How does a Registration Authority decide whether a non-statutory public inquiry should be held? When is it unfair to hold a public inquiry?
1. There are a number of case which have touched upon the issue of when a non-statutory public inquiry should be held.
2. First, in The Queen on the Application of Cheltenham Builders Limited v South Gloucestershire District Council[2003] EWHC 2803(Admin) per Sullivan J (as he then was) at [34 – 40] that there was a duty to adopt a “fair procedure and to take reasonable steps to establish the facts to enable it to answer the statutory question.”
3. Second, in R v Suffolk CC ex p Steed (1995) 70 P&CR 487at pp.500-501Carnwath J (as he then was) said: “Some oral procedure seems essential if a fair view is to be reached where conflicting recollections need to be reconciled.”
4. Third, in R (Whitmey) v Commons Commissioners[2004] EWCA Civ 951Lady Justice Arden said at [29]:
“We are told that it is the practice for local authorities so to do, either by appointing an independent inspector or by holding a hearing in front of a committee. If the dispute is serious in nature, I agree with Waller LJ that if the registration authority has itself to make a decision on the application (cf paras 31 and 32 below), it should proceed only after receiving the report of an independent expert (by which I mean a legal expert) who has at the registration authority's request held a non-statutory public inquiry.”
5. It is often overlooked that at [30] Arden LJ also went as far as to say that: “The authority may indeed consider that it owes an obligation to have an inquiry if the matter is of great local interest.” Waller LJ expressly agreed with the judgment of Arden LJ and said at [66]:
“It will mean that, in any case where there is a serious dispute, a registration authority will almost invariably need to appoint an independent expert to hold a public inquiry, and find the requisite facts, in order to obtain the proper advice before registration.”
6. Fourth, in Oxfordshire County Council v Oxford City Council[2006] 2 W.L.R. 1235(“Trap Grounds”)Lord Hoffmann said with apparent endorsement at [29] that in “difficult cases” there was a “practice to engage the services of a member of the Bar to conduct a non-statutory inquiry with a view to advising the authority on the facts and the law” and that this had been “sanctioned by a number of judicial decisions.”
7. Fifth, in the unreported case of R(Fellowes) v Powys County Council [2014]in which I was involved Jay J granted permission to proceed with judicial review and made an injunction against the RA in circumstances where it proposed have a committee of councillors consider an application rather than appoint a suitable legal expert to hold an inquiry. The case did not proceed to a full hearing.
8. Sixth, in Somerford Parish Council v Cheshire East Borough Council & Anor [2016] EWHC 619(“Somerford”)the High Court quashed a decision made by a RA to reject an application where it had proceeded by way of written submissions only. It was held by the court that there had not been a fair opportunity to make submissions on all the evidence and moreover there was a need to explore the issues by receiving and testing oral evidence at a public inquiry. The decision not to hold a public inquiry was held to be flawed.
9. Drawing these cases together it appears to me that some general points can be made. Financial pressures, aside from anything else, may influence a RA to try and resolve a case without an oral hearing of the evidence. This will be a very dangerous exercise it involves side-stepping around factually contested matters. It is suggested here that developers, like local authorities, may be anxious to get a quick decision. This temptation should be relegated beneath getting a decision, in a reasonable time, which is harder to challenge.
10. In some clear-cut cases decisions on paper only are still possible but really only where the facts cannot in any way be affected by oral evidence. One needs to be very careful to ascertain whether the facts are truly unaffected by oral evidence. The parties can be asked for views on this. A compromise solution where there is a stand-out issue may be to convene a preliminary issue public inquiry which can take a shorter period of time than a full public inquiry. The stand-out candidate for such treatment is questions relating to use by rightwhere the evidence consists of very historic documents (such as minutes of council meetings etc.) only.
11. Indeed, it is a practical reality that in cases of legal complexity which are often encountered in this area of the law it is often great assistance to an Inspector (and to the RA) to have oral submissions made to enable the various arguments to be efficiently explored and tested. It can also avoid endless ping-pong of submissions and drip feeding of documents (which is a particularly dangerous issue on questions concerning user by right).
12. It is worth also noting that in pioneer or pilot authorities Regulation 27(7) of the Commons Registration (England) Regulations 2014/3038 provides:
(7) The determining authority—
(a) may not refuse an application without first offering the applicant an opportunity to make oral representations; and
(b) may not grant or refuse an application or proposal without first offering any person (other than the applicant) for whom the grant or refusal (as the case may be) would represent a determination of that person's civil rights an opportunity to make oral representations.
This might be thought to have the effect that every inhabitant in the claimed neighbourhood or locality has a right to make oral submissions! In practice, this requirement can be fulfilled by offering an opportunity to speak at the committee making the decision to follow (or indeed to reject) the Inspector’s recommendation.
How can a Registration Authority ensure fairness if the Registration Authority is also the landowner or if there is not to be a public inquiry?
Where the Registration Authority is also the landowner
13. In “pilot” or “pioneer” area the Commons Registration (England) Regulations 2014/3038 set out that an application must be sent to PINS for determination where “the registration authority has an interest in the outcome of the application or proposal such that there is unlikely to be confidence in the authority's ability impartially to determine it.”However, in the non-pioneer areas there is no such provision.
14. In Somerford, a case concerning a non-pioneer area (as set out above),it was also submitted that the RA had breached the rules of natural justice that no one should be judge in their own cause. This was based on the submissionthat Cheshire East Borough Council had a large financial interest in the application being rejected: it was due to receive £1 million under a s.106 agreement connected with a proposed development. It was said that the only thing that could be done to avoid this was transfer responsibility for the case to another RA pursuant to s.101 of the Local Government Act 1972. The argument was rejected by Stewart J. He held that the case-law on this issue, notably the Whitmeycase in the Court of Appeal, makes it clear that it is open to a RA to appoint an “independent legal expert” to assist it. This mechanism resolve what might otherwise be the RA being a judge in its own cause: the £1 million due under the s.106 agreement was in any case due to the highway authority.
15. However, even where the procedure of appointing an independent legal expert has been appointed as Inspector it seems to me that there is still potential for conflicts of interests to arise if the matter is not appropriately handled. No doubt there might be quite a few scenarios that could cause difficulty, but it is illustrative to think about the following questions:
· Is there appropriate division of roles as between the RA and the landowning-wing of the authority? Might this need to be in place prior to applications being made? (e.g. what about an enquiry about trigger events?) Are there appropriate “Chinese walls” in place to prevent inappropriate communications?
· Who is issue the Directions and decide whenthe inquiry should be held?
· Who is to decide whether the RA should wait for an appeal in a court case before making a final decision on the application?
· What about an RA who propose take a second opinion on a controversial issue of law?
· Who is to decide whether the RA should seek a declaration from the courts on a difficult issue of law?