Section 3
Public Inquiries

As your council may know to its cost, only developers have the right to appeal. This is a historical accident. In the nineteenth century only property owners had the vote and they had an absolute right to do as they wished with their own property. In order to restrict their rights, in the good cause of promoting public health, they were given the right to appeal to the Minister. Although both suffrage and environmental consciousness has expanded, the development industry has effectively blocked moves to introduce third party rights of appeal because it would prove an impediment to the 21st century god of economic growth.

From the end of WW2 until the mid seventies the “public inquiry” epitomised the planning system: a quasi judicial drama   in which one protagonist took on all parties in front of an inspector who reported to the Minister responsible for the decision. However those days are long gone. Since then there has been relentless pressure to speed up the system. The vast majority of appeals are dealt with by Written Representations and Hearings, and decided on by the inspectors themselves. Even in the last year or so there has been a seismic shift in the number of cases in which there is any sort of public forum. Proposals for housing estates are now decided by means of Written Representations.  In terms of the public purse, Inquiries cost three times more than Hearings and eight times more than Written Representations.

If your council feels strongly that face to face community input is essential, then you must lobby the members and officers of you LPA. It has to persuade the Inspectorate that there is widespread public interest even to get a Hearing. The traditional “wig and gown” inquiry is confined to major cases, in which the evidence needs testing by means of cross-examination and most of the decisions are taken by the Secretary of State. Some of these will be appeals and others call-ins. The Inspectorate has the final word was to which procedure is to be used and at any stage an appeal may be upgraded to a hearing or an inquiry as it becomes plain that the subject is more complex than expected. It used to be the case that costs could not be awarded in written representation cases but now, in the spirit of equity, they may be awarded against party abusing the appeals system: see Circular 03/09 Costs Awards in Appeals and other Planning Proceedings for details.

This chapter sets out the ground rules for contributing to and participating in Written Representations, Hearings and Public Inquiries.

THE INSPECTORATE

Like other branches of the Civil Service, the Planning Inspectorate has become an Executive Agency (www.planning-inspectorate.gov.uk), with its headquarters in Bristol, known in the trade as PINS – retired Inspectors are known as Rusty Pins. Their division in Cardiff, complete with Welsh speakers, long predates devolution.  The background of inspectors is in the land-use planning professions in the wider sense: planners, surveyors, architects, and engineers. A number have qualifications in more than one of these. There is a hard core of salaried inspectors, specialists in certain areas, plus a floating population of fee paid inspectors who are brought in during times of peak demand to do Written Representations and Hearings. All inspectors undergo regular training to keep up with the latest legislation and best practice.

The cardinal rule is that inspectors have to be impartial. Therefore they are never given a case where they live or have personal connection.  This should be borne in mind when preparing and giving your evidence. Put yourselves in their position and think what you would need to understand the situation: supply a history of the site with dates of what happened when, plus maps, photos related to a map, DVDs etc. Spoon feed the Inspector so that he or she can get into the material easily rather than puzzling where that piece of evidence fit into a rather confusing jigsaw.  

Their individual professional background is likely to be a factor when more complex cases are assigned. Architects, for example, are assigned to cases involving listed buildings and landmark structures. Which school of architecture they attended can determine whether they are of the traditional or modern school, and this can be a major factor in their decisions. Surveyors tend to deal with major commercial developments like office complexes and shopping malls, and engineers to structures like roads, bridges and waste tips. Inspectors are updated on the latest advances in their field but in really specialised cases they may acquire the help of an assessor who sits alongside the Inspector, takes no part in the proceedings but advises the Inspector behind the scenes.

 Inspectors also have their own private lives and interests. They will opt out of cases where they think their interest might be prejudicial e.g. a passion for narrow boats would preclude adjudicating on canalside developments. They go to extraordinary lengths to appear anonymous: telephones are ex-directory, car stickers and child seats are removed, and preferably they park out of sight, albeit sometimes at the risk of a parking ticket. They may even go as far as hiring a car rather than use their own. When an appeal is heard by Written Representations the only time you meet the Inspector is on a site visit. In the good cause of impartiality he or she has to loiter in their car until opposing parties have arrived, and cannot accept a cup of coffee on site or even have a comfort stop. Not surprisingly Inspectors pool information on local hostelries.

GOING TO APPEAL?
 
Objectors are often suspicious of these discussions but the government has made it plain that going to appeal is a last resort and therefore that developers and LPAs should continue to talk in the hope of resolving the matter, thereby enabling the appeal to be withdrawn. Appellants need to think about whether they would appeal before they get a refusal or a non-determination from the LPA. They need time to get organised in terms of getting together the paperwork, especially if using the fast-track Written Representations procedure. Objectors also need to keep their ears to the ground as to whether an appeal is being lodged and which procedure will be used in order to make the most of their opportunity to be heard.

