Annex H
1X: DECISION LETTERS
Author: Jonathan Bore
Queries to: Policy Unit, QPT&C, Room
14/06, ext 6245
Scope of Guidance: this chapter provides
interim guidance for those who are still producing decision letters
in Wordperfect. Until further notice it will run in parallel with
Chapter 1F, shortly to be issued, which will contain advice on
producing decisions in the new format to be installed on the new
IT equipment issued during 1999. Much of the advice on contents
and reasoning will be common to both chapters.
The chapter deals mainly with Section 78 planning
appeals but the basic principles apply to transferred cases generally.
What's New: this issue replaces Chapter
C2 of the old Inspectors' Handbook. It contains a wide range of
updated and expanded advice. The changes are too extensive to
highlight in the text and Inspectors are therefore advised to
read the whole chapter. In particular, there are changes in the
following areas:
the form, contents and structure of the decision
letter;
development plan policies;
the submission of documents;
the issue of whether planning permission is required;
the retention of Inspector's notes;
The Chapter incorporates advice from PINS Notes
498, 580, 581, 589, 603, 625, 629, 633, 639, 662 and 675. The
advice on the listing and submission of documents supersedes that
in PINS Note 652.
CHAPTER 1X: DECISION LETTERS
CONTENTS
1-3 INTRODUCTION
4-8 FORM OF THE LETTER
9-10 STYLE OF THE LETTER
11 CONTENTS OF THE LETTER
12 Address
13-14 Introductory paragraph
15 Clarification
16-17 Site and surroundings
18 Planning history
19-22 Introducing the development plan
23-27 Framing the issues
28-30 Reasoning—structure
31-36 Reasoning—the policy background
31-33 Development plans
34-35 Emerging plans
36 SPG and planning briefs
37-46 Reasoning—contents
37-39 Process
40 Material considerations
41 "Helpful" comments
42-43 Precedent
44 "Fallback" position
45 Matters of lesser importance
46 Conclusions
47-49 Decision paragraph
50 Split decisions
51-52 Conditions and informatives
53 Planning obligations
54 Applications for costs
55 Appearances
56-59 Lists of documents, plans and photographs
60-61 TESTS TO APPLY TO A DECISION LETTER
62 SUBMITTING A DECISION LETTER
62 Inspectors using word processors
63-65 Inspectors using SSSU
66-71 Preparing the file for submission
72-76 Submitting the documents
77 Copy of decision letter
78 MEETING TARGETS
78-80 Timeliness
81 Quality
82 THIN INFORMATION, LATE REPRESENTATIONS,
NEW EVIDENCE
82 Inadequate background material
83-87 Late representations and new evidence
88 Re-opening inquiries
89 REDETERMINATION
89 Appointment of Inspector
90 Preparation
91-93 Matters to consider
94 OTHER MATTERS WHICH MIGHT ARISE
94 Abortive inquiries
95-96 Reserved matters
97-101 The issue of whether planning permission
is required
102 Defamatory comments
103-106 Environmental assessment
107 Retention of Inspectors' notes
108 SEEKING ADVICE
108 Advice on issues or reasoning
109-110 Policy advice
111-112 Legal advice
APPENDIX A CHECKLIST FOR S78 D/LS
1X: DECISION LETTERS
INTRODUCTION
1X.1 The decision letter is the culmination of
all the Inspector's efforts at the site visit, hearing or inquiry.
Its quality, clarity and soundness of judgement are the main measures
by which the Inspector and the Inspectorate are judged.
1X.2 The decision is the Inspector's responsibility
alone and it must be reached independently after consideration
of all available evidence. It will be based on the facts, arguments
and opinion expressed at the inquiry, hearing or in the written
representations, and on the inspection of the site.
1X.3 Inspectors should write their decision
letters as soon as possible after the inquiry, hearing or site
visit.
FORMAT OF
THE LETTER
1X.4 The format of the letter conveying
the decision should be appropriate to the circumstances of each
individual case, and is at the Inspector's discretion having regard
to the advice below. If in any doubt about the best approach,
Inspectors should consult their Sub-Group leader or IM.
1X.5 In written representation cases and
most hearings, the facts and arguments put forward are well documented
and are known to all the principal parties. It may therefore be
unnecessary to rehearse the facts or to repeat in detail the arguments
as presented, and the site description may be brief or woven into
the reasoning. The hub of the decision letter should be the Inspector's
conclusions following identification of the principal issues.
In reaching their own conclusions on these issues, Inspectors
should refer, where appropriate, to the arguments put forward
by the parties in the representations. In this way Inspectors
must demonstrate not only their own reasoning, but also their
understanding of the representations put before them.
1X.6 In an inquiry case the decision letter
provides the only means of recording the cases as they have emerged
from cross and re-examination. In the event of a decision being
challenged in the High Court it will be more difficult for the
Secretary of State to defend the case if the decision letter does
not contain an adequate account of the evidence given at the inquiry,
especially where the ground of application to the court is that
the Inspector has failed to take account of a particular issue
which was put at the inquiry. All the main arguments must therefore
be mentioned. It is important to record in the decision letter
matters where the inquiry revealed differences from the representations
produced beforehand. If stress has been laid by one of the main
parties on a factor to which the Inspector attaches little weight,
this factor should nevertheless be dealt with and it should be
explained why little weight is attached to it. Views of interested
persons which deal with matters of little weight can often be
disposed of without detailed mention, but if there is a common
theme shared by several interested persons at the inquiry or in
the written representations it is advisable to deal with it in
the decision letter.
1X.7 Where the cases presented at inquiry
are more complex, or contentious, or both, it may be appropriate
for Inspectors to set out separately in their own words the appellant's
case, the local authority's case, and the cases for each of the
other parties, in that order, and only then embark on their own
reasoning.
1X.8 Another kind of letter is structured
around the main topics raised at the inquiry. The Inspector will
set out, for each topic, the material facts and the parties' arguments,
reporting the matters canvassed at the inquiry. Views and arguments
wherever possible will be attributed to their proponents. There
will be then a conclusion on that particular topic, and the letter
will move on to the next. After dealing with the topics there
will be a reasoned conclusion on the overall merits of the scheme.
This type of letter may be particularly suitable if highly technical
evidence, novel forecasts, or issues affecting more than local
interests have been dealt with at the inquiry. It may also lend
itself to cases where there is considerable disagreement at the
inquiry on the interpretation of technical evidence given by opposing
experts; when there are several appeals relating to different
proposals, and several types of appeal before the Inspector, and
of some complexity; when there has been considerable involvement
of third parties with legal representation, on an issue of wide
general interest to the public; or where issues have been raised
which are not primarily planning matters but which are nevertheless
of public concern.
