The great majority of S78 appellants have always sought written representations as the most appropriate and proportionate procedure for determining their case.
Where hearings or inquiries are sought, appellants should provide sufficient reasoned explanation as to their suggested procedure when they appeal. There are now published criteria, which provide clear guidance as to the appropriateness of each procedure method according to the specific circumstances of the case concerned.
In the event that the appellant appears not to have applied the criteria appropriately, our officers will seek more detailed reasons as well as the reasoned views of the Local Planning Authority (LPA). Our initial decision must be made within 7 days of the appeal start date and may entail obtaining the advice of one of the Inspectorate’s Assistant Directors (all of whom are highly experienced Inspectors). That judgment and decision will be made on the basis of a detailed analysis of the proposal, the reasons for refusal and any other documentation accompanying the appeal. The reasons for the decision are placed on file and conveyed to the parties.
We welcome the fact that appellants and LPAs are now starting to provide reasons at the outset for their suggested procedure as it greatly assists our decision. Our published guidance explains the reasons for and benefits in such an approach.
But it is not only the issues or reasons for refusal that determine the appropriate procedure.
We have received a small number of cases where Counsel have been instructed by appellants to question and challenge the procedure that we have identified. In two cases the submissions provided reasoning which satisfied the Assistant Director that cross examination would be likely to be required and that legal submissions were also likely to be warranted.
Such experiences have demonstrated that the procedure decision can be influenced, for example, by the manner in which the LPA decision was arrived at, or an aspect of the appellant’s evidence which had not been evident or appreciated at the outset, needs to be explored by questioning or discussion (in the latter case a hearing would be satisfactory).
There have been a small number of cases where we have changed the procedure from that initially notified to the parties. This has usually been the result of our not being provided with all the information at the outset and parties, in effect, challenging one another’s procedural choice by email or correspondence. We believe that these are teething problems and anticipate that with experience, and with more published advice to the parties, we will avoid such situations being commonplace.
Criteria
We have implemented the power to determine the method of appeal such that our Initation and Case Officers make the preliminary assessment and decision, based on the best information available at the point of appeal and their informed judgment in applying the published criteria.
A number of parties have sought to suggest that the manner in which we decide the procedure does not always follow the criteria. We are satisfied that that is not the case but acknowledge that certain of the criteria will benefit from closer definition in the light of experience, and that it will also be helpful to provide more examples.
For example, appellants will often suggest that it is necessary to hold a hearing (or sometimes an inquiry) where Members have not accepted an Officer recommendation. They argue that this will better enable the appellant and Inspector to understand the basis of the Authority’s position and the weight that was attached to officers’ professional advice. Although this scenario does not feature amongst the criteria, we have accepted the argument that it will be necessary to ask questions (which is amongst the published criteria indicating a hearing) because seeking confidently to ascertain and understand those grounds by an exchange of written submissions is likely to prove difficult.
Where, despite sometimes repeated representations to seek a change of procedure, we have not agreed to do so, it must be borne in mind that the Inspector ultimately has the discretion, and indeed the responsibility, to ensure that the case is determined following the most appropriate procedure. S/he may do so at any point up until the appeal is determined. There are few examples of that happening as yet. We shall, however, keep this under close review as we do not wish to put any party in an appeal to the inconvenience of re-arranging the procedure if the need to do so could reasonably have been foreseen.
Review
In all of this, our simple and entirely impartial purpose is to ensure that the Inspector is in a position to be able to reach an appropriately informed and sound decision and that the rules of natural justice are fully adhered to. Our intention in Spring 2010 is to review the application of the procedures that we have developed and the manner in which we exercise the power, to review the advice we issue to the parties and to discuss with Ministers any changes to the published criteria in the light of the first few months’ experience.
