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Modified: 22-May-2008

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

7. The Inquiry

Programming

7.1 For the larger inquiries a Programme Officer will be appointed and it will be his or her responsibility, under the guidance of the Inspector, to draw up a provisional programme for the inquiry. If a pre-inquiry meeting has been arranged the Programme Officer will normally be in attendance to assist with arrangements and the opportunity should be taken to introduce him or her to those present and to explain his or her role. The parties should be told that it is their responsibility to keep in touch with the Programme Officer about the inquiry programme.

7.2 As the inquiry proceeds the Programme Officer should maintain a more detailed day-by-day and week-by-week rolling programme in consultation with the parties concerned and under the general direction of the Inspector. The Programme Officer may also be responsible for maintaining a library of inquiry documents, overseeing the numbering and recording of them, and arranging for their photocopying and distribution . See Notes for the Guidance of Programme Officers for Public Local Inquiries in PDF 158KB.

7.3 As a general rule public bodies either supporting or objecting to the proposals should be programmed to be heard before individual supporters or objectors, respectively, so that the latter know where such public bodies stand in relation to the proposals before they (the individuals) are called upon to present their own cases.

7.4 Most parties cannot spare the time to attend the whole of a long inquiry and many attend only during the presentation of the promoter’s and their own cases. Whilst there is no obligation on an Inspector to keep them informed, it is good practice to ask the Programme Officer to contact parties whose interests are likely to be seriously affected by evidence which might otherwise be given in their absence. The programme should always be displayed on an inquiry notice board and be accessible to the public at all times.

Objections not previously notified

7.5 Anyone objecting to the proposal who failed to give notice of their objection within the statutory period or anyone else who comes along wishing to make representations at the inquiry will normally be programmed to speak after the statutory objectors have been heard, provided they have something relevant and not unduly repetitive to say. Programmes will be kept under constant review to accommodate changes in circumstances.

7.6 However, some inquiries are specifically into objections which have been made within an advertised formal deposit period – that is, objections which have been “duly made”. In such cases, there may be no scope to hear representations from persons who did not lodge their objection before the close of the formal deposit period. Harbour Revision Orders fall into this category. At such inquiries the Inspector should not ask if anyone else (other then the listed persons who lodged “duly made” objections) wishes to speak at the inquiry. To do so would leave the Inspector at risk of being seen to be ignoring or going behind the advertised procedure.

7.7 It may be that someone has a relevant point but they did not include it in a “duly made” objection. If the promoter of the Order is represented at the inquiry the Inspector may then ask if the promoter would like the further point(s) to be treated as “duly made”. If the response is “no” then the Inspector will have to turn the late representation away, saying that he/she can take no further action. If the promoter of the Order is not represented at the inquiry, the Inspector could say either that, although the objection is not “duly made” and therefore does not have to be taken into account, he/she will hear the point(s) and note them in the report and, in so far as he/she is capable of doing so; or say that whilst he/she cannot hear late objections, the person should write to the relevant Secretary of State setting out their views, with a request that they be taken into account in coming to the decision on the Order.

7.8 However, a complication arises where there are multiple Orders (e.g. Harbour Revision Order heard with a Transport and Works Act Order) where it is proper to hear late representations to one and not the other. The Inspector should use discretion in hearing such late objections and ask if the point is more relevant to one Order or the other. It will then be a matter for judgement on the day as to how to proceed and thereafter how to cover the point in his/her report.

The Inspector’s Arrival at the Inquiry

7.9 Having checked the physical arrangements (see 3.8 and 3.9 above), and laid out his or her papers and name board some 30 minutes before the inquiry is due to open, the Inspector should leave the hall so as to reduce the possibility of being approached by one of the parties in the absence of others. The Inspector should return in just sufficient time (usually 2-3 minutes before the opening) to take his or her seat and compose himself or herself, and to request others in the hall to take their seats, before opening the inquiry promptly at the appointed time.

Opening the Inquiry

7.10 The opening usually provides the first and probably the best opportunity the Inspector will have to set the tenor and pace of the inquiry. The opening announcement should be carefully prepared and tailored to suit the experience and expectations of the principal parties and public alike. The Inspector should be firm, brisk and businesslike in his or her delivery and should aim to create an atmosphere of confidence in the proceedings, particularly among those who are unfamiliar with inquiries and are fearful of the proposal being considered.

7.11 The Inspector’s tailored opening announcement should contain the following basic elements, expanded as necessary:

The Inspector's name and qualifications and those of any Assistant Inspector and/or Assessor (see Appendices F and G respectively).
Reference to the title of the scheme and/or order with which the inquiry is concerned.
That the Inspector is appointed to hold the inquiry by the First Secretary of State and /or the Secretary of State for Transport / NAW, or whichever other Secretary of State is listed on the Inspector’s appointment to hear the case.
Taking a note of those who wish to appear at the inquiry (see 7.12 below).
That the inquiry is necessary because objections to the scheme and/or order have been received and not withdrawn.
That within his or her discretion the Inspector will hear all relevant objections and representations (see 2.6 above).
That the Inspector will be submitting to the Secretary of State / NAW a report on the gist of the evidence and submissions heard at the inquiry, and the written representations received, together with his or her conclusions and recommendations.
That the Secretary of State / NAW will consider the Inspector's report together with all the written objections and representations received and will then issue a decision on the matter which is the subject of the inquiry.
That the Inspector cannot settle points of law but that he or she will include in the report the gist of any legal submissions made.
That Government policies, and the methodologies, design standards, economic assumptions and forecasts of traffic growth adopted by the Government are not for debate at the inquiry, but their application to the proposals may be relevant (see 6.2- 6.7 above).
That the Inspector cannot deal with the assessment of compensation which will become a matter for negotiation between parties or, if agreement cannot be reached, for determination by the Lands Tribunal - if the scheme and/or order is eventually made/confirmed.
An outline of the procedure to be adopted (see Appendices D and E), referring to any procedural matters settled at the pre-inquiry meeting (see 7.31 below). Also an outline of the numbering system to be adopted for inquiry documents (see Appendix K).
A statement to the effect that the Inspector has already made an unaccompanied inspection of the site and/or route of the proposal (insofar he or she has been able to without venturing on to private land), and that if he or she deems it necessary or if any party to the inquiry requires it, he or she will be making an inspection of the site or route during the course of the inquiry or at the end of the inquiry, accompanied by representatives of the promoters, the objectors and/or other interested parties.
A request to the promoters that they will ensure that all the relevant plans are on public display and that they will maintain a library during the course of the inquiry where at least one copy of every relevant inquiry document (including each proof of evidence, written statement and letter received) will be available for public scrutiny. (For larger inquiries these arrangements will have been made at the pre-inquiry meeting where the Programme Officer or a librarian will have been appointed with the responsibility of maintaining the inquiry library).
An explanation of the role of the Programme Officer, Assistant Inspector and the Assessor, if appointed, and a reminder that it is the responsibility of the parties to keep in touch with the Programme Officer.
A reference to the pre-inquiry meeting (or meetings) if held.
The position with regard to applications for costs at those inquiries at which it is appropriate to make an announcement - see paragraphs 7.140- 7.141 below.
A request to the promoting authority for their confirmation that all the appropriate statutory formalities have been observed.
A request that everyone present should sign the attendance register on each day that they attend (see 7.155 below).
Detail of any domestic matters such as breaks in the morning and afternoon, lunch, sitting times and any health and safety announcements.

