Planning Inspectorate Newsletter - Issue 2
Cancelled and adjourned Planning Inquiries
Background
As part of our drive to improve performance and productivity, we are critically reviewing all our processes and systems, as well as the actions and assumptions that underlie them.
Some involve only internal issues but there are various practices and trends which involve our external stakeholders as well. A key area is in the management of planning inquiry casework. Whilst we have aimed to engage proactively with stakeholders over recent months, more remains to be done.
Last year we received over 23,000 planning appeals alone. Around 5% of the planning and enforcement casework we deal with is conducted through inquiries: that is some 1,200 per year. In addition we hold inquiries into a range of other casework such as Called-in planning applications, Compulsory Purchase Orders, and Drought Orders.
Inquiry casework is often high profile, is demanding and costly for all parties involved and requires careful “project management” if it is to be conducted effectively and efficiently. There are two particular areas that we are very keen to explore and resolve with Local Planning Authorities (LPAs) and the development industry:
- Instances where inquiries are fixed but are then cancelled; and
- Cases where an inquiry (or indeed occasionally a hearing) is arranged, opens but is then adjourned for reasons which could reasonably have been anticipated.
Cancelled Inquiries
For cases where the start date was between 1st February 2004 and 31st January 2006, of the 2,569 inquiries scheduled to open, only 1,578 (61%) actually went ahead (or, as at 31st January 2006, were still scheduled to go ahead). Of those that did not, 876 were cancelled as a consequence of the case being withdrawn (34%) and 115 were in abeyance etc (5%). Furthermore, of the 1,578 that did proceed, having been fixed with the agreement of the main parties and confirmed, no less than 118 (7.5%) had to be re-arranged at some point.
Some appeals are made against a background where there is no intention of, or perceived scope for, entering into discussion with the LPA. Others, however, are made in order to seek to protect a party’s position, pending discussions or revised applications. It is the latter on which we particularly and urgently seek constructive engagement with LPAs and appellants.
We have long recognised and understood why cancellations happen, but remain frustrated that they continue at such high levels. What appears not to be appreciated is the consequent and significant impact upon our ability to manage casework efficiently. It is in part responsible for the extended delays we are currently facing in arranging inquiries and other events.
An explanation of some of our processes may assist in putting the problem into context. Given the logistical and other complexities associated with arranging inquiries, we aim to ensure that when we confirm an inquiry date, we are certain that a specific Inspector is assigned to it. We then aim to ensure that the Inspector’s programme of other work is built around that commitment. Simply agreeing to a date and assuming that an Inspector with the appropriate skill sets for a particular case will be available would be highly risky, especially in a period of such high caseloads. Thus when inquiries –whether large or small - are cancelled because the appeal is withdrawn, it is not difficult to imagine the considerable complications and inefficiencies which arise. In addition to the abortive administrative effort, it is unlikely that it will be possible to re-assign the Inspector to casework which would have made optimal use of his or her abilities and experience and would have allowed another inquiry requiring his or her skills to be conducted. Obviously, the later that cancellation occurs, the more severe the problem.
We do not seek to curtail parties’ rights in any unreasonable way. However, we look to LPAs and appellants to acknowledge that the current level of cancellations is unsustainable, is in no-one’s interests and requires urgently to be addressed. We accept that it will be argued that part of the reason for the practice arising in the first place is that cases are currently taking a considerable time to be heard. However, it must also be accepted that the practice is itself contributing to the delays by introducing a major source of inefficiency in the deployment of our Inspector resource.
In drawing attention to these concerns, our purpose is to alert appellants and LPAs, and their advisers, to the incidence and impact of this practice. There is a clear common interest in seeking to reduce substantially the number of cancellations. It will allow the improved and more confident assignment of Inspectors to casework, assist with the reduction in the waiting time for inquiries and hearings and allow us to deliver our overall service more efficiently to the benefit of all.
Adjourned Inquiries and Hearings
Whilst raising different issues, the prevalence of adjourned inquiries and, to a much smaller extent, hearings, is another major source of inefficiency for the Inspectorate and thus for our stakeholders.
Again some context may assist. When a case arrives in the Inspectorate it is carefully assessed against a number of criteria, including its likely complexity, the skill sets required of the Inspector, whether the procedure requested is appropriate and (if it is to result in an inquiry) how long is required for the Inspector to prepare for and conduct the event and thereafter to write his or her decision or report.
On receipt of the case, there is little material on which to reach those judgements so we aim to conduct regular reviews of the file at critical stages (ie LPA questionnaire receipt, Rule 6 statements receipt, Pre Inquiry Meeting (PIM) – where applicable - and Proofs receipt, though the last is generally too late to be able to materially influence the programme). As additional material arrives the allocation and duration is reviewed internally and adjusted.
Nonetheless our ability to bring certainty remains governed by the material with which we are presented. The result is often that, other than where a PIM is held for inquiries that can be clearly identified at the outset as larger inquiries, it is only at the opening of an inquiry that it becomes apparent that it has no prospect of being completed within its allotted time.
