1 PREPARING FOR AN INQUIRY Introduction 1. What is the purpose of preparing evidence for an inquiry? It can only be to persuade the reader of the merits of the case found within it. How do we persuade the reader? By presenting the requisite information, subjecting it to proper analysis, followed by sound and logical conclusions. So a proof is (or should be) a persuasive, informative, analytical and logical document. 2. What do we know about the reader – (the inspector)? A professional in one or more disciplines; careful and precise. 3. What do we know about the decision the reader has to make? The structure is set by statute (s38(6) of the 2004 Act): the decision must be in accordance with the development plan (“DP”) unless material considerations indicate otherwise. The format is set by convention / precedent: we all know what a decision letter looks like (or should do) and how it is set out. 4. So, the proof you write needs to be set out in a way that will “lead” the inspector to the decision you want made, along the route that by convention and practice you know he/she will adopt. Before you begin to write, you need to “assemble the ingredients”. Hopefully, the ingredients will also have been set out in the proper manner.
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PREPARING FOR AN INQUIRY
Introduction
1. What is the purpose of preparing evidence for an inquiry? It can only be to
persuade the reader of the merits of the case found within it. How do we
persuade the reader? By presenting the requisite information, subjecting it to
proper analysis, followed by sound and logical conclusions. So a proof is (or
should be) a persuasive, informative, analytical and logical document.
2. What do we know about the reader – (the inspector)? A professional in one
or more disciplines; careful and precise.
3. What do we know about the decision the reader has to make? The structure
is set by statute (s38(6) of the 2004 Act): the decision must be in accordance
with the development plan (“DP”) unless material considerations indicate
otherwise. The format is set by convention / precedent: we all know what a
decision letter looks like (or should do) and how it is set out.
4. So, the proof you write needs to be set out in a way that will “lead” the
inspector to the decision you want made, along the route that by convention
and practice you know he/she will adopt. Before you begin to write, you need
to “assemble the ingredients”. Hopefully, the ingredients will also have been
set out in the proper manner.
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Preparing to Write the Proof
5. The following documents should be to hand:
6. The Planning Application. This ought to set out why the developer says
planning permission should be granted: whether the development is in
accordance with the DP; what “other material considerations” are relied on
and what weight, in the circumstances, ought to be given to them; what
conditions / obligations are relevant.
7. The Report to Committee (“RTC”). The LPA’s case ought to have been set
out by officers to committee in some detail. Always check to see what was
contained in key consultation responses. For instance, if there is a “listed
building” reason for refusal (“RFR”), see what English Heritage and the
council’s own conservation officer had to say. What did the Highway
Authority make of a case in which there is a “highways” RFR.
8. The Decision Notice. As is well known, RFR must be complete, clear and
precise. Article 22 of the Town and Country Planning (General Development
Procedure) Order 1995 (as amended) requires the LPA to specify all policies
and proposals in the DP which are relevant to the decision. Again, the list
ought to be complete. If not, in cross examination, reliance on a policy not
mentioned will be met with the riposte: “And where do I find mention of that
policy in the RFR?”. A word of warning however, the inspector has
(independently) to comply with the duty under s38(6), so if he thinks a “green
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belt” policy is relevant to the case before him, he will not ignore it just because
it was not mentioned in the RFR!
9. The Appeal Notice – including Grounds of Appeal. Does this set out what the
case really is (or is now after a period of “mature reflection”).
10. The Questionnaire. The LPA will have sent a file to the Inspectorate. It
should include the application and plans, consultation responses (statutory
and local residents), DP policies, RTC, etc.
11. DP policies. You cannot possibly write a proof without copies of the policies
and explanatory text! Do not forget that RPG is now capable of being part of
the Development Plan in advance of a RSS review being completed. The
complete list of RPG certified by the Secretary of State as having DP status is
to be found in the Town and Country Planning (Initial Regional Spatial
Strategy)(England) Regulations 2004 (SI2004/2206). So the DP will now in
most cases comprise the RSS and SP & LP or UDP. Remember also the
effect of s38(5) of the 2004 Act: “If to any extent a policy contained in a
development plan for an area conflicts with another policy in the development
plan the conflict must be resolved in favour of the policy which is contained in
the last document to be adopted, approved or published (as the case may
be).”
12. Other Material considerations.
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(1) Other material considerations may include PPS/PPGs, Circulars,
SPG, Regional Guidance (that is not part of the DP),
publications such as By Design or Better Places for Living; as
well as common law material considerations such as the fall-
back position or alternative future uses for the site.
(2) You should usually start with the emerging plan. The weight to
be given to emerging policies is nearly always a matter of
contention, even though it should be capable of agreement in
the statement of common ground. You need to be able to tell the
Inspector what weight should be given to each policy. The
Inspector will be genuinely interested in this point, as they are
unlikely to have any local knowledge about the progress of LDF.