7.12 Early in the proceedings the Inspector should take a note of those who wish to appear (i.e. Take Appearances). If a large number wish to do so, the Inspector should simply make a note of the main parties and invite the remainder to give their names, addresses and telephone numbers with an indication of their interest, to the Programme Officer and state that they will be identified to the inquiry when they appear.

7.13 Inquiries sessions are usually held on Tuesday to Friday. The usual sitting times are 10.00 to 1.00 and 2.00 to 5.00, with short breaks (10-15 minutes) mid-morning and mid-afternoon, as appropriate and convenient. An earlier finish on a Friday may be necessary (2.00) to allow participants to travel; in which case a longer morning session may be appropriate, perhaps with a slightly earlier start (9.30) and with no lunch break, although with a slightly longer mid-morning break (20–30 minutes). Variations from these timings are, of course, at the discretion of the Inspector, taking into account the circumstances of the inquiry and the availability of the participants. However, unduly extended sessions can prove tiring to all involved, and result in tiredness and a lack of concentration for the Inspector. For similar reasons, it is usual to programme long inquiries so that breaks of a week occur after 3 or 4 weeks sitting.

Conducting Inquiries in Wales

7.14 The Welsh Language Act 1993 established that in the conduct of public business and the administration of justice in Wales , the English and Welsh languages should be treated equally. In giving due consideration to this principle, when conducting inquiries in Wales Inspectors should make it clear in their opening statement that members of the public are welcome to speak in Welsh if they so wish.

7.15 Normally the relevant authorities will inform Inspectors where the Welsh language will predominate, and either a Welsh-speaking Inspector will be appointed or translation facilities will be provided. However the spirit of the Welsh Language Act should be applied to all inquiries in Wales , regardless of which language is used. A short statement to that effect is therefore a pre-requisite of all inquiries held in Wales . The form of words should be along the lines:

“Although this inquiry is to be conducted in English, participants are entitled to use Welsh if they so wish. It would be helpful if any participants who wish to speak in Welsh indicate that intention.”

Absence of Objectors or Other Parties

7.16 Apart from the promoters, who must of course attend to describe their proposals and explain their purpose, it is not necessary for any particular party to appear at the inquiry in order to make their views known since all written objections, and other representations, are taken into account with the Inspector’s report to the Secretary of State / NAW. The failure of certain of the objectors and/or other parties to appear at the inquiry is thus no reason for not proceeding with the inquiry.

7.17 In the rare instances in which there is only one objector, who neither appears nor is represented at the inquiry, the Inspector should immediately adjourn the inquiry for long enough to enable enquiries to be made about the objector’s whereabouts. The Programme Officer or a representative of the promoters should be instructed to find out by the quickest means possible whether the objector intends to appear, or to be represented. If so, arrangements should be made to await the objector's arrival and then to proceed with the inquiry in the usual way. If not, the promoters should be invited to state their case and to reply to the written objection. Any other people present who wish to be heard, should be heard and the inquiry should then be closed.

7.18 In the case of a CPO or similar inquiry where the Inspector is told that the sole outstanding objection has been withdrawn, the inquiry should still be opened in the usual way, bearing in mind that the inquiry is into the order itself and not merely the objection.

Order Making Authority not Actively Supporting an Order

7.19 This sometimes occurs where a stopping up order is proposed by the Secretary of State, for example under s247 of the Town & Country Planning Act 1990, following the grant of planning permission for a development proposal^{Footnote 6} . The local authority (planning or highway) might not be directly involved, leaving the applicant for the order to present the case and to deal with the objectors who appear.

7.20 There are no inquiry procedure rules for these cases and therefore no requirement for participants (promoters/applicant/supporter or objectors) to produce statements or evidence in advance. It might be apparent from the case file whether the local authority will appear, but this may not be obvious. The Inspector should not be surprised by the non-appearance of the authority at this type of inquiry, nor be surprised if the applicant for the order is not represented by a lawyer, or is represented by a professional person unfamiliar with the purpose of an inquiry or the procedure. As a safeguard, even more thorough preparation is called for by the Inspector.

The Inquiry

2.21 It is for the applicant/promoter to justify the order proposal. Where the local authority does not appear the applicant (or supporter) should be encouraged to take the lead and present the case for an order to be made by the Secretary of State. The Inspector may need to guide the applicant through the procedural matters. Objectors should be given the opportunity to question evidence contrary to their case, and vice versa.

7.22 Where the local authority appears in a nominal or neutral capacity, the authority should be invited to make an opening statement of explanation about its role in advance of the applicant’s case. Where there is no further participation by the authority a closing statement should not be permitted because evidence has not been given. If there is evidence which the authority wishes to rebut or refute, the authority should be permitted to do so and to make a closing statement, remembering that the applicant has the final right of reply.

7.23 In the highly unlikely situation where a stopping up order is opposed by the local authority (e.g. highway), the authority is normally treated as a principal objector with priority in the objectors’ order of appearances. Where a closing submission is made by such an authority, this will precede that of the promoter.

7.24 Again in the highly unlikely situation where the applicant or supporter or objector does not wish to give evidence, the Inspector should summarise their case as presented in writing (i.e. on the case file), clarify that the summary is satisfactory and invite questions from the other side. The Inspector may then need to ask questions of clarification from the applicant and objectors. A closing statement by the “relevant participants” would be appropriate.

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.

Evening Sessions

7.35 Public inquiries should normally be conducted during morning and afternoon sittings in the manner of most other public tribunals. Occasional evening sessions for a specific purpose can prove useful but they should be considered as exceptions. Although statutory objectors are entitled to appear at an inquiry, even they should be required to demonstrate the necessity of an evening session before one is granted to hear their case. If an evening session is held, it should be towards the end of the inquiry when all other opportunities for hearing an objection have been exhausted. The Programme Officer should collect in advance a list of those wishing to speak together with a brief outline of the points they wish to make. An evening session should be held in lieu of, not in addition to, one of the earlier sessions in the day.

Withdrawn Objections, Conditionally Withdrawn Objections and Counter Objections

7.36 It is not the job of the Inspector to include information in his or her report to the Secretary of State / NAW which is peripheral or irrelevant to the issues in dispute. For example, if an objection is withdrawn before an inquiry opens or during the course of the inquiry, then it would be sufficient to report the fact that it was withdrawn. Usually, no further probing or questioning should be allowed by the parties, neither should the Inspector seek to reintroduce matters covered in the withdrawn objections. However, exceptions to this general rule may be appropriate where the withdrawn objection touched upon issues central to the consideration of the scheme, or raised a matter of national importance, but where the objector felt unable to pursue the objections because he / she was unavailable or unwilling to appear at the inquiry. Please refer to paragraphs 7.87 and 7.88 for guidance on the introduction of new evidence.

7.37 Participants may state at the inquiry that they would be willing to withdraw their objection if particular provisions were made in (say) a Works Agreement. The Inspector may agree with this and recommend confirmation of the Orders. However, if the objection is not formally withdrawn this can leave the Secretary of State / NAW with a problem. The difficulty arises from the fact that that if the Secretary of State wishes to confirm an Order, and there is an outstanding objection from a statutory undertaker, the Order may be subject to Special Parliamentary Procedure, with complex and time-consuming consequences. It is therefore important that Inspectors should obtain all possible information about such objections. This may, exceptionally, justify adjourning the inquiry for a short period whilst the statutory undertaker is contacted, so that a full explanation of the objection and its consequences may be sought. Where this situation arises during TWA cases, Inspectors should follow the advice provided in 7.33 above.

