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Law Society backs planning inquiry system but calls for clearer procedures

Planning inquiries are the only appropriate procedure for determining more complex appeals and the appeals process “generally works well”, the Law Society has said in response to a call for evidence.

In its submission to the Independent Review of Planning Appeal Inquiries, Chancery Lane accepted, however, that the successful conduct of an inquiry might depend upon the skills and experience of the inspector.

“There is a need for much greater resourcing of the planning inspectorate; for clearer procedures, and more transparency,” it added.

The Independent Review of Planning Appeal Inquiries was announced by the Ministry of Housing, Communities and Local Government in March 2018 and Bridget Rosewell OBE was appointed as Chair on 22 June 2018.

Its purpose is to make recommendations to significantly reduce the time taken to conclude planning inquiries, while maintaining the quality of decisions.

The Law Society response said the current inquiry process worked well in the following ways:

  • The inquiry process is highly structured and there are elements that are strictly enforced. The early statement of case works well, as it makes the parties think about what is agreed. “That said, there is scope for flexibility in inquiries (e.g. s106 discussions and informal roundtable discussions on conditions, which are also possible in hearings). In principle, Statements of Common Ground should be helpful, but in practice they are less successful because the parties rarely agree anything more than rudimentary, uncontroversial details. Generally, the inquiry process tends to encourage more active pre-exchange of evidence and other pre-inquiry communication behind the scenes.”
  • The opportunity for observers to see the details of the case helps to make inquiries transparent.
  • The availability of cross examination allows for the thorough testing of technical evidence, “which is unique to the inquiry process”.

Chancery Lane said the main problems with the planning appeal inquiries process arose from the handling of the volume of material and the presentation of plans and drawings at the inquiry itself.

“These problems could be addressed by setting up an online ‘data room’ of documents and by having the ability to project plans and extracts onto a big screen in the inquiry room so that everyone can work off the same material. Such a data room could be hosted and operated by the programme officer,” it said, adding that some large inquiries dealt with this challenge well, but practice was variable. A standardised approach to the management of core documents would therefore assist the efficient running of all Inquiries.

The Law Society submission also said:

  • It was important to ensure the availability of inquiry documents in an accessible format to all parties (including observers). “In the absence of electronic documents, there is no responsibility for the production of Inquiry bundles: this could be considered further depending on resources.”
  • More rigour in timetabling could assist in reducing the costs of unnecessary attendance, “where witnesses do not wish to attend the whole inquiry (although there can be a benefit in doing when it comes to giving evidence after hearing everything which precedes it)”. There can be problems when key witnesses, particularly council witnesses, are not present throughout. “Stricter timetabling would also minimise indulgent or unnecessary evidence.”
  • It seems unnecessary for the s106 agreement to be handed in at the inquiry when amendments may be required arising out of the proceedings, which may for practical reasons be impossible to execute on short notice. The requirement for the s106 agreement to be handed in on the last day of the inquiry means that it cannot be improved after the inquiry. “This is problematic as it denies the ability for the agreement to be shaped by the discussions and progress made during the inquiry. Early scheduling of time to discuss whether any work remains to be done on legal agreements might help to avoid this.”
  • As public inquiries are quasi-litigious, there are very few opportunities to engage the planning inspector before the first day of the inquiry. “It would be helpful to have a consistent procedural steer from an inspector before an inquiry (especially as this could save time at the inquiry). This would have traditionally have happened at a pre-inquiry meeting, but they are less frequent now. There is a presumption in the procedural rules that there will be a meaningful statement of common ground, but this is not always the case.”
  • An advantage of the inquiry procedure ought to be that the policy in question has been seen to have been properly considered. “Transparency improves public perception and confidence, which can head off judicial review and other challenges.”
  • It is also important that an inquiry leaves parties feeling that they have been heard. “It is particularly important for community groups that they have not only been given a platform but to feel that their views have been taken seriously.”

In response to the consultation question Are the right appeals subject to an inquiry, rather than written representations or hearings? The Law Society said: “No. There is often a sense that local planning authorities subject appeals to hearings instead of inquiries simply because they are not resourced to deal with the volume of work generated by inquiries, choosing the cheapest option, rather than the option best suited to the merits of the case. Many written representations appeals should be hearings and many hearings should be inquiries.”

Chancery Lane also expressed concern that decisions on the appropriate appeal forum were taken by PINS case officers who were insufficiently experienced to assess the factors for and against convening an inquiry, “with the result that cases suitable for an inquiry can be diverted to a hearing instead.”

The submission expressed doubts over mediation’s effectiveness in this area of practice “as primary legislation requires a fresh application to be submitted even if mediation shows that a refused scheme can be adapted to overcome planning objections”.

The consultation ran until 18 September 2018.