Examination of witness (Questions 140
- 159)
TUESDAY 28 MARCH 2000
MR DAVID
COX
Mrs Dunwoody
140. Why should that worry you? Are you suggesting
there is an inconsistency in the level of expertise amongst inspectors
or are you suggesting that if you are given prior notice of a
particular inspector you are able to tailor your evidence towards
his predilections, or are you suggesting that there are certain
other aspects that I have not thought of?
(Mr Cox) If the inspector has a clear role from an
early stage of any appeal, ie once the appeal is submitted, he
can only be assisted in identifying after discussion and agreement
with the parties what are the real core issues here, the issues
which are in dispute and are unlikely ever to be agreed, but also
where there is room for some kind of round table, not so much
mediation but perhaps a bit more like an EIP, an examination in
public for a structure plan, where he almost acts as a moderator
in relation to technical issues, for example, and chairs a discussion
and tries to avoid that issue taking up time.
141. But why should that be impossible for somebody
who comes in and reads for himself what has gone before?
(Mr Cox) If he only gets the papers the Friday before
the inquiry starts on the Tuesday—
142. Are you suggesting he therefore would not
read the relevant evidence?
(Mr Cox) No, I am sure he has read the relevant evidence,
or at least only in one example have I ever been at an inquiry
where the inspector clearly has not read any of the evidence in
advance, and in that case he had not even read the government
guidance in advance.
143. Sounds like an independent soul.
(Mr Cox) He was quite candid about it.
144. An even more independent soul.
(Mr Cox) If he is given more time in advance of the
inquiry to read the evidence I think he can then make some decisions
about the opportunity for getting the parties together and saying,
"Listen; do we need to take up inquiry time with this? Is
this something on which you can agree, or is it something on which
at least an agreed statement, perhaps with caveats from all of
the parties, including third parties, can be produced?"
Mrs Ellman
145. How would you speed up inquiries without
impeding all parties' access to a fair hearing?
(Mr Cox) By a number of things. As I have just explained,
disclosing cases much more fully in advance will help so that
the inquiries themselves can concentrate on the real issues as
identified and agreed at a pre-inquiry meeting. An aspect of that
is making sure that third parties or objectors who want to appear
at the inquiry notify the other parties, including the inspector,
of the points they wish to make in advance. That is not to require
them to produce lovely, legalistic statements of case, but I cannot
see that efficiency or good decision making is served by them
turning up fairly near the end, because that is often when their
slot is, and making a new point (which may be a perfectly good
point) which nobody has thought about before and everybody then
has to go away and start thinking about it. If they can write
a letter or just produce a simple one-page summary before the
inquiry of what they think are the relevant issues, then at least
everybody can address them and at least they can be properly addressed
by the inspector in his decision. During the course of the inquiry
I have suggested that there may be in some cases scope for an
assistant to the inspector rather like a programme officer, as
occurs at present, who can act as a project manager or co-ordinator
between third parties, for example, in terms of their evidence,
and if they have got any questions about things like cross-examination
or submission he or she can give advice on that. That person obviously
would not take any part in the decision making.
146. Who should be responsible for implementing
these changes?
(Mr Cox) I think it is a process which needs the co-operation
of everybody. The lead probably has to come from the Department
because at its very basic it is the Secretary of State who in
effect, whether or not he has transferred jurisdiction, decides
all appeals in most inquiries. I think there is going to be a
need for some training within the inspectorate who, I have to
say, within the existing system do a very good job at present,
and obviously it is going to need the patience and co-operation
of developers and appellants and local planning authorities.
Chairman
147. You say planning inspectors do a very good
job. Are they paid sufficiently for the job that they do?
(Mr Cox) I do not know. I do not know their pay scales,
I am afraid.
148. So you have not looked at those compared
to barristers or solicitors who might be appearing at inquiries?
(Mr Cox) I have not, no.
Christine Butler
149. Could you let me know how it would affect
your firm if, as previous witnesses (the representatives from
the LGA) suggest, local development plans should be shorter and
more strategic and provide less detail? That would in their view
speed up matters. How would it affect a firm like yours?
