Introduction
Public participation is deeply embedded in the planning system of England and Wales,Footnote 1 and its status has been further formalised with the ratification of the Aarhus Convention.Footnote 2 Despite this status, public local inquiries in their present state are limited in their capacity to facilitate public participation. This paper considers the reasons for this limitation. It suggests that inquiries, like other administrative processes, have multiple, competing purposes. In order to assess whether a process is conducted fairly, the courts must assess the appropriate balance of diverging purposes. Drawing on inquiry case law and scholarship, this paper contends that the primary purpose of the public local inquiry is to come to the best decision in the public interest. The inquiry has a range of other purposes that are secondary to this purpose. It is expected to ascertain the correct facts, to be a fair process and, centrally to this paper, to facilitate public participation. This paper explores how these purposes have been interpreted by the courts and argues that conflicts between the participatory purpose and the adversarial model of procedural fairness that tends to dominate the ‘fairness’ purpose limit participation.
Abbot describes inquiries as ‘legalistic, adversarial forums where the professional expertise of those representing participants is understood to influence key decision-makers in the process’.Footnote 3 The term ‘adversarial’ takes on a range of meanings in the work of public participation scholars and inquiry case law. It can be a synonym for formal, legal and intimidating.Footnote 4 The term frames parties as adversaries, in contest with one another. However, ‘adversarial’ also describes the prevailing legal tradition in England and Wales. Its opposite would be the inquisitorial tradition, dominant in some continental legal systems. One defining feature of the adversarial tradition is the passive role of the judge; judges should avoid ‘descending into the fray of fact gathering’, as this could suggest bias.Footnote 5 Brants and Field state that the concept of justice within the adversarial tradition is understood by and implicated in procedures that ensure a fair trial.Footnote 6 In the adversarial tradition, parties have the right to seek out evidence that suits their case; this case is then presented orally at trial and subject to cross-examination.Footnote 7 Crucial to the fairness of this process is equality of arms in terms of investigation and presentation of evidence.Footnote 8 The inquiry is by no means a purely adversarial process, if such a process exists. But it will be argued in this paper that the inquiry has procedures that reflect the adversarial features described above, and that there is a presumption towards adversarial procedures in part because of the prominence of the adversarial tradition in England and Wales.
The public local inquiry is only one mechanism in the planning system, one that is arguably fading in use.Footnote 9 Consequently, one might question the relevance of research centred on the public local inquiry. I put forward three reasons for this focus. First, the public local inquiry is a route through which the public can participate in decisions affecting their local environment, a right established by the Aarhus Convention. Factors that might limit the UK’s capacity to meet these obligations should be closely scrutinised. Ratified in 2005, the Aarhus Convention and its attendant obligations are relatively recent. The public local inquiry was around long before it gained these new duties (though some form of participation has been present in planning decision-making for some time). This leads us to the second reason. Administrative bodies develop in incremental ways, adapting to accommodate additional responsibilities in response to the shifting legal, social and policy landscape. This feature of the modern state is likely to generate uneven alignment between procedure and purpose, leading to what has been termed ‘multi-traditional’ decision-making processes.Footnote 10 It is important to understand how these multi-traditional processes might be experienced by their users and what limits them in fulfilling their various responsibilities, so that they can be modified to better accomplish their purposes. Finally, as the UK Government has signalled its intention to restrict routes of public access to decision-making to encourage development and promote economic growth,Footnote 11 this seems an opportune moment to consider the public local inquiry in its current form and the extent to which it is fulfilling its participation obligations. This paper will first describe the public local inquiry and the public participation context in which it operates, including an examination of the rules that guide inquiry procedure. From there, the paper will identify the purposes of the inquiry, drawing on inquiry case law to explore how the Court interprets these purposes and the conflicts that arise between competing purposes. The paper’s concluding section will reflect on how these conflicts might be experienced by participants and how the inquiry could better facilitate public participation. In exploring these conflicts, it is hoped that the paper provides an opportunity to refine the system to facilitate public participation and to ensure that the public local inquiry serves the democratic purpose it is expected to meet.
