Whether for reasons of efficiency, policy or political expediency, there are occa- sions when it is necessary, usually from the government’s point of view, to exclude, restrict or modify the system of statutory inquiries. Looking again at the context of planning inquiries, there are important examples of exclusion, restriction and modification and each is now examined in turn.
3.7.1 Exclusion of statutory inquiries
There are two situations where the system of statutory inquiries is excluded, in relation to the determination of planning appeals by written representations and by means of hearings. When an applicant for planning permission notifies an appeal against an adverse decision of the local planning authority, he may be invited to choose between a hearing or inquiry on the one hand, and written representations on the other. This latter procedure is statutory, governed by the Town and Country Planning (Appeals) (Written Representations Procedure) Regulations 1987. This is achieved through an exchange of the parties’ written statements where, eg the local authority will defend its decision refusing plan- ning permission, while the appellant will, of course, argue that the planning
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permission should be granted. Thereafter a decision is made in the normal way on the basis of the parties’ arguments in the appeal, usually within six to eight weeks. It is not a procedure which is often used where third parties are involved in a planning appeal, usually as objectors to the applicant’s proposed development: their participation in the process would tend to defeat the object of more expeditious decision-making. If necessary, and even though the parties have opted for written representations, it is possible for the Secretary of State to insist that the appeal is conducted without written representations but with an inquiry. The second area of exclusion relates to the provision of a hearing rather than the public local inquiry. The hearing is essentially a private process which is not often used in practice.
3.7.2 Restriction of statutory inquiries
In some cases there is a restriction on the coverage of the statutory inquiry. Before examining two significant examples in the context of planning, it should be noted that any objection to a compulsory purchase order which relates to the measure of compensation payable cannot be accepted and, more particularly, cannot be dealt with by a statutory inquiry into such an order. Any such objection is a matter for the Lands Tribunal and so it seems clear that the reason for this restriction reflects on the complexity of compensation questions, an area which is better dealt with by the expert Lands Tribunal. Returning to the planning context, the first example of a restriction on the facilities normally available through the statutory inquiry occurs in the area of immunity given to the treatment of government policy. It has been seen already that under one set of Inquiries Procedure Rules there is an exclusion of questioning which in the inspector’s opinion is directed to the merits of government policy. This precedent is also carried into other, similar Rules. The second area of restriction relates to development plans known as structure plans.
These are broad, strategic plans for large areas such as counties. They are made by the county planning authorities and submitted to the Secretary of State for the Environment for approval. Before a decision is made, an inquiry must be con- vened. However, the more conventional statutory public local inquiry is not used, apparently because there was thought to be a danger that a large number of objec- tors would be attracted and would be concerned only with detailed land use issues, whereas the structure plan is concerned only with broad, strategic ques- tions which are not usually site-specific. For this reason the Town and Country Planning Act 1990 permits the Secretary of State (or the local planning authority) to convene an ‘examination in public’ of the structure plan. This contrasts with the adversarial statutory inquiry which is, in many respects, a court-like process.
The examination in public is, in essence, a round-table discussion of the issues raised by the proposed structure plan. Accordingly, the Act gives an important discretion to do two things: first, to draw up an agenda for the examination in public, and secondly, to identify those persons or groups of persons who should be allowed to appear.
3.7.3 Statutory inquiries and proposals for controversial development
There may be a fine distinction between the foregoing section on the restriction of the statutory inquiry and the present section dealing with its modification.
This section is concerned mainly with the extent to which the conventional statutory inquiry process is adequate to deal with wider issues of national pol- icy, eg in relation to the country’s energy requirements. The main focus of this question was the Windscale Inquiry into a proposal by British Nuclear Fuels Ltd to extend its nuclear reprocessing plant at Windscale. The Secretary of State used his power in the Town and Country Planning Act to call in the company’s application for planning permission made to the local planning authority for the area. To examine the background to and implications of the application, a pub- lic local inquiry was convened with a High Court judge, Parker J, as chairman, together with two assessors. Parker J recognised the wide-ranging implications of the inquiry: ‘the issues to be investigated may affect not only those already alive and residing in the immediate neighbourhood but also those who live far away and who will not be born for many years ahead’. The inquiry in common with other similar inquiries such as that into the proposal to build a pressurised water reactor at Sizewell, covered many wide-ranging issues, far beyond the question of whether the site itself was inherently suitable for the proposed expansion of the nuclear processing facility. Major questions covered included the issue of whether there should be reliance on nuclear fuel as opposed to nat- urally generated energy in the UK and the issue of safety in transporting fuel to and from the site for reprocessing. All the evidence was taken on oath and there was an exclusion of evidence that might prejudice national security or the national interest, together with evidence questioning the merits of government policy, although it appears that this latter exclusion was interpreted quite flexi- bly during the inquiry. It was finally recommended that planning permission should be granted, a conclusion which was upheld on a vote following a debate in Parliament. For technical reasons the Secretary of State decided to refuse planning permission and then made a Special Development Order (an item of delegated legislation, a subject covered in Chapter 8) granting planning permis- sion but incorporating all the safeguards which had emerged from the report of the statutory inquiry. Despite the controversies surrounding these inquiries, one emerging trend seen at the Sizewell Inquiry is a differing attitude of some gov- ernment departments to debates about the merits of government energy policy.
Many campaigners would argue that these inquiries are the only forum where such debate can occur in a real, detailed context.
3.7.4 The Windscale Inquiry
The major criticism emerging from the Windscale Inquiry was that it and the planning system as a whole are not able to deal adequately with the wider and
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more controversial questions which are likely to arise from proposals for large- scale energy developments. Somewhat surprisingly, there are facilities in the Town and Country Planning Act for what is known as a Planning Inquiry Commission, which appears to have some, if not all, of the advantages which may be lacking in the ordinary public local planning inquiry for the purpose of dealing with large-scale energy development proposals. The Planning Inquiry Commission, although it has not been used, is intended to operate in two stages.
Initially it considers the broad background to a proposal on the basis of evi- dence provided by the promoters of the scheme, the local authority, objectors, and so on. The second stage involves a local inquiry in conventional form and permits an investigation into the scheme and objections to it. Such a Commission, if it were ever employed in this context, would be comprised of experts in the appropriate fields of activity whose conclusions and recommen- dations would be very persuasive. Having established a reputation, such a Commission would be seen as an increasingly popular instrument in the face of proposals for large-scale energy development. However, there is one significant precedent in this context, namely, the Roskill Commission, which investigated proposals for a third London airport between 1969 and 1971. A number of sites were subject to general investigation initially until just four sites were singled out, at which point local inquiries were held at each site and, eventually, one large inquiry was convened at which the arguments for and against each of the sites were heard. The one site which was recommended as a result was rejected following a debate in Parliament, the result of which was that Parliament rec- ommended the site at Foulness which had been included in the final list of four sites. The process took three years, which may be a significant argument against the employment of such a Commission.
3.7.5 The statutory inquiry in future
There have been various proposals for a better modification of the system of statutory inquiries for cases involving complex, controversial issues of national and perhaps international dimensions. Nevertheless, the largely conventional framework has continued to be used for inquiries into proposals to mine coal in the Vale of Belvoir and to build a pressurised water reactor at Sizewell in Suffolk. Given the political and policy controversy which frequently arises from the large scale development proposal, particularly in the context of energy, it is not surprising perhaps that the government should want to maintain a flexibil- ity of response which it can do within the present system with the existing framework of statutory inquiries. A radical modification of the statutory inquiry system through the creation of an expert, investigative body could make it more difficult for a government to resist proposals and recommendations which run counter to its existing policies.