7.38 Whether or not the matter is resolved at the inquiry, the Inspector must deal conclusively with all objections unless the objector has given a written statement withdrawing the objection unconditionally. Objections should not be considered to be withdrawn until the inspector receives written confirmation. The recommendation in the Inspector’s report should not be based on the assumption that that any objection will be withdrawn. The substance of all outstanding objections must be covered explicitly in the Inspector’s report and conclusions.

7.39 If, after investigation, there is an outstanding ‘holding’ or ’technical’ objection by a statutory undertaker, the Inspector’s report should state clearly how much weight should be attached to the objection and why, making explicit whether the land involved is crucial to the scheme. The report can then take this conclusion into account in the final recommendation.

7.40 There may also be counter-objectors who, whilst supporting the scheme as originally proposed, would object to the provisions set out in any proposed agreement or modification which would satisfy the original objector. It may be difficult to gather evidence on this point, particularly where the suggestion of an agreement or modification only arises during the course of an inquiry, and the supporters of the scheme may be unaware of the potential implications if they are not in attendance. However, the Inspector should, as far as is reasonably practical, ensure that no-one’s interests would be prejudiced by any suggested agreement or modification. If there is a potential conflict of interests, this should be taken into account in the conclusions section of the report and brought to the attention of the Secretary of State / NAW. See also paragraphs 7.64- 7.65 below.

The Human Rights Act

7.41 Section 6(1) of the Human Rights Act 1998 (HRA) makes it unlawful for the decision-maker to act in a way which is incompatible with the European Convention on Human Rights. That is, the decision-maker should take into account the possible effect of a scheme on the human rights of individuals likely to be concerned. The Inspector must therefore take note of any claimed infringements of human rights as legal submissions (see paragraphs 7.25-29 above) and report these to the Secretary of State / NAW. The Inspector also has a duty to raise human rights issues if they have not been brought to his/her attention by the participants at the inquiry if he/she considers there to be a real risk of a violation of human rights. It should be borne in mind that potential victims might not be directly involved in the inquiry, or even participating as interested parties, as they may not have expressed an interest or may be unaware of the potential impacts.

7.42 The Convention rights, which are set out in Schedule 1 to the HRA, may be raised in 2 contexts. First, they may be invoked in association with a case. Two of the Convention rights most likely to be relevant are art 8 (Right to respect for private and family life) and art 1 of the First Protocol (Protection of property). Persons invoking their human rights must establish the article under which the alleged interference would take place and show that they pass the victim test (i.e. they would be actually and directly affected). The case law of the European Court of Human Rights (ECtHR) suggests that the courts would find a violation only in cases where the interference is extreme

7.43 The second context in which the Convention rights might be invoked is that of the inquiry procedure. Article 6 provides for a fair hearing:

6(1) “In the determination of his civil rights and obligations.....everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law......"

7.44 The following rights derived from art 6 by the ECtHR are the most likely to be raised in relation to the conduct of the proceedings. They cover not only situations for which the Inspector is directly responsible, but also possible defects in the preceding procedural stages which it may nevertheless be possible for the Inspector to redress:

(1) the right of access to the appeal proceedings including the right to effective access; barriers which are difficult or impossible to surmount must not be imposed. There could be occasions when the rights of parties (including third parties) under art 6 were infringed by time limits which in the circumstances were unreasonable; or by an unsuitably located venue making it extremely difficult for a party to attend.

(2) the principle of “equality of arms” so that every party “shall have a reasonable opportunity of presenting his case to the court under conditions which do not place him at substantial disadvantage vis-à-vis his opponent”. Examples of a breach of this principle would be different treatment as regards access to documents or permission to cross-examine.

(3) the right to a hearing within a reasonable time including the right to a decision within a reasonable time. “Reasonable” may be longer for a more complex case, shorter for a simple one. Generally, the Strasbourg case law indicates a period measured in years rather than weeks, but Inspectors should bear this right in mind when considering the possibility of long adjournments or delays in reporting for whatever reason.

( 4) the right to an independent and impartial tribunal might be invoked in allegations of bias e.g. in the appointment – or change in the appointment - of the Inspector ; or in the way the Inspector treats the parties. There must not only be no bias, but no appearance of bias

7.45 It is also possible for the procedural framework established by statute to be challenged. This is much less likely following the House of Lords judgement on Alconbury^{Footnote 7} This dealt with 3 separate appeals including one relating to a road improvement scheme at the interchange between the M4 and A34 at Newbury, promoted by the Highways Agency and which would involve taking the respondent’s land.

7.46 If there is a challenge to the legitimacy of the procedure whereby the Secretary of State makes a decision following an inquiry, the Inspector might refer to Alconbury, drawing on the following points (references are to the paragraphs of the judgment):

The House of Lords found that the SoS procedure is fair and complies with the European Convention on Human Rights.
The procedure must be taken as a whole, including the inquiry, the SoS’s decision and the right to appeal to the High Court on a point of law. It is not necessary for every stage of the procedure to comply with art 6. (152ff.)
The Inspector is impartial; the inquiry procedure rules and other safeguards (protection from improper influence, Franks principles) support that impartiality. (24,114)
Except in the requirement to apply the policies of the SoS, the Inspector is also independent (unconnected with the parties and not subject to their influence or control). (108)
On matters of policy (merits), the SoS is responsible to Parliament, not the Courts. This is essential to democracy.(60,99,129)
Decision-making by the SoS is subject to important safeguards (including Civil Service and Ministerial Codes, inquiry procedure rules, taking the inquiry into account, must not be arbitrary, decision must be reasoned, no personal or financial interest) (170, 142)
There is nothing wrong in the Secretary of State seeking or taking into account advice which he may obtain from within his department, where that advice is sought to clarify or elucidate law or policy. Nor is there anything wrong with free communication within the Department in preparing that advice. (170, 126)
The SoS is responsible to the High Court on matters of law, which include rationality of the decision and fairness of the process.(62)
Art 6 is not breached by the Government having an interest – only if it is wrongly taken into account, in which case the remedy of judicial review is available. (55, 64, 130, 197)

7.47 If the Inspector is nevertheless asked to adjourn the inquiry on the grounds that the inquiry procedure is incompatible with human rights, he/she should not accede to an adjournment unless there are very strong reasons for doing so. The Inspector has been appointed to hold the inquiry, and in the absence of leave having been granted for judicial review, he or she should continue. An adjournment is only likely to be appropriate if a party indicates a firm intention to apply for judicial review. In that case, the adjournment should be short (normally not more than 4 weeks) and it should be made clear that the inquiry will be resumed unless an application has been made during the adjournment. For as long as the matter is before the court, it will be necessary for the adjournment to be extended.

The Parties

7.48 Apart from the promoters, there may be many different parties presenting a variety of different interests and viewpoints at an inquiry. Such parties will normally fall into one or other of the following three basic categories:

Those who support the proposal.
Those who object to it, including those who, in doing so, put forward one or more alternative proposals which they consider better than the one which is the subject of the inquiry.
Those, known as counter-objectors, who oppose such alternative proposals.

The Normal Sequence of Events

7.49 The normal sequence for any case presented by an advocate with a single witness consists of:

An opening statement by the advocate.
The evidence-in-chief of the witness (which normally includes the reading of a proof or summary of evidence).
The cross-examination of the witness by each of the parties entitled so to do, and others at the discretion of the Inspector.
Re-examination of the witness by the advocate.
The Inspector’s questions, if any, of the witness
A closing submission by the advocate.

7.50 When more than one witness is called, each is taken through the same sequence as the first witness (i.e. stages ii – v above) before the advocate makes his closing submission. The closing submission may well not be made until other parties' cases have been heard.