WRITTEN REPRESENTATIONS
 
This procedure now handles 80% of appeals. It is suited to straight forward disputes where the status of the appellant or the truthfulness of the evidence is not in question. Written Representations are divided into two categories: householder appeals, and the standard Written Representations appeal.

Householder Appeals
 The Regulations governing Householder appeals are to be found in Part 1 of S1 2009/452. 

The Householder Appeals service is an accelerated version of the standard Written Representations procedure. Precisely which type of proposed development falls into this class of appeal can be found in the PINS Circular on Planning Appeals and Called-in Planning Applications (PINS 01/2009 April 2010). Included are house extensions, garages, ponds, swimming pools, and also variations in existing conditions. More contentious issues like alterations to flats, changes of use, or a new house in the garden would be handled by the standard written representations procedure (see below).  Householders have only 12 weeks in which to lodge an appeal.

The Householder Appeals Service is an electronic service and the only documents which come before the Inspector are those submitted during the development control process. There is no opportunity for anyone to submit further views at the appeals stage. It is a cheap and cheerful ways to settle minor disputes. However it does mean that if your council is concerned about a certain householder proposal which could take this route to appeal, then all your objections must be submitted to the LPA at the development control stage because you won’t get a second chance. If your council is really unhappy with the use of this procedure, perhaps because:

• in your view the proposal does not comply with the requirements in the Circular; 
  
• there was an error in the material  submitted to the LPA;
  
• circumstances on the ground have changed substantially;
  
• and/or new policies relevant to the case have been published,
  

then it should lobby your LPA and indeed PINS because it is the final arbiter in terms of the procedure to be used.

Standard Written Representation Procedure
 The Regulations governing standard written representations are to be found in Part 2 of  S1 2009/452.

Within two weeks of an appeal being lodged your council will be notified by the LPA, assuming of course, that you participated in the development control stage. If your council has anything to add to your initial comments then this is the time to send them in promptly, together with photographs, maps etc. Submissions which arrive after the closing date will be returned to sender.

Given that Written Representations now deal with much larger cases, you should also give some thought as to who else should be involved. Does the case affect the interests of;

• another local council?
  
• a government agency like Natural England or English Heritage?
  
• local schools?
  
• providers of social services?
  
• local shops and businesses?
  
• the local wildlife trust?
  

 Even if these bodies did not participate at the earlier stage, supply them with the number of the appeal (look for the APP/ reference on letterheads) plus the telephone number and address of the case officer within the Inspectorate, point out to them the final date when submissions have to be in, and suggest they make contact. If your council and/or other parties feel that the case ought to be upgraded to a hearing because of widespread community interest, do say so.  

Hearings Procedure

The Regulations governing Hearings are to be found by Googling SI 2000/1626 and SI 2009/455.

 The Hearing now accounts for 16% of appeals. It is particularly suited to proposals which arouse community interest and/or there needs to be some investigation e.g. whether or not the appellant is a gypsy or traveller, or whether that new dwelling in the countryside will really be used to house an agricultural worker.  Hearings are not “lawyers’ love-ins”: they are geared to people presenting their own case and the proceedings should not last longer than a day. At the discretion of the Inspector, your council can argue for a seat at the table and take part in the formal discussions. However members of the public may also get drawn into the discussion, and make an invaluable contribution. Do make sure that the venue is easily accessible to all those who may attend. Even LPA offices have meeting rooms not readily negotiable by wheelchairs or those who find stairs a major problem.

In terms of work, the actual Hearing is just the tip of the iceberg: there is much compiling and exchanging of documents by the main parties i.e. the appellant and the LPA. As interested parties, your council will be invited by the LPA to add to the comments you made at the application stage. All written and visual material has to be sent to the case officer in the Inspectorate within 6 weeks of the start of the appeal.

A Hearing is like a seminar in which the Inspector plays the grand inquisitor, who asks questions arising from the evidence produced so far. This does not preclude other parties raising other issues relevant to the appeal but the tabling of hefty amounts of new evidence would be frowned upon because adequate time has to be allowed for new documents to be read by other parties. Unlike site visits connected to formal inquiries, there is provision for the discussion to continue on site provided all sides are present. This practice is so sensible because the desirability or otherwise of the proposal becomes real when people are able to argue their case in its context.

The Inspector’s decision will be supplied not only to the major parties but also to anyone who has expressed an interest. It is also available on www.planningportal.gov.uk.

Inquiries Procedure

The Regulations governing public inquiries are SI 2000/1624 for those determined by the Secretary of State: this includes call-ins and appeals “recovered” from the Inspectorate because they raise issues of national interest e.g. energy supply.  SI 2000/1625 is used for those determined by Inspectors. These two sets of Statutory Instruments have been amended by SI 2009/455.

