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PREPARING FOR AN INQUIRY

Introduction

1. What is the purpose of preparing evidence for an inquiry? It can only be to

persuade the reader of the merits of the case found within it. How do we

persuade the reader? By presenting the requisite information, subjecting it to

proper analysis, followed by sound and logical conclusions. So a proof is (or

should be) a persuasive, informative, analytical and logical document.

2. What do we know about the reader – (the inspector)? A professional in one

or more disciplines; careful and precise.

3. What do we know about the decision the reader has to make? The structure

is set by statute (s38(6) of the 2004 Act): the decision must be in accordance

with the development plan (“DP”) unless material considerations indicate

otherwise. The format is set by convention / precedent: we all know what a

decision letter looks like (or should do) and how it is set out.

4. So, the proof you write needs to be set out in a way that will “lead” the

inspector to the decision you want made, along the route that by convention

and practice you know he/she will adopt. Before you begin to write, you need

to “assemble the ingredients”. Hopefully, the ingredients will also have been

set out in the proper manner.

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Preparing to Write the Proof

5. The following documents should be to hand:

6. The Planning Application. This ought to set out why the developer says

planning permission should be granted: whether the development is in

accordance with the DP; what “other material considerations” are relied on

and what weight, in the circumstances, ought to be given to them; what

conditions / obligations are relevant.

7. The Report to Committee (“RTC”). The LPA’s case ought to have been set

out by officers to committee in some detail. Always check to see what was

contained in key consultation responses. For instance, if there is a “listed

building” reason for refusal (“RFR”), see what English Heritage and the

council’s own conservation officer had to say. What did the Highway

Authority make of a case in which there is a “highways” RFR.

8. The Decision Notice. As is well known, RFR must be complete, clear and

precise. Article 22 of the Town and Country Planning (General Development

Procedure) Order 1995 (as amended) requires the LPA to specify all policies

and proposals in the DP which are relevant to the decision. Again, the list

ought to be complete. If not, in cross examination, reliance on a policy not

mentioned will be met with the riposte: “And where do I find mention of that

policy in the RFR?”. A word of warning however, the inspector has

(independently) to comply with the duty under s38(6), so if he thinks a “green

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belt” policy is relevant to the case before him, he will not ignore it just because

it was not mentioned in the RFR!

9. The Appeal Notice – including Grounds of Appeal. Does this set out what the

case really is (or is now after a period of “mature reflection”).

10. The Questionnaire. The LPA will have sent a file to the Inspectorate. It

should include the application and plans, consultation responses (statutory

and local residents), DP policies, RTC, etc.

11. DP policies. You cannot possibly write a proof without copies of the policies

and explanatory text! Do not forget that RPG is now capable of being part of

the Development Plan in advance of a RSS review being completed. The

complete list of RPG certified by the Secretary of State as having DP status is

to be found in the Town and Country Planning (Initial Regional Spatial

Strategy)(England) Regulations 2004 (SI2004/2206). So the DP will now in

most cases comprise the RSS and SP & LP or UDP. Remember also the

effect of s38(5) of the 2004 Act: “If to any extent a policy contained in a

development plan for an area conflicts with another policy in the development

plan the conflict must be resolved in favour of the policy which is contained in

the last document to be adopted, approved or published (as the case may

be).”

12. Other Material considerations.

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(1) Other material considerations may include PPS/PPGs, Circulars,

SPG, Regional Guidance (that is not part of the DP),

publications such as By Design or Better Places for Living; as

well as common law material considerations such as the fall-

back position or alternative future uses for the site.

(2) You should usually start with the emerging plan. The weight to

be given to emerging policies is nearly always a matter of

contention, even though it should be capable of agreement in

the statement of common ground. You need to be able to tell the

Inspector what weight should be given to each policy. The

Inspector will be genuinely interested in this point, as they are

unlikely to have any local knowledge about the progress of LDF.

Identifying the weight to be given to an emerging policy is a five

stage process:

(a) Highlight what stage the plan has reached (i.e. public

examination stage etc).

(b) Identify the relevant policies.

(c) Establish whether or not the policy is the subject of

objections.

(d) Briefly, consider the importance of the objections

(e) Explain what weight should be given to that policy in

accordance with the advice contained in PPS1.

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(f) You should include a copy of the list of objections to an

emerging policy in your appendices.

