The Planning Inspectorate- Wales

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

7. The Inquiry (continued)

Evidence

Best Evidence

7.74 The best evidence is first hand evidence which has not been disputed or which has stood the test of questioning. Hearsay evidence is less reliable but should not be completely ruled out since it may be of some use, especially when there is no other evidence.

Evidence in Camera Not Permissible

7.75 Requests are sometimes made for evidence to be taken in camera or to be regarded as confidential. In the normal course of events, such requests should be refused as there is no statutory power enabling an Inspector to hear evidence which is not public. Where an Inspector believes that public disclosure of information would be contrary to the national interest, an application may be made to the Secretary of State for such evidence to be heard in camera or for written representations to remain undisclosed. Evidence taken in camera will form part of a separate report and recommendation. Any letters of objection or representation which state that their contents are not to be publicly disclosed should not be read out at an inquiry or hearing, nor should they be shown to, or copied for, the participants at an inquiry or hearing. Natural justice dictates that such letters should not be taken into account by an Inspector in reaching a decision or recommendation. If the writer is present at the inquiry or hearing, the Inspector should draw attention to the fact that the letter cannot be taken into account unless it is disclosed to the other parties, and should ascertain whether the writer wishes to change his or her decision that the letter should not be made public.

Proofs of Evidence

7.76 Copies of all proofs of evidence (together with summaries) should have been sent to the Inspector three weeks before the opening of the inquiry (or otherwise in accordance with a timetable laid down at the pre-inquiry meeting), affording the Inspector a chance to read the evidence and acquaint himself or herself with the cases. This may not apply where the proposed inquiry is not subject to any specific inquiry rules.

7.77 The Highways Inquiries Procedure Rules 1994 (Statutory Instrument 1994 No.3263) require the promoting authority to let anybody see the proofs of evidence and documents sent to or by them. At the inquiry only the summaries should be read out (unless the Inspector permits or requires otherwise) but the witness may be questioned on the whole of his or her proof. If the party giving evidence so requests, the summary can be taken as the main evidence and in that case only the summary will be open to questioning. Should this course be followed, the Inspector must explain that the main proof will be considered to have been withdrawn and no account will be taken of its contents.

7.78 The Programme Officer may be able to make further copies of proofs of evidence available for use at the inquiry if they are needed. The Inspector retains discretion to allow late submissions, and to permit objectors to be heard irrespective of whether proofs have been submitted by them.

Documentary Evidence

7.79 Documentary evidence, like oral evidence, can only be taken into account if it is fully disclosed at the inquiry to every party having a proper interest in the matter. When books, or bundles of documents are put in, the Inspector should ask the party concerned to specify (and if necessary to read out) those parts of the documents the Inspector is being asked to take into account. The value of documentary evidence and the weight to be attached to it will vary. Unattested documentary evidence can be accepted but if anyone objects the Inspector should say that it is being accepted for what it is worth, explaining that in principle greater weight is likely to be given to evidence which withstands testing under questioning.

7.80 During the course of an inquiry letters of objection, support and representation will be sent to the Inspector or Programme Officer. These should always be photocopied and copies placed in the inquiry library and the attention of the public drawn to this from time to time. Exceptionally it may be necessary to read out a letter during the inquiry, but usually their presence in the library is sufficient (see 7.107 below) .

Tape-Recordings, Video Evidence and Computer Generated Graphics

7.81 Requests to treat tape-recordings as evidence should be treated with caution; tapes can easily be doctored and recorded statements of evidence preclude cross-examination. Inspectors should be satisfied, before accepting such evidence, that any recording is authentic.

7.82 It is generally reasonable to view video evidence provided there is no strong objection from other interested parties, and so long as all others appearing at the inquiry have a chance to see it. It can be helpful if the witness presenting the recording to be asked afterwards to identify the main points made so that they can be the subject of cross-examination. The Inspector must make it clear that such material is to be viewed without prejudice to the Inspectorâ€Ts consideration of its relevance and admissibility as evidence, on which others will be allowed to comment. In general, oral evidence and the Inspectorâ€Ts own observations are to be preferred.

7.83 Occasionally there might be strong objection from other parties about accepting audio or video recordings as evidence. Inspectors should hear the arguments and, unless the evidence is patently irrelevant, indicate that the substance of the objections will be taken into account in judging what weight, if any, should be attached to the recordings.

