The Scottish Government

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Circular 17/1998

INTRODUCTION

1. This circular and the attached annexes set out the Government's policy for the operation of procedures before, during and after local inquiries and hearings held for the purpose of (a) determining any application referred, or any appeal made, to the Secretary of State under the 1997 Planning Acts, and (b) considering any objections made to certain Orders promoted by public bodies such as Compulsory Purchase Orders.

2. A previous circular (13/1997), issued in March 1997, introduced new Planning Inquiry Procedure Rules, which came into force on 27 May 1997 (the 1997 Rules). In the light of experience since then and the comments of the Joint Committee on Statutory Instruments and other interested parties, it has been considered appropriate to make some alterations to these Rules. The changes are contained in The Town and Country Planning (Inquiries Procedure) (Scotland) Amendment Rules 1998 and The Town and Country Planning Appeals (Determination by Appointed Person) (Inquiries Procedure) (Scotland) Amendment Rules 1998 (the 1998 Amendment Rules), which come into force on 1 November 1998.

On the same date there will come into force, The Compulsory Purchase by Public Authorities (Inquiries Procedure) (Scotland) Rules 1998 (the 1998 CPO Rules). This circular replaces Circular 13/1997 and provides comprehensive guidance on inquiry procedures including inquiries into compulsory purchase orders and reflects the Government's commitment to a modernised streamlined planning system.

SCOPE

3. Much of this circular and its annexes refer to the procedures involved in dealing with planning permission appeals and where appropriate, referred applications which are the subject of most local inquires and hearings. However, the guidance applies equally to other types of planning case which may be dealt with in this way, e.g. appeals against the refusal of listed building consent, against planning and listed building enforcement notices and against the imposition of conditions.

4. The guidance also applies to inquiries held into objections made to Compulsory Purchase Orders and by analogy, to other Orders made by public bodies, such as Road Closure Orders, and Fisheries Orders. The framework provided in the 1997 Rules and circular 13/1997 followed a review of legislation and best practice in Scotland and drew on experience of operating similar procedures elsewhere in Great Britain. A public consultation paper was published in June 1996 setting out proposals for changes to the Rules. The 1997 Rules and Circular 13/1997 drew on the comments received in response to that paper as do the 1998 Amendment Rules, The 1998 CPO Rules and this circular. Detailed guidance on the operation of the inquiries procedure rules and on good practice before and during the inquiry is set out in the annexes to this circular, as follows:

Annex A - Code of Practice for Planning and Compulsory Purchase Order Inquiries;

Annex B - Commentary on The Town and Country Planning (Inquiries Procedure) (Scotland) Rules 1997 (Secretary of State cases) as amended by the Town and Country Planning (Inquiries Procedure) (Scotland) Amendment Rules 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) Rules Amendment Rules 1998;

Annex D - Commentary on The Compulsory Purchase by Public Authorities (Inquiries Procedure) (Scotland) Rules 1998;

Annex E - Flowcharts: Pre-inquiry disclosure of information for planning inquiries;

Annex F- Code of Practice for Hearings and flowchart: The framework for disclosure of information for hearings.

CONTEXT

5. In the period since 1980, when the previous Rules were introduced, activity in the planning field has been sustained at a high level and the Rules and procedures have generally operated satisfactorily. However, over the same period there have been a number of changes in planning legislation, and inquiry practice has developed significantly. Inquiry Reporters, relying on their general discretion as to procedure, have explored new ways of increasing the efficiency and effectiveness of inquiries without affecting the essential need for openness, fairness and impartiality.

6. The vast majority of planning appeals are dealt with by means of the written submissions procedure without the need to convene a local inquiry or hearing. The written procedure is generally more efficient and therefore faster than an oral process. Applicants and planning authorities are therefore encouraged to consider this as a first option. The written submissions procedure is governed by the Town and Country (Appeals) (Written Submissions Procedure) (Scotland) Regulations 1990. Guidance on the Regulations and procedures is given in Scottish Development Department Circular 7/1990. This guidance is currently under review.

7. However, applicants and planning authorities have a statutory right to be heard and, particularly where contentious issues arise, an inquiry or hearing may provide the most suitable means of examining the issues in an open, structured manner. The framework of the new Rules, the administrative practice to be followed by The Scottish Office Inquiry Reporters Unit (SOIRU) and the procedures adopted by Reporters are designed to ensure that all of the issues can be considered fairly, thoroughly and consistently but without unnecessary formality, technicality or delay. Planning inquiries are not intended to operate as formally as a court of law. Although the formal procedure Rules and this Circular use expressions such as "evidence", "witness" and "precognition" this is simply because these expressions can be readily understood by all those with a potential interest in the inquiry. In this Circular, the expressions "appeal" and "appellant" should be read as applying also to "application" and "applicant". Similarly, "he" also means "she".