1. Public participation obligations on the public local inquiry
This section describes the public local inquiry and the public participation obligations to which it should adhere. To this end, this section will outline the wider public participation context in which the inquiry operates, before focusing on the statute governing inquiry procedure. This paper is concerned with whether the public local inquiry effectively facilitates public participation. While it touches on some normative arguments underpinning public participation,Footnote 12 a full interrogation of arguments underpinning public participation lies beyond the scope of this paper.Footnote 13
(a) The public local inquiry
The public local inquiryFootnote 14 is a decision-making procedure in the planning system of England and Wales. Public local inquiries are appropriate to more complex planning proposals, where there is likely to be substantial third-party representation and a need for cross-examination.Footnote 15 Public local inquiries are expected to provide members of the public with the opportunity to have their say about a planning decision affecting their local area. The inquiry procedure outlined below is followed in called-in applications,Footnote 16 objections to compulsory purchase orders,Footnote 17 appeals from applicants regarding planning permission,Footnote 18 among other circumstances.Footnote 19 The case law analysed below primarily concerns appeal inquiriesFootnote 20 and so this paper will focus on public participation obligations falling on appeal inquiries.Footnote 21
The public local inquiry has its roots in the last acts of the agricultural revolution,Footnote 22 with the Inclosure Commissioners who were appointed to consider appeals against individual enclosure schemes.Footnote 23 These acts of enclosure were initially enacted in an ad hoc fashion through private bill. This became more formalised in the Inclosure Act 1801 which established a route through which a commission of inquiry could be established, a meeting that had to be publicly advertised where anyone could make representation or complaint,Footnote 24 thus attempting to set formal rules for these inquiries to follow.Footnote 25 These rules share some similarities with modern inquiries. As the modern state developed in size and complexity, these inquiries became standardised.Footnote 26 Like many administrative processes in England and Wales, inquiries changed over time, their uses evolving as the regulatory state grew through the second half of the twentieth century. The proliferation of administrative decision-making processes was a cause of concern for the judiciary. Booth argues that this conflict between judicial and discretionary decision-making was illustrated by the response to the Crichel Down affair in the 1950s. This case ignited public outcry, as it exposed the power of administrators to make decisions without public or judicial oversight.Footnote 27 The Franks Commission was part of the move to improve the fairness of administrative tribunals and inquiries following the affair. It found that inquiries and tribunals should be understood as judicial rather than administrative processes,Footnote 28 and further recommended the development of procedural rules to keep inquiries open, impartial and fair.Footnote 29 The mid-twentieth century thus saw a shift towards the adversarial model of fairness in inquiries as part of a broader trend curtailing the arbitrary, discretionary decision-making power of administrators.Footnote 30 The courts then had to figure out how to apply the adversarial model of fairness to these administrative bodies. Ridge v Baldwin affirmed the duty on ministers to ensure a fair hearing to parties in administrative processes; Lord Reid held that a decision-making body has a duty to observe the principles of natural justiceFootnote 31 where the decision-making power affects a person’s rights or interests.Footnote 32 In Bushell and others v Secretary of State for the Environment, the Court considered what the right to a fair hearing might demand in the context of a public local inquiry. Lord Dilhorne held that a ‘fair hearing’ concerned the ‘protection the law gives to the individual whose rights are to be interfered with’, and that it required more than ‘the mere administrative test of “taking into consideration”’.Footnote 33
(b) The public participation context
The public local inquiry has a long history in planning, and the principles governing its procedures have developed over time. While there has been some expectation of public involvement in inquiries since the time of the inclosure commissions, participation obligations have strengthened significantly since the signing of the Aarhus Convention, Article 1 of which states that, ‘each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention’. The extent to which the rights of public participation enshrined in the Aarhus Convention apply in the UK is complicated, more so after the UK’s withdrawal from the European Union. There is no domestic legislation explicitly seeking to incorporate Articles 6, 7 and 8 of the Aarhus Convention (concerning public participation). However, the EU is also a signatory to the Convention and has legislated for some of the ‘Aarhus’ rights, for example Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment. A number of these provisions are transposed into domestic legislation and are retained EU law.Footnote 34 The Environmental Impact Assessment (EIA) Directive has had a significant impact on public participation in the UK.Footnote 35 Holder notes how the introduction of environmental assessment in the UK was influenced by a growing frustration with the failings of the public local inquiry system, failings which included a ‘limited scope for effective public participation’.Footnote 36 The EIA Directive process provides greater opportunity for public consultation than that which existed previously,Footnote 37 and to some degree reinforces the Aarhus Convention rights. Though embedded in the planning system, the future of the EIA is currently in question. Part VI of the Levelling-Up and Regeneration Act 2023 sets out the Environmental Outcomes Report, an alternative (though not described as a replacementFootnote 38) to environmental impact assessment.Footnote 39 It would seem that the present Labour Government intends to continue with environmental outcome reports; it has proposed replacing ‘the current systems of environmental assessment to deliver a more effective and streamlined system that reduces costs and delays for developers, whilst still protecting the environment.’Footnote 40 While the UK has public participation obligations under the Aarhus Convention, the impact of these obligations in the planning system is somewhat unclear. The importance the Government attaches to these obligations, given intended planning reforms, is also questionable.
(c) Inquiry procedure rules
Having described the public participation context in which the public local inquiry operates, the next step is to assess whether these obligations are evident in the regulations that set inquiry procedure. There are several equivalent regulations that set out the procedures for public local inquiries. This paper analyses The Town and Country Planning (Inquiries Procedure) (Wales) Rules 2003.Footnote 41 This piece of regulation applies to Wales. It is almost identical to The Town and Country Planning (Inquiries Procedure) (England) Rules 2000Footnote 42 and broadly similar to other regulations establishing inquiries procedure.Footnote 43 Beyond the jurisdiction or type of development to which the statute applies, the differences are minor. For example, while the authority in England is the Secretary of State, in Wales, it is the Welsh Ministers.Footnote 44
The Rules do not explicitly set public participation obligations on the public local inquiry. They seem to facilitate public participation, though in quite a limited manner. Some parts widen the pool of potential participants beyond the relevant authority, the appellant, the objector. Rule 6 states that,
the National Assembly may in writing require any other person, who has notified it of an intention to take part in the inquiry to serve (emphasis added),Footnote 45 so as to be received within 4 weeks of being so required –
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(a) 3 copies of their statement of case on it; and
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(b) in the case of an enforcement appeal, a copy of their statement of case on any person on whom a copy of the enforcement notice has been served,
And the National Assembly must, as soon as practicable after receipt, send a copy of each such statement of case to the local planning authority and to the appellant.