STYLE AND
LENGTH OF
THE LETTER
1X.9 Accuracy, clarity and simplicity of
language are attributes of a good decision letter. Any inaccuracy
may be singled out by an unsuccessful appellant to cast doubt
on the whole of the Inspector's treatment of the case. Clarity
and simplicity of language are qualities appreciated by all those
who will read the letter. Simple expressions and short sentences
are effective means of communication. Tenses should be appropriate.
The parties' arguments are often best stated in the present tense
("you claim"/"the Council argue") but the
past tense may be appropriate in some cases, such as when dealing
with specific points or evidence produced at the Inquiry ("the
Council stated at the inquiry that. . . ."/"at the inquiry
you produced . . ."). When considering the potential impact
of the development, conditional terms rather than future tense
should be used ("I consider that the scheme would . . ."—not
"will"). The correct terms as set out in legislation
should be used—ie "planning permission", "listed
building consent", "conservation area consent"
and so on, and the appropriate statutory duties observed, as in
the case of conservation areas and listed buildings.
1X.10 Decision letters should not be too
long, but brevity should not be sought at the expense of providing
a satisfying and tactful explanation of the way the decision was
reached. It is usually helpful to construct the letter with the
losing party in mind. The losing party will inevitably be disappointed
at the result, but ought to be convinced by the letter that their
views have been fully and carefully considered and that there
are sound reasons behind the decision.
CONTENTS OF
THE LETTER
1X.11 The following paragraphs set out the
structure which will be adopted towards most decision letters,
subject to the considerations set out above.
Address
1X.12 The Inspector's Standard Text, where
used, will act as a prompt for the correspondence address. Particular
care should be taken to see that the letter is appropriately addressed,
ie to the appellant or, where a solicitor or other agent has been
acting for the appellant, to the agent. This address will normally
be taken from the appeal form, but the file should always be checked
in case there has been a later change of address or agent. The
date should be left blank: it will be filled in by the Procedure
group when the letter is sent out.
Introductory paragraph
1X.13 Decision letters will contain an introductory
paragraph dealing with the site address, local planning authority,
description of the development and the nature of the appeal. The
pro-forma for decision letters, PINS 31, 31A, 31B or 31C etc as
appropriate, should be used for the headings and preamble. Updated
versions of these are incorporated into Inspectors' Standard Text.
1X.14 The details in this paragraph must
be accurate and should therefore be carefully checked against
the file details. The right of appeal is vested in the applicant
so the name of the appellant should be taken from the planning
application form (but when there are a number of applicants, they
do not all have to be party to the appeal). The description of
development should also normally come from the planning application
form, and not from the appeal form or decision notice, which may
only contain the planning authority's (sometimes inaccurate) interpretation
of the development. The exception to this is where the appellant
has amended the description of development prior to determination
by the planning authority and the new description is entirely
clear and undisputed. The description of development should be
put into good English where necessary but the meaning should not
be changed. If clarification is necessary, this should be dealt
with in a clarification paragraph.
Clarification paragraph(s) (where appropriate)
1X.15 This will be necessary where the original
description of development is unclear, fails properly to reflect
what is being sought, or has been superseded by subsequent amendments
to the scheme, or where the nature of the scheme or application
is in dispute. The paragraph may deal with other areas which need
to be clarified, such as whether the appeal relates to a full
or outline application, which matters are reserved, which plans
are extant and which have been superseded, and so on. Where there
is uncertainty or dispute, this paragraph (or paragraphs) should
contain enough explanation to justify the Inspector's approach
and should conclude with a firm and unambiguous statement of clarification
which will provide a basis for moving on to determine the appeal.
Often, clarification can be dealt with in one paragraph but in
difficult cases or where there is significant dispute over fundamental
points, much more reasoned explanation may be needed. Before moving
on to deal with the main issues, there should not be any loose
ends and the appellant, LPA and any other readers should not be
left in any doubt about the Inspector's approach to the nature
of the application/appeal, the content of the scheme which is
to be determined or the status of any submitted plans.
Description of the site and surroundings (where
appropriate)
1X.16 This does not usually have to be very
detailed or lengthy, but it is often useful to set the scene with
a few words about the location and description of the site, the
relation (where relevant) to significant roads or buildings and,
if appropriate, the location of the site in a conservation area
(which should be named) or other policy area and the presence
of listed buildings. In listed building cases the character and
listing of the building should be mentioned. In simple cases one
or two sentences can suffice, but where visual or land use relationships
are central to the arguments, more detail may well be needed.
On the other hand, sometimes the description can be omitted and
the important physical features of the site or area which are
relevant to the case can be woven into the reasoning. Whichever
approach is chosen will depend on the nature of the case but it
is essential that basic facts and directions are correct.
1X.17 Over-reliance on detail (such as precise
measurement) is usually unnecessary and is best avoided in most
cases because of the opportunity it offers for subsequent dispute.
The deliberate use of approximation or description relative to
other features can help to avoid these difficulties. Where precise
measurement is required it is best to use measurements which have
been agreed between the parties if this is possible. The metric
system is used for all measurements except:
— the use of non-metric units of measurement
as supplementary indications, eg in brackets () following the
metric measurement;
— feet for aircraft height;
— miles and mph for road traffic purposes
in the context of statutory speed limits.
Planning history (where appropriate)
1X.18 Extant planning permissions, relevant
refusals and any other material historical background should be
dealt with in the letter. Very often there is no need for a separate
section on this subject, since the relevant facts can often be
incorporated into the reasoning. However, a separate section can
be useful if the background is complicated and needs to be dealt
with first.
Introducing the development plan policies
1X.19 The development plan and any relevant
policies can be introduced either before or after the issues (see
below), before moving on to the reasoning. The plans should be
identified by name. Development plans include adopted unitary
development plans, approved or adopted structure plans, adopted
local plans and any adopted minerals local plan and waste local
plan. In order to comply with S54A, every decision letter should
refer to all the relevant development plan policies. If the Inspector
considers there are no relevant policies, this should be stated,
with reasons where appropriate. Where the development plan is
introduced at an early stage of the letter, it is most important
that Inspectors do not forget to return to it in their reasoning
and conclude on whether the scheme is in accordance with it.
1X.20 In the decision letter, it is not
usually necessary to repeat verbatim the whole of any development
plan policy, unless there is good reason to do so. Sometimes it
may only be necessary to refer to the relevant policy numbers
and their general objectives; in others, more detail will be required,
for example where the scheme is to be evaluated against a number
of policy criteria. Nevertheless, the letter should contain enough
detail to leave the reader in no doubt that the Inspector has
properly applied all the relevant policies and has understood
their contents and objectives.
1X.21 The policies of any emerging plans
can generally be referred to either in the same paragraph as the
development plan, or a subsequent paragraph, depending on logic.
Any discussion about their weight relative to the development
plan policies can be dealt with at this stage or in the subsequent
reasoning, having regard to the advice in paragraph 48 or PPG1.
