The Scottish Government

Contents |

Listen

Circular 17/1998

Annex A
CODE OF PRACTICE FOR PLANNING AND COMPULSORY PURCHASE INQUIRIES

Introduction

1. It is vitally important that Reporters obtain the material necessary to make an informed and reasoned recommendation or decision on a development proposal or objection to a Compulsory Purchase or other Order being considered at an inquiry. To do this, they hear evidence from the parties and may also seek such other information as they consider appropriate. They must be satisfied before the inquiry ends that they understand the relevant arguments and submissions, and they also need to ensure that the parties have had an adequate opportunity to present their case and that they have had a fair hearing.

2. Reporters must always act in accordance with the principles of fairness, openness and impartiality established by the Franks Committee in its 1957 Report "Administrative Tribunals and Inquiries", but they are also responsible for ensuring that inquiries are run efficiently and that inquiry time is not wasted and is used to the best advantage of all concerned. They will thus seek to avoid spending time on matters that are not disputed, where agreement can be reached more easily or quickly outside the inquiry itself, or where sufficient evidence has already been given to establish a particular point. The Secretary of State places particular emphasis on the desirability of all parties co-operating with each other so as to ensure that the inquiry process operates as efficiently and effectively as possible. This is unlikely to be achieved if the deadlines for submitting statements and other documents are not adhered to, and the Secretary of State wishes to make it clear that Reporters are likely to find that the late circulation of material could be considered unreasonable behaviour which may result in an award of expenses.

BEFORE THE INQUIRY

Planning or other type of Appeal

3. Where an appeal is lodged against refusal of planning permission or the imposition of conditions, the reasons given by the planning authority in the decision notice should be complete, clear and precise. The aim should be to explain the background to the decision to the appellant and to express the planning authority's objections to the proposed development as fully as possible. This should assist appellants in assessing how such objections might be overcome. Stereotyped or general grounds of refusal are unhelpful. Negotiation between the principal parties should begin as early as possible and continuing communication and co-operation between the parties is good practice at all stages of the process. This can be valuable in simplifying the complex issues that can arise at the inquiry and may even help to reduce the need for cases to go to inquiry at all.

4. Where the planning authority has failed to determine an application within the statutory period, the applicant is entitled to appeal against the 'deemed refusal' of planning permission. Before submitting such an appeal, applicants are advised to make contact with the planning authority to establish what difficulties are being encountered, whether a decision is imminent and whether alterations to the proposal might make it more acceptable. This might avoid wasteful time, money and effort on appeals that could be avoided.

5. Appeals must be lodged with SOIRU within 6 months of the date of the planning authority's decision on the application, or on expiry of the decision period. Standard appeal forms and an explanatory booklet are obtainable from SOIRU but it is important that the appeal includes a statement of the full grounds of appeal, and is accompanied by all the relevant documents to avoid any delay at the very start of the process. Where planning permission has been refused, the grounds of appeal should contain a clear explanation of why the appellant disagrees with each of the planning authority's reasons for not granting permission, and not merely that the reasons are not accepted.

6. On receipt of an appeal form SOIRU will issue a standard appeals questionnaire to the planning authority for completion and return within 2 weeks. This should be accompanied by a copy of all representations received by the planning authority. Once all the necessary preliminary information is provided, SOIRU will issue the formal notice that the case is to go to inquiry. The date of the notice is the relevant date. The majority of timescales in the rules are set by reference to the relevant date.

Referred Applications

7. Where an application to a planning authority is called-in by the Secretary of State for his own determination, the reason or reasons for that call-in or referral will be given to the applicant and the planning authority, and parties will be given the opportunity of presenting their case at an inquiry or hearing. In the same way as for appeals, once all the necessary preliminary information is provided, SOIRU will issue the formal notice that the case is to go to inquiry.

Objections to Compulsory Purchase or other Orders

8. Where an objection has been made to a Compulsory Purchase or other Order, the acquiring authority will normally have made contact with the objector(s) to see if a way can be found to resolve the objection(s) perhaps by modifying the scheme in question. Where, however, such resolution cannot be achieved, a copy of the Order will be submitted to the Secretary of State. In the same way as for appeals and referred applications, once all the necessary preliminary information is provided, SOIRU will issue the formal notice that the case is to go to inquiry.