(3) After the emerging plan, you should then generally highlight the

relevant sections of the PPS/PPGs and any other national

policy. Again highlight the relevant parts of the guidance for the

Inspectors benefit. Do not quote great sections of PPGs as the

Inspector will already be very familiar with all of it. Remember,

you only need to consider anything not adequately covered in

DP policy.

(4) Common law material considerations are those which have been

identified and defined by the courts. For a full list of common law

material consideration, please read the commentary on Section

70 of TCPA in Volume 2 of the Encyclopedia of Planning Law

and Practice.

(5) The “fall-back” position is oft misunderstood (and to look at it

fully would be the subject of a separate paper); briefly it is “what

the applicant could do without any fresh planning permission”.

However, (1) the prospects of the “fall-back” actually occurring

must be real and not merely theoretical, although (2) that the

weight to be attached to such a consideration is a matter wholly

for the decision maker and not for the courts. It would be

Wednesbury unreasonable to take the potential impact of a

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permitted development into account if there were no realistic

possibility of it being implemented.

13. The Statements of Case – The “Rule 6 Statements”.

a. Circular 05/00 advises:

Annex 3, ¶17 : The statement of case should contain the full

particulars of the case which a party proposes to put forward at the

inquiry; i.e. it should set out the arguments (planning and legal) that a

party intends to put forward at inquiry and describe, but not contain,

the evidence, and possibly cite the statutory provisions and case law,

that a party intends to call in support of its arguments. It should also

include a list of all the documents that a party will rely on when

presenting their case at the inquiry and refer to in their proofs of

evidence. This enables the parties to know as much as possible about

each other's case at an early stage and will help the parties to focus

on the matters which are in dispute. It can also help the parties assess

whether there is scope for negotiation while there is still time for this to

lead to a satisfactory outcome. Starting negotiations early can help

avoid late cancellations of inquiries or requests for postponement.

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b. Each party will have filed a Statement of Case (“SOC”) that ought to

have complied with the guidance (above). So it is to these documents

that one ought to go to see the case your side has advanced and the

case you have to meet. This is not always the case. If, on reading the

statement from the other side, you remain in any doubt about what the

case against you is, then you are entitled to ask for “further and better

particulars”, if necessary, through PINS (see Annex C, ¶19).

c. A properly particularised SOC should set out the key principles of each

part of the case. For example:

(1) The site is Previously Developed Land (PDL).

(2) It is vacant and derelict land.

(3) The Local Plan states that the LPA is committed to re-using

such land.

(4) In line with national policy, the LPA wish to put such land to

beneficial use

(5) This housing scheme makes beneficial use of the land.

d. It is extremely helpful if the statement of case is drafted after consulting

your advocate.

14. Common ground at this stage: descriptions, data, conditions. If you think

something ought to be common ground, but is not formally agreed, then seek

agreement!

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The Proof

15. Annex 3(i) of Circular 05/00 sets out what the proof should physically look

like; this is what the inspector will be expecting (hoping for):

9. Proofs should, as far as possible, be bound so that they can be opened

flat. They should be bound separately from any supporting documents. To

allow notes to be made they should be printed on only one side of each

page. Proofs should have their pages and paragraphs numbered. Sufficient

copies should be prepared for all the main participating parties and

distributed in accordance with the Rules. Additional copies should be made

available for inspection at the local planning authority's offices prior to the

inquiry and for inspection and circulation at the inquiry. The number required

will depend on the likely level of public interest.

10. Summaries should be provided when a proof exceeds 1500 words. As a

guide, summaries should not exceed 10% of the length of the proof. It is

normally only the summaries that are read out at the inquiry. These should

accurately condense the gist of the proof, concentrating on the case in

relation to the main points at issue. The content of the summary should not

go beyond the scope of the text it purports to summarise otherwise

unproductive disputes can arise.

11. All documents accompanying proofs of evidence should be carefully

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prepared, presented and, where appropriate, edited so as to exclude

irrelevant matter. Their purpose is to set out in an ordered and readily-

identifiable form the factual material and technical data upon which the

evidence is based. They should be separate from the proofs of evidence and

have identifiable reference numbers prefixed by letters denoting the name of

the party producing them. The relevance of all documents submitted should

be explained in evidence or submissions.

12. Lists of core documents, such as policy statements and development

plan extracts, should be compiled and indexed by local planning authorities

and submitted as statements of case. Co-operation between parties should

ensure that as far as possible a list of core documents is agreed and that

extracts contain all material to be referred to. All main parties should start to

number their own documents before the inquiry, and keep an up-to-date list

to be completed and submitted before the close of the inquiry.