The role of the traditional inquiry has been much diminished by Hearings and Written Representations, and would be further eroded by the advent of the hearing procedure being introduced to handle large infrastructure projects.  Nevertheless there will still be cases which examines the application of government policy,  and/or gives rise to quantities of conflicting evidence needs testing by means of cross examination. The public inquiry is the last bastion of barristers and expert witnesses acting out their traditional roles in an adversarial setting. Developers have the incentive to press for an inquiry because around half of such appeals are “allowed” i.e. the Secretary of State grants planning permission, as opposed to a third by written representations and just over a third by hearings.

However the pressure is still on to reduce the time taken by the inquiry. Your council will be told that there is no need to actually appear: that sending in a letter setting out your views will carry equal weight. Whilst it is useful to be able to submit your views by post, it is not the same as making a personal appearance, any more than receiving a letter or email is the same as actually meeting someone. Given that most inquiries are now “transferred” to Inspectors, then appearing at the inquiry means that you would be putting your council’s view to the decision-maker. It should be noted that they, nevertheless, take the decision in the name of the Secretary of State.

Preparing your Evidence

Having decided on your strategic and subsidiary issues, your witnesses will advise your advocate on the issues involved, and then the advocate will decide how the case can be presented to best advantage, and devise a framework in which the expert witnesses will work. This is not a once and for all decision but basically it is the job of the lawyer to have an eye on the overall design whilst the experts focus on the details. Where a case is to be presented by members of a local group, the general thrust of a case has to be agreed between the team and the homework done. The difference is that time is saved briefing a stranger to the case. Cases evolve as news spreads that there is to be an inquiry: it not unknown for people with hitherto unknown expertise to come out of the woodwork and contribute to the breadth of the case.

Although collecting information may be a group effort, the actual writing up into a proof has to be done by the person who will be cross-examined on the day. Never include anything which will not stand up to forensic questioning. Even the most experienced professionals can look like fools in trying to defend someone else’s proof because they have not done the back ground reading or be acquainted with the underlying rationale of the argument.

Having done your research, and decided on your primary and secondary issue, it is essential to write up your case in the most accessible form. The front over should have the title of the inquiry and its reference numbers, together with the name of the witness and your council. It is a good idea to have different coloured covers for each document to enable you to find it in the heat of the moment. For the same reason each page and paragraph must be numbered, so that you can access specific passages when being questioned. 

Rest assured the Inspector and the opposition will have copies of the relevant legislation and policy documents, so that you do not have to type out tracts of text from PPS’s etc. Short extracts from other documents can be inserted into the text and longer extracts put into appendices: both need references as to where the complete document can be found because you are trying to impress people with the weight of your evidence. Wherever possible use visual material: maps, photographs, computer mock-ups, tables, diagrams and DVDs. These too require numbering. It is a good idea to put photographs in an album and provide a map showing the location from which the shot was taken. Bind petitions into a single document. Everything has to be reproducible and portable. The case officer or Inspector will say in his or her Notes how many copies will be required, which can be quite daunting, and that is without additional copies for the press and emergency use. 

If the main body of the proof exceeds 1500 words then it must have a summary, which appears on page 2 of the proof. An easy approach to producing the latter is to write one sentence per paragraph. The length of the summary should not exceed 10% of the original document. It is the summary which is read out at the inquiry although witnesses are cross examined on the whole proof so it is essential to immerse yourself in the case before taking the witness stand. There are bound to be points which have come up since you wrote the original. If some major event or policy document transforms the situation after you have submitted your proofs, then ask leave of the inspector to amend your documents, or indeed, produce a supplementary proof. Skilled players can interject extra items into their summary as they go along. Normal mortals may prefer to wait until the end before making additions or saying that they agree with X or disagree with Y.

Lastly check and recheck documents for errors and inaccuracies. The larger the number of proofs and auxiliary documents the greater the potential for disaster. Get some hapless soul to read through the whole thing to check for typos e.g. HIV lorries and make sure that everyone is singing from the same song sheet. Even minor contradictions can provoke much merriment at your expense come the inquiry. You may need to explain how views have “evolved” rather than shifted. 

Count down to the Inquiry

The more contentious the application the more likely you are to hear that an inquiry is going to happen, if only via the media. You will only be notified by the LPA if your council made a submission during the development control stage, which underlines the importance of getting involved early. LPAs are only statutorily obliged to inform the local council in whose area the proposal will be situated and it is an eligible party at any ensuing inquiry. Neighbouring councils may not know about the original application and are therefore not informed about any appeal or be automatically eligible to appear at the inquiry. 