Inquiry Date

9. In the interests of fixing a date for the inquiry as quickly as possible the time allowed for discussion of dates will normally be limited to one month. Each principal party to an inquiry, that is the appellant and the planning authority, or in the case of an objection to a Compulsory Purchase or other Order, the objector and the acquiring authority, will be permitted only one refusal of a date offered before SOIRU proceed to fix a date, time and place for the inquiry. In addition, if one or both parties refuse the first date offered, and it is clear they are not prepared to consider an alternative date acceptable to SOIRU, the Unit may proceed to fix the date of the inquiry before the discussion period has expired. The availability of parties' first choice of legal or expert advisers or technical witnesses will not be accepted as a basis for delaying the start of the inquiry. Once a date has been fixed it will be changed only for exceptional reasons.

Assessors and Assistant Reporters

10. In certain cases the Secretary of State may appoint a suitably qualified assessor to sit with the Reporter during the inquiry and to advise him on specified matters, for example where there are complex or technical issues to be considered. Where an assessor is appointed, the Secretary of State will notify in writing all those entitled to appear at the inquiry of the assessor's name and of the matters on which he will advise. Similarly, it may be appropriate, on occasions, for the Secretary of State to appoint one or more Reporter(s) to assist the appointed Reporter in a major and/or complex case, although the final report remains the responsibility of the appointed Reporter. Again, such an appointment(s) will be notified to parties.

Environmental Assessment

11. The Environmental Assessment (Scotland) Regulations 1988 (as amended) indicate the categories of development where the consideration of environmental information, in the form of an environmental statement, is either mandatory or discretionary to inform the decision on whether or not to grant planning permission. In cases where an environmental statement has not been prepared, and the Secretary of State or the Reporter determines that consideration of environmental information in this form is necessary, the applicant and other parties will be advised of this requirement at an early date. In such cases, further time is likely to be allowed to match the statutory requirements for publicity and consultation under the Regulations with the provisions of the Inquiries Procedure Rules.

Pre-inquiry meetings

12. It has become common practice in the case of complex or multiple cases, for the Reporter to convene a pre-inquiry meeting (known as the "procedure meeting"). The Secretary of State considers that this normally results in time being saved at the inquiry itself and in the proceedings being made more effective. The Rules provide a statutory basis for such a meeting to be held in appropriate cases, either where the Secretary of State considers this desirable or where, in the course of his preparation for the inquiry, the Reporter considers such a meeting would be helpful.

13. The pre-inquiry meeting provides an opportunity for agreement to be reached on practical arrangements for such matters as accommodation, dates and sitting times, likely duration and order of cases, clarification of issues and areas of uncertainty that require to be addressed, matters for agreed statements (see paragraph 30 below), arrangements for preparation, presentation and distribution of documents and precognitions (see below), and document numbering. No discussion of the merits of the proposed development or order is permitted at the pre-inquiry meeting. It therefore follows that it is not essential that parties be represented at such a meeting by their full inquiry team (e.g. counsel and all witnesses). Those that do attend should have clarified beforehand the availability of such persons so as to be able to agree with confidence dates for the inquiry and other matters. When inviting parties to attend the meeting, the Secretary of State or the Reporter may indicate particular matters which he wishes to be addressed.

14. The meeting also enables the Reporter to remind parties of the importance of adhering to the pre-inquiry timetable and of their co-operation in all matters to ensure that the inquiry is conducted efficiently and with the minimum possible delay, consistent with the thorough and impartial consideration of the issues. Occasionally more than one such meeting may be required, particularly where it would be beneficial to discuss further technical details or further procedural and programme matters where there is large-scale public interest.

15. The pre-inquiry meeting also provides an opportunity for the Reporter and parties to identify potential scope for narrowing the range of issues to be considered at the inquiry, and matters which can be agreed.

16. Although it is normal to invite only those parties who intend to participate at the inquiry, pre-inquiry meetings may be advertised in the press (and will be advertised where the Secretary of State himself decides to hold the meeting). Meetings are open to the public and can therefore be attended by non-participants who are nevertheless interested in the proceedings and by the press and media. The Reporter will normally accept questions even from those not directly involved, since a few minutes spent explaining or airing some procedural matter at the meeting can save preparation or inquiry time, as well as help avoid potential frustration and acrimony.

