Section2
Mounting a Case

This chapter deals with the general principles of mounting a case whatever the forum for which it is destined. How do you do it? It amounts to three things: good organisation; a well focussed case; and professional documentation.

GETTING ORGANISED

If the proposal has been in the offing for some time, you may well have already identified some, if not all, of the key parties. If the issue comes out of the blue, get your skates on. 

THE BIG DEVELOPMENT PROPOSAL 

Preparing a case of any complexity requires both manpower and money. Has your council set aside funds for this? If not, why not?

Organise a meeting which is well publicised so as to attract key parties and the general population to get the campaign off the ground. A public meeting is a way of recruiting extra hands. It is amazing the unexpected expertise and resources which surface even in a close knit community. The wider the impact of the proposal, the greater is the recruiting area. Obviously this applies to funding too. Keep the contact details of all potential helpers.

A consortium of like minded parties, operating under a catchy title, can both catch the headlines and make it easier to negotiate with the opposition and/or decision makers. Both LPAs and the Planning Inspectorate welcome organisations joining together because it saves their time.  If there is to be a planning inquiry, your group may then qualify to become a Rule 6 party (see DETR Circular 05/2000, Planning Appeals Procedures including Called-in Planning Applications) which gives you the right to receive all the papers: the downside is that you also have to produce paperwork on time! (See Section 3).

To manage a big campaign you need a steering group of people with different skills, chaired by a benevolent dictator who can find a constructive way forward amid differing opinions, not to mention personality clashes... This person needs the support of a first class administrator of cheerful disposition and time to spare. Substantial cases tend to operate on a 16 hour day and can be an emotional rollercoaster.

 Mundane realities include office space for this project. If your council does not have a parish office, or hasn’t got space, then somewhere needs to be found, preferably in one place, for the storage and filing of documents, a computer and a telephone which is manned most of the time.

Then there is the vexed question of fundraising. That said proposals for major developments tend to descend on small communities because the former require large tracts of land not usually available in urban areas. That being the case it means that the local council cannot raise the money to pay its share. Others may have to reconcile themselves to that council being part of the consortium to give political legitimacy rather than financial clout.

The first step is to get an estimate of how much money is needed. It is not only the cost of funding professional help, if any, but also office costs including printing, binding and postage. Keep an eye on the accounts because the bigger the proposal, the more likely it is for costs to escalate. If funds are needed in addition to the precept, then it may be a good idea to set up an action group devoted to fund raising. Other sources are donations from private individuals and businesses. There are times when such parties are happy to give a discreet donation or assist with the provision of premises or staff time, but do not want this to be publicly known because they will have to live with the developer should permission be granted.

ASSEMBLING YOUR TEAM

The decision whether or not to retain professional help should be taken at an early stage because it will affect every aspect of presenting your case. Under what circumstances do you need professional help? The following checklist of questions might be a guide:

• Given the substance and the complexity of the case, do you need professional help and if so, what sort of expertise do you need? You may need to speak to a planning professional to get their view before you go out hunting.
  
• Are you familiar with the network of government bodies in England and know who exactly has the power to do what? Do you have contacts in these bodies?
  
• Is there someone on your council with the time and expertise required to marshal arguments and slot them into a topic based report?
  
• Have relationships broken down between your council, the LPA or another key player, to the extent that you require a go-between?
  
• Are you thoroughly acquainted with the procedures connected with a development plan, development control or a public inquiry? Do you know the purpose of each stage in the process? They are not always what they seem to the uninitiated!  
  
• Do you need a legal opinion on the behaviour of your LPA?
  

Whilst people balk at the possible cost of professional help, there could be a cost to doing nothing in terms of the long term damage to the area, not to mention property prices. Should your council need outside help, get the relevant people on board early in the process. They too have busy diaries, so you need to give them a list of deadlines when evidence has to be produced or appearances made. Remember getting professionals involved early does not mean that overall costs will be higher because you only pay for what they do. It will mean, however, that you get their advice at a stage when you can make the best use of it.