But all is not lost if your council wishes to get involved. Anyone can go to the LPA offices and look at the papers relating to that case and be charged a reasonable amount for making copies. In practice being “eligible” is meaningless because, unless someone is unhinged, Inspectors are geared to allowing everyone their say. On the other hand, being eligible does not bestow the practical benefit of getting on the circulation list for documents: this is critical to making a real impact on the inquiry.  If your council wants to do this, it must apply to the case officer at the Planning Inspectorate to become what is known in the trade as a “Rule 6 Party” i.e. Rule 6 of the Inquiry Rules quoted at the start of this section. He or she is likely to warm to the idea that granting your council Rule 6 status will shorten inquiry time. The case officer, masquerading as the Secretary of State, grants or withholds the right to Rule 6 status.

Having become a pukka Statutory Party your council will be obliged keep to the timetable –see the snappily named Guide to taking part in planning appeals proceeding by an inquiry. To start with your council will have to produce a Statement of Case within four weeks of notification. It has to be written in the future tense which seems strange, but the objective is to outline your case in sufficient detail for readers to understand its substance and, crucially, list the documents which you will be using to underpin the case. You will then be sent the Statements of Case supplied by other parties which are invaluable for the preparation of your proof(s) of evidence.

At larger inquiries, there will be a pre-inquiry meeting to which you will be invited. This is a great opportunity to get the measure of the Inspector, the opposition and your potential allies. The agenda is exclusively procedural: the location of the venue, hours of operation, the preferred format for proofs of evidence and supporting documents, dates when these have to be submitted, name, and the start date of the inquiry. At larger inquiries there may be a programme officer who acts as intermediary between all parties and the Inspector. The name and contact details of this person will be supplied at the pre –inquiry meeting. If your council has any pressing matters it wishes to discuss e.g. disabled parking or access, this is the time to air them. After the Pre Inquiry Meeting the Inspector will produce and circulate his Notes on what has been agreed. It may not look the most scintillating reading but you will find yourself referring to it again and again: make a copy in case it gets lost. Obey his instructions and you will keep the Inspector sweet from the start.

Some four weeks before the commencement of the inquiry your council will have to submit your proof(s) and any other supporting documents. The number of copies is specified in the Inspector’s Notes: it always seems excessive but the Inspector and all the main parties have to have their set and spares are invaluable.  No sooner have you drawn breath than the documents of all the other parties arrive. Of particular interest are those of the opposition.  These always appear to present an impregnable argument and your heart sinks. Then you apply your critical faculties, as suggested in Section 2, and plan your attack.

If your council is not a main party, then you can just turn up on the day with your evidence. However it is a good idea to send it in the day before so that everyone will have had a chance to digest your arguments and think of any questions they might like to put to you. Do not panic, Inspectors and lawyers representing the developers are always charming to local people: it would be bad form to be rude to them. As will be shown later, true cross-examination can be vicious but is reserved for professionals.

At the Inquiry
 
It is probably that the inquiry will be held in the LPA offices, which is convenient for their representatives if no-one else. LPA council chambers tend to be horse-shoe shaped and have good sound systems, provided the users are sitting down: there are lawyers who are congenitally unable to speak unless standing up and this can prove a problem. Another one is limited accommodation for observers. If you are expecting a mass turnout at a certain point in the inquiry, then ask the LPA for an audio-visual link to another room to accommodate the overflow.

If your council is responsible for the venue then the sound system can be the Achilles heel of the inquiry: there is no point in a public inquiry if no one can hear what is said, so do have a competent technician to hand. If a hall or hotel function room is used, then the layout of the furniture is like to be as seen in Fig.2.  Despite the formality of the proceedings themselves everyone pitches in to heave documents around and move the furniture when required.

Suits in sombre colours are the order to the day. Although such may not be your usual attire it is worth looking respectable so that the Inspector and others will take you seriously: you only turn up once in that scarlet number, with long earrings, a slit skirt and black stockings! Once in session silence prevails, apart from the distraction of people coming and going.  Those unfamiliar with this public ritual are strongly advised to sit in on sessions prior to their appearance because it calms the nerves. By then you have found the car park, located the toilets, and realised the opposition and the Inspector at just human beings and there is even the odd joke to break the tension.

Traditionally inquiries do not take place on Monday so that the Inspector can do background work and travel. Traditionally inquiries run from Tuesday to Friday, when they break at lunchtime to allow the Inspector to get home. Sessions run from 10 am – 5 pm with an hour for lunch. Sign the attendance sheet to be sure of getting a copy of the eventual decision. If you are lucky there is somewhere nearby to get refreshments. Sometimes there is an adjournment to allow for holidays and other commitments. If the inquiry continues for some weeks and you cannot be there all the time, do have an observer in the audience to note down anything of interest: it is not unknown for well behaved toddlers to do time at a public inquiry.