17. Immediately following the meeting, a note will be circulated by or on behalf of the Reporter confirming the matters agreed, including procedural arrangements and deadlines for submission of statements, documents and precognitions. In the absence of any subsequent written comment to the contrary, it will be assumed that parties are agreeable to the arrangements set out in the note.

18. Even if no pre-inquiry meeting is to be held, there are advantages in parties who are relying on technical evidence contacting each other at an early stage to discuss procedural matters, to define issues in dispute, and to agree basic factual information. In some cases the Reporter will advise parties by letter of the matters which he considers should be discussed by them in advance of the inquiry.

Outline statements of case

19. To maximise the benefit of pre-inquiry meetings, provision is made in the 1997 and the CPO Rules for the advance disclosure of parties' cases by means of an outline statement. Such statements are required for all cases where the Secretary of State has called a pre-inquiry meeting and otherwise at the discretion of the Reporter. It is a written statement in which parties should give as much advance notice as possible of the likely principal lines of argument to be presented to the inquiry in support of or against a party's own case and those of other parties and is most likely to be requested in a case where the position of one or more parties is unclear, e.g. where there is an appeal against a deemed refusal, where the reasons for refusal and/or grounds of appeal are unacceptably brief, or in the case of a referred application where the views of the planning authority may not be known. The outline statement is not, however, intended to be a rehearsal of the case which parties intend to present to the inquiry itself. It should include a list of all documents if any, which that party intends to put in evidence, so far as is known at the time. In the case of an appeal the appellant's outline statement should include, for example, copies of plans or drawings which accompanied the original application and details of the grounds of appeal. The planning authority's outline statement should include the reasons for refusal of the planning application along with details of the relevant sections of the approved development plan and a note of other matters considered when the original application was determined. Where the Secretary of State has given the planning authority a direction about the application or any government department or local authority has expressed a view in writing about the application that also should be attached to the authority's outline statement. The authority should serve a copy of their outline statement on the person or body concerned. In the case of a conjoined inquiry into two or more development proposals, an indication must be given of the aspects of the other proposal(s) which are likely to be the subject of criticism or cross-examination.

20. In addition, parties' outline statements should provide sufficient information to enable the Reporter to begin to structure and programme the inquiry. Therefore, where possible, each party should include in their outline statement their estimate of how long it will take them to present their case, information about the likely number of witnesses to be called, the issues they are likely to speak to and details of any special studies which have been or are being prepared. In any event parties should come to the pre-inquiry meeting prepared to discuss these matters.

Statements of case

21. The Rules provide for an earlier disclosure of parties' cases than has previously been required, and a correspondingly greater amount of preparatory work at an early stage in the process. In all cases, whether or not there is to be a pre-inquiry meeting or outline statements are required by the Secretary of State or the Reporter, it is important that each party's statement of case contains full particulars of the case to be presented at the inquiry by that party, and that it is accompanied by a list of the documents to which reference will be made. In the case of a conjoined inquiry into two or more development proposals, an indication must be given of the aspects of the other proposal(s) which are likely to be the subject of criticism or cross-examination. The statement of case should also include an estimate of how long it should take to give evidence, an indication of the witnesses likely to be called and details of any special studies which have been or are being prepared. If any party considers that another party's statement of case is incomplete or inadequate, this should be drawn to the Reporter's attention at the earliest possible opportunity. It is for the Reporter to decide whether he wishes to request additional information. The preparation of amended statements of case is not encouraged but, where parties consider it essential, for example to respond to issues which have emerged from other parties' statements, they should be circulated as soon as the need for such action becomes apparent. Statements of case will however, not normally be required in enforcement notice appeal cases where the appellant and planning authority have provided sufficient information in their grounds of appeal and statement which will have been lodged with the Secretary of State, in compliance with Rule 5 and 6 of the Enforcement Regulations, although parties will be given the opportunity to expand on these, should they so wish.

22. It will also assist the inquiry if other parties who wish to participate can be identified at an early stage, so that they can inspect the statements of case and documents of the principal parties and can be encouraged to produce their own. They may be required by the Reporter to do so in certain circumstances. The planning or acquiring authority is under a general duty to afford any person a reasonable opportunity to inspect and (where practicable) take copies of any statement of case or other document; its statement should specify the time and place at which this opportunity will be afforded.

