CMS INQUIRY

	DEPARTMENT FOR ENVIRONMENT, FOOD & RURAL AFFAIRS PUBLIC RIGHTS OF WAY: RULES FOR PROCEDURES FOR INQUIRIES AND HEARINGS HELD UNDER THE HIGHWAYS ACT 1980, WILDLIFE AND COUNTRYSIDE ACT 1981 AND TOWN AND COUNTRY PLANNING ACT 1990 RESPONSE FROM THE OPEN SPACES SOCIETY, MAY 2002 INTRODUCTION
1	The Open Spaces Society, founded in 1865, is Britain’s oldest national conservation body. A registered charity, we campaign to create and conserve common land, village greens, open spaces and rights of public access, in town and country, in England and Wales. We have 2,350 members consisting of individuals, organisations and local authorities.





2	The society is a prescribed organisation, required under the Wildlife and Countryside Act 1981 to receive copies of all public path orders, and is consulted on path changes by local authorities. Our local correspondents appear at numerous public inquiry and hearings and take part in written representations.




3	We find the way the consultation paper has been set out to be confusing since the questions in boxes sometimes refer to other rules than those listed. We have tried to deal with all the matters under the right headings.



4	Please note that we oppose rules for inquiries and hearings and therefore our comments on the proposed rules are without prejudice to this opposition.


	GENERAL

	A. Do you believe that rules for inquiries and hearings would be of benefit to all parties?

5	No, we do not. We believe that rules will discourage many members of the public from giving evidence at inquiries and hearings, because many who attend these are doing so for the first time and will find the formality off-putting. It is most important that anyone who has a contribution to make is encouraged to do so. Many people are put off by too many rules and too much bureaucracy. We have evidence that schemes which have rules already, such as the Transport and Works Act 1992, alienate the public. It is quite an ordeal for people to have to stand up and give evidence and then be questioned and cross-examined by the county solicitor or a barrister, or by the landowner’s solicitor or barrister.









6	Voluntary organisations and individuals are already at a severe disadvantage, not having the resources to employ legal representation or to produce many copies of professional-looking evidence. Nor do they have the time for this. So to make this fairer, any changes should be to assist volunteers. These rules would do the opposite.




7	In the case of the Town and Country Planning Act (TCPA) 1990 s247 and s257, and the Highways Act (HA) 1980 s118 and s119, it is the public’s rights which are compromised by landowners, developers or local authorities. Therefore the public should be assisted, not deterred.




8	If any rules are to be introduced, we submit that there should be a distinction made between the procedures for Wildlife & Countryside Act (WCA) orders and those for TCPA and HA orders. In the case of WCA orders, there is usually a need to examine much evidence and therefore a public inquiry is normally essential. No doubt objectors to path claims have behaved unhelpfully in not giving prompt notice of their evidence, and therefore rules requiring evidence to be submitted some weeks ahead might be acceptable.







9	There should in any case be accepted good practice with regard to the timing of information, but it is sufficient for inquiries and hearings to continue to follow the rules of natural justice. People must still be able to turn up on the day and speak without having notified anyone or sent in information ahead. The proposals could prevent this from happening.





	B. Do you believe that the parties concerned would adopt a voluntary procedure for orders dealt with through written representations?

10	It is not clear what voluntary procedures are envisaged. We consider the existing guidelines to be sufficient and we believe the parties would adopt the current procedure. It must remain informal and be designed to encourage full debate. Both the order-making authority and the objectors should be able to comment on each other’s statements until both sides have no further points to make. There should be no cut-off date. The system must remain flexible and be geared to ensuring that the right decision is made.







	DRAFT RULES FOR INQUIRIES (Annex A)

	Timetable

	C. The draft rules envisage that inquiries should be held no later than 26 weeks after the Secretary of State’s written notice that she intends to hold an inquiry. Bearing this in mind, are the times allowed for the preparation and scrutiny of evidence by local authorities and relevant persons adequate? (Annex A, rules 6.1, 6.2 and 6.5)

11	Without prejudice to our view that rules are not necessary, we do not consider that the public should be required to submit material ahead of the inquiry, although we are happy for the order-making authority to be required to do this. It is easy for the order-making authority to follow these rules because it has specialist staff and experienced solicitors to ensure compliance as well as the facilities to produce something ahead. These facilities are not generally available to members of the public for whom rights-of-way work is a spare-time activity which must take second place to the day job.







	Rule 5.5

12	It is inadequate only to publicise details of the inquiry two weeks ahead, since others who have not been notified may wish to attend and will only discover it is happening at very short notice. It must be understood that members of the public often get to hear of a path change proposal to which they wish to object only when they see notice of the public inquiry. They have a contribution to make – often a very valuable one – and must be allowed to make it.






