Memorandum by The Law Society (PI 11)
I write on behalf of the Law Society's Planning
& Environmental Law Committee to submit evidence to the enquiry
of the Environmental Sub-committee of the House of Commons Select
Committee on the Environment, Transport & Regional Affairs
into the Planning Inspectorate and public inquiries.
In general the members of the Committee, who
come from private practice, local government, academia and the
employed sector, have a high regard for the Planning Inspectorate.
Every organisation can improve at the margins and we are conscious
of the unceasing efforts of the Inspectorate to improve the standards
of the services offered to its customers and to expedite the inquiry
process.
TARGETS
In the main the targets to which the Inspectorate
strives to adhere are set by the Secretary of State, announced
in Parliament and included in the service agreement between the
DETR and the Inspectorate. There are few areas where the Inspectorate
is able to set its own internal targets.
We understand the pressure to expedite the inquiry
process. Ministers are pressed to tackle the economic costs of
the slow process whereby planning appeals going before public
inquiries are resolved. As a result the DETR has set progressively
tighter deadlines for the time between receipt of an appeal and
the opening of the inquiry. Indeed that target is creating difficulties
for parties to an appeal and to their professional advisers in
preparing themselves for the first date for an inquiry being offered
by the Inspectorate. We consider that there is little scope for
reducing that target much further.
At the inquiry itself inspectors are becoming
more intent on keeping proceedings in line with the timetable
agreed at the pre-inquiry meeting. We endorse that approach. Indeed
we would encourage inspectors to be firmer in intervening to reduce
long winded, repetitive and aggressive cross-examination at inquiries.
It is a difficult task to balance the need to keep an inquiry
to timetable and to ensure that the parties have the full opportunity
to present their case. It is therefore essential that there should
be flexibility for the inspector in respect of timetables. If
time has been set aside to consider a particular issue and in
the event that issue diminishes in importance, time should not
be wasted. Conversely, if an issue emerges as of greater significance
than had been anticipated in advance, it is essential that consideration
of that issue should not be curtailed. The priority must be to
ensure that the parties to an appeal are heard and not the exigencies
of targets. We would hope that as inspectors' experience grows,
they will be better placed to set realistic timetables for inquiries.
Whilst supporting the smooth running of public
inquiries, we would sound one note of caution. Speed may be inimical
to quality. We would reiterate that the essence of the public
inquiry is to give the parties the opportunity for their case
to be heard and to enable the inspector to produce a report in
the light of all material considerations and not simply the smooth
running of the process.
As users of the Inspectorate and the public
inquiry, solicitors are increasingly concerned at the absence
of targets from other stages in the appeal process. Local Authorities
must deal with applications within a set time. The Inspectorate
must organise inquiries within a set time. It is the final stages
when clients' frustration cannot be alleviated. Obviously we would
not want inspectors to be set targets by which to produce their
reports. However, we would encourage inspectors to give an indication
at the close of the inquiry when the report is likely to be available.
The other black hole is the time taken by the Government Regional
Offices and the Secretary of State to reach a decision on call-in
cases. We would like to see action taken to expedite their involvement
in the process, if necessary by the setting of targets.
CONSISTENCY OF
DECISIONS
It is very difficult to ascertain the consistency
of decisions from outside. We are aware of the efforts of the
Inspectorate to secure consistency. Inspectors' decisions are
monitored by the Inspectorate in part for consistency and particularly
during the time when an inspector is relatively new to the job.
Inspectors are provided with databases of similar cases. Nonetheless
as practitioners members of the Committee are aware of anecdotal
evidence of inconsistency between inspectors' decisions, interpretation
of PPG6 on town centres and retail development being cited most
often. Solicitors find it difficult to explain to clients how
an inspector has arrived at a decision which differs from another
inspector's decision when the circumstances are substantially
the same.
The problem is that planning decisions are not
mechanistic: they are judgements made in the light of all the
relevant material considerations. Absolute consistency is therefore
illusory. We would suggest that there should be a distinction
between consistency as between inspectors' decisions and national
planning policy as set out in Planning Policy Guidance Notes and
between inspectors' decisions on appeals of a similar nature.
Attention to both grounds needs to be given in the monitoring
of consistency undertaken by the Inspectorate.
THE INSPECTORATE
AND GOVERNMENT
OFFICES
In the past there used to be a significant delay
arising from the process whereby papers lodged with the Regional
Offices were transferred to the Inspectorate. That problem has
been relieved. However, solicitors who have dealings with the
Government Offices tend to be less impressed by the quality of
their administrative staff than staff at the Inspectorate. As
suggested above we also believe that the Regional Offices could
be quicker in dealing with inspectors' reports once received.
INSPECTORATE WORKLOAD
The Committee is aware of the pressure on the
Inspectorate's resources. We were pleased that in the mid 1990s
the Government finally authorised the recruitment of additional
inspectors to deal with increased workloads, particularly in relation
to local plan inquiries. Those new inspectors are now on stream
and we would hope that the number of inspectors will not be allowed
to diminish again as it did in the late 1980s and early 1990s
through failure to replace those inspectors who retired.
As practitioners appearing at inquiries, the
Committee is critical of the case management skills of some inspectors.