Conditions and planning agreements

23. In the case of planning or analogous appeals or referred applications the planning authority's statement should also include a list of the conditions that it would wish to see imposed on any approval that may be given. Similarly, authorities are encouraged to provide a summary of the points which it may wish to be covered by any section 75 or other agreement. In preparing these documents, the planning authority will be expected to have followed the advice contained in SDD circular 4/1998, "The use of conditions in planning permissions" and SODD circular 12/1996 "Planning agreements". The inclusion by a planning authority of suggested conditions and/or agreements is not taken to indicate any weakness in its opposition to the proposed development(s), but experience shows that Reporters and the Secretary of State appreciate having the authority's reasoned views on the conditions or limitations which they would favour if the appeal were allowed, together with a reasoned response from other parties, particularly the appellant.

Alternative sites

24. If a party intends to refer at the inquiry to an alternative site for the development proposal, or in the case of a compulsory purchase order, proposes an alternative site for the purpose for which the Order is being promoted, this should be intimated in that party's statement of case. Where the Secretary of State or a Reporter considers it appropriate, the party making the proposal should ensure that sufficient details of that site are provided to enable it to be properly identified and should give notice to the owner of his possible interest in the proceedings; if it appears to the Secretary of State or a Reporter that the owner has not been so notified, he may undertake such notification. However, all concerned should bear in mind that an inquiry into a specific proposal for one site cannot turn itself into an inquiry into assumed proposals for other sites. A Reporter may however, make a comparative appraisal of the alternative site on the information proffered before and during the inquiry.

Amended development proposals

25. Where, following the submission of outline statements and/or statements of case, the appellant wishes to make a significant alteration to his development proposal this will not normally be accepted, unless it can be shown that all parties consulted on the original proposal, or who submitted representations on it, have been given adequate opportunity to view and consider the amended proposal and to submit comments on it. A fundamental change in the nature or concept of the proposal usually requires the submission of a fresh planning application.

26. Likewise, it will not normally be acceptable for an acquiring authority to make significant alterations to its proposed scheme unless it can be shown that all parties consulted on the original Order, or who submitted representations on it, have been given adequate opportunity to view and consider the amended proposal and to submit comments on it.

Inquiry documents

27. Documents which will be referred to in evidence (commonly known as 'productions') normally require to be circulated to the Reporter and other parties at least 4 weeks before the inquiry is due to start, and should have previously been identified on lists attached to the statements of case. They should be carefully prepared, presented and, where appropriate, edited so as to exclude irrelevant matters. Their purpose is to set out in an ordered and readily identifiable form the factual material and technical data upon which evidence is based. They should have identifiable reference numbers, ideally prefixed by letters denoting the name of the party producing them (e.g. A1 for Appellant's first document).

28. Documents should as far as possible be of A4 size. Bundles of correspondence can be submitted as single documents, provided that each letter is discretely numbered within a separate series. Extracts from published material must indicate their precise content with full titles, chapter headings and dates for verification purposes. Plans, maps and diagrams should be treated similarly, folded to A4 size with the title box displayed. Photographs should normally be mounted on a series of A4 or, where necessary, larger cards. They should be individually numbered, and the viewpoints shown on a separate Ordnance Survey map extract. Times and dates must be given for original photographs; and the focal length of lens used should be indicated, if not 50mm. Models to be displayed at inquiries should be photographed, preferably in colour, and copy enlargement prints submitted as documents. Tape recordings and video cassettes are admissible as documents; where a party wishes to submit such material it is the responsibility of that party to ensure that appropriate equipment is available at the inquiry venue to allow it to be seen or heard. Pre-inquiry documentation should indicate the duration of any tape or video lodged.

29. In the case of planning or analogous appeals or referred applications the planning authority is responsible for producing 'core' documents, such as statements of government policy (National Planning Policy Guidelines, Circulars etc.), structure and local plans. Co-operation between the parties should avoid duplication. Precognitions and closing submissions should not normally be listed as inquiry documents. The Reporter may indicate that he wishes to exercise some control over the circulation of documents, to avoid one party receiving the documents of another party before it lodges its own. In such cases, he may require all documents to be lodged at a particular place at a particular time, and that a party may not uplift the documents of another party until it has lodged its own. Alternatively, parties may be asked to certify that they have lodged their documents with other parties timeously. The relevance of all documents submitted must be explained at the inquiry in evidence or submissions.

