence of the objectors evidence prior to the inquiry. Some Inspectors require that the proofs are put in as a formal bundle with copies of all additional documents, others require the formal bundles to be submitted a week or so before the inquiry. Some Inspectors will also require an outline legal submission and other preliminary documents.

At what ever stage you submit the formal bundle then you will need to make sure you prepare at least 5 copies (more if there are more than one objector), this is one for the Applicants Advocate, one for (each) the Objector, one for the Inspector, one for the Registration Authority, and the last one to be used by witnesses. The bundle needs to be set out in a very precise way, all pages need to be numbered, and there should be tabs put in to separate sections, the following might be a typical bundle composition.

• Index
• All application forms and supporting statements
• Proofs of evidence and supporting documents
• Other letters of support
• Questionnaires
• Other documents
• Photos
• Plans
• Outline legal argument
• Copies of precedents and other legal documents

This might consist of more than one volume, and would normally be put in ring binders, with each being labelled 'A', 'B' etc. Put things like questionnaires in alphabetical order. Photo's where possible should have their own explanatory index, and a plan showing the position and direction the pictures were taken from, for instance you might say that the photo was taken in winter at 10am the weather was good, and what the picture is showing. We can help you put the bundle together, and to guide you on what charts and similar help documents you might want to include.

The procedure at the inquiry should be along these lines, but can differ with different Inspectors.

• Opening comments by the Inspector
• Opening submission of Applicant
• Applicants formal witnesses evidence in chief
• Cross examination by Objector of Applicants witnesses
• Re-examination of Applicants witnesses by Applicant
• Inspector asks questions of Applicants witnesses
• Members of the public in support give evidence in chief
• Cross examination of members of the public
• Questions of members of the public from Inspector
• Opening submission of Objector
• Objectors witnesses evidence in chief
• Cross examination of Objectors witnesses by Applicant
• Re-examination of Objectors witnesses
• Inspector questions Objectors witnesses
• Formal site visit
• Objectors closing submission
• Applicants closing submission

The format for giving evidence is for the witness to be guided through their evidence by the advocate for that witness, with appropriate questions or expansion as they go through the evidence, and then for the witness to be asked further questions at the end, before passing over to the advocate for the other side. The witness will be taken to passages in documents that they want to expand upon, and even asked questions on passages from witnesses from the other side. There are 3 golden rules that should be followed when giving evidence, first never answer yes or no to a question, always answer with an explanation in order that you can fully expand upon point in issue, next, count 1-2-3 under your breath before answering any question, this enables you to think before blurting out an answer that you then regret but cannot take back, and finally to never answer a question that you do not know the answer, either ask for the question to be repeated or simply state that you do not know the answer. People should not get together to get the same story this comes across as false and you will be caught out, far better that people answer in their own way, different people will answer differently from the same set of facts, honesty is always your best tactic, it will show in the credibility of your witnesses, and thus greater weight attached to their evidence.

Opening submissions which we can usually help you compile should give the broadest of intros to you case, and should clarify any points, for instance if there are any misunderstandings of the extent of your locality. You should also indicate at this time any applications you might want to make, for instance for the registration authority to consider a lesser area if they conclude that part of the land has not been proven to be a village green but other parts have, rather than face total rejection of the application. Closing submissions are more complex, they should be a mix of bringing together the evidence, discrediting the evidence of the other side and the submission of legal arguments. Again we can help with compiling a legal argument, but of course if we are only advising from a distance we can only do that in a general way, rather than the specifics of your case, you must therefore read and understand most if not all of the court cases, flagging up any relevant passages. We are always happy to go through cases with people so that they do understand what is being said by the judges, and of course copies of most judgements can be downloaded from our web site.

An average inquiry lasts 3 days, although some can be over in less than a day and others can go on for several weeks. Much clearly depends on the number of witnesses and the extent of the evidence they are presenting. The cost of the inquiry and the inspector are met by the registration authority, and unlike some inquiries there is no ability for there to be a cost order ordered against any of the parties involved. Each party will though pay its own cost of the inquiry. If applicants represents themselves then the cost should be minimal, just copying and other similar costs, the only time that real expenditure kicks in is where you employ professional advocates. A junior barrister might charge £1000 to £2000 per day, a QC (senior barrister) double that, a solicitor might charge £500 to £1000 per day, each with a 2 to 3 days preparation the cost can be quite high, Planning Sanity have a few lay advocates who are experienced, but not qualified that can do advocacy for applicants for a donation to our funds and their out of pocket expenses, a donation might be in the range of between £500 to £1000 for the entire inquiry irrespective of how long it lasts, out of pocket expenses would include amongst other things bed and breakfast and travel cost. The donation is to offset any loss of earnings of the volunteers as well as to help finance the work of Planning Sanity.

