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Circular 17/1998

Annex C
COMMENTARY ON THE TOWN AND COUNTRY PLANNING APPEALS (DETERMINATION BY APPOINTED PERSON) (INQUIRIES PROCEDURE) (SCOTLAND) RULES 1997 (DELEGATED CASES) AS AMENDED BY THE TOWN AND COUNTRY PLANNING APPEALS (DETERMINATION BY APPOINTED PERSON) (INQUIRIES PROCEDURE) (SCOTLAND) AMENDMENT RULES 1998

INTRODUCTION

1. This annex contains a commentary on the procedures for local inquiries held under the procedure rules in SI 1997 No. 750 - the "Delegated Rules" as amended by SI 1998 No 2312. Such inquiries are held for the purpose of determining any appeal to the Secretary of State under the 1997 Planning Acts, where the case is to be determined by a person appointed by the Secretary of State.

2. This commentary, which follows the arrangement of the procedure rules themselves and particularly highlights any new or amended provisions in the 1997 Rules and the 1998 Amendment Rules, is intended as a guide to the rules rather than an interpretation of the statutory provisions; this is ultimately a matter for the courts.

GENERAL

Rule 1 - Citation and commencement

3. The Rules will be known as the Town and Country Planning Appeals (Determination by Appointed Person) (Inquiries Procedure) (Scotland) Rules 1997 and the Town and Country Planning Appeals (Determination by Appointed Person) (Inquiries Procedure) (Scotland) Amendment Rules 1998 and they replace the previous Rules made in 1980. The 1997 Rules came into force on 27 May 1997 and the 1998 Amendment Rules come into force on 1 November 1998.

Rule 2 - Application of the rules

4. The Rules apply to any appeal made to the Secretary of State under the 1997 Planning Acts (including planning, listed building and hazardous substances cases) where the decision will be made by the person appointed by the Secretary of State, following a local inquiry.

5. For the purposes of this commentary, unless otherwise stated all notices and copy documents relating to the inquiry should be sent to The Scottish Office Inquiry Reporters' Unit (SOIRU) who will issue all notices, advertisements for pre-inquiry meetings and inquiries and other documentation on behalf of the Secretary of State and/or the Reporter.

Rule 3 - Interpretation

6. The majority of definitions in Rule 3 remain as in the previous 1980 Rules and should be self-explanatory. The 1997 Rules contained new definitions for "assessor", "consulted person", "outline statement", "precognition", "pre-inquiry meeting" and "statement of case" which are also self-explanatory. Of the other definitions provided in Rule 3 the following may be worth noting:

document (commonly known as "productions") has been extended to include new formats such as audio and video tapes, and computer disks;

relevant notice means the Secretary of State's written notice to the planning authority that an inquiry is to be held. The date of that notice is used to calculate the timescales for the inquiry process including the submission of statements of case and documents by all parties, fixing the date of the inquiry itself and is termed the relevant date;

relevant person is defined to mean a party who has been required to serve a statement of case in terms of Rule 9(1);

statutory party replaces the previous "section 26 party" definition. It includes any consulted person from whom representations have been received and any other person who has made timeous representations on the application or appeal. As an example this could include an owner or agricultural tenant of land affected by the development proposal who had submitted comments on a planning application. Associated with the definition of "statutory party" is a new definition of consulted person. This means an authority or individual consulted by the planning authority and who has commented at the time of the original application in accordance with the General Development Procedure Order or under regulations relating either to the control of advertisements or the control of hazardous substances;

BEFORE THE INQUIRY

Rule 4 - Preliminary information and notice

7. Any person dissatisfied with the decision of a planning authority on his planning application has a statutory right of appeal to the Secretary of State. Using an appeal form obtainable from SOIRU, an appeal must be lodged within 6 months of the date of the decision with SOIRU which, having recorded the appropriate details, will send notification of the appeal to the relevant planning authority, along with the standard appeals questionnaire. Rule 4(1) requires the authority to complete the appeals questionnaire and return it to SOIRU within 2 weeks, along with supporting documents, and to copy the completed questionnaire to the appellant. Along with the relevant development plans or extracts of them, copies of any representations received by the authority when considering the original planning application should be provided, unless the writer has asked that it be treated as confidential.