Agreed statements

30. It is in the interests of all parties to take a constructive approach to the preparation of agreed statements which should cover as many uncontested factual topics as possible, e.g. planning policy background, site description and history, suggested conditions or section 75 agreements and other technical details. Such statements should be submitted as documents so that precognitions can refer to them rather than incorporate them.

Precognitions

31. In normal circumstances, parties and witnesses who propose to give evidence at an inquiry are expected to prepare a full written statement of the evidence which they will give, known as a "precognition". This should be circulated at least 2 weeks before the start of the inquiry. This will allow all those involved an opportunity to peruse the documents submitted by other parties (including the statements of case and lists of suggested conditions and/or agreements) before finalising what they intend to say. Precognitions should be succinct and concise, and should ideally contain facts and expert opinions deriving from witnesses' own professional or local knowledge as applied to individual cases. Where appropriate, they should also address the question of any suggested conditions or planning agreements.

32. Where it is necessary to set out facts in detail, precognitions should focus on what is really necessary for the matter in hand, and avoid including unnecessary material. Details such as a site description and planning history should either be in an agreed statement or set out as the evidence of only one party, unless there is disagreement. The text of national policies or structure or local plans need not be repeated, since these should be available to all parties as 'core' documents. Where, in the text of a precognition, a point is made in reliance upon such a document, the title and document number should be given and the relevant page and paragraph number should always be identified. Precognitions should always have their pages and paragraphs numbered for ease of reference. They should ideally be typed or word-processed on one side of A4 paper, and be laterally bound (rather than stapled at a top corner) to allow the Reporter and others to make notes opposite the text.

33. Precognitions should not include appendices or any other technical information which should have been lodged 2 weeks earlier as a document. Where a witness proposes to produce such information to accompany his precognition, he must show good cause for its late presentation. The Reporter may decline to entertain such late information or may be prepared to permit an adjournment of the inquiry to allow parties to consider it. In such cases, the question of unreasonable behaviour and an award of expenses may be relevant.

34. Where a precognition exceeds 2,000 words, it must be accompanied by a summary. As a guide, the summary should not exceed 10% of the length of a particularly long precognition and should condense the gist of the precognition, concentrating on the case in relation to the main points at issue. The content of the summary should not go beyond the scope of the text it purports to summarise.

35. Sufficient copies of precognitions (and, where appropriate, summaries) should be prepared for all the principal participating parties and distributed in accordance with the Rules. Particularly where it is known that there is a degree of local interest, additional copies should be made available for inspection at the offices of the planning or acquiring authority (or some other suitable location) and for inspection by members of the public at the inquiry itself. The number required will depend on the degree of local interest.

DURING THE INQUIRY

Arrangements for the inquiry

36. Reporters have full discretion as to the procedure to be followed at the inquiry subject to ensuring that the fundamental requirements of natural justice are met and that any specific provision in the Rules relevant to the particular inquiry are applied. The Reporter will normally open the inquiry, introduce himself, explain the subject matter of the inquiry, and ask for the names of those who wish to participate and the subject matter of the evidence of each witness. Statutory parties and members of the public should attend the opening of the inquiry to find out when they are likely to be called to speak. Where continuous attendance is impossible, the Reporter will normally (with the agreement of the principal parties) seek to allocate a time suitable to them, although this may not always be possible.

37. The Reporter will also outline the procedures he intends to adopt in the running of the inquiry, explain that smoking is not permitted, remind parties of the agreed timetable (where this has been prepared), and clarify the number of inquiry documents. He may indicate what appear to him to be the matters and disputed facts on which evidence is required, and will normally state that he has already visited the site(s) of the proposed development(s) or objection(s) but that he will make a further accompanied visit if any party requests him to do so, and that he will be taking account of all written submissions in addition to the evidence presented at the inquiry.

