Form

A Guide for Appellants (Restriction Appeals) - Appeals under section 30 of the Countryside and Rights of Way Act 2000

Published 1 March 2013

Applies to England and Wales

This guidance sets out the procedures for appeals made to land designated as access land under section 30 of the Countryside and Rights of Way Act 2000 (to the Secretary of State for Environment, Food and Rural Affairs) in connection with exclusion or restriction of access.

Only the courts can give an authoritative interpretation of any point of law, so this guidance has no legal force.

1. Introduction

1.1 Managing Access

1.1.1. Sections 24 and 25 of the Countryside and Rights of Way Act 2000 (“the Act”) allow relevant authorities to exclude or restrict access for the purposes of land management, where there is a fire risk, or to prevent danger to the public. People with a legal interest in the land may apply to the relevant authority for directions to exclude or restrict access under section 24 and 25.

1.2 The right to appeal

1.2.1. Section 30 of the Act gives the person seeking such a direction a right of appeal where the relevant authority decides not to act in accordance with the application. An appeal will be determined by the Planning Inspectorate on behalf of the Secretary of State for Environment, Food and Rural Affairs.

1.2.2. In addition, where a relevant authority has already issued a direction to exclude or restrict access following an application by an interested person, they must consult that person (or whoever has taken over their interest in the land) before revoking or varying the direction. If the interested person makes representations to the relevant authority and the relevant authority decides not to act in accordance with those representations, the interested person has the right to appeal.

1.2.3. Sections 2 to 9 of this guidance deal with appeals relating to applications for directions for land management purposes (under section 24 of the Act) and to avoid danger to the public (section 25(1)(b)), or decisions not to act on representations following consultation on revoking or varying a direction (section 27(5)).

1.3 Fire risk

1.3.1. Because exclusions and restrictions to avoid the risk of fire may be needed very quickly, a “fast track” procedure exists to deal with appeals following applications under section 25(1)(a) of the Act. The fast track procedures are set out in section 10 of this guidance.

1.4 Words and phrases used in this guidance

1.4.1. Relevant authorities in England are Natural England or, for access land within a National Park, the National Park Authority or, for woodland dedicated for access, the Forestry Commission.

1.4.2. Exclusions or restrictions will be referred to as “restrictions”.

1.4.3. The Secretary of State for Environment, Food and Rural Affairs will be referred to as “the Secretary of State”.

2. How to make an appeal

2.1 Do I have the right to appeal?

2.1.1. An appeal can only be made by the original applicant for a direction under sections 24 or 25 of the Act, or by the person who made representations when consulted under section 27(5).

2.2 When and how do I make the appeal?

2.2.1. Your appeal must reach the Planning Inspectorate within 6 weeks of the date on which the relevant authority issued its decision.

2.2.2. The appeal must be made on our appeal form. You can download the form on the GOV.UK website or you can obtain one by telephoning or writing to us. Our postal address and telephone number is given in section 14 of this guidance. If you download the appeal form you can e-mail it back to us at: [email protected].

2.2.3. Where possible we would prefer appeals to be made electronically but do not worry if you cannot do that. Whether an appeal is e-mailed or posted will not have any bearing on its chances of success.

2.2.4. Any representations or documents e-mailed should be based upon the Microsoft suite of applications. If you e-mail your appeal you do not need to complete it with an electronic signature. If you submit an appeal electronically please do not send a paper copy in addition. Whatever the format you should keep a copy for your own reference.

2.3 Which procedure will my appeal follow?

2.3.1. The 3 procedures:

• Written representations (see section 4 of the guidance)
• Hearing (see section 5)
• Inquiry (see section 6).

The Secretary of State will decide which procedure your appeal should follow. The decision will be based upon the criteria listed in sections 4-6 of this guidance and will take into account your preference and the view of the relevant authority.

2.4 Who else can be involved?

2.4.1. We have a statutory duty to publish notice of every appeal on the GOV.UK website, to give any member of the public the opportunity to make representations. This means that other people and organisations (described in this guidance as third parties) may make written representations in relation to your appeal to the Inspector. Third parties may also speak at a hearing or inquiry with the Inspector’s permission.

2.4.2. We will also notify any third parties who made representations about the appeal site when you originally applied for a restriction, or in respect of the relevant authority’s proposal to revoke or vary a direction. These third parties will be given an opportunity to add to, or to withdraw, any representations they made at that time.

2.4.3. You will be given an opportunity to comment on all third party representations, as will the relevant authority.

2.4.4. You should be aware that any submissions you make may be published on the GOV.UK website and will be made available to be inspected and copied. You should not, therefore include personal information unless you are happy for it to be seen by others (see section 14 of this guidance).

2.5 How much will it cost?

2.5.1. There is no charge for making an appeal but you will have to pay your own costs. What this means is that if you employ a professional adviser (eg: a solicitor) to help you make your appeal, you will have to pay for their services.

2.5.2. The only exception to parties meeting all their own costs is when a party makes a successful application for an award of costs against another party (see section 11 of this guidance).

3. What happens when we receive an appeal?

3.1 Checking the appeal form has been fully completed

3.1.1. When we receive your appeal we will check that it has been completed properly and contains all the information which we need to be able to deal with it.

