by Michael Crook
On July 7 1988, the Department of the Environment and the Welsh Office introduced new rules for the holding of planning inquiries in England and Wales. Because they applied only to appeals lodged after that date there was a transitional period during which the majority of appeals were still held under the previous rules, but since the beginning of 1989 the majority of inquiries have been held under the new rules.
The new rules originated in criticism of the planning inquiry system made by the Environment Committee of the House of Commons in 1986. Many of the points made were accepted, and in introducing the new rules the DOE identified three main objectives:
(1) To make more effective use of inquiry time, clearing away issues which can be agreed, or do not need to be debated, and concentrating only on matters of dispute.
(2) To reduce the time taken to arrange inquiries by imposing a statutory timetable.
(3) To overcome the problems of late withdrawal of appeals by requiring much earlier action by appellants so that they realise much earlier if they do not wish to pursue a case.
The main change introduced was the early exchange of statements between the parties. In the vast majority of cases the council now have to produce their statement six weeks after the department have confirmed that an inquiry is to be held, and the appellants then have three weeks in which to produce their statement in response. In the circular accompanying the new regulations the department made it clear that these statements should contain the full particulars of the case which a party proposes to put forward at the inquiry, together with a list of relevant documents. Further, it was suggested that, for major inquiries, statements should be accompanied by the data, methodology and assumptions used to support the submissions.
The next stage in the new regulations was the provision that inquiries should commence not more than 20 weeks after the department had determined that an inquiry would be held (or 22 in the case of an appeal to be determined by the Secretary of State). There was, however, a proviso that, where the Secretary of State considered it impracticable to start the inquiry within the time specified in the rule, extensions could be permitted. The department also reduced the period of notice required prior to inquiry from 42 days to 28, with the stated intention of providing greater flexibility for the programming of many smaller inquiries.
The next major change to procedure was the requirement that proofs of evidence be submitted three weeks before an inquiry opens, or, in the case of a longer inquiry which has a programme, three weeks before the evidence is due to be given. The new rules also provided for pre-inquiry meetings in major cases and for inspectors to direct that summaries of evidence be prepared, and that, where appropriate, only summaries be read rather than full proofs.
Finally, a number of changes were made to the rules governing procedure at the inquiry, mainly designed to give inspectors greater flexibility and more opportunity to adopt a positive role in identifying the issues, selecting relevant evidence, controlling the procedures, and generally ensuring that inquiries were restricted to the minimum length of time necessary to deal adequately with the issues raised.
Any evaluation of the effectiveness of the new rules must recognise the growth in the number of appeals passing through the system in the last two or three years. The Minister for Planning, Michael Howard, recently pointed out that whereas there were fewer than 14,000 appeals in 1983, the figure for 1988-89 had more than doubled to over 28,000. Although a significant number of appeals are withdrawn, and public inquiries account for only about 15% of all appeal decisions, it is clear that the new rules have been introduced against a background of a growing number of public inquiries, and there seems little prospect that this increase will be reversed unless there is a very substantial reduction in development activity.
Nevertheless, local authorities, planning consultants, solicitors and barristers are now beginning to acquire considerable experience of the operation of the new system, and a review of the benefits and disadvantages thus far seems timely.
The initial steps
The process begins with the lodging of appeal forms by an appellant or his representative, a copy of which goes to the local authority. This appeal will usually be against a refusal of planning consent, but in a growing number of cases appeals are lodged against the failure of the local authority to determine an application. This may occur either because it is a very major scheme requiring lengthy appraisal, or perhaps because the local authority are understaffed and developers are not willing to wait many months for decisions on even relatively modest proposals.
The local authority are immediately aware of the lodging of the appeal because the appellant is required to send them a copy of the appeal form and his grounds of appeal. Where a public inquiry has been requested by the appellant, experience suggests that the department are acknowledging the appeal and dealing with the initial administration within a fortnight — often quicker. They issue a “relevant date” letter which starts the timetable running for both the local authority and the appellant. It is from this date that the period for the service of statements and the fixing of the inquiry will run.