1X.22 Paragraphs 1X.31-1X.36 below discuss
how planning policies should be considered as part of the letter's
reasoning.
Framing the issues
1X.23 These are the nub of the cases, on
which the decision will turn, as opposed to secondary issues which
are not in themselves weighty enough to decide the case one way
or another. In most simple cases the issues can be introduced
early in the letter. The more complex cases may demand a good
deal of background explanation and sometimes logical argument
before the issues can be defined, in order to disentangle the
central points from the peripheral arguments and red herrings.
1X.24 The issues might be introduced in
this way: "From my inspection of the site and its surroundings,
and from the representations made, I consider that the main issues
are . . .". Another suitable way might be "in my view
the decision in this case turns on whether . . .". A corollary
to identifying the principal issues is that the Inspector must,
later in the letter, say that he or she has also considered all
the other matters raised at the inquiry or in the representations.
1X.25 Well defined issues will help to lead
to clear, focused reasoning. The best issues are those which direct
the discussion towards an examination of the practical consequences
of the development rather than any technical or semantic point.
For example, where there is an argument between the parties about
whether the scheme amounts to "over-development", or
where there are density arguments, it is better to define the
issue in terms of the effect of the development on the character
and appearance of the locality or on the street scene. Similarly,
where arguments have been raised about "backland development",
the issue should be defined in terms of the effect of the development
on the character of the area or on the neighbours' living condition
through noise, disturbance or loss of privacy, as appropriate.
Issues should be neutral and not contain inbuilt prejudice such
as "whether the scheme would amount to unacceptable backland
development".
1X.26 Often it may be helpful to refer to
the development plan policies or their objectives in the issues.
A simple example would be "The effect of the proposed development
on the setting of . . . village, having regard to Local Plan policies
(nos) which aim to protect the countryside." However, issues
should not normally be framed solely on whether the proposed development
is in accordance with the development plan, and care should also
be taken to avoid framing the issues too narrowly as a result
of following the policy wording. This is because doing so could
prejudice a full and proper examination of the arguments in favour
and the degree of harm, ie the practical consequences of the development,
which are other material considerations.
1X.27 For example, the development plan
may have a very narrow definition of infilling, whereas it would
be better to define the issue in terms of the effect of the development
on the street scene or character of the village or conservation
area (whichever is appropriate). Similarly a plan might have very
detailed criteria for assessing changes from retail to A2 and
A3 uses; such changes of use could be addressed in the letter
by defining the issue as the effect on the vitality and viability
of the shopping centre or parade. Issues of this kind will allow
for a thorough evaluation of the impact of the development as
well as an assessment of whether the scheme is in accordance with
the development plan.
Reasoning—structure
1X.28 The main burden of any decision letter
will be the reasoning on which the Inspector's decision is based.
The decision letter should deal with all the identified main issues
and with the arguments relied upon by the parties. Most letters
save for short single issue letters will be more readable if they
include sub-headings for each of the issues or topics. These sub-headings
should give a (brief) indication of the subject matter; for example,
"The effect on the character of the conservation area"
or "The effect on neighbours living conditions"—not
simply "Issue 1", "Issue 2" and so on. If
there are other matters raised which are not central to the decision
but which are important to the parties they should not be mentioned
here, but it will be necessary to demonstrate at an appropriate
point in the letter that they have been taken into account in
leading to the decision (see 1X.40, 45-46).
1X.29 Inspectors' reasoning in decision
letters must be clear and cogent. Every decision letter should
deal with each issue on which the decision will turn (see also
1X.37-38) and should demonstrate progress from statements of policy
and facts to decision or recommendation by rigorous reasoning
and the exercise of judgement. The Inspector's own reasoning process
should be clearly distinguishable from the opinions and arguments
put forward by the parties. An Inspector should avoid reporting
a party's argument or assertion without his/her own comment or
conclusion otherwise it will be unclear how much weight the Inspector
gives to that argument. For the same reason it is usually better
for an Inspector to express undisputed factual matters as statements
rather than the assertions of one or other party. For example,
"The current uses on the site are . . .", "It was
not disputed that . . ." or "I understand that . . ."
are generally better than "You told me that . . ." unless
the Inspector intends to comment on the latter.
1X.30 The structure should take into account
the specialist requirements of certain cases such as those concerning
listed buildings and conversation areas.
REASONING—THE
POLICY BACKGROUND
Development plans
1X.31 Section 54A of the Act requires determination
to be in accordance with the development plan unless material
considerations indicate otherwise, but there is no need to state
this explicitly in the decision letter as long as it is clear
that the provisions of the s54A have been applied properly. Inspectors
should not attempt to ascribe weight to the policies in a current
adopted or approved plan, because it is given statutory force
by s54A. So if the development plan is, for example, somewhat
out of date, it is not appropriate to say "I accord the plan
little weight" or if it is recently adopted, "I accord
the plan great weight". Instead, when looking at the policy
background, Inspectors should consider whether other material
considerations such as PPGs, emerging development plans and circulars
should carry greater weight. An example might be where recent
events or policy developments have rendered the development plan
out-of-date.
1X.32 Section 54A applies to everything
within a local plan and UDP, including the reasoned justification
and appendices. In structure plans, it applies to the policies
only, and not the explanatory memorandum which is not part of
the plan (PPG12 pararaph 7.10), although the latter is clearly
a material consideration. The order of precedence where there
is a conflict between plans is set out at paragraphs 3.16-17 of
PPG12.
1X.33 Where an adopted development plan
has been challenged, it remains the development plan for the purposes
of s54A unless and until quashed by the courts.
Emerging plans
1X.34 With regard to emerging plans, the
Secretary of State's policies in respect of prematurity arguments
and the weight to be given to emerging policies are set out in
paragraphs 47-49 of PPG1. Inspectors should consider how far the
emerging plan has made progress towards adoption and, taking this
along with any other relevant factors, should try to be specific
about how much weight is to be accorded to the emerging policies,
having regard to paragraphs 47-49 of PPG1. Simply according the
emerging policies "due weight" or "the weight due
to them having regard to paragraphs 47-49 of PPG1" may leave
the parties uncertain as to how important a factor in the decision
the emerging policies are.
1X.35 Where a local plan Inspector has made
recommendations in respect of a particular policy of an emerging
plan, those recommendations will be a material consideration until
such time as the emerging plan has been adopted.
SPG and planning briefs
1X.36 It is for the Inspector to decide
how much weight to give to considerations such as supplementary
planning guidance and planning briefs, but such documents will
carry greater weight if subject to public consultation and council
resolution (see PPG12 paragraph 3.19). Inspectors' Handbook chapter
4A.145-147 contains some additional information on this matter.