Identifying the weight to be given to an emerging policy is a five
stage process:
(a) Highlight what stage the plan has reached (i.e. public
examination stage etc).
(b) Identify the relevant policies.
(c) Establish whether or not the policy is the subject of
objections.
(d) Briefly, consider the importance of the objections
(e) Explain what weight should be given to that policy in
accordance with the advice contained in PPS1.
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(f) You should include a copy of the list of objections to an
emerging policy in your appendices.
(3) After the emerging plan, you should then generally highlight the
relevant sections of the PPS/PPGs and any other national
policy. Again highlight the relevant parts of the guidance for the
Inspectors benefit. Do not quote great sections of PPGs as the
Inspector will already be very familiar with all of it. Remember,
you only need to consider anything not adequately covered in
DP policy.
(4) Common law material considerations are those which have been
identified and defined by the courts. For a full list of common law
material consideration, please read the commentary on Section
70 of TCPA in Volume 2 of the Encyclopedia of Planning Law
and Practice.
(5) The “fall-back” position is oft misunderstood (and to look at it
fully would be the subject of a separate paper); briefly it is “what
the applicant could do without any fresh planning permission”.
However, (1) the prospects of the “fall-back” actually occurring
must be real and not merely theoretical, although (2) that the
weight to be attached to such a consideration is a matter wholly
for the decision maker and not for the courts. It would be
Wednesbury unreasonable to take the potential impact of a
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permitted development into account if there were no realistic
possibility of it being implemented.
13. The Statements of Case – The “Rule 6 Statements”.
a. Circular 05/00 advises:
Annex 3, ¶17 : The statement of case should contain the full
particulars of the case which a party proposes to put forward at the
inquiry; i.e. it should set out the arguments (planning and legal) that a
party intends to put forward at inquiry and describe, but not contain,
the evidence, and possibly cite the statutory provisions and case law,
that a party intends to call in support of its arguments. It should also
include a list of all the documents that a party will rely on when
presenting their case at the inquiry and refer to in their proofs of
evidence. This enables the parties to know as much as possible about
each other's case at an early stage and will help the parties to focus
on the matters which are in dispute. It can also help the parties assess
whether there is scope for negotiation while there is still time for this to
lead to a satisfactory outcome. Starting negotiations early can help
avoid late cancellations of inquiries or requests for postponement.
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b. Each party will have filed a Statement of Case (“SOC”) that ought to
have complied with the guidance (above). So it is to these documents
that one ought to go to see the case your side has advanced and the
case you have to meet. This is not always the case. If, on reading the
statement from the other side, you remain in any doubt about what the
case against you is, then you are entitled to ask for “further and better
particulars”, if necessary, through PINS (see Annex C, ¶19).
c. A properly particularised SOC should set out the key principles of each
part of the case. For example:
(1) The site is Previously Developed Land (PDL).
(2) It is vacant and derelict land.
(3) The Local Plan states that the LPA is committed to re-using
such land.
(4) In line with national policy, the LPA wish to put such land to
beneficial use
(5) This housing scheme makes beneficial use of the land.
d. It is extremely helpful if the statement of case is drafted after consulting
your advocate.
14. Common ground at this stage: descriptions, data, conditions. If you think
something ought to be common ground, but is not formally agreed, then seek
agreement!
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The Proof
15. Annex 3(i) of Circular 05/00 sets out what the proof should physically look
like; this is what the inspector will be expecting (hoping for):
9. Proofs should, as far as possible, be bound so that they can be opened
flat. They should be bound separately from any supporting documents. To
allow notes to be made they should be printed on only one side of each
page. Proofs should have their pages and paragraphs numbered. Sufficient
copies should be prepared for all the main participating parties and
distributed in accordance with the Rules. Additional copies should be made
available for inspection at the local planning authority's offices prior to the
inquiry and for inspection and circulation at the inquiry. The number required
will depend on the likely level of public interest.
10. Summaries should be provided when a proof exceeds 1500 words. As a
guide, summaries should not exceed 10% of the length of the proof. It is
normally only the summaries that are read out at the inquiry. These should
accurately condense the gist of the proof, concentrating on the case in
relation to the main points at issue. The content of the summary should not
go beyond the scope of the text it purports to summarise otherwise
unproductive disputes can arise.
11. All documents accompanying proofs of evidence should be carefully
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prepared, presented and, where appropriate, edited so as to exclude
irrelevant matter. Their purpose is to set out in an ordered and readily-
identifiable form the factual material and technical data upon which the
evidence is based. They should be separate from the proofs of evidence and
have identifiable reference numbers prefixed by letters denoting the name of
the party producing them. The relevance of all documents submitted should
be explained in evidence or submissions.