SUMMARY OF MAIN CHANGES

8. The 1997 Rules introduced a number of measures which were designed to focus on the key areas which require to be considered at the inquiry, improving the efficiency and effectiveness of the process overall while maintaining the basic requirements for openness, fairness and impartiality. Some of these procedures have already become accepted practice at inquiries in recent years. The main features of the 1997 reforms are:

• in the case of appeals, planning authorities are required to submit a completed appeals questionnaire to SOIRU;
• pre-inquiry meetings have been put on a statutory footing;
• earlier structured disclosure by the principal parties of the substance of the case which they intend to present to the inquiry, by means of outline statements, where appropriate, and in all cases detailed statements of case;
• summaries of written evidence to be presented at the inquiry;
• the Reporter's powers to direct proceedings are clarified, including the power to restrict the giving of evidence which is irrelevant or repetitious; and
• in Secretary of State cases, the requirement to circulate the first part of the inquiry report in draft, at the request of any party, has been removed.

THE AMENDMENT RULES

9. The main changes introduced by the Amendment Rules are:

• a new class of "relevant person" has been created which is defined to mean a party who has been required by the Secretary of State or a Reporter to serve a statement of case in terms of rule 9 (1) of the 1997 Rules;
• this new class of "relevant person" replaces "statutory party" in Rules 7, 8 and 9, in order to clarify that statements of case, documents and precognitions are to be copied to "relevant persons" only;
• rule 10A provides for dispensing with the service of statements of case, and replaces the provisions of rule 7(4), 8(2) and 9(2) 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 require to be served, if the Secretary of State or the reporter considers it expedient to do so, he may give a direction to that person requiring them to effect service of his statement of case on the Secretary of State, the planning authority and the applicant only and 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 19(4) of the 1997 Rules is amended so that the applicant, the planning authority and any relevant person will be entitled to call evidence and cross-examine persons giving evidence, and to make closing statements. All other persons appearing at the inquiry may do so, but only at the discretion of the Reporter and to the extent permitted by him.

COMPULSORY PURCHASE BY PUBLIC AUTHORITIES INQUIRIES PROCEDURE RULES

10. The 1998 procedure rules for Compulsory Purchase Order (CPO) inquiries replace the existing Rules which date back to 1976. They reflect the changes introduced last year to the planning inquiries procedure rules suitably adapted for CPOs, while taking into account the amendments which have been made to the rules for planning inquiries. The 1998 CPO Rules may be applied by analogy to other Orders promoted by public bodies and the guidance contained in Annex A and D of this Circular will apply.

KEY PRINCIPLES

11. While the Government considers that the Planning Rules as amended and the new CPO Rules provide the principal means of ensuring the inquiry process operates as efficiently and effectively as possible, their successful implementation can only be achieved with the co-operation of all those involved. To assist in this, the attached Annexes set out the Secretary of State's policy on how the procedures should operate and a commentary on the detailed requirements of the Rules. The Secretary of State expects all parties to assist Reporters and SOIRU prepare for and conduct inquiries. In particular, he looks to planning authorities and all other parties to comply with the policy and requirements set out in these Annexes and to contribute by:

• complying with the requirements for pre-inquiry disclosure of information about their case in a structured, consistent and comprehensive manner;
• observing the timescales set down in the Rules or fixed by the Reporter;
• more focused and earlier preparation and a constructive approach to suggestions from the Reporter and other parties of areas to be examined with a view to narrowing the range of issues to be considered at the inquiry;
• eliminating irrelevant or non-essential detail or repetition from the evidence to be presented to the inquiry and focusing on the critical issues which properly require to be considered; and
• presenting their evidence to the inquiry, whether oral or written, in as succinct and focused a manner as possible without prejudicing the ability of other parties to participate.

12. Under the procedure rules for planning , CPO and analogous inquiries, Reporters have wide discretion in conducting inquiries. The Secretary of State expects Reporters, whilst continuing to observe the rules of natural justice at all times, generally to exercise tighter control over the way in which parties present their case to the inquiry and ensure that the inquiry focuses on the critical issues in a thorough yet informal manner. In particular, the Secretary of State expects Reporters to intervene to remind parties of the need to avoid repetitive or irrelevant evidence.