This is not only highly frustrating and inefficient for the Inspectorate but for the parties as well.
In terms of inefficiency caused to the Inspectorate, we shall have assigned a programme of other casework to the Inspector concerned, often extending many weeks after the date of the inquiry in question, in the belief that the inquiry was accurately profiled and allocated. When that proves to have been misguided there is either an impact on other assigned casework (with consequent substantial administrative effort required) or the inquiry has to be resumed at a later date. This will sometimes be months into the future, according to the Inspector’s and other parties’ availability. This latter factor plainly also impacts adversely on the interests of the parties to the appeal.
We are determined to improve upon what is self-evidently an unacceptable situation and wish to work with our stakeholders to achieve this. We are already being more proactive in the management of casework where possible. We aim to contact the parties at an early stage to ask them, for example, to elaborate upon their cases (eg Rule 6 Statements where we regard them as inadequate), to confirm the number of witnesses they will call, to estimate how long they will take in presenting their evidence and to confirm that they are positively engaging with other parties on both substantive planning matters and the inquiry itself. However, bearing in mind the number of cases we deal with, such initiatives are highly demanding on our resource: we hope that our highlighting the issues here will prompt a positive response from all parties and “conferences” with one another to provide us with reliable programming advice.
The Inspectorate will be assisted by:
- LPAs giving precise and adequately explained reasons for refusal, which allow the other parties (and the Inspectorate) to appreciate the scope and extent of the LPA’s concern.
- Appellants/agents properly explaining the grounds of appeal. Whilst only brief details are required, this is no reason for them not being comprehensive, albeit concise. Such grounds assist the Inspectorate, and indeed the LPA, in understanding the case and the implications for its programming.
- Ensuring that Rule 6(6) statements fully particularise (as they are required to do) the parties’ concerns or the range of evidence which will be relied upon. They should be detailed in these respects and should explicitly identify the areas of evidence which will be brought (including the numbers of witnesses to be called and the time likely to be required to present evidence.)
- Using “project management” techniques on inquiry casework.
- The timely production of the Statement of Common Ground. This document is intended to reduce the time expended on non-controversial but important matters at the inquiry, but rarely attracts the investment in time and effort it deserves. We strongly advocate such investment.
- Improving the dialogue and engagement amongst the parties between the point of appeal and the inquiry. All too commonly elementary matters arise at inquiries which distract from the matters at issue and which should have been resolved beforehand.
- LPAs not leaving it until the last possible minute, following discussion, before withdrawing the reasons for refusal. Withdrawal is always welcome but when left until late, it can result in abortive work for the other parties and the unnecessary assignment of a specialist Inspector (who could have been assigned elsewhere and is unlikely to be reassigned optimally at a late stage.)
- Exercising discipline in the presentation of their cases so as to ensure that it is appropriate, relevant and proportionate to the case. This applies not only to the documentation but also to the manner in which parties, their witnesses and advocates conduct themselves at the inquiry.
- Over-elaborate evidence and its examination can not only extend the inquiry unnecessarily but risk distracting from the main focus of the cases.
- Providing required documentation on time, for example, proofs, summary proofs, draft conditions, completed Section 106 Obligations. Such failings variously result in poor use of inquiry time, uncertainty, the inability of the Inspector appointed to complete the decision quickly or report fully to the Secretary of State (where, for example, a S106 Obligation is not delivered until after the inquiry) and occasionally, the need for post inquiry correspondence.
- Involving, at the right time, any expert witnesses and / or advocates to scope and focus the LPA’s/appellant’s case. Delay can lead to late changes in a party’s case, which will have implications for the scope and duration of the event.
- Being proactive before an inquiry including, where it is felt appropriate, to question the Inspectorate’s suggested inquiry allocation and duration.
- Avoiding twin-tracking – ie the growing trend of which we have recently become aware for appellants to register an appeal, submit a further application, often with a significantly different scheme, ask for the two appeals to be conjoined at a single inquiry, then, once that has been agreed, to withdraw the first appeal. Where the schemes, and thus the evidence on impacts and other matters are similar and there is a reasonable lead time to the inquiry, such actions might not give rise to difficulties. However, there have been instances where new considerations have come into play very close to the inquiry and put the efficiency of the inquiry at significant risk. Such risks undermine the improvements we seek and we are currently establishing our response to such situations.
Conclusion
We are keenly aware of the pressures we and our stakeholders face as well as your expectations of our service. We are determined to improve that service but need your support and co-operation to do so. Our regional Inspector Managers are always keen to meet or discuss business improvement with our stakeholders and regularly address groups and fora in their regions. Please do not hesitate to contact them.
Martin Edwards (Barrister and Solicitor) will be writing in more detail in the next edition of the Newsletter on Best Practice at (and before) inquiries. In the meantime, we would invite all other parties with an interest in the inquiry process, to work with us. Please contact us with your thoughts and suggestions on the broad issues, but we also urge your proactivity on particular casework, whatever your interest, bearing in mind the issues we have outlined above.
Ben Linscott BSc MRTPI
Inspector Manager – SE & Chart