13. As far as possible documents should be of A4 size. Extracts from

published material must indicate the precise context with full titles, chapter

headings and dates. A photocopy of the document's title page is sufficient to

indicate its origin and publication date.

14. Plans, maps and diagrams should be similarly identified and be of A4

size or folded to A4 size. Plans and maps may be photographically reduced

and incorporated in an A3 size plan brochure provided it is flexible enough to

be folded to A4 size. Otherwise, photographs should be mounted on a series

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of A4 cards. Each photographic view should be individually numbered and

the viewpoints from which they were taken shown on a separate Ordnance

Survey extract. The time and date at which a photograph was taken should

be given. It is also helpful to give the focal length of the lens used. Models

displayed at inquiries should be photographed, preferably in colour, and copy

prints submitted as documents.

16. Although not mentioned in the circular, please also try to:

a. Number each page in the bundle of appendices (so a page can be

turned up quickly at inquiry);

b. Use a 12 pt font in proofs, and double spacing (or at least 1.5 space).

17. The structure of the proof needs to mirror the inspector’s decision letter /

report, so the following sequence should be adopted:

1. Author’s qualifications and experience

2. Site Description

3. Site History

4. Description of the Proposal

5. Reasons for Refusal and Grounds of Appeal

6. The Development Plan (RSS/RPG, SP & LP or UDP)

7. Other Material Considerations

8. The Main Issue(s)

9. Analysis of the Main Issue(s)

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10. Proposed Conditions (if not being dealt with in SoCG)

11. Summary and Conclusion

18. Where matters are being dealt with in a Statement of Common Ground

(“SoCG”), say so.

19. Dealing with policy. You should separate your identification of the relevant

policy and material considerations (largely non-contentious) from an analysis

of the same (which will be largely contentious). The analysis section is your

interpretation of the importance of each policy and the weight to be given to

that issue.

20. You should avoid having a section of proof headed “Policy”. Your proof should

always separate your consideration of policy into the policies of the DP and

then move onto other material considerations (in which you will consider other

policy). This demonstrates to the Inspector that you are aware of the

importance of Section 38(6) of the 2004 Act (old references to 54A of the

TCPA 1990). If a relevant plan policy has been superseded by more recent

advice (in a PPS then make that clear.

21. It is very important to highlight the relevant DP policies. If you fail to mention

policies which are relevant you will be taken to task over it during cross

examination. If the wording of the policy is short, you should quote the

relevant policies in the main body of your proof. If it is a long policy you should

simply highlight those sections which are relevant. In both cases, you should

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consider underlining the most relevant parts of the policy, but be sure to

include the words “my underlining” at the end of quote. This helps the

Inspector identify the main areas of focus.

22. You must acknowledge policy which is relevant even if it undermines your

case, otherwise you will be cross examined on your failure to do so. If it does

harm your case you can mention it briefly, but you must avoid the accusation

that your proof only highlights criticisms of the development and is not,

therefore, fair or balanced. The approach should be “confess and avoid”.

23. The Main Issues. Try to identify the propositions to be advanced - either spell

them out on the page or keep them well in mind when drafting the proof. The

main issues are very important at an Inquiry. At the start of the Inquiry, during

the Inspector’s opening statement, he or she will always say “…that having

read all the evidence, I think the main issues in this case are…” They repeat

this exercise in their decision letters. Every decision letter now has a

paragraph headed “The Main Issues”. If you want to know how to define the

main issues in your case, it is a good idea to have a look at Inspector’s

reports from recent decision involving similar issues.

24. Having reviewed all the relevant policy, this section should be your

opportunity to persuade the Inspector why this proposal is consistent with, or

contrary to, planning policy. The procedure rules demand that your proof

“…should focus on what is really necessary to make the case…” It is not

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enough to say that a proposal is contrary to, or consistent with, a particular

policy. You need to explain why it is deemed contrary or consistent.

25. By way of example, consider a proposal for a new housing scheme which the

LPA say is out of character with the area because it represents “over-

development”. It is no good one party simply saying that it is “out of character”

and the other “no it’s not”. You need to go through a careful exercise of

analysis to explain either conclusion:

a. Define the area you are describing.

b. Describe the character of that area.

c. Describe the character of the proposal.

d. Explain why the character of the proposal is in harmony or conflict with

the character of the area.

e. In so doing, you should evidence your conclusion by, for example,

making reference to:

(1) The density of surrounding housing (but beware relying on

densities that are no longer sustainable in a post-PPS3 world

unless there are good reasons for doing so).

