Scottish Government

Modernising Public Local Inquiries: A Consultation Paper

Improvements that could be made once the planning inquiry has started

Planning inquiries that are delayed by argument about procedure

38. We have become concerned by the extent to which those instructed by planning authorities and appellants or applicants consider it appropriate to delay the start of a planning inquiry by preliminary discussion when this could and, more importantly should, have been dealt with some time earlier and without the need for all the parties to be present. This has the effect of delaying the start of the inquiry. On occasion, motions are made where no advance notice has been given to the reporter, even though other parties have been forewarned. This wastes time at the planning inquiry, and wastes the time of those members of the public who wish to take part in the process, but who are denied that possibility until the business of the inquiry is started.

39. The Inquiries Procedure Rules set the procedure, and the public local inquiry is arranged to consider the planning merits of an appeal or planning application that has been called-in. Procedural issues that arise before the inquiry should be dealt with, in consultation with the Unit, before the planning inquiry opens. Again, a more formal approach may be needed to deal with this unfortunate practice. This could be achieved by making it clear, as a matter of policy, that no preliminary argument about procedure would be allowed and that parties should proceed straight to the presentation of their case. They would be expected to resolve their disputes before the planning inquiry, or elsewhere, so that the inquiry proceeds as advertised to hear the evidence concerning the proposal.

Programming the evidence

40. The experience of the Planning Inspectorate in England and Wales has demonstrated that it is possible to programme planning inquiry time relatively rigorously and to expect parties to conform to the estimates that they have made. Reporters have experimented with such arrangements, but there must be scope to introduce programming on a more consistent basis subject to the expectation that the estimates would be scrutinised and might be adjusted where these are thought to be unrealistic. The objective of such a change would again be to reduce the time that is spent at the planning inquiry to the minimum consistent with a proper examination of the evidence and parties' submissions. Parties appearing early in the inquiry would not be allowed to encroach on the programmed time allocated to those appearing later. This would have benefits for all, including business interests and the public.

Delay due to the unavailability of key individuals

41. The expectation is that once a public local inquiry starts it should continue day by day until it is concluded. Unfortunately the main parties on occasion agree to the inquiry date and do not disclose until later that key personnel are unavailable. Requests are then made for programme adjustments and adjournments in order to accommodate their needs. This is particularly unhelpful to members of the public. We propose to reinforce the existing policy to remove any doubt that a planning inquiry is normally expected to continue day by day, as programmed and without interruption, until concluded. This would apply even where parties overrun an agreed programme. There would normally be no scope to inconvenience others by accommodating the diary commitments of inquiry parties.

The adversarial approach

42. The Inquiries Procedure Rules, and the Scottish Ministers policy contained in the associated SODD Circular 17/1998 make the right to cross-examine witnesses a fundamental element in public local inquiry proceedings. The purpose of cross-examination is to test the robustness of evidence and to assist the reporter in making a decision or in coming to a recommendation. It is not intended that questioning should intimidate a witness, although it is clear that some fear this possibility, whilst others do not. Experience shows that the fact of preparation for cross-examination generally improves the quality of the evidence presented by a witness and thus its usefulness to the decision-maker. Reporters are trained and expected to intervene where questioning has resulted in unnecessary confrontation with a member of the public; there have been very few such incidents in recent years. On the other hand, professionals are expected to be able to withstand searching questioning to examine the robustness of the statements that they have made.

43. The Rules do not preclude an inquisitorial approach by a reporter although there has been some resistance to this at inquiries held in recent years. However, if a more inquisitorial role is set, and cross-examination is correspondingly reduced there could be an impact on the resourcing of the Inquiry Reporters Unit because of the increased time that reporters would have to spend preparing and the reduction in other output. A balance therefore has to be struck, with appropriate training given to parties and reporters, so as to ensure that all of those who wish to participate in the planning inquiry process feel able to do so without fear of intimidation, even though there is little evidence of this occurring.

44. Experience shows that reporters may be reluctant to interrupt where, during cross-examination, the questioner is using the questions to gain a better understanding of the evidence that has been presented by a witness - even though that is not the purpose of cross-examination because all parties are expected to have prepared properly and in advance. Unfortunately, where one party is given that latitude, all tend to expect it as a right. The existing rules provide all of the powers that are necessary to allow reporters to take a more assertive approach. The Scottish Ministers will therefore expect reporters to be more interventionist in managing the process of cross-examination to ensure that this assists the identification of the critical issues in the case so as to determine the appeal or formulate a recommendation.

Reducing the adversarial context - hearings

45. The hearings process is particularly effective in dealing with straightforward cases involving a small number of parties. The Code of Practice for Hearings ¹² provides the opportunity for the Scottish Ministers to decide that some cases should be considered by a hearing instead of the public local inquiry that was requested. Hearings involve a significantly less adversarial approach in the way that the evidence is tested and validated and use of this procedure in a larger number of cases would assist in reducing the adversarial context.

46. Another option, with the same effect of reducing the adversarial context, but within a potentially wider range of cases, would be to import hearings practice to replace some of the formal inquiry procedure in appropriate cases. In dealing with an appeal on this hybrid model the inquiry and the hearing could be split into two components and considered consecutively. The formal inquiry process would be applied to that part of the evidence that required an adversarial approach to test its validity. The balance of less contentious but still important material would be considered within the framework of a hearing. For this component of the process the reporter would issue an agenda in advance and all of the dialogue would be limited to the items listed. The hearing itself would take the form of a structured discussion led by the reporter, who would outline the essence of parties' cases that had been disclosed in advance in writing and ask them to confirm the accuracy of this summary. Witnesses would not formally lead any evidence, although the reporter would discuss with the parties the main areas of dispute relevant to determining the planning merits, thus dispensing with cross-examination. We consider that this approach might be an effective means of engaging the public by addressing the fear of intimidation.

47. The use of the hearings format in place of the more formal public local inquiry procedure could have significantly wider application than occurs within the present elective arrangements, but it would not necessarily be appropriate in all planning appeal or call-in casework. We consider that there is some scope for a change of this sort. However, in contrast to the situation in England and Wales, there are no statutory rules applying to the hearings process in Scotland where it is governed by a Code of Practice. The use of hearings in a wider range of cases than at present might suggest that statutory rules are required, we seek the views of consultees on this proposition.