There Is No E In Inquiry

As the motivational cliche goes, there is no I in team. That’s as maybe. But, where I = Inquiry, nor is there yet any I on Teams (or on Zoom, on Skype, on BlueJeans, or even on Google Hangouts).

The Planning Inspectorate’s 28 April 2020 update Planning Inspectorate casework continues as first pilot digital hearing to take place in May makes interesting reading:

“We are continuing to issue decisions where we can and 1,625 have been issued across all case types since lockdown restrictions started. Not being able to visit sites and hold public events has, however, clearly had an impact on our ability to process cases and the time it is taking to reach a decision.

As explained in our guidance, to limit the spread of the Coronavirus we have postponed site visits up to the middle of May, as well as most hearing and inquiry physical events where these would otherwise have taken place in May. Our case officers have notified parties of event postponement until further notice. We will be issuing updated information on arrangements for postponed events as soon as practicable in line with latest government advice.

We have been able to progress cases where:

• the physical event was concluded prior to lockdown restrictions;

• no physical event is required to make a decision; or

• a physical event is still further in the future and preparatory activity can continue (e.g. via telephone case conferences).

New cases continue to arrive at normal levels and are being registered and processed as far as possible. As at 23 April, there were 9,591 open cases. In the last three weeks we have seen the number of open cases rise by 337.”

(It is encouraging, in passing, to note that appeals are still being made at normal levels – that is our experience too).

The Planning Inspectorate is anxious to reassure that it is moving quickly to catch up:

• “The first fully ‘digital’ hearing is due to take place on 11 May.

• We are preparing for additional cases to be heard by digital hearings/inquiries in May/early June with a view to scaling up digital events further over June/July.

• We are assessing postponed cases to establish whether they can proceed by digital, traditional or a ‘hybrid’ approach, in order to re-arrange these in due course accordingly.

• A trial of ‘virtual site visits’ is underway involving thirteen Inspectors.

• Five local advisory visits have taken place remotely (critical for helping Local Planning Authorities to progress local plans and reduce the length of examinations).”

But is this fast enough? Can more be done? Could we see a leap forward in the way that planning hearings and inquiries are conducted?

After all, the planning inquiry process has been constantly adapting. Planning inquiries were first introduced in the Housing, Town Planning etc Act 1909 to consider objections to town planning schemes. The right to appeal against a planning decision was introduced in the 1932 Act, and the 1947 Act provided that all appeals were to be determined by public inquiry. Weirdly to us now, the procedures followed and the reasoning for decisions was kept secret until changes were made to implement some of the recommendations of the 1957 Franks Committee on Administrative Justice. We still refer to the three Franks Principles, of openness, fairness and impartiality.

This is what was said by the minister of the time in a 1957 Commons debate on the report:

“I must, however, return to a point I made in the opening of my remarks, that we must not complicate the procedures more than we can help. The great majority of objectors and appellants are small people. Quite a few present their own cases without professional assistance and for most people it is essential that the procedure should be simple, intelligible, quick, and cheap, as well as fair.”

Dear reader, of course we did then complicate those procedures, often through changes made with the best of intentions. When I started practice, there was no advance exchange of proofs of evidence. We all read the documents for the first time as they were being read out by the witness. No rebuttal proofs, no laboriously prepared cross-examinations or written closing submissions. Every procedural step that has been introduced, introducing frontloading of appeal preparation and evidence (good), minimising surprises (good), has by a sidewind elongated and complicated the processes (bad). There may now be a much more forensic and detailed examination of the issues, but where have we left those “small people”?

The Planning Bar is obviously at the sharp end of the current slowdown and has been trying to move things along.

⁃ Various Landmark Chambers barristers published a really excellent paper on 21 March 2020, Fairness and public participation in video or telephone hearings for planning appeals during the COVID-19 crisis

⁃ On 1 April 2020 Kings Chambers put out this statement, Kings Chambers team up with Turley and Pegasus Group to record remote public inquiry test.

It is of course hugely frustrating that the massive improvements to the inquiry appeals system brought about by the Rosewell review (see eg my 25 May 2019 blog post Pace Making: Progress At PINS) have been undone by this pandemic. The Rosewell changes, unlike possibly every previous reform of any aspect of the planning system, did not add complications, but modernised and streamlined it in many ways, with telephone case management conferences and the like now the norm. I assume that everyone saw the interview with Bridget Rosewell on last week’s second episode of Have We Got Planning News For You? Her frustration with the Inspectorate’s present apparent slowness to get virtual hearings and inquiries underway was apparent, talking about the need to “move forward as soon as possible” and extolling the “fairer access” that can be achieved in a “virtual environment”.