3.1.2. For us to be able to deal with your appeal you should fully complete the form. When submitting it to us you must attach:

• a copy of your application for a direction under section 24 or 25 of the Act, and
• a copy of the relevant authority’s decision giving their reasons for not acting in accordance with your application, OR
• a copy of your representations made in response to consultation under section 27(5), and
• a copy of the relevant authority’s decision giving their reasons for not acting in accordance with your representations

3.1.3. You must clearly identify the land which is the subject of your appeal and you must send us a map clearly identifying the boundaries and location of the appeal site. A farm plan or a printout of the conclusive map of open country and registered common land from Natural England’s web site will probably do. The map should be at a scale of at least 1:50,000. The map should also include a feature which can be found on a road atlas or Ordnance Survey map, to allow the Inspector to find the site.

3.2 Checking that your appeal is valid

3.2.1. We will check that you are entitled to appeal and that your appeal has been made on valid grounds. Section 30(1)(a) requires that you have

• applied for a direction under either section 24 or 25, or
• have made representations under section 27(5), and
• the relevant authority has decided not to act in accordance with your
  application or representations.

If it is clear that any of these things do not apply we must reject your appeal as invalid.

3.3 What happens if something is missing?

3.3.1. If you have not sent us everything we need to enable us to process your appeal or have failed to submit valid grounds we will ask you to provide us with the missing information. If you do not do this within the 6-week appeal period then you will not have made a valid appeal in the time permitted by law and we will not be able to take any further action on it. You should bear this in mind - if you submit an incomplete appeal towards the end of the 6-week appeal period we may not be able to tell you what is wrong with your appeal in sufficient time to enable you to amend or re-send it. For this reason we strongly advise you to submit your appeal as early as possible.

3.3.2. In exceptional cases we may extend the deadline for submission of an appeal. For example, we might do so if there was a significant delay in our telling you that your appeal was incomplete.

3.4 Setting the ‘start date’

3.4.1. If your appeal is valid and you have supplied all the information we require we will tell you so. At the same time we will inform you of the name of your case officer and the unique reference assigned to your case. We will then tell the relevant authority that your appeal is valid and send a copy of it to them.

3.4.2. The relevant authority will complete a questionnaire. They will send their completed questionnaire to you and to us, together with the names and addresses of every third party who made representations to it in respect of your application for a direction, or in respect of a review of an existing direction.

3.4.3. We will then tell you, the relevant authority (and any third parties that we have been informed of) which procedure is to be used (ie: written representations, hearing or inquiry) and the start date. The start date is the date from which the timetable for each stage of the procedure is calculated. The letter we send you will set out the timetable for submission of evidence by all parties. It is your responsibility to keep to this timetable - we will not send you reminders.

3.4.4. At this time, we will also post notice of your appeal on the GOV.uk website.

4. The written representations procedure

4.0.1. This is likely to be the most cost effective and easiest procedure because you and the relevant authority do not have to attend a hearing or inquiry. Instead the Inspector makes his/her decision based on the written statements that you, the relevant authority and any third parties have submitted. You and the relevant authority will have the opportunity to comment on each other’s case and any representations made by third parties. In most cases the Inspector will inspect the site before reaching a decision.

4.0.2. The written representations procedure is most suitable for appeals which do not raise complex legal matters and have not attracted large numbers of third party representations.

4.0.3. Costs cannot be awarded against you or the relevant authority where your appeal is dealt with by written representations (see section 11 of this guidance).

4.1 The timetable of events following the start date

The 2-week deadline

4.1.1. Within 2 weeks of the start date the relevant authority must have provided you and us with copies of any third party representations they received in respect of your application for a direction, or in respect of a review of an existing direction. They will also copy to you and us any correspondence they exchanged with you in respect of your application for a direction or their proposal to revoke or vary an existing direction.

The 6-week deadline

4.1.2. Within 6 weeks of the start date we must receive your statement of case, which sets out your side of the argument unless you intend to rely only upon the grounds that you entered onto your appeal form. The Council will submit their statement of case at the same time as you. Your statement of case should be concise and should concentrate on the main issues. It should set out the key facts, reasoning and conclusions necessary to make your case in a logical form. Repeating matters that you have already set out in your grounds of appeal serves no purpose. The statement does not have to be in any particular format and it can be submitted on paper or by e-mail. If you decide not to send a statement of case within 6 weeks you will still be given the opportunity to comment, within 9 weeks of the start date, on the statements and representations submitted by the relevant authority and third parties (see “The 9-week deadline” at paragraphs 4.7 and 4.8 below).

4.1.3. Third parties may also submit representations. All representations that have been received within the specified time will be copied to you and the relevant authority once the 6-week deadline has passed. Your statement of case and that of the relevant authority will be despatched by us to the other party at the same time to prevent either party getting an unfair advantage by seeing the other’s statement before submitting their own.

The 9-week deadline

4.1.4. Within 9 weeks of the start date you and the relevant authority may comment on each other’s statements of case and on any comments submitted by third parties. We expect both you and the relevant authority to have given us all evidence in the grounds of appeal and statements of case, so the opportunity to comment at 9 weeks must not be used as a means of introducing new material or putting forward arguments that should have been included in your 6-week statement. If either party were to do so, the other party would have no opportunity to respond so we will reject and return representations received at this stage if they raise new issues.

