The Planning Inspectorate- Wales

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

6. The Scope of the Inquiry (continued)

Validity of the Inquiry

6.8 If there is a challenge over the validity of the inquiry because of a failure to comply with statutory requirements, the Inspector should hear the views of all parties. Unless the interests of any of the parties have been seriously prejudiced the Inspector should endeavour to carry on with the inquiry even if there is an admitted defect. An announcement to this effect may be helpful in such circumstances.

The Relevance of the Submissions and Evidence Presented

6.9 An Inspector must take account of all arguments relevant to the particular order before him or her. However, the Inspector will be concerned mainly with the justification for the order and the likely environmental, social and economic effects of the particular proposals, in the context of balancing the case for the promoter with those of the objectors.

6.10 It is for the Inspector to decide how much argument to hear about what, in his or her opinion, is unrelated to the vital issues. A study of the enabling legislation, and in particular of those elements of it which indicate the criteria the Inspector must use when making his or her judgement, will equip the Inspector for exercising discretion. It is usually better for the Inspector to hear a little more than is necessary than to prevent participants from referring to matters which may seem to them to be relevant.

6.11 Unrepresented objectors who stray from the point should be allowed some latitude, but should be checked if they stray too far or are clearly wasting inquiry time. Those who appear to be relying upon some evidence or argument which the Inspector considers irrelevant should be asked how they believe it relates to the criteria, so that they do not leave the inquiry thinking they have made some telling point, when in fact it carries little weight with the Inspector. If such an objector has already submitted a written proof of evidence, the Inspector might suggest that only the relevant parts of it be considered at the inquiry.

6.12 If the admission of evidence or argument is challenged and the Inspector is in any doubt about it, the best course is to admit the evidence or argument in question. The Inspector should say that the matter will be reported to the Secretary of State / NAW, together with the Inspector's own opinion, so that the Secretary of State / NAW can decide whether or not to take it into account when reaching a decision.

Consideration of Suggested Modifications and Alternative Proposals

6.13 Schedule 1 of the Highways Act 1980 gives the Secretary of State / NAW the power to modify an order before it is made or confirmed. If the Secretary of State / NAW wishes to do so, paragraphs 8(3) and 15(3) of that Schedule provide that, where it is proposed to exercise this power in such a way as to make a substantial change to the order, any person likely to be affected by the proposed modifications must first be given the opportunity to make representations.

6.14 The re-routing of the whole or substantial part of a scheme is likely to amount to a major change and could not be considered as a modification for the purposes of paragraph 8(3) or 15(3). This is ultimately a matter for the Secretary of State to decide and could result in the publication of new orders by the promoter.

6.15 Either way, it is necessary for the Inspector to obtain all the information about any suggested modifications or alternative proposals so that when the Secretary of State / NAW comes to make the decision all the relevant factors are known.

6.16 After hearing the cases the Inspector may wish to recommend that an order be made (or confirmed) with certain modifications. Alternatively, the Inspector may wish to recommend that the order be not made (or not confirmed). Further guidance is at 9.51 below. The Inspector is not in a position to make a recommendation on alternative proposals. However, the Inspector must understand them sufficiently well to be able to decide whether they appear to be worth further investigation. Should he or she come to the conclusion that the proposal before the inquiry may be justified in principle, the arguments against its siting or design may lead the Inspector to recommend against it.

6.17 Section 258(2) and Schedule 1, Paragraph 19, of the Highways Act 1980 provide that where an inquiry is to be held, the Secretary of State / NAW may give notice that an objector intending to submit that the proposed road should follow an alternative route shall submit sufficient information about the proposed alternative to enable its route to be identified. Under the Inquiry procedure rules this information must be supplied within a period specified by the Secretary of State / NAW of not less than 14 days, provided this is not less than 14 days before the start of the Inquiry. If any objector has supplied the necessary information prior to the coming into force of the specified period, the objector should be regarded as having complied with the notice.

6.18 If an objector has failed to comply with such a notice, under the provisions of Paragraph 19 of Schedule 1 of the Highways Act 1980, the Inspector and the Secretary of State / NAW may disregard that objection. Nevertheless, in deciding on a course of action the Inspector should be guided by the principle that he or she should hear anything relevant which is going to enable the right decision to be reached. On the other hand, the late submission of the details of the alternative proposal could leave insufficient time for the promoters to give them their due consideration. Even more importantly, it could leave insufficient time for adequate notice of the alternative to be given to those who would be affected by it.

6.19 It is not incumbent upon the promoters or anyone else to notify those who would be affected by suggested alternatives to proposed routes. However, in the interests of natural justice it is considered that such people should be notified if possible, and if there appears to be real substance in the alternative proposals being put forward.

6.20 If an Inspector is faced with a late submission about an alternative to the proposal he or she should first consider whether it has substance and only reject it immediately if it patently has not. The Inspector should ask if the persons who would be affected have been notified and, if not, should ask the promoters and any other interested parties at the inquiry for their views on the matter. The Inspector will then have to use his or her judgement as to what is the best course of action to take, bearing in mind the considerations outlined in paragraph 6.18 above.

6.21 If the Inspector decides that the case for the alternative proposal should be heard despite its lateness, it might be possible during a long inquiry to postpone the hearing of the case for that alternative until such time as the people who would be affected by it have been notified and given time to prepare any counter-objections. Alternatively, the Inspector might find it necessary to adjourn the inquiry for a time to enable those affected to be given notice and time to prepare.