Notification of the inquiry

8. Once the decision has been taken to hold an inquiry, Rule 4(2) provides that a written notice to that effect will be sent by SOIRU on behalf of the Secretary of State to the planning authority, with copies to the appellant and any other statutory party - those individuals or organisations who have made representations to the planning authority or the Secretary of State. The date of this notice is used to calculate the timetable for all subsequent actions leading up to the inquiry and is referred to in the Rules and in this commentary as the "relevant date". Where 2 or more cases are to be considered at an inquiry, the relevant date will normally be taken as that applying to the later or latest case.

9. Under Rule 4(3), where the Secretary of State has given a direction to the planning authority restricting the grant of planning permission or directing how the application is to be determined, or where a government department or local authority have expressed a view in writing to the effect that permission should or should not be granted, or should be granted subject to conditions, or should be granted together with a direction requiring the replanting of trees, the planning authority must inform the Secretary of State, department or authority concerned that such direction or statement is relevant. Where this has happened the Secretary of State, department or authority should provide the planning authority with a written statement of the reasons for the direction or expression of view.

Rule 5 - Notification of identity of Appointed Person

10. Under Rule 5(1), the Secretary of State will notify the appellant, planning authority and all statutory parties of the name of the person appointed to conduct the inquiry and determine the appeal. Occasionally it may be necessary for the Secretary of State to change the person appointed at a late stage before the inquiry. Where this happens, and it is not practicable to notify parties in advance, the Reporter will, in terms of Rule 5(2), announce his name and appointment at the start of the inquiry.

Rule 6 - Pre-inquiry meetings

11. Rule 6 enables the person appointed to conduct the inquiry to hold a pre-inquiry meeting. The Reporter must give at least 2 weeks written notice of the pre-inquiry meeting (Rule 6(2)) and may determine the date by which he requires outline statements to be served, and by whom (Rule 6(3)).

Rule 7 - Service of statements of case - planning authority

12. Subject to Rule 10A of the 1998 Rules, the planning authority are required to submit a statement of case to the Secretary of State (in practice SOIRU), within 8 weeks of the relevant date, or not later than 4 weeks after the close of a pre-inquiry meeting convened by the Secretary of State, and to serve copies on the appellant and any relevant person (Rule 7(1)). Where a planning authority has already supplied a statement of case, in terms of Rule 6 of the Enforcement Regulations, it is unlikely that an additional statement of case will be required.

13. Along with their statement of case Rule 7(2) requires the planning authority to submit a list of any conditions which they consider at the time should be imposed on any subsequent grant of planning permission by the Secretary of State. In addition, a copy of the terms of any direction or view expressed under Rule 4(3), and the reasons for it, should be attached to the statement of case, unless this already forms part of the authority's outline statement, as should copies of all representations on the case received by the planning authority. Where the planning authority have received a large number of representations, Rule 7(3) allows them to include with their statement a summary of them, including a full list of the names and addresses of all those who have made representations, rather than a copy of each.

Rule 8 - Service of statements of case - appellant

14. Subject to Rule 10A of the 1998 Rules, the appellant is also required to submit a detailed statement of case within 8 weeks of the relevant date or, where the Secretary of State has called a pre-inquiry meeting in terms of Rule 5, within 4 weeks of the close of that meeting (Rule 8(1)). However where an appellant has already provided a statement specifying his grounds of appeal and the facts on which he intends to rely in terms of Regulation 5 of the Enforcement Regulations, he will not normally be required to submit an additional statement of case.