4.1.5. After the exchange of comments on each other’s statements of case has taken place, where appropriate, we will arrange for the Inspector to carry out a site visit. We will notify you of the date on which the site inspection is to take place so that you may attend if you wish.

4.2 The Inspector’s site visit

4.2.1. When deciding whether to attend the inspection you should bear in mind that the Inspector will be unable to accept evidence or discuss your appeal during the inspection. The Inspector may, however, ask you to point out physical features referred to in your written evidence. This rule will be strictly observed by Inspectors.

4.2.2. It is possible that the relevant authority will not attend the site visit. If that is the case the Inspector will be careful to ensure that the visit does not allow you to gain an unfair advantage. Should you raise points of evidence during the visit, the Inspector will ask you not to do so and explain why. If you persist in attempting to discuss the evidence it is likely that the Inspector will call a halt to the visit and leave the site.

4.2.3. If you want to discuss your appeal with the Inspector then it may be that a hearing (or even an inquiry) may be best (see sections 5 and 6 of this guidance).

4.2.4. If you decide that you want to accompany the Inspector we will notify the relevant authority of the date, time and meeting point so that they have an opportunity to attend.

5. The hearing procedure

5.0.1. A hearing is a discussion about the appeal led by the Inspector. It is more informal and usually quicker than an inquiry and Inspector will encourage the parties to focus upon the main issues of disagreement. Hearings are not usually suitable for appeals that involve cross-examination of a number of witnesses or which have generated such interest that large numbers of people wish to attend.

5.1 The timetable of events following the start date

The 2-week deadline

5.1.1. Within 2 weeks of the start date the relevant authority must have provided you and us with copies of any third party representations they received in respect of your application for a direction, or in respect of a review of an existing direction. They will also copy to you and to us any correspondence they exchanged with you over your application for a direction or the review of an existing direction.

The 6-week deadline

5.1.2. Within 6 weeks of the start date we must receive your statement of case, which sets out your side of the argument, unless you intend to rely only upon the grounds that you entered onto your appeal form. The Council will submit their statement of case at the same time as you. Repeating matters that you have already set out in your grounds of appeal serves no purpose. The statement does not have to be in any particular format and it can be submitted on paper or by e-mail. If you decide not to send a statement of case within 6 weeks you will still be given the opportunity to comment, within 9 weeks of the start date, on the statements and representations submitted by the relevant authority and third parties (see “The 9- week deadline” at paragraph 5.8 below).

5.1.3. Third parties may also submit representations. All representations that have been received within the specified time will be copied to you and the relevant authority once the 6-week deadline has passed. Your statement of case and that of the relevant authority will be despatched by us to the other party at the same time to prevent either party getting an unfair advantage by seeing the other’s statement before submitting their own.

5.1.4. Your statement of case should be concise and should concentrate on the main issues. It should set out the key facts, reasoning and conclusions necessary to make your case in a logical form. Each party will only get the full benefits of the hearing if you, the relevant authority and the Inspector have an opportunity to consider the issues beforehand. The hearing can then be an open discussion of the main issues without witnesses having to be examined. If appropriate, expert opinions should also be obtained and backed up with evidence. If you intend to call somebody to speak on your behalf their statement should be included in your statement of case.

5.1.5. The statement of case may be used, in whole or in part, for reference at the hearing and by the Inspector in writing his/her decision or report. When preparing your statement you should bear in mind that evidence will not necessarily be accepted just because it has not been challenged by another party. Our Inspectors bring their own experience, knowledge and judgement to all evidence presented to them.

5.1.6. If more than one document is referred to in your statement of case and will be submitted as evidence, an index should be provided and each page of the statement numbered. Photographs should be representative of actual views, and not be distorted by special lenses or digitally manipulated. The Inspector will inspect the site, and may wish to see it from the viewpoints shown in photographic evidence.

The 9-week deadline

5.1.7. After we have exchanged them and within 9 weeks of the start date you and the relevant authority may comment on each other’s statements and on any comments submitted by third parties. We expect both you and the relevant authority to have given us all your evidence in the grounds of appeal and statements of case, so the opportunity to comment at 9 weeks must not be used as a means of introducing new material or putting forward arguments that should have been included in your 6-week statement. We will reject and return representations received at this stage if they raise new issues.

5.2 Notice of the hearing

5.2.1. Unless a shorter period of notice is agreed with you and the relevant authority we will give at least 4 weeks notice of the arrangements for a hearing. We may require the relevant authority to place a notice of a hearing or inquiry in a local newspaper not less than 2 weeks before the hearing or inquiry is due to open. We may also require the relevant authority to affix a notice of the hearing firmly to the appeal land or to something nearby which is clearly visible to the public for a period of time. We will post notice of the hearing on the GOV.UK website at least 2 weeks before the event.

5.2.2. We have a duty to decide all appeals as efficiently and cost-effectively as possible whilst giving equal opportunities to all parties to produce valid evidence. For this reason you and the relevant authority will only be able to refuse one date offered for the hearing. If you refuse the first date, we will impose an alternative. We will do our best to avoid any dates that are inconvenient for you, but we cannot guarantee that we will be able to find a more convenient day. If you are unable to attend on the date fixed for your hearing, you should consider sending somebody to present your case for you.

5.2.3. We must also notify any third parties so that they may attend if they wish to. At a hearing third parties have no right to speak, but may be heard at the discretion of the Inspector.

