Notes for the Guidance of Inspectors Holding Inquiries into orders and Special Road Schemes.
6. The Scope of the Inquiry
The Orders before the Inspector
6.1 The Inspector should always bear in mind what he or she has been appointed to inquire into and therefore upon what he/she is required to make recommendations. The Inspector should be careful to confine his or her consideration to matters within the scope of the inquiry and resist broadening that consideration into matters that are not directly involved in the orders. In the case of an inquiry into supplementary or variation orders, the Inspector should never permit the reopening of matters upon which a decision has already been made after a previous inquiry. For example, an inquiry into objections to a supplementary proposal to build an interchange on a motorway, the line of which has already been fixed after a previous inquiry, does not provide any kind of opportunity for the question of the line of the motorway to be re-opened. Any representations made in writing in such regard should nevertheless be accepted and attached to the Inspector’s report. Paragraph 6.22 below deals with this point in relation to the limits of evidence at inquiries into CPOs.
Government Policies and Methodologies, Design Standards, Economic Assumptions and Forecasts of Traffic Growth
6.2 The merits and foundations of policies, methodologies, design standards, economic assumptions and forecasts of traffic growth adopted by the Government are not matters for argument at inquiries. Any arguments about them must take place at national level. This is clear from a statement in the House of Lords on 25 February 1976 (Appendix A to these Notes) and the judgement of Lord Diplock in the case of Bushell and Another v Secretary of State Footnote 4 in the Lords on 7 February 1980 (Appendix B). The position has not been changed by any later policy or judgement.
6.3 In general terms the policy issues which are not matters for debate at inquiries are:
- The allocation of resources to each of the different transport modes.
- The combination of investment, subsidy, taxation and regulation by means of which the Government seeks to create the most efficient transport system.
- The general assumptions that Government makes about the availability and price of fuels and other economic factors which influence traffic growth.
- The objectives of the Government Road Programme.
- The general methodologies and the adoption of design standards used in the preparation of schemes and orders - as opposed to their application to particular schemes and orders.
6.4 A statement about the relevant Government policies is usually included with the other documentation produced by the Department for Transport or the National Assembly for Wales prior to the opening of an inquiry into an Order published by the Secretary of State / NAW. Representatives of the Government at an inquiry are expected to be able to explain the relevant policies when deemed necessary by the Inspector. They are not required to justify or defend them.
6.5 Objectors may express disagreement with Government policy but there is little point in permitting such disagreement to be pursued in depth. The Inspector’s duty is confined to noting the objection and seeing that it does not take up too much inquiry time or distract attention from the main issues. If an objector is determined to pursue objections to general policy beyond reasonable limits he should be advised to submit his views in writing, either to the Inspector, who will enclose the document with his report, or directly to the Secretary of State / NAW.
6.6 Inspectors have to distinguish between those objections which challenge Government policy and those which question the need for the specific proposal. Argument as to whether or not a particular proposal conforms with, or is needed for the implementation of, Government policy is a matter for the inquiry and should be given careful attention by the Inspector.
6.7 The Inspector should ensure that objectors and others are aware of the distinction between the adoption of basic methodology and design standards and their application. The fact that arguments concerning the methodologies and design standards adopted by the Government are out of place at an inquiry does not imply that their application to any particular proposal is immune from being thoroughly tested. Thus, whilst Government or local highway authority witnesses should not be expected to defend or justify national forecasts and general design standards, they are expected to be able to justify their application to the case at issue and to justify their traffic predictions and assignments.
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.
Compulsory Purchase Orders for Roads Schemes
6.22 Particular care is required in setting the limits for evidence at inquiries into Compulsory Purchase Orders as follows:
Line Order Made
6.23 If a line order has already been made and a statutory objector to a consequent CPO wishes to raise or repeat an objection to the line fixed for the road, the Secretary of State / NAW, in accordance with Section 258 and Schedule 20 of the Highways Act 1980, has the power to disregard that objection. This power is not specifically extended by the Act to the Inspector holding the CPO Inquiry, but this does not mean that the Inspector should therefore listen to arguments and evidence which strictly relate to the order already made. The Inspector should instead ensure that what he or she hears is strictly relevant to the order before him or her, and that the scope of the inquiry is not widened to become a re-hearing of the cases of the earlier line order inquiry. If anyone is determined to make submissions or present such evidence, he or she should be invited to do so in the form of a written submission, which the Inspector can attach to the report. If exceptionally the Inspector decides to exercise discretion and hear the evidence, he or she should explain the reasons so that no one is under any misunderstanding as to where the Inspector stands on the matter.
