Thu, 15 Oct 2020
This article is originated from DLA Piper
A legal team from No5 Chambers (Peter Goatley QC and Christian Hawley) and DLA Piper UK LLP (Andrew Batterton and Claire Stoneman) have just completed what amounts to, for the appellants, a fully virtual public inquiry in relation to an appeal against a refusal of outline planning permission for up to 250 dwellings in Holmewood, North East Derbyshire. The appeal team included Inspire Design Group, DLP Planning and Pegasus.
Although virtual hearings and inquiries have been with us since late June, it would appear that many have been undertaken with teams getting together in one location. In one sense that is something of an understandable attempt at seeking to emulate previous, pre-Covid professional practice. However, it does present a series of challenges particularly in the not uncommon circumstances of a team whose members originate from various parts of the country.
Clearly, there is no single approach that suits all parties. As a result, a single prescriptive approach would be undesirable.
So what factors might reasonably influence any decision as to whether to get together as one group or to operate remotely?
- A clear crucial factor is the availability of an Internet connection that is stable, high-speed and high quality.
- A workspace that is sufficiently large and well equipped (with multiple screens and devices) to accommodate multiple individuals safely having regard to social distancing and other COVID-19 related health precautions.
However, even with these in place, examples have already occurred where one or more team members have started to exhibit Covid symptoms, both during and after an inquiry. An inevitable question arises as to what contingency arrangements are in place to deal with that eventuality, particularly if it arises during the inquiry or the immediate run-up to it? This is not only to deal with the affected individual but also must consider the team more generally and to try and ensure that the virtual event continues unaffected.
It is the broad experience of many planning professionals that many (if not all) of the presently programmed public inquiries have been subject to postponement or delay due to coronavirus. Both for the client and for the public interest in getting inquiries heard and decisions made it would be unfortunate if further adjournments were required not only because of ill health but because of the need to comply with both government guidance and health protection regulations.
- A choice of location for a common workspace that is unlikely to be subject to the urgent or other imposition of area restrictions that might make single location team working difficult to achieve. At the very least, the team arrangements would have to be sufficiently adaptable that a different but suitable location could be chosen with very limited notice. Given the need for suitable hotel and other accommodation for a significant number of team members that may prove challenging, even in circumstances where hotel occupancy rates are dramatically reduced.
As it was, our team decided to operate on a wholly remote basis, as each participant had good access to a fast stable Internet in locations as diverse as Leeds, Sheffield, Clay Cross, Lichfield, Chester, and Cheltenham.
How could this be practically arranged?
The inquiry was centrally organised by the Planning Inspectorate utilising the Microsoft Teams platform. We formulated a protocol to try and be clear as to how to operate with the various electronic media. This worked as follows:
Each member of the team had available three devices:
- a laptop/PC, utilising the ability to "split screens" for inquiry documentation and inquiry communication using the chosen inquiry platform ("the Inquiry Device"); and
- a second laptop/PC, that allowed for audio-visual team communication ("the Team Device"); and
- a smart phone to allow WhatsApp communication between members of the team ("WhatsApp").
The Inquiry Device
In the case of our inquiry the Inquiry Device was logged on to Microsoft Teams but also had all of the relevant inquiry documentation:
- Appellant’s proofs of evidence and appendices
- LPA’s proofs of evidence and appendices
- Core documents - which was available electronically to all parties and had a common numbering system
We also set up a separate data room containing all inquiry documentation as a back-up resource.
The inquiry device was to be muted and, unless otherwise directed by the Inspector, was also have the camera turned off unless the individual is giving evidence to / otherwise addressing the inquiry.
Audio was turned on, as was the video feed, so that one was able to observe and hear the inquiry at all times.
The Team Device
This operated on Zoom so as to be wholly distinct from the inquiry feed on Microsoft teams.
This presented the opportunity for the team (provided that they were not giving evidence at the time) to interact audio visually during the inquiry:
- before and at the end of each day session;
- at relevant breaks; and
- during any instances when it is necessary to take instructions.
This device was left on for team members to discuss with each other what was going on in the inquiry. Whilst the advocate was speaking (or potentially addressing the inquiry) the audio feed was turned off from Zoom.
In order to draw something to the advocate’s attention, or otherwise communicate with the team, messages could be sent via WhatsApp, much like the provision of post-its and similar notes during and in person inquiry. In addition, an email could be sent for something to be picked up as part of examination in chief/cross examination/re-examination/addressing the Inspector.
This presented the opportunity for all of the team to send quick messages to highlight documents, suggested questions or other issues that have arisen during the inquiry.
For those members of the team who are going to be providing evidence to the inquiry, these points needed to be suitably qualified:
- When giving evidence both Zoom and the WhatsApp device were required to be turned off.
- It was necessary to provide for the contingency (though this did not, in fact occur) of individual witness evidence not being completed prior to a relevant break. In that instance, it was necessary for each witness to have access to a separate mobile phone (not part of the team WhatsApp group) that may allow them to communicate (perhaps for domestic or other reasons) without being exposed to the stream of WhatsApp messages that would be evident upon reconnecting to the WhatsApp device.
- It was understood that if the relevant break did occur during evidence in chief then each of the witnesses are entitled, under the present rules to reconnect to Zoom and WhatsApp as they are not precluded from being part of discussions with the team at that stage. However, some degree of caution was appropriate among team members in what they could post by way of WhatsApp messages during the time that these team members are giving evidence in chief. In short, although exceptionally unlikely to occur, there should be no suggestion that they have “given the wrong answer”. In that most unlikely event, the advocate (and only the advocate) was to be sent an email with any such concerns.
What happens if it is necessary to share a document or introduce a new document during the course of the inquiry?
PINS presently provides guidance that indicates a general reluctance to have new documents introduced or the sharing of documents on screen.
However, if it is necessary to share a document during the inquiry such a request must be raised with the Inspector. If the Inspector is agreeable then the Inspector has the ability to allow an attendee to have presenter status, meaning they will be able to share a document on screen. Understandably the general approach is a preference for screen sharing not to be over used.
If the Inspector agrees to accept any new documents, then these should be forwarded to the Case Office with all parties cc'd.
How did it go?
By and large, well. The platform used by the Inspectorate held up well, although a few technical issues were encountered – the best laid plans could not stop the landline from ringing when third parties were making representations! A virtual inquiry can never have the same dynamic of an in person inquiry. However, as those are simply not possible to undertake either presently or for the foreseeable future, the present process provides as similar experience as the technology will permit and, for now, is the next best thing.