5.3 Will I be able to ask for a postponement?

5.3.1. We must consider the interests of everyone who is involved in appeals. We will, of course, assess each request for a postponement on its merits, but because of the expense and inconvenience for others postponements will only be granted in exceptional circumstances. Even if we consider the grounds for postponement are reasonable, we will normally only agree if there is sufficient time to notify everyone involved in the appeal.

5.4 Conduct of a hearing

5.4.1. The procedure at a hearing is for the Inspector to decide. The Inspector has the right to open the hearing at the appointed time, even if you or the relevant authority is absent. However, he/she will normally try to ascertain if you are coming, but have been delayed for some reason.

5.4.2. The Inspector will start by introducing him/herself and describing the purpose of the hearing. He/she will explain that the hearing will take the form of a discussion which he/she will lead. The Inspector will summarise his/her understanding of the case from reading the papers and will outline what he/she considers to be the main issues and indicate any matters which require further clarification or explanation. This will not prevent any party from raising issues that the Inspector does not mention.

5.5 Should I instruct a representative to present my case?

5.5.1. You do not have to be professionally represented at a hearing. In most cases the relevant authority however will be represented by one of their staff and will not employ a lawyer or other advocate. You may decide to instruct an advocate or specialist, or simply ask someone you know to speak for you.

5.5.2. The Inspector will ensure that you will have an opportunity to state your case and to reply to the cases made by others. Whoever presents each case, the Inspector will ensure that the hearing is conducted correctly and that the appeal is decided fairly. You will not, therefore, be at a disadvantage if you do not have professional representation.

5.6 What happens after the hearing?

5.6.1. The Inspector will normally make a visit to the appeal site and will ask if you and the relevant authority wish to accompany him/her. The site visit will usually take place on the day of the hearing but may be shortly after. You may accompany the Inspector when he/she visits the site. When deciding whether to accompany the Inspector you should bear in mind that the Inspector will be unable to accept evidence or discuss your appeal (unless he/she has adjourned the hearing to the site). The Inspector may, however, ask you to point out physical features referred to in your evidence. This rule will be strictly observed by Inspectors.

5.6.2. It is possible that the relevant authority will not attend the site visit. If that is the case the Inspector will be careful to ensure that the visit does not allow you to gain an unfair advantage. Should you raise points of evidence during the visit, the Inspector will ask you not to do so and explain why. If you persist in attempting to discuss the evidence it is likely that the Inspector will call a halt to the visit and leave the site.

5.6.3. After the hearing has taken place the Inspector will issue a written decision based on the evidence before him/her. When making his/her decision the Inspector will, in all but exceptional circumstances, disregard any written representations, evidence or any other document received after the hearing has closed.

6. The inquiry procedure

6.0.1. This is the most formal and demanding of the three procedures. We anticipate that public inquiries will only be required for appeals involving very complex or numerous issues, or where there is a need for witnesses to be cross-examined, or considerable public interest has been shown in the appeal.

6.1 The timetable of events following the start date

The 2-week deadline

6.2.1. Within 2 weeks of the start date the relevant authority must have provided you and us with copies of any third party representations they received in respect of your application for a direction, or in respect of a review of an existing direction. They will also copy to you and us any correspondence they exchanged with you over your application for a direction or the review of an existing direction.

The 6-week deadline

6.1.2. Within 6 weeks of the start date you and the relevant authority must have provided us with your statement of case. Your statement of case should give a summary of all the arguments that you intend to put before the inquiry, but it does not need to contain details of the evidence. It should be concise and should concentrate on the main issues, setting out the key facts, reasoning and conclusions necessary to make your case in a logical form.

6.1.3. The statement should also include a list of all the documents that you will rely on when presenting your case at the inquiry and that you will refer to in your proof of evidence (see paragraphs 6.10 & 6.11 below). This enables both you and the relevant authority to know as much as possible about each other’s case at an early stage and will help the inquiry to focus on the key issues. It also reduces the risk of a party asking for an adjournment and applying for an award for costs on the grounds that the other party’s behaviour has caused them unnecessary expense (see section 11 of this guidance).

6.1.4. Third parties may also submit representations. All representations that have been received within the specified time will be copied to you and the relevant authority once the 6-week deadline has passed. Your statement of case and the relevant authority’s will be despatched by us to the other party at the same time to prevent either party getting an unfair advantage by seeing the other’s statement before submitting their own.

The 9-week deadline

6.1.5. After we have exchanged them and within 9 weeks of the start date you and the relevant authority may comment on each other’s statements and on any comments submitted by third parties. We expect both you and the relevant authority to have given us a summary of all your arguments in the grounds of appeal and statements of case. The opportunity to comment at 9 weeks must not be used as a means of introducing new material or putting forward arguments that should have been included in your 6-week statement. We will reject and return representations received at this stage if they raise new issues.

Deadlines to be met 4 weeks before the inquiry opens

6.1.6. At least 4 weeks before the opening of the inquiry the relevant authority must send to us a statement of common ground. It would be helpful if you and the relevant authority each sent to us a proof of evidence.