Rule 9 - Service of statements of case - other persons

15. Under Rule 9(1) as amended, the Secretary of State or the Reporter has a discretionary power to require any other party who has indicated an intention to appear at the inquiry to submit a statement of case within 4 weeks of being asked, and in any event not later than 4 weeks before the start of the inquiry. Copies must also be served on the planning authority, the appellant and any relevant person, unless in accordance with Rule 10A, the Secretary of State or Reporter directs that due to the length of the person's statement and the number of persons on whom it would otherwise required to be served, he need only effect service of his statement of case on the Secretary of State, the planning authority and the appellant, and give notice to all other persons stating the time and place where they may inspect and take copies of the statement of case. A party required to provide a statement of case will be furnished with a copy of the appellant's and the authority's statements by SOIRU, and will be informed of the names and addresses of all parties to whom they should send a copy of their own statement (Rule 9(2)).

16. As with outline statements, it is not the Secretary of State's intention that statements should be required from all parties or in all cases. However, the Secretary of State may, for example, request statements of case from parties who have a major interest in the case or where there is the possibility of a party wishing to present complex, lengthy or technical evidence to the inquiry.

Rule 10 - Service of amended statements of case

17. Rule 10 requires any person or organisation who has served a statement of case in terms of Rules 7, 8 or 9 and who intends to put forward a case materially different from that set out in his or their statement, or considers that conditions other than those proposed by the planning authority should be imposed, to serve an amended statement on the Secretary of State and send a copy to anyone else who received their original statement.

18. 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 consideration of others' statements of case or to raise new matters not known at the time when original statements of case were being prepared, they should ensure that they are circulated as soon as the need for such action becomes apparent. Parties may also be asked by the Secretary of State or Reporter to supply additional information to that provided in their original statement, and any further statement should also be copied to recipients of the original document.

19. Where a party seeks to extend the scope of their case and/or raise a completely new issue which could have been included in the original statement of case, especially very near to the start of or at the inquiry, he runs the risk of having to meet other parties' expenses in considering such new or amended lines of argument.

Rule 10A - Statements of case - dispensing with service

20. This Rule provides for dispensing with the service of statements of case and replaces the provisions of Rules 7(4), 8(2) and 9(3) of the 1997 Rules. Where having regard to the length of a person's statement of case and the number of persons on whom it would otherwise required to be served, the Secretary of State or the Reporter, if he considers it expedient to do so, may give a direction (Rule 10A(2)). Where a direction is given, the person need only effect service of his statement of case on the Secretary of State, the appellant and the planning authority (in accordance with whichever of rule 7, 8 or 9 is applicable) but is required to give notice to all other persons stating the time and place where they may inspect and take copies of the statement of case (Rule 10A(3)). Where a direction has been given to a person, and he subsequently provides an amended or additional statement under Rule 10, he is required to send a copy of it to the Secretary of State or Reporter, any other person on whom the original statement of case had been served (Rule 10A (3)(a)), and shall either serve a copy of the amended or additional statement on all other persons on whom it would otherwise have been served had a direction not been given (Rule 10A(4)(a), or give notice to all these other persons stating the time and place where they may inspect and take copies of the statement (Rule 10A (4)(b)).

Rule 11 - Precognitions

21. Rule 11 as amended sets the statutory framework for the use of written statements of evidence to be presented to the inquiry - "precognitions". This framework is designed to facilitate improved public participation in the inquiry process and to assist in achieving savings in inquiry time without detracting from the fairness of the proceedings or the ability of participants to make their views known.

22. Any person entitled to appear at the inquiry who intends to give evidence, or to call a witness who will give evidence, by reading from a precognition is required by Rule 11(1) to send a copy to the Reporter. Rule 11(2) requires parties to prepare and circulate copies of a written summary of any precognition which exceeds 2,000 words. The precognition together with a summary, if required, should be sent to the Reporter not later than 2 weeks before the start of the inquiry, or by such other date specified by the Reporter (Rule 12(3)). At the same time a copy should be sent to the planning authority and/or the appellant, and to each relevant person who has been required to serve a statement of case. Any documents referred to in the precognition should have been lodged 4 weeks before the start of the inquiry (Rule 12(4)). However, if there are any other documents referred to in precognitions, copies of the whole or relevant parts should be circulated with the precognition itself (Rule 11(6)).