PRE-APPEAL OR OBJECTION CONSIDERATIONS

13. No changes are introduced to pre-appeal considerations. As now, before proceeding to appeal, appellants should carefully assess the merits of their case and the prospects of success objectively, together with the costs they are likely to incur, and the time needed to pursue an appeal. Careful study of the policy background, principally in development plans, national planning policy guidance and Departmental circulars is essential. Clearly stated policies endorsed through the development plan system and which remain relevant to the case will not be set aside lightly. Potential appellants should also be aware that it is for the Reporter and the Secretary of State to review the planning arguments and to reach a decision in accordance with the development plan, planning policy, relevant material considerations and the merits of the proposal.

PRE-INQUIRY CONSIDERATIONS

14. Early, focused preparation by all parties, as well as by the Reporter, is essential if the inquiry is to run as efficiently and effectively as possible. This preparation should be based on the structured, consistent and reasonably comprehensive advance disclosure of the main issues to be considered at the inquiry. This enables others to focus their own preparations more clearly and helps to avoid unnecessary delay or repetition at the inquiry itself. The new Rules therefore provide a statutory framework which requires parties to submit details of their case at fixed stages prior to any pre-inquiry meeting and in the run up to the inquiry. This timetable for the submission of documents is set with reference to the date on which the Secretary of State notifies the planning, acquiring authority that an inquiry will be held - the relevant date- to ensure that the exchange of information is carried out at as early a stage as possible.

15. The Secretary of State considers it essential for parties to ensure that the scope of their case and their interest in the issues to be considered at the inquiry are settled at the earliest possible point in the process. Any proposed additions or extensions to parties' cases should therefore be kept to the minimum consistent with and contributing to the effective consideration of the key issues at the inquiry.

FIXING A DATE FOR THE INQUIRY

16. The 1997 Rules and the 1998 CPO Rules provide for the fixing of a start date for the inquiry at an early stage. All parties should therefore prepare on the assumption that the case will go to an inquiry within 24 weeks of the relevant date - the date when the Secretary of State gives notification that the case will be dealt with at an inquiry - or within 8 weeks of the completion of any pre-inquiry meeting convened by the Secretary of State.

PROCEDURE AT INQUIRY

17. The most significant change introduced by the 1997 Rules and the 1998 CPO Rules for the procedure at the inquiry itself, relates to the right of the appellant or the acquiring authority to make the final closing submission. However, the new Rules also clarify the powers of the Reporter to control and direct the proceedings including the power to refuse to hear repetitive or irrelevant evidence. These measures, combined with the arrangements for the early disclosure of information and the use of precognitions, and summaries of precognitions, should result in the inquiry focusing more clearly on the principal matters in dispute, thereby reducing the length of the inquiry itself.

AFTER THE INQUIRY

18. In a case where the Secretary of State is to make the decision the 1997 Rules - as do the CPO Rules remove the statutory requirement on the Reporter to circulate on request the first part of his report to parties, seeking comments on his summary of evidence and findings of fact. This should have the effect of allowing the final decision to be made in a shorter time.

AWARDS OF EXPENSES

19. Section 265(9) of the Act enables the Secretary of State to make an order as to expenses of the parties at an inquiry. Normally parties will be expected to meet their own costs however, if a party makes a claim, the Secretary of State or a Reporter may make an award if he considers that the party against whom the claim is made has acted unreasonably, and that this unreasonable behaviour has given rise to unnecessary expenditure on the part of the claimant. The claim should be made before the end of the inquiry and the Reporter will either determine it (where the case is delegated) or make a recommendation to the Secretary of State. A claim made after that time will be accepted only if the party making it can show good reason for not having applied earlier.

20. Detailed guidance on the circumstances in which expenses may be claimed and awarded as set out in Scottish Development Department Circular 6/1990 (available from the Department) remains unchanged. However, it should be emphasised that the Secretary of State or the Reporter may consider that a party has acted unreasonably if he fails to comply with the requirements of the new Rules, for example, by failing to serve documents within the required timescales, or by introducing a new matter at a late stage, particularly where that leads to an adjournment of the inquiry to allow other parties time to consider their response. Discussion of, and agreement on outstanding issues between the principal parties will help reduce the risk of a subsequent successful expenses application, as well as minimising the overall cost of the appeal process to all concerned.