The Team Leader
 
For the purpose of this discussion, the person in charge of a case shall be called a “team leader”. Their primary task is to have an overview of the procedural and substantive aspects of the case and devise a winning strategy. Thus they need to know how to use the procedures to best advantage and have a ‘nose’ for detecting the key issues in a case. Land use professionals such as planners, surveyors, architects and property lawyers should be familiar with LPA procedures and be well placed to advise you on cases going through development control. They may also be well placed to advise you on having an input into appeals.

Do you need a lawyer? 

The question is whether your council or consortium needs a lawyer to represent them at a public inquiry.  The answer is not necessarily. Experience of using the procedures, asking pertinent questions of the opposition, protecting witnesses, and re-examination, these are skills which come with experience and a number of consultant planners and solicitors have learnt the ropes. In your area there will be firms of solicitors who specialise in planning, and amongst their number will be those who are good at advocacy: it is a matter of temperament rather than qualifications. If you do not know where to start, ask the Law Society in London, www.lawsociety.org.uk.

However if cross-examination on technical matters is required, then you need a barrister, preferably one who knows about planning. Criminal barristers can be a liability because reducing the opposition’s witness to tears can alienate the Inspector!

It makes people feel good to say they want a QC, but do they? Queen’s Counsel are the crème de la crème of barristers and as such come very expensive. You have to weigh up how much time you need them to put in. If it’s a long inquiry then it is a question of balancing competence against funding: a middle ranking barrister will do a perfectly adequate job at a reasonable rate. There are barrister’s chambers in most large towns and all cities. Within your community there may well be a tame barrister or someone with contacts. However the most economical source of specialist counsel is the Environmental Law Foundation in London (www.elflaw.org.).  Its raison d’être is to give legal advice and to represent communities involved in environmental disputes.

Until the late eighties barristers always had to be instructed by solicitors. Then new Rules of Access were drawn up which enable qualified architects, planners and surveyors to instruct a barrister. Thus the planning consultant retained by your council can instruct a barrister and save the solicitor’s fees.

The Advocate/Witness 

Another means of economising on fees is to retain, say, a planning witness who will organise the whole campaign: he or she will spot the key issues of the case, advise on whether specialist help is needed, and organise the local community to collect information. He or she will decide whether further research is needed in terms of tracking down documents or doing a traffic count. As team leader they will be responsible for all written and visual evidence to be put before the decision makers. Temperamentally they should be able to give confidence to the nervous witness and keep up the team’s morale when disaster strikes – which it always does. Inquiries can be an emotional rollercoaster, especially for the people who would be acutely affected if the proposed development becomes a reality.

At an inquiry the advocate/witness explains their dual role: that he or she will play the team leader in terms of outlining the case; introducing and also protecting witnesses, cross-examining the opposition and summing up the case. As chief witness he or she will present the policy aspects of the case and be cross-examined and then introduce other witnesses to the inquiry: this includes their name, address and the reason for their appearance. It is essential for advocate/witnesses to make sure they can read their own, or someone else’s handwriting!

The Expert Witness

With regard to witnesses, their most important attribute should be an in-depth knowledge of their subject, whether it is their professional experience or familiarity with the local scene. Professionals may want to be paid but cannot be expected to give an estimate before they have seen the papers and had a meeting with your council. They can then give a provisional figure but it is a good idea to allow for further expenditure in the light of the unexpected!

Give your expert witness adequate time to prepare a case because they may have other commitments, and there may be delay in researching the case and obtaining information. Costs may be reduced if there is time for local people to do the leg-work. If you need more than one professional witness then it is a good idea to choose people who have worked together before, or at least are not incompatible.

Academic institutions are a great source of specialists, who often welcome the opportunity to apply their knowledge to an actual case. Practical experience is now valued in universities and the academic may arrive at the LPA meeting or public inquiry with students in tow. The internet is a useful means of identifying the right person. If he or she cannot help, they might know someone who can. Despite the Government’s attempts, over many years, to turn universities into businesses, most academics are more interested in their subject than making megabucks. They are likely to charge a modest fee plus expenses.

A particular problem may arise in getting expertise which is peculiar to a given industry or sport e.g. nuclear power, landfill or Formula 1 racing.  However sympathetic they may be personally, they do not wish to upset potential clients by being seen to oppose a development. The answer may be to work with your council behind the scenes or, more likely, recommend someone who has recently retired.

