Memorandum by the Planning Group, Denton
Wilde Sapte (PI 46)
INTRODUCTION AND
SUMMARY
1. These comments are intended largely to
address practical issues associated with the public inquiry process.
We do not wish to comment on the internal organisation and peformance
of the Planning Inspectorate, although some of the comments below
clearly envisage a different role for Inspectors in the conduct
of inquiries.
2. The general thrust of our comments addresses
the perception that the inquiry process may be becoming too cumbersome,
and that the existing procedural arrangements are being exploited
by parties wishing to delay or prevent proper consideration of
relevant issues. It is crucial that the inquiry process operates,
and is perceived to operate, as a fair, impartial and efficient
forum for determining appeals and called-in applications. Our
suggestion is that public inquiries are likely to be less prone
to deliberate and unintentional delay and inefficiency if they
are actively "case managed" from the beginning. Some
of the practical consequences will be an enhanced importance for
pre-inquiry statements, wider use of pre-inquiry meetings and
greater third-party involvement in the contents of planning obligations.
We also discuss some of the issues involved in ensuring more efficient
third party involvement.
3. Other issues will require a more holistic
assessment of the planning process, for example to see if changes
can be made to the rules governing determination of planning applications
by local planning authorities to avoid appeals.
THE BACKGROUND
4. We welcome the greater use of informal
hearings and written appeals, and on the whole there seems to
be a deal of satisfaction with them by "users" of the
system (i.e. applicants and local planning authorities).
5. There will always be some development
proposals which will be evaluated by way of a public inquiry,
however. Where planning permission has been refused, the technical
complexity of proposed development, the force of local planning
authority opposition or the weight of public interest may mean
that written representations or an informal hearing are inappropriate
for determining an appeal. Inquiries held at the direction of
the Secretay of State pursuant to Section 77 of the Town and Country
Planning Act 1990 ("call-in" inquiries) proceed on a
slightly different approach, a decision having been taken that
the issues raised by the application should be considered in a
forum which allows greater particpation by the applicant and third
parties.
6. It is not always appreciated that considerable
efforts are made to avoid inquiries, by all concerned. The delay
and expense associated with inquiries can often prejudice the
commercial viability of a proposal. Unfortunately, recent experience
has also made us aware of a perception among applicants/appellants
that third party objectors will use an inquiry (or even the prospect
of an inquiry) as an opportunity to cause problems and delay for
the proposed development. In addition, inquiries are also sometimes
seen by local planning authorities as a convenient way of avoiding
difficult decisions at local level. In our respectful submission,
these features are not symptomatic of a system which is efficient
or serving the best interests of all its users.
7. One issue which we would like to raise
is whether, in the case of an application which is not called-in,
there is a need to address or re-visit the assumption that planning
applications can be determined only by the local planning authority
or the Secretary of State. Where there is the possibility that
planning permission can be granted following further discussions
with, or the provision of additional information to, the local
planning authority this possibility should be exploited. At present,
only the practice of submitting duplicate applications permits
this. This is expensive for the applicant and involves unnecessary
use of resources by the local planning authority. It may be fruitful
to consider the possibility of concurrent jurisdiction for both
planning authority and Secretary of State. This is an issue which
may be outside the terms of reference for this Inquiry. In any
event, we suggest that one of the principal aims of any further
changes to the current system should be sufficient flexibility
to allow appeals to be withdrawn if planning permission can be
granted (eg following changes to the application).
8. Finally, these comments are made against
the background of increasing public participation in inquiries,
often by objectors who (although not professional) have a good
understanding of the process. Regrettably, in some cases objectors
to proposals are able to exploit the existing procedures to delay
inquiries. What is needed is a more streamlined process, designed
to serve objectors as well as applicants and local planning authorities,
which will (hopefully) reduce or remove the opportunity to abuse
up the inquiry process.
WHAT ISSUES
NEED TO
BE ADDRESSED
9. It is easy to state that the ideal must
be efficiency. In general terms, the decision-making process as
a whole must be efficient, as must the actual conduct of inquiries.
Clearly, it is in no party's interest that inquiries drag on or
proceed on an unstructured basis. Quite apart from the cost (which,
it must be recognised, is an issue affecting all parties, objectors
included), a cumbersome inquiry process prolongs uncertainty about
important projects. There is no reason why inquiries cannot be
structured in a way which enables all parties to satisfy themselves
that relevant points have been made.
10. The inquiry system must balance the
desire for efficiency with the need to ensure that all relevant
issues are identified and properly considered. This aim will be
supported by ensuring that potential appellants, local planning
authority officers and interested third parties are aware at an
early stage of the issues in dispute.[82]
"Early stage" here should mean at the time that a committee
report is produced. In our experience, they are usually well-drafted.