23. As with copies of statements of case, Rule 11(7) requires the planning authority to make available copies of precognitions, summaries and documents for inspection and, where practicable, should allow interested parties to take copies of them.

Rule 12- Service of statements of case, documents and precognitions

24. Rule 12 as amended, makes general provision on the availability of information provided in advance of the inquiry. Rule 12(1) provides that it will not be necessary for a person to serve a copy of any document with their statement of case if a copy is already available for inspection. Rule 12(2) requires the planning authority to make available copies of all statements of case and any supporting documents for inspection at reasonable times at its offices or some other convenient location, and to allow interested parties to take copies of these, where practicable. The authority's own statement of case should include a statement specifying where and when documents may be inspected.

25. Rule 13(4) as amended, requires that any document which a party intends to put in evidence or to rely on during the inquiry must be copied to the planning authority, the appellant, each relevant person and the Secretary of State not later than 4 weeks before the start of the inquiry. The period within which such service must take place will be specified by the Reporter.

26. Rule 12(5) allows the Reporter, on the application of any party to the inquiry, to vary the timescales for the submission of documents or copies required by Rules 7, 8, 9, 11 or 12(4).

Rule 13- Notification of appointment of an assessor

27. In terms of Rule 13 the Secretary of State may appoint an assessor to sit with the Reporter during the inquiry and will notify each person entitled to appear at the inquiry of the assessor's name and of the matters on which he will advise. The assessor's remit is to advise the Reporter on specified matters, for example on technical evidence.

Rule 14 - Date and notification of inquiry

28. Rule 14 as amended, introduces a statutory timescale for fixing the start date for the inquiry. In terms of Rule 14(1) this will normally be not later than 24 weeks after the relevant date. In a few cases, for example where the case is particularly complex, where there is a very large number of third parties, or where parties delay service of their own statements, it may be impracticable for the inquiry to begin within the timescales stated. In such cases Rule 14(2) allows the Secretary of State to fix a later start date.

29. In practice, SOIRU will offer the principal parties (the appellant and the planning authority) a start date. Each of the principal parties will be allowed one refusal of the dates offered before SOIRU fixes a date, time and place for the inquiry, giving at least 4 weeks notice of the arrangements to the appellant, the planning authority, all relevant persons and to any other person who has made representations on the application, as required by Rule 14(3). In some cases it may be appropriate, with the written agreement of both the appellant and the planning authority, to fix a date which is less than 4 weeks away (Rule 14(4)). In such cases the Secretary of State or Reporter will normally also specify a date for the service of statements under Rule 7, 8 or 9. Where the Secretary of State subsequently decides to vary the date, time or place of the inquiry he will notify, as far as practicable, those parties who have previously received notification of the arrangements under Rule 14(3).

30. Rule 14(6) makes additional provision for notification of the inquiry by the planning authority. The Secretary of State can require the planning authority to publish notice of the inquiry in a local newspaper not less than 2 weeks before the start date, to serve notice of the inquiry on specified persons or organisations and to post notices on or near the land in question. In practice, any newspaper advertisement is likely to be arranged by SOIRU.

DURING THE INQUIRY

Rule 15 - Appearances at inquiry

31. Rule 15(1) as amended, describes the classes of people entitled to appear at the inquiry. These include the appellant, planning authority, any local authority, all relevant persons, all statutory parties, any government department which has expressed a view on the planning application, a representative of the Secretary of State where he has given a direction restricting the grant of planning permission or directing how the application should be determined and any person who has lodged an objection in connection with the application or appeal and has not withdrawn this objection.