12. Lists of core documents, such as policy statements and development
plan extracts, should be compiled and indexed by local planning authorities
and submitted as statements of case. Co-operation between parties should
ensure that as far as possible a list of core documents is agreed and that
extracts contain all material to be referred to. All main parties should start to
number their own documents before the inquiry, and keep an up-to-date list
to be completed and submitted before the close of the inquiry.
13. As far as possible documents should be of A4 size. Extracts from
published material must indicate the precise context with full titles, chapter
headings and dates. A photocopy of the document's title page is sufficient to
indicate its origin and publication date.
14. Plans, maps and diagrams should be similarly identified and be of A4
size or folded to A4 size. Plans and maps may be photographically reduced
and incorporated in an A3 size plan brochure provided it is flexible enough to
be folded to A4 size. Otherwise, photographs should be mounted on a series
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of A4 cards. Each photographic view should be individually numbered and
the viewpoints from which they were taken shown on a separate Ordnance
Survey extract. The time and date at which a photograph was taken should
be given. It is also helpful to give the focal length of the lens used. Models
displayed at inquiries should be photographed, preferably in colour, and copy
prints submitted as documents.
16. Although not mentioned in the circular, please also try to:
a. Number each page in the bundle of appendices (so a page can be
turned up quickly at inquiry);
b. Use a 12 pt font in proofs, and double spacing (or at least 1.5 space).
17. The structure of the proof needs to mirror the inspector’s decision letter /
report, so the following sequence should be adopted:
1. Author’s qualifications and experience
2. Site Description
3. Site History
4. Description of the Proposal
5. Reasons for Refusal and Grounds of Appeal
6. The Development Plan (RSS/RPG, SP & LP or UDP)
7. Other Material Considerations
8. The Main Issue(s)
9. Analysis of the Main Issue(s)
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10. Proposed Conditions (if not being dealt with in SoCG)
11. Summary and Conclusion
18. Where matters are being dealt with in a Statement of Common Ground
(“SoCG”), say so.
19. Dealing with policy. You should separate your identification of the relevant
policy and material considerations (largely non-contentious) from an analysis
of the same (which will be largely contentious). The analysis section is your
interpretation of the importance of each policy and the weight to be given to
that issue.
20. You should avoid having a section of proof headed “Policy”. Your proof should
always separate your consideration of policy into the policies of the DP and
then move onto other material considerations (in which you will consider other
policy). This demonstrates to the Inspector that you are aware of the
importance of Section 38(6) of the 2004 Act (old references to 54A of the
TCPA 1990). If a relevant plan policy has been superseded by more recent
advice (in a PPS then make that clear.
21. It is very important to highlight the relevant DP policies. If you fail to mention
policies which are relevant you will be taken to task over it during cross
examination. If the wording of the policy is short, you should quote the
relevant policies in the main body of your proof. If it is a long policy you should
simply highlight those sections which are relevant. In both cases, you should
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consider underlining the most relevant parts of the policy, but be sure to
include the words “my underlining” at the end of quote. This helps the
Inspector identify the main areas of focus.
22. You must acknowledge policy which is relevant even if it undermines your
case, otherwise you will be cross examined on your failure to do so. If it does
harm your case you can mention it briefly, but you must avoid the accusation
that your proof only highlights criticisms of the development and is not,
therefore, fair or balanced. The approach should be “confess and avoid”.
23. The Main Issues. Try to identify the propositions to be advanced - either spell
them out on the page or keep them well in mind when drafting the proof. The
main issues are very important at an Inquiry. At the start of the Inquiry, during
the Inspector’s opening statement, he or she will always say “…that having
read all the evidence, I think the main issues in this case are…” They repeat
this exercise in their decision letters. Every decision letter now has a
paragraph headed “The Main Issues”. If you want to know how to define the
main issues in your case, it is a good idea to have a look at Inspector’s
reports from recent decision involving similar issues.
24. Having reviewed all the relevant policy, this section should be your
opportunity to persuade the Inspector why this proposal is consistent with, or
contrary to, planning policy. The procedure rules demand that your proof
“…should focus on what is really necessary to make the case…” It is not
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enough to say that a proposal is contrary to, or consistent with, a particular
policy. You need to explain why it is deemed contrary or consistent.
25. By way of example, consider a proposal for a new housing scheme which the
LPA say is out of character with the area because it represents “over-
development”. It is no good one party simply saying that it is “out of character”
and the other “no it’s not”. You need to go through a careful exercise of
analysis to explain either conclusion:
a. Define the area you are describing.
b. Describe the character of that area.
c. Describe the character of the proposal.
d. Explain why the character of the proposal is in harmony or conflict with
the character of the area.
e. In so doing, you should evidence your conclusion by, for example,
making reference to:
(1) The density of surrounding housing (but beware relying on
densities that are no longer sustainable in a post-PPS3 world
unless there are good reasons for doing so).