Reasoning—contents
Process
1X.37 For each identified issue, Inspectors should
review the relevant facts and arguments, consider whether or not
the scheme is in accordance with the development plan, and assess
whether other material considerations should lead to a different
conclusion from that indicated by the development plan. Where
policies pull in opposite directions, or where the scheme would
have both positive and negative effects, a balancing exercise
must be carried out. As part of this process, Inspectors should
consider whether and to what degree the proposed development would
cause demonstrable harm to interests of acknowledged importance.
1X.38 The Inspector should draw a clear
conclusion in respect of each issue. Where the harm caused by
the scheme in respect of one issue is sufficient on its own to
justify dismissing the appeal, this should be made clear. It usually
makes sense to deal with this issue first and the subsequent issues
can then be dealt with more briefly. In such cases, where the
scheme causes no harm in respect of the subsequent issues, or
where there are claimed positive effects, the Inspector should
acknowledge these but state that they do not overcome the fundamental
objection to the scheme. Where the scheme is harmful in respect
of subsequent issues, the Inspector can say that the conclusions
in respect of these issues reinforce the objections to the scheme.
1X.39 In cases where the proposal has both
positive and negative effects in respect of different issues,
the Inspector will need to balance these and come to a reasoned
conclusion. This is a crucial part of the letter. The reasoning
should be clear and logical; it should not vacillate and should
support the decision. It should not appear to head in one direction
only to conclude the opposite. Not should it appear to draw conclusions
on one matter and then re-open discussion on the same matter later.
Material considerations
1X.40 In principle, any consideration which
relates to the use and development of land is capable of being
a material consideration (see para 50 of PPG1). For example, in
Newport BC v SS for Wales and Browning Ferris Services Ltd [1998]
JPL377 it was held that public concern was a material consideration
even though there was no objective evidence to support it (although
in s78 appeals such a consideration will be unlikely to have a
significant effect on the decision since realistically there will
almost always be other matters which will add weight in one direction
or the other). Inspectors should generally try to avoid making
pronouncements about whether a particular matter is a material
consideration. The courts have generally sought to avoid establishing
such distinctions. The approach instead should be consider how
much weight to give to the matter; in reality there is little
difference between the weight attached to a material consideration
which is peripheral and one which is not material at all. It is
wholly for the Inspector to decide what weight to accord to a
material consideration.
"Helpful" comments
1X.41 "Helpful" comments suggesting
that a scheme is to be dismissed would be made acceptable (or
that a scheme which is acceptable would be made better) if certain
amendments were made, should be avoided because they go beyond
the Inspector's jurisdiction to determine the appeal and may serve
to prejudice the decision of those responsible for determining
any future application.
Precedent
1X.42 Whilst each case is decided on its
merits, it will be necessary to deal with any previous LPA or
appeal decisions referred to by the parties. It should be clear
from the letter that relevant previous Inspectors' decisions referred
to by the parties have been taken into account, and if a different
conclusion is reached this time, the letter should explain why.
1X.43 As regards arguments that a precedent
might be established, it is often useful to deal with this matter
within the context of the development plan. Where the appeal is
to be allowed, the specific characteristics of this particular
proposal and its differences with previous decisions can be stressed,
and the point made (where appropriate) that the development plan
will serve to prevent this becoming a precedent. Where the appeal
is to be dismissed, reference can be made to the likely harm to
the objectives of the development plan.
"Fallback" position
1X.44 It should also be clear from the reasoning
that any "fallback" position referred to by the parties
has been taken into account, such as the implementation of an
extant permission, the resumption of previous activities or the
exercise of GPDO rights. The Inspector should consider whether
there is a reasonable possibility of the "fallback"
position being implemented—if not, it cannot carry much
weight. Even if there is a possibility, it does not prevent an
Inspector from dismissing an appeal for a scheme which is patently
unacceptable in planning terms and for which planning permission
ought not to be granted (a scheme with a dangerous access or harmful
environmental effects, for example) provided the matter is carefully
considered in the letter; the Inspector should weigh the degree
of probability of the fallback position and the harm arising from
it against the harm arising from the proposal. The apportionment
of weight is a matter for the Inspector.
Matters of lesser importance
1X.45 Other issues which the Inspector considers
are not central to the decision but which are considered important
by the parties should be referred to usually after the main issues,
to the extent that the parties are left in no doubt that they
have been taken into account in the process leading to the decision.
Items of limited relevance should be given "little"
weight, rather than none at all, so that it is clear that they
have been considered. Where matters have been raised which bear
no relation at all to the use or development of land or are matters
for approval under other legislation, it may be necessary to explain
why they have little bearing on the decision. See also paragraph
1X.28.
Conclusions
1X.46 A concluding sentence or paragraph
will normally be included which draws together the above reasoning
and indicates what decision the Inspector intends to make. The
conclusion should be firm—even where the issues have been
finely balanced and the decision difficult to make. Finally, the
letter should state that the Inspector has considered all the
other matters raised (and it will often be desirable to specify
some of them), but that they do not outweigh the considerations
that led to the decision.
Decision paragraph
1X.47 The Inspectors' Standard text will
generate the decision paragraph, but the resulting text should
be examined carefully to ensure that it reflects accurately the
nature of the decision and the nature of the development which
is being allowed or dismissed. For example, where the appeal relates
to the failure of the LPA to determine the appeal, the decision
will be to allow the appeal and grant planning permission, or
dismiss the appeal and refuse planning permission. Where the scheme
has been amended since the application was submitted, the description
of what is being allowed or dismissed should be that of the amended
scheme (as established in the clarification paragraph(s)—see
1X.15) and not the original description of development which appeared
in the first paragraph of the letter. If there have been changes
to the scheme or there is any dispute about the scheme's contents,
it is usually best to refer in the decision paragraph to the numbers
of the drawings which illustrate the scheme on which the Inspector's
decision is based.
1X.48 Decisions on more than one appeal
should be clearly identifiable and should correlate with the identification
given to them elsewhere in the letter, eg
1X.49 This cannot be done within Inspectors'
Standard text. Inspectors will therefore need to go through the
Standard Text procedure first, using the "allow" sheet
if one of the appeals is to be allowed, then generate the letter
and alter it to fit the circumstances.
Split decisions
1X.50 Occasionally it may be appropriate
to split a decision, allowing one part of a scheme and dismissing
the rest. Inspectors should be absolutely certain before choosing
this option that the two parts of the scheme are clearly severable.
The parties must be aware of the Inspector's intention to issue
a split decision. If they are not, the Inspector should inform
his/her relevant support group who will write to the parties seeking
their views.