32. Any other person or organisation may appear or be represented at the inquiry at the discretion of the Reporter (Rule 15(2)). In practice anyone who wishes to appear will usually be allowed to do so provided they have something relevant to say which has not already been said.

33. Rule 15(3) makes clear that each person entitled or permitted to appear may do so on their own behalf or may be represented by counsel, a solicitor or any other person. Where two or more people have a similar interest the Reporter will encourage them to combine so that one or more persons may speak for them all (Rule 15(4)). Although it is open to parties to be represented professionally this is not essential as the Reporter will listen carefully to all the presentations.

Rule 16 - Representatives of the Secretary of State or government departments at the inquiry

34. In terms of Rule 16(1), any person entitled to appear at the inquiry may apply in writing to the Secretary of State for a representative of the Secretary of State (where he has given a direction) or a government department (where it has expressed a view on the application) to appear at the inquiry. Such application must be made to SOIRU not less than 2 weeks before the start date. Arrangements will then be made for the attendance of a representative of the department to attend the inquiry (Rule 16(2)).

35. Any such representative may be required to state the reasons for any direction given or view expressed on the application and may be cross-examined by other parties (Rule 16(3)). The representative is not to be required to answer any question which the Reporter considers is directed to the merits of government policy.

Rule 17 - Representatives of local authorities at inquiry

36. Where any local authority have expressed a view on the application, a person entitled to appear at the inquiry may, in terms of Rule 17(1), apply in writing, not less than 2 weeks prior to the start of the inquiry, to the Secretary of State for a representative of that authority to appear at the inquiry. Similar considerations apply to the cross-examination of officials or members of local authorities, as to the cross-examination of government officials, although witnesses from such authorities may be required to speak to the merits of their policies.

Rule 18 - Appointed Person may act in place of the Secretary of State

37. Rule 18 as amended, is a general provision which states that the Reporter may take the steps which may be taken by the Secretary of State under Rules 9(1) or (2), 10, 10A, 14 or 23.

Rule 19 - Procedure at inquiry

38. Under Rule 19(1) as amended, the Reporter has a general discretion as to the procedures to be followed at the inquiry. Where a pre-inquiry meeting has been held, the Reporter will have outlined the procedures which will apply and will have set an indicative timetable for the proceedings, and in accordance with Rule 19(2) he will outline this again at the start of the inquiry. The planning inquiry is not a court of law and the Reporter will seek to maintain a relatively informal atmosphere, subject to the need to examine all of the evidence thoroughly, in an open and fair manner. Informality of proceedings will be particularly helpful to those who wish to take part but who are not professionally represented.

39. As provided by Rule 19(3), unless the Reporter determines otherwise, the appellant will give evidence first, followed by supporters of the appellant's case, then the planning authority and other parties in such order as the Reporter decides. However, the Reporter may vary this order according to the circumstances and the type of case being considered. The appellant will normally be the last to present his closing submission.

40. Rule 19(4) as amended, provides that the appellant, the planning authority and all relevant persons are entitled to present evidence, normally by reference to a written precognition or summary, to call witnesses, cross-examine any other person giving evidence, and make closing statements. Any other person appearing at the inquiry may do so but only at the discretion of the Reporter and to the extent permitted by him.

41. Rule 19(5) provides that the Reporter may refuse to permit the giving or production of evidence, the cross-examination of persons or the presentation of any other matter which he considers to be repetitious or irrelevant to the case. Nor will the Reporter require or permit any evidence to be given or produced which would be contrary to the public interest (Rule 19(6)). The Reporter may, however, admit any evidence at his discretion and may direct that any document tendered may be inspected and copied by any person entitled to appear at the inquiry.