Planning Permission Granted
6.24 If a local authority has already granted planning permission for the construction of a road, the authority might argue that the need for the road is not at issue and should not be debated at the CPO inquiry. Such an argument cannot be entertained however, because Sections 239 and 240 of the Highways Act 1980 merely give to highway authorities the power to acquire compulsorily land which is required for the relevant purposes. The granting of planning permission for such construction means no more than that the local planning authority regards the road as an acceptable use of the land. The local planning authority may not have considered the need for the road, or indeed the merits of alternative routes however, even if they have been, this would not rule out objection on these grounds. Where the proposed road has been included in a Local Plan or Unitary Development Plan and has been the subject of a planning inquiry, the situation is different and is explained below.
Planning Permission Granted after Local Plan Approval
6.25 Different considerations might apply to a local authority proposal for which planning permission had been granted after the precise route of the proposed road had been included in an adopted Local Plan or Unitary Development Plan and the plan had not been successfully challenged in the Courts. Guidance on roads in the development plan context in England is in DoE Planning Policy Guidance 12, December 1999 Edition, Chapter 5, and in Wales in Unitary Development Plans Wales (2001). The aim is to ensure that local road proposals are scrutinised and integrated with the land use planning system through development plan procedures. These provide the means to examine the need for the road and if appropriate to settle its detailed alignment. An Inspector holding an inquiry into a CPO for a local authority highway proposal may therefore wish to consider whether:
- The precise route of the road has been included in an adopted Local Plan or Unitary Development Plan.
- The proposal received wide publicity during the consultation period of the plan and the deposit stage when objections to the plan could have been made.
- Any objections to the proposal were considered at inquiry into the plan and the precise route adopted only after full consideration of the Inspector’s report.
- Planning permission for the road precisely on the line in the plan was granted after the adoption of the plan.
6.26 If all of these stages have been undertaken and completed, the requirements of natural justice regarding a hearing of the issues concerning the need for, and route of, the road should have been satisfied and the issues should not be reopened at the inquiry into the CPO (or SRO). On the other hand, if the above stages have been completed but instead of a precise route the plan defines only the land to be safeguarded for the road, there would be scope for objections to the line and scope for the promotion of alternatives, but the need for the road should not be an issue.
Objections on Grounds of Hardship
6.27 If anyone wishes to object to a CPO on the grounds of hardship and/or inadequate compensation (as distinct from land use), it should be remembered that whilst hardship which cannot be met by compensation is always a relevant consideration, the Acquisition of Land Act 1981 (Schedule 1 Paragraph 4(5)) provides that the Secretary of State or National Assembly for Wales may disregard objections which relate to matters which can be dealt with by the tribunal (the Lands Tribunal) by whom the compensation is assessed. Since the assessment of compensation is not a matter for the Secretary of State / NAW, the Inspector should neither hear evidence about the calculation of compensation nor seek the disclosure of expected levels of compensation. Authorities are nevertheless normally expected to be able to give the estimated costs of a scheme as a whole.
Accommodation Works
6.28 Anyone affected may put to the Inspector the nature and extent of the accommodation works which the affected person would expect to be carried out if a road proposal were to be implemented. He or she should be allowed to do so because what is said could have a bearing on whether what is proposed should proceed, with or without modification. However, the extent of the accommodation works is one of the factors taken into account in the calculation of the compensation payable when a proposal is approved, but the precise details of the accommodation works are matters for the Highways Agency and the landowner concerned and should not therefore be included in the Inspector’s conclusions or recommendations. The Inspector should take care to avoid conclusions and recommendations in his or her report which would appear to usurp the functions of the Lands Tribunal.
Alternative Route
6.29 If an objector to a CPO wishes to propose an alternative route to the one which is the subject of the CPO, and the route in question has not already been settled by the making (or confirming) of a previous order or a grant of planning permission following the inclusion of the precise route in an adopted Local Plan or Unitary Development Plan (sub-paragraph 6.25 above), the provisions of Section 258(2) of the Highways Act 1980 apply (see paragraphs 6.17- 6.21 above).