However, reasons for refusal are not always clearly drafted and
there is often delay in producing copies of resolutions and decison
notices.
11. If members decide to refuse an application,
the reasons should be produced quickly and should be as full as
possible. We welcome the proposed amendment to Article 22 of the
General Development Procedure Order 1995 ("the GDPO")
which, if implemented, will require decision notices to specify
all relevant development plan policies. Where the Secretary of
States has called in applications, the letter issued pursuant
to Section 77 TCPA 1990 should set out in full the reasons for
doing so.
CASE MANAGEMENT
12. In our submission, giving the Inspectorate
a "Case Management" role will assist in making the inquiry
process less cumbersome. The Committee may be aware of the changes
to the Civil Procedure Rules introduced under the guidance of
Lord Woolf in 1999. One of the changes introduced was to give
decision-makers a much more active role in the procedural aspects
of cases. In addition, parties are now encouraged to reveal their
cases at an early stage so that attention and evidence can be
focussed on areas of real dispute. We suggest that something of
these changes might usefully be reflected in the planning inquiry
process. We would like to suggest three practical areas to address.
Statements of case
13. There must be an acceptance by all parties
(including the Secretary of State) that statements of case submitted
pursuant to Rule 6 of the Town and Country Planning (Inquiries
Procedure) Rules 1992 ("the Rules") are an important
part of an inquiry. They also present an opportunity to ascertain
where the real issues between the parties lie and where there
is some measure of agreement. "Rule 6 Statements" (as
they are known) are often not taken seriously by applicants and
local planning authorities. Indeed, our experience is that statements
of case are rarely if ever mentioned during an inquiry or in a
decision letter. The Committee will be aware that there is no
mandatory provision in the Rules to require that parties other
than the local planning authority and the applicant submit such
statements.
14. In our respectful submission, a considerable
amount of time can be saved by effective use of such statements.
We note that the definition of such statements in Rule 1 of the
Rules refers to a written statement containing "full particulars"
of the case which it is proposed to put at the inquiry. Bearing
these points in mind, we have some practical suggestions:
(i) The issue of addressing a failure to
prepare meaningful Rule 6 statement when exercising the discretion
to award costs in relation to an inquiry has been addressed elsewhere.
A pro-active solution might be for the Secretary of State to direct
that a particular Statement fails to comply with the standards
expected. We note the proposed change to Article 23 of the GDPO
allowing the Secretary of State to refuse to accept an appeal
in the absence of sufficient information. Power might be granted
to the Secretary of State to prevent appeals from continuing where
he considers there to be a failure to provide a proper Rule 6
statement;
(ii) We would also advocate an amendment
to Rule 6(6) of the Rules to the effect that parties appearing
at an inquiry must supply the Secretary of State and other parties
with a statement of case;
(iii) Consequently, a longer time for preparation
of Rule 6 statements may be appropriate, particularly where third
parties are involved. It may also be helpful to amend the Rules
to provide for simultaneous exchange of statements and to provide
that pre-inquiry meetings (see below) are held after exchange.
The meeting can then be used as an opportunity to discuss common
ground where/if it exists and to identify the principal areas
of dispute and how they are to be addressed.
15. Where an appeal is lodged against a
local planning authority's failure to determine an application
within an appropriate time, there is a particular problem to address:
the non-determination may result from the fact that the local
planning authority does not consider itself to have sufficient
information, or sufficient time to evaluate the information submitted.
To require it to reach a series of conclusions on the principal
issues in order to prepare a statement of case introduces an element
of artificiality. Conversely, the appellant cannot be entirely
certain of what he is appealing against. The period for submitting
a Rule 6 statement may have to be amended.
The role of the Inspector
16. Case management means that, once Inspectors
are appointed, they stay with the appeal and are not (as frequently
occurs) replaced at a relatively late stage. Ideally, much of
the case management can be done by the Officers at the Planning
Inspectorate, as they do now, rather than the Inspector himself.
Such a system is likely to face the criticism that it is not always
possible to predict that an Inspector will be in another inquiry
which overruns. A more efficient system if imposed will make this
less likely, but the fact that an Inspector has another inquiry
should focus the efforts of all participants to ensuring that
time estimates are realistic and then observed.
Pre-Inquiry meetings
17. Another suggestion is the introduction
of a pre-inquiry meeting ("PIM") for all inquiries (although
there might be a discretion to dispense with PIMs if the relevant
parties and the inspectorate can agree that the issues which need
to be considered are limited in number). PIMs would be held after
Rule 6 statements had been exchanged and would allow the Inspector
to focus on the points which can be addressed in evidence and
(importantly) draw parties' attention to the issues which ought
to be the subject of further discussions.