(2) The cubic volume of the proposal vis-a-vis the proposal.

(3) The height and number of floors of surrounding buildings.

(4) The width of existing plots and the houses within them.

(5) The amount and extent of fenestration.

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26. To assist in defining the main issues, a good source of material can be

existing Inspector’s appeal decisions which deal with similar issues. These

can be taken from local area or beyond. These decision letters are written by

Inspectors who often have twenty or thirty years of experience in the planning

professions. They often distil the issues, benefits or problems of new

proposals into just a couple of clear and concise sentences.

27. Do be “concise” and “precise” in your proof – it will help you to show similar

traits in the witness box.

28. Other witnesses’ input. Particularly if you are the planning witness, you may

have to rely on input from other witnesses before you can reach certain

conclusions in your own proof (even if it is only to suggest conditions). Make

sure you see at least a draft proof in advance of signing-off your own!

29. Involvement of Counsel. Counsel are happiest if they are consulted as early

as possible in the proceedings. Why?

a. To make sure the case is as complete as possible at the application /

RTC stage so that the appropriate issues are properly identified.

b. To make sure that the SOC properly identifies the issues and

documents.

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c. To make sure the proofs are thorough and complete and do not contain

“hostages to fortune”.

d. To make sure the appendices are complete and include all the material

needed for cross-examination.

e. To suggest conditions / obligations in good time (either to resolve an

issue completely or for the “without prejudice” session at the inquiry).

f. To make sure you do not sign up to a SoCG you will regret later!

g. Because we are “team players”.

Considering the Opposition’s Proofs

30. Once proofs are exchanged they need to be read and digested by the “home

team”. Remember that it may not be appropriate to limit the distribution of

proofs to the corresponding witness. For example, the “away” highways

witness might suggest (to him) a minor modification to a road layout - or a

condition - that might give cause for concern to the “home” ecological witness.

31. Counsel should then be provided with:

a. A list of points where the opposition witness is wrong or vulnerable, and

an explanation why;

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b. Any concessions that our team should properly make “on mature

reflection” having read the other side’s proofs.

Statement of Common Ground

32. Annex 3(ii) of Circular 05/00 advises:

2. The statement of common ground is a written statement prepared jointly

by the local planning authority and the applicant (or appellant). The purpose

of the statement of common ground is to set out the agreed factual

information about the proposal. The inclusion of agreed material in the

statement of common ground should result in shorter proofs of evidence and

shorter inquiries.

3. The statement of common ground should complement the proofs of

evidence and both should be received by the Secretary of State no later than

4 weeks before the inquiry. The main parties will therefore need to meet

before that date to try to narrow the areas of dispute and agree on what

should go in the statement. It is the responsibility of the applicant (or

appellant) to send the statement to the Secretary of State.

4. The statement of common ground should be kept factual and should not

include opinion and comment.

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5. In all cases agreement can be reached on some matters: the precise

nature of the proposal before the inquiry, the description of the site, its

planning history and the relevant policies can all be agreed.

6. Evidence on technical matters and topics that rely on basic statistical data

can often be fruitful areas for pre-inquiry agreement. Traffic evidence, for

example, can be simplified and issues refined, by pre-inquiry agreement on

matters such as traffic flows, design standards, and the basis for forecasting

the level of traffic the proposal would generate. Other examples of topics

where a degree of factual agreement might be possible are the pattern and

frequency of public transport routes, applicable air quality standards,

acceptable noise impact thresholds, nature conservation survey data, and

housing land availability. What might be agreed in any particular appeal will

depend on the matters at issue and will be unique to that case.

7. The statement of common ground, by clearly identifying the matters which

are not in real dispute, may save time and cost at the inquiry. It may also be

useful for the statement to identify areas where agreement is not possible.

33. What is factual information, and how does this differ from opinion or

comment?

a. Facts are just that – “it is 300m to the nearest bus stop”;

b. Opinion – “the bus stop is within a reasonable walking distance”;

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c. Comment – “the bus stop is 300m away, but no-one will walk to it

because the route runs through a ploughed field”.