Inspectors do not announce their findings at the end of an inquiry, they compile a report they then pass this to the registration authority who then make their decision either along the lines of the inspectors report, or by substituting their own decision for that of he inspectors. The time frame can be from 2 to 6 months before you get a final decision after the close of the inquiry. The decision of the registration authority is final, although you can apply to the High Court for judicial review of the decision, or you can even make a new application, providing you can point to some new factor or other criteria.

Defra has indicated that there will be new regulations and a formal inquiry procedure, but that has not as yet been published, in the mean time Planning Sanity are lobbying Registration Authorities to adopt The Town and Country Planning (Inquiries Procedure)(England) Rules 2000 and the associated Circular 05/00: Planning appeals procedures (similar rules apply in Wales). Whilst these rules are specifically designed for planning inquiries they would give greater consistency to the process and procedures at inquiries across England and Wales, at the moment there is no consistency, and as such the outcome of applications are that much harder to predict, as well as knowing what resources local communities should put into inquiries until after an Inspector is appointed, and that Inspector sets out (some give no indication) what procedures they will adopt. The Planning Inspectorate has published the following as the Code of Conduct for Inspectors, which does not apply to Inspectors that do not come from the Planning Inspectorate but clearly all Inspectors should be held to follow these principles:-

Inspectors Code of Conduct
Although these principles are mainly directed at planning inspectors, they also apply to all decision-makers in the Planning Inspectorate.

This code is based on the seven principles of public life set down by Lord Nolan as chairman of the Committee on Standards in Public Life. The seven principles are selflessness, integrity, objectivity, accountability, openness, honesty and leadership. It is also based on the 'Franks principles' of openness, fairness and impartiality. The principles set out below are on top of the duties and responsibilities inspectors have under the Civil Service Code.

1. Inspectors make their decisions and recommendations in the public interest.
2. Inspectors do not judge a case before they have considered the evidence.
3. Inspectors are not involved in cases where they have a financial interest or a personal interest that may cause them to be seen as biased.
4. Inspectors are not influenced by irrelevant considerations or outside influences when making their decisions and recommendations.
5. Inspectors refuse all gifts, hospitality and other benefits offered by people who have an interest in a case, other than those of little or no value.
6. Inspectors handle cases as quickly as possible.
7. Inspectors treat each person with dignity and respect.
8. Inspectors do not discriminate against people because of their race, sex, sexuality, marital status, religion, disability, age, and so on.
9. Inspectors avoid unnecessary delay in reaching their decisions and recommendations.
10. Inspectors give reasons for their decisions and recommendations.
11. Inspectors keep their professional knowledge and skills up to date.
12. Inspectors are responsible for their decisions and recommendations.

The argument for the Planning Inspectorate to be responsible for all town and village green inquiries is strengthened by the fact that the Inspectorate is now responsible for all applications for works orders on Commons and Village Greens as well as de registration applications. Procedures are now in place for those inquiries, it would therefore be simple, albeit further resources would need to put into the Inspectorate by the Government, for the Inspectorate to take over TVG inquiries. The fact is at the moment those acting as Inspectors can on one occasion be an Inspector and on the next an advocate for either the objector or applicant, and often we see a reversal of roles within the same limited group of legal professionals, that is on any two inquiries the inspector and objectors advocate can swap roles, this is clear potentially biased with each being conscious of the need to get a good decision on the next inquiry that they will be the advocate, this is clearly looks unfair and biased and in our view contrary to ECHR Article 6.1 (right to a fair hearing). When Inspectors from the Planning Inspectorate conduct inquiries that element for potential bias is removed, usually the Inspector will then adopt the Planning Inquiry Rules thereby giving more certainty of how the inquiry will be conducted. We therefore urge all Applicants to lobby their Registration Authorities to appoint the Inspectorate to conduct the inquiry.

Please do not hesitate in contacting us for help and advise, most of our services are free, although we encourage donations, and we do need to insist on reasonably large donations for representation at inquiries. We are an unfunded organisation and rely on the donations of those that seek our help to keep this service open as the only independent UK wide resource for communities faced with the prospect of inappropriate developments.