The Planning Inspectorate- Wales

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

7. The Inquiry (continued)

Order of Presentation of Cases

7.52 So that everyone with an interest in the matter can be fully apprised of what is involved right from the start, the case for the promoters should be presented first, and whenever possible this should be directly followed by the cases of those who support it. The cases for the objectors should follow, and these in turn should be followed by those of the counter-objectors. The promoters have the right to a final reply. The full sequence of events for simpler and more complex inquiries is set out in Appendices D and E to these notes. The procedure for more complex inquiries is to be used where there are a significant number of witnesses for the promoter and/or when there is a significant number of supporters or objectors who wish to be heard at the inquiry. Discussion on the most appropriate procedure to follow could be allowed at the PIM and Inspectors may ask parties if they intend to attend the whole of the inquiry to inform this decision. If it appears likely that unrepresented parties wish to attend throughout the inquiry it may be helpful to opt for the simple procedure. The following paragraphs contain guidance on various aspects of the giving and examination of evidence.

The Promoter's Case

7.53 The first stage of the inquiry is the presentation of the promoter's case, usually including cross-examination of the witnesses by objectors. Where there is a very large number of objectors with different interests (for example, covering different sections of the route of a road), who cannot reasonably be expected to attend the inquiry for long periods, it may be preferable to allow each objector an opportunity to put questions of clarification to the promoter's witnesses but defer cross-examination. The objector's cross-examination would then take place when the objector returns to the inquiry to present his or her case. This approach may be convenient for objectors but has the disadvantage that the objectors will not hear other objectors' cross-examinations, so making repetition likely and adding to inquiry time.

Questions of Clarification

7.54 Sometimes there is a fine line between questions of clarification and the cross-examination of witnesses. Usually a question of clarification should be addressed to a specific paragraph in a proof or summary of evidence - if it is not, then the question is probably more appropriate to the objector's main case and should be pursued through cross examination.

7.55 Sometimes the number of objectors who wish to ask questions of clarification makes the practice unmanageable. If this seems likely the Inspector should consider adopting other means to assist objectors in understanding the evidence. From his pre-reading of the proofs of evidence the Inspector could compile his or her own lists of questions and introduce these as an inquiry document (see 7.119 below). The Inspector could adopt an inquisitorial role during the giving of the evidence-in-chief. The Inspector should always encourage objectors and the promoting authority to confer outside the inquiry on matters which are not of general interest to the inquiry.

Supporters

7.56 Supporters do not have the right to cross-examine the promoter's witnesses, though questions of clarification may sometimes be allowed. Similarly the promoter does not have the right to cross-examine supporters except for clarification. However, such matters are usually best dealt with outside the inquiry, especially when a common interest is shared. Supporters may cross-examine objectors (see 7.62 below).

Objectors' Cross Examination of Supporters

7.57 Objectors may cross-examine supporters, but normally should do so only on matters on which the supporters have given evidence or made submissions, and should not be permitted to question them on matters to which they have made no reference. This does not apply to such supporters as local authorities or statutory bodies, because the answers to certain questions, which objectors might require to enable them to present their cases properly, might be obtainable only from such authorities and might not be referred to when they present their cases. The Inspector should use his or her discretion in this regard and should ensure that objectors are not denied the opportunity to ask questions to which they require the answers in order to complete their cases (unless such questions are patently not relevant to the subject of the inquiry).

7.58 Supporters represented by an advocate may be re-examined by their advocate following cross-examination by objectors, and the advocate has the right of a final reply. Unrepresented individual supporters should be given the chance to have a final word after they have been cross-examined, but they should be told that it is not an opportunity to introduce new evidence.

Statutory and Non-Statutory Objectors

7.59 Statutory Objectors in the context of Highway Inquiries are those objectors who have a vested interest in land or property which would be affected by the proposals. They should normally appear next and have the right to cross-examine the promoter’s witnesses when called upon to present their cases, and before they present their own evidence. They should also have an opportunity to cross-examine after the presentation of any rebuttal evidence by the promoter.

7.60 Non-statutory objectors, i.e. those people who have objected within the time for objections – but who are not statutory objectors, normally follow and should, at the discretion of the Inspector, be given the same opportunity to question the promoter’s witnesses as statutory objectors.