	Rule 6.1

13	The 12-week period is probably adequate provided it does not span a holiday period.


	Rule 6.1 (b)

14	The order-making authority must ensure the documents are available outside working hours and be required to publicise the material on a website. In addition, anyone should have the right to see the original application, council minutes and any other reasonable information relating to the case.




	Rule 6.2

15	We do not consider that objectors should be required to submit papers ahead of the inquiry, it should just be identified as good practice but certainly not mandatory, for the reasons given above. In any case, what is proposed here, that relevant persons must submit a statement of case no later than eight weeks before an inquiry, is unreasonable, since rule 5.3 requires the Secretary of State only to give 10 weeks notice of the date, leaving only two weeks for preparation of the statement. If, for instance, people are working full-time and need to visit the County Record Office for material, this allows very little time in which to do this.








	Rule 6.2 (b)

16	We oppose the requirement for ‘relevant persons’ to send material to every other person specified by the Secretary of State since this could place an intolerable burden on members of the public. This must be done by the order-making authority.



	Rule 6.5

17	The suggestion that only disputed evidence should be included gives legal advisers a tool for ruling out evidence. This pre-supposes that many details of the case can be sorted out beforehand which is an unreasonable assumption. One cannot know what is not in dispute until one gets to the inquiry and therefore this rule is far to rigid.




	Rule 6.8

18	We strongly object to this proposal, that people must submit evidence in advance, for the reasons given above.


	Scrutinising the evidence

	D. Are the arrangements for scrutiny of statements of case and proofs of evidence appropriate? (Annex A rule 6)

19	We do not think so because the public cannot be expected to travel miles to view evidence and to copy it, all at their own expense. The arrangements must be flexible for the objectors for the reasons given above. The inspector must be prepared for items that may arise that do not appear in the original submission. It is the decision that is important not the rules. We therefore oppose rules 6.3 and 6.7.





20	It should be possible to make supplementary statements, to be taken into account and given equal authority, after the dates identified.


	Order of appearance at the inquiry

	E. Are the proposals for the order in which parties would appear at inquiry acceptable. (Annex rule 8.3) E1. If not, what would be acceptable?

21	The proposed order of appearances is not acceptable and is contrary to current practice. Clearly the case for the path order must be made first and therefore the order-making authority should open, followed by other supporters, each of whom could be cross-examined by the objectors, followed by summing up – the objectors then order-making authority. Objectors must always have the chance to sum up at the end but the order-making authority gets the last word.






	Rule 7.2

22	This should say that the inspector shall permit any other person to appear at an inquiry. It must not be limited only to relevant persons.


	Rules 8.3 and 8.4

23	These must be amended to allow people who have turned up on the day to make statements and be cross-examined, as they are now. Inquiries must not be restricted to ‘relevant persons’.



	Rule 8.7

24	We strongly oppose this. It is ridiculous not to be allowed to alter or add to the statement of case or proof of evidence. Things come up unexpectedly on the day. The aim is to enable the inspector to reach the right decision and these rigid rules will not allow that.




	Reopening an inquiry

	F. Are the circumstances in which inquiries would be reopened adequately described? (Annex A rule 9.1)

25	We think they probably are.

	G. Are the arrangements for reopened inquiries satisfactory? (Annex A rule 9.2)

26	No they are not. Rule 9.2 should require the inspector to consult all the interested parties and ensure that a convenient date can be agreed. It is the lay person who has the least freedom of choice and the fewest resources who will otherwise be put at an even greater disadvantage.




	DRAFT RULES FOR HEARINGS (Annex B)

	Timetable

	H. The draft rules envisage that hearings should be held no later than 12 weeks after the notice from the Secretary of State that she intends to hold an hearing. Bearing this in mind, are the times allowed for the preparation and scrutiny of evidence by local authorities and relevant persons appropriate? (Annex B rule 6)

27	Without prejudice to our view that the public should not be required to submit material ahead, we consider that six weeks is too short a time for voluntary workers, for the reasons given in response to question C.



	Rule 5.1(a)

28	This is too restrictive, since hearings may be as complex as public inquires. Therefore the timetable should be extended to match that of inquiries.


	Scrutinising the evidence

	I. Are the arrangements for the scrutiny of statements of case adequate? I1. If not, why not? (Annex B rule 6)

29	No they are not. Details should be sent to the objectors by the order-making authority. Without prejudice to that, our preferred view, there must be flexibility to accommodate circumstances of disruption due, for example, to inclement weather in which people from more isolated rural areas dependent upon public transport are denied their opportunities for scrutiny, or these opportunities are severely restricted.