42. Rule 19(7) provides that the Reporter may permit any party to alter or add to his statement of case as served under Rules 7, 8 or 9. Where the Reporter is prepared to accept such evidence, he will give the appellant, planning authority and statutory parties adequate opportunity to consider any new or altered evidence, adjourning the inquiry for the purpose if necessary. However, the production of late or new evidence, particularly leading to the need for an adjournment, may be considered by the Reporter as being grounds for an award of expenses against a party, where he considers that this constitutes unreasonable behaviour.

43. If any person entitled to appear at the inquiry does not do so the Reporter may proceed at his discretion (Rule 19(8)).

44. As provided in Rule 19(9), in addition to the evidence presented to the inquiry, the Reporter will take into account all written representations and statements received by him before or during the inquiry. Where practicable such written evidence will be circulated by the Reporter prior to the start of the inquiry, otherwise he will ensure that copies are made available to parties during or shortly after the close of the inquiry.

45. Rule 19(10) provides that the Reporter may adjourn the inquiry at any time. Where the Reporter has announced the date, time and place of the next sitting, no further notice need be given to any party of the later session.

SITE VISITS

Rule 20 - Site Inspections

46. The Reporter may make an unaccompanied visit to the site which is the subject of the planning application at any time before, during or after the inquiry without giving notice of his intention to do so (Rule 20(1)).

47. Before or during the inquiry, the planning authority or the appellant may ask the Reporter to make an inspection of the land accompanied by any or all parties to the inquiry (Rule 20(2)). In any event the Reporter will, during the inquiry, announce the date and time of his proposed accompanied visit and shall proceed, whether or not any person entitled to accompany him chooses to do so (Rule 20(3) and (4)).

AFTER THE INQUIRY

Rule 21 - Procedure after inquiry

48. After the inquiry has closed the Reporter will consider all of the evidence which has been produced, whether presented in person at the inquiry, in supporting documentation or written representations, or contained in any report to him by an assessor appointed to consider particular aspects of the evidence.

49. In terms of Rule 21(2), where the Reporter proposes to take into consideration new evidence or any new issue (other than issues which are a matter of government policy) not raised at the inquiry he will notify the appellant, planning authority and all statutory parties and will afford them an opportunity of making further representations. Such representations must be made in writing within 3 weeks of the notification. In cases where the Reporter proposes to consider new evidence or issues, the notified parties may request that the inquiry be reopened to consider such matters.

50. The Reporter may, in any event, decide to reopen the inquiry (Rule 21(3)).

51. For a reopened inquiry, the requirements of Rule 14(3) to (6) apply to the notifications to parties of the date, time and place arranged subject to 3 weeks notice of the inquiry rather than 4 weeks .

Rule 22 - Notification of decision

52. The Reporter will notify his decision on the appeal in writing, and the reasons for it, to the appellant, the planning authority and to all statutory parties, along with any other person who appeared or was represented at the inquiry and has asked to be notified of the decision (Rule 22(1)).

53. Any person entitled to receive notification of the decision may apply to the Secretary of State in writing within 6 weeks of such notification (or of the supply of the report if that is later), for an opportunity to inspect any documents listed in the notification (Rule 22(2)).

MISCELLANEOUS PROVISIONS

Rule 23 - Allowing further time

54. Rule 23 allows the Secretary of State to vary the time allowed for any step of the process where he sees fit for any particular case. The Secretary of State will be sparing in the use of this power. An example of where this power might reasonably be used is where a planning appeal or other case subject to these Rules is linked with a case subject to other Rules for consideration at concurrent inquiries, and where it is wished to ensure consistency in the respective requirements, such as those relating to the submission of statements of case.

Rule 24 - Service of notices by post

55. Rule 24 allows that any service of documents or notices under the Rules may be sent by post.

Rule 25 - Revocation and savings provision

56. The Town and Country Planning Appeals (Determination by Appointed Person) (Inquiries Procedure) (Scotland) Rules 1997 came into effect on 27 May 1997. The Amendment Rules come into force on 1 November 1998, but shall not apply to any inquiry case where the date for the holding of the inquiry is prior to 1 January 1999.

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