Conditions and informatives
1X.51 It is essential to word correctly
any conditions imposed on the grant of planning permission. The
reasons for imposing any conditions other than the standard ones
should be explained in the decision letter, as should be non-imposition
of conditions suggested by the parties. General guidance on the
use of conditions is in Circular 11/95 (WO Circular 35/95). Inspectors'
Standard Text produces model conditions taken from Circular 11/95
but these should be checked, and amended where necessary, to ensure
relevance to the case in hand. See also Chapter 1J of this Handbook
for advice on appeals against conditions, and 1L for advice on
planning conditions.
1X.52 Inspectors' Standard Text also generates
appropriate informatives but these should be checked for relevance
to the case.
Planning obligations
1X.53 Advice on planning obligations is
given in Inspector's Handbook Chapter 1K. Where a completed S106
obligation is supplied, Inspectors will need to consider whether
it is needed to overcome any valid planning objections. It will
need to be checked against the policy and legal tests set out
in Circular 1/97. The obligation will have to be dealt with in
the decision letter whether the appeal is to be allowed or dismissed,
and if the latter, the Inspector should explain why it does not
overcome the arguments against the proposal.
Applications for costs
1X.54 Policy advice on applications for
costs is contained in Circular 8/93 (Welsh Office 23/93). Chapter
1H of this Handbook gives advice on writing costs decisions letters.
Appearances
1X.55 A list of appearances is appended
to every decision letter following an inquiry or hearing. This
can be produced within Inspectors' Standard Text. The list should
include the names and (except for the local authority) addresses
of all parties who made representations, starting with the appellant
or applicant followed by the planning authority, statutory parties,
the parish or town council appearing on its own (as opposed to
being called by one of the principal parties) and other interested
persons, in that order. Below the name of each party should be
listed the names of advocates and witnesses (if any). Opposite
the names should appear the qualifications or occupations of advocates
and witnesses. Barristers, except QCs, should be listed as "of
Counsel" (where they are practising members of the bar) followed
by the names and addresses of their instructing solicitors. The
capacity in which non-professional witnesses appear eg local resident,
should be recorded.
List of documents, plans and photographs
1X.56 The Inquiries Procedure Rules governing
transferred appeals provide that anyone who appeared at an inquiry
and wants to see these documents must be given an opportunity
to do so. A list of documents, plans and photographs is therefore
annexed to all decision letters following an inquiry. The I P
Rules do not apply to hearings but the same procedure should be
followed in the interests of consistency and to ensure that the
documents on the file are complete, in logical order and easily
inspected. A documents list is produced within Inspectors' Standard
Text as part of the Appearances sheet. Occasionally there may
be a good reason for departing from the formula offered by Standard
Text. If you need to customise the list or arrange it in a different
manner from that offered by Standard Text you will need to begin
with Standard Text, generate the letter and then insert the entries.
1X.57 This list is not only there for interested
parties to inspect, it has a number of other advantages. It can
act as a useful memory aid and reference list for the Inspector,
particularly in the larger or more complicated cases. It can help
to establish the definitive set of current documents (particularly
useful where material has been continually produced, amended and
updated by both sides throughout the inquiry or hearing). It can
help with clarification; references can be made in the decision
letter to documents in the list, by the reference number allocated
to them by the Inspector, to avoid any doubt about which document
is being referred to in the text. Finally, it can have a diplomatic
purpose by recognising documents important to their authors; for
example third parties often carry out a great deal of research
in their own time to produce documents which they set great store
by. There points need to be borne in mind when constructing the
documents list, and in many cases, particularly the larger ones,
it is often helpful to produce the list before writing the letter.
1X.58 The following applies to inquiries
and hearings. The list should include:
— The list of persons present at
the inquiry and hearing.
— The letter of notification and the list
of persons notified.
— The letters of representation, which
are normally bundled and counted as one or two documents, eg Document
4, and described simply as "letters of representation"
or a "X letters supporting the council" and "Y
letters supporting the appellant". Where necessary they should
be sub-numbered individually for ease of reference, eg "document
4/3". Petitions should be recorded as, for example, "petition
with (approximately) . . . signatures supporting/opposing the
development, put in by . . .". Letters from MPs which the
writer intends should form part of the evidence should be listed
separately giving the MP's name.
— Tables, technical material and appendices
(attributed to their author or promoter). Proofs of evidence or
hearing statements should not themselves normally be listed; they
are often not followed exactly and may have been modified under
cross-examination. However, when the proof or statement of a witness
contains such scientific or technical data which needs to be made
available, this part of the proof might be listed as a document,
eg "Table 1 produced by Mr . . .: Statistics of road accidents
. . .".
— Tables, technical material etc
submitted during the inquiry or hearing, and those submitted beforehand
which were referred to at the inquiry or hearing.
— Letters and all other material submitted
during the inquiry or hearing (indicating who from/to, date and
which party submitted them). Where appropriate, correspondence
may be bundled collectively and listed as "correspondence
between . . . and . . ."
Plans
— Application plans, those
on which the decision was based, and any other plans submitted
separately during the course of the inquiry, should be clearly
distinguished in the list. All (except duplicate copies) should
be listed. Plans which have not been authenticated at the inquiry
cannot be referred to. Plans which are enclosed or bound into
appendices do not need to be separately listed.
Photographs
— Photographs submitted separately
from proofs and appendices should be listed. Photographs enclosed
or bound into appendices do not need to be separately listed.
Often photographs are submitted in sets or portfolios and these
can be listed as sets rather than individual photographs unless
there is good reason to do otherwise—such as for the purpose
of cross referencing.
Note: Advice on file and document submission
is set out in 1X 66-76 below.
1X.59 Where the list is long, it usually
makes sense to divide it into sub-headings, eg 'General Documents',
"Appellant's Documents", "Planning Authority's
Documents", "Documents Submitted by XXX Parish Council",
"Documents Submitted by Others". If you want to customise
the list in this way you may have to use Inspectors' Standard
Text first, generate the letter and then alter the entries to
get the result you want.
TESTS TO
APPLY TO
A DECISION
LETTER
1X.60 In general, there are three useful
tests to apply to any decision letter.
1. Is it so constructed that the decision
appears to flow inevitably from the argument? Or would the decision
be likely to come as a surprise to the parties (if it does the
decision will appear perverse).
2. Are the planning considerations on which
the decision is based explained sufficiently clearly for the parties
to be satisfied that the Inspector has taken into account properly
all the evidence on which they relied?
3. Are planning considerations explained
well enough for the losing party to understand exactly why it
lost? As a test, it ought to be possible (without "helpful"
comments—see 1X.33) for an unsuccessful appellant to be
able to make a reasonable assessment of his/her chances of succeeding
with an amended scheme, or for a losing LPA to assess what implications,
if any, the decision will have for future applications.
1X.61 A useful check list for section 78
cases is at Appendix A.
SUBMITTING A
DECISION LETTER
Inspectors using word processors
1X.62 The decision letter should appear well-presented.