This provides for a degree of participation, termed ‘rule 6 status’.Footnote 46 Rule 11 sets out the people entitled to appear at the inquiry. These are the appellant, the local planning authority and some other groups specified, relevant to particular circumstances. This widens out in rule 11(2) which states that ‘nothing in paragraph (1) precludes the inspector from permitting any other person to take part in an inquiry and such permission is not to be unreasonably withheld’ (emphasis added). This extends the group of people who can attend the inquiry; though, of course, attendance and participation are not one and the same.
Other rules in the statute relate to a person’s ability to meaningfully engage with the process, rather than their ability to attend the inquiry. Do they know the inquiry is taking place? Can they access relevant information on the development? Will they be given an opportunity to provide information to the inquiry? Rule 9 deals with the notification of the inquiry and states that the National Assembly may require the local planning authority to publish a notice of the inquiry and to send a notice of the inquiry to people it may specify. Rules 6(13) and 15(7) state that people interested in the inquiry must be given the opportunity to inspect and, where feasible, take copies of statements of case and other relevant documents.Footnote 47 Lastly, rule 17 sets out that the inspector will identify the main issues to be considered at the inquiry, but in paragraph (3) states that nothing in paragraph (2) ‘precludes any person entitled or permitted to take part from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector pursuant to that paragraph’. This emphasises the inquisitory nature of the public local inquiry, that it is supposed to gather information from a wide range of sources. The Aarhus Convention entered into force in the UK in February 2005.Footnote 48 These Rules were enacted in 2003. None of the amendments to the Rules made since the Convention’s enactment, or amendments to equivalent regulations, mention the Aarhus Convention or seemed designed to address participation obligations.
Statutory rules are bare by design. The courts have noted that inquiry rules are not a ‘complete code for achieving procedural fairness’,Footnote 49 but that they are ‘designed to assist in promoting it’.Footnote 50 They do not set out the purposes of the inquiry; to find these, we must consider the case law. This section has introduced the public local inquiry; it has described how the courts started to apply the adversarial model of procedural fairness to this administrative process. It has also introduced the Aarhus Convention and the statutory framework governing inquiries. The next step is to explore how these elements interact.
2. The competing purposes of the public local inquiry
(a) The inquiry should make its decisions in the public interest
Galligan, in his study of administrative procedures, argues that by identifying the purposes that shape an administrative process, we can understand what would constitute fair treatment in that process.Footnote 51 Processes might have multiple purposes that develop from competing values.Footnote 52 This paper suggests that the inquiry has multiple purposes, which diverge in ways that limit the inquiries’ ability to facilitate public participation. The following section identifies the primary and secondary purposes of the inquiry as they emerge in case law. We would expect the inquiries’ primary, underlying purpose to be prioritised by the Court; the secondary purposes of the inquiry, drawing on Galligan, are secondary to its main purpose and would relate to its proper functioning.Footnote 53
It is proposed that the primary purpose of the public local inquiry, reflecting the purpose of the planning system, is to make decisions on the use of land in the public interest.Footnote 54 This simple statement holds several disputed claims. The purpose of planning is contested; the absence of a clear purpose guiding the planning system was highlighted by the Raynsford Review.Footnote 55 While it is frequently stated that the purpose of planning is to ‘regulate the development and use of land in the public interest’,Footnote 56 this is not universally accepted. Upton describes evidence submitted to the Raynsford Review as presenting two diverging purposes, one being ‘that planning was designed to regulate the market to achieve long-term public interest objectives surrounding sustainable development’ and the other being ‘to facilitate the private market through a residual form of land licencing to support “growth”’.Footnote 57 Though, arguably, both of Upton’s purposes could be accommodated within the wider purpose of planning as regulating ‘the development and use of land in the public interest’, depending on whether ‘public interest’ was understood to prioritise sustainable development or economic growth. This leads us to a second problem in the description of the inquiries’ primary purpose; what is meant by ‘public interest’? Despite its central place within the planning system, the meaning of public interest is inconsistent. Perhaps this ambiguity is to be expected. Identifying the public interest requires a situated, practical and ethical judgement, one that is constituted by and constitutive of the social and political values and policy considerations of its time.Footnote 58 Dayashpoor and Sheydayi suggest that planners tend to present their definition of the public interest in deontological terms, as ‘an objective, unitary, and common nature determined by planners’.Footnote 59 Echoing McAuslan, this definition positions planners as best placed to identify and to advance the public interest. This understanding of the public interest was disrupted by the communicative turn in planning theory. According to this perspective, public interest is identified through participatory procedures, rather than being a normative goal sitting outside the process.Footnote 60 Questioning the idea of a ‘simple, unitary public interest’ necessarily entails questioning the role and ‘the value of the planning profession’.Footnote 61
The Raynsford Review appears to align with the communicative theory view of the public interest. Criticising attempts to address planning efficiency by limiting democratic procedures,Footnote 62 the authors of the Review state that:
[Planning] is in every way a people-centred activity which involves the messy job of mediating change in complex environments. … Suggesting that the future physical form of urban and rural society should be determined without reference to the people who currently – and who will in the future – live in it is simply incompatible with the basic principles of democracy.Footnote 63