38. The Reporter will normally take his own notes of the proceedings. Parties should generally make their own arrangements for recording the evidence, if they wish to do so, in consultation with the Reporter and the venue manager.

39. A member of the Scottish Committee of the Council on Tribunals will occasionally attend all or part of an inquiry as an observer. Some high-profile inquiries attract the interest of the media. The Reporter is likely to make seats and a table available for members of the press, but will not normally permit photography or filming during the proceedings, when it would be likely to be a distraction. He may, however, permit this prior to the commencement of evidence or during a break.

40. Most inquiries will begin at 10 a.m. and continue until about 4.30 p.m. or later if there is good cause. It is normal to have a break for lunch at about 1 p.m. For long inquiries, experience suggests that it can be counter-productive to sit for longer hours, although it may be appropriate to start at 9.30 a.m. where participants can reach the venue conveniently by that time. Similarly, it is normal for a long inquiry not to sit on one day of the week (normally Monday or Friday) to permit parties to prepare for the following week and deal with other urgent business. In exceptional circumstances, an evening session may be agreed to suit persons unable to attend during the day.

Evidence, cross-examination and re-examination

41. The Reporter will normally invite the applicant, appellant or party initiating an inquiry which has attracted objections to present his evidence first, although in some cases (e.g. enforcement) he may ask the planning authority to go first. The Reporter has a general discretion to determine the most appropriate running order. Normal practice is for witnesses to read from their precognitions or summaries rather than being led on a question and answer basis. The Reporter has discretion to allow or require more than the summary to be read out. This may be appropriate where complex technical evidence has to be explained or where a brief response is necessary to rebut evidence from the opposite side. The witness should sit a sufficient distance away from his questioner to ensure that such questions as may be asked and such answers as may be given are audible to everyone in the hall.

42. In presenting their case to the inquiry all parties should focus on the key issues, relate the different elements of their case either for or against the proposal or scheme being considered to identifiable aspects of their case and the case presented by other parties, and unless in exceptional circumstances should restrict their presentations to those issues which have been disclosed as part of the pre-inquiry disclosure framework and discussions. Where a party proposes to call more than one witness, the evidence of each witness should, as far as possible, address discrete topics. Overlapping of topics or duplication of evidence between witnesses on the same team should be avoided, since even fairly small differences in emphasis can confuse the case for the party they represent.

43. In certain cases (normally in enforcement appeals where there is a dispute as to the factual evidence), the Reporter may decide to require evidence to be given on oath, in which case he will indicate this at the beginning of the inquiry. Where, either on his own initiative or at the request of a party, the Reporter decides that a particular person should appear at the inquiry to give evidence or to produce documents, this will also be intimated. This should, however, rarely be necessary, and will normally be justified only where the evidence sought is of direct relevance, and the person sought is the only one who could give that evidence. Wherever possible, such a request from another party should be made to the Reporter as soon as such action appears appropriate, rather than wait until the inquiry has opened.

44. The right to cross-examine witnesses is a fundamental element in inquiry proceedings. The Reporter will normally attribute more weight to evidence which has been the subject of cross-examination than to that which has not. Some persons may indicate a preference for making a 'statement' (which is not subject to the possibility of cross-examination) rather than giving evidence, but the Rules recognise no such distinction, and the Reporter is unlikely to hear a 'statement' on those terms. Effective use of cross-examination is likely to facilitate the Reporter's understanding of a case. Thorough cross-examination may be justified where evidence is being presented in a misleading or overstated manner, but it must not be used to waste inquiry time or to intimidate those giving evidence. The parties should aim to assist the Reporter rather than seeking confrontation with each other. Normally the Reporter will allow cross-examination of witnesses by only one representative of each of the principal parties.

45. Cross-examination may take place on any point in the full precognition or summary and on any relevant matter within the knowledge of the witness. It may be used to test the validity of facts and assumptions so as to expose any defects, to explore how the application of policies would further the objectives they are intended to achieve, and to identify and narrow the issues in dispute. But an inquiry is not a court of law, and it is unlikely to be appropriate in every case to seek the views of a particular witness on all points raised by other parties. 'Friendly' cross-examination (sometimes known as 'sweethearting') should be avoided, as it has the effect of gilding the lily and taking up valuable inquiry time.

