When a planning inspector calls…

To many, the idea of reforming inquiry procedure might provoke the old adage: “Reform? Things are bad enough as they are.”

Are planning inquiries so slow and cumbersome that the only answer is to sweep aside the present system? Or could a sensible measure of reform improve matters? The planning and environmental law sub-committee of the City of London Law Society believes the latter and its inquiries procedure working group has produced a discussion paper. Here is a summary of its points.

Despite an overhaul of inquiry procedure in 1988 there is still dissatisfaction with key elements of the system. These criticisms have found resonance in recent comments from Secretary of State for the Environment John Gummer. Earlier this year he indicated the inquiry procedure would be reviewed and an exercise is under way.

We believe the main problem is often the failure to use the time before inquiries to prepare effectively, for example by agreeing basic facts and defining the issues in dispute. This problem frequently reflects a failure to comply with the Inquires Procedure Rules and the Government's good practice advice. That failure is exacerbated by the absence of any effective sanction for breach of the rules.

The objective should be to reach a situation at the inquiry where:

the main issues are clearly defined and focused;

the relevant facts are either agreed or the extent and nature of the disagreement recorded;

the parties are ready, with all the evidence served and the rules complied with.

It is not enough to prepare guidance and exhort the parties to comply. The rules should require steps to be undertaken in the pre-inquiry stage to achieve the identified objectives. This will make the inquiry the final stage in a process of defining and narrowing the issues and not an end in itself, to which everything before is merely “preparatory”.

We advocate new pre inquiry procedures backed by time limits and potential cost awards. To reinforce these procedures, we advocate encouraging inspectors to adopt a more active role, particularly in defining the main issues at an earlier stage, overseeing pre inquiry procedure and intervening to prevent unnecessary cross-examination.

Our proposed changes introduce two new important procedural steps: a statement of agreed facts and a pre-inquiry review. Breach of procedure will be subject to a potential award of costs following a “notice of cost property”.

It is proposed that when planning authorities serve their statement of case they can also serve a standard form statement listing the factual information which can be agreed on and to which the appellant will be obliged to respond. The process will culminate in a volume of agreed factual material for the benefit of the inspector and other inquiry participants.

Second, we propose a pre inquiry review, operating in a similar way to the pre-trial review in civil litigation.

At present, except in major cases, there is no formal mechanism for an inspector to deal with procedural matters before the inquiry. This stage will ensure the proposed reforms are monitored to ensure compliance. This forms part of the plan to give the inspector a more active role.

The pre-inquiry review will take place three weeks before the inquiry under the auspices of the inspector either by post or, for larger inquiries, in person. Its main purpose will be for parties to certify that the pre-inquiry procedures have been completed. For example, that all proofs have been exchanged and all facts agreed or the extent of disagreement identified.

Lastly we propose a new form of cost sanction. At present, there is no effective sanction for breach of the rules, save where unreasonable behaviour can be substantiated leading to recovery of unnecessary costs. There needs to be some form of overt “encouragement” to comply with the rules, other than relying on goodwill which does not always work.

We propose that if either party fails to comply with a time limit or otherwise breaches the rules, the other party may serve a Notice of Costs Penalty. If the breach is not rectified within seven days, the failure to comply would be deemed “unreasonable behaviour” entitling the other party to apply for costs at the pre-inquiry review or at the inquiry itself.

Hence the parties would be at risk of incurring costs before the inquiry. In most cases this should give sufficient impetus to ensure compliance – a party would not wish to go to inquiry with a potential cost award hanging over them.

The inquiry process is failing to deliver in important respects. The chief problem is the failure to use pre-inquiry time productively resulting in inefficient use of inquiry time.

We propose simple steps to improve the system, leading to more focused inquiries.

These modest reforms can easily be achieved without having to resort to primary legislation and should lead to more efficient and hence more cost effective inquiries.