Reflecting McAuslan’s ideology of public participation, the authors of the Raynsford Review underline the relationship between public participation and the public interest. Seen above and in wider planning literature, public participation in planning can be argued to be essential to serving the public interest in a democracy. However, the idea that the public should identify the public interest is not the prevailing view in the case law. The courts seem to place the responsibility for securing the public interest on the inspector. The leading case highlighting the inquiries’ public interest purpose is E v Secretary of State for the Home Department,Footnote 64 where Lord Carnwath considers cases where decisions have been set aside on grounds of mistake of fact, assessing whether it is appropriate in the case before the courts. Lord Carnwath states that, ‘although planning inquiries are adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis’.Footnote 65 This description is cited in several cases, most recently in Johnson v Windsor and Maidenhead RBC and Others. Footnote 66 In this description, Lord Carnwath foregrounds a tension between the ‘adversarial’ nature of the planning inquiry and the public interest. While the inquiry seeks to operate fairly through its adversarial procedures, its primary purpose is to make the best decision in the public interest and to come to the correct facts in order to pursue this aim. The extent to which the inquiry follows adversarial procedures is to be decided on a case-by-case basis, with factors such as the evidentiary rule concerned, the resources and expertise of the claimant, and the expertise of the inspector all playing a role in the judges’ assessment of the fairness threshold.Footnote 67
The extent to which an inquiry needed to adhere to adversarial procedures to be fair was central to Bushell, a case brought because of an inspector’s decision not to allow cross-examination of the Government’s witness on traffic modelling; the appellant claimed this violated their right to a fair hearing.Footnote 68 Lord Diplock held that the adversarial procedure did not amount to fairness and that more inquisitorial or more informal approaches could also be fair. It depended on the particular circumstances of the case.Footnote 69 Lord Diplock described the purpose of the inquiry as,
to provide the minister with as much information about those objections as will ensure that in reaching his decision he will have weighed the harm to local interests and private persons who may be adversely affected by the scheme against the public benefit which the scheme is likely to achieve.Footnote 70
This description of the inquiry’s purpose recognises the political context in which the inquiry operates and keeps a focus on the public interest present in planning. The move away from the adversarial model of procedural fairness is disputed in the judgment, with Edmund-Davies J as the sole dissenter arguing that the instances where cross-examination is to be denied were narrow and the circumstances in Bushell did not fall into them.Footnote 71
The courts have emphasised the inspector’s role in securing the public interest. Sullivan J in Hadfield states that ‘the Inspector is there to ensure that the public interest in securing the correct planning decision is protected’.Footnote 72 Sullivan J’s description highlights that the courts are in line with the planners’ deontological view of the public interest. The inspector is central to securing the public interest and is not a neutral arbiter. Rather, Sullivan J finds that they bring their ‘planning expertise and judgment’ to bear in the decision.Footnote 73 The discretionary nature of the inspector’s planning judgment is underlined in Newsmith v Secretary of State for the Environment, Transport and the Regions, again by Sullivan J:
The Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.Footnote 74
It is this discretionary nature of the inspector’s judgment that might raise fairness concerns, especially with actors accustomed to the adversarial model of procedural fairness. It distinguishes the inquiry from the adversarial model by relying on the inspectors’ own expertise as well as evidence submitted by the parties, moving away from the notion of the inspector as a passive judge. It is proposed that two principles emerge from inquiry case law on the public interest purpose. These are:
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(i) that it is the responsibility of the inspector ‘to ensure that the public interest in securing the correct planning decision is protected’Footnote 75 (E v Secretary of State for the Home Department; Hadfield);
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(ii) that the inspector is not a neutral, passive decision-maker, and that they bring their ‘planning expertise and judgment’ to their role (Hadfield).
Case law and planning scholarship would then suggest that public interest is the primary purpose of the inquiry. But it is not its only purpose. The following section investigates the inquiries’ secondary purposes. Secondary purposes relate to the proper functioning of a process rather than its underlying aim. The three secondary purposes described below were chosen because they are regularly cited in case law and seem essential to the functioning of the inquiry. We can already discern secondary purposes in the case law quoted above. Lord Carnwath’s reference to ‘ensuring that development control is carried out on the correct factual basis’ reveals a purpose of the inquiry – to identify accurate information. The Court’s concern with the extent to which an inquiry can move away from adversarial procedure reflects a concern with fair treatment, another purpose. The last purpose explored in this paper is key to its argument, that the inquiry should facilitate public participation. This paper explores four purposes that are central to the inquiry, but they are by no means its only purposes. Other potential purposes might include timeliness, efficiency, impartiality and openness.Footnote 76 The planning system is under significant pressure to deliver timely decisions,Footnote 77 and as noted above, this is often framed as conflicting with public participation. While this purpose is not explored in the paper, considerations of timelines and efficiency and their relationship to participation would be a valuable focus of future research.