(Mr Cox) I do not think it would affect us very much
in terms of input into the development plan process in terms of
things like local plan inquiries. As I think I mentioned earlier
on, we do not have that great an involvement as a firm in local
planning inquiries.
150. But on appeal you said that you would.
And if the local development plan, which is what the local authority
use to defend their position, is it not, were more of a strategic
document rather than detail on every bit of land and every proposal
on every bit of land, would that be less helpful to your firm
or more helpful to your firm? Would it give you greater scope
for argument or less? Would it give you more money or less money?
(Mr Cox) I find that quite a difficult question. Arguably
it would give us more money because inquiries would be longer
because there would be more argument about the meaning of strategic
policy and there would be in theory more appeals to the High Court
because the view would be taken that the inspector had got it
wrong. I think, however, that if you had a slightly more holistic
process and did not just have more strategic development plans,
that you perhaps had an inquiry system which looked at things
in a more holistic way, for example, in round table discussions
and without trying to reach a very specific view on things, took
views on issues in a more rounded way, that might result in shorter
inquiries, fewer inquiries, and fewer appeals to the High Court.
151. And it would be less legalistic. Round
table discussions do not sound too adversarial to me. Would your
services still be called for heavily if it were that route?
(Mr Cox) I suspect not.
Chairman
152. You have argued in your evidence and this
morning for an evolution of the system which could make it more
efficient, but we had evidence earlier about the implications
of the human rights legislation. Do you really think that evolution
is the right way to go forward or would it be necessary for the
government to come up with new planning legislation, and if we
were to have new planning legislation then we should look at a
new way of doing the inquiry process rather than just trying to
evolve it?
(Mr Cox) There is still, as I think the previous representatives
suggested, very little guidance from the government on how it
views the impact of the human rights legislation in the planning
system. Forgive me: legalistically of course the human rights
legislation has always affected the planning legislation. It is
not a new part of English law, but I think we are going to see
a lot more attention focused on it. I am not aware of any great
chorus of objectors, or indeed, for that matter, local planning
authorities or developers, saying that the current system is fundamentally
unfair.
153. What about people who object to a development
and the local authority gives planning permission? Is it not grossly
unfair to them if they do not have a chance to go to an inquiry
whereas the person putting forward the proposal, if it is turned
down, does have a chance to go to an inquiry?
(Mr Cox) They do have a right to do something about
it and I suspect, with respect, that what you are suggesting is
that it is unfair to make them go to court to do something about
it rather than the more informal, less expensive (though unfortunately
not necessarily less time-consuming) forum.
154. The court can only really rule on the process,
can it not, rather than the rights and wrongs of the decision?
(Mr Cox) Any process such as this has to be tempered
by a degree of practicality. If you have a third party right of
appeal on the basis that the wider domain is the best forum for
making any decision, it is unlikely you are going to get very
many decisions made. We have to put some trust in the local authority
to make the right decision.
Mrs Dunwoody
155. You are arguing against the extension of
the human rights legislation. In my area there is a very small
market town which was rebuilt in the 1600s and the existing population
are very much against any kind of development. They do not want
any more new houses. If they had a right of appeal against the
developers coming in and using the existing sites they would not
only exercise it; they would exercise it with vigour. Are you
saying that therefore because this would slow the process down
they should not have that right?
(Mr Cox) No. It is a difficult one.
156. Life is full of difficult choices.
(Mr Cox) In theory their representatives should be
taking that decision.
157. But that is precisely what they are objecting
to. They are saying that the council gave planning permission
on the basis of a plan which was agreed some time ago and the
county says they must take extra houses, and they are saying basically
not that they object to the planning decision but simply that
they do not want them there, full stop. Are you saying that they
would or they would not have the right to appeal?
(Mr Cox) Clearly under the current system they cannot
appeal against that decision.
158. Yes, and I am asking you, if there were
an extension of the human rights so that a third party had a right
to intervene, would you regard that as a step forward or a step
back?
(Mr Cox) If it resulted in all decisions being—
159. You do not exercise rights on the basis
of the fact that the decision might not be in anybody's interest,
do you?
(Mr Cox) No. If there was never any certainty about
the decision of the planning committee because there was a third
party right of appeal, I think that would cause massive problems.
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