34. However, some opinion, if is agreed, becomes factual – or at least a “matter

which is not in real dispute”:

“It is agreed between the appellant and LPA that the bus stop is 300m away

from the entrance to the appeal site. It is further agreed that this is within a

“reasonable walking distance” as set out in [government guidance] and that

there are no physical obstacles or disincentives to pedestrians using the

footpath that runs between the two points.”

35. Matters which can usefully be included in a SoCG are:

a. Site description & planning history

b. Chronology

c. A definitive list of relevant DP policies;

d. The application plans (referenced by number) which were considered

by the LPA and (if applicable) any subsequent amendments which the

parties want the inspector to take into account in the decision.

e. Proposed conditions (agreed and not agreed)

f. Data, statistics etc or a reference where to find them (eg in a TIA or ES)

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SATNAM CHOONGH

No5 Chambers

+44 (0) 845 210 5555

Birmingham - London - Bristol

ssc@no5.com

www.No5.com

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GIVING EVIDENCE AT AN INQUIRY

ISSUES TO BE COVERED

Preliminary and practical matters

Procedure

Your role as a Witness

The Role of the Barrister

The Purpose of Evidence in Chief

The Objectives of Cross-Examination

Preparing for Cross Examination

The Inspectors Role during Cross Examination

Answering the Question during Cross Examination:

Re-examination – the greatest fear!

FOCUS OF THE TALK

Focus on Section 78 appeals against refusal of permission or non-

determination

Enforcement inquiries are very similar

Formal Inquiry Sessions at LDF will include cross examination

“Short Inquiries” defined as those lasting less than eight days

Not dealing with issues relating to major inquiries such as Pre Inquiry

Meetings

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PRELIMINARY AND PRACTICAL

1. Be organised! Including:

a. Have all the relevant documents and plans with you at the witness table

(make sure you have the RTC, RFR, SOC and SoCG if not appended

to the proofs);

b. Have your own (annotated) copies of PPSs and Development Plans etc

available;

c. A “scale” rule

d. A calculator

e. A glass of water

2. If the same document is produced by both parties, make a note - so that if you

are taken to the copy you have not annotated in cross examination, you can

easily find the annotated copy!

3. Finally, remember Annex 3(i), para. 9 of Circular 05/00 advises: “Sufficient

copies [of the proofs] should be prepared for all the main participating parties

and distributed in accordance with the Rules. Additional copies should be

made available for inspection at the local planning authority's offices prior to

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the inquiry and for inspection and circulation at the inquiry. The number

required will depend on the likely level of public interest.”

PROCEDURE

4. It is the Appellants appeal, but it is the Inspectors Inquiry. The Inspectors has

almost complete total discretion as to the procedure.

5. The point is well illustrated in terms of the order in which the parties can

present their evidence. Under the new rules, the LPA give their evidence first

(paragraph 41, Annex 3) However, this format can be altered by the

Inspector if that is what he would prefer. In my opinion, however, there must

be a good reason and this is very rare indeed.

YOUR ROLE AS A WITNESS

6. The most important issue to be remembered is that as an expert witness you

have an overriding duty to assist the Court on matters relevant to your area of

expertise. You are not an advocate for a party regardless of your fee. You

must truthfully, objectively and fully express your expert opinion, without

regard to any views or influence which the person retaining or employing the

expert may have or seek to exercise.

7. The expectations of expert witnesses can be summarised briefly:

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a. opinions put to the Court must be yours, not your clients;

b. questions should be answered truthfully and as briefly as possible;

where a ‘yes’ or ‘no’ will suffice, don’t gild the lily;

c. where your answer has to be qualified, state your qualifications plainly

and succinctly;

d. answer all questions put to you without any regard for the potential

consequences;

e. be ready to concede that your view on a particular question has

changed where the course of questioning or evidence put forward by

another party suggests that your written opinion is not as soundly

based as you first thought;

f. avoid giving expert evidence in circumstances where you have had a

prior involvement with a matter before the Court, such as could give

rise to the perception that you were pre-disposed to the opinion you are

to put to the Court;

g. avoid imprecise or emotive language; and

h. don’t stray outside your area of expertise. When a question requires a

response which is beyond your expertise, decline to answer on that

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basis. You are not expected to know everything!

