INQUIRY GOOD PRACTICE THE PURPOSE OF AN INQUIRY 1. For many years the town and country planning legislation has provided an opportunity for the resolution of disputes between a prospective developer and local planning authority by means of an appeal to an independent third party. I refer to the resolution of disputes because although there is a public interest in planning decisions and third parties may have a very real interest in their outcome they normally only go beyond the local authority decision making stage if the developer is dissatisfied with the result and exercises a right of appeal. It is thus a well established and I would say vital part of our planning system that where there is a dispute as to the merits 1 of proposals for development there is a means by which that dispute can be resolved. The function of resolving these disputes is now largely and ably fulfilled by the Planning Inspectorate. This therefore is at the heart of an Inspector s role to resolve disputes. In order to do so the Inspector will need to identify the issues, weigh up and assess the evidence in respect of each issue and reach a reasoned decision. 2. But this is the function of an Inspector on every appeal and does not tell us what the purpose of an inquiry is as opposed to the purpose of all appeals. The vast majority of appeals are determined by the written representation or hearing procedures and inquiries account for only about 6% 2 of appeals. An inquiry is usually held because one or both of the main parties request one although there are cases where the 1 This embraces most appeals although obviously there will be some which are concerned with other matters such as the lawfulness of development. 2 I believe this figure is correct although I have been unable to find the source of it. 1
decision to hold an inquiry is prompted by the Inspectorate. Given that opting for an inquiry will delay determination of the dispute and significantly increase costs it is to be expected that the parties will normally have good reasons for wanting the appeal determined by this method. The prospective developer will wish to obtain planning permission and the local planning authority will want planning permission refused or at least only granted upon terms acceptable to them. Thus it is reasonable to assume that they wish the appeal to be determined by way of an inquiry because they consider it will give them a better prospect of success. Why? Because it gives them the opportunity to persuade the Inspector of the merits of their case. Further, although third parties do not have a say in the method by which an appeal is determined, the inquiry provides third parties with the same opportunity to put their case to the decision maker. This then is an important purpose of an inquiry to give the parties an opportunity to put their case to the decision maker and to persuade him that it is correct. 3. This is not merely a benefit to the parties but also to the public interest in good decision making: the decision maker will be better informed and thereby better able to reach the right decision. One way of illustrating this is to look at decisions challenged in the High Court. In my experience more decisions taken following the written representation procedure are quashed than those following an inquiry. Various points could be made about this but one is that a decision taken after an inquiry is likely to be a better one and almost certainly better reasoned. 4. Further, and this is fundamental, opting for an inquiry is no mere tool in the tactician s trade. The parties are likely to have strong feelings about the proposals. By 2
definition only one side can succeed and the losing party is far more likely to accept an unfavourable decision if they consider that they have had a reasonable opportunity to put their case and that it has been fairly considered by the decision maker. Therefore the opportunity to put one s case to an independent third party and for it to be fairly considered forms a vital part in maintaining public confidence in the administration of justice so far as the resolution of planning disputes are concerned. 5. A strong public interest therefore underlies the public inquiry system: not only that the decision maker will be better informed and therefore better able to reach the right decision but also maintaining public confidence that that is the case. THE ADVOCATE S ROLE 6. Just as the parties opt for an inquiry in order to persuade the decision maker of the justness of their cause so they employ an advocate in the belief that this is the best means of doing so. Not only does the client expect the advocate to put his case as favourably as possible, it is the advocate s professional obligation to do so. The Code of Conduct which applies to the Bar contains a number of fundamental rules which must be followed. One of them is that a barrister must promote and protect fearlessly and by all proper and lawful means the lay client s best interests and do so without regard to his own interests or to any consequences to himself or any other person (including any professional client or other intermediary or another barrister) paragraph 303(a). Taken together with the cab rank rule which means that a barrister must accept any brief to appear before a court in which he professes to practice this requires a barrister to promote his client s case whether he believes in it or not. Indeed it is 3
usually a positive disadvantage to believe in the case one is putting forward because it makes it harder to spot the arguments against it. A good advocate needs to be able to anticipate and thereby deal in advance with points which are likely to be made by the other side. 7. As well as fearlessly promoting the client s case barristers have a number of other duties under the Code of Conduct. These include that a barrister must not rehearse practice or coach a witness in relation to his evidence or the way in which he should give it paragraph 705(a) make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy other witnesses or some other person paragraph 708(g) engage in conduct whether in pursuit of his profession or otherwise which is dishonest or otherwise discreditable to a barrister paragraph 301(a)(i). A barrister must Finally in all his professional activities be courteous and act promptly conscientiously diligently and with reasonable competence and take all reasonable and practicable steps to avoid unnecessary expense or waste of the court s time paragraph 701(a). ensure that the court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contentions which he argues paragraph 708(c) A barrister has an overriding duty to the Court to act with independence in the interests of justice: he must assist the court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court paragraph 302. Solicitor advocates are under similar duties, see Rule 16A of the Solicitors Practice Rules 1990 and the Law Society s Code for Advocacy in particular rules 2.1, 2.2, 2.3, 6.1, 6.5 and 7.1. 4