The next significant date is, therefore, the issue of a statement by the planning authority. Where an application has been refused there is usually a report to committee and one would have thought that it would not be too difficult for an authority to produce a cogent statement in support of their refusal within the six-week period. Many authorities do so, often in the form of what turns out to be virtually their proof of evidence for the inquiry, but it must be said that many authorities are still producing very brief statements which add little to the grounds of refusal and it would seem to indicate that many planning applications are reported to committee without a great deal of examination of the issues raised and are thus being dealt with purely on the basis of the application of policy, regardless of the merits of the application.
Although the circular makes it clear that such statements should contain a list of relevant documents, this is often absent, and much time is spent by appellants and their consultants seeking to establish with local authorities precisely what documents they will be relying on at the inquiry. Often, of course, at this reasonably early stage in the proceedings they do not know, and on a complex case such as a major shopping development this is perhaps not surprising.
Late service of statements also continues to be a problem, and it seems that effective pressure from the department is lacking in such cases. It is doubtful whether an inspector would feel justified in making an award of costs in such circumstances, but appellants will often have arranged team meetings to discuss the council’s case and their response to it, and time can easily be wasted, at the appellant’s expense, if statements do not arrive on time.
Indeed, it seems that many representatives of appellants have adopted a procedure of automatically assuming that the three weeks for their response runs from the date of receipt of the council’s statement, a relaxation with which the DOE seem to be concurring on the grounds of equity. It would hardly be reasonable for them to expect an appellant to produce a statement within, say, a week, if the local authority are two weeks late with theirs.
The content of appellants’ statements is also no doubt very variable, ranging from the brief summary to a fairly detailed exposition of the case. It seems that the department’s advice that statements should contain the full particulars of the case is in need of some elaboration, and although there is now a power given to the Secretary of State or the inspector to require the provision of further information, there seem to be few, if any, examples as yet of this power being utilised.
Another problem for appellants relates to documents. The circular suggests that these should be provided with statements, but, for example, in the case of an appeal relating to a major business park development, it is most unlikely that either party is in a position to produce background material only nine or 10 weeks after the appeal has been lodged and when the inquiry may not be for several months. While both parties would probably accept that such material should be made available with proofs of evidence three weeks before an inquiry opens, it seems somewhat unrealistic to expect this to occur many weeks earlier.
This also highlights another anomaly in the rules, which seem to require that an appellant’s statement of case should be accompanied by copies of any documents referred to in it, whereas the council are required only to make such documents available for inspection, with no obligation on them to provide copies of statement or documents. An interested party has the right “where practicable” to take copies of any statement or document, but some authorities seem to interpret this very narrowly and require appellants or their representatives to attend at the planning office for this purpose. This would seem to place an unnecessary burden on appellants and their representatives, particularly if, as is often the case, this would involve a specific visit to the area in question.
On the basis of initial experience, therefore, some further guidance and tidying up of the rules may be necessary in this early stage. But one fact is clear — the production of statements by local authorities at an early stage, and the need for an appellant to produce a response, does concentrate the mind, and appeals which do not stand a reasonable chance of success are much more likely to be withdrawn at an early stage. To this extent, therefore, the department are, it is to be hoped, securing one objective — to make better use of inspectors’ time by significantly reducing the number of late cancellations.
Fixing the inquiry date
The 1988 rules attempted to impose a statutory timetable on the fixing of inquiries, and this does seem to have had some benefits in reducing the time taken to arrange inquiries in some local authority areas where long delays were previously experienced. However, this achievement may be put at risk if the volume of appeals continues to grow and either local authorities — or, possibly, the inspectorate — are unable to provide the necessary increases in manpower to maintain the improvements in the timetabling of inquiries which have been achieved to date.
About 10% of authorities (some 40 over the country as a whole) are apparently having problems in meeting the 20/22-week deadlines. In many cases this is a situation which has lasted for some time and arises from the development pressures in particular areas such as the Thames Valley and the staff shortages which authorities are experiencing.
The department are believed to be in negotiation and discussion with the relevant authorities to try to improve the position, and certainly in some London boroughs there does seem to have been an improvement in the last year or so. However, the holding of inquiries at shorter notice clearly can create problems for appellants as well, especially if they are the more major proposals where appellants have had a professional team advising for months, if not years, prior to the planning application being submitted.