Ground Rules of the Game

Much of the ensuing discussion is devoted to making the optimum use of the quasi-judicial process either at an appeal or a called-in application in order to defeat your opponent. However the ensuing battle should never distract you from the fact that the objective of the inquiry is to convince the inspector of your case. He or she has the power to conduct the inquiry according to his or her discretion which could mean curtailing a cross-examination which appears to be achieving nothing or banishing disruptive elements. You may not agree with the decision, but it is unwise to protest. If you feel real injustice is being done then you can complain to the Planning Inspectorate. It will always defend its staff but will have word with the culprit which may improve matters.

The second most important person at an inquiry is the programme officer. Sometimes these are LPA officer’s seconded for the duration but there are those who travel the country doing the job, and maybe, living in caravans.  They are the Inspector’s right hand person, readjusting the timetable, guarding the library of key documents, making photo-copies and re-scheduling witnesses. Treat them well and they will do your council many a favour, and pass on useful information, not to say the gossip.

REMEMBER! REMEMBER! 

The only person you have to win over is the Inspector because he or she is likely to make the decision, or play a major part in influencing the Secretary of State.  In the heat of battle with your opponents, it is easy to get caught up in point scoring against the other side over minor issues. Do not waste inquiry time thereby alienating the Inspector.

On matters of substance, watch the Inspector’s pen. If nothing is being written, then you are not saying anything of interest, so move on to the next point. When you are making an impact, do go sufficiently slowly for the inspector to take notes. Some Inspectors are more interventionist than others, but it is open to them to pursue their own line of questioning.

A few tips on a personal level: call the inspector “Sir “or “Madam”; know the names of key players; keep your cool no matter the provocation; have the relevant papers to hand; and ask for time to confer with colleagues should new documents appear on the scene. Remember if an important witness is delayed or someone upsets a full jug of water, it is not the end of the world – it has all happened before and all the professionals in the room will understand. Confidence breeds confidence.

Order of Play

It is possible for your council to improve its performance by making optimum use of the various “moves of the game” during an inquiry. It is essential to understand exactly what you can and cannot do at each stage. It is maddening to, say, raise an issue, or miss the prime opportunity to nail an opponent’s witness because you did not realise that this was the only chance you would have. The following sub-sections set out the unwritten rules for presenting a case to best advantage in the order which an objector might play them.

On day one of the inquiry everyone arrives in good time to find their place and erect displays if any. Many members of the public will turn up, together with the media. Sometimes there are demonstrations outside the premises where the inquiry is being held. Usually these events are both colourful and good humoured, with the police in “football match” mode. Petitions may be presented at this point.

The Inspector begins by introducing himself or herself and reading out the official title of the inquiry. Then he or she “takes appearances” i.e. finds out who is appearing to represent whom. Next the developer’s counsel gives his name and professional rank followed by names of witnesses and their fields of expertise. He is followed by the LPA’s team leader introducing their team. On rare occasions Government Agencies may put in an appearance. More likely to take an active interest are other local authorities which could be affected by the proposal. Last in the queue of official participants are local councils. After them come NGOs, action groups and individuals.

If your council is fielding a team of people, then the team leader must introduce him or herself and read out a typed list of witnesses, with their addresses. Make sure the list is legible: it can be very embarrassing not to be able to read handwriting. Give this to the Inspector. Now is the time to explain that Mr. X, Ms Y or Dr. Z can only attend on Thursday afternoon because of work or other commitments. If this means that their evidence is given at a separate time from the rest of the case, then so be it. Typically stray witnesses are fitted in at the beginning or end of sessions so as not to disrupt the flow of the inquiry.

The typical batting order of an inquiry can be seen in Fig.3.  There was a time when the opening speeches by the main parties, took hours if not days. In these cost conscious days there have to be very good reasons for exceeding half an hour. Counsel just outlines the case and explains the interrelationship between the cases given by his respective witnesses. Where there is an enormous amount of public interest, all the team leaders may be required to do their opening speeches on the first day. This may include your council. Panic not! Just talk to a few bullet points about the main planks of your case. It is an opportunity to demonstrate to your community how you are representing their interests, and tapping into media coverage.  Assuming you have not already given your opening statement, your first opportunity to participate in the proceedings will be when you are asked whether you would like to question the opponent’s witnesses.

(i)                 Cross-Examining the Opposition

As a preliminary move you may wish to clear up any matters which are not clear from the evidence. If, having done some research, you understand the connection between X and Y, or the reasoning behind Z, then now is the time to ask the innocent questions. Sometimes “going on a fishing trip” can reveal some specious assumptions upon which you can capitalise throughout the rest of the inquiry.