46. Reporters will intervene in inquiry proceedings wherever they consider cross-examination or the responses of witnesses to be unduly lengthy or unhelpful, or in order to protect witnesses from excessive or over-aggressive questioning. This is particularly important in the case of unrepresented or inexperienced witnesses. They will also make full use of their powers to refuse to permit the giving or production of any evidence, cross-examination of witnesses or the presentation of any other matter which they consider to be irrelevant, repetitious or contrary to the public interest, or which is directed to the merits of government policy.

47. Reporters may themselves ask relevant questions at any time (but normally before the witness is re-examined - see below) to ensure that all necessary information is available to make a balanced decision. This may be especially important if one side has been unable satisfactorily to test the evidence of opposing witnesses. Witnesses should always answer questions directly, concisely and without prevarication before adding any reservations or qualifications they consider appropriate. A witness who does not know the answer to a question should say so, or refer the questioner to another witness to whom the question should be directed.

48. Re-examination must not be used to canvass matters not covered in cross-examination. If this happens, the Reporter will allow another opportunity for cross-examination. Questions in re-examination (and examination-in-chief) should not be 'leading' i.e. they should not be put in such a way as to suggest the desired answer.

Supplementary or late evidence

49. The Secretary of State does not wish to encourage the production of supplementary precognitions but, where this cannot be avoided, they should be prepared and circulated as soon as possible - preferably before the start of the inquiry. The Rules make no distinction between main and supplementary precognitions. Provision for the advance circulation of precognitions is designed to ensure that supplementary evidence is available by the opening of the inquiry, and so avoid the need for adjournments or post-inquiry correspondence. This is particularly important where parties wish to rebut points raised in the precognitions of opposing parties.

50. Reporters have discretion to permit additional evidence, but the last-minute introduction of a material consideration intended to catch an opposing party off-guard is not acceptable. In some circumstances, it may cause the inquiry to be adjourned, and this in turn may lead to a successful application for an award of expenses. Revised precognitions should be avoided, as they lead to confusion. However, original versions may justifiably be updated if new material comes to light or policies are amended after they have been circulated.

Public participation

51. Participation in public inquiries by interested persons or groups is encouraged by the Secretary of State. Reporters will normally exercise their discretion in favour of hearing persons who wish to be heard (but cannot appear as of right), having regard to fairness, relevance, avoiding unnecessary repetition and the general need to control proceedings. While the preparation of precognitions by such persons is desirable (not least to ease the Reporter's note-taking burden), the Reporter will normally allow oral evidence to be given, provided that the presentation (before cross-examination) is likely to last no more than 5 - 10 minutes. It is usually an advantage if groups and individuals with similar cases agree to co-operate by nominating a spokesperson. If a spokesperson is nominated to represent a group of individuals, that spokesperson may at the discretion of the Reporter be made a relevant person and in that case, will as a matter of right, be sent copies of all the other principal parties documentation. Repetition does not strengthen the case. Reporters will discourage repetition and the introduction of irrelevant material.

52. There is no obligation for any party at an inquiry to be represented professionally. A person intending to present his own case as an interested party might find the following points useful:

• Any doubts about the procedure to be followed or the inquiry programme should be raised with the SOIRU case officer before the inquiry starts or with the Reporter at the opening of the inquiry. As previously mentioned, Reporters will normally be sympathetic to accommodating an interested party who has difficulty in attending throughout the proceedings.
• When listening to the evidence of others, note any additional points which should be answered, which can then be incorporated in the evidence of the interested party.
• There is no need to repeat arguments that have been adequately covered by other parties. It is normally more than sufficient to endorse the point that has been made.
• The Reporter may afford an opportunity to an interested party to ask questions of witnesses. In such cases, questions should be concise and to the point. The Reporter may be able to help inexperienced persons to frame questions, but it is often more effective to raise points in evidence-in-chief with reference back as appropriate to previous evidence.

Availability of documents

53. At least one copy of all the written material submitted to the Reporter before the inquiry, including statements, documents, copies, etc. should be made available for inspection throughout the inquiry by all of the parties and by members of the public. In practice the acquiring or planning authority should ensure that a set of papers is available for this purpose, but it would help the smooth running of the inquiry if other parties could provide the acquiring or planning authority with copies of their own papers, especially precognitions, before the start of the inquiry. Members of the public particularly appreciate being able to consult these during the proceedings.