Whether lay or professional, the primary quality is that they know their stuff and have the confidence to put it across clearly to decision makers. They should speak sufficiently slowly to enable others to take notes. Heavy accents may add local colour but can be counter-productive if they cannot be understood. Temperamentally they need to stay cool, calm and courteous amid “the slings and arrows of outrageous fortune”, such as travel delays, lost documents, upset water jugs and fire alarms. For those inexperienced in public speaking, a dress rehearsal in front of friends is a good idea.

The Role of the Local Community

Local people are experts on their own patch. There is nothing like a potential “blot on the landscape” to galvanise a community and bring forth valuable expertise from unexpected quarters. Local people are usually more than ready to supply person-power for surveys, video shooting, and the compilation of photograph albums and maps. They can play an invaluable role in getting documents duplicated and bound for submission to the LPA or inquiry. They will also select from amongst themselves witnesses to testify as to the existing situation, provide detail on how the proposal will affect them and prepare short statements to be read out at the development control committee or public inquiry. Last but not least it is essential that the local community turn out in force to support “their team” at the LPA committee meeting or inquiry.

Summary

The combination of strategic thinking and local knowledge means that David can really beat Goliath for a relatively modest sum. The effort involved forges lasting friendships between the most unexpected people and a victory gives that “feel good” factor long after the effort of paying for it has been forgotten.

SUBSTANCE

The Realpolitik behind Case Presentation

In any environmental dispute there are certain political realities involved, which affect both the character of the evidence and the way in which it is presented. The following sets out the most common of these.

Representing a coalition of groups should increase political clout but this only works if all are agreed as to what they want or would find acceptable. Even then there is the issue that the NGOs like to be seen showing their flag, so that members may feel that their membership fee is justified. Ploughing parallel furrows enables the work to be split between parties and the committee or inspector is not bored.

However, there are hazards:

a)      How committed are they really to the cause? Sometimes LPA officers were overruled by the planning committee and find themselves giving evidence at an inquiry, arguing the opposite case. This should not happen because they will be vulnerable to attack from their opponents for professional duplicity and any Inspector will regard them as an unreliable witness.

b)      Will they actually deliver the goods on time to standard?  Do they have the resources to do what is promised? Even if you are sure that all will be well, it is sensible to allow for paperwork arriving late, ally’s counsel being ineffectual and witnesses being involved in a car crash. If you have any doubts, make provision by at least raising the issue yourself because if you have never raised the issue before, the opposition will cry “Foul” if you try to raise it at a later stage.

A key decision is whether to support or reject the proposal and if the latter do you reject it completely, or only in part. Would it be acceptable with certain conditions or could you do a deal over planning gain? Do not be distressed if a planning inspector asks your council what sort of conditions would be acceptable were he or she “minded to allow the appeal”. It does not mean that they have made up their minds but merely that they know what you would like if, having looked at all the evidence, they give permission for the development.

The way in which planning decisions are taken is couched in two layers of hypocrisy. Firstly that it is not a political decision, which clearly it is because it is concerned with the allocation of resources. What people mean is that proposal and policies are divested of their party political labels. Secondly all discussions take place in terms of the “public interest”.  Thus Nimbyism is disguised as public amenity and Greed masquerades as job creation. It is not done to complain that a waste facility will knock thousands off the value of the ancestral pile. Neither is it acceptable to say that the real reason for the proposal is to increase the paper value of the site because the company is on the rocks. 

THE FEEDING FRENZY

Members of Whitfield Parish Council were amazed that landowners, aided by lawyers and planning consultants, were allowed to put their case for the development of their own land for housing in terms of the public interest. Appalled at the spectacle, one member said that “If I have a pecuniary interest in a matter before the parish council, I have to leave the room” Another summed it up as a “feeding frenzy”. 

On the plus side, the public interest ethos means that all partakers in the debate have to behave in a civilised manner towards each other. The discussion is about the future of the area, not that latest round in the long running feud between local authorities, or a local community versus the gypsies or asylum seekers.

