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Circular 17/1998

Annex F
CODE OF PRACTICE FOR HEARINGS

Introduction

1. Appeals to the Secretary of State under Sections 47 and 48 of the Town and Country Planning (Scotland) Act 1997 and Sections 18 and 20 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 are generally delegated for decision by an "Appointed Person" (usually a Reporter from The Scottish Office Inquiry Reporters Unit (SOIRU)), instead of by the Secretary of State himself. The appellant and the planning authority have the right to appear before and be heard by the Reporter before he reaches a decision on such an appeal, as an alternative to the written submissions procedure. Similar procedures apply to most of the relatively few cases where the Secretary of State directs that he, rather than a Reporter, will determine the appeal.

2. In practice, provision will usually be made for parties to be heard by way of a public local inquiry if either the appellant or the planning authority wish. However, in appropriate cases, the alternative of a hearing will be suggested.

3. A hearing is likely to be suggested where a public local inquiry has been requested to examine a relatively simple proposal, or where a written submissions case involves a topic where there is particularly complex evidence which would benefit from oral discussion. The hearing may cover all the issues involved in a case or may focus on specific issues where discussion would be helpful.

4. This code contains the procedure which the appellant, the planning authority and, if relevant, other parties should follow where a hearing is to take place. The procedure is intended to save the parties time and money and to allow the Reporter to lead a structured discussion about the matters at issue. The aim is to give everybody, including interested third parties, a fair hearing and to provide the Reporter with all the information necessary for his decision, but in a more flexible and less formal atmosphere than at a local inquiry. Although the code does not have statutory force, all parties to a hearing are expected to comply with it.

Decision to proceed by means of a hearing

5. It will be for SOIRU, on behalf of the Secretary of State, to decide whether a hearing would be an appropriate means of considering an appeal. A hearing will not be appropriate if more than a few members of the public are likely to be present; if the appeal raises complicated matters of policy; if there are likely to be substantial legal issues raised; or if there is a likelihood that extensive cross-examination will be needed to test the opposing cases. It will not usually be appropriate in an enforcement case. The Reporter will have the discretion to abandon the hearing and to arrange for a public local inquiry to be held if at any stage before or during the hearing it becomes apparent that the procedure is no longer appropriate.

6. If SOIRU consider that a case would be suitable for a hearing, the appellant and the planning authority will be given an opportunity to comment on the proposal to use that procedure. Each party should, within 7 working days of the date a hearing is offered to them, inform SOIRU of their views on whether or not the hearing procedure is appropriate. If it is suitable the aim will be for the hearing to take place within 12 weeks of the date (the "relevant date") on which it is known that the case is to be heard at a hearing.

Written Statements

7. An important element of this procedure is that the Reporter must be fully aware of the issues involved and the arguments likely to be put forward at the hearing so that he can properly lead the discussion. It is therefore essential that, within 4 weeks of the relevant date, the appellant and the planning authority provide a written statement containing full particulars of the case they wish to make at the hearing, and a list of any documents to which they intend to refer. At the same time, the appellant and the planning authority should send copies to each other.

8. Where he considers it appropriate, the Reporter may request one or more third parties to submit statements and documents to SOIRU, the appellant and the planning authority. In such circumstances the appellant and the planning authority will be asked to send additional copies of their statements and documents to those third parties.

9. If any party wishes to respond in writing to any aspect of another party's statement, this should be done within 2 weeks of the receipt of that statement. Copies of the response should be submitted to the appellant and/or planning authority, as appropriate, and to SOIRU.

10. Copies of documents to which parties intend to refer to should be submitted to the Reporter and to the other party or parties at least 4 weeks before the hearing is due to start.

11. Failure to adhere to the timetable may be fatal to the procedure. If the Reporter cannot be provided with the necessary information in sufficient time before the hearing it may be necessary to delay or defer it, or to hold a public local inquiry with procedure governed by the statutory rules. A party may become liable for expenses if another party is put to unnecessary expense through the late submission of statements or through other unreasonable behaviour.

Arranging the hearing

12. Not less than 4 weeks notice of the arrangements for the hearing will be given. SOIRU will send details of the arrangements to the appellant, the planning authority and those with an interest in the land, and to those other parties who wrote about the proposed development at the application stage. SOIRU will also give such other publicity to the hearing as they think advisable. Those notified of the arrangements for the hearing will be sent a copy of this code and a note of the topics that the Reporter has decided should be considered at the hearing; and they will be informed where and when they can inspect copies of any statements and documents that will be referred to during the hearing.

13. The arrangements for the hearing and the conduct of it will be designed to create the right atmosphere for discussion and to eliminate or reduce the formality sometimes encountered at a public local inquiry. To this end, the accommodation provided for the hearing should be informal, and the Reporter and the parties should wherever possible sit round a table. Small committee rooms are usually satisfactory, whereas council chambers, which often have a more formal atmosphere, should generally be avoided.

Procedure at the hearing

14. The Reporter will conduct the hearing. After resolving any doubts about the application or plans, he will explain that the hearing will take the form of a discussion which he will lead. The Reporter will then summarise his understanding of the relevant issues from reading the papers and any pre-hearing site visit, and will indicate those matters where further explanation or clarification is required. This will not preclude the parties from referring to other aspects which they consider relevant, provided that adequate prior notice and particulars have been given.

15. Written material should have been circulated and exchanged beforehand, and so it will not normally need to be read out at the hearing. Parties should avoid introducing new material or documents not previously referred to, as this may necessitate adjournment of the hearing to a later date and frustrate the objectives of the hearing procedure. It may also result in a claim for an award of expenses.

16. Appellants may present their case through an agent or advisor, but such representation is not essential. Legal representation should not normally be necessary. The appellant will usually be asked to start the discussion. Those participating in the hearing will have the opportunity to comment on the submissions made by other parties, and they will be able to ask questions informally (through the chair) throughout the proceedings, subject only to the questions being relevant and the discussion being conducted in an orderly manner. The Reporter will indicate when he considers that sufficient clarification of a topic has been achieved and will then move on to the next issue. He will also discourage repetitive or irrelevant evidence and questioning. The appellant will be allowed to make any final comments before the discussion is closed (although formal closing submissions are not appropriate).

17. Before the end of the hearing the Reporter will consider whether there should be a further, accompanied, visit to the site, and will advise parties of the arrangements. If appropriate, he may decide to allow further limited discussion of relevant matters on site before formally closing the hearing.

Notification of decision

18. A formal decision letter determining the appeal will be issued by the Reporter in due course and will be copied to all those who took part in the hearing.

19. Procedures for hearings in cases that have not been delegated for the Reporter's decision are similar to those outlined above. However instead of preparing a decision letter, the Reporter will prepare a report and recommendation for the Secretary of State who will subsequently notify all those who took part in the hearing of his decision.

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