THE ROLE OF THE BARRISTER

8. The Role of the Barrister includes:

a. Make the opening speech for your side

b. Guide you through your evidence

c. Protect you from unfair questioning by the Barrister on the other side

d. Re-examine you on any points that arise during your cross examination

e. Prepare, research, write and undertake all the questioning of the other

sides case by cross-examination of their witnesses

f. Answer many of the Inspector’s difficult questions about the Appellant’s

or the Council’s case, unless they are put to you directly

g. Provide advice to you and the Inspector on the legality of conditions

h. Assist the Inspector with the legalities of the Section 106 agreement

i. Make the closing speech

j. Make any costs application against the other side

k. Respond to any costs applications made by the other side

3 STAGES TO GIVING EVIDENCE

9. There are three stages to giving evidence

a. Evidence in Chief (questions from your own advocate)

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b. Cross examination (questions from the other sides advocate)

c. Re-Examination (questions from your advocate about the answers you

gave during cross-examination)

PURPOSE OF EVIDENCE IN CHIEF

10. There are three stages to giving your evidence in chief.

a. Having your name, qualifications and experience read out to you.

b. Reading your summary.

c. Supplementary questions.

11. Stages one and two should be simple enough. Personally, I think there is no

shame in practising stage two (but perhaps at home rather than in the office).

12. In respect of stage three, supplementary questions, your proof of evidence

should contain all your evidence. However, evidence in chief does provide an

opportunity for a few friendly questions from your own barrister.

Supplementary questions can only be asked with the permission of the

Inspector, but most are willing to allow some questions. From the barrister’s

point of view, the purpose of have a supplementary questions is four fold:

a. To allow the witness time to ‘bed-in’/ get used to feel of the routine of

questions and answers.

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b. To deal with any new matters raised by the other side (in their

evidence);

c. To run through the appendices to make sure the Inspector knows

precisely why you have included certain evidence (he or she may not

have read it all through and therefore may not appreciate the

significance of a particular piece of evidence); and

d. To give you a chance to emphasise the best parts of your case.

13. Answering questions in chief is not always easy. The reason is that it is not

like having a normal conversation. The reason is simple: barristers are not

allowed to ask you leading questions during your evidence in chief. What is a

leading question?

a. A leading question is ‘a question which tends to suggest the answer’. It

is easier to illustrate this than it is to explain:

- Leading question: This is PDL, isn’t it?

- Non-leading question: What type of land is this?

- The half leading question: Is this PDL or greenfield land?

14. To reduce the risk of running into difficulties during questions in evidence in

chief, it is essential that you discuss your evidence in chief with your advocate

beforehand to identify the issues upon which he or she will be asking you

supplementary questions. It should not be rehearsed, but it is important to

make sure you know what topics are likely to come up.

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OBJECTIVES OF CROSS EXAMINATION

15. Cross examination is much feared. The principles reason are that nobody

really knows what to expect and they think it will be like the cross

examinations they have seen on the television. Therefore, in attempting to de-

mystify the process it is useful to start by highlighting what the advocate is

trying to do during cross examination (in order of merit):

a. Attack the weakest parts of your case

b. Force you to make sensible concessions

c. Highlighting relevant planning issues which you have ignored

d. Undermine your credibility, by showing your approach or evidence is

either flawed or tactical rather than balanced

e. Emphasis the strengths of his/her clients case

f. Get you confused

g. Make you answer pointless questions for over an hour until you get

tired or “punch drunk” (there is no merit in the last two)

PREPARING FOR CROSS-EXAMINATION

16. The way in which you prepare must be a matter of personal preference.

Obviously it will help to speak to more senior colleagues who have regularly

given evidence at inquiries. The key points to remember are:

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a. Re-Reading: Re-read your evidence, their evidence and the key

policies

b. Use the Wisdom of Solomon: Try to put yourself in the position of the

other side’s barrister and think what questions you would ask if you

were in his or her position. Try and recognise the weakest parts of your

case. That is where the questions will be focused. This is very

important and your barrister will be the best person to help you with

this. We know where the weaknesses in your case will be, so we can

help you to try and “plug the gaps” and, if necessary, neutralise the

weakest issues by dealing with them in evidence in chief.

c. Question Spotting: Try and identify what the difficult questions will be.

d. Model Answers: Think carefully about answers to the difficult

questions.

13. If you do this type of preparation in advance of the inquiry it will help you relax

because you will feel prepared.

ROLE OF INSPECTOR DURING CROSS-EXAMINATION

14. According to the rules,

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“..they [the Inspectors] will…exercise tight control over advocacy and cross-

examination. In particular, Inspectors will exclude repetitious or irrelevant

evidence…and curtail excessive or aggressive cross-examination.”

