Fri, 02 Oct 2020
Having recently participated in the first virtual EiP, Turley have teamed up with No5 Chambers to consider the format and the future of online examinations.
It is becoming increasingly clear that physical Local Plan Examinations-in-Public (“EiP’s”) and planning appeal Inquiry/hearings are unlikely to be held for some time, and that virtual events are here to stay for a while at least. It is of course essential that the planning system continues to function, and a number of virtual planning Inquiries and Informal Hearings have already been held.
Despite the draft South Oxfordshire Local Plan already being highly controversial (not least because of the nature of the proposed allocations and the intervention of the Secretary of State), it became the first to be examined via virtual hearing sessions in July and August.
David Murray-Cox and Tim Burden of Turley participated throughout the examination, supported by Satnam Choongh of No5 Chambers. Here we set out some initial thoughts on the examination process (not the Plan itself or the outcome), and whether there are any points which might influence future events.
The Planning Inspectorate should be praised for putting the processes in place so that examinations can be held virtually and the process of plan-making can continue. Cameras and microphones were turned off by individuals not participating, and the usual flurry of ‘toblerone-waving’ was replaced by an electronic hand. The examination may have worked from a technical perspective, but in comparison to the (old?) ‘normal’ way in which they are held, it felt as though the debate was somewhat stifled. The nature of the virtual examination process, and the inevitable technical hiccups along the way meant that there was more limited time for proper debate.
Our view is that the ability for participants to make real criticisms of the Plan was curtailed in comparison to physical examinations. As is the norm for these events, the discussion was strongly led by the Inspector, but with a restricted number of attendees, a strict timetable, and little time left for the council to make any rebuttal to comments made by participants in the sessions, the examination felt stilted. Indeed, the significant involvement of counsel instructed by the promoters of favoured sites led to them effectively running the council’s arguments for them. Whether this is the way forward for examinations remains to be seen, but clearly in this case at least, the council’s role in proceedings was notably diminished.
Tuning to the positives, one of the main challenges participants often face is space. Examination venues are often busy, uncomfortable and cramped, with poor Wi-Fi connectivity. Participants in virtual events will find the practicalities of the event mean greater opportunities to have material to hand and prepare their submissions. However, participating without others surrounding you means that any coordinated approaches need to be planned in advance. Our experience has always been that informal discussions between consultants in breaks result in a more thorough examination of the Plan.
Currently, examinations are structured around Inspectors’ matters, issues and questions. The virtual event surely affords the opportunity to explore new ways to carry out examinations and for participants to convey objections, which may be fundamental, but may not fit neatly into the matters the Inspectors wish to debate. In this examination, the Inspector divided one topic session into two days, one for the public to make their case and one for the ‘professionals’. This felt effective and allowed more time for discussion. However, on other days when this was not the case, the ability to participate was limited and too often matters that were clearly pertinent to the topic under discussion were simply not covered.
Perhaps the single most notable step forward was increasing public accessibility to the process. The examination was streamed on YouTube, which allowed participants to watch other sessions remotely, and the wider public to follow from afar. However, these have now been taken down, but would serve as a useful public record. It would be good to see inquiries and hearings similarly streamed online too in the future, as they currently are not. The lack of physical attendance did however take some of the emotion out of the event – which could be viewed positively or negatively! People are passionate about their local areas, but the changed approach did arguably allow the Inspector greater control of proceedings, and a concerted effort to try and limit repetition.
One of the challenges that an updated planning system will need to face, if it is to be truly plan-led, is to ensure inclusivity and access to the Plan-making process. It is rare to see younger members of the public participating in ‘physical’ Local Plan examinations and it was noticeable that there was a wider and more diverse list of attendees. To speed up the system, increase participation and allow better outcomes is possibly the greatest challenge the Planning White Paper sets itself. The plan-making process is currently somewhat impenetrable, and the council uploading documents minutes before a Hearing commences needs to be addressed in order to ensure transparency and the ability to interrogate them.
Examination sessions are planned for other Local Plans, with Tonbridge and Malling Council and further Hearings at Royal Borough Windsor and Maidenhead, as well as the long-awaited Chiltern/South Bucks Duty to Cooperate discussion. For those about to attend their first virtual examination, we would make a few suggestions. You will likely have one opportunity to speak per question. Pre-write your script and have document references to hand. By reading directly off your screen, rather than paper copies, you will also be looking at your monitor and other attendees. A well-lit room with appropriate backdrop and good internet connections are now essential. As is an ample supply of sustenance!
That the plan-making process can continue is a positive outcome of the use of virtual events. That the first examination involved such a highly controversial plan may be an unfortunate outcome as the public’s concerns about due process, and their concerns over the plan being analysed with rigour may intensify.