An Unrepresented Person

7.51 When an unrepresented person appears he or she usually acts as both advocate and witness, but the same principles apply. To avoid confusion between his or her two roles the person should be asked to give evidence and answer questions from the witness table. If the person is an objector the opening and closing statements should be made from the objectors’ table and any cross-examination of the promoter’s witnesses should be conducted from that position. If the person merely wants to make a statement and is not offering himself or herself for cross-examination, he or she should be asked to submit it in writing.

Order of Presentation of Cases

7.52 So that everyone with an interest in the matter can be fully apprised of what is involved right from the start, the case for the promoters should be presented first, and whenever possible this should be directly followed by the cases of those who support it. The cases for the objectors should follow, and these in turn should be followed by those of the counter-objectors. The promoters have the right to a final reply. The full sequence of events for simpler and more complex inquiries is set out in Appendices D and E to these notes. The procedure for more complex inquiries is to be used where there are a significant number of witnesses for the promoter and/or when there is a significant number of supporters or objectors who wish to be heard at the inquiry. Discussion on the most appropriate procedure to follow could be allowed at the PIM and Inspectors may ask parties if they intend to attend the whole of the inquiry to inform this decision. If it appears likely that unrepresented parties wish to attend throughout the inquiry it may be helpful to opt for the simple procedure. The following paragraphs contain guidance on various aspects of the giving and examination of evidence.

The Promoter’s Case

7.53 The first stage of the inquiry is the presentation of the promoter’s case, usually including cross-examination of the witnesses by objectors. Where there is a very large number of objectors with different interests (for example, covering different sections of the route of a road), who cannot reasonably be expected to attend the inquiry for long periods, it may be preferable to allow each objector an opportunity to put questions of clarification to the promoter's witnesses but defer cross-examination. The objector's cross-examination would then take place when the objector returns to the inquiry to present his or her case. This approach may be convenient for objectors but has the disadvantage that the objectors will not hear other objectors' cross-examinations, so making repetition likely and adding to inquiry time.

Questions of Clarification

7.54 Sometimes there is a fine line between questions of clarification and the cross-examination of witnesses. Usually a question of clarification should be addressed to a specific paragraph in a proof or summary of evidence - if it is not, then the question is probably more appropriate to the objector’s main case and should be pursued through cross examination.

7.55 Sometimes the number of objectors who wish to ask questions of clarification makes the practice unmanageable. If this seems likely the Inspector should consider adopting other means to assist objectors in understanding the evidence. From his pre-reading of the proofs of evidence the Inspector could compile his or her own lists of questions and introduce these as an inquiry document (see 7.119 below). The Inspector could adopt an inquisitorial role during the giving of the evidence-in-chief. The Inspector should always encourage objectors and the promoting authority to confer outside the inquiry on matters which are not of general interestto the inquiry.

Supporters

7.56 Supporters do not have the right to cross-examine the promoter’s witnesses, though questions of clarification may sometimes be allowed. Similarly the promoter does not have the right to cross-examine supporters except for clarification. However, such matters are usually best dealt with outside the inquiry, especially when a common interest is shared. Supporters may cross-examine objectors (see 7.62 below).

Objectors’ Cross Examination of Supporters

7.57 Objectors may cross-examine supporters, but normally should do so only on matters on which the supporters have given evidence or made submissions, and should not be permitted to question them on matters to which they have made no reference. This does not apply to such supporters as local authorities or statutory bodies, because the answers to certain questions, which objectors might require to enable them to present their cases properly, might be obtainable only from such authorities and might not be referred to when they present their cases. The Inspector should use his or her discretion in this regard and should ensure that objectors are not denied the opportunity to ask questions to which they require the answers in order to complete their cases (unless such questions are patently not relevant to the subject of the inquiry).

7.58 Supporters represented by an advocate may be re-examined by their advocate following cross-examination by objectors, and the advocate has the right of a final reply. Unrepresented individual supporters should be given the chance to have a final word after they have been cross-examined, but they should be told that it is not an opportunity to introduce new evidence.

Statutory and Non-Statutory Objectors

7.59 Statutory Objectors in the context of Highway Inquiries are those objectors who have a vested interest in land or property which would be affected by the proposals. They should normally appear next and have the right to cross-examine the promoter’s witnesses when called upon to present their cases, and before they present their own evidence. They should also have an opportunity to cross-examine after the presentation of any rebuttal evidence by the promoter.

7.60 Non-statutory objectors, i.e. those people who have objected within the time for objections – but who are not statutory objectors, normally follow and should, at the discretion of the Inspector, be given the same opportunity to question the promoter’s witnesses as statutory objectors.

7.61 Questioning of the promoter’s witnesses by objectors should not go beyond the substance of the matters contained in the evidence and submissions they have presented where this is relevant to the subject of the inquiry. Paragraph 7.98 below deals with the questioning of Government witnesses as to the merits of Government policy.

7.62 The objectors are liable to be cross-examined in turn, not only by the promoter and supporters, but also by counter-objectors to any alternative proposals they (the objectors) might put forward. Such questioning should be confined to the matters on which the objectors have given evidence or have made submissions, and should not normally be permitted to extend to matters to which they have made no reference. Both promoter’s and objectors’ witnesses may be re-examined by their advocates after cross-examination.

Response by the Promoter

7. 63 The promoter may reply to the various objectors’ cases in the final reply at the end of the inquiry, or may make a response to each individual objector at the time that objector’s case is being heard. Any evidence the promoter may wish to call to rebut that given by an objector should be called at this stage. Such evidence is liable to be cross-examined in the usual way and when this process is completed the objector has a right to a final reply.

Counter-Objectors

7.64 Counter-objectors should normally appear after the objectors whose alternative proposal they are opposing, but they will usually question the objectors during the presentation of the latter’s cases. Counter-objectors may also question the promoter, although their questions to them should not be permitted to be used as a means of eliciting support for their cases. Counter-objectors are open to questioning by those to whom they are opposed, and as usual have the right of re-examination and a final reply.

7.65 Some counter-objectors may be both objectors in their own right and counter-objectors to other objectors’ alternative proposals - and so may appear twice in the inquiry, firstly as objectors and secondly as counter-objectors. If such parties appear only once, the interplay of cross-examination becomes a little more complicated but still follows the same general pattern.

Strict Adherence not Always Possible

7.66 In practice it may not be possible to adhere strictly to the sequence of events outlined in Appendices D and E because not all parties can make themselves available at any given time, but it is nearly always possible to follow the general pattern.

Action by the Inspector before Right of Final Reply is Exercised

7.67 Subject to the comments in paragraphs 7.6- 7.8 above, before the promoter makes his final reply the Inspector should ask if there is anyone who wishes to be heard. If there is, the person should be accommodated, provided he or she genuinely has something relevant to say which is not merely repetitive or obstructive. The Inspector should also check that, in either specific or general evidence, the promoter has responded to all of the written representations (see 7.107 and 7.108 below).

7.68 The right to reply is limited to responding to the objections made. No new evidence may be given. It is not an opportunity for the promoter to repeat all the submissions and any attempt at such repetition should be stopped. If the promoter has already responded to individual objectors when the latter were presenting their cases (see 7.63 above), there is no need for him to do so again. If objectors have left the inquiry, a short final reply concerned with the objections as a whole is probably all that is necessary.

Closing Actions by the Inspector

7.69 After hearing the promoter’s reply, the Inspector should satisfy himself or herself that there is no unfinished business and that all the inquiry documents, including the attendance list(s) have been handed in. The Inspector should then make arrangements for the accompanied site inspection (if one is to be carried out) and, finally, should declare the inquiry closed.

