Notes for the Guidance of Inspectors Holding Inquiries into orders and Special Road Schemes.

2. Administrative and Legal Background

The Origins of Orders

2.1 Orders are prepared by Government departments or by local authorities. Those prepared by Government departments are published in draft and not made until all the statutory processes have been completed. Local authorities make orders by council resolutions followed by the sealing of them, but the orders do not take effect unless and until confirmed by the Secretary of State / NAW. Each order depends on a section or sections of an Act of Parliament that, in some cases, specifies the criteria against which the order is to be considered. Inquiries normally become necessary because of unresolved objections to a proposal. For most types of order, schedules and regulations under the relevant Act set out the procedures for making or confirming orders and the circumstances in which a public inquiry is to be held.

The Statutory Basis for Inquiries into Orders

2.2 Schedule 1 of the Highways Act 1980 and Section 5 of the Acquisition of Land Act 1981 give the Secretary of State / NAW powers to hold inquiries in relation to matters arising under those Acts. Schedule 1 Paragraph 7 of the Highways Act specifies cases where an inquiry is required into line orders and side road orders. Section 13 of the Acquisition of Land Act (as to local authority orders) and Schedule 1, Paragraph 4, of that Act (as to the Secretary of State’s / NAW's draft orders) specify cases where an inquiry or hearing is required in relation to CPOs. Section 252(4) and Schedule 14, Paragraph 3, of the Town and Country Planning Act 1990 detail the circumstances under which a public inquiry should take place for orders under Sections 247, 248, 249 and 251 of that Act. Section 3(5)(b) of the Cycle Tracks Act 1984 provides for regulations enabling the Secretary of State to hold inquiries into opposed Cycle Track Orders.

2.3 Inquiries into orders to which these notes relate are often expressed as being inquiries into objections or to hear representations and objections. However, the task of the Inspector is to inquire into the order in the light of the objections. Objectors at an inquiry may seek to show that the proposals are ill conceived. If they do, and unless there are cogent reasons for adopting a different procedure, the authority which prepared the order must explain its proposals and say why they are considered to be expedient. This provides both the background against which the various objections can be considered in detail and the basis on which a recommendation can be made on the order as a whole.

2.4 Although inquiries are convened because of unresolved objections, the scope of the inquiry can be wider. For example, in the case of inquiries into CPOs (see ODPM Circular 06/2004 for further details) an Inspector is required not only to deal with the objections to the order, but he or she must also satisfy himself or herself that:

• there is a compelling case for acquisition in the public interest;
  this justifies interfering with the human rights of those with an interest in the land affected;
• the acquiring authority has a clear idea of how it is intending to use the land it seeks to acquire;
• the acquiring authority can show that all necessary resources to carry out its plans are likely to be available within a reasonable timescale;
• the scheme is unlikely to be blocked by any impediment to implementation.

Section 248 of the Highways Act refers to the limited circumstances in which land may be acquired where the land is not immediately required. When considering the amount of land incorporated in the order, the Inspector should give due regard not only to the area of land, but also to the estate or interest proposed to be taken in it. For example, it may well be argued that an order providing for the acquisition of title to the land is excessive because all that is required is for a right to be created under Section 250 of the Highways Act and for that right to be acquired under the CPO.

The Inquiries Procedure Rules

2.5 All inquiries concerned with orders and schemes proposed to be made under the Highways Act 1980 are subject to Inquiries Procedure Rules. The current rules of procedure under this Act are:

1. The Highways (Inquiries Procedure) Rules 1994 - Statutory Instrument 1994 No 3263 - which apply to inquiries concerned with orders either:
   
   • proposed to be made by the Secretary of State / NAW), or
   • made by a local highway authority and submitted to the Secretary of State / NAW for confirmation.
2. The Compulsory Purchase by Ministers (Inquiries Procedure) Rules 1994 - Statutory Instrument 1994 No 3264 - which apply to CPOs published in draft by the Secretary of State / NAW under the Highways Act.
3. The Compulsory Purchase by Non-Ministerial Acquiring Authorities (Inquiries Procedure) Rules 1990 - Statutory Instrument 1990 No 512 - which apply to CPOs made by local authorities under the Highways Act and submitted to the Secretary of State / NAW for confirmation.

2.6 All inquiries are subject to the rules of natural justice and must be conducted with openness, fairness and impartiality; the various Inquiries Procedure Rules are based on these principles. The rules give only certain classes of objector an express right to appear at an inquiry: generally statutory bodies and individuals directly affected by a proposal. An Inspector has the power to refuse to hear anyone who has no real standing in the matter and who is simply intent on delaying or disrupting the proceedings. Nevertheless it is important that the Inspector should afford the opportunity to speak to anyone wanting to appear at the inquiry who has something relevant to say which is not merely repetitious or obstructive. The rules provide a framework within which the Inspector is able to exercise considerable discretion, having taken into account the views of the parties who are present at the inquiry.

2.7 Where there are no rules applicable to a particular inquiry, the Inspector should normally follow the Highways (Inquiries Procedure) Rules 1994 as far as possible. However, in situations where an inquiry has been set up to hear objections which have been made within an advertised formal deposit period (that have been “duly-made”) and there is no scope to hear representations from people who did not lodge their objections within the formal deposit period, Inspectors should follow the guidance of paragraphs 7.6 and 7.7. The Inspector should make clear the procedure to be followed at the opening of the inquiry so that everyone will know what to expect.

Revised November 2004

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