It should follow PINS corporate style using fully justified CG
Times 12 point. Any difficulties arising from the malfunctioning
of PC hardware, and any practical problems with the production
of the letter using the supplied software, should be discussed
with the IT Helpdesk on extension 8888.
Inspectors using SSSU
1X.63 Inspectors with word processors who
require a first draft of their letter to be prepared by SSSU,
should request a disk containing the work to be returned to them
with the hard paper copy (SSSU will retain an electronic copy
of the original).
1X.64 Inspectors wishing to avail themselves
of the services of the SSSU to effect corrections or amendments
to a letter are responsible for ensuring that all necessary corrections
and amendments have been made prior to submission and are included
on the submitted copy.
1X.65 Inspectors without word processors
should not request a disk when having their work typed by SSSU.
An electronic copy will be retained by SSSU and any subsequent
amendment, arranged by telephone or by the Inspector returning
an amended copy, will be carried out by them. To avoid postal
delays the typing staff at Bristol will take minor amendments
over the telephone (0117 987 8513).
Preparing the file for submission
1X.66 Inspectors producing decision letters
on their own word processors or using the services of the Secretarial
Support Services Unit (SSSU) should submit a single signed final
version of the decision letter. It should be enclosed in the plan
folder on the left hand side of the appeal file.
1X.67 Where a decision letter is monitored
and following discussions with the Inspector it is agreed that
changes are required to the letter, it will be the Inspector's
responsibility to produce a revised signed copy for sending to
his or her PINS Group.
1X.68 In written representations cases,
Inspectors should initial prominently, preferably in the top right
hand corner of the first page, each submission on the file so
that those which have been taken into account can be readily distinguished
from any that may be submitted later.
1X.69 In all cases the INT 12/INT 13/INT
14/INT/15 should be completed, signed and dated. The space provided
on the back of the minute should be used with caution. Nothing
should be recorded that would affect an Inspector's recommendation
or which would be relevant to the issues under consideration.
Almost the only occasion when observation would be useful would
be when matters concerning the accommodation, the conduct or procedure
of the site visit, hearing or inquiry are likely to be the subject
of comment.
1X.70 The RCR coding form should then be
completed.
1X.71 In section 78 appeals, the procedure
group will place an orange flag on correspondence from statutory
parties and from interested persons who have asked for a copy
of the decision letter. MP correspondence is easily identified
as it is in a green or red jacket. Blue flags are used by procedure
to identify documents and letters which they wish to bring to
an Inspector's attention. Inspectors should check the flagging
and supplement it if necessary. At an inquiry, Inspectors may
be handed third party correspondence which the procedure group
will not have seen. Inspectors should also flag any representations
from someone not in the above categories who could usefully, for
some special reason, be sent a copy. When this has been done,
the entry in the covering minute need only read "as flagged".
Submitting the documents
1X.72 The listed documents, plans and photographs
above should be returned to the office as indicated below. Non-technical
inquiry proofs of evidence are normally retained by the Inspector,
but where the proof or statement contains technical material,
tables as listed in the documents list which cannot easily be
separated from it then the whole item might need to be submitted.
Inspectors should use their discretion in this matter. The Inspector
must make sure that any incidental marginal notes are erased from
the documents, plans or photographs before submission.
1X.73 Documents should be numbered 1, 2,
3 etc and filed on the right hand side of the file. If they are
too bulky, they should be placed in a separate blue file wallet:
the wallet should be clearly marked with the file reference and
numbered 1 of N, 2 of N etc.
1X.74 All listed plans should be lettered
boldly "Plan A", "Plan B" etc in the bottom
right hand corner and the file number added. Plans should be folded
to fit the file so that the section containing the plan number
is clearly visible. It is often helpful to label superseded plans
and the final plans on which the decision was based.
1X.75 As regards photographs, it will be
helpful if the party who has handed them in has identified each
photographs by number (perhaps by reference to a plan) with subject,
view point and possibly date recorded.
1X.76 Hearing statements should be on the
file when it is returned to the office. They are not normally
listed as documents.
Copy of decision letter
1X.77 When the decision letter is issued,
a copy will be sent to the Inspector for retention.
MEETING TARGETS
Timeliness
1X.78 The Charter Standards for Planning have
set timeliness targets for the Inspectorate; these are that 80
per cent of written representations cases will be decided within
25 working days of the site visit; and 80 per cent of inquiries
and hearings cases within 35 working days of the sitting. The
Inspectorate applies this to one or two day inquiries.
1X.79 In addition, Ministerial timeliness
targets for the Inspectorate are set each year and are published
in Hansard. The Planning Inspectorate places great importance
on achieving these targets. The target for 1998/99 for planning
appeals for England is that 80 per cent of written representations
cases will be decided within 18 weeks; 80 per cent of hearings
cases within 24 weeks, and 80 per cent of inquiries cases, within
36 weeks. The corresponding figures for Wales are 17. 22 and 30
weeks. It is intended by 2002 to reduce the corresponding handling
times for both England and Wale to 16, 22 and 30.
1X.80 Inspectors should therefore ensure
that all decision letters are submitted to Tollgate House as quickly
as possible. Delays caused for example by waiting for additional
information or a 106 agreement should be avoided wherever safely
possible (see 1X.82-87 and Chapter 1K), but discretion must be
exercised in the interests of efficiency and natural justice.
Section 78 written representations cases should normally arrive
in the office within 10 days of the site visit, and one or two
day inquiries or hearing cases within 15 working days. Cases should
normally be dealt with in chronological order and the best practice
is for Inspectors to deal with them while the event is still fresh
in the mind. However, it will sometimes be necessary to give priority
to letters which can be despatched before the target date. The
target for the despatch of the decision letter is shown on the
appeal file cover.
Quality
1X.81 Inspectors must always check their
decision letters thoroughly before they are submitted to Tollgate
House for issue. To satisfy the Advisory Panel on Standards and
thus the Secretaries of State, the quality of Inspectors' work
must be maintained at a high standard and 99 per cent of its casework
must be free of justified complaint. Drafting errors are more
easily picked up if the letter if written one day and checked
the next. Inspectors must remain responsible for their decision
letters after they are submitted; they must therefore maintain
an interest in progress until the letters are dispatched.
THIN INFORMATION,
LATE REPRESENTATIONS,
NEW EVIDENCE
Inadequate background material
1X.82 Chapter 1A paragraphs 26-29 gives advice
on obtaining evidence where the material supplied is inadequate.
The following is an amplification of that advice. Sometimes—particularly
in some written representations cases—information supplied
by the parties about the development plan (or the policies of
an emerging plan) may be inadequate. Inspectors are under no obligation
to seek out and consider development plan policies other than
those relied on by the parties (Elmbridge BC v SSE and Commercial
Properties Ltd—HC/190), but, as a matter of good practice,
should try to ensure that they are provided with sufficient information
about the development plan to allow them to make a sound decision.