8. The Inspectorate have a right to expect advocates to adhere to all these rules and so far as is practicable an Inspector should approach the conduct of an inquiry on the basis that they should and will be adhered to. TESTING THE EVIDENCE 9. Testing the evidence is one of the most vital parts of an inquiry. The Inspector s role is a quasi judicial one. This means that although expected to draw upon his own professional expertise the Inspector must decide the case on the basis of the evidence put before him. A crucial feature of the decision making process is deciding what weight to place upon the evidence and in this the testing of it by oral questioning is often invaluable. 10. There is one point to bear in mind before the evidence is ever tested orally. This is that because the witness writing the proof or report knows that it is going to be the subject of cross-examination, more care will have been taken in its preparation. The witness will know that any assertions or expressions of opinion may be challenged and will therefore restrict himself to those which he believes can be properly supported when tested. As Lionel Read QC put it Hence, somewhat paradoxically perhaps, a good deal of the benefit to the Inspector of cross-examination is achieved through anticipation of it. The quality of the evidence before him is measurably better before it is in fact cross-examined. The Benefit and Purpose of Cross-examination [1997] JPL [24] at p.32. 11. For practical purposes any evidence is admissible at a planning inquiry. However, evidence can only be taken into account in reaching a decision if it is material to the 5
issues in hand i.e. relevant. Where evidence is called before a court which is not relevant it is rare for a judge not to intervene and seek to exclude or curtail the document or testimony. In my experience Inspectors rarely do this and it is one area where there is scope for more intervention. Clearly a certain amount of care needs to be taken. If there is any doubt about the relevance of evidence it is perhaps better to hear it and then weigh up its importance rather than exclude it altogether. Failure to have regard to a material consideration is one of the classic grounds upon which a decision may be quashed as unlawful. 12. However, in a clear case there is no reason for evidence not to be excluded and the Inspectorate should be encouraged in this respect by a recent decision of the Court of Appeal. An Inspector determined an enforcement notice appeal which was being pursued on grounds (b), (c), (f) and (g). The ground (a) appeal and deemed application had lapsed because the appellant had failed to pay the necessary fee. The appellant sought to lead evidence in support of the ground (f) appeal that requiring removal of the development enforced against would cause greater planning harm than allowing it to remain i.e. evidence as to the planning merits which should be led, if at all, on a ground (a) appeal. This was resisted by the local planning authority and after hearing submissions the Inspector ruled all such evidence as inadmissible. A challenge to the decision on the basis that the Inspector had wrongly excluded relevant evidence failed. The Court of Appeal said that the Inspector was right to restrict evidence and argument in the way that he did. [Counsel for the appellant] described it as a bold and unusual decision, but it was a decision I would commend. Parties to planning appeals should not be permitted to spend time and incur expense in support of arguments which are bound to fail. Wyatt Brothers (Oxford) Ltd v. SSETR [2001] EWCA Civ 1560 para. 34. 6
13. Before turning to the testing of evidence by cross-examination a word about examination in chief and re-examination. It is or should be well known that the advocate is not permitted to ask leading questions of his own witness. Barristers rarely get away with asking leading questions in court yet they do so persistently at planning inquiries. This is another area where Inspectors could and should intervene more. We have all heard this sort of re-examination: Is this a well designed scheme? It assists no-one and should be stopped. Of course a certain amount of discrimination is called for. There will be a number of matters, particularly factual questions, where there is unlikely to be any dispute and a leading question is the simplest and quickest way of getting the evidence in Is the site in the conservation area? It is questions which not only suggest the answer but also a qualitative judgment which are most pernicious. The benefit or harm which a particular feature of development may cause is a matter of judgment, often very subjective, which should come from the witness, not be suggested by the advocate. 14. The main object of cross-examination is to elicit evidence helpful to the party s case and cast doubt on the weight to be attached to the evidence of the witness. Strictly speaking an advocate is under a duty to put his client s case to an opposing witness in cross-examination but the need for this is much diminished by the pre-inquiry procedures which require exchange of statements of case and written proofs of evidence. Additionally, a good cross-examination should leave the Inspector with a clear understanding of the advocate s party s case. 7
