update January 2011
Representations were made to the Planning Inspectorate (PINS) on 8 May 2008 aiming to improve defects in inspector practice. Focus was on specific errors involving the following issues:
2. Inspectors cannot decide law, but they have to take a view to arrive at conclusions as to rights. They therefore need to be educated as to the principles of statutory interpretation.
3. Order Decisions must necessarily contain a summary of the arguments from the parties. To omit major elements will leave parties dissatisfied as to recognition of their case, and will invite misconceived appeals or hinder the process.
4. Where witnesses are clearly not impartial, evidence as to credibility must be accepted.
5. If significant events occur after a public inquiry is closed, the inquiry should be re-opened. It is wrong for a decision to be changed without giving the parties an opportunity to comment. This is particularly relevant where there has been a change in law, such as the commencement of the NERC Act 2006, and the reversal of existing law on appeal in the Winchester case. It also involves situations where Defra changes its public advice, which has recently happened twice.
6. (added in November) If a point of law occurs to an inspector which has not been canvassed with the parties, it must be exposed for comment. A patently wrong interpretation of the NERC Act had reversed the inspector’s conclusion, and this has since led to the order being quashed. Further detail is under “Interpretation of legal points individually by inspectors” on the “Contentious Issues” page.
All six issues were resolved and the points we made accepted in full. This took eight months, largely due to the ineptitude of the Quality Assurance Unit at PINS who eventually handed the problem back to the Rights of Way Section and thence to the Specialist Casework Branch. The latter apologised for the handling, and wrote a commendably gracious letter confirming that all points had been discussed in depth at a two day meeting of inspectors. Appropriate guidance was then given to inspectors.
The matter of inspector practices arose again in the case of Walna Scar Road in the Lake District – a highly disputed and much publicised case. The inspector disregarded almost entirely a 21 page submission from GLPG together with 7 appendices setting out new evidence. The inspector’s confirmation of his own modifications was appealed to the High Court on 9 grounds, of which the procedural error was the plainest. Defra conceded (with costs) and the order was quashed. The error by the inspector stemmed from a legal error in the PINS Guidance on inquiry procedures. This has been referred to the QAU in the context of a current review of the Guidance. Regrettably, matters have stalled due to financial cuts and the lack of resources to put right the error.