Examination of witness (Questions 114
- 139)
TUESDAY 28 MARCH 2000
MR DAVID
COX
Chairman
114. Can I welcome you to the Committee. Can
I ask you to identify yourself, for the record, please?
(Mr Cox) Certainly. My name is David Cox, I am a senior
solicitor with Denton Wilde Sapte, which is a firm of solicitors.
115. I have offered other people the chance
to make a statement if they want to, at the beginning. Do you
want to, or are you happy to go straight to questions?
(Mr Cox) No, Mr Chairman, I am happy to go straight
to questions.
Christine Butler
116. What proportion of your firm's work is
in (a) assisting appellants, (b) assisting local authorities and
(c) assisting third parties?
(Mr Cox) I do not know that we have done the exercise
of dividing it up absolutely numerically, but I would say, at
a rough guess, 50 per cent for applicants and appellants, 30 per
cent for the public sector (not just local authorities but some
government departments and some non-governmental organisations)
and about 20 per cent for objectors.
117. You say that the public inquiry system
is becoming too cumbersome. To what extent is this caused by an
increasingly legalistic approach to inquiries?
(Mr Cox) There are two points there. One is that I
do not think it is necessarily becoming too legalistic.
118. Too cumbersome but not legalistic enough?
(Mr Cox) I was about to go on to say that I think
it is becoming increasingly pluralistic. What is happening is
that there is a much greater level of public involvement and a
lot more people—quite properly—are wishing to become
involved in public inquiries. The problem is, perhaps, that the
existing system, although it is called an inquiry system, has
actually developed over the years into an adversarial system between
the two main protagonists.
119. That is only because they keep putting
barristers in. If that were to be bore down on a little and the
people affected allowed to speak up more loudly, do you not think
it would be less adversarial and more of a hearing?
(Mr Cox) I would welcome the move to, yes, a less
adversarial system. I have some difficulty with the idea of restricting
any party's right to legal representation at an inquiry.
Mrs Dunwoody
120. So you do not mind solicitors, it is just
barristers?
(Mr Cox) I would say that, but—
Christine Butler
121. I have not met many counsel representing
Joe Bloggs down the street, I have met them representing the Port
of London Authority or Marks & Spencer, and that kind of thing.
Is that fair?
(Mr Cox) I do not think it is unfair, but can I make
two other points? One is that if you have an inquiry where you
have a major development and the developer is represented by a
whole phalanx of not just a legal team but, also, experts, a supportive
and complaint local authority and a whole load of unrepresented
third parties, you have to see where the imbalance lies there,
and it might be that a third party or one of the third parties
actually benefits the whole by having some legal representation,
because they can pick up the tricks which the opponents—
122. How would, say, the Law Society or any
other interested public body suggest resolving this problem for
residents and people? They are the people that matter, the people
who live in the local area itself. How can they be better advised?
How can they know their rights? In my experience it is just not
apathy but despair; they say "Well, what can we do about
it? It is all over our heads." What help could they get at
an early stage through education or information?
(Mr Cox) I think there are a number of schemes which
currently do exist. I am not sure the extent to which Agenda 21
can help people in these circumstances. Certainly there is a voluntary
scheme in London called Planning Aid for London which is a pro
bono scheme.
123. Would it surprise you if I say that I know
of people who have been objecting recently to an application which
has been around for about six months already and not decided,
and time and time again they write in, they have read the press
and yet they have never heard of Planning Aid?
(Mr Cox) That is, perhaps, the fault of Planning Aid
for not publicising itself widely enough.
Mrs Dunwoody
124. How many cases could, in fact, a pro
bono group like that take on?
(Mr Cox) I think, being realistic, you make a good
point; it cannot deal with everything, not least because of the
fact that the people who are giving up their time are, in some
cases, going to be conflicted out of representing the pro bono
group, or via the pro bono group. Can I go back to one
point about the legalistic nature of planning inquiries? I have
to say I take issue with one of the points one of the previous
speakers made. If you look at the local plan inquiry system, that
has, in fact, over the past few years, had a much lower level
of participation by lawyers. They have been excluded from the
system—perhaps quite rightly—but that does not mean
that the system has become any quicker or any more efficient.
What has happened is that the change introduced by Section 54
(A) means that a lot more people regard it as necessary and important
to have their say at the inquiry. I am not decrying that, but
I think you have to look at the system and how it operates rather
than just its participation.
Christine Butler
125. Could something not be done whereby only
the people running the process can do this? Supposing they had
50 people write in on exactly the same issue. That is one area,
is it not? What else might you suggest to make the thing less
cumbersome?
(Mr Cox) In an inquiry?
126. Yes.
(Mr Cox) I would suggest a number of things. One is
that at the moment I do not think that the procedural structure
which exists in inquiries really pays very much heed to the role
of objectors and third parties—and by "third parties"
I mean the people who are not the appellant or the applicant and
who are not the local planning authority. That is, perhaps, a
bit dismissive, but that is what they have become known as. It
might be that—in line with an earlier suggestion—if
some rules are developed for inquiries, or at least a consistent
set of rules, there is some very hard consideration given to making
sure that third parties understand how the system works, how the
inquiry works and how they can take part effectively in it. One
of the specific suggestions I have made is that inquiries be more
actively case managed by the inspector and that certainly could
be one of his roles at a pre-inquiry meeting. He could explain
to third parties and make sure that they are aware of how inquiries
work, just some basic rules about evidence, about cross-examination,
about the difference between submission and evidence, and make
the point, as is often made, that the same point 50 times or on
the 50th hearing does not become a more effective point.
