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Circular 17/1998

Annex D
COMMENTARY ON THE COMPULSORY PURCHASE BY PUBLIC AUTHORITIES (INQUIRIES PROCEDURE) (SCOTLAND) RULES 1998

INTRODUCTION

1. This annex contains a commentary on the procedure for local inquiries held under the procedure rules in SI 1998 No 2313 - The Compulsory Purchase by Public Authorities Rules. Such inquiries are held for the purpose of enquiring into the authorisation of any compulsory purchase of land by a public authority.

2. This commentary 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 Compulsory Purchase by Public Authorities (Inquiries Procedure) (Scotland) Rules 1998, they replace the previous Rules made in 1976, and will come into force on 1 November 1998.

Rule 2 - Application

4. The Rules apply to any Compulsory Purchase Order sent to the Secretary of State for confirmation where the decision will be made by the Secretary of State, following a local inquiry.

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

5. There are a number of new definitions in Rule 3 most of which are self-explanatory. The following may be worth noting:

document includes in addition to a document in writing, new formats such as audio and video tapes, and computer disks;

relevant notice means the Secretary of State's written notice to the acquiring 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 means a person who has notified the Secretary of State or a Reporter that he wishes to appear at an inquiry and has been requested to serve a statement of case in terms of Rule 11(1).

BEFORE THE INQUIRY

Rule 4 - Preliminary action to be taken by Secretary of State

6. Rule 4 provides that SOIRU on behalf of the Secretary of State, will give written notice to the acquiring authority and each statutory objector that he intends to hold an inquiry. 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".

Rule 5 - Preliminary action - acquiring authority and government departments

7. Rule 5 requires the acquiring authority, if it has not done so already and in any event, not later than 2 weeks after the relevant date, to provide a copy of its written statement for making the order to each statutory objector and to send a copy of the statement to the Secretary of State and any government department which has expressed a view on the proposal and that view is contained in its written statement.

8. Rule 5 (2) requires the acquiring authority where it considers a written representation by a government department to be relevant to its submissions to notify the government department concerned not later than 2 weeks after receipt of that department's representation or the relevant notice that an inquiry is to be held. The government department shall, if it has not done so already, provide the acquiring authority with a written statement setting out in detail the reasons for its representation.

Rule 6 - Alternative site

9. Rule 6 provides for the situation where a person proposes an alternative site for the purpose envisaged by the order in either an objection duly made or a statement of case. On being so required by the Secretary of State, that person is required to provide the Secretary of State with sufficient details of the proposed alternative site to enable it to be identified and at the same time should send a copy of the details to any other person on whom his statement of case has been served.

10. Under Rule 6(2), where details of an alternative site are provided to the Secretary of State under Rule 6(1), the Secretary of State shall notify the owner of the land that his land has been proposed as an alternative site and give him details as he thinks proper in the circumstances of the time and the place where the inquiry is to be held.

Rule 7 - Procedure where the Secretary of State causes pre-inquiry meeting to be held

Pre-inquiry meetings

11. Rule 7 enables the Secretary of Sate to call a pre-inquiry meeting where he considers it desirable to do so. Under Rule 7(2) SOIRU, on behalf of the Secretary of State will send notification of the intention to call a pre-inquiry meeting when serving the relevant notice on the acquiring authority and on each statutory objector. This notification will include a statement of the matters on which the Secretary of State particularly wishes to be informed.

12. Early disclosure of information will help to ensure that the Reporter and all parties secure the maximum benefit from pre-inquiry meetings. Rule 7(3) requires the acquiring authority to serve an outline statement on each statutory objector and on the Secretary of State within 8 weeks of the relevant date. Rule 7(4) requires that the acquiring authority's outline statement should include any written representations or statement expressed under Rule 5(2) and that they should send a copy of their outline statement and any attachments to the government department concerned within 8 weeks of the relevant date.

13. In addition to the outline statement from the acquiring authority, in terms of Rule 7(5), the Secretary of State can require any statutory objector and any other party who has notified him of an intention to appear at the inquiry to submit an outline statement of case and to serve copies of it on the acquiring authority and on any other person specified in the Secretary of State's notice. Where an outline statement is so required, it must be submitted within 4 weeks of the written request.

14. In accordance with Rule 7(7), the pre-inquiry meeting will normally take place not later than 16 weeks after the relevant date. Rule 7(8) makes provision for the Secretary of State to give not less than 3 weeks' written notice of the pre-inquiry meeting to the acquiring authority, each statutory objector, any party known to be entitled to appear at the inquiry and any other person whose presence at the meeting seems desirable to the Secretary of State. In addition, SOIRU, on behalf of the Secretary of State, will publish a notice of the meeting in a local newspaper (Rule 7(9)).

15. Rule 7(10) provides that the person appointed by the Secretary of State to conduct the pre-inquiry meeting will determine the matters to be discussed in addition to any matter about which the Secretary of State has previously indicated a wish to be informed and the procedure to be followed. SOIRU will notify the parties of the person appointed to conduct the inquiry.

