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

7. The Inquiry (continued)

Legal Submissions

7.25 Only the Courts can interpret the law authoritatively. Legal submissions made at the inquiry should be recorded in the Inspector's report. The Secretary of State or NAW will take a view on the relevance of the legal submission as it relates to the order when reaching a decision on it, but the Inspector should address this issue in his or her conclusions.

7.26 Submissions which challenge the legality of the inquiry or the validity of the scheme and/or order are sometimes made at inquiries. Such matters are usually not for the Inspector to resolve and therefore he or she should confine himself or herself to hearing (and later reporting on) the arguments put. The inquiry should proceed unless, of course, such submissions result in the promoters withdrawing their proposal or requesting an adjournment in order to deal with the matter raised. In the latter case the Inspector will be required to consider and rule on the request (see 7.32 below). Anyone who is not prepared to accept that this action on the part of the Inspector is all that can be done should be told that it is open to them to consult their own advisers as to whether any remedy is available. However, if all parties agree that the Order has been inappropriately published it would not be sensible to continue with the inquiry. In which case, the inquiry should be closed and a report made to the Secretary of State explaining the circumstances and giving the reasons why no further progress can be made on the Order.

7.27 Whenever legal arguments are put, it is often helpful to obtain these in writing, although this may not be feasible at a short inquiry. Written legal submissions, particularly long ones, undoubtedly save inquiry time and help to reduce the possibility of error in recording them. Any documentation of this kind should accompany the Inspector's report.

7.28 A recommendation by an Inspector at an inquiry, and a decision by the Secretary of State / NAW after an inquiry, may be subject to judicial review. Applications for leave to apply for judicial review are made on behalf of one side only ( ex parte). Anybody against whose decision the complaint is addressed may be represented and heard at the hearing of the application. If leave is granted, the person whose decision is in question will have the right to be represented at the hearing.

7.29 In addition to judicial review there is a statutory right of challenge to the high court on the made orders. The provisions are in the Highways Act, Schedule 2, Paragraphs 2 and 3 for orders made under that Act, and in the Acquisition of Land Act, Sections 23 and 24 for Compulsory Purchase Orders and in the Cycle Tracks Act sections 3(6) and (7). Both sets of provisions empower the High Court to quash an order if it is made outside the powers of the enabling Act or if the applicant has been prejudiced by procedural unfairness. An Inspector must not offer comments on the availability of these processes, but must leave people to take what course they will.

Procedural Submissions

7.30 Submissions concerned with the procedure to be adopted at an inquiry are very much the concern of the Inspector and are usually made on the opening day of the inquiry (or at a pre-inquiry meeting if one has been held), though they may occur at any stage during the proceedings. The views of all concerned should be heard before matters are resolved. The Inspector may well find it useful to adjourn for a short while to consider his or her answer, or postpone an answer until some specified future date, so as to have adequate time to give the matter the consideration it deserves without delaying the inquiry. In making his or her decision the Inspector may exercise discretion as to the procedure to be adopted, except where the Inquiries Procedure Rules make specific provision in this regard. Otherwise, the Inspector alone is in control of the inquiry and makes all rulings.

7.31 Procedural matters at an inquiry or pre-inquiry meeting can be resolved by making a formal ruling but every effort should be made to try to reach agreement first. If procedural matters have been raised at the pre-inquiry meeting it is advisable for the Inspector to mention any agreed procedural points at the opening of the inquiry, so as to give anyone who was not present at the pre-inquiry meeting an opportunity to comment. Without their agreement they would not be bound by decisions made at the pre-inquiry meeting (see Appendix C, paragraph 7).

Requests for Adjournment

7.32 Requests for the adjournment of inquiries should normally be resisted unless there are compelling reasons for acceding to them. Adjournments result in inconvenience and delay and can be costly - often for a considerable number of people. If an adjournment proves unavoidable, it should be announced at the first possible opportunity. Before the adjournment actually takes place, the time, date and place of the resumption must be announced. The Planning Inspectorate should be notified of any adjournment lasting more than a day.

7.33 During TWA cases, Inspectors may wish to use adjournments to allow time for negotiations to be finalised. This may not necessarily bring a withdrawal of an objection, but it can finalise a position which can then be reported to the Secretary of State and can inform the Inspector's recommendation. However, adjournments must be properly controlled, and if it becomes clear that negotiations have become stalled, Inspectors should set a deadline by which all negotiations/further information must be finalised, with the ruling that the Inspector will base his/her report and recommendations on the position achieved at that date.

7.34 Adjournments without setting a date for resumption ( sine die) should not be contemplated except in extreme circumstances. Even if there is doubt as to whether the inquiry will have to be continued after the adjournment, a date should be set. In the very rare and unavoidable event of it not being possible to announce the time, date and place of the resumption, the Inspector should announce how the parties and others present at the inquiry are to be notified when the arrangements for the resumption have been completed. For example, with the promoting authority's agreement, the Inspector might announce that they would write to everyone who has appeared at the inquiry or submitted written representations and anyone else present who leaves their address with the Programme Officer.

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