The Planning Inspectorate- Wales

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

7. The Inquiry (continued)

Controlling the Proceedings

The Inspector’s Responsibilities

7.112 The purpose of a public inquiry is for the Inspector to gather all the relevant information to enable him or her to prepare a report to the Secretary of State / NAW. It is held in public so that the evidence can be properly and openly examined. However, a public inquiry is not a form of public meeting, and the Inspector should not allow it to become the occasion for anybody to come along and have a say about anything: that is, the inquiry is set up specifically for the benefit of the Inspector, the wider or personal interests of the public in general must not divert the purpose or scope of the inquiry.

7.113 The Inspector should be, and should be seen to be, in full control of the sequence of events. The Inspector should never sit back and let the inquiry run itself. The parties should not be left to take the lead; it is the Inspector who initiates each stage of the proceedings. The Inspector should not allow people to speak unless they are invited to do so. The Inspector should, nevertheless, allow the parties to present their cases in their own way, intervening only to prevent irregularities of procedure, undue repetition and irrelevancies, the risk of injustice or oral attacks on a person’s character, or to seek clarification of any point he or she has not understood. If the Inspector does have to intervene, he or she should do so with courtesy and tact, avoiding any appearance of officiousness. In seeking clarification of points the Inspector should also take care that he or she does not unduly interrupt the presentation of a case. Rather than intervene when someone is in full flow it is better to wait for a more suitable moment.

Leading Questions

7.114 The Inspector should not permit advocates to ask leading questions of their own witnesses on matters in dispute, except when a witness is hostile.

Unrepresented Parties

7.115 An Inspector should be prepared to assist any unrepresented parties who have chosen to conduct their own cases and are in difficulties, but without conveying the impression that the Inspector is siding with them. Unrepresented witnesses should be protected from stressful examination, and the Inspector should ensure that, at all times, they understand the questions put to them.

Repetitive Evidence

7.116 Whereas it is the responsibility of the Inspector to hear all relevant evidence, the Inspector should preclude the repetition of the same evidence, and hence avoid wasting inquiry time. If a point has already been made by one witness it serves no purpose to hear the same point made several more times – it does not make it more important the more times it is repeated. In which case, the Inspector should courteously intervene when he or she detects that evidence is being repeated, and say that he/she has already noted the point. Local residents or similar interest groups should be encouraged to band together and appoint a single spokesperson. If everyone in the group really does insist on saying something this could be restricted to saying that they agree with everything the spokesperson has said.

Aggressive Cross Examination

7.117 The Inspector should be sensitive to the status, competence and experience of all witnesses and may need to stop cross examination which goes beyond the bounds of accepted practice. Professional witnesses are expected to cope with persistent and sometimes aggressive questioning, but even these witnesses may become confused and give ill-conceived answers under pressure. If the Inspector believes this to be the case, the witness should be offered some protection and time to recover his or her composure.

Objection by Advocate to Nature or Wording of Questioning

7.118 Advocates sometimes object to the nature or wording of a question put to one of their witnesses in cross-examination, but if the question is relevant it cannot be ruled out. In such circumstances Inspectors should suggest that the question be re-phrased to remove or lessen the offence. The Inspector should be prepared to rephrase questions, especially those put by unrepresented persons or when the relevance of a question is obscure.

Questions by the Inspector

7.119 The Inspector should, as part of his preparation for the Inquiry, prepare a list of questions on matters which they know should be included in their report, bearing in mind either the criteria of the legislation under which the inquiry is being held, or in order to elucidate technical matters. It may be, of course, that these points are answered either in the evidence given in chief by the witness or they have come out in cross-examination. However, if there are still matters outstanding then the Inspector should take the opportunity to put his/her own questions should he/she require more information. The Inspector should do this as soon as possible at the Inquiry if he or she has noted a gap in the evidence submitted beforehand .

7.120 Questions by the Inspector should be couched in impartial terms; they should never appear in a guise of friendly, leading or aggressive cross-examination (see also 7.54 above). They should not embarrass the witness or expose the witness’s weaknesses. However, the witness should be required to answer the questions if they are within their particular area of expertise or interest.

7.121 Paragraph 7.49 above suggests that Inspector’s questions should be left until after the witness has been re-examined by the advocate. Alternatively, the Inspector may like to put his/her questions before re-examination, or allow the advocate the opportunity to re-examine the witness again after the Inspector’s questions. However, in the latter case, the Inspector should make sure that re-examination is restricted to those matters covered by the answers given to the Inspector’s own questions.