(b) The inquiry should ‘get to the real facts’
This strand of inquiry case law foregrounds the inquisitorial nature of the inspector’s role, often in opposition to the adversarial model of procedural fairness. Counsel in inquiry cases sometimes describe the inquiry as either adversarial or inquisitorial. This paper agrees with Howell J in Wokingham in finding that the reality is more complicated.Footnote 78 Some inquisitorial features with relevance to inquiries are that in the inquisitorial tradition, the Court initiates litigation (though this is no longer true for every caseFootnote 79), and that the Court is primarily responsible for gathering evidence and for the manner in which the matters at hand are considered and decided.Footnote 80 The inquisitorial system tends to favour professional decision-makers over lay decision-makers (ie juries), as the efficacy of this system relies on a skilled truth-finder.Footnote 81 In inquisitorial traditions, judges can use their discretion to protect the less experienced party if they feel it necessary.Footnote 82
The inquisitorial nature of the inquiry is emphasised by Lord Sales in Turner v The Secretary of State for Communities and Local Government and Others, where he describes the inspector’s role as having a ‘strong inquisitorial dimension, investigating matters in a way which will enable him to report helpfully to the Secretary of State’.Footnote 83 Turner continues the position taken in Pascoe, where the claimant questioned the validity of the compulsory purchase order confirmed by the Secretary of State related to properties including her own.Footnote 84 In Pascoe, Forbes J stated that inquiries were inquisitorial and not adversarial, as the purpose of the inquiry was for the inspector, ‘to get to the real facts and form his own judgment in the light of his own inquiry’.Footnote 85 Expanding on this, it is not only that the inspector needs to ‘get to the real facts’. Case law has considered what the inspector is allowed to do to ‘get’ to these facts. How far can the inspector move from the passive decision-maker role expected by the adversarial model of procedural fairness? The inspectors’ power to request further information is supported in Eley,Footnote 86 and extended in Cumberlege, where Howell J held that the Secretary of State and their inspectors might sometimes be obliged to make further inquiries about matters not raised by participants.Footnote 87 The principles that relate to this purpose then are:
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(i) that the inspector should get to the real facts (Pascoe);
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(ii) that the inspector can make their own inquiry (Pascoe; Cumberlege; Turner).
In Cumberlege, Howell J relates this investigatory duty to the fact that the inquiry is not ‘merely’ an adversarial process, stating that:
In my judgment the notion that an administrative decision-maker has no obligation to take any reasonable steps to acquaint itself with relevant information to enable the decision with which it has been entrusted to be made in the public interest is plainly untenable … When the Secretary of State or one of his inspectors are considering a planning appeal, they are not presiding over a merely adversarial process. It is for them to determine the appeal in accordance with the law, not unreasonably and in the public interest. Footnote 88 (emphasis added)
In his reasoning, Howell J returns to the inquiries’ primary purpose of coming to a decision in the public interest. It suggests that this inquisitory purpose is part of the purpose of making a decision or recommendation that is in the public interest. The inquiries’ fact-finding purpose is contingent upon the primary, ‘public interest’ purpose.
(c) The inquiry should treat its participants fairly
Lord Scott states that the working culture of lawyers in England and Wales predisposes them to understand matters through an adversarial frame.Footnote 89 There is a familiarity to adversarial approaches to fairness that can render inquisitorial approaches counterintuitive. This is affirmed by Harris, who views the controversy engendered by the Scott ReportFootnote 90 as evidence of the challenges of ‘reconciling the inquisitorial nature of the public inquiry with adversarial notions of procedural fairness’.Footnote 91 The Franks Commission found that tribunals and inquiries ‘operated under the shadow of the courts’ and so should adhere to the adversarial model of fairness.Footnote 92 These factors of habit and culture partly explain why the prevailing model of fairness at the inquiry is the adversarial model. The case law explored below reveals how the courts have managed some of the challenges noted by Harris, eg in the role of the inspector, or in the approach to testing evidence.
Hopkins, the leading case in this area, established the principles governing procedural fairness in the context of public local inquiries. Jackson LJ found that the key principles of procedural fairness – that ‘any participant in adversarial proceedings is entitled (1) to know the case which he has to meet and (2) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case’ – were applicable to public local inquiries.Footnote 93 Hopkins was followed in subsequent cases, eg Barlow,Footnote 94 Wokingham Footnote 95 and Engbers,Footnote 96 and draws on principles identified in earlier cases, such as Errington, that found that decision-making processes outside of judicial processes were still obliged to follow principles of natural justice, such as the principle that both sides have a right to be heard.Footnote 97 However, this principle could arguably be met without adhering strictly to the adversarial model.Footnote 98 Does evidence heard at the inquiry need to follow the adversarial rules of evidence, eg testing through cross-examination? Is the inspector required to remain a neutral arbiter in order to adhere to this principle? What would this look like in the context of an inquiry? The courts have distinguished between inquiries and hearings in the planning system, citing the inquisitorial and less formal nature of the hearing to emphasise the adversarial and more formal nature of the inquiry.Footnote 99 Pill LJ in Dyason held that the model of procedural fairness is expected to be more closely adhered to in inquiries, comparing the inquisitorial approach to evidence testing present in the hearing against the adversarial approach to evidence testing conducted at the public local inquiry.Footnote 100 Formal cross-examination is to be expected at an inquiry.