You should only embark on questioning the opposition if there are points in their case which challenge your own. Careful preparation before the event is the key to success:

• Make sure you have got the right witness: it is futile trying to question the wrong guy. If necessary make arrangements beforehand with your opponent’s counsel or the programme officer for the witness to be present.
  
• With the help of your team, make an inventory of  topics which you wish to explore;
• Then make a list of questions per topic which gently manoeuvre the witness into agreeing with your position. Know their case well enough not to be thrown by the unexpected reply, and anticipate how you will get them back on track.
  

Having done your homework, you should have the confidence, on the day, to ask questions. This may sound obvious but a common pitfall amongst those new to the game is to make statements rather than actually challenging you opponent. If you do, then the Inspector will intervene. If possible ignore questions fed to you from another member of your team whilst you are cross-examining: it will break your concentration and you haven’t got time to research the possible replies etc.

Take time to write down the response to each question for future reference. Hopefully the Inspector will be taking notes so the inquiry will not be delayed unduly. Cross-examination is likely to be a rather ‘Stop/Go’ affair rather than an effortless crescendo.  Whilst it is an opportunity to undermine the opposition’s case, if it goes wrong then it gives them the chance to underline the soundness of their case. Thus cross-examination is a two-edged sword to be used with care. With thorough preparation and stacks of adrenalin you can make an impact.

(i)                 Opening Your Case 

Unlike local action groups, local councils have the advantage of being statutory bodies and the opposition cannot query their standing. It is just as well, in some instances, that the percentage turnout at elections is never mentioned! Your council’s case may be well supported in your community but it is important that the Inspector knows that too.  Stating it at the inquiry is no substitute for a mass turnout during the hearings at the inquiry. Inspectors know that people have better things to do than take time to sit through the proceedings and therefore this act of silent witness does not go unnoticed by the only person who really matters at the inquiry.

If you have someone playing both advocate and expert witness, they should explain this to the inquiry at the outset when introducing the case so that both the opposition and the |inspector know the score. As advocate, this person will have to stand to make their opening remarks and examine witnesses, then sit to give their evidence. It is a matter of brain activating legs at the right moment.

As to what you should say, just give a brief outline of your case: the “meat” will come from the witnesses at a later stage. Remember the professionals on all sides and the Inspector will have already read your council’s submissions. The advocate’s role is to refresh their memories and inform the audience and the press.

(i)                   Examination in Chief

The order in which witnesses should be called is your council’s decision but it tends to suggest itself, with the topic which encompasses the widest aspect of your case coming first e.g. planning or transport. Before examination in chief begins the relevant witness “takes the stand” (see Fig.2) which means that he or she can be some metres away from their advocate. Gone is that camaraderie of campaigning and preparing for the inquiry: you are on your own! The purpose is to test the credibility of the witness.

Expert witnesses state their qualifications, the firms they have worked for and relevant professional experience. They will read a summary of their proof, maybe interjecting remarks on events during or even outside the inquiry. Then the advocate will “play midwife” to important points in the proof e.g. the significance of certain statistics or reference to background sources. If the point is complex an advocate will summarise the argument in the good cause of “helping the Inspector”. Clearly this double act requires prior agreement if not rehearsal.

Each witness should introduce themselves, and state their address and professional or personal experience. Just because the witness does not have a string of letter after their name does not mean that their evidence is not important. Local people have invaluable experience of living and working in the locality. Furthermore they will have to live with the proposed development, should it go ahead, unlike the hired hacks around the room. This obvious fact should be stated: it will not be lost on the Inspector. Furthermore he or she will be delighted to move on from the endless arguments over policy and technicalities. It is an opportunity for them to be human too! Prior rehearsal of this double act is essential so that it goes off smoothly. If the witness falters, the advocate can always ask the question again from another angle, and hopefully get the response needed.

(ii)               Being Cross-Examined:

a)      Strategies and Tactics Deployed

Having psyched yourself up for cross examination, it may not happen. There are two possible reasons for this: that your evidence was incapable of being turned round to the advantage of your opponents; or that your evidence was so weak it was not worth the effort.

As has been said before, local residents are not subjected to cross-examination as such. It would be considered bad manners by the Inspector and your opponents also want to impress him or her. However there could be questions on your evidence. Remember that you have the advantage because of your knowledge and experience of your locality.

If your council is putting forward professional witnesses either drawn from within the community or brought in from outside, then the game of cross examination could begin. The secret of success is to stay calm and keep your sense of humour.  Do not allow yourself to be hurried: a pause before replying gives the appearance of a considered opinion even if the real reason is blind panic. Ask for a short adjournment if a new document is sprung upon you. If you are the wrong witness to deal with a topic then say so. The presence of supporters from your community is valuable for the morale of your witnesses: clever answers can come from nowhere when they are in a tight spot in cross-examination.