Conduct

54. If a person causes a disruption at an inquiry so as to prevent the inquiry proceeding, the Reporter will ask that person to cease the disruption. If it continues, the Reporter may ask the person to leave. If he does not leave and the disruption continues, the Reporter may seek the assistance of the police to have the person removed from the inquiry.

Closing submissions

55. Once all evidence has been given and usually after a short adjournment, the Reporter will afford the principal parties an opportunity to make a closing submission, with the appellant or in the case of a compulsory purchase inquiry the acquiring authority being entitled to make the final submission. These can be of great value, particularly at the end of long and complex inquiries. The closing submission should briefly summarise the main points of the case as it has emerged from cross-examination and re-examination. It should draw attention to detail where it is crucial, but not otherwise. If logically ordered, it can serve as a framework for the Reporter's report or decision letter. Although not obligatory, Reporters find full typed or word-processed copies of closing submissions useful at the end of inquiries lasting more than one day. If this is difficult due to constraints of time or equipment, even a copy in note or legible hand-written form can be of great assistance. It allows the Reporter to concentrate on the content of the submission rather than on taking notes, and it allows the person to proceed at an appropriate pace. There is no requirement that copies of closing submissions be made available to other parties.

SITE VISITS

56. Accompanied site inspections may take place during or after the close of the inquiry. Although the Rules specify the appellant, the planning or acquiring authority, and statutory objectors as the parties entitled to request that a site inspection take place, the Reporter will normally make such an inspection if any party requests it. The Reporter will normally be accompanied by representatives of the principal parties and by other persons if he considers it appropriate. If any party considers that there is good reason for the site inspection to be carried out at an early stage, this should be notified to the SOIRU case officer before the inquiry, or to the Reporter at the opening of the inquiry.

57. The purpose of a visit to the site by the Reporter is to allow him to familiarise himself with the land in question, its location and surroundings, and any particular physical or geographical features. Persons accompanying the Reporter may point out particular features or aspects referred to in their evidence but the Reporter will not discuss the merits of the application with parties during the visit. Such discussion is for the inquiry itself.

58. For a complex proposal or in the case of a large site, the Reporter may request the principal parties, in consultation with any relevant interested parties, to agree a suggested itinerary for the accompanied visit and to submit it before the visit is due to take place. The Reporter may wish to incorporate additions or alterations to allow him to see other locations referred to at the inquiry. He may also make unaccompanied inspections of the site before or during the inquiry, without giving notice of his intention to do so.

AFTER THE INQUIRY

New evidence

59. All parties should complete the presentation of their cases at the inquiry. Only in exceptional cases should it be necessary to submit additional evidence after the close of the inquiry, and it should be appreciated that this practice has the potential to significantly lengthen the decision-making process. Where new evidence is received after the close of an inquiry the Secretary of State or a Reporter will decide whether to take it into consideration. If so, parties will be given the opportunity to comment on it and, if considered appropriate, to ask for the inquiry to be reopened.

Notification of decision

60. For a 'report' case, the Reporter will prepare a report which will normally include a list of the persons appearing at the inquiry and of the documents; a description of the site, the proposal or scheme and any key background factual information; a summary of the key points of evidence given by the participants; the Reporter's findings of facts; his reasoned conclusions; and his recommendation (if any). SOIRU would normally expect the completed report to be submitted to the Secretary of State within a period which is 3 times the duration of the inquiry, measured from the end of the inquiry, subject to a minimum period of 6 weeks. Further time may be required, however, if the case is particularly complex or if other matters hinder progress. In 80% of cases the Secretary of State's decision should normally be issued within 2 months of receipt of the Reporter's report.

61. In a 'delegated' case, the Reporter issues a decision letter, which will normally include a description of the site, the proposal and any key background factual information; a summary of the key points of evidence given by the participants; and the Reporter's reasoned conclusions and decision. Eighty per cent of cases should normally be determined within 48 weeks of receipt of the appeal

62. Principal parties and others who so requested will be sent a copy of the decision letter (and, where appropriate, the report). Other parties will be advised of the decision and given an opportunity to request a copy of the decision letter or report.

Contents |