Out-Law Analysis | 14 Jul 2020 | 11:56 am | 3 min. read
The Planning Inspectorate (PINS) in England and Wales is now holding fully digital hearings – something that was unimaginable just six months ago.
As lockdown eases, PINS has said virtual inquiries will stay, sitting alongside face to face events. This decision has a number of implications.
The Business and Planning Bill 2020
The proposed Business and Planning Bill will facilitate the permanent shift towards hybrid appeal procedures. It will allow appeals to be held by both written representations and by hearing or inquiry. This flexible approach will enable PINS to hear cases quickly and efficiently, will help to deal with the backlog of cases that has built up during the last few months, and will get UK plc building again.
The Bill does not address the introduction of technological solutions or digital inquiries, but it is an indication that further permanent changes could soon be introduced. The use of virtual inquiries may be addressed in the Planning White Paper that is due to be published at the end of this month.
Virtual inquiries can save both time and expense as parties don't have to travel or stay in hotels to attend. However, the inquiry itself may take longer. Virtual inquiries have so far been held in shorter, more focused 90 minute sessions, and inspectors have extended the length of inquiries to allow for this. The introduction of a hybrid appeal system will mean that simpler elements of an appeal can be dealt with by written representations or roundtable discussions, saving only the more complex issues for inquiry and cross examination. This should reduce the length of inquiries and free up inspectors' time.
Long physical hearings are only accessible to those with the time and money to attend. In contrast, online attendance allows members of the public to 'drop in' to provide their input. This will facilitate increased participation by members of the public who were previously unable to engage with planning appeals, such as working parents and younger residents in the area. However, continuous monitoring and management during a virtual inquiry is necessary to ensure the appeal parties are not disturbed by members of the public.
The flexibility of a hybrid approach to hearings will rely on early engagement, discussion and collaboration between the parties.
Currently virtual inquiries are held on Microsoft Teams, although attendees can also dial-in on a telephone. Attendees have commented how efficient and smooth the sessions have been, and only a few minutes have been lost to technology glitches. Before each inquiry starts, a test event is held to allow parties to try out the technology and a technology support officer is available during the inquiry to assist with any issues. There are some steps you can take to get the most out of a virtual hearing.
Participating in a virtual inquiry requires access to the internet for the inquiry itself and to access documents. This is undoubtedly a constraint for some and it may lead to attempts to bring legal challenges against the decisions made.
Some potential claimants are likely to seek to cite technological issues or the inability to access the virtual inquiry as grounds that there has been some procedural defect in the inquiry process or they have been prejudiced by an inability to participate properly or even at all.
However, in the majority of cases it can be expected that any such grounds will be given short shrift by the courts save in exceptional circumstances where it is clear that deficiencies in the virtual process have led to an unsound decision. The onus will be on the inspectors to ensure they deal with any technological issues at the time and a precautionary approach will need to be taken until there is clear guidance on matters.
Parties at hearings often rely on three dimensional models or computer generated images to help explain certain aspects of a development or to demonstrate its impacts. For instance, a model might be used to illustrate the comparative height of buildings, or how a development would affect the light falling on neighbouring properties. It is possible that using such materials will be less effective in a virtual hearing and important aspects of a development may not be as clear to inspectors.
The lack of physical interaction during a virtual event can also be a challenge for witnesses giving evidence and for barristers during cross examination. The technological barrier inevitably makes it more difficult for parties to read reactions and body language, and so such interactions with witnesses can become disjointed and less dynamic.
The flexibility of a hybrid approach to hearings, with simpler inquiries being held virtually and physical inquiries being reserved for complex appeals, will rely on early engagement, discussion and collaboration between the parties to determine the most appropriate procedure. We may ultimately see a shift from the currently linear process of document exchange and physical hearings, to a dynamic interface of physical and virtual hearings, which will serve to enhance the more efficient and innovative planning system we hope to see in the post-pandemic world.
Co-written by Millie Foster