While most appellants are seeking a more rapid response from the planning appeal system, this attitude must be tinged with a degree of realism. Most major companies will accept an inquiry two or three months beyond the statutory deadline if it means that they can keep their professional team together and ensure continuity. In any case, if dates were to be arranged much more quickly there must be some doubt as to whether the planning Bar could cope, as well as the specialists in various fields such as retail impact.
In the longer term, and assuming that the increase in the number of appeals is not sustained, the objective of seeking to fix inquiries within a statutory time-limit is generally welcomed by appellants, but many would not regard this as an overriding consideration taking the appeal process as a whole.
The pre-inquiry period
Now that proofs of evidence are required three weeks before the opening of the inquiry in most cases, there is an obvious need on the part of both appellant and local authority to identify the date by which proofs are required and ensure that the necessary work is done in good time. In most smaller cases it seems that the three week date is being adhered to with occasional exceptions, but experience of a number of larger cases has produced clear signs of difficulty, particularly on the part of local authorities.
As mentioned earlier, the production of statements soon after an appeal has been lodged may be somewhat counter-productive if there is then a delay of six months prior to the inquiry being held. In areas where the statistical background is changing all the time, such as major housing appeals or shopping inquiries, it is unlikely that either party would be happy to rely at the inquiry upon work done six months before. On the other hand, both parties are entitled to expect that the necessary work will be done in time for proofs to be submitted three weeks before the inquiry opens. Where the case is of sufficient magnitude for the department to hold a pre-inquiry meeting, the inspector can re-emphasise this point and perhaps even hint that failure to meet the deadlines could be regarded as unreasonable behaviour opening up the parties to an award of costs.
Where the proposal is a simple and reasonably straightforward one, however, it seems that the pressure to identify areas of agreement and dispute is not so great and there is little sign that the department identify inspectors at a sufficiently early date to enable them to require further information from the parties as provided for in the rules.
This would seem to be an area in which an opportunity is being missed by the inspectorate to make clear at an early stage what matters should be discussed, and, if possible, agreed between the parties well in advance of the inquiry. There was a suggestion when the new rules were introduced that, in appropriate cases, the department would issue a standard letter to the parties, even where a pre-inquiry meeting was not required, but so far this does not seem to have occurred, and it is perhaps an area where identification by the department of the inspector who is told the inquiry at least two months prior to the opening date would be beneficial.
Regardless of such action, however, failure by either party to produce their proof of evidence three weeks before the inquiry should be regarded as a serious matter. One of the objects of this arrangement was to give the inspector time to study the proofs before the inquiry opens, and given that he will have other inquiries to hold in the two or three weeks prior to a particular inquiry opening, late delivery of proofs by either party could reduce or even eliminate the opportunity for the inspector to consider the proofs and begin identifying the crucial issues. It remains to be seen whether costs will be awarded against a party which fails to meet the requirements of the procedural rules relating to the submission of proofs.
At the inquiry
When the new rules were introduced, one of the areas which caused greatest concern to those involved in inquiries was the suggestion that the procedures would enable more effective us to be made of inquiry time and possibly even shorten inquiries. The department expressed the view that the early exchange of statements and the pre-inquiry exchange of proofs would enable issues to be agreed more easily and the inquiry could then concentrate only on matters of dispute. The rules also provided for summaries of evidence to be read, rather than full proofs, and generally introduced greater flexibility.
In practice, this aspect of the rules seems to have been somewhat over-optimistic. First, even in a relatively modest case witnesses are rarely happy to accept that they do not read the majority of their proof. There may, for example, be third parties present who have not received the proofs in advance and they would be at a considerable disadvantage if they did not hear the bulk of the evidence.
In the larger cases, where the use of summaries might have been more appropriate, another difficulty is emerging. Given that proofs are available three weeks beforehand, there is an inevitable tendency for supplementary proofs to be prepared dealing with any new evidence introduced by the other side or sometimes introducing new arguments prompted by new objections raised by the other party. The status of such supplementary evidence under the new rules is somewhat unclear, since plainly they are not being provided in accordance with the three-week rule. On the other hand, it seems most unlikely that the courts would accept that once the three-week date has passed no further evidence can be introduced. To date, therefore, it seems unlikely that there is any significant shortening in inquiry time, but as experience of the new system is gained, it may be that there will be less tendency to seek to add to the evidence already deposited with the inspector. Inspectors will make greater use of the power to require written summaries of evidence, and some saving in inquiry time might result.