A really strong case can be ruined if the correct procedures are not observed. The other sections of this book deal with these in detail, but a common theme to all of them is strict adherence to a time table because otherwise the system would grind to a halt. Do not be tempted to be clever and withhold information to a later stage in an attempt to embarrass your opponents. This might work in TV courtroom dramas but it will incur the wrath of the decision makers if you do not play it by the book. Being virtuous may be boring but it is effective. If your opponents are indulging in some skulduggery, you can complain and will be listened to sympathetically. This, in turn will enhance you case. Remember, you play to win. There are no second prizes.  

The assumed good intent of all parties means that the only time that witnesses may be asked to give evidence on oath is during an enforcement inquiry. This is because it is primarily concerned with past events rather than speculation about the future. However past history inevitably play a part in other disputes, yet one cannot query directly the good faith of your opponents: their arguments have to be confounded on substantive grounds.

Good manners towards your opponents are the order of the day. Lay people can feel uncomfortable when confronted with the fraternisation between professionals on opposing sides. It is important to understand that conflicts in the ring do not mean bad relations between individuals. Professionals never know when they are going to work together on the same side and they may know what really lies behind the aggressive front of your opponent’s barrister because they have both served on some committee or were marooned together in some tenth-rate hotel, during a long inquiry. In any case, a measure of cooperation is helpful in terms of the exchange of information, and means that argument is restricted to the matter in hand.

Thus environmental conflicts are intensely political in terms of the relationship between the various participants, the substance of their cases and the final outcome. On the other hand couching the debate in terms of the “public interest” takes the sting out of the discussion – at least most of the time! If your council is to be a serious player in the planning world, the realpolitik of the situation has to be appreciated: it should inform not only how you play the game, but the grounds upon which you fight your case.

Getting to Grips with the Issues 

With regard to the determination of planning applications, or inquiries resulting from them, the focus of your case is the content of the proposal and the implications arising from it. The type of witness being retained by the opposition and their status within their profession, can give you clues, not only about the subjects they consider  important but how much money they are prepared to throw at it. A different perspective on the proposal is likely to be supplied by different departments within the LPA and the statutory and non-statutory consultees.

In addition there may be an Environmental Statement. Do read the appendices, especially those containing statistical evidence. It is amazing the truths which the consultants divulge because they assume that other people are innumerate. In addition there will be visual material such as maps, plans, photographs and, maybe, models. The developer may also be offering some sort of planning gain and suggested conditions. With regard to planning appeals and call-ins, there will be Statements of Case put forward by the LPA and the developer. From the point of view of third parties, all the documents will contain references to the key policy issues involved, which is not to say that your council cannot raise others which are relevant to the case.

“In principle, it seems to me that any consideration, which relates to the use and development of land, is capable of being a planning consideration. Whether a particular consideration, falling within that broad class, is material in any given case will depend on the circumstances.”

L.J. Cook, Stringer v Ministry of Housing and Local Government, 1971

Whether you are dealing with a development plan or an individual planning application, every case is unique, but there are certain factors which tend to be common to all.

According to the Planning & Compulsory Purchase Act 2004, s.38 (6)
“If regard is to be had to the development plan for any determination under the Planning Acts, the determination must be made according to the plan unless material considerations indicate otherwise.”

It should be remembered that up to date plans, or those nearing adoption carry more weight than those in the earlier stages of the process. Thus having regard to the development plan may be a matter of seeing whether the site appears on any map as being designated for this use, which it may not, but also the policies relating to any given issue e.g. housing, employment, shopping and leisure, heritage, transport and open space. Then ask:

a)      To what extent do these policies support your case?

b)      If you position does not concur with the policy, are there is extenuating circumstances in this instance, or indeed other policies which do support your case?

c)       If the plan is getting out of date, what do more recent plans say?

It may just be that there are no policies which directly relate to this application but what about the effects on the wider environment? Thus the advent of the neighbourhood’s very own Formula 1 racing circuit may not be catered for in any plan but it would certainly generate noise and traffic. And then there are those mysterious entities called “material considerations”.  As Fig.1 shows, the definition is exceedingly wide. Work through the list systematically to see what factors can be cited as valid planning considerations in support of your council’s case. Note the ones which go against you because these will have to be played down.