The role of the inspector is a point of contest between the inquiries’ purpose of getting to the real facts and the inquiries’ purpose of treating participants fairly (by applying the model of procedural fairness). Lord Carnwath in E v Secretary of State for the Home Department, quoting Jackson LJ in Grantchester, finds that there is no duty on the inspector to investigate; ‘there is abundant authority for the proposition that a planning inspector’s duty to take into account relevant decisions of his colleagues only extends to decisions drawn to his attention…’.Footnote 101 However, later cases such as Eley and Cumberlege find that the inspector can make their own investigations. In Winchester, the Court notes that the inspector manages the procedure and keeps it fair,Footnote 102 similar to the Court in Turner that highlights the power of the inspector and their role in ensuring procedural fairness. This reveals a tension highlighted by Jackson LJ in Bushell and by Denning LJ in Winchester. The inspector is the decision-maker; they are also supposed to keep the inquiry fair. To ensure that the inquiry gets to the ‘real facts’, the inspector might have to make their own inquiry, moving the inquiry away from the adversarial model. And to be fair to its participants, who are likely to number people with little or no experience of legal processes, the inquiry should not be overly formal or adversarial.Footnote 103 In meeting its inquisitorial and participatory purposes, the inquiry has to diverge to some degree from the adversarial model of procedural fairness.
(d) The inquiry should facilitate public participation
While there was some acknowledgement in Challenger and Pascoe that laypeople are likely to participate in inquiries, participatory rights have been more clearly explained and protected in recent cases. Lewison LJ in Engbers states, citing Tatham Homes Ltd, that a developer cannot ignore the views of local residents, regardless of whether or not they are in agreement with the council, noting that, ‘to hold otherwise would undermine the value of public participation in environmental decision making’.Footnote 104 Building on Engbers, Andrews J in Barlow states that ‘considerations of procedural fairness’ apply not just to those with formal ‘rule 6’ status, but to anyone entitled to have a say at a public local inquiry. Echoing Engbers, Andrews J says that this is due to the importance of public participation in environmental decision-making, adding that this is ‘recognised for instance by the Aarhus Convention’.Footnote 105 It is not an inquiry case, but Lord Leggatt in the recent Finch case describes the reasons underpinning the public participation requirement set out in the EIA Directive.Footnote 106 Lord Leggatt identifies that public participation is written into such regulations because, ‘public participation is necessary to increase the democratic legitimacy of decisions which affect the environment’.Footnote 107 Lord Leggatt notes that guaranteeing these rights does not ensure this benefit, but rather considers participation rights to be a prerequisite to increasing democratic legitimacy.Footnote 108 This demonstrates the influence of the wider public participation context in planning case law. The importance of public participation in environmental decision-making, its connection to international conventions and its place in retained legislation, eg the EIA Directive, is therefore recognised by the courts. There is an understanding that the inquiry plays a role in fulfilling the right to public participation. But what do the courts think the inquiry needs to do to fulfil this right?
In two cases preceding the Aarhus Convention, the informality of the inquiry was recognised as a factor in ensuring the inquiry is fair to lay participants. It is informal in comparison with a criminal trial perhaps, but not in comparison with hearings, against which it has been described as formal.Footnote 109 In Challenger, the objectors argued that the lack of legal aid in civil cases constituted a violation of the right to a fair hearing under Article 6 of the European Convention on Human Rights. However, the High Court found that their case was not met because the inquiry process is comfortable hearing the cases of lay participants. While the applicants might not make their case exactly as they would like without representation, the inspector will hear it sufficiently.Footnote 110 This is echoed in a Ministry of Justice Report outlining legal aid reforms in 2010, which found that the adversarial tradition in England and Wales contributed substantially to high legal aid costs; the report found that the ‘accessible, inquisitorial, and user-friendly nature’ of administrative tribunals meant there was no need for representation.Footnote 111 This move away from adversarial procedures is framed as a way of inquiries achieving their participatory purpose. In Challenger, the High Court reasons that the fairness of the procedure does not rest on equality between the parties, because the inquiry is a more informal process. Sullivan J in Hadfield elaborates on this point, saying that ‘planning inquiry procedures are deliberately less formal than those which are customarily found in the courtroom, so that individuals can present their own cases. Claimants and third parties often represent themselves’.Footnote 112 This is followed in Pascoe, a case that came a year after the Aarhus Convention entered into force. Forbes J in Pascoe identifies ways that planning inquiries are more ‘user-friendly’: ‘individuals are enabled to present their own cases, and inspectors will normally adjust the inquiry timetable to facilitate matters for those seeking to put their case’.Footnote 113 When this informality is the subject of appeal in a later case, the Court finds in favour of informality, holding that a ‘degree of chattiness’ should not equate to bias and that what is appropriate in a particular inquiry is part of the legitimate judgement of the inspector.Footnote 114 However, while Pascoe recognises that the inspector can be a more active manager in inquiries in order to support those without representation, there is a limit, and this limit is defined by the rules of procedural fairness. Lewison LJ in Engbers states that it does not fall on the inspector ‘in the context of the more formal and adversarial context of an inquiry, to assist one party to repair holes in his case’.Footnote 115 Inspectors can be helpful to participants with little or no legal support, but it is still an adversarial contest. This tension between the adversarial model of procedural fairness and public participation is foregrounded in Engbers. Lewison LJ reflects on the purposes of the inquiry; implicit in his description is the conflict between these purposes:
The inspector is also required by the common law to conduct the inquiry in accordance with the principles of procedural fairness … At the same time, however, the ability of the public to participate in environmental decision making is of considerable importance …Footnote 116
The courts have thus recognised the inquiry to be a process where members of the public with minimal legal experience participate. They have further found that a strict application of the adversarial model of procedural fairness would undermine this participatory purpose. The key principles drawn from inquiry cases on its participatory purpose are:
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(i) that it is common for third parties and claimants to represent themselves (Hadfield);
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(ii) that the inquiry is informal, comparatively (Challenger, Winchester, Hadfield, and Pascoe);
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(iii) that the inspector manages the procedure and keeps it fair (Winchester, Pascoe).