6.1.7. The statement of common ground is a written statement that you and the relevant authority must prepare jointly. It should contain basic matters such as a site description and any other undisputed factual matters, as well as any agreements as to the evidence which you and the relevant authority have been able to reach, whether at the pre-inquiry meeting, if one was held, or otherwise. Its purpose is to set out the agreed factual information about your appeal, by narrowing the areas of dispute, resulting in shorter proofs of evidence and quicker inquiries. Failure to reach agreement on the statement of common ground could, if resulting from non-co-operation rather than a genuine disagreement on the facts, lead to an application for costs.

6.1.8. Once the statement has been agreed it is the responsibility of the relevant authority to submit it to us at least 4 weeks in advance of the inquiry.

6.1.9. A proof of evidence is a document containing the written evidence about which a person appearing at a public inquiry will speak, together with a copy of any documents that will be produced. Although not a requirement of the Act it would be helpful if you and the relevant authority submit a proof of evidence. Proofs should be concise and ideally contain facts and expert opinions generated from witnesses or a party’s own professional or local knowledge. Where the proof makes a point that relies on a document, the page and paragraph number in that document should be identified and cross-referenced. Plans, photographs and diagrams should be listed as documents.

6.1.10. Your proof should not include matters that are not in dispute (see “statement of common ground” in paragraph 6.8). If your proof contains more that 1,500 words it should be accompanied by a written summary. Summaries should not exceed 10% of the number of words contained in the proof. If you submit a written summary only the summary may be read out at the inquiry, unless the Inspector permits or requires otherwise. However, even if only the summary is read out, you and other witnesses may still be cross-examined on the contents of the full proof.

6.2 Pre-inquiry meetings

6.2.1. A pre-inquiry meeting may be held when we think it will simplify the inquiry or when we expect an inquiry to last for 8 days or more. If we decide to hold a pre- inquiry meeting into your appeal, we may provide a statement of matters on which we think it will be particularly helpful for the Inspector to be informed. No-one other than the two main parties has a right to attend a pre-inquiry meeting (and for this reason we will not give notice of it).

6.2.2. The purpose of the statement of matters is to provide a clear indication of what we think are the key issues. It is intended to assist you, the relevant authority and any other parties we may invite to the pre-inquiry meeting to prepare for the inquiry. It is not intended to be a definitive statement because Inspectors must be free to hear all evidence that they believe is relevant to the case. The Inspector may also seek agreement at the pre-inquiry meeting on a programme and other procedural arrangements to ensure the smooth and efficient running of the inquiry.

6.2.3. At the pre-inquiry meeting the Inspector may request further information from you or the relevant authority and you will be required to submit that information within 4 weeks of the conclusion of the meeting.

6.3 What publicity will be given to the inquiry?

6.3.1. Once the arrangements have been finalised we will give you, the relevant authority and any third parties who have sent representations concerning the appeal site at least 4 weeks written notice of the inquiry. In most cases we will be able to give you a much longer period of notice. Not less than 2 weeks before the inquiry is to open we may require the relevant authority to place a notice of the inquiry in a local newspaper, and will normally do so. We will also post notice of the inquiry on our web site at least 2 weeks before the event. We will notify third parties so that they may attend if they wish.

6.3.2. We have a duty to decide all appeals as efficiently and cost-effectively as possible whilst giving equal opportunities to all parties to produce valid evidence. For this reason you and the relevant authority will only be able to refuse one date offered for the inquiry. If you refuse the first date, we will impose an alternative. We will do our best to avoid any dates that are inconvenient to you, but we cannot guarantee that we will be able to find a more convenient day. If you are unable to attend on the date fixed for your inquiry, you should consider sending somebody to present your case for you.

6.4 Will I be able to ask for a postponement?

6.4.1. We must consider the interests of everyone who is involved in appeals. We will, of course, assess each request for a postponement on its merits, but because of the expense and inconvenience for others postponements will only be granted in exceptional circumstances. Even if we consider the grounds for postponement are reasonable we will normally only agree if there is sufficient time to notify everyone involved in the appeal.

6.5 Should I instruct a representative to present my case?

6.5.1. An inquiry is a formal procedure and will normally involve cross-examination of witnesses. Although they might not do so, you should expect the relevant authority to employ a lawyer or other advocate to present their case and conduct the cross- examination of you and your witnesses. You do not have to be represented by someone else at an inquiry, but you should carefully consider whether you are able to present your case and cross-examine the relevant authority’s witnesses to the best effect without professional representation.

6.5.2. The Inspector will ensure that you will have an opportunity to state your case and to reply to the case made by others. Whoever presents each case, the Inspector will ensure that the inquiry is conducted correctly and that the appeal is decided fairly on the basis of the evidence.

6.6 How can I obtain copies of documents listed in the relevant authority’s statement of case?

6.6.1. The Regulations make provisions for you to be able to require from the relevant authority, and for the relevant authority to be able to require from you, copies of any documents you each intend to put forward as evidence at the inquiry. Failure to respond to a request to provide documents in advance of the event may result in a need to adjourn the inquiry which, in turn, may result in an award of costs against you, or the relevant authority, if they behaved unreasonably (see section 11 of this guidance).

6.7 Who will be allowed to speak at the inquiry?

6.7.1. You and the relevant authority are the only parties with a statutory right to speak at the inquiry. However, the Inspector will not unreasonably withhold permission from any other person to appear provided they have something relevant to say which has not already been said.