---

Figure 1: Material Considerations

1. Central Government Planning Policy

• EU directives. TCP Acts. Other relevant legislation e.g. Pollution and Wildlife. Local Government Acts. Building Regulation Acts. See www.opsi.gov.uk 
  
• Circulars, National Policy Statements (NPSs), PPSs, PPGs, Ministerial letters to Chief Planning  Officers, Planning Research Projects etc. www.communities.gov.uk 

Which law and policy documents are relevant to your case? How can you turn them to your advantage? Are the circumstances which led to the issuing of Parliamentary Bills and draft policy documents germane to your case?

(Remember that draft documents count because they indicate that the policy is under review.) 

2. Local Government Planning Policies

• Regional Spatial Strategies (RSSs) have now been jettisoned. It has yet to be seen what will fill the void.
  
• Change is on the agenda for LDFs, so keep abreast of developments by looking at the www.communities.gov.uk and your LPA’s website. 
  
•  Are there any relevant LPA design guides, development briefs, consultant’s reports, or Supplementary Planning Documents (SPDs) relevant to this case?
  
• Is your council’s parish plan or design guide pertinent to this case? Have they become SPD?
  
• Which local government policy documents are relevant to your case?
  
• How can they be used to best advantage? 
  

3. Amenity 

• That which adds to the quality of life of the general public, or a large number of people. It should be noted that amenity cannot be claimed exclusively for private interests.

Are amenity interests involved in this case? How can they most effectively be demonstrated?

 4. Social Considerations 

• These include the impact on schools, medical services, shopping and transport networks.

How exactly will this proposal affect your community? How can this be demonstrated?

5. Economic Considerations 

• Financial viability of the project as a whole including supporting infrastructure; cross-subsidization between different parts of the ‘package’.

Will the money be available to provide the necessary infrastructure to support the project, as specified in the development plan?
Will the project be financially viable?

Is cross-subsidisation of its different parts feasible?
Will the project have an adverse effect on the financial viability and therefore upkeep of listed buildings and conservations areas?
How does the proposal square with the proposals of your areas Local Enterprise Partnership? 

6. Planning History 

• Previous permissions, permitted development, and the history of the site.

What skeletons are in the cupboard?
How can past history be turned to your advantage?
What is the developer’s past record with regard to other schemes? 

7. Previous Planning Decisions
   

• Whist not bound by past decisions LPAs and Planning Inspectors like to be seen to be consistent over similar cases.
  

 Are there other planning decisions relevant to your case?
Why does consistency matter in this case?
What do the Courts say about this?

 “Consistency (in appeal decisions) was self-evidently important to both developers and development control authorities. But it was also important for the purpose of securing public confidence in the operation of the development control system. He (Mann LJ) did not suggest, and it would be wrong to do so, that like cases had to be decided alike. An Inspector had to always exercise his own judgement. He was therefore free upon consideration to disagree with the judgement of another, but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision. ”In the light of this judgement and the significance of this combined issue in the determination of the previous appeal, my predecessor’s decision has to be scrutinised at some length.

Court of Appeal, North Wiltshire DC v Secretary of State for the Environment &Clover [1992] JPL 955 p. 959,

8. Precedent

• This can be a material consideration but only if the concerns are well founded.
  

Is there a real danger that this case would set a precedent?
How would it matter if it did?

9. Prematurity 

• This issue is raised at appeals in the later stages of the development plan process.

How exactly will permitting this application jeopardize the provisions of the development plan?

10. Retaining or Promoting Desirable Uses

• This should not be used to protect private interests but rather to show that a certain use or mix of uses should be preserved or promoted in the public interest.

Is the existing use certain to continue if this application is refused?
Can the desirable mix of uses actually be achieved?
Why is this use needed?

10. Alternative Site 

• This situation can come about either because of the nature of the proposed development or because of the character of the chosen site. Bear in mind that planning permission can only be given or refused for the applications site, not a suggested alternative.

How exacting are the requirements for this proposal and could it be easily accommodated elsewhere?
Is it in the public interest that only one site is allocated for this use?
What are the benefits and drawbacks of the proposed and alternative site?