It is not uncommon for opposing counsel to commence proceedings by trying to discredit the witness in order to undermine his or her confidence and diminish the value of the evidence in the eyes of the Inspector. However this can backfire spectacularly with the witness affirming their expertise and the opponent’s counsel looking foolish. Typical lines of attack are the witnesses qualifications and your council’s consistency or otherwise on dealing with the issue.

Opening Salvoes

Counsel: What was the subject of your MA?
Witness: I bought it. It was £5 - good value for money at the time.
  (The witness had a MA Cantab.)

Counsel: What was the subject of your doctorate?
Witness: The XXX Inquiry which lasted for N days (a major planning inquiry, of 237 days)

Counsel: How do you know that every member of the seventeen local councils you represent agree with every word in your proof of evidence?
Witness: They have been paying me for the last four years. Believe me, if clients don’t like what you produce they prevaricate and at worst they refuse to pay you.

As a third party you will have had the opportunity to watch your opponent’s counsel in action and become acquainted with their style. It can range from charming, to the pedestrian or bullying. If a witness needs protection from unfair questioning, then it is the job of the team leader to step in to protect him or her.

The technique of cross-examination is varied according to the matter in hand. Sometimes the questions relate to each other and sometimes not. Mostly they require “Yes” or “No” type responses. But beware, the questions are carefully chosen to manoeuvre the witness into conceding a point in your council’s case and agreeing with your opponents. The overall objective is to demolish your case point by point by getting the witness to support the case of the opposition. If the witness refuses to cooperate, then counsel may circle again or drop the subject and return to it later. Such is the importance of agreement a daring counsel may even assert agreement where none exists.

A skilled cross-examiner will have a whole range of weapons at his disposal but these will only be deployed against witnesses who are more than equal to the challenge. If the above looks daunting, fear not. There are an equal number of techniques available to counter-attack.

EXASPERATED NANNY

“They spent yesterday afternoon throwing their toys around and were in grave danger of being sent to bed with no supper”

Senior Inspector on the conduct of certain QCs at a big inquiry.

a)      Being Cross-examined: Means of Counter-Attack 

Witnesses do not have to fall over themselves to concede. Instead you can use the occasion to assert your council’s case and destroy that of your opponent. If you can divine where the line of questioning is leading, you can jump the gun and deny the implications of the questions. Alternatively you can turn the question to your advantage by putting the other side of the coin. The expertise of the witness, be it technical or based on local experience, can transform the answer to a question to expose a gap in the knowledge of their opponent. Hypothetical questions are best dealt with by hypothetical answers. Lastly take your time on tricky questions: work out the extent to which they apparently agree with you, where you part company and which of the above techniques you can use to deal with the remainder of the question.

If things get difficult, ask for the question to be repeated. If you have the confidence, redefine the question and answer that one, and/or, isolate yourself from the view of your council by giving a personal opinion. If, at last, you have to concede the point, you can always diminish its value by enlarging the context. If cross-examination has made inroads into your case, then there is the opportunity to repair the damage during re-examination. 

(vi)                      Re-examination  

Clearly in the case of the advocate cum witness, this poses a problem. However the best course of action is to ask the Inspector’s leave to re-examine yourself, and come back on certain points put during cross-examination, with further thoughts.

Where there is both an advocate and witness, they may well be separated spatially and unable to confer because re-examination follows on directly from the cross-examination. It is therefore essential that the witness understands the purpose of this procedure: it is to have another “bite at the cherry” on points where the witness partially or completely fell down. It is therefore essential that the advocate keeps a note of questions and answers during the cross-examination. If something is irretrievable, drop it! Otherwise you risk underlining the victory of the other side. Witnesses must remember that the advocate is on their side, even if it feels like “friendly fire”. The difference is that you get the thumbs up when you produce the right answer.

(vii)            Inspector’s Questions

Inspectors like to appear inscrutable, barring the odd flash of humour or irritation. However he or she may ask questions at any stage in the proceedings, but most likely after cross-examination or re-examination. The question itself is of interest because it indicates which matters are of concern to him or her. Very often they will pick up on something which has been said by your opponents and want to hear your view. If you have been on the defensive during cross-examination, do adopt a more open and helpful stance towards any enquiry from the Inspector. He or she is not just interested in policies and technical matters, but is equally concerned about the local version of the history of the site, your council’s view of current conditions in your locality, and how you think the proposal would impact on your community. So make the most of the opportunities presented by answering the Inspector’s questions.