Where a pre-inquiry meeting has been held, a further meeting may be held, and in that event, the person appointed by the Secretary of State (the Reporter) shall arrange for notice of the subsequent meeting to be given, as appears to him necessary, and Rule 7(10) shall apply to any such meeting (Rule 7(11)).

Rule 8 - Further power of reporter to hold pre-inquiry meetings

16. Rule 8 enables the Reporter appointed to conduct the inquiry to hold a pre-inquiry meeting, where such a meeting has not already been called by the Secretary of State under Rule 7. In general, the same procedures and matters to be discussed are likely to apply to a meeting called by a Reporter as to those for a Secretary of State pre-inquiry meeting. However, the Reporter must give at least 2 (rather than 3) weeks written notice of the pre-inquiry meeting (Rule 8(2)) and, where outline statements are to be provided, the date by which he requires them to be served, and by whom (Rule 8(3)). Where a subsequent pre-inquiry meeting is held, the Reporter shall give notice of the meeting as he considers necessary (Rule 8(4)).

Rule 9 - Service of statements of case - acquiring authority

17. Subject to Rule 13, the acquiring 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 each statutory objector and each relevant person (Rule 9(1)).

18. Along with their statement of case, Rule 9(2) requires the acquiring authority to submit a copy of any view expressed under Rule 5(2) and copies of any representations that they have received. They are also required to serve a copy of their statement of case on any government department who expressed a view under Rule 5(2).

Rule 10 - Service of statements of case - statutory objectors

19. Subject to Rule 13, each statutory objector who intends to take part in the inquiry 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 7, within 4 weeks of the close of that meeting (Rule 10), and to serve copies on the acquiring authority, every other statutory objector and each relevant person.

Rule 11 - Service of statements of case - other persons

20. Under Rule 11(1), 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. Subject to Rule 13, copies must also be served on the acquiring authority, on each statutory objector and every other relevant person (a person who has likewise been required to submit a statement of case under Rule 11).

21. Where a party is required to provide a statement of case under Rule 11(1), the Secretary of State or the Reporter, will supply them with a copy of the statement of case of the acquiring authority, each statutory objector and every other relevant person, and they will be informed of the names and addresses of every party to whom they should send a copy of their own statement (Rule 11(2)).

22. As with outline statements, it is not the Secretary of State's intention that statements should be required from all other parties or in all cases. However, the Secretary of State or Reporter 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 12 - Service of amended statements of case

23. Rule 12 requires any person or organisation who has served a statement of case in terms of Rules 9, 10 or 11 and who intends to put forward a case materially different from that set out in his or their statement to serve an amended statement on the Secretary of State or Reporter and send a copy to everyone else who received their original statement.

24. 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.

25. 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, they may be exposed to a claim for an award of other parties' expenses.

Rule 13 - Statements of case - dispensing with service

26. This Rule provides for dispensing with the service of statements of case. 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 13(2)). Where a direction is given, Rule 13(3) provides that the person need only effect service of his statement of case on the Secretary of State and the planning authority (in accordance with whichever of rule 9, 10 or 11 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. Where a direction has been given to a person, and he subsequently provides an amended or additional statement under Rule 12, he is required to send a copy of it to the Secretary of State or Reporter, any other person on whom his original statement of case has been served and either, serve a copy of the amended or additional statement on all the other persons on whom it would otherwise have been served had a direction not been given (Rule 13(4)(a)), or give notice to all other persons stating the time and place where they may inspect and take copies of the statement (Rule 13 (4)(b)).

Rule 14 - Precognitions

27. Rule 14 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.

28. 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 14(1) to send a copy to the Reporter. Rule 14(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 14(3)(b)). At the same time a copy should be sent to the acquiring authority, each statutory objector, and to each relevant person who has been required to serve a statement of case under Rule 11. Any documents referred to in the precognition should have been lodged 4 weeks before the start of the inquiry (Rule 15(3)). 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 14(6)).

29. As with copies of statements of case, Rule 14(7) requires the acquiring 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 15 - Service of statements of case, documents and precognitions

30. Rule 15 makes general provision on the availability of information provided in advance of the inquiry. Rule 15(1) provides that it will not be necessary for a person to serve a copy of any document with his statement of case if a copy is already available for inspection. Rule 15(2) requires the acquiring 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.

31. Rule 15(3) requires that copies of any document which a party intends to put in evidence or to rely on during the inquiry must be copied to the acquiring authority, each statutory objector, each relevant person and the Secretary of State, not later than 4 weeks before the start date of the inquiry.

32. Rule 15(4) 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 9, 10, 11, 14 or 15(3).

Rule 16 - Date and notification of inquiry

33. Rule 16 introduces a statutory timescale for fixing the start date for the inquiry. In terms of Rule 16(1) this will normally be not later than 24 weeks after the relevant date or, where a pre-inquiry meeting is convened by the Secretary of State under Rule 7, not later than 8 weeks after the close of that meeting. 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 16(2) allows the Secretary of State to fix a later start date.