7.70 The effect of declaring the inquiry closed is that the Inspector can neither hear nor accept any further submissions or evidence, either verbal or written. Anyone who wishes to make further representations should be invited to put them in writing and send them to the Secretary of State / NAW. It follows that no evidence or submissions can be accepted during a post-inquiry site inspection and nothing the Inspector then hears, can be included in his report(but see Part 8 below ).

7.71 Parties to the inquiry might ask when they can expect a decision from the Secretary of State / NAW. Once the report is written and submitted, the matter is out of the hands of both the Inspector and The Planning Inspectorate, and therefore it is impossible to give any indication of the likely decision date. An Inspector should not even attempt to estimate the date on which the Secretary of State’s / NAW’s decision will be issued.

7.72 However, the Inspector may give an indication of when he/she will be submitting his/her report. The Inspector should give his/her estimate of the week commencing date in which it is expected that the report will be sent from the Planning Inspectorate to the Secretary of State / NAW. The Inspector should take into account the reporting time allocated/required, work programmes and any other commitments. In addition, the Inspector must include a three week period to allow for the necessary administrative actions within the Planning Inspectorate. Taking account of all these factors the Inspector should be able to provide a reasonably reliable estimate of the submission date using the phrase week commencing.

7.73 For long and complex inquiries, the Inspector may announce a provisional date. An estimated date can be obtained by the parties from the Planning Inspectorate support group upon request.

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 Inspector’s consideration of its relevance and admissibility as evidence, on which others will be allowed to comment. In general, oral evidence and the Inspector’s 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.

Cross Examination

Right of Cross Examination

7.94 The Inquiries Procedure Rules give only the main parties (the promoter and the statutory objectors) the right to cross-examine persons giving evidence at an inquiry. The Inspector should normally permit non-statutory parties to question witnesses similarly. In either case, questions should be appropriate, relevant and not unduly repetitive.

Restriction of Communication between Advocate and Witnesses

7.95 An advocate must not, except with the consent of representatives for the opposing side or of the Inspector, communicate directly or indirectly about a case with any witness, whether or not the witness is his lay client, once that witness has begun to give evidence until the evidence of that witness has been concluded. This means that, if an adjournment takes place (such as for lunch or overnight) after a witness has started to give evidence, that witness will not be able, without consent, to have contact about the case with his or her advocate. It is good practice to bear this in mind when deciding on the timing of adjournments. Sometimes it is best to break early rather than to start hearing evidence from a new witness whose evidence clearly could not be concluded before the next adjournment; or it is sensible to continue for a little longer than normal before the next adjournment in order to complete the evidence of a particular witness.

Restriction on Supporters

7.96 The Inquiries Procedure Rules, which entitle both the promoter and statutory objectors to cross-examine witnesses, make no distinction between witnesses who support and those who oppose their respective cases. The Inspector should, nevertheless, limit the questioning of friendly witnesses to the elucidation of matters of fact where these are relevant (see 7.56 above); drawing out friendly opinion is not cross-examination. However the Inspector should take care to avoid inadvertently preventing anyone from cross-examining an otherwise friendly witness about some aspect of that witness’s case which might have an adverse effect upon the would-be questioner’s interests.

Avoidance of Cross Examination

7.97 A witness for the promoter or a public body appearing at an inquiry cannot avoid cross-examination on relevant matters within his or her knowledge or expertise by omitting any reference to them in his evidence. However, the witness may request that another witness more qualified to speak should be called or recalled to answer instead.

Intervention by the Inspector

7.98 The Inspector should be prepared to intervene, as required under the Rules, if he or she considers that the questioning of Government witnesses is beginning to stray into the area of the merits of Government policy, including adopted methodologies, design standards and nationally determined economic assumptions or forecasts of traffic growth. These are not matters for debate at local inquiries (see 6.3 above).

Cross-Examination to be Confined

7.99 The promoters, or any other public body appearing at an inquiry, must be prepared to make someone available to answer any relevant questions, and unrepresented members of the public should be granted considerable latitude in the way they go about questioning. However, the cross-examination of a witness should normally be confined to relevant questions on the matters on which that witness has given evidence. Cross-examination of members of the public who have given evidence to the inquiry by the promoters and statutory objectors should also be permitted. The Inspector should ensure that no cross-examination is carried out in such a way as to be intimidating or offensive.

7.100 The professional standing of a witness may be questioned but not his or her character, and a witness cannot be compelled to answer a question which would be incriminating. Indeed, the witness cannot be compelled to answer any question, but it would be a matter for comment if a witness declined to answer a valid or relevant question.

7.101 Inspectors should be aware that cross-examination might be related to a claim for costs, which will not be made until the end of the inquiry. Such cross-examination must therefore be heard even though it may be irrelevant to the merits of the case.

Refusal to Answer Questions

7.102 Witnesses may refuse to answer a question on the ground that the answer may incriminate them or their spouse; that is, they may be exposed to a criminal charge or some other kind of penalty or forfeiture. It is for the Inspector to determine, in the light of the circumstances, whether the witness has reasonable grounds for apprehension. It is the practice of the Courts to warn witnesses that they are not bound to answer a question if the answer would be incriminating, and it is essential that Inspectors follow this course.

Re-examination

7.103 The purpose of re-examining a witness is to enable the witness’s advocate to clarify points about the evidence already given and/or to seek to redress any unfavourable impression which arose as a result of the cross-examination. Advocates should not be permitted to ask their witnesses leading questions, that is, questions which suggest a particular answer.

7.104 New matter should not be introduced in re-examination, but if it is, it should be treated as being new evidence liable to further cross-examination.

Written Representations

As Inquiry Documents

7.105 Written representations concerning the subject matter of an inquiry (whether addressed to the Inspector, the Highway Authority or the Secretary of State / NAW), received prior to or during an inquiry, become inquiry documents. Such documents form part of the material to be taken into account by the Inspector and the decision maker (see 7.79 and 7.80 above).

Disregarding of Written Representations

7.106 All written representations must be taken into account by the Secretary of State / NAW unless they can be disregarded under such specific powers as Section 258 of the Highways Act 1980 (objections amounting to an objection to a made line order); Schedule 1 paragraph 19 of the same Act, relating to failing to comply with deadlines for alternative proposals; or Schedule 1, paragraph 4(5), of the Acquisition of Land Act 1981 (matters of compensation).

Availability of Written Representations

7.107 It follows that the existence of all written representations must be disclosed at the inquiry. Although there is no need for the Inspector or any party to read them out, it may sometimes be appropriate to give the gist in order that the promoting authority’s response may be understood by the public. A copy of each one must be made available for public scrutiny during the course of the inquiry. (see 7.80 above).

Response by Promoter

7.108 It is open to anyone to comment in writing or orally, at the Inspector’s discretion, upon such representations. The Inspector should make a point of ensuring that the promoter does not neglect to give any response on those matters raised in any written objections which have not been dealt with during the course of the inquiry. This is so that the decision maker may be apprised of each side of every argument (see 7.67 above).

Post Inquiry Correspondence

7.109 No letters or other written representations of any kind or any other form of documentation received by an Inspector after the close of an inquiry can be taken into account in composing the report; consequently, Inspectors should not encourage any party to submit them. It is for the Secretary of State or the NAW, not the Inspector, to consider post-inquiry representations. If any are received, the Inspector should forward them immediately to the Planning Inspectorate. This does not apply to documents exhibited at the inquiry and which, in exceptional circumstances, need to be sent on, or copied and then sent on, for the Inspector’s use after the inquiry has closed. However, no new matters must be enclosed and such documentation must be forwarded to the Planning Inspectorate.