(2) The cubic volume of the proposal vis-a-vis the proposal.
(3) The height and number of floors of surrounding buildings.
(4) The width of existing plots and the houses within them.
(5) The amount and extent of fenestration.
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26. To assist in defining the main issues, a good source of material can be
existing Inspector’s appeal decisions which deal with similar issues. These
can be taken from local area or beyond. These decision letters are written by
Inspectors who often have twenty or thirty years of experience in the planning
professions. They often distil the issues, benefits or problems of new
proposals into just a couple of clear and concise sentences.
27. Do be “concise” and “precise” in your proof – it will help you to show similar
traits in the witness box.
28. Other witnesses’ input. Particularly if you are the planning witness, you may
have to rely on input from other witnesses before you can reach certain
conclusions in your own proof (even if it is only to suggest conditions). Make
sure you see at least a draft proof in advance of signing-off your own!
29. Involvement of Counsel. Counsel are happiest if they are consulted as early
as possible in the proceedings. Why?
a. To make sure the case is as complete as possible at the application /
RTC stage so that the appropriate issues are properly identified.
b. To make sure that the SOC properly identifies the issues and
documents.
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c. To make sure the proofs are thorough and complete and do not contain
“hostages to fortune”.
d. To make sure the appendices are complete and include all the material
needed for cross-examination.
e. To suggest conditions / obligations in good time (either to resolve an
issue completely or for the “without prejudice” session at the inquiry).
f. To make sure you do not sign up to a SoCG you will regret later!
g. Because we are “team players”.
Considering the Opposition’s Proofs
30. Once proofs are exchanged they need to be read and digested by the “home
team”. Remember that it may not be appropriate to limit the distribution of
proofs to the corresponding witness. For example, the “away” highways
witness might suggest (to him) a minor modification to a road layout - or a
condition - that might give cause for concern to the “home” ecological witness.
31. Counsel should then be provided with:
a. A list of points where the opposition witness is wrong or vulnerable, and
an explanation why;
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b. Any concessions that our team should properly make “on mature
reflection” having read the other side’s proofs.
Statement of Common Ground
32. Annex 3(ii) of Circular 05/00 advises:
2. The statement of common ground is a written statement prepared jointly
by the local planning authority and the applicant (or appellant). The purpose
of the statement of common ground is to set out the agreed factual
information about the proposal. The inclusion of agreed material in the
statement of common ground should result in shorter proofs of evidence and
shorter inquiries.
3. The statement of common ground should complement the proofs of
evidence and both should be received by the Secretary of State no later than
4 weeks before the inquiry. The main parties will therefore need to meet
before that date to try to narrow the areas of dispute and agree on what
should go in the statement. It is the responsibility of the applicant (or
appellant) to send the statement to the Secretary of State.
4. The statement of common ground should be kept factual and should not
include opinion and comment.
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5. In all cases agreement can be reached on some matters: the precise
nature of the proposal before the inquiry, the description of the site, its
planning history and the relevant policies can all be agreed.
6. Evidence on technical matters and topics that rely on basic statistical data
can often be fruitful areas for pre-inquiry agreement. Traffic evidence, for
example, can be simplified and issues refined, by pre-inquiry agreement on
matters such as traffic flows, design standards, and the basis for forecasting
the level of traffic the proposal would generate. Other examples of topics
where a degree of factual agreement might be possible are the pattern and
frequency of public transport routes, applicable air quality standards,
acceptable noise impact thresholds, nature conservation survey data, and
housing land availability. What might be agreed in any particular appeal will
depend on the matters at issue and will be unique to that case.
7. The statement of common ground, by clearly identifying the matters which
are not in real dispute, may save time and cost at the inquiry. It may also be
useful for the statement to identify areas where agreement is not possible.
33. What is factual information, and how does this differ from opinion or
comment?
a. Facts are just that – “it is 300m to the nearest bus stop”;
b. Opinion – “the bus stop is within a reasonable walking distance”;
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c. Comment – “the bus stop is 300m away, but no-one will walk to it
because the route runs through a ploughed field”.
34. However, some opinion, if is agreed, becomes factual – or at least a “matter
which is not in real dispute”:
“It is agreed between the appellant and LPA that the bus stop is 300m away
from the entrance to the appeal site. It is further agreed that this is within a
“reasonable walking distance” as set out in [government guidance] and that
there are no physical obstacles or disincentives to pedestrians using the
footpath that runs between the two points.”
35. Matters which can usefully be included in a SoCG are:
a. Site description & planning history
b. Chronology
c. A definitive list of relevant DP policies;
d. The application plans (referenced by number) which were considered
by the LPA and (if applicable) any subsequent amendments which the
parties want the inspector to take into account in the decision.
e. Proposed conditions (agreed and not agreed)
f. Data, statistics etc or a reference where to find them (eg in a TIA or ES)