Restriction as to Modification
6.30 Finally, it should be noted that whilst a CPO can be modified by the deletion of part of the land it covers, it cannot be modified to authorise the purchase of further land unless all persons interested consent (see Schedule 1, Paragraph 5 of the Acquisition of Land Act 1981 as to Secretary of State / NAW orders and Section 14 as to local authority orders). If it is agreed at the inquiry that land should be added to the CPO, the written agreement of all interested persons is received by the Inspector and should be enclosed with the Inspector’s report.
Stopping Up Orders under the Town and Country Planning Act 1990, Section 247
6.31 Section 247 of the Town and Country Planning Act (s247) provides the power for the Secretary of State / NAW / relevant London Borough to stop up or divert a highway where they are satisfied that this is necessary to provide for development. The power is exercised on a discretionary basis. Stopping up or diversion does not follow automatically as a result of an approved development proposal.
6.32 In reaching a view about whether or not to recommend confirmation of a s247 order, the development proposal must first have been granted planning permission under Part III of the 1990 Planning Act. In addition, the proposed development must cause obstruction in the highway. These are straightforward, factual considerations.
6.33 Less straightforward is the need to weigh the disadvantages, or loss likely to arise, as a result of the stopping up or diversion, either to members of the public generally, or to persons whose properties adjoin, or are near, the existing highway, against the advantages to be conferred by the proposed order. This assessment may require that the highway and/or traffic matters considered at the planning permission stage by the authority are subject to further examination as part of the consideration of the order, along with the relevant matters raised in the objection to the order under the provisions of s252 but not raised at the planning permission stage.
6.34 There may be some overlap between the considerations taken into account at the planning permission stage and in deciding whether or not to confirm a s247 order. Though the planning merits of an approved scheme cannot be reconsidered, an Inspector cannot automatically pre-empt an opportunity for other objectors to raise points about the highway, traffic or economic implications, even though these may have been considered in general terms at the planning permission stage. This approach arises as a consequence of the Vasiliou judgement Footnote 5.
6.35 Just as the Secretary of State’s/NAW's power to confirm a s247 order is exercised on a discretionary basis having regard to the particular circumstances, the Inspector also has the discretion to allow the presentation of evidence directed to the particular circumstances, even though this may have been considered by the authority at the planning permission stage. Thorough preparation by the Inspector, based on the papers available prior to the inquiry, might not reveal the full extent of the particular concerns of those affected directly or indirectly by the proposed closure. The full extent of these concerns may become clear only at the inquiry.
6.36 Thus it is best in appropriate circumstances to hear again some evidence previously considered by the authority. At the inquiry the Inspector should explain that the evidence may already have been taken into account when the authority decided to grant planning permission. Limited weight might be attached to this evidence when reaching a balanced view about the disadvantages of the s247 order as against the probable benefits to the community of enabling the approved development to be provided.
6.37 There are no procedure rules for inquiries under s247, but an Inspector should use the powers vested in the role and be mindful for this type of case that it is eventually for the Secretary of State / NAW / relevant London Borough to determine what might or might not be relevant in considering a s247 order. If the planning authority object to the acceptance of specific evidence already considered at the planning application stage, a valid response would be that it is for the Secretary of State / NAW to decide what evidence is material and what weight should be given to it.
6.38 In a s247 case the Inspector should include in his or her opening statement the criteria for an order. The criteria should also be included in the conclusions to the report. Therefore the opening statement should include remarks to the effect that the Inspector will need to be satisfied as to:
Whether it is necessary to stop up or divert the highway in question to allow development to be carried out in accordance with the planningpermission already granted but not implemented; and whether the disadvantages or loss likely to arise as a result of the stopping up or diversion, either to members of the public generally, or to persons whose properties adjoin, or are near the existing highway, outweigh the advantages to be conferred by the proposed order.
Local Authority Orders
6.39 Considerations similar to those which apply to orders proposed by the Secretary of State / NAW also apply to local authority orders. In the latter case however, the emphasis is likely to be on local factors rather than on the implementation of national policies. In practice, local highway authorities tend to follow central government advice and standards although they are under no obligation to do so. Occasionally, Inspectors may find that a local highway authority has departed from the national standards or has not adopted the latest of these. In such cases it will be for the local highway authority to justify its standards and the consequences for land acquisition taking account of the criteria of paragraph 2.3 above.
4, [1980] 2 All ER 608
5, Vasiliou v Secretary of State for Transport and another, [1991] 2 All ER 77, 61 P&CR 507, [1991] 1 PLR 39, [1991] JPL 858.
Revised November 2004