One aspect of the new rules which has been of benefit is the greater freedom accorded to inspectors to carry out a site visit at a convenient time, rather than necessarily at the close of the proceedings. In the more modest cases the formal inspection is often now abbreviated to a very short site visit, and it is possible to envisage that, in future, inspectors will make unaccompanied inspections at some time before or during the inquiry convenient to them, and dispense completely with the formal site visit unless, for example, access is needed to private premises.
After the inquiry
Apart from certain minor technical changes the procedure after the inquiry has closed remains much as before. If it is a transferred case the inspector will make his decision and issue the decision letter accordingly. If it is a Secretary of State decision the inspector will report, with a recommendation, and the Secretary of State will then issue a decision.
One comment made at the time the new rules were introduced was the lack of any timetable for this final, and to many critical, stage of the proceedings. Doubtless the department would argue that it would be quite impossible for them to comply with a statutory timetable and that they are, in any case, doing their best to ensure that the decisions are issued as quickly as possible. Nevertheless, particularly with Secretary of State decisions, it is often apparent when the decision is eventually issued that the inspector reported quite quickly after the inquiry closed. Even in the case of a fairly major inquiry lasting three or four weeks the inspector will often report within three or four months, but the parties then have to wait six or nine months for the decision.
Occasionally delays do occur, even on inspectors’ decisions on transferred cases, but these are probably mainly where some legal issue has been raised and the inspector needs to take advice before issuing his decision. It is unlikely that the new rules would have any significant effect on these types of cases, but for the vast majority of more straightforward appeals it should be easier for the inspector to decide what are the critical issues and to come to his view upon them.
Where the Secretary of State is to make the final decision, however, the delays involved following an inquiry seem to many to be excessive and unjustified. However much the Government may exhort other participants in the process to simplify, clarify, and expedite matters, at the end of the day it is the issue of the Secretary of State’s decision which is the most important single event on a major development proposal. Nothing either in the new rules themselves or in their operation to date suggests that there is a real prospect of improvement in this area.
Conclusions
In summary, the new rules have had some benefits but also seem to have some disadvantages. They do concentrate the mind of both the planning authority and the appellant at an early stage, and will probably eventually lead to fewer frivolous appeals being lodged, thus achieving the department’s objective of reducing significantly the number of appeals withdrawn at a late state. However, late service of statements, particularly by the local authority, can cause considerable inconvenience, and at present it seems that there is little, if anything, that the department can do to enforce the rules.
Further, the imposition of a statutory timetable for the holding of an inquiry is of little use if the local authority are unable to respond and the developer is willing to wait in order to achieve continuity of advice. The exchange of proofs three weeks before an inquiry opens should, on the face of it, be helpful, but seems to throw up difficulties over the production of summaries, the taking of parts of proofs as read, and the possibility of the introduction of additional evidence in response.
As to whether or not the new rules represent a significant improvement on their predecessors, it is probably too early to judge definitively, but, in the light of the above criticisms, certain difficulties are emerging, not least the problem of enforcing the rules, particularly in a climate of an increasing number of appeals and shortages of staff in many planning authorities.
It is to be hoped that the department will, in conjunction with the users of the system, conduct a thorough review when sufficient experience of the new system has been gained, perhaps in a year’s time. Some further adjustment to the rules on several points of detail would seem to be required on the basis of experience to date.
Whatever rules are in operation, however, the planning appeal process inevitably requires a degree of co-operation between three parties whose interests may, from time to time, conflict. Provided that these areas of conflict are examined and dealt with in a professional and competent way, none of the parties should feel that they are put at a disadvantage by the operation of any particular rule.
Only when one or other behaves unreasonably does the system begin to break down, and a greater willingness in recent months on the part of the inspectorate to award costs for unreasonable behaviour may be an encouraging sign. As the retiring chief planning inspector, Miss Haran, said in her last annual report: “The extra discipline imposed by the potential cost liability should eventually result in improved standards in appeals conduct and a gradual decline in applications for an award of costs.”
The appeal system needs the co-operation of all parties to operate successfully and it is in the interests of all parties to support the department in their attempts to improve an inevitably time-consuming and complex procedure.