Mrs Dunwoody
127. With respect, I have seen a really good
ratings clerk in a court explain in a very few words to people
who have no legal background exactly what they could and could
not say and do it extremely well. I have also seen 20 others make
the most God-awful muck-up of it. What you are actually saying
is that the inspector's work should not only be extended but triple-fold
because, if they are going to do what you call case management
(and what most of us would call something rather different) then
they are going to find themselves terribly overwhelmed, are they
not? You are not improving the system; you are actually slowing
it down.
(Mr Cox) I have to say, with respect, that I do not
necessarily agree with that.
128. That is a surprise.
(Mr Cox) What I am suggesting is that what is invariably
done anyway by an inspector but on an ad hoc and informal basis
be done at an earlier stage during the process, not once we get
to two-thirds of the way through the inquiry but before the inquiry
actually starts.
129. But you are adding an extra layer of work
in, are you not? I am not against it but you are saying in effect
that at a much earlier stage the inspector calls everybody together
and says, "These are the ground rules. This is what you will
do."
(Mr Cox) Yes.
130. That is an extra layer of consultation
before they get to the beginning of the inquiry.
(Mr Cox) It is certainly an extra meeting, I would
agree with you on that. I would say that it is better that that
is done early than that it is done on an ad hoc basis during the
inquiry.
Mrs Ellman
131. Would you want to stop local authorities
using inquiries to avoid difficult local decisions?
(Mr Cox) I do not see how that can be done.
132. Would it be desirable, do you think?
(Mr Cox) It would, because it might result in fewer
inquiries. A way of doing that which might be acceptable, as I
think I suggest in here, is that at the moment on an appeal, or
where there has been a refusal or an appeal against the non-determination,
jurisdiction to decide the application is taken away from the
local authority and given solely to the Secretary of State. If
there were a change in that which allowed the local authority
still to be able to decide the application, as well as the Secretary
of State but obviously not after the Secretary of State, it might
result in fewer inquiries. Others who have responded to this Committee's
enquiry have I think made similar suggestions.
133. Do you see any difficulties with that?
(Mr Cox) There will need to be some thought given
to it but I do not see any theoretical difficulties. There may
be some practical difficulties which I hope can be ironed out.
What you do not want to have is a doors-of-the-court game where
the applicant is using the inquiry as a threat to the local authority.
The local authority still needs to have sufficient information
and to be able to ask questions so that it can decide the application.
If it genuinely feels that it cannot decide the application, the
inquiry can still go ahead.
134. If the system were changed who would decide
whether the local authority had had sufficient time to consider
all the factors? Who would make that decision?
(Mr Cox) At the moment there is an eight-week period
or a 16-week period where there is an environmental assessment.
I would not propose changing that but what I think would be a
good idea is that is there be an appeal against non-determination,
or if there is a refusal and a slightly amended application, the
local authority could say, "We think we have had enough time
or enough information now", or, "The changes which have
been made are ones which satisfy us. We can now go ahead and decide
the application."
Mr Brake
135. The Committee has received evidence that
the present tight pre-inquiry timetables are beginning to create
difficulties for different parties involved and that in fact there
is going to be little scope to reduce target times further. Do
you have any evidence to support that?
(Mr Cox) I do not. I have to say it is not my experience
or, so far as I am aware, that of my colleagues that the pre-inquiry
timetable is too short. It might cause problems for local authorities.
I do not know. At the moment we do not see that as a particular
difficulty.
136. According to the Institution of Professionals,
Managers and Specialists 60 per cent of the first dates offered
for hearing have been turned down because they cannot meet the
timescales. That is not your experience?
(Mr Cox) No. I cannot speak for others of course.
We would be very loath to turn down the earliest date which is
given for an inquiry.
137. What is your experience of dealing with
local planning authorities? Are they professional? Are they efficient?
Do they work to the agreed timetable?
(Mr Cox) Yes, by and large. Certainly I cannot think
of many examples where they have not been professional or where
they have not worked to a timetable. I think sometimes their efficiency
is compromised, not due to any lack of professionalism but due
to constraints on resources. That does sometimes cause problems.
138. Given that you seem happy with the pre-inquiry
timetable, would you advocate speeding up the process?
(Mr Cox) With respect, I do not think I am happy with
it. Given that that is the timetable it is not my experience that
there are problems. I am not sure I would advocate that as the
best timetable. I think it should be turned round a little bit
and have an earlier disclosure of cases and evidence and then
a pre-inquiry meeting and then the inquiry. That might require
having a slightly longer period to produce much fuller, clearer
statements of cases which tell each of the parties much more about
what the issues are going to be once everybody gets to the inquiry.
139. This is probably very difficult to answer,
but do you have any feel for, if your system were to be introduced,
what effect that would have on the average duration of an inquiry,
given that presumably there would be much fewer of them?
(Mr Cox) It is designed to try and reduce the length
of an inquiry because it is designed to make sure that everybody
is aware as early as possible what the important issues are, and
"everybody" in this case must of course include the
inspector. What happens at present is that you are notified fairly
early on who the inspector is going to be. In all but one of the
inquiries in which I was personally involved last year the inspector
was changed less than a week before the inquiry.
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