18. "Technical" issues should,
where possible, be resolved by the use of written evidence. This
does not mean that parties cannot make comments on the evidence.
This could be done principally by submission and the Inspector
can be invited to direct that witnesses be called. Alternatively,
parties (including third parties) can be invited to suggest areas
where there is common ground, perhaps by increased use of agreed
statements. Failure to respond constructively to these invitations
might then be a matter which can be addressed by way of an application
for costs.
Notice
19. Efficiency is often best served by concentrating
responsibility in the hands of the participant best able to ensure
a particular outcome. In relation to ensuring adequate publicity
for inquiries this means the local planning authority. Increasingly,
notification has become an issue. It is crucial that notice of
the PIM be given the same prominence as notice of the inquiry
itself. We would respectfully suggest an alteration of the permissive
language of Rules 10(6) and 10(7) of the Rules to ensure that
there is a duty on relevant parties to publish notice of inquiries
and to post site notices.
Planning obligations
20. We note that the Planning Inspectorate
is informing applicants that Section 106 agreements must be completed
before the inquiry. This means that local planning authority must
negotiate with applicants. Too often there is deliberate delay
and prevarication by local planning authorities in relation to
section 106 agreements. If legal officers have no instructions
then they should communicate this quickly to the applicants and
that can be a matter for an application for costs. Failure or
refusal by third parties to discuss agreements can waste a great
deal of inquiry and other time. Third parties must be given a
chance to understand the proposals in full, and this would include
any relevant Section 106 ogligations, before the start of the
inquiry. Radically, the PIM could even be used as an opportunity
to invite suggestions from third parties as to the content of
such obligations, although we would resist any move which allowed
them to be a party to the detailed negotiations.
THE ROLE
OF THIRD
PARTIES
21. Third parties frequently have an important
role in the inquiry process. The efficacy of this role is often
undermined by the fact that the procedure rules pay little attention
to the role or interests of third parties. Nor can third parties
reasonably be expected always to have a grasp of the technical
and complex issues. However, a combination of the lack of a real
role, their unfamiliarity with the procedures and different focus
invariably results in delay to inquiries. The need exists for
advice which does not seek to alter the case they wish to make,
but which can help them make it in the most effective and efficient
way. In particular, it would be helpful to ensure that they understand
the difference between evidence and submission, the difference
between evidence and cross-examination and the fact that repetition
is obstructive.
22. There has been a suggestion that mechanisms
can be introduced to offer some type of administrative or professional
assistance to third parties. In theory this seems admirable; such
professionals can ensure that the cases are presented in the most
advantageous way and that the administration of the inquiry is
not disrupted by unfamiliarity with the procedural rules and failure
to understand rules of evidence.
23. In practice, the important issue will
be ensuring that the cost does not discourage participation. Importantly,
there needs to be examination of how this cost is borne. It is
unlikely that applicants and/or local planning authorities will
be persuaded that they should finance the opposition. One suggested
solution has been the introduction of an appeal fee to create
a fund out of which third party assistance can be financed. Two
potential problems suggest themselves:
(i) This has been suggested in the past,
but as a way of financing in part the costs of the system (ie
the Planning Inspectorate). That principle will have to be abandoned
which might not be politically acceptable.
(ii) Difficulties exist in determining the
level of such a fee. Importantly, care must be taken to ensure
that it does not operate as a "fine" to anyone seeking
to exercise their right of appeal, the practical consequence being
that it must not discourage appeals.
24. Even if these objections can be overcome,
how will such a fund operate? Whether or not this could be developed
as some form of, or modification of, the legal aid system (so
that a planning consultant/solicitor/barrister can be instructed
to do a prescribed number of hours' work on behalf of each party
objecting), it is unlikely to be politically acceptable to a government
seeking to reduce the legal aid budget.
25. More efficiently, an assistant to the
Inspector could be employed to co-ordinate the evidence and cases
of third parties. The role would be akin to that of the programme
officer. Although the assistant will take no part in the decision-making
process, they might be given discretion to suggest that certain
evidence is put in writing, and to "project manage"
the evidence to be put on behalf of all objectors.
March 2000
82 In practice, potential areas of dispute can be,
and often are, signalled by way of preliminary discussions and
requests for further information. Regulation 4 of the Town and
Country Planning (Applications) Regulations 1988 enables local
planning authorities to direct that applicants supply them with
further information and evidence and (except in the case of outline
applications) plans and drawings. There is often difficulty in
obtaining from officers confirmation that they have sufficient
information to recommend a decision on the application to members. Back
| 