3. How could the inquiry better facilitate participation?
This section considers how the tensions identified above might shape lay participants’ experience of inquiries. It offers suggestions for how the inquiry might better facilitate participation, whilst acknowledging that the paper has explored a fundamental tension between the participatory purpose of the inquiry and the adversarial elements of the inquiry that align with its fairness purpose. The suggestions provided below can only be partial responses.
This paper has found that the inquiries’ purpose of treating its participants fairly is treated as roughly equivalent to the adversarial model of procedural fairness. This is partly a consequence of the inquiry, to paraphrase Thomas, having developed ‘against the backdrop of the court-focused adversarial process’.Footnote 117 The inquiry is further guided towards adversarial notions of procedural fairness by the presence of legal representation and the inspectors’ awareness of the ‘judge over their shoulder’.Footnote 118 The adversarial model of procedural fairness is supposed to empower affected parties, but in fact can disempower certain categories of party in the process, ie those who do not have the financial resources to secure legal representation. The inequalities of arms this produces can have a negative impact on the inquiries’ capacity to discern accurate facts (by undermining the open and equal contest in which evidence is tested) as well as opportunities for effective public participation.Footnote 119 These risks are partially acknowledged by the Court recognising that a qualified version of the model is necessary. However, the features of this qualified version are unclear.
The courts have found that inquiry procedures are supposed to be informal and that it is the responsibility of the inspector to keep things fair and to encourage participation. It is evident that these are vague expectations placed on the process and not a set of clearly defined procedures from Challenger, in which it is stated that, ‘in a public inquiry the Inspector and programming staff will go out of their way to assist those who are unfamiliar with the process, or who are not represented to the same degree as the principal parties. In many cases this will be sufficient to ensure equality of arms’ (emphasis added).Footnote 120 This suggests that ensuring broadly equal participation relies on individual inquiry actors being especially generous and sensitive to the needs of inexperienced and unrepresented participants, instead of fulfilling a clearly secured right. Further, inquiry staff ‘going out of their way’ is for the purpose of ensuring a sufficient equality of arms. It does not seem to be directed at ensuring a right to public participation. The vague nature of this expectation raises concerns because, as described above, the adversarial model of procedural fairness is embedded in the legal culture of England and Wales. Without protections that ensure the informality of the process, that support people to represent themselves and ensure that the inspector encourages participation, it is easy to imagine how the adversarial nature of the legal system might reassert itself and obstruct the inquiries’ participatory purpose. There are other reasons that inquiry officers might fail to ‘go out of their way’ to assist inexperienced or unrepresented participants. Understaffed and overstretched planning teams might have limited time, resources and patience to support these participants. Inquiry officers might not always recognise the value of public participation in decision-making and might be suspicious as to the motivations of participating publics.Footnote 121 In the present context where public participation can be framed as delaying development, it might be even harder to find actors that ‘go out of their way’.
The ambiguity of the expectation that inquiry officers ‘go out of their way’ to support inexperienced participants is reflected in guidance on Rule 6 parties, which states that inspectors will assist and advise inexperienced advocates where necessary.Footnote 122 The guidance further states that ‘the Inspector will not let anyone ask you hostile or unfair questions’.Footnote 123 What a person considers hostile or unfair will be a matter of subjective assessment, shaped by their familiarity with adversarial processes. Natarajan et al in their study of nationally significant infrastructure projects (NSIP) examinations note the significant efforts made by some Examining Authorities (equivalent to inspectors) to help lay participants make their representations.Footnote 124 While NSIP examinations are expressly non-adversarial processes, these findings are echoed by participants in the M4CAN inquiry study, who noted that the inspectors in this inquiry encouraged participation.Footnote 125 However, they were at times frustrated by the inspectors allowing what they considered to be hostile questioning by the counsel of the proposing side.Footnote 126 It would seem in this case that the inspectors were wary of impeding the inquiries’ adversarial procedures, eg cross-examination. The ‘ability to present evidence, and have it rigorously tested through cross-examination’ is part of the inquiry process,Footnote 127 supported in case law, eg Dyason above. The purpose of cross-examination at an inquiry is to assist the inspector by rigorously testing evidence; but as Read notes, the primary role of the advocate is not to assist the inspector but to persuade the inspector of their client’s case.Footnote 128 This might lead to cross-examination methods that appear ill-suited to inquiries, eg methods intended ‘to impeach the witness’s credibility’.Footnote 129 Aitken notes how cross-examination in the inquiry she observed often focused on the qualifications of the expert witness, rather than the substance of their evidence.Footnote 130 Inspectors might be wary of restricting cross-examination, as it is a fundamental element of procedural fairness; they might feel that if a line of questioning is unedifying, it will not influence their decision in any case.Footnote 131 The value in restricting cross-examination would therefore be questionable, and the risk considerable, which could be conceived as a risk of judicial review. However, this does not recognise the impact that hostile questioning might have on public participation at the inquiry,Footnote 132 that it might in fact stop people from participating.Footnote 133 While the intimidating nature of the inquiry can be an obstacle to public participation, it might be challenging to recognise this if you are immersed in the inquiry process – in other words, it is difficult for ‘repeat players’ to account for the perspective of ‘one-shotters’.Footnote 134
