London Gateway (Shell Haven) Inquiry
Inspector rulings
The Planning Inspectorate
London Gateway (Shell Haven) Inquiry
Ruling as to Order of Appearances
1 This ruling is made only in exercise of the Inspector’s discretion as far as it is allowed for in Rule 15(4) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (‘2000 Rules’), and Rule 15(2) of the Transport and Works (Inquiries Procedure) Rules 1992 (‘1992 Rules’), and arises from the fact that the inquiry is to consider two applications to the Secretaries of State for Orders, and an appeal under Section 78 of the Town and Country Planning Act 1990.
2 At the Pre Inquiry Meeting I set out an order of appearance the essence of which was that set out in Rule 15(2) of the 1992 Rules, that the applicants should begin, and have the right of final reply. The applicants objected, preferring the procedure set out in the 2000 Rules that the local planning authority should begin, and the applicants have the right of final reply. As a matter of compromise, the applicants suggested that their evidence in chief should be presented first; followed by objectors evidence and cross examination of that evidence; followed by the applicants’ rebuttal and full cross examination on all applicants’ evidence, followed by closing submissions.
3 Points raised against the applicants’ suggestion were that:
i) it allowed two opportunities to present evidence to the inquiry;
ii) it would run counter to the aim of shortening inquiries;
iii) new evidence may be brought forward at the second appearance, leading
to requests for recall of earlier witnesses;
iv) it would over complicate an already complex inquiry, making it more difficult
for members of the public to follow proceedings;
v) my original approach had been used successfully at the Dibden Terminal Inquiry,
and
vi) if the applicants’ evidence was presented in full, it may be possible
for certain objections not to be pursued, thus obviating the need for presentation
of objectors’ evidence and shortening the inquiry.
4 As regards i), the applicants’ proposal would clearly distinguish between first proofs, to be taken first, and rebuttals, to be presented before full cross-examination. There would be two opportunities for examination in chief, which would clearly distinguish between first evidence and rebuttal. Whatever order is taken, there would always be a risk of recall of a witness to rebut a point made by an opposing witness. The proposal does not appear to hand any unfair advantage to the applicants.
5 As regards ii), it is unlikely that there would be any material lengthening of the inquiry. The only additional time taken would be changing of witnesses – often happening at breaks in any case.
6 As regards iii), this is accepted as a possibility. Whatever order is taken, there is always the risk that an opposing party will find new evidence brought forward in rebuttal, and will need to recall witnesses.
7 As regards iv), provided the arrangements are set out clearly, and the inquiry programme is posted regularly, members of the public who are engaged in the inquiry should find it no more difficult to follow than in any other arrangement. The member of the public who attends on a casual basis is always likely to be somewhat confused. The programme officer normally assists in such cases. Those members of the public who are likely to attend on casual basis should either contact the Programme Officer (Val Lucas) to find out stage current stage of the inquiry and the forward programme, or should visit the inquiry website, where the programme will be regularly updated.
8 As regards v), it is acknowledged that inquiries have been held successfully using the Dibden model for many years. The change in the planning inquiry procedure rules, however, indicates a change in emphasis by the Secretary of State, although any expectation by any party is subject to the exercise of an Inspector’s discretion under such rules as may apply to the particular case.
9 As regards vi), it is accepted that this may be a disadvantage. However, the pre inquiry discussions that are taking place between the parties and prior submission of proofs and rebuttals make it unlikely that a well prepared party would find, during the course of evidence being heard, that a cause of objection was unexpectedly removed.
10 As regards the applicants’ view that a final right of reply is an evidential right, rather than a right to make a final submission, comparison between the 1992 Rules and the 2000 Rules shows the use of the same phrase “the applicant shall have the final right of reply” in procedures in which the applicant begins and those in which the local planning authority begins. In the former instance it is normal practice for the applicant, appearing before others, to make the last closing submission, that is as a final right of reply. However, where those who appear after the applicant raise points against the applicant these may be dealt with by rebuttal, and this may be construed as a reply, whereas a closing submission would normally set out the whole case favouring the applicant’s proposal, including but not necessarily restricted to a reply. In my view the point remains open.
11 In the light of all the views expressed I have concluded as acceptable the compromise approach proposed by the applicants on the issue of order of appearances.
12 For the avoidance of any confusion in the future, this compromise is not the procedure adopted at the Otterburn Inquiry, nor at the West Coast Main Line Inquiry. The acceptance does not imply any determination by me that “right of final reply” means the right to present evidence finally.
13 The order of appearance will, therefore, be:
i) Opening Statement by the Applicants
ii) Opening statement by Thurrock Council (TC)
iii) Opening statements by other Part 1 parties (order to be determined, but
beginning with Essex CC)
iv) Programmed matters – legal submissions if any, description of the
project.
v) For each Topic:
a) Presentation and examination in chief of applicants’ evidence.
b) Non hostile questions of clarification
c) Presentation and examination in chief of supporter’s evidence (if
any)
d) Presentation and examination in chief of first objector’s first witness
(order to be determined)
e) Cross examination of objector’s witness by applicants
f) Re examination
g) Inspector’s questions
h) As d-f above for all objector’s witnesses
i) Any Part 2 party who elects to present the whole of their case under one
topic
j) Cross-examination of any Part 2 party by applicants
k) Presentation and examination in chief of applicants’ rebuttal evidence – first
witness
l) Cross-examination of applicants’ first witness’s total evidence
by first objector
m) Cross-examination of applicants’ first witness’s total evidence
by objectors 2-n
n) Re-examination
o) Inspector’s questions
p) As k-o above for applicants’ witnesses 2-n
q) Cross-examination of supporter’s witnesses (if any), followed by re-examination
and Inspector’s questions.
r) Topic closings by objectors (may include a full closing of an objector’s
case at this stage if they are not to participate in the remainder of the inquiry)
s) Topic closing by supporters (if any) (may include a full closing of a supporter’s
case at this stage if they are not to participate in the remainder of the inquiry)
t) Topic closing by applicants
u) End of topic
vi) Part 2 parties
vii) Conditions and obligations
viii) Closing statement by TC
ix) Closing statements by objectors (where not covered earlier)
x) Closing statement by supporters (if any) (where not covered earlier)
xi) Closing statement by applicants
xii) Applications for costs (if any)
David Ward
Inspector
12 December 2002
London Gateway News
Information
Inquiry Programme
Transcripts
Inquiry Documents
Who's Who
Related Links
A - Z