7.110 If towards the end of the inquiry it becomes apparent that there is likely to be significant further evidence or documentation which the Inspector should take into account and it is not forthcoming at the inquiry, the proper course is to adjourn to a specified date, time and place, and receive that evidence in open session, giving the opportunity for cross-examination as appropriate before the inquiry is closed.

7.111 Inspectors should not encourage or agree to advocates forwarding copies of their closing addresses after the close of the inquiry since copies would have to be sent to other parties, which could then result in further exchanges and consequent delay in the reporting process.

Controlling the Proceedings

The Inspector’s Responsibilities

7.112 The purpose of a public inquiry is for the Inspector to gather all the relevant information to enable him or her to prepare a report to the Secretary of State / NAW. It is held in public so that the evidence can be properly and openly examined. However, a public inquiry is not a form of public meeting, and the Inspector should not allow it to become the occasion for anybody to come along and have a say about anything: that is, the inquiry is set up specifically for the benefit of the Inspector, the wider or personal interests of the public in general must not divert the purpose or scope of the inquiry.

7.113 The Inspector should be, and should be seen to be, in full control of the sequence of events. The Inspector should never sit back and let the inquiry run itself. The parties should not be left to take the lead; it is the Inspector who initiates each stage of the proceedings. The Inspector should not allow people to speak unless they are invited to do so. The Inspector should, nevertheless, allow the parties to present their cases in their own way, intervening only to prevent irregularities of procedure, undue repetition and irrelevancies, the risk of injustice or oral attacks on a person’s character, or to seek clarification of any point he or she has not understood. If the Inspector does have to intervene, he or she should do so with courtesy and tact, avoiding any appearance of officiousness. In seeking clarification of points the Inspector should also take care that he or she does not unduly interrupt the presentation of a case. Rather than intervene when someone is in full flow it is better to wait for a more suitable moment.

Leading Questions

7.114 The Inspector should not permit advocates to ask leading questions of their own witnesses on matters in dispute, except when a witness is hostile.

Unrepresented Parties

7.115 An Inspector should be prepared to assist any unrepresented parties who have chosen to conduct their own cases and are in difficulties, but without conveying the impression that the Inspector is siding with them. Unrepresented witnesses should be protected from stressful examination, and the Inspector should ensure that, at all times, they understand the questions put to them.

Repetitive Evidence

7.116 Whereas it is the responsibility of the Inspector to hear all relevant evidence, the Inspector should preclude the repetition of the same evidence, and hence avoid wasting inquiry time. If a point has already been made by one witness it serves no purpose to hear the same point made several more times – it does not make it more important the more times it is repeated. In which case, the Inspector should courteously intervene when he or she detects that evidence is being repeated, and say that he/she has already noted the point. Local residents or similar interest groups should be encouraged to band together and appoint a single spokesperson. If everyone in the group really does insist on saying something this could be restricted to saying that they agree with everything the spokesperson has said.

Aggressive Cross Examination

7.117 The Inspector should be sensitive to the status, competence and experience of all witnesses and may need to stop cross examination which goes beyond the bounds of accepted practice. Professional witnesses are expected to cope with persistent and sometimes aggressive questioning, but even these witnesses may become confused and give ill-conceived answers under pressure. If the Inspector believes this to be the case, the witness should be offered some protection and time to recover his or her composure.

Objection by Advocate to Nature or Wording of Questioning

7.118 Advocates sometimes object to the nature or wording of a question put to one of their witnesses in cross-examination, but if the question is relevant it cannot be ruled out. In such circumstances Inspectors should suggest that the question be re-phrased to remove or lessen the offence. The Inspector should be prepared to rephrase questions, especially those put by unrepresented persons or when the relevance of a question is obscure.

Questions by the Inspector

7.119 The Inspector should, as part of his preparation for the Inquiry, prepare a list of questions on matters which they know should be included in their report, bearing in mind either the criteria of the legislation under which the inquiry is being held, or in order to elucidate technical matters. It may be, of course, that these points are answered either in the evidence given in chief by the witness or they have come out in cross-examination. However, if there are still matters outstanding then the Inspector should take the opportunity to put his/her own questions should he/she require more information. The Inspector should do this as soon as possible at the Inquiry if he or she has noted a gap in the evidence submitted beforehand .

7.120 Questions by the Inspector should be couched in impartial terms; they should never appear in a guise of friendly, leading or aggressive cross-examination (see also 7.54 above). They should not embarrass the witness or expose the witness’s weaknesses. However, the witness should be required to answer the questions if they are within their particular area of expertise or interest.

7.121 Paragraph 7.49 above suggests that Inspector’s questions should be left until after the witness has been re-examined by the advocate. Alternatively, the Inspector may like to put his/her questions before re-examination, or allow the advocate the opportunity to re-examine the witness again after the Inspector’s questions. However, in the latter case, the Inspector should make sure that re-examination is restricted to those matters covered by the answers given to the Inspector’s own questions.

Qualified Privilege

7.122 Inquiries are occasions of qualified privilege, so that statements made in good faith and without malice are protected against proceedings for defamation. A challenge to the professional competence of a witness may be appropriate. There is an assumption that anyone appearing at an inquiry does so to help the inquiry and is thus discharging a public duty. On the other hand the Inspector should intervene if anyone appears to be trying to take advantage of his position at the inquiry to say something which might otherwise result in the possibility of an action for slander. The Inspector should state that, if anyone makes a statement at a public inquiry without believing it to be true and with the intention of inflicting injury on another person, the defence of qualified privilege would probably not be available in defamation proceedings brought by that person. Libellous or slanderous comments should not be included in the Inspector’s report – even as direct quotations.

Disrupted Inquiries

7.123 Some major inquiries are quite rumbustious. This is to be expected when people feel that something they hold dear is at stake. In those circumstances they may become vociferous. Such behaviour cannot be tolerated at a public inquiry if it is going to disrupt the proceedings and result in people who wish to be heard feeling afraid or inhibited. Therefore the Inspector must maintain control of the inquiry so that it can proceed quietly and smoothly. Control of an inquiry when it has disruptive elements may not be easy; but the Inspector should always try to find out the causes of the apparent dissatisfaction. By dealing promptly and fairly with them and by explaining his or her own function, the Inspector should be able to gain the confidence of all parties.

7.124 If disruptive elements persist, they may have to be warned that in the interests of maintaining an orderly inquiry, they will be required to leave if they do not desist. Reference should be made to the relevant Rule enabling an Inspector to require a disruptive person to leave, for example, Rule 24(7) in the case of an inquiry covered by the Highways (Inquiries Procedure) Rules 1994. Even before such a provision was included in rules, the Court of Appeal confirmed that the Inspector has the power to eject a protester who is disrupting the inquiry. (Lovelock v Secretary of State for Transport (1979) ). The Inspector must say that he will take into account any written representation submitted by the excluded person before the close of the inquiry.

7.125 If the Inspector is unable to calm matters and a few minutes adjournment for cooling off are not effective, the Inspector should adjourn for a short time, or overnight, in order to make further arrangements. These will depend upon circumstances such as whether the police are already on call. The inquiry should not be continued in a state of disorder, and it may be necessary to ask the police to attend for the resumption. The Inspector will decide in consultation with the police what action will be taken. The police may suggest confining action to showing a presence; they may wish to address those present, or speak to individuals; or they may remove people if other methods are unsuccessful in restoring order. The Planning Inspectorate should be informed whenever the police have been called.