	Procedure at the hearing

	J. Are the proposals for hearing the evidence acceptable? (Annex B rule 9)

	Rule 9.2

30	Cross-examination should be permitted as it is the best way of getting at the truth.

	Rule 9.3

31	A hearing should not be restricted to ‘relevant persons’. It should be open to a member of the public to appear on the day to give evidence.


	Rule 9.6

32	We oppose this. It is impractical to expect a person, who has been refused the right to give evidence, to submit something before the end of the hearing. Without prejudice to our opposition to rule 9.3, that person should be allowed to submit something within a certain number of days of the end of the hearing.




	Rule 9.8

33	We consider it to be ridiculously inflexible normally not to allow an order-making authority or relevant person to alter or add to a statement of case. Hearings are meant to be informal. We consider there should be no provision- for costs to be awarded in the case of hearings, as this is likely to deter objectors.




	Reopening a hearing

	K. Are the circumstances in which hearings would be reopened adequately described? (Annex B rule 10)

34	Generally yes.

	L. Are the arrangements for notification of the reopening of hearings satisfactory? (Annex B rule 10.2)

35	No they are not. Rule 10.2 should require the inspector to consult all the interested parties and ensure that a convenient date can be agreed. It is the lay person who has the least freedom of choice and the fewest resources who will otherwise be put at an even greater disadvantage.




	DRAFT PROCEDURE FOR WRITTEN REPRESENTATIONS (Annex C)

	Timetable

	M. Is this sufficient time for order making authorities and relevant persons to prepare their statements of case? (Annex C procedure 4.1, 4.2)

36	Again we do not agree that there should be rules for written representations, but would accept informal guidelines or best practice. There must be flexibility in this timetable otherwise lay people will be disadvantaged.



	Scrutinising the evidence

	N Are the arrangements for exchanging comments adequate? (Annex C procedure 4.3, 4.4) N1 If not, what arrangements would be acceptable?

37	No, 14 days is too short a time for the public to submit comments.

	O. Should there be a further opportunity to exchange comments?

38	This should be at the inspector’s discretion, but in addition each party should have the right to comment upon any new point or significant change of emphasis or interpretation, in line with the currently adopted systems. There must be no restriction of debate, and comments should continue until neither side has any further points to make. There must be no cut-off date.





	P. Are there any other issues on which you wish to comment?

	Annex A rule 5: the date and notification of the date of an inquiry

	Rule 5.1

39	The Planning Inspectorate must arrange the dates of public inquiries in consultation and agreement with all interested parties. It is the public, who have the least freedom of choice and resources and who often cannot find a substitute to attend, who will be most disadvantaged by a lack of consultation. Also the rules should say that, if one party requires it, there should be an evening session to enable those in full-time work to attend. The Planning Inspectorate does this automatically for public inquiries under section 194 of the Law of Property Act for works on common land.







	Rule 5.2

40	This must say that the inquiry must be local to the path, and on neutral territory, and that the order-making authority will provide copying facilities if these are not already available at the venue. If, for some reason, copying and other facilities are not to be provided, the parties should be notified.




	Rule 5.5 (b)

41	This must make it clear that the newspaper is one that is paid for, not free.

	Annex A rule 12: notification of the Secretary of State’s decision

	Rule 12.2

42	Prescribed organisations should automatically receive a copy of the inspector’s report (as occurs now)


	Annex A rule 14: pre-inquiry meetings

43	Pre-inquiry meetings should only be held exceptionally since they put the public at a disadvantage, in having to take time off work for instance. When they are held, all parties must be consulted about the date.



	Annex B rule 5: the date and notification of the date of a hearing.

	Rule 5.1

44	The Planning Inspectorate must arrange the dates of hearings in consultation and agreement with all interested parties. It is the public, who have the least freedom of choice and resources and who cannot find a substitute to attend, who will be most disadvantaged by a lack of consultation. Also the rules should say that, if one party requires it, there should be an evening session to enable those in full-time work to attend.






	Rule 5.5 (b)

45	This must make it clear that the newspaper is one that is paid for, not free.

	Annex B rule 13: notification of the Secretary of State’s decision.

	Rule 13.2

46	Prescribed organisations should automatically receive a copy of the inspector’s report (as occurs now).


	Annex C procedure 8: notification of the Secretary of State’s decision.

	Procedure 8.2

47	Prescribed organisations should automatically receive a copy of the inspector’s report (as occurs now).


	Other points

48	At various places in the document the Secretary of State is referred to as ‘he’. Presumably these should be amended to ‘she’.


49	Any member of the public who has a genuine concern should feel able to object if they feel aggrieved, without fear of intimidating consequences.


50	We submit these proposals are contrary to the government’s policies on social inclusion. The proposals disadvantage already disadvantaged sections of the population, such as those from ethnic groups, those with poor education, those who live in deep rural areas. These rules will give those already lacking the confidence to fight a case even less confidence to do so.