EXPENSES IN RESPECT OF COMPULSORY PURCHASE AND ANALOGOUS ORDERS

21. There is a distinction between cases where applicants take the initiative, such as in applying for planning permission and in cases where objectors are defending their rights or interests which are the subject of a compulsory purchase or analogous order. If a statutory objector to a compulsory purchase or analogous order is successful, an award of expenses will be made in his favour unless there are exceptional reasons for not doing so. To enable an award to be made on grounds of success, the claimant must have made a formal objection to the order; the order must have been the subject of a public inquiry and the claimant must normally have attended (or been represented at) the inquiry and been heard as a statutory objector. In addition, the claimant must have has his objection sustained by the Secretary of State's refusal to confirm the order or by his decision to exclude the whole or part of the objector's property. The award will be made against the authority which made the order and does not of itself imply unreasonable behaviour on the part of the authority. For further information, see paragraphs 16-20 of SDD Circular 6/1990, which as mentioned above, is available from the Department.

CONJOINED AND CONCURRENT INQUIRIES

22. Occasionally a development which is the subject of a referred application or an appeal at inquiry may also be the subject of an objection to a local plan. More commonly, there may be a number of development proposals affecting the same land or locality which are before the Secretary of State for consideration or there may be planning and enforcement appeals relating to the same development, or a compulsory purchase order and a planning appeal might relate to the same site. In these situations it may be appropriate to arrange a concurrent or conjoined inquiry. This will help to avoid the duplication that is likely to occur if each proposal is considered separately. Where conjoined or concurrent inquiries are considered appropriate, SOIRU will liaise with parties and any particular arrangements will be discussed at the pre-inquiry meeting or notified in writing before the inquiry. Guidance on the local plan inquiry process is set out in the Code of Practice for Local Plan Inquiries, issued under cover of Circular 32/1996.

23. Where there is to be a conjoined inquiry, the relevant date for fixing the start date for the inquiry will normally be taken as that applying to the later or latest case.

HEARINGS

24. Parties have a right to be heard but it is for the Secretary of State to determine if that right is to be met by a local inquiry or a hearing. The hearings procedure is simpler and quicker than that for inquiries and may be appropriate, for example, where there is likely to be limited third party interest in the proposal or where the areas to be considered are relatively narrow or straightforward. Hearings are however, not appropriate for the consideration of a Compulsory Purchase Order. In order to promote as informal an approach as appropriate for such proceedings, hearings will be conducted by Reporters in accordance with a non-statutory Code of Practice for Hearings in place of the procedure Rules. The Code is attached as Annex F to this circular. Copies will be made available by SOIRU to those likely to be involved in hearings.

25. The Secretary of State may consider that a case originally intended to be determined in accordance with the written submissions procedure should be proceeded with by means of an oral process. In those circumstances the Reporter appointed to determine the case will, where appropriate, opt for the hearings procedure so allowing parties to elaborate on the issues under consideration particularly where technical or complex issues could not otherwise easily and effectively be considered by exchanges of correspondence.

MANPOWER AND FINANCIAL IMPLICATIONS

26. Since the main purpose of the Rules and guidance in this circular is to put on a statutory basis established best practice to improve efficiency and effectiveness rather than introducing substantial new requirements, no significant effect on local government manpower or expenditure is expected.

FURTHER DEVELOPMENT

27. The Secretary of State proposes to keep the guidance in this circular under review. Accordingly he would welcome constructive comments from planning authorities and from any other interested party on its operational effectiveness.

PREVIOUS CIRCULARS CANCELLED OR AMENDED

28. This Circular supersedes Scottish Development Department (SDD) Circular 63/1976 and SDD Circular 13/1997 which are cancelled.

FURTHER COPIES AND ENQUIRIES

29. General enquiries about this Circular should be addressed to Mrs Louise Donnelly, The Scottish Office Development Department, Planning Division, 2-H31, Victoria Quay, Edinburgh EH6 6QQ (Telephone 0131-244-7059), or Mrs Anne Lillico, Planning Division, 2-H-45, Victoria Quay, Edinburgh (Telephone 0131-244-7825). Further copies and a list of current planning circulars may be obtained from Miss Kelly Wood at the same address (Telephone 0131-244-7066).

30. Detailed enquiries about the operation of the Rules should be addressed to Iain MacLeod, The Scottish Office Inquiry Reporters Unit, 2 Greenside Lane, Edinburgh EH1 3AG (Telephone 0131-244-5649).

31. Copies of the Inquiries Procedure Rules, the Amendment Rules and the CPO Inquiries Procedure Rules may be purchased from The Stationery Office Ltd., 71 Lothian Road, Edinburgh, EH3 9AZ (Telephone 0131-622-7050).

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