6.8 Procedure at inquiry

6.8.1. The procedure will be determined by the Inspector who conducts the inquiry, however as a general guide, it will normally take the following form:

Introduction

• The Inspector will introduce him/herself. He/she will then explain how the inquiry will continue, making reference to any agreement reached at the pre- inquiry meeting. The Inspector will ask who wishes to speak and whether there are requests for special arrangements, for example if someone wishes to be heard out of turn if they have to leave early.
• The Inspector will then identify the likely main issues – again referring to the pre-inquiry meeting if there was one, and the position on the receipt of proofs of evidence.

Presenting the cases

• You (or your representative) and the relevant authority may be invited to make a brief opening statement of not more than 15 minutes.
• The relevant authority will give evidence first and you will then have the right to make your case in full. Third parties will be heard in the order determined by the Inspector. Regardless of who is speaking, the Inspector may refuse to hear evidence that is irrelevant or repetitious or offensive.
• The relevant authority calls their witnesses in turn to give evidence. Witnesses may then be cross-examined by you. You must use this opportunity to ask questions only. If the Inspector considers that you are making a statement rather than asking questions, or if your questions are repetitive, he/she will stop you. The witnesses are then re-examined by the relevant authority, but this must be strictly confined to matters raised in cross-examination.
• The Inspector may ask you, the relevant authority and witnesses questions to obtain relevant information. If the questions asked by the Inspector raise matters which could harm that party’s case additional re-examination will be allowed.
• This process is then repeated for you and your witnesses.
• Only you and the relevant authority have the right to cross-examine, although the Inspector may permit other persons to do so if they have stated they wish to speak.
• You will have the right of final reply. When making your closing statement you may remind the Inspector about any important points that have come up during the questions, but you must not introduce any new evidence because the relevant authority, having already made their closing comments, would have no right of reply. The Inspector may then make arrangements for a site visit before formally closing the inquiry.

6.9 What happens after the inquiry?

6.9.1. The Inspector will visit the appeal site and he/she will ask if you and the relevant authority wish to accompany him/her. The site visit will normally take place on the day of the inquiry but if not will be shortly after. You may accompany the Inspector when he/she visits the site. When deciding whether to accompany the Inspector you should bear in mind that the Inspector will be unable to accept evidence or discuss your appeal after the inquiry has closed. The Inspector may, however, ask you to point out physical features referred to in your evidence. This rule will be strictly observed by Inspectors.

6.9.2. It is possible that the relevant authority will not attend the site visit. If that is the case the Inspector will be careful to ensure that the visit does not allow you to gain an unfair advantage. Should you raise points of evidence during the visit, the Inspector will ask you not to do so and explain why. If you persist in attempting to discuss the evidence it is likely that the Inspector will call a halt to the visit and leave the site.

6.9.3. After the inquiry has taken place the Inspector will issue a written decision based on all the evidence before him/her. When making his/her decision the Inspector will, in all but exceptional circumstances, disregard any written representations, evidence or any other document received after the inquiry has closed.

7. Changes to procedure

7.0.1. We may decide, at any time before we issue the Inspector’s decision, that an appeal should no longer be determined by way of written representations but instead a hearing or an inquiry should be held. If that happens we will notify you, the relevant authority and any interested party.

7.1 What happens if the relevant authority concedes my appeal?

7.1.1. If at any point before we issue the Inspector’s decision on your appeal, the relevant authority decides that they were wrong not to act in accordance with your application or representations they will tell us and we will let you know immediately. However, the Act does not permit a validly made appeal to bypass the procedures set out in Regulations, so even conceded appeals need to be advertised on our website and must go through the normal procedures.

7.1.2. This might result in representations being made by third parties seeking to support or oppose your appeal. Likewise, third parties who made representations to the relevant authority in respect of your application for a direction, or a review of an existing direction, must be given the chance to add to or withdraw their comments. You and the relevant authority still have an opportunity to submit statements 6 and 9 weeks after the start date (although this would normally serve little purpose unless comments on third party representations were necessary).

7.1.3. If the appeal was due to be dealt with at a hearing or inquiry, we will in all but exceptional circumstances change the appeal procedure to written representations.

7.1.4. If you still wish to be heard because you prefer to make your case to the Inspector in person, we will proceed with the hearing or inquiry. If any third parties wish to attend, they may seek permission from the Inspector to speak either for or against your appeal.

7.2 What happens if I decide to withdraw my appeal?

7.2.1. You can withdraw your appeal at any time before we issue our decision on it. If you decide to withdraw you must telephone the case officer immediately and then write to confirm the withdrawal giving the appeal reference. It is especially important that you do this if we have arranged an inquiry or hearing. If you withdraw your appeal after we have made arrangements for your case to be heard, and the relevant authority or third parties can demonstrate that you acted unreasonably at any point in the process, you may have to pay some or all of the costs incurred by them.

8. How the decision will be made

8.0.1. The Inspector’s decision on an appeal will always be made in writing. Each decision will summarise the Inspector’s conclusions on all the relevant facts and arguments which have been presented in evidence. It will be sent to you, the relevant authority and any third parties as soon as possible after the Inspector’s site visit, hearing or inquiry. Copies of all Inspectors’ decisions will also be published on a web site: TBC

8.1 Decisions by the Secretary of State

8.1.1. Nearly all decisions will be taken by Inspectors appointed by the Secretary of State, but occasionally the Secretary of State may decide that an appeal raises such important issues that she should make the decision herself. If this is the case the procedures are identical to those we have described above, but instead of the Inspector writing a decision he/she will write a report and submit it to the Secretary of State. The report will include conclusions on the issues raised and a recommendation as to whether or not the appeal should be allowed.