11. Morality 

• In terms of censuring behaviour this is not a material consideration, but equity between different sectors of the community can be introduced.

Does this proposal raise issues of equity or fairness?
Does the developer’s past conduct suggest he will abide by conditions or pay money in conjunction with a legal agreement?

LEGAL MATERIAL CONSIDERATIONS
 
1. Private Law Rights 

• The fact that a proposal, if allowed, would lead to legal action on grounds of nuisance in the future, does not preclude the granting of planning permission.

How can potential problems be resolved now?

2. Planning Gain

• Legal agreements, be they s.106 agreement or its successor, if any, are a material consideration. The legitimate use of legal agreements is to overcome a planning problem and make the proposal acceptable in land use terms. However development which is unacceptable in planning terms should never be allowed because of the juicy carrots promised by the developer i.e. planning permissions should not be bought and sold.  

Is there an existing s.106 agreement in the proposed site?
Can you persuade your LPA not to discharge or modify it?

3. Other Statutory Controls

•  Inevitably there is an overlap between planning and other areas of law affecting the environment. The rule is to choose the most effective mechanism in terms of control. According to Circular 11/95, planning conditions which duplicate other legal controls are unnecessary and those that run contrary to them are unlawful. The problem is that some statutory controls may achieve some planning objectives but not others, so it is essential to be clear about which regime can deliver which objective.

Does this proposal involve other statutory controls?
Can they deliver in terms of planning objectives?
Should the situations be dealt with by framing appropriate conditions?

---

Constructing Your Case

In an environmental dispute, as elsewhere, facts are not free-standing entities but the raw material from which all sides construct their cases. How much weight it is accorded by decision-makers depends on how reliable it is: who has written it, who has checked it, and their respective reputations. When sifting through the evidence put forward by the opposition, and selecting the facts upon which you will base your case, you have one objective, to prove that your position equates with Government policy – unlike that of your opponent!

The analysis of material may be divided into four sections: your opponent’s case; official information; other published materials and your own data collecting.

Opponent’s Evidence

Begin by looking critically at your opponent’s evidence:

1.       Go through all the evidence including, where relevant, the application, Environmental Statement, other supporting material, statement of case, proofs of evidence etc. The more thorough your preparation, the more deadly your attack because your Council will not be caught out by ignorance of what appears to be a crucial point.

2.       Is the proposal exactly the same as a previous one from the same developer, or are there subtle differences? If so have these been noticed by the local planning authority and drawn to the attention of statutory consultees. Do these subtle changes have important implications?

3.       Check each part of each sentence for accuracy. It is not unknown for the first part of the sentence to be accurate but not the second – or vice versa. Does the latter follow logically from the former? Is the statement capable of a different interpretation? Is there another statement in that document or another one which negates the quotation before you? There are times when statements require nothing less than forensic examination.

4.       Track down the documents which are quoted in the text.  Are your opponents being economical with the truth? Is there a more recent report from the same body, which tells the same tale? If it is different, why is that? What is the interest of the body publishing the report e.g. the nation’s wealth rather than the nation’s health?

5.       If there is something odd about a statutory agency, such as English Heritage or Natural England, taking a certain view – and it is less than helpful to your case! –contact the officer direct and get the inside story. It could be that they were forced into this position because the proposal “ticked all the boxes” rather than was the optimum solution. Thus their enthusiasm for the proposal may be less than your opponents would have you believe.

6.       Examine most carefully their maps, plans and artist’s impressions. It is not unknown for road or railway cuttings to be mistaken for embankments, the latest houses in the village ignored because the map is out of date, saplings represented as mature trees in leaf all the year round. What would a computer mock-up of the proposed development actually look like?

7.       Look for authenticity and accuracy in the numerical material. What premises underlie the statistics? Are they looking sufficiently far into the future? Do key assumption accord with common-sense, not to mention reality. Remember the old saying “Garbage in, garbage out”! 

8.      Do the proposed planning conditions or s.106 agreements comply with Government guidance? See ODPM Circular 05/2005 Planning Obligations

“When I use a word” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”
  Lewis Carroll

Accept nothing at face value. You will be amazed at how often there is another side to the story being told by your opponents. If you use their evidence to prove your case, then at least they won’t be casting doubt on the authenticity of the material even if they do not agree with your interpretation. Finally, if your allies seem to be taking a strange view of the situation, check their sources because it is essential to present a united front.