In general solicitors are impressed by the quality of the staff
at the Inspectorate's head office in Bristol. They are always
polite, pleasant and helpful. However, in terms of the inquiry
itself there is little that they can contribute. We would recommend
that the inspector should be appointed for an inquiry at the earliest
possible time to enable that inspector to be involved in the management
of the case. We would suggest that by so doing, the Inspectorate
may achieve some administrative savings later in the process.
It could, for example, save time at the start of an inquiry in
agreeing a set of basic papers with the parties. Indeed on occasion
the opening of the inquiry appears to be the first occasion on
which the inspector has seen the papers. It would be much better
if the papers could be passed to the inspector earlier so that
the inspector has time before the inquiry to read the papers.
That would place the onus on the parties to deliver the papers
to the Inspectorate promptly allowing the inspector to go back
to the parties if there is any uncertainty over the papers, for
example technical issues or which is the correct plan, before
the inquiry. Another suggestion would be perhaps to involve administrative
officers in reviewing the file to ensure that it is complete before
passing it to the Inspector.
Solicitors like all professionals have had to
come to terms with new IT developments and we are pleased to note
the adoption of certain IT facilities by the Inspectorate. At
larger inquiries the storage of common data in electronic form
and its accessibility to the parties has become essential. Inspectors
are provided with much of their necessary information by electronic
means and decision letters are now generated in a standard IT
format. The area in which further steps could be taken is in relation
to access to the Inspectorate's head office. The Law Society has
been pressing the Inspectorate to accept the submission of forms
either in a format generated from disk or electronically, whilst
preserving the forms in paper form for completion by those without
IT facilities. Similarly we should like to see the Inspectorate
receptive to the receipt of proofs of evidence by electronic means.
Solicitors share the concerns of all participants
in the planning system including Ministers that the coverage of
the country by development plans has proceeded so slowly. The
corner stone of the planning system is the development plan (section
54A) and yet a fifth of local authorities are still not covered
by an adopted plan. We do not believe that the fault for this
failure lies with the Inspectorate. We are aware of cases where
the local plan inquiry has proved to be far too protracted and
where better management of the proceedings would have been beneficial,
Leeds is the obvious example. However, in the main the Inspectorate
has coped well with the additional burden. It responded to Ministerial
pressure in the early 90's by deploying inspectors to plan inquiries
as a priority over appeal inquiries and latterly has recruited
more inspectors. The problem we believe lies elsewhere with the
lack of resources available to local authorities to progress their
plans.
TREATMENT OF
COMPLAINTS
Members of the Committee have little experience
of complaints to the Inspectorate and that has not always been
good. In particular, the Inspectorate is slow to respond to and
to investigate complaints. However, we are aware of the considerable
efforts made by the Inspectorate to monitor their complaints,
notably through the involvement of the Advisory Panel on Standards
for the Planning Inspectorate.
HUMAN RIGHTS
LEGISLATION
All participants in the planning system are
beginning to assess the possible implications of the Human Rights
Act and several articles on the subject have appeared in legal
journals. We also believe that the Inspectorate itself has begun
to assess the appeal process and procedures to identify any problems.
In general this is a problem which it will only be possible to
assess when the legislation comes into force. Certainly in the
early years there are likely to be legal challenges against the
Inspectorate as against all public authorities. However, once
case law develops the position is likely to be clearer and the
number of challenges is likely to tail off.
RECRUITMENT AND
TRAINING OF
INSPECTORS
The level of salaries is the principal obstacle,
we would suggest, to the recruitment of the highest calibre of
person to act as planning inspectors. That is demonstrated by
the comparatively low number of inspectors who are recruited from
the private sector. We would suggest that the Inspectorate has
not made sufficient progress in recruiting a reasonable sexual
and racial mix amongst its inspectors: it remains predominantly
white and male.
In 1999 a group of solicitors was for the first
time invited to participate in the training school organised each
year by the Inspectorate. We would suggest that it should be beneficial
for inspectors to have the involvement of a range of professionals
in their training able to communicate their own involvement in
public inquiries. We would hope that this involvement can be repeated
in the future.
PUBLICITY
The statutory notice in the local press and
on notice boards in the town hall serve little purpose: they are
unlikely to be seen by the parties who should be aware of the
public inquiry. We would like to see a more formalised approach
whereby the local authority is required to notify all those who
have lodged objections to an application or a local plan and/or
their representatives, the councillors elected from the local
wards and, if appropriate, the parish councils.
There is we believe a wider responsibility to
advise the public. Residents could be affected by a development,
for example a waste plant, located several miles away. In those
circumstances it might be appropriate for the local authority
to give notice in a mix of local papers.
ASSISTANCE FOR
PARTIES
Assistance for parties to inquiries can be beneficial
for the smooth running of the inquiry as well as for the parties
concerned. Clearly members of the public are at a disadvantage
compared to parties represented by professional advisers. And
some assistance to them to present their case competently is desirable.
Effective marshalling of the public can also ensure that the inquiry
keeps to a reasonable timetable. The recognition of a single spokesperson,
instead of the repetition of individual views by all of the objectors,
will help all of the parties and the inquiry itself.
COMPLIANCE WITH
TIMETABLES
See our comments above on targets.
ASSESSORS
The evidence of major inquiries such as Heathrow
Terminal 5 has surely proved the value of using assessors to address
technical issues raised by an inquiry. If they are to be used
systematically, there needs to be time for the case to be assessed
to establish whether an assessor would be advantageous in advance
of the inquiry.
February 2000
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