8.1.2. The Secretary of State doesn’t have to accept the Inspector’s recommendation and will consider everything that is relevant. If the Secretary of State disagrees with the Inspector’s conclusions you and the relevant authority will have a chance to comment on her reasons for disagreeing before the final decision is made. If necessary, the Secretary of State may re-open the inquiry - and must do so if you or the relevant authority asks her to. The decision will be copied to everyone who is entitled to receive it.

9. How long will it take?

9.1. Because of the staged timetable for actions set out in the Regulations and the time needed for the Planning Inspectorate to carry out our various activities, it is unlikely that appeals (other than “fast-tracked” fire risk appeals) will be ready to go to an Inspector for determination within 16 weeks of the start date. The timescale will be heavily dependant on the parties acting promptly and the number of appeals made. It applies only to written representations cases; hearing and inquiry cases will take longer.

9.2. We normally endeavour to issue the decision within four weeks of the Inspector conducting the site visit (or closing the hearing or inquiry if later). Given the time it will take between making an application to a relevant authority for restrictions, appealing if necessary and time taken to issue the decision, you should plan ahead as far as possible to make your application (and appeal, if necessary) in plenty of time.

10. Fire risk appeals

10.1. It is important that applicants for directions to restrict access take account of the time it will take to determine an appeal when deciding when to make their application to the relevant authority. However, applications for restrictions to avoid the risk of fire may necessarily need to be made at short notice, for example, following a long period of exceptionally hot weather. If an appeal is made following such an application it is clearly important that the appeal should be dealt with as quickly as possible.

10.2. We cannot, however, ignore the rules of natural justice which require that you and the relevant authority are given the chance to comment on each other’s evidence. This process helps identify the issues on which an Inspector must make his or her reasoned decision. We have, however, streamlined the process as much as possible and aim to deal with fire risk appeals in about 8 days.

10.3. It is in your interest to carefully consider your grounds for appeal and give us all your reasons on the appeal form. If you raise additional points later in the process, for example at the hearing itself, the relevant authority might ask for more time to consider these points. If they are given more time it might delay a decision on your appeal.

10.4. The procedure for fire risk appeals is as follows:

(i) you should appeal against the relevant authority’s decision on a special fire risk appeal form within 6 weeks of the decision, although it is likely to be in your interest to make your appeal as quickly as possible.

(ii) On the day of receipt (or the next working day, if the day of receipt is not a working day) we will copy the appeal to relevant authority by e-mail. If, for any reason, we cannot send it that quickly, we will do so as soon as possible thereafter.

(iii) The relevant authority will submit its statement of case by completing the appropriate section of the appeal form and returning it to us by e-mail before the end of the second working day after the day they received the appeal.

(iv) Before the end of the next working day (or where that is not possible, as soon as practicable) we will make arrangements for a hearing into your appeal. For speed, we will do that by telephone when we can. We will confirm to you and the relevant authority the date, time and place of the hearing by phone, e-mail or fax (or post, if that is the only means of communication – but that might delay dealing with your appeal).

(v) We will publish a notice of your appeal on the GOV.UK.

(vi) The hearing will normally take place on the appeal site. The procedure at the hearing will follow that for non-fast track hearings (see paragraphs 5.13 to 5.16 above).

(vii) Unless it is not practical to do so, the Inspector will announce his/her decision at the close of the hearing. Within 48 hours he/she give notice of the decision by sending you, the relevant authority and anyone else who attended the hearing a copy of the notice of the appeal with his/her decision recorded in the appropriate section. (In cases recovered for the Secretary of State’s decision, she will notify her decision within 48 hours by sending a copy of the notice with her decision on it).

(viii) We will publish the decision on: TBC

10.5. We may extend the deadlines for any of the steps (i) to (iii) if appropriate. We may also decide to change the procedure so that your appeal is dealt with according to the time limits sets for determining appeals relating to applications for directions on land management or public safety purposes. We will only consider doing this if we believe that there will be sufficient time under the extended deadlines or the other procedure to determine your appeal before the period during which the restriction is intended to apply.

11. Costs

11.1 Who can apply for costs?

11.1.1. You will normally have to pay your own expenses for making your appeal, whether it is decided by way of written representations, a hearing or inquiry. If the appeal is decided by a hearing or inquiry and you can show that the relevant authority behaved unreasonably and in so doing put you to unnecessary and wasted expense you can ask the Inspector (or the Secretary of State) to order the relevant authority to pay all or some of your costs. You cannot enter a claim for costs if your appeal is determined by way of the written representations procedure.

11.1.2. If the appeal is decided by a hearing or inquiry, the relevant authority can also ask the Inspector to order you to pay some or all of their costs if they believe you behaved unreasonably and put them to unnecessary and wasted expense. Third parties may also ask for costs to be awarded against either you or the relevant authority if they can successfully argue that one of you behaved unreasonably and thus caused them unnecessary or wasted expense.