(paragraph 12)

15. As a general rule Inspectors tend to be conservative in their approach to

inquiries. In this respect they are very different from most judges who sit in

court. With a few exceptions, they tend not to be keen on intervening during

cross-examination. Whilst they have the power to restrict cross-examination it

is rarely exercised.

Answering the Question

(i) Understanding the Question

16. Do not feel intimidated by the questions. You are perfectly entitled to ask for

the question to be repeated (and as a consequence it may be re-phrased). It

is far better that the question is repeated than you give the wrong answer

because you simply did not understand what you were being asked. The

reasons why you might legitimately need a question to be repeated:

(i) You simply did not understand the question.

(ii) You did not hear the question.

(iii) The question is too long and you can not remember how it all

began.

(iv) The advocate has used a word you do not know the meaning of,

for example “gainsay” “outwith” “quashed” “disjunctively”

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(ii) Presentation

17. The presentation of your oral evidence is very important. It is only natural that

you will look at the advocate when she or he asks you questions. However,

you are trying to assist the Inspector and you should direct your answers to

the Inspector.

o You need to be audible at all times (this is very important)

o Do not speak too quickly.

o Watch the Inspector to see if she or he is writing down what you say. If

they are writing it down, then speak at a speed which allows the

Inspector to take a careful note of all that you say. If the Inspector is

not writing down what you say, then either he is not interested in the

advocates line of questioning or he has lost interest in your answer. So

remember - watch the Inspector’s pen

(ii) Making Reference to Other Documents:

18. You are perfectly entitled to make reference to documents whilst answering a

question. You would not want to do this in respect of most questions, but if

you think it will help you answer a question accurately it is perfectly legitimate

way to proceed.

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For example

Q “In your analysis of the issues you have not mentioned any

alternative sites?”

A “No, I have not done so in my proof, but if we turn to my

appendix 3, you will see that I have made reference to the

search for alternative sites and the fact that none were

considered suitable”

(iii) Remember to Answer the Question

19. Your role as a witness at an inquiry is to answer the advocate’s questions.

You are not there to give a lecture or prevaricate. The barrister will definitely

know what answer he wants to the question he has just put. If you fail to

answer the question you will hear something like this:

“That is all very interesting Mr X, but what is the answer to my question”

20. If you fail to answer the question again, then you may hear this:

“Once again, please can I have an answer to my question.”

21. If you fail to answer the question a third time, then you may hear this:

“Well I have asked you that question three times now. Your failure to answer a

question is a more eloquent illustration of the problem with your case than an

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answer. I will simply make submissions on your failure to answer that

question.”

22. Alternatively, your failure to answer the advocates question can lead to the

Inspector intervening. The Inspector will say something terribly polite such as

“I think what the barrister is trying to ask you is X”

23. If that happens you can be sure that your credibility will have taken a nose

dive. Try and avoid this at all costs. You must try and give straightforward

answers to the questions which you are asked (even under pressure).

(iv) You Can Give Qualified Answers

24. Not all questions can be answer with a yes or no. Many can and unnecessary

prevarication should be avoided for reasons of credibility. However, if you

have been backed into a corner then you are entitled to say “Yes, it is at a

density of less than 30 dwellings per hectare, but …”

(v) Things You Should Not Do as a Witness

25. There are some things which, as a witness, you should never do:

Never argue with the advocate

Never ask them any questions

Never get angry or show your irritation

Remember the Inspector is only interested in the planning merits

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RE-EXAMINATION (the greatest fear!)

The Problem

26. Every witness fears re-examination. Some fear it more than cross-

examination. The situation is that you have just finished cross examination

and you can see the finish line in sight. All you have to do is answer some

friendly questions from your advocate. The trouble is you hear the question

and have no idea what the advocate is trying to do, let alone what you are

meant to say. The difficulty here is that the advocate cannot ask a leading

question (because he or she is supposed to be on your side).

The Solution

27. Do not panic. The skill of re-examination lies with the advocate. Do not worry

if you give the wrong answer, everybody does. Simply listen very carefully to

the question. It may contain some clues, albeit that it will not tell you the

answer. Do not try too hard to give what you think is the right answer. Simply

give your opinion, it will usually be the right answer.

SATNAM CHOONGH

No5 Chambers

+44 (0) 845 210 5555

Birmingham - London - Bristol

ssc@no5.com

www.No5.com