The approaches to countering the adversarial nature of the inquiry and facilitating participation described above are vague and are likely to result in inconsistent application. Studies conducted in inquiries would seem to bear this out. What would a better approach look like? Thomas, in his study of administrative tribunals, proposes an active, enabling approach, where a ‘tribunal gives an unrepresented appellant every possible assistance to enable her to participate and to compensate for her lack of skills or knowledge’, as a third way between adversarial and inquisitorial processes for administrative tribunals to follow.Footnote 135 He argues that this approach is particularly important when unrepresented participants face a ‘repeat-player’ government agency.Footnote 136 This dynamic is likely to occur in public local inquiries. Building on Thomas’s approach, the recommendation of this paper would be for the inspector to be more active and enabling in cases where equality of arms issues seem likely to emerge. The process of truth-finding in the adversarial tradition relies on an equality of arms between the parties. Where equality of arms between parties is questionable, ie where one side has greater access to financial and legal resources than the other, the claims to accurate fact-finding made by that adversarial process can also be questioned. This would entail the inspector following the principles associated with the fact-finding purpose; to ensure that the inspector gets to the ‘real facts’, that they make their own inquiry if they feel it necessary. Clear recognition that the inquiry does not only rely on the adversarial approach to testing evidence might also recalibrate the threshold for when cross-examination appears hostile. Inspectors could afford to be more responsive to the purpose of the cross-examination and to its consequences in terms of participation.
The inspector shoulders considerable responsibility for the fulfilment of the inquiry’s multiple purposes. What should the inspector do when these purposes pull in different directions? What attention are they expected to give to people’s public participation rights? Reading the Inspector Training Manuals produced by the Planning Inspectorate and Planning & Environment Decisions Wales, it would appear that there is some acknowledgement of the diverse purposes at play at the inquiry and how they might inhibit participation. It was recognised in the Planning Inspectorate manual that while an informal atmosphere at an inquiry might raise issues of apparent bias and thus issues of fairness, a friendly and informal atmosphere is not the same as bias and is for the inspector to judge.Footnote 137 However, the manuals do not cover the right of public participation in any detail.Footnote 138 Reforms following the Franks Report can be understood as a ‘judicialising’ response to overly discretionary administrative decision-making.Footnote 139 It is suggested that later inquiry cases that prioritise the inspector’s role in protecting the public interest are a fine-tuning of this initial response. In prioritising the role of the inspector, however, the Court ignores the role of public participation in identifying the public interest. Facilitating public participation assumes that greater participation will improve decisions and enhance their democratic legitimacy; it reflects a view of the public interest closer to communicative theorists. The greater awareness of the importance of public participation evident in Engbers, Barlow and Finch, whilst encouraging, has not gone so far as to connect public participation in planning decision-making with the public interest, despite the aim of the planning system to achieve outcomes in the public interest being inherently connected to environmental democracy and the right to public participation. Training for inspectors and programming staff on the role and value of public participation; the obligations of public participation under the Aarhus Convention; current inquiry case law on these issues; noting where participation might conflict with other inquiry purposes and suggestions on how to practically encourage participation would go some way to recognising the inquiries’ public participation purpose. In parallel with training, it would be helpful to provide participants, especially those without representation, with guidance on taking part in an inquiry. This guidance could be sent to participants from the outset, to be included with the practical information, eg venues, dates, which is already sent out to interested parties. There are some valuable examples of guidance for lay participants taking part in public local inquiries.Footnote 140 Guidance on public participation rights would be a helpful addition to these resources, and could include a definition of the scope of public participation as understood by the Planning Inspectorate and Planning & Environment Decisions Wales, to manage expectations of participation and to set out how the inquiry fulfils the Aarhus rights of its various participants. Addressing the more nuanced ways that the inquiry can be intimidating for inexperienced participants, guidance could go through some points of assumed knowledge and inquiry etiquette (ie who is likely to be there and where they might sit; when you are allowed to speak; who you should address etc).Footnote 141 This guidance would go some way to fulfilling the expectation that the inquiry is ‘user-friendly’.
While a greater emphasis on public participation in training and guidance and greater clarity on when inspectors can be more active and enabling might enhance participation at the inquiry, these changes are not likely to make public local inquiries perfect forums for public participation. They are small steps to promote a purpose that can get lost in inquiry process and in inquiry case law, especially when shifts in inquiry procedure tend to be understood along an adversarial-inquisitorial spectrum. This paper has argued that public local inquiries are limited in their capacity to facilitate public participation, because the inquiries’ multiple purposes diverge; and in particular, the inquiries’ purpose of treating its participants fairly is prioritised over its participatory purpose. This is especially problematic when it comes to public participation in the planning system. In a democracy, the affected public should have the opportunity to contribute to the plans that shape their communities. This fundamental principle underpins environmental democracy and the related right to public participation. Within the formal procedures of a public local inquiry, these democratic principles can feel distant. They should not.
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