(viii)          The Closing Statement

Only the main parties are obliged to produce a Closing Statement but your council may be given the chance to summarise your case. The objective is to make it look as though it is completely intact, completely unaffected by the ravages of your opponents or challenging events outside the inquiry.  The only difference from the Opening Statement is that you mention supportive evidence or happenings which have cropped up during the proceedings. All concerned will be grateful for brevity and wit if you are reading your Statement to the Inquiry. If no one on your council can do this in person, send in a written copy before the close of the inquiry.

(ix)                      Changing Positions 

Sometimes those putting forward a proposal will alter it in some way during the course of an inquiry. Your council should ask for time to consider the new situation and then make another appearance at the inquiry or submit a written statement setting out your views.  

That said it is sometimes possible to work out a compromise acceptable to you and those putting forward the scheme. From the point of view of all concerned there could be some tactical advantage that people are appearing to be reasonable. However, remember that the Inspector is taking a decision on the proposal before him or her at the beginning of the inquiry: it is their decision whether or not the compromise suggested is in the public interest. 

(vi)                      Community Interest

During the course of the inquiry local people will be listening to the proceedings and even if they did not intend to participate at the outset, they will realise that the Inspector ought to be put straight on a thing or two. They will look to your council for advice on how to do this. There are times when an individual can say things which are helpful to your council’s case but it would be impolitic for you to say in public. After your evidence is completed there will be an opportunity for members of the public to have their say in the witness box. They need to tell the inspector or the programme officer that they would like to speak and arrange a time.

Most people are not accustomed to public speaking. To calm their nerves and assist the Inspector, they need to produce a statement setting out their name, address, professional experience, if relevant, and what they want to say. Ideally copies should be made and circulated the day before the individual appears.  The Inspector will ask if they would be prepared to answer questions. Encourage them to do so. Advocates are always gentle with local witnesses, if only because local knowledge can be lethal to the developer’s case and Inspectors usually drop their inscrutable mask and enjoy becoming a human being discussing a matter of mutual interest. So do encourage local witnesses who could really make a contribution to the debate.

The Last Chance Saloon

There will be people who, for whatever reason, cannot appear in the witness box, or indeed have already appeared and wish to put in additional evidence in the light of what has happened since. What should they do? The answer is that they should write in to the case officer in PINS. The Inspector will receive new information until he or she utters the momentous words at the very end of proceedings “The inquiry is now closed” 

(vi)                      Legal Agreements

As you can see from Appendix 1, these can now be comprised of conditions, s.106 agreements and the community infrastructure levy. As representatives of the community there is no reason why your council should not work with an amenable LPA on these vital legal agreements. If you get no joy from the main parties liaise with the Programme Officer or write directly to the Inspector.

(vii)            Costs

The last move of the game, within the inquiry itself, is likely to be the gladiatorial battle between the main parties over costs. In these days of financial austerity there is an even greater incentive for developers and LPAs to want to recoup some of the costs involved in the inquiry. It is rare for third parties, let alone local councils to be involved: your council would have to have caused a major disruption to proceedings in order to qualify. However you may feel aggrieved at the stance of others and fancy retrieving some money from more affluent parties.  To find chapter and verse on the subject, see Circular 03/09 Costs Awards in Appeals and other Planning Proceedings, Part D for details.

(viii)          The Site Visit

An inspector is entitled to make an unaccompanied site visit before the inquiry and is bound to do so that he or she has some direct experience of the locality. However he or she will not be able to go on site unaccompanied: a view from a public vantage point will have to suffice. During the inquiry the Inspector is likely to be living in the vicinity of the venue if not the site, this experience can provide invaluable information about the area e.g. rush hour traffic.

However, during or after the inquiry, the Inspector will make a visit to the site and surrounding area accompanied by the developer, the LPA(s), statutory and eligible parties. If you wish the Inspector to go to a certain place and/or at a certain time, you must make arrangements beforehand. Your council will not be able to argue your case on this occasion. Make a list of things that you want the inspector to see and point them out as you go round. As with any live performance there are risks involved e.g. traffic conditions and the weather, but never underestimate the importance of this stage of the inquiry as the Inspector will be unfamiliar with the area. It is your job to make sure the site visit brings to life what you have said at the inquiry and makes a lasting impression in the Inspector’s mind whilst he or she  is writing the decision letter  or report to the Secretary of State. 

(ix)              The Decision 

The inspectorate will send a copy of the decision to:

• The applicant or appellant;
  
• The LPA(s);
  
• Those who signed the attendance sheet at the inquiry;
  
• Anyone else who wants a copy.
  

Nowadays the Inspector and even the Secretary of State have to give a date when the decision will be reached. If there are further consultations due to new government policies or the need for further information, the decision date may be postponed once, or even twice.

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