A right to cross-examine? The current position

Tue, 21 Jul 2020

Planning Appeals and a Business and Planning Act 2020 amendment to the 1990 act

There is, generally, a right to cross-examine. It was established in the 1992 rules,[1] and is present in the same form in r 16(5) of the 2000 Rules[2]:

‘A person entitled to appear at an inquiry shall be entitled to call evidence and the appellant, the local planning authority and any statutory party shall be entitled to cross-examine persons giving evidence, but, subject to the foregoing and paragraphs (6) and (9), the calling of evidence and the cross-examination of persons giving evidence shall otherwise be at the discretion of the inspector.’

The right is not unlimited. The Inspector may, as would be expected, refuse to permit cross-examination which is irrelevant or repetitious. The same position applies in respect of other forms of inquiry and in Wales.[3] Whether it is fair to allow or disallow cross-examination will depend on all of the circumstances. The courts will be very slow to intervene.[4]

There is not, however, a right to cross-examine which is contained in any statute. The right is contained in statutory instruments: the rules and the regulations. In any event, the 1990 Act gives the decision on whether to hold an inquiry to the Secretary of State.

Prior to the amendments made by the Planning Act 2008 to the 1990 Act, it was for the appellant to choose the mode of appeal. Sections 319A (in respect of England) and 319B (in respect of Wales) came into force in April 2009. They place a duty on the Secretary of State and on the Welsh Ministers to determine which mode of appeal appears to be most appropriate, and to do so within the prescribed period,[5] being seven working days from the date of receipt of a valid appeal. The Secretary of State and the Welsh Ministers must publish criteria to be applied in making determinations of the mode of appeal. They have done so.[6]

There is no right to a public inquiry, so the entitlement to cross-examine which is contained in the rules is contingent on a decision to hold an inquiry.

Mode of Appeal – Change afoot

A determination of the mode of appeal may be varied at any time ‘before the proceedings are determined’.[7] This provides flexibility, including changing the appeal procedure during a hearing or inquiry, or even, exceptionally, re-opening an appeal via a different mode. However, the position is set to be amended in respect of planning appeals by reason of amendment to s319A(2) of the 1990 Act so that the appeal procedure is determined as ‘such one or more’ of the ways of determining the appeal as appear appropriate (see s20 Business and Planning Act 2020[8]). This will provide still further flexibility in the combination of modes of appeal, though change to procedure rules will also be necessary.

OK – that’s the law – what is the real effect?

Currently, if a decision is taken to determine an appeal by inquiry, then the main parties have a right to call evidence, subject to the limitations within r 16 – see above. But, to have a right to do something is irrelevant to the question of whether it is sensible, useful or effective to do it. Rather, the key question for the main parties who are preparing for a Case Management Conference, or a pre-inquiry meeting, in advance of an inquiry is how best, from their perspective, to resolve the issues, present their case and to persuade the Inspector.

The current reality is that the parties and the Inspector balance the considerations. It ought to be a collaborative exercise and it usually is.

The amendment to the s319A(2) of the 1990 Act is a pre-cursor to amendment to the rules. There are two over-arching potential outcomes: one positive, one negative.

Glass Half Empty

The amendment might result, effectively, in closing down of the inquiry procedure even within a nominal inquiry. An inquiry in which only the planning balance is the subject of formal evidence probably should never have been an inquiry in the first place. An inquiry which proceeds to deal with almost everything other than by the calling of witnesses is not an inquiry. It is a hearing by another name.

Glass Half Full

The discussion and sensible collaborative approach continues at Case Management Conferences in advance of inquiries. If a party identifies a sensible reason to call evidence and to cross-examine on a particular topic (or in respect of a discrete issue within a topic area), then the Inspector will always respect that, and allow it. After all, the Inspector has always, and will continue to have, full control of the nature and extent of the evidence in chief and the questions put. Repetition will be stopped. When a point has been exhausted, the Inspector will move things on if the advocate does not have the wit to do so.

The potential benefit of the change is that it might allow the ratchet to work the other way: calling of evidence during a hearing. Presently, the rules prevent the calling of evidence and cross examination during a hearing. The rules require that the inquiry procedure is started if, during a hearing, it is found necessary to call evidence or to cross examine. That is plainly quite cumbersome and makes all parties reticent to propose such a change because of the procedural disruption and consequent delay. But a hearing in which the parties can actually get a straight answer to the key issues, without having to ‘go through the Inspector’ would be a welcome change.

Perhaps the greatest potential here is for re-set in understanding the enormous value to decision-makers of getting the parties to do much of the work. Daily, there are hundreds of contested trials and hearings in criminal, civil and administrative tribunals in which the judge or other decision-maker relies on the parties to: (1) explain their case; (2) put their case to the other side; (3) hone the issues; (4) point out the defects in the contrary case. Very many of these cases take a day, or less. There is no reason why, in appropriate cases, the same assistance should not be provided to Inspectors: listen to experienced specialists fight it out, let them summarise it accurately at the end (respecting the concessions made), keep a hand on the tiller throughout, and then write it up.

RICHARD KIMBLIN QC

HOWARD LEITHEAD

[1]       Rule 14(3) of the Town and Country Planning (Inquiries Procedure) Rules 1992, SI 1992/2038, now revoked.

[2]        Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000

[3]       See reg 45(6) of the 2017 Regulations.

[4]       Bushell v Secretary of State for the Environment [1981] AC 75 (HL)

[5]       See Town and Country Planning (Determination of Appeal Procedure) (Prescribed Period) (England) Regulations 2009, SI 2009/454.

[6]       From Annex K of the Procedural Guide Planning Appeals – England July 2020 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/897145/Procedural_Guide_Planning_appeals_version_10.pdf); Appendix 1 to the Procedural Guide – Wales is in materially identical terms (https://gov.wales/sites/default/files/publications/2019-01/procedural-guide-wales.pdf).

[7]       See TCPA 1990,  s 319(A)(4) and s 319(B)(4).

[8] Which received Royal Assent on 22 July, just after the podcast was recorded. References in the podcast to the Bill should now be understood to be references to the Act

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