Official Information 

Planning applications should be accompanied by supporting information, particularly if some sort of environmental appraisal has been done. Beyond that it is an exercise in lateral thinking: given the history and the current existence of the site and the surrounding area, how would the proposal affect the environment?

In the last fifteen years there has been a revolution in both the availability of information and the means by which we obtain it. There are three pieces of legislation of particular note:

1.       The Data Protection Act 1998
2.      The Freedom of Information Act 2000
3.      The Environmental Information Regulations 2004 S.I. 3391

This has led to the creation of an Information Commissioner’s Office to promote public access to official information: www.ico.gov.uk/ .  This does not mean access to all information free of charge. Therefore it does not include information which could be deemed as infringing personal privacy or commercial secrecy. If you want to reproduce a map or drawing for a public inquiry you can run up against problems or copyright. There are exemptions too within the realm of the business of central and local government business: international relations, defence or national security may be obvious candidates but what about health and safety?

The advent of the internet has revolutionized access to information but there is a downside. Time was that the definition of what constituted government policy was whether or not it was published by Her Majesty’s Stationery Office. Now its successor, “The Stationery Office”, or TSO, is a commercial operation and it only prints items which will turn a profit. The same applies to your local authority. If insufficient people are prepared to pay for paper copies, it will only be available on the internet and you will have to bear the inconvenience or the cost.

But all that said, there is a plethora of information available for those with the will to track it down and this has led to a greater democratisation of environmental information. What happens if that nugget of information eludes you? The precise procedures are laid out in the legislation, explained in plain English by various codes of practice and guides available on the internet. The general principle is that your council applies to the official body, and within a given time they are bound to respond and may make a reasonable charge to cover their costs. If there are problems your council has the right to appeal to the Information Commissioner. If he or she agrees with your complaint and the public authority refuses to budge, then they can appeal to a Tribunal. For connoisseurs there is a growing body of case law!

Other Published Material 

Take heart, there is reputable information beyond the bastions of government. Whatever the subject, there is a sliding scale in terms of prestige and reliability. The internet gives you access to research done abroad as well as the home front. If you want to follow up an article, read the original research paper: this is always a good idea in case the findings have treacherous caveats which can make you look a fool at an inquiry. If you can track down the researcher, then you may be able to charm them into giving you an interview. It is a good idea to read round the subject and make a list of questions beforehand. However inadequate you feel at least you will appear to be intelligent. If the interview goes well, then other questions will come to mind as you go along.

Your Own Research 

At an early stage you may have to consider embarking on your own research because you know that that vital piece of evidence does not exist elsewhere. The danger of going solo is that your opponent will try to attack your methodology and therefore your results. It is therefore imperative that you use a nationally recognised technique for your research. If in doubt take advice from academics or professionals in the relevant field.  For example many proposals would impose extra traffic on an already busy road. If there is no up to date traffic count done by the highway authority, you may want to do one yourselves. To do a professional job, see www.DfT.gov.uk/pgr/economics/software/coba11usermanual.

.Experts on other subjects may be able to point you in the direction of the methodological “bible” on the subject. If you are unable to produce top quality results, you would be better off relying on allies with the resources to do the job properly because you will be discredited for pretending to have expertise you do not have. All that said, lethal results may be achieved by using a combination of the evidence given by your opponent, a nationally recognised research tool, laced with your own sharp wits. There are occasions when someone with a key interest in the ultimate decision cannot be seen to participate openly in the debate because they will have to live with the consequences of an adverse decision. However they can provide information to a broader group: provided it is in the public domain somewhere no one will ask about its provenance.

A common tactic is to get up a petition to demonstrate local feeling. Better still are personal letters, maybe based on a list of issues previously circulated to the community. Either technique is only of use if it supports existing policy: otherwise they are not worth the paper they are written on! Why? The reason is that policy is the product of a democratically elected Government, whatever your personal opinion of the voting system. Thus policy is the product of that elusive entity, the public interest, which should override the narrower local or sectarian interest.