Round Table Sessions

7.126 For longer and more complex inquiries, for example where there are alternative proposals, it may be helpful for parts of the proceedings to be taken as a round-table session – along the lines of a hearing, with only the technical witnesses making contributions in response to a discussion led by the Inspector. Such sessions should only be used as a means of clarifying technical points – either to reach a common understanding of (say) traffic modelling techniques, or how other technical evidence has been prepared. It would probably not be an appropriate means of reconciling different approaches, but only of coming to an understanding of why there are apparently different views being deduced from the same or similar evidence: for example, where these may be the result of different or incompatible technical interpretations. It is not usual for advocates to attend at such sessions, as cross-examination would not be appropriate. It might be helpful if the Programme Officer took notes of the points made, leaving the Inspector free to direct the discussions. A note of the round-table session should be quickly prepared (over night if possible) and published as an inquiry document. Opposing advocates could then make witnesses available for cross-examination on their evidence in full inquiry session on subsequent days. Round Table Sessions should be open for all to attend and observe.

Statements of Agreed Facts

7.127 The inquiries procedure rules for planning appeals require planning authorities and applicants to prepare and submit an agreed statement of common ground four weeks before the date fixed for the inquiry. There is no equivalent requirement in the procedure rules for highways inquiries. It is nonetheless helpful if parties agree factual information about the proposal and background environmental and other data outside the inquiry. The inclusion of this data in mutually agreed statements, probably as core documents of the inquiry, can result in shorter proofs of evidence and shorter inquiries.

7.128 How such agreement is reached will vary depending on the nature and complexity of the proposal and the matters at issue. Where there are only two or three major parties involved and the issues are fairly straightforward, the Inspector might simply encourage the parties at the pre-inquiry meeting to get together with a view to producing a statement of agreed facts. For major inquiries a more formal arrangement may be necessary, particularly where several parties are expected to bring evidence of a technical nature to the inquiry.

7.129 An approach which has proved useful is to set up ‘Joint Data Groups’ in advance of the inquiry opening. These are small working groups, on which all parties to the inquiry are represented, which would be set the task of assembling and agreeing baseline data relevant to a particular area of the inquiry, e.g. noise, traffic or ecology. In particularly complex cases it may also be appropriate to set up a Joint Working Party, chaired by an Inspector or an Assistant or Deputy Inspector, to co-ordinate and monitor the work of the individual Joint Data Groups. Inspectors considering setting up Joint Data Groups and/or a Joint Working Party are advised to contact the Planning Inspectorate for further advice.

Recording the Proceedings of an Inquiry

The Inspector’s Notes

7.130 Since the business of an inquiry is directed towards apprising the Inspector of the facts of the matter subject to the inquiry, the most important record of any inquiry is the set of notes the Inspector takes himself. These notes provide the Inspector with the basis for his or her report and, although the Inspector should never attempt to take down everything verbatim, the gist of what is said should be recorded.

7.131 An Inspector can create a good impression by both paying attention to whoever is speaking and running the inquiry efficiently while taking notes. Conversely the Inspector can create a poor impression if the inquiry is left to run itself while the Inspector busily scribbles notes with his or her head down.

7.132 The Inspector’s notes are his/her property. However they must be retained until at least two years have expired from the date of the publication of the decision. Circumstances can arise where a decision is challenged in the High Court, and there is some dispute as to what was said at the Inquiry, the Court may order that the Inspector’s notes are produced as evidence.

Transcripts

7.133 In England , a transcript service may be provided by the Highways Agency for motorway and trunk road inquiries which are expected to last for more than 16 sitting days. For other cases, transcripts may be allowed at the Inspector’s discretion. Transcripts are not normally provided in Wales .

7.134 Transcripts may be helpful to those who are not able to attend all the sessions of the inquiry. However, a transcript is no substitute for an Inspector’s own notes since, by their very nature, the latter highlight the salient points of what was said and contain the Inspector’s comprehension of the proceedings. Tape recordings have the disadvantage that it is not always possible to distinguish between different speakers with similar voices.

Unofficial Transcripts or Tape Recordings

7.135 Unofficial transcripts or tape recordings should be treated with caution and should not normally be allowed if any party objects. The Inspector should ensure that the use of tape recorders does not interrupt the smooth running of the inquiry or inhibit people from speaking freely. If recording is permitted the Inspector should make it clear that the tape will not be under his or her control and that it will not be relied upon in the preparation of the Inspector’s report.

Re-Opened Inquiries

New Evidence

7.136 The Secretary of State / NAW may cause an inquiry to be re-opened if it is deemed necessary to hear representations on new evidence which has come to light since the inquiry ended (see 9.2 below).

Scope

7.137 Before re-opening an inquiry the Inspector should study the material considerations carefully. The Secretary of State / NAW will not want the scope of the inquiry to go beyond the matters on which further representations have been sought. Re-opened inquiries should not be seen as a further opportunity of reintroducing matters heard at the original inquiry The Inspector should at the start of the inquiry make a statement to this effect so that there is no misunderstanding as to the purpose of the inquiry.

7.138 There is no point in hearing evidence and submissions on matters outside the specified scope of the re-opened inquiry, though some flexibility may be advisable. Anyone who is determined to reintroduce matters dealt with at the original Inquiry should be advised to submit a statement in writing to which the Inspector can refer in his report and which can be enclosed for the attention of the Secretary of State / NAW.

Appointment of Inspector

7.139 If the re-opened inquiry is into some matter identified by the Inspector at the original inquiry, or into new evidence, the same Inspector may be appointed to hold it. If, however, the re-opened inquiry is to deal with a matter on which the Inspector who held the original inquiry has already expressed an opinion, a different Inspector will normally be appointed to hold it.

Applications for Costs

(1) Applications for costs in relation to trunk road schemes and highways orders

7.140 It is important to note that applications for costs from objectors to most schemes and orders published by the Secretary of State for Transport on trunk road/motorway proposals, which are the subject of a local inquiry, are handled differently to those made at planning and other similar proceedings .

7.141 The important difference is that the requirement to hold an inquiry into most published schemes or orders, where there are unwithdrawn objections from statutory objectors, is set out in paragraph 7 of Schedule 1 of the Highways Act 1980, and paragraph 4 of Schedule 1 to the Acquisition of Land Act 1981 in respect of a compulsory purchase order. Consequently, this means that the provisions in section 250(5) of the Local Government Act 1972, containing the powers to make an award as to costs, do not apply in these cases. Furthermore, section 5 of the Acquisition of Land Act 1981 specifically excludes section 250(5) of the 1972 Act from applying to compulsory purchase and so-called analogous orders where the Secretary of State is the acquiring authority .

7.142 There is no statutory requirement to pay costs arising from these proceedings where the Secretary of State is the promoter. However, costs may be awarded on a discretionary basis. Objectors to a published scheme or order with an interest in land affected (such as owners, lessees or occupiers) will normally have their reasonable costs of preparing and presenting their cases reimbursed in full or in part if the decision taken following the local inquiry is not to make the published scheme or order, or to modify the proposals so as to diminish or remove its effect on the land in which the objector has an interest. There are no provisions to consider an award of costs on the grounds of unreasonable behaviour .

7.143 DoE Circular 8/93 “Awards of Costs in Planning and Other (including Compulsory Purchase Order) Proceedings” is the current circular on the award of costs and is often cited by objectors to justify their claim. The policy guidance in this circular relates in the main to planning proceedings and to compulsory purchase and so-called analogous orders not promoted by the Secretary of State. It relies principally on the powers in section 250(5) of the Local Government Act 1972 to make an award as to the costs of the parties at an inquiry. As explained above, this power is not applied to schemes or orders promoted by the Secretary of State. Care should therefore be taken where this circular is cited in support of any claim for costs against the Secretary of State .