7.84 Increasingly, computer generated depictions of the effect of the development on its surroundings are being presented as evidence. There is no objection in principle to such material being put forward, but the Inspector should make sure that the method adopted in its creation is explained and documented, and that relevant technical data (e.g. the software package used) is supplied. Any comments by the opposing side about the accuracy of the virtual modelling technique used should be carefully borne in mind when assessing the weight to be given to this type of evidence. Copies of depictions should be available for the Inspector and other interested parties.

Information supplied on Floppy Disc or CD-ROM

7.85 Inspectors are, with increasing frequency, receiving requests to accept information in digital form. Usually what is offered is presented on floppy discs but there have been instances where information has been offered on CD-ROM. The material which might be offered includes document lists, closing submissions, site descriptions, and other factual matters of the sort which might be included in, for example, statements of common ground, and possibly demonstrations of the impact of a project on its surroundings using 3-dimensional virtual reality software. There is unlikely to be much benefit from receiving electronic versions of proofs of evidence. However, the presentation of basic factual material already in digital form in this way can make the production of the decision or report more efficient and save some time, although editing will usually be necessary.

7.86 Inspectors must not accept on disc any document unless that document is available (though not necessarily in the same format) to all parties involved or interested in a case. Any such acceptance must be done openly so as to avoid any suggestion of secrecy or partiality, and the discs should be offered for examination by others. With the exception of virtual reality demonstrations, which will form part of the evidence and should be accepted for that reason as long as copies have been provided to all other parties, it is for the Inspector to decide whether to accept any offer, or to request copies, of documents on the disc. The key consideration in this is whether the Inspector expects the material offered in electronic form to assist in the decision or report writing task. Inspectors are advised to have discs checked for viruses.

Introduction of New Evidence

7.87 Evidence or submissions which did not emerge in the pre-inquiry statements, objections or representations should not be debarred simply because no such advance notice was given. The Inspector has the discretion to allow the introduction of new matter at the inquiry and should normally do so provided it is relevant.

7.88 If the promoter seeks to make an addition to his or her case, he or she should be permitted to do so provided that any affected objectors are given sufficient opportunity (by means of an adjournment if necessary) to consider the new matter, and to give their responses to it. If a new matter is raised by an objector, the promoter should be permitted to call evidence in rebuttal. To achieve this it might be necessary for a new witness or new witnesses with the relevant expertise to be called who may not have been part of the original team put forward by the promoter.

Summonsing of Witnesses

7.89 Under the Local Government Act 1972, Section 250(2), applied by the Highways Act 1980, Section 302, and the Acquisition of Land Act 1981, Section 5(2), an Inspector has the power to summons a witness to appear at an inquiry, if the Inspector decides that it will not otherwise be possible to make a proper report.

7.90 The power to issue a summons should be exercised with extreme caution and only as the very last resort. Should the Inspector consider that a summons must be issued, he or she should adjourn the inquiry and inform the Planning Inspectorate. As a summons will take time to be implemented, the inquiry should hear other evidence if possible, rather than adjourn to the date when the summons can be implemented. It should be noted that whilst a witness can be summonsed to appear, he or she cannot be forced to speak.

7.91 On the very rare occasion when an Inspector believes that a witness might have to be summonsed, the Inspector should inform the party requesting the summons that the party would be required to pay out of pocket expenses, including loss of earnings where appropriate. The summons must be served by the party who applied for it and who is liable for any costs involved. If these obligations are accepted, the Inspector should then consider the case for issuing the summons. Before issuing one the Inspector would have to be reasonably satisfied that:

The evidence to be given by the witness was likely to be material to the case.
The witness was the appropriate person to give the evidence.
The witness would not come unless a summons was served.
The production of a statutory declaration would not obviate the need for personal appearance.

7.92 Witness summons forms are available when necessary from the Planning Inspectorate.

Power to Order the Disclosure of Documents

7.93 Also under the Local Government Act 1972, Section 250(2), the Inspector has a power to order the disclosure of documents provided they are not of a confidential or restricted nature, though it should be noted that this power is not binding on the Crown. In practice Inspectors usually find that a request from them will produce the witness or document required and, so far as Government departments are concerned, Inspectors can expect documents relevant to the inquiry to be readily available.