7.61 Questioning of the promoter’s witnesses by objectors should not go beyond the substance of the matters contained in the evidence and submissions they have presented where this is relevant to the subject of the inquiry. Paragraph 7.98 below deals with the questioning of Government witnesses as to the merits of Government policy.

7.62 The objectors are liable to be cross-examined in turn, not only by the promoter and supporters, but also by counter-objectors to any alternative proposals they (the objectors) might put forward. Such questioning should be confined to the matters on which the objectors have given evidence or have made submissions, and should not normally be permitted to extend to matters to which they have made no reference. Both promoter’s and objectors’ witnesses may be re-examined by their advocates after cross-examination.

Response by the Promoter

7. 63 The promoter may reply to the various objectors' cases in the final reply at the end of the inquiry, or may make a response to each individual objector at the time that objector's case is being heard. Any evidence the promoter may wish to call to rebut that given by an objector should be called at this stage. Such evidence is liable to be cross-examined in the usual way and when this process is completed the objector has a right to a final reply.

Counter-Objectors

7.64 Counter-objectors should normally appear after the objectors whose alternative proposal they are opposing, but they will usually question the objectors during the presentation of the latter's cases. Counter-objectors may also question the promoter, although their questions to them should not be permitted to be used as a means of eliciting support for their cases. Counter-objectors are open to questioning by those to whom they are opposed, and as usual have the right of re-examination and a final reply.

7.65 Some counter-objectors may be both objectors in their own right and counter-objectors to other objectors' alternative proposals - and so may appear twice in the inquiry, firstly as objectors and secondly as counter-objectors. If such parties appear only once, the interplay of cross-examination becomes a little more complicated but still follows the same general pattern.

Strict Adherence not Always Possible

7.66 In practice it may not be possible to adhere strictly to the sequence of events outlined in Appendices D and E because not all parties can make themselves available at any given time, but it is nearly always possible to follow the general pattern.

Action by the Inspector before Right of Final Reply is Exercised

7.67 Subject to the comments in paragraphs 7.6- 7.8 above, before the promoter makes his final reply the Inspector should ask if there is anyone who wishes to be heard. If there is, the person should be accommodated, provided he or she genuinely has something relevant to say which is not merely repetitive or obstructive. The Inspector should also check that, in either specific or general evidence, the promoter has responded to all of the written representations (see 7.107 and 7.108 below).

7.68 The right to reply is limited to responding to the objections made. No new evidence may be given. It is not an opportunity for the promoter to repeat all the submissions and any attempt at such repetition should be stopped. If the promoter has already responded to individual objectors when the latter were presenting their cases (see 7.63 above), there is no need for him to do so again. If objectors have left the inquiry, a short final reply concerned with the objections as a whole is probably all that is necessary.

Closing Actions by the Inspector

7.69 After hearing the promoter's reply, the Inspector should satisfy himself or herself that there is no unfinished business and that all the inquiry documents, including the attendance list(s) have been handed in. The Inspector should then make arrangements for the accompanied site inspection (if one is to be carried out) and, finally, should declare the inquiry closed.

7.70 The effect of declaring the inquiry closed is that the Inspector can neither hear nor accept any further submissions or evidence, either verbal or written. Anyone who wishes to make further representations should be invited to put them in writing and send them to the Secretary of State / NAW. It follows that no evidence or submissions can be accepted during a post-inquiry site inspection and nothing the Inspector then hears, can be included in his report (but see Part 8 below ).

7.71 Parties to the inquiry might ask when they can expect a decision from the Secretary of State / NAW. Once the report is written and submitted, the matter is out of the hands of both the Inspector and The Planning Inspectorate (PINS), and therefore it is impossible to give any indication of the likely decision date. An Inspector should not even attempt to estimate the date on which the Secretary of State's / NAW's decision will be issued.

7.72 However, the Inspector may give an indication of when he/she will be submitting his/her report. The Inspector should give his/her estimate of the week commencing date in which it is expected that the report will be sent from PINS to the Secretary of State / NAW. The Inspector should take into account the reporting time allocated/required, work programmes and any other commitments. In addition, the Inspector must include a three week period to allow for the necessary administrative actions within PINS. Taking account of all these factors the Inspector should be able to provide a reasonably reliable estimate of the submission date using the phrase week commencing .

7.73 For long and complex inquiries, the Inspector may announce a provisional date. An estimated date can be obtained by the parties from the PINS support group upon request.