34. In practice, SOIRU will offer the principal parties (the acquiring authority, and each statutory objector) 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 acquiring authority, all statutory objectors, all relevant persons and the owner of any land which has been proposed as an alternative site pursuant to Rule 6. In some cases it may be appropriate, with the written agreement of the acquiring authority, each statutory objector and each relevant person, to fix a date which is less than 4 weeks away (Rule 16(4)). In such cases the Secretary of State or Reporter will normally also specify a date for the service of statements under Rule 9,10 or 11. 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 16(3).

35. Rule 16(6) makes additional provision for notification of the inquiry by the acquiring authority. The Secretary of State can require the acquiring 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 17 - Appearances at inquiry

36. Rule 17(1) describes the classes of people entitled to appear at the inquiry. These include the acquiring authority, any statutory objector, and any person who has served a statement of case under Rule 11(1).

37. Any other person or organisation may appear or be represented at the inquiry at the discretion of the Reporter (Rule 17(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.

38. Rule 17(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 17(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 18 - Representatives of the Secretary of State or government departments at inquiry

39. In terms of Rule 18(1), any person entitled to appear at the inquiry may apply in writing to the Secretary of State for a representative of a government department (where it has expressed a view on an Order) 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 182)).

40. 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 18(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 18(4)).

Rule 19 - Procedure at inquiry

41. Under 19(1), 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 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.

42. As provided by Rule 19(3), unless the Reporter determines otherwise, the acquiring authority will give evidence first, then the 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 acquiring authority will have the right of final reply.

43. Rule 19(4) provides for the acquiring authority, the statutory objectors and any relevant person being entitled to present evidence, preferably by reference to a written precognition or summary, to cross-examine any other person giving evidence, and make closing statements. Any other person appearing at the inquiry may do these things but only at the discretion of the Reporter and to the extent permitted by him.

44. 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.

45. Rule 19(7) provides that the Reporter may permit any party to alter or add to his statement of case as served under Rules 9, 10 or 11. Where the Reporter is prepared to accept such evidence, he will give the acquiring authority, and all statutory objectors, an 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.

46. Where any party refers for the first time to an alternative site, the Reporter may adjourn the proceedings to notify the owner that his land has been proposed as an alternative site. The Reporter will also ask the acquiring authority to obtain further information about the land (Rule 19(8)).

47. If any person entitled to appear at the inquiry does not do so the Reporter may proceed at his discretion (Rule 19(9)).

48. As provided in Rule 19(10), 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.

49. Rule 19(11) 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

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

51. Before or during the inquiry, the acquiring authority or any statutory objector 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

52. 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 in written representations. In exceptional circumstances, he may consider evidence presented after the inquiry is closed, but only after parties have been given an opportunity to comment on it either in writing or at a reopened inquiry. Otherwise, new evidence may be considered by the Secretary of State in terms of Rule 21(2). In accordance with Rule 21(1) the Reporter shall send a written report to the Secretary of State which will include his findings of fact and conclusions and any recommendations on the case. Where the Reporter does not make any recommendation he will set out his reasons for this.

53. In terms of Rule 21(2), where the Secretary of State disagrees with the Reporter on a finding of fact, or proposes to take into consideration new evidence or any new issue (other than issues which are a matter of government policy) and this leads him to disagree with a recommendation made by the Reporter, the Secretary of State will notify the acquiring authority and each statutory objector 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 Secretary of State proposes to consider new evidence or issues, the notified parties may request that the inquiry be reopened to consider such matters.

54. The Secretary of State may, in any event, decide to reopen the inquiry (Rule 21(3)).

55. For a reopened inquiry, the requirements of Rule 16(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

56. Having considered the report of the inquiry, and any other evidence or issues before him, the Secretary of State will notify his decision and the reasons for it, to the acquiring authority, each statutory objector, 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)).

57. In notifying the acquiring authority and each statutory objector of his decision the Secretary of State will append a copy of the Reporter's report. For other parties the notification will usually include a summary of the Reporter's conclusions and recommendations. However, any party entitled to receive notification of the decision may request an opportunity to inspect the full report and the Secretary of State shall afford such opportunity provided the request is made in writing within 6 weeks of the notification of the decision (Rule 22(2)). Similarly, in terms of Rule 22(3), any person entitled to be notified of the Secretary of State's decision may apply in writing, within 6 weeks of such notification (or of the supply of the report if that is later), to inspect any supporting documents.

MISCELLANEOUS PROVISIONS

Rule 23 - Allowing further time

58. 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.

Rule 24 - Service of notices by post

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

Rule 25 - Revocation and saving

60. The Compulsory Purchase by Public Authorities (Inquiries Procedure) (Scotland) Rules 1998 apply to all inquiries where the relevant date falls on or after the date on which the Rules come into effect, that is 1 November 1998. However, for inquiry cases where the formal notice of the intention to hold an inquiry has been issued before this date, the previous 1976 Rules continue to apply for the duration of that case, up to and including the notification of the Secretary of State's decision.

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