Qualified Privilege

7.122 Inquiries are occasions of qualified privilege, so that statements made in good faith and without malice are protected against proceedings for defamation. A challenge to the professional competence of a witness may be appropriate. There is an assumption that anyone appearing at an inquiry does so to help the inquiry and is thus discharging a public duty. On the other hand the Inspector should intervene if anyone appears to be trying to take advantage of his position at the inquiry to say something which might otherwise result in the possibility of an action for slander. The Inspector should state that, if anyone makes a statement at a public inquiry without believing it to be true and with the intention of inflicting injury on another person, the defence of qualified privilege would probably not be available in defamation proceedings brought by that person. Libellous or slanderous comments should not be included in the Inspector’s report – even as direct quotations.

Disrupted Inquiries

7.123 Some major inquiries are quite rumbustious. This is to be expected when people feel that something they hold dear is at stake. In those circumstances they may become vociferous. Such behaviour cannot be tolerated at a public inquiry if it is going to disrupt the proceedings and result in people who wish to be heard feeling afraid or inhibited. Therefore the Inspector must maintain control of the inquiry so that it can proceed quietly and smoothly. Control of an inquiry when it has disruptive elements may not be easy; but the Inspector should always try to find out the causes of the apparent dissatisfaction. By dealing promptly and fairly with them and by explaining his or her own function, the Inspector should be able to gain the confidence of all parties.

7.124 If disruptive elements persist, they may have to be warned that in the interests of maintaining an orderly inquiry, they will be required to leave if they do not desist. Reference should be made to the relevant Rule enabling an Inspector to require a disruptive person to leave, for example, Rule 24(7) in the case of an inquiry covered by the Highways (Inquiries Procedure) Rules 1994. Even before such a provision was included in rules, the Court of Appeal confirmed that the Inspector has the power to eject a protester who is disrupting the inquiry. (Lovelock v Secretary of State for Transport (1979)8). The Inspector must say that he will take into account any written representation submitted by the excluded person before the close of the inquiry.

7.125 If the Inspector is unable to calm matters and a few minutes adjournment for cooling off are not effective, the Inspector should adjourn for a short time, or overnight, in order to make further arrangements. These will depend upon circumstances such as whether the police are already on call. The inquiry should not be continued in a state of disorder, and it may be necessary to ask the police to attend for the resumption. The Inspector will decide in consultation with the police what action will be taken. The police may suggest confining action to showing a presence; they may wish to address those present, or speak to individuals; or they may remove people if other methods are unsuccessful in restoring order. The Planning Inspectorate should be informed whenever the police have been called.

Round Table Sessions

7.126 For longer and more complex inquiries, for example where there are alternative proposals, it may be helpful for parts of the proceedings to be taken as a round-table session – along the lines of a hearing, with only the technical witnesses making contributions in response to a discussion led by the Inspector. Such sessions should only be used as a means of clarifying technical points – either to reach a common understanding of (say) traffic modelling techniques, or how other technical evidence has been prepared. It would probably not be an appropriate means of reconciling different approaches, but only of coming to an understanding of why there are apparently different views being deduced from the same or similar evidence: for example, where these may be the result of different or incompatible technical interpretations. It is not usual for advocates to attend at such sessions, as cross-examination would not be appropriate. It might be helpful if the Programme Officer took notes of the points made, leaving the Inspector free to direct the discussions. A note of the round-table session should be quickly prepared (over night if possible) and published as an inquiry document. Opposing advocates could then make witnesses available for cross-examination on their evidence in full inquiry session on subsequent days. Round Table Sessions should be open for all to attend and observe.

Statements of Agreed Facts

7.127 The inquiries procedure rules for planning appeals require planning authorities and applicants to prepare and submit an agreed statement of common ground four weeks before the date fixed for the inquiry. There is no equivalent requirement in the procedure rules for highways inquiries. It is nonetheless helpful if parties agree factual information about the proposal and background environmental and other data outside the inquiry. The inclusion of this data in mutually agreed statements, probably as core documents of the inquiry, can result in shorter proofs of evidence and shorter inquiries.

7.128 How such agreement is reached will vary depending on the nature and complexity of the proposal and the matters at issue. Where there are only two or three major parties involved and the issues are fairly straightforward, the Inspector might simply encourage the parties at the pre-inquiry meeting to get together with a view to producing a statement of agreed facts. For major inquiries a more formal arrangement may be necessary, particularly where several parties are expected to bring evidence of a technical nature to the inquiry.

7.129 An approach which has proved useful is to set up ‘Joint Data Groups’ in advance of the inquiry opening. These are small working groups, on which all parties to the inquiry are represented, which would be set the task of assembling and agreeing baseline data relevant to a particular area of the inquiry, e.g. noise, traffic or ecology. In particularly complex cases it may also be appropriate to set up a Joint Working Party, chaired by an Inspector or an Assistant or Deputy Inspector, to co-ordinate and monitor the work of the individual Joint Data Groups. Inspectors considering setting up Joint Data Groups and/or a Joint Working Party are advised to contact the Planning Inspectorate for further advice.

8, 40 P&CR 336, 78 LGR 576, [1980] RVR 236, [1980] JPL 817