7.144 Inspectors should make no announcement about costs applications when conducting such an inquiry. If an objector indicates he wishes to make an application for costs at a trunk road inquiry Inspectors should say that no application need be made at the inquiry. The objector should be told that the Highways Agency, on behalf of the Secretary of State, will invite applications for costs from objectors who successfully meet the criteria in paragraph 7.141 above .

7.145 Where an objector insists on making a claim the Inspector should record the case in the main body of his report without coming to any conclusions or making any recommendation on the case. The Inspector should not make a separate costs report. The Secretary of State will acknowledge the matter in his decision letter and ask the Highways Agency, on his behalf, to consider whether the application meets the criteria in paragraph 7.141 above .

(2) Applications for costs in relation to Local Authority road proposals

7.146 Applications for costs from objectors to a side roads order published by a local highway authority under the Highways Act 1980 in respect of a local road proposal, which is the subject of a local inquiry, are treated on a similar basis to a side roads order published by the Secretary of State for Transport – as set out above. However, where applications for costs relate to an associated compulsory purchase order published by a local highway authority, the general power contained in section 250(5) of the Local Government Act 1972, to make an award of costs to and against the parties at an inquiry, is applied by section 5(3) of the Acquisition of Land Act 1981 and the guidance in Annex 6 to DOE Circular 8/93 is relevant .

7.147 While the CPO parties are normally expected to meet their own expenses, the guidance in Annex 6 makes clear that a statutory objector (an owner, lessee or occupier of land), who has successfully defended his interests, is eligible for an award of his reasonable costs incurred in doing so. The presumption is that the acquiring authority who make that order will pay a successful objector's inquiry costs. To qualify for such an award of costs the party will need to be a statutory objector who attended or was represented at the inquiry and has been successful in modifying or avoiding acquisition of his land interest. Where an objector is partly successful in opposing a CPO he would be entitled to a partial award of his costs .

7.148 No application for costs is necessary as the Secretary of State (through the Local Authority Orders Team in the Government Office for the North East) will write to successful objectors, as advised in paragraph 3 of Annex 6 to Circular 8/93. At the inquiry an objector will not, of course, know whether he has been successful, before the decision is taken on the order.

7.149 However, if a CPO objector insists on making an application for costs in the expectation that his objection will succeed, the Inspector should simply record it in the main body of his report without coming to any conclusions or making any recommendation on the application .

7.150 If an objector wishes to apply for costs on grounds of unreasonable behaviour the guidance in paragraph 3 of Annex 6 to the Circular is relevant. This states that in relation to compulsory purchase orders and analogous orders there are some circumstances in which an application for costs may be made on grounds of unreasonable behaviour. In practice, such an award is likely to relate to procedural matters, such as unreasonably causing an inquiry to be adjourned or unnecessarily prolonging it. In these cases an application should be made to the Secretary of State immediately after the inquiry .

7.151 However, the guidance to apply immediately after the inquiry could now be interpreted as inhibiting the right to a hearing prescribed by the Convention Article 6(1) in the Human Rights Act 1998. Therefore, Inspectors should not refuse to hear a costs application any party insists on making against another party on whatever basis.

7.152 If an application is heard, an opportunity should also be provided for the other party to reply and for the applicant to have the final comment. The Inspector should report the application, and any response by other parties, to the Secretary of State, together with his conclusions and recommendation .

(3) Applications for costs in relation to stopping up orders under Part X of the Town and Country Planning Act 1990 (and other similar proceedings)

7.153 It is usual for all parties at a stopping up inquiry to meet their own expenses. But any party may apply for an award of costs against another party. The Secretary of State will normally only award costs if it can be shown that the party claimed against has behaved unreasonably and put the claimant to unnecessary expense. Costs do not follow the event.

7.154 If an application is made at the inquiry, the Inspector should report it in accordance with paragraph 7.151 above.

Need for Appearance Lists

7.155 If an application for costs is made after an inquiry, it may be necessary to know whether the applicant was present at the inquiry. Therefore it is important that the list of appearances should be complete and accurate. Special care should be taken to record the details of those who are not already formally recognised as statutory objectors.

Admission of the Press, Radio, Television Cameras and Photographers

Conflicting Considerations

7.156 In considering requests by the media for facilities at inquiries or hearings, Inspectors should be guided by two broad considerations. First, it is desirable for knowledge of such proceedings to be generally available. Secondly, the way in which the facts are made available should not impede the main purpose of the proceedings, namely the gathering of information.

7.157 The Government welcomes the fullest possible press reporting of public inquiries but the practical difficulties of providing facilities for television coverage cannot be disregarded. The movement of television cameras and crew, the use of floodlights and the encouragement that the presence of TV cameras undoubtedly gives to those who are less interested in the matter before the inquiry than in making a public demonstration, can all be disruptive to the inquiry procedure.

Admittance of the Media

7.158 Press reporters should always be admitted to any inquiry and may be provided with a table at which to write. Television and radio coverage may be agreed by an Inspector to the extent indicated below, and subject to the provisos stated, but only after consulting the parties present.

7.159 Inspectors should not themselves give interviews to the media. Neither should Programme Officers be allowed to give comments or views which could be attributable to the Inspector . However, it may be useful to refer the media to representatives of the parties so that they may be interviewed if necessary.

Admittance of Television

7.160 At most types of inquiry the appearance of television crews and cameras is rare. If a request is made before or during an inquiry for television coverage to be permitted, an Inspector can meet the request if he or she considers it practicable and space permits. The Inspector must be satisfied that the cameras and crew will not in any way influence the proceedings. The Inspector should realise that, amongst other things, a television camera can be a source of general distraction which can interrupt the smooth flow of an inquiry, that it can tempt some people to play to it instead of addressing themselves to the Inspector, that it can inhibit some people from speaking freely when giving evidence or asking or answering questions, and that it can deter some people from appearing.

7.161 Where the crew are present beforehand, an approach to discover their intentions may well help. Sometimes the crew wish simply to record background visuals for voiceovers rather than to record the evidence, and in such a case an Inspector may be able to satisfy their need by arranging camera or TV shots before formally opening the inquiry, or while the opening announcement is made. If this does not suffice, and the Inspector decides that it would be reasonable to allow them to film the proceedings, or part of them, he or she should require the camera and crew to keep to a specified part of the hall and should stipulate that:

the activities cease if the Inspector decides that they are influencing the proceedings;
any lighting used for cameras must be extinguished at the Inspector's request should he or she take the view that it is causing inconvenience or a distraction.

It would be useful to refer to the presence of TV cameras in the opening announcement and to point out that the Inspector, and not the cameras, should be addressed.

Admittance of Radio

7.162 A request from a radio station to broadcast an inquiry or hearing can be met, provided arrangements can be made beforehand to ensure that this does not interfere with the proceedings. It follows that radio reporters with portable tape-recorders can be admitted, but they should not be allowed to conduct interviews or record commentaries in the inquiry room when the inquiry is in session.

Restriction on Photographers

7.163 Photographers should not be permitted to take pictures using flash during an inquiry or hearing.

6, The same sort of considerations might also apply to orders under s248 and 257 of the Town and Country Planning Act 1990

7, [2001] 2WLR.1389; [2001] 2 All ER 929

8, 40 P&CR 336, 78 LGR 576, [1980] RVR 236, [1980] JPL 817

Revised November 2005

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