Whilst evidence based on policy and statistics tend to dominate debates over planning, there is certainly space for the “tabloid touch”. LPA’s and Inspectors should be interested in what life is like at ground level now, and how you think it will change  if the proposed development goes ahead. A few well chosen words can paint a vivid picture in their minds. In the last twenty years it has become common practice to film certain events, even to the extent of hiring a small aeroplane to get dramatic pictures of, say, flooding. Skill is required to do this and editing is crucial: long minutes spent looking at an empty road or dangerous corner do not support complaints about existing traffic! Lastly, make sure that the equipment to show the DVD, or whatever, is available and working when you need it, together with copies for the Inspector to take away.

Organising the Evidence 

Once you have decided on your stance, set about constructing your case. It is never too early to start as there is never enough time available before you have to present it.

How do you decide which points are of a strategic nature and which should just play a supporting role? The former underpin the whole case because they are of fundamental importance to either the site, or the nature of the development. Recognising a strategic issue is rather akin to the proverbial elephant: difficult to describe but easy to recognise. Sometimes the central issue is given prominence by those proposing the scheme but not always: it can be hidden in the documentation or omitted completely, either by accident or design. In fact there is nothing mysterious about detecting the key issue: it is defined by the extent to which the whole case hangs on one point. You also need a yardstick against which the case will stand or fall, to which all sides assent e.g. a condition imposed in a previous decision, or a statutory limit on some sort of pollution.  If you can manipulate material to your advantage, then you are likely to win your case.

That said, too many cases are part of a cumulative process e.g. yet more housing putting additional strain on existing infrastructure and services. All you can do is to produce the best evidence you can about the effects on known pressure points. If you can document your concerns, patiently turning round the evidence on every single point, there is no reason why you should not persuade the decision makers. That said, much can depend on the political climate of the day. The mere promise of even the lowest paid jobs can defeat law and policy in times of recession.

Disputes over development are a zero sum game: a point to one side is a point lost to the other. Therefore you must recognise the strengths of your opponent’s case, and thereby lose the battle, all because you assumed the decision makers would share your blindness. What can you do to dilute their bull points? The repertoire of respectable techniques includes: 

• enlarging the context of the debate;
  
•  pointing out omissions in the evidence;
  
• and questioning the credibility of the source.
  

“Indeed, the ignorant have-not, don’t even know what he ain’t got.”
Ogden Nash

Just bear in mid that someone may be applying these forensic techniques to your case, so appraise it with a critical eye before it goes public. In a dispute taking place over a period of time, the focus can change. Subsidiary issues can loom large so do not omit them because you will be accused, quite rightly, of introducing new material which your opponents have not had a chance to look at. If you have at least mentioned that something could be an issue, then it is easier to build on it without wild cries of “Foul Play!” Your conduct has to appear to be reasonable. Flexibility and adroit manoeuvring are the name of the game. 

CONCLUSIONS 

Clearly land-use proposals come in a multitude of denominations and all shapes and sizes. The larger the proposal the greater will be the level of input by official bodies and qualified personnel. If your council is going to make any substantial impact on the result, it is essential to build alliances with other like-mined bodies, and choose the right people, professional and lay, to put across your case to best advantage. Other parts of this publication deal with specific procedures, but all of them supposedly operate in the public interest. This ethos has to be respected by your representatives throughout the process if they are to acquit themselves well in the eyes of decision makers.

The overall objective is to win your case by proving that your position, unlike that of the opposition, is supported by government policy and the broader values of our society. Therefore, having reviewed all the evidence available, and selected the facts to support your case, you boost the arguments in your favour and undermine those of your opponents. Truth, in the sense understood by the scientific community, is an early casualty in the battle for a decision in your favour. You will find that all is not fair in Love, War and Environmental disputes.

---

Next > Section 3 - Public Inquiries

---

Contact

Tel: 01227 471367
Mobile: 07710 457751 

Email: [email protected]

Planning consultancy for Town Councils | Planning Consultancy for Parish Councils |  Planning Consultancy for People | Planning Consultancy for Businesses | Planning legal advice

Wendy Le Las Associates 2011