11.1.3. A claim for costs could be made, for example, if through one party’s late introduction of evidence the inquiry or hearing had to be adjourned or prolonged.

11.2 When and how should I apply for costs?

11.2.1. There is no formal procedure or application form. An application for costs should be made in writing before the event or at the very latest to the Inspector at the hearing or inquiry (at the hearing venue, even if the hearing is adjourned to site, though it is open for one party at any time before the hearing or inquiry to advise the other of an intention to apply for costs. The decision on any costs application will be sent with the issue of the appeal decision.

11.3 Further information

11.3.1. For further information on the rules relating to costs, please go to: Appeals Guidance Costs

12. How do I complain if I am not happy with the way you have handled my appeal?

12.0.1. If you have any complaints about the decision or the way we have handled your appeal please write to:

The Planning Inspectorate Customer Quality
4/05 Kite Wing, Temple Quay House 2 The Square
Temple Quay,
Bristol BS1 6PN

12.0.2. Customer Quality will reply to you, or they will ask someone else within the Inspectorate to reply if they have specialist knowledge of the issues raised. They will investigate your complaint; however, the Inspectorate cannot reconsider your appeal if the decision has already been issued. The only circumstances under which we will be able to reconsider your appeal is if you successfully challenge the decision in the High Court.

12.1 How can I challenge a decision?

12.1.1. You may be able to challenge the decision of the Secretary of State (including the Inspector appointed to determine the appeal) by way of judicial review in the High Court. The Inspectorate strongly recommends that you seek legal advice if you intend to do so.

13. Data Protection and Privacy in the Planning Inspectorate

13.0.1. Under the Data Protection Act 1998 we have a legal duty to inform you about and protect any information we collect from you. When considering an appeal, the Inspector (or the Secretary of State) receives a variety of personal information. This information comes from a number of sources including the appeal form and any documentation of support or objection.

13.0.2. In accordance with current statutory obligations most of the documentation received will be made accessible to the public. Nevertheless, the Planning Inspectorate recognises the importance of the privacy of individuals. This section sets out what information we collect and how it will be used.

13.1 Data Protection

13.1.1. The Planning Inspectorate has put in place procedures to ensure that it complies with the Data Protection Act 1998 when handling your personal information. In particular we will:

• only use your personal information for the purpose of dealing with and considering the relevant appeal;
• only hold your personal information for as long as is reasonably necessary. For completed appeals this is usually 12 months and in the case of challenges, these are held for 3 years.

13.1.2. We will retain a copy of the Inspector’s decision indefinitely. It may be that personal information could form part of the Inspector’s decision.

13.2 Who has access to your personal information?

13.2.1. The appeal papers will be open for inspection at specified locations and anyone can inspect and take copies of them. Any person entitled to be notified of the decision in an inquiry case has a legal right to apply to inspect the listed documents, photographs and plans whilst they are retained (they will normally be destroyed after a period of time). Other requests to see the appeal documents will not normally be refused. In addition information received may be placed on our web site and will be accessible worldwide by any third party including individuals or organisations that have no direct interest in the particular appeal.

13.3 What information do we hold?

13.3.1. When dealing with an appeal we could receive personal information about you from a number of parties, including yourself, the relevant authority or other parties interested in the appeal. The information we receive is varied but may include your name, address and occupation, and information relating to your opinions or intentions in respect of an appeal.

13.4 What steps should you take?

13.4.1. You should:-

• Only provide personal information if you are happy for it to be placed in the public domain.
• Do not include personal information about another third party (including family members) unless you have told the individual concerned and they are happy for you to send it.
• Tell us as soon as possible if any of the personal information you have provided should change.

13.5 The Data Controller

13.5.1. The data controller (the organisation responsible for dealing with personal information) is the Department for Communities and Local Government.

13.6 Your rights to see personal information

13.6.1. We have to provide you with a readable copy of the personal data that we keep about you within 40 days. There is a statutory charge of £10. Evidence of proof of your identity will be required before information is released. It is both in our interest and yours to hold accurate data. If the data we hold is inaccurate in any way, then without charge and where appropriate, you may have the data:

• erased
• rectified or amended
• completed.

13.6.2. For any enquiry or concern which relates only to our privacy policy, or to request access to your personal data, contact the Planning Inspectorate’s Knowledge and Information Officer:-

Temple Quay House
Room 4/05 Kite Wing
2 The Square
Temple Quay
Bristol BS1 6PN

Phone: 0303 444 5884

Email: [email protected]

13.7 Complaints about access to personal information

13.7.1. We aim to ensure that we have resolved any matters satisfactorily, however if you are not satisfied with our response you may contact:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Tel: 0303 123 1113 (local rate)

Fax: 01625 524 510

Website: (https://ico.org.uk/)

Email: [email protected]

14. About the Planning Inspectorate

14.0.1. We are an executive agency of the Department for Communities and Local Government. The team who will process these appeals is based at:

The Rights of Way Team
Room 3/25 Hawk Wing
Temple Quay House
2 The Square
Temple Quay
Bristol
BS1 6PN

Telephone: 0303 444 5226

Email: [email protected]

The team is responsible for processing the appeals. The staff will answer queries on appeal procedures and the progress of specific cases.

14.0.2. You will find more detailed information about the Planning Inspectorate from the web site at: The Planning Inspectorate Annual Report and Accounts