We should listen to Bridget.

(Indeed, to go off on a tangent, if I were Secretary of State for the day, I would presently quietly shelve “Planning For The Future” and instead ask Bridget, very nicely, to carry out “Rosewell 2”, this time a review, with similar practical focus, in relation to the planning application process, so as to identify opportunities for simplification and reduction of unnecessary paperwork. Step by step there are surely simple opportunities for improvement. Off the top of my head:

– Recommended word limits for supporting documents such as Planning Statements, Design and Access Statements and Environmental Statements (or application fee linked to size of the documentation)

– Removal of need for multiple hard copies of documents

– Modernisation of publicity requirements

– Recommended word limits for officers’ reports to committee

– Standardisation of wording of planning conditions

– Updated model section 106 agreement template (the Law Society’s current so-called template draft agreement dates from 2010!)

– Updated advice as to the types of application which properly should be dealt with by way of officers’ delegated powers

Do it!)

But of course, moving to virtual appeals, even on a temporary basis, is not easy. The interests of all participants, and potential participants, in the appeals process need to be taken into account. Whilst justice delayed is justice denied, justice has to be both done and be seen to be done.

I was struck by an assertion in the Landmark Chambers paper:

“ It is safe to proceed on the basis of a presumption that every participant in a planning appeal will have reasonable access to a means of participating in a remote hearing session unless they provide evidence to the contrary. Virtually every household has a telephone, and the vast majority of people have access to a computer or mobile device on which video conferencing is possible.”

This isn’t still true for a few members of my own family (well they all have a land line – but certainly couldn’t be expected to follow proceedings on a telephone). And indeed whilst the chattering classes are currently going on about Zoom and the rest of it, I know that many are finding it very difficult to access or be at ease on these platforms, surrounded by us lawyers and others who inevitably spend much of every day now speaking with a variety of people on screen and unwittingly developing new social norms and cues.

Any procedural solution does needs to meet the three principles set out in the paper:

– The common law requirements of fairness;

⁃ Article 6(1) ECHR – the right to a fair trial in civil cases;

⁃ Article 6 of the Aarhus Convention (“public participation in decisions on specific activities”).

But decisions as to procedure also need to have regard to “protected characteristics” under the Equality Act 2010, which of course include age and disability. Bridget is right that virtual hearings and inquiries would allow many to engage with the process who currently cannot, which is great as long as there are protections to make sure that some are not excluded.

In my view this is perfectly achievable for the majority of hearings and inquiries. I accept that (1) the inquiry process is very different from the court process and we cannot simply “read across” and (2) even in relation to the court process, there were some words of warning this week from the Court of Appeal in a family law case, Re A (Children) (Court of Appeal, 30 April 2020) – see paragraphs 49 to 56. However, let’s analyse the real position:

The only parties entitled to appear at a hearing are the appellant, the local planning authority and defined statutory parties. Everyone else is at the discretion of the inspector. As long as the inspector is confident that there is no third party, from whom the inspector feels he or she should hear, and who cannot participate adequately by some remote means, why should not virtual hearings proceed, as long as the proceedings are able to be viewed remotely (perhaps also with a transcript of what is said – not difficult at all – where there is any doubt as to whether there may be interested parties without adequate screen access)?

At inquiries, the parties only entitled to appear are the appellant, local planning authority, defined statutory parties and those who have (at their own request) become rule 6 parties. Again, if all of those parties are in agreement (with possible adverse costs award consequences for those who unreasonably refuse) and as long as the same approach can be taken in relation to other parties, why cannot inquiries proceed?

Site visits are less of a problem, whether accompanied or unaccompanied, and whether in fact still always needed, in the light of visual material now available.

Furthermore, as long as there are indeed adequate protections for those who should be heard at the hearing and genuinely cannot reasonably be expected to participate remotely, the change to a virtual process has the benefit of opening up access to so many other people. And imagine the benefits in future of being able to offer a “virtual” evening session at the next inquiry at your local town hall? That surely would be participative democracy.

Which is a long way of saying: I agree with Bridget.

Simon Ricketts, 2 May 2020

Personal views, et cetera