There is no need to waste time pursuing information which is not
central to the main issues, or seeking details of plans which
are unlikely to be relevant. However, when there is good reason
to believe that there are relevant development plan policies which
you need to know more about in order to come to a sound decision
in the public interest, you should seek that information. In hearings
and inquiries this can of course be done at the event, but in
written representations cases you should ask the case officer
in the relevant procedure group to obtain the information ideally
before the site visit, to avoid having to go back to the parties
afterwards. Inspectors should set out the request on a disk as
they wish it to be sent and return it to the office—the
case officer can then merge it with his/her letter.
Late representations and new evidence
1X.83 Decision letters should not be delayed
waiting for late representations if sufficient information is
already available or where the parties have been given a particular
number of days to make their representations and the time limit
has passed. Any letters which come into the office late will be
sent by the procedure group to the Inspector, with a request for
him to consider whether they contain new issues material to the
decision. If they do not, the letter may be submitted. If they
do raise new evidence or issues of fact, the support group must
be told and the parties notified for their comments. Third party
representations received after the file has been sent to the Inspector
are copied to the main parties only if the Inspector considers
that they raise new issues material to the decision.
1X.84 If, as a result of the site inspection
or for any other reason, Inspectors find that they must take into
account new evidence or facts, or an argument that was not canvassed
at the inquiry, the support group should be told so that the parties'
views can be sought. The request should be sent to the support
group on a disk so that it can be merged with a letter from the
office. Inspectors should not reply personally to any correspondence
connected with their cases. Any invitations to the parties to
comment will be sent out by the office.
1X.85 In transferred inquiry cases, relevant
new evidence or matters of fact not raised at the inquiry are
dealt with in rule 17(2) of the Inquiries Procedure Rules governing
transferred appeals. If the Inspector wants to take post-inquiry
letters into account he/she will have to decide whether they fall
within the classes of evidence and fact described in rule 17(2).
This rule only covers evidence and facts which were not raised
at the inquiry and which the Inspector considers to be material
to the decision. If the Inspector proposes to take into account
any such evidence or new issue of fact, he/she should write a
minute to the support group setting out its substance and this
will be notified to the parties for their comments.
1X.86 While rule 17(2) sets out an Inspector's
statutory obligations, he/she must bear in mind the need, whether
or not the situation comes properly within this rule, to ensure
complete fairness and openness towards all parties to the proceedings.
Inspectors must not base their decisions on, or allow them to
be influenced in any way by, information or issues which have
not been fully disclosed to the parties and on which they have
not had an opportunity to comment. In this context, MP correspondence
forwarded to the Inspector after an inquiry (or hearing) which
is not considered to raise new issues and is therefore not copies
to the parties, should not be referred to in the decision letter.
1X.87 The prime reason for delay in written
representations appeals is late (ie out of time) representations.
Late representations should not be accepted at the site visit.
The party should be told to send the papers to the case officers
without giving any indication as to whether they will be taken
into account. After the site visit, Inspectors should make every
effort to complete their decision letter at once, using the information
available, unless the information is needed for the decision and
is going to arrive shortly. In this regard, Inspectors should
bear in mind the need to observe natural justice.
Re-opening inquiries
1X.88 Rule 17 of the relevant inquiries
procedure rules also empowers Inspectors to re-open an inquiry
on their own initiative. Inquiries should only be re-opened in
exceptional circumstances as the point at issue can usually be
dealt with by written representations. If an Inspector considers
that an inquiry should be re-opened, his/her IM should be consulted.
Inspectors are required by the same rule to re-open the inquiry
if asked to do so by one of the main parties to the appeal, or
by a statutory party who appeared at the original inquiry, in
any case where they propose to take into consideration any new
evidence or any new issue of fact.
REDETERMINATION
Appointment of Inspector
1X.89 When an appeal decision is quashed by the
Courts and sent back to the Secretary of State to be redetermined,
a new Inspector is normally appointed (and if an inquiry was held
to determine the original appeal, the appointment of a new Inspector
will usually mean that a new inquiry will have to be held). If
an IM (or anyone deputising for him/her) intends to recommend
to PINS(AA) that the original inspector should be re-appointed,
written reasons must be given.
Preparation
1X.90 A copy of a standard introductory
paragraph (PINS 31H) is attached to all redetermination case files
before despatch to an Inspector. When the Secretary of State has
unsuccessfully defended a decision letter in the High Court a
copy of the judgement is also placed on the case file. Inspectors
must read the transcript carefully before proceeding to redetermine
the appeal. In no circumstances should a case be redetermined
without sight of the Court's judgement.
Matters to consider
1X.91 The Courts have made clear that in
redetermining a planning appeal the case has to be considered
"de-novo" (Kingswood District Council v SSE and R J
Tanner; 1987). Thus, while Inspectors must give particular attention
to the grounds on which the original decision was quashed, it
is essential to restate all the planning issues and given them
renewed consideration. If an Inspector is minded to make changes
which go beyond those called for as a result of the Court's judgement,
to do so without compelling new material may render the re-determined
decision vulnerable to challenge unless the reasoning is especially
clear and cogent.
1X.92 Explicit references to the original
letter are not normally appropriate except in the context of making
clear that the redetermined decision supersedes the quashed one.
However, if the parties seek to rely on conclusions expressed
by the first Inspector that have not been tainted by the reasons
for the quashing of the decision, those conclusions should be
treated as material considerations in the redetermination. Thus
if an Inspector is proposing to come to a different conclusions
on these aspects of the case it will be appropriate for the decision
letter to refer to the previous Inspector's views, in addition
to giving clear reasons for coming to a contrary opinion.
1X.93 All redetermined cases are monitored
and must be submitted to the Inspector's PINS group.
OTHER MATTERS
WHICH MAY
ARISE
Abortive inquiries
1X.94 When an appeal inquiry has been opened
but not continued, because of the withdrawal of the appeal or
because one of the parties is absent, or for any other reason,
the Inspector should place on the file a minute addressed to the
Chief Planning Inspector explaining the circumstances which led
to the discontinuance of the inquiry and saying what other action
was taken, eg what was done about other interested parties and
whether (and why) the Inspector visited the site (such a visit
may save the need for a later one if the appeal is eventually
decided by written representations).
Reserved matters
1X.95 Applications for the approval of reserved
matters must be consistent with the terms of the associated outline
consent. If they plainly are not, for example where the outline
permission authorises no more than three houses be built on the
appeal site whereas the reserved matters application proposes
to compress the buildings and their cartilages on to only half
the site, the appeal should be formally dismissed on the grounds
that the details submitted are not authorised by the outline permission.