15. Testing the witness s evidence may involve probing the extent to which the witness has taken into account policy guidance, drawing attention to inconsistencies in the evidence, or drawing attention to a flaw in the reasoning. The latter sometimes involves the need to ask hypothetical questions. In my experience witnesses hate this type of question but it can provide a useful means of testing on a step by step basis the process of reasoning which has led the witness to a particular conclusion. 16. Not every cross-examination will be a good one. Some may be repetitious or involve bullying tactics. These can and should be dealt with by the Inspector. However, by and large cross-examination will have been carefully prepared in advance with the benefit of written proofs from both sides and consultation with the advocate s own expert. It will provide the Inspector with a great deal of information about the advocate s own case and that of the witness being questioned. It should be regarded as an opportunity not to be missed rather than an ordeal to be endured. 17. Where cross-examination is not proceeding as it should there are a range of ways in which an Inspector can intervene helpfully. First, where cross-examination is lasting longer than anticipated and is exceeding a time estimate which has been given, the Inspector can enquire how much more time the advocate will need. This will gently remind the advocate of the time estimate they have given which of itself may help to focus the questions. Where questioning is repetitious the Inspector may indicate that he has the point and the advocate should move on. However, the Inspector should be astute to the reasons for lengthy or repetitious questioning. It may be because the witness is prevaricating and failing to answer the question. In this event it can be helpful for the Inspector to ask the witness the same question directly. In my 8
experience a witness who is wary of cross-examination and resists answering a question put by the opposing party s advocate will readily give an answer if the question is put by the Inspector thus saving considerable time. Equally the witness may be giving very long winded and roundabout answers to questions. A prompt from the Inspector that the witness should try and answer the question directly can assist. 18. Finally, spare a thought for the participants in these circumstances. Cross-examination is an exhausting business. Advocates and witnesses get tired and this affects their concentration. Frustration can lead to tempers rising. An Inspector s job is to ensure that the inquiry progresses smoothly and an early intervention can assist immeasurably. THE INSPECTOR S ROLE 19. I have already referred to a number of key features of an Inspector s role: to resolve the dispute, weigh up the evidence, assist in the efficient conduct of the inquiry. 20. Many steps have been taken in recent years to improve the efficiency of inquiry procedures and by and large these have been very successful. In particular, the identification of the issues at the outset helps the parties to focus their evidence and submissions on the matters the Inspector wishes to know about. Inviting time estimates for the evidence and submissions assists in programming and concentrates the advocate s mind on their questioning. Further, although it has not been long in place early reactions to the practice of advocates sitting down during questioning appears to be favourable. On a purely practical level I have found that it much assists 9
the advocate s own note taking during cross examination. Other helpful practices are indicating at the outset of a witness s evidence which parts should be read and which not. 21. The new Inquiries Procedure Rules and practice have given rise to some uncertainty and confusion. A clear explanation of the procedure which the Inspector proposes to follow at the outset is helpful. For example, now that the local planning authority go first it is not clear at what stage third parties who oppose the proposal should give evidence. In practice this has varied at inquiries I have attended from between the local planning authority and appellant s cases and after the appellant s evidence has concluded. Practice regarding opening speeches is also sometimes unclear. At one inquiry the Inspector suggested that the local planning authority make short opening submissions before calling its evidence and the appellant should then make a proper opening submission prior to calling its evidence. I opposed this and not without difficulty persuaded the Inspector that both parties openings should be made before any evidence was called. Although the parties cases should be clear from the preinquiry statement and proofs of evidence, in principle it is inappropriate for one party to have the opportunity to make submissions and put its case in a particular way after the other party has completed its case. At that stage there would be no opportunity at all to lead any evidence to address a point which might unexpectedly have arisen. I have also noticed it is much less frequent now for Inspectors to indicate that third parties can question the witnesses whose case they oppose. Members of the public inexperienced at planning inquiries may find it difficult to distinguish between asking questions and making submissions but in my experience once prompted by an Inspector they are quite able to restrict themselves to questions rather than speeches. It 10
is appropriate that third parties should have the opportunity to ask questions if the planning inquiry is to be truly public and engage the involvement of local people. 22. To return to my opening theme the purpose of an inquiry is to enable the parties to put their case to the decision maker and for it to be fairly considered. The corollary of this is that the decision maker must sit and listen. It may sound trite but listening to the party s cases is very important. If the purpose of an inquiry is for each party to put their case as persuasively as possible the Inspector should be open to be persuaded. He should approach the issues and the evidence with an open mind, not having reached any pre-determined view of the matter. Such an approach will also assist an Inspector to make appropriate and timely interventions because inconsistencies and repetitions will be easily spotted. 23. An inquiry should be regarded as an opportunity for exemplary decision making. The Inspector has every opportunity to understand the party s cases, test the credibility and weight which should be attached to the evidence in support of them and to ask any questions he wishes. It is an opportunity to be embraced and I urge all Inspectors to make the most of it. Landmark Chambers 4 Breams Buildings London EC4A 1AQ ALICE ROBINSON 11