If it is clear that the application was submitted to and dealt
with by the LPA as a reserved matters application an Inspector
cannot deal with it as if it were a fresh application for full
planning permission: the publicity requirements for the two types
of application are different and treating a purported reserved
matters application as if it were a new full application could
prejudice any third party interest.
1X.96 Occasionally, appeals arise from applications
under S73 to extend the three year time period for the submission
of reserved matters. Recent High Court cases (see PINS Note HC/326)
indicate that in such cases the guidance in Circular 11/95 on
the renewal of permission should be taken into account and the
principle of development may be reconsidered.
The issue of whether planning permission is required
1X.97 Occasionally applicants may argue
that their proposal does not require planning permission. Inspectors
should continue to decide the planning appeal on its merits unless
it is withdrawn. Even if an Inspector is satisfied that planning
permission is not required, PINS will not write to the parties
to say that no further action will be taken. Legal advice is that
PINS cannot do this in respect of a S78 appeal other than one
travelling with an enforcement appeal—once an appeal is
made it should be determined.
1X.98 If an Inspector is allocated an appeal
where he/she considers that planning permission is not required,
but this issue has not been raised by any of the parties, there
is no obligation to raise it with them. The question of whether
or not permission is required does not affect the validity of
the appeal. Even where there has been reason for the Inspector
to raise the issue at the inquiry or hearing, or by asking the
support group to write to the parties, he/she should still determine
the case on its planning merits unless the applicant withdraws
the appeal.
1X.99 In the event that the support group
is asked to write to the parties, it should ensure that the appellant
is aware that, whatever the outcome of the discussion, the Inspector
will determine the appeal unless it is withdrawn, and whatever
the outcome of the appeal, the appellant still has the right to
apply for a certificate of lawfulness of existing/proposed use
or development under S 191/192. Determinations under these sections
are not affected by the issue of a S78 decision on the same development.
1X.100 In a case where the issue has been
raised and it is intended to dismiss the appeal on its merits,
the decision letter should refer to the separate procedure under
S191/192.
1X.101 In enforcement cases, an appeal may
be made on ground (c) in S174(2) to the effect that the development
does not constitute a breach of planning control. Where a planning
appeal is travelling with an enforcement appeal and the enforcement
appeal is to be allowed under ground (c), it would clearly be
pointless to decide the planning appeal. In such a case it would
be enough to say that, in the light of the decision on the enforcement
case there is no need to determine the accompanying planning appeal.
Defamatory remarks
1X.102 Defamatory remarks must not be made
in decision letters. This applies equally whether the remarks
are the Inspector's own comments, or whether he/she is merely
reporting something said by one of the parties; the fact that
he/she is only repeating something said by one of the parties
does not absolved either him/her or the Inspectorate from responsibility,
and that reporting of any defamatory statement constitutes the
publication of a libel.
Environmental assessment
1X.103 Chapter 5E of the Inspector's Handbook
gives advice on this issue. Circular 15/88 gives guidance on the
circumstances in which environmental assessment has to be carried
out before planning permission can be given for certain types
of major projects likely to have significant environmental effects.
The relevant regulations are the Town and Country Planning (Assessment
of Environmental Effects) Regulations 1988 (SI 1988 No 1199 as
amended in 1990 (SI 367), 1992 (SI 1494) and 1994 (SI 677)). References
to these documents and to the EC Directive 85/337/EC (which is
reproduced in full) are contained in the DOE/W booklet "Environmental
Assessment: A Guide to the Procedures", HMSO 1989, a copy
of which may be obtained from the Policy Unit Room 1406. See also
Chapter 5E,
1X.104 In cases where an environmental assessment
was submitted with the application it should be recorded that
there were produced:
(a) an environmental statement under the
Town and Country Planning (Assessment of Environmental Effects)
Regulations 1988 (SI 1988 No 1199 as amended); and, if applicable,
(b) comments from statutory consultees (ie
those required to be consulted by the Regulations and any other
representations duly made by any other person about the environmental
statement and the likely effects of the proposed development or
works; and
(c) further information or evidence obtained
specifically under Regulation 21(1) of (2).
1X.105 These items form the "environmental
information" which must be taken into account, and it must
say that this has been done.
1X.106 Following the Amending Directive
on Environmental Assessment (97/11/EC), the Regulations, Circular
and Booklet are being revised at the time of writing.
Retention of Inspector's notes
1X.107 PINS now destroys files one year
after the date of decision unless there has been a High Court
challenge or post decision correspondence. In transferred cases,
Inspectors should retain the inquiry/hearing/site visit notes
and inquiry proofs for one year from the date of the decision
letter. The exception is where there has been a challenge; Inspectors
are always notified of challenges in transferred cases and in
such cases must keep their notes until they have been notified
of the judgement.
SEEKING ADVICE
Advice on issues or reasoning
1X.108 Inspectors should contact their sub-group
leader where this is appropriate, and should contact their IM
over specialist matters. The Policy Unit can also assist where
the matter relates to a policy item or a matter covered by a PINS
Note or the Inspector's Handbook (see below).
Policy advice
1X.109 The Policy Unit (Room 1406, Tollgate
House (ext 8574/8750/6245)) is setting up a Policy Unit Helpline
whose central number will be publicised shortly. The Unit will
assist with queries on the Acts, Circulars, PPGs, official statements,
parliamentary answers etc and will arrange for the supply of such
documents where necessary. The Unit will also guide Inspectors
towards sources of information and will help (or direct the Inspector
towards help) on any item in the Inspector's Handbook or PINS
Note. Inspectors may seek elucidation of government policy from
the Policy Unit but it is the Inspector's responsibility alone
to decide how the appeal should be dealt with in the light of
government policy.
1X.110 The Policy Unit is interested to
hear from Inspectors of any practical problems, novel situations
or difficult policy issues. These are recorded and used in the
formulation and updating of advice to Inspectors, and the Planning
Division of DETR may also be appraised of such issues.
Legal advice
1X.111 Inspectors may take legal advice
on three kinds of specific question: first, whether there is a
legal point to be dealt with at all; second, whether a particular
decision would be legally open to them; and third, if conditions
are to be imposed on a planning permission, on the precise wording
of the conditions. They may also seek advice on a general point
of law. Inspectors who need legal advice must seek it via their
IM (who will involve the Quality Assurance Unit as appropriate):
Inspectors should never speak directly to lawyers about a case
they have been appointed to determine.
1X.112 Where a decision on planning merits
cannot properly be taken without a complicated or difficult legal
issue being decided first, jurisdiction may have to be recovered
by the Secretary of State, Inspectors should consult their IMs
as a first step in such a situation. There may, however, be cases
where the legal point is a comparatively minor matter of interpretation
upon which, having taken legal advice, Inspectors may state their
understanding of the law. They should not, in such a case, refer
in the decision letter to the fact that legal advice has been
taken.
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