The Planning Inspectorate announced this week that the report on the Cuadrilla fracking inquiry would be submitted by early July. The inspector, Wendy McKay, will make a recommendation to the Communities Secretary, Greg Clark, on whether or not Cuadrilla’s shale gas plans in Lancashire should go ahead. But with 19 days of evidence, seven parties, 26 expert witnesses and hundreds of documents to consider how will she make up her mind?
DrillOrDrop asked her boss, Ben Linscott, Group Leader at the Planning Inspectorate, to explain how inspectors make their decisions. Mr Linscott, who has been an inspector, spoke generally about the decision-making process and his comments are not specifically about the Cuadrilla appeal or public inquiry.
“Vast amount of evidence”
“As an inspector you will be faced with vast amounts of documentation – probably much of which was never referred to, let alone opened, in the inquiry. You have to make a judgement as to how much of [the documents] you actually read or dip into.”
“The last big case that I did was about a compulsory purchase in Rochdale. At the beginning of the inquiry, which was six weeks, I was walked into a hotel function room where the parties had created a library for me. There were 12 parties, all with QCs. The library was a series of document boxes laid on their sides, 20ft long and 6ft high.”
“The inspector has to approach the appeal on the basis of the principal controversial issues that separate the parties. It’s about distilling in your mind the central points you need to deal with.”
“You will have that in mind in the way that you conducted the inquiry.
“When you leave the inquiry you need to be satisfied that you’ve understood everyone’s cases and that you’ve asked questions where the written or oral evidence didn’t make plain what the case was.”
Mr Linscott said planning inspectors needed a “high degree of professional confidence and competence”. They were usually accomplished professionals before becoming an inspector and they will have gone through a challenging selection and training process.
“It is rather like being a judge or a magistrate. You can be a perfectly good solicitor who can advocate for somebody else. But the position you are then put in as a judge is to hear two often powerfully argued but opposing cases and you need to make a judgement as to which is the reasonable or right in law approach to take.
“So we are looking for that capability to reach an impartial, informed and lawful, therefore defensible, judgement”.
“Once you are satisfied that you have got an evidence base that is around those central controversial points then what I would do is frame the structure of a report”.
“You have to create a document which gives the Secretary of State sufficient information to gain your view, both on the professional planning considerations and any legal points that were put to you. But it must also give the Secretary of State scope to disagree on evidence that was put to you by anybody.”
“The Secretary of State mustn’t be put into a position where he can’t do anything other than agree with you.”
“It has to be a firm professional view but equally a balanced report which identifies what everybody said in a neutral and impartial way.”
“When you start to put down your professional thinking you then inevitably go one way or the other. Once you’ve gone the way that you have, it has to come across with conviction otherwise it’s unlikely to prove satisfactory in court if it were challenged.”
“Provided that you assimilate all of that vast amount of evidence, look for where there is contradictory evidence and then rationalise it and come to a reasoned view as to where you think the balance should lie, that’s pretty much all that is required of you. It’s no mean feat, I have to say from experience.”
Balancing the arguments
We asked Mr Linscott how an inspector decided what weight should be given to different issues in an inquiry. He said there was more scope for discretion in some areas than others.
“On the weight to be attached to a relevant development plan, an emerging policy, a supplementary planning document or a government statement, it is quite difficult for an inspector to do anything other than prescribe the conventional weight which you will find in the National Planning Policy Framework, planning policy guidance and sometimes in court judgements.”
But he said where there was competing or contradictory evidence an inspector has to use his or her judgement and they had “huge licence and discretion to apply that judgement reasonably”.
The test is the Wednesbury principle. This states that a decision is unreasonable if it is so unreasonable that no reasonable person acting reasonably could have made it. Mr Linscott said:
“I can’t remember the last time an inspector’s decision was struck down by a court on the basis of the judgement that he or she reached being unreasonable.”
Public comments versus professional witnesses
The Cuadrilla public inquiry included four sessions at which 143 members of the public gave their views both in support and against the appeals. We asked Mr Linscott what significance the public comments have in a final decision or recommendation.
“Once an inquiry is open the inspector has vast discretion as to how he or she runs it and the rules stop pretty much at the point at which the inquiry is opened.”
“The main principle which is governing what the inspector will do is firstly to ensure natural justice so that everybody who has a legitimate and relevant planning point to make should be given the opportunity to make it and shouldn’t be disadvantaged by their resources, experience and passion as opposed to their dispassionate position that often professional witnesses and advocates will take.”
“Skilled inspectors would allow them to say what they wanted to say but would also probably probe so that they always got them back to the point of local impact. Where they did have relevant points on the local impact they would make sure they got answers to questions they had.”
“In law, pretty much anything can be a material consideration. So interested parties’ views would be material consideration provided that they addressed matters that were relevant to the decision that the decision-maker has to take. It then comes down to the weight which is attached to those material considerations by the decision-maker governed by Wednesbury principle and the impartial judgement.”
National policy versus local impact
The Cuadrilla inquiry heard arguments about both national policy and the likely local impact of the proposed fracking sites. We asked how an inspector would balance the two.
“[National policies do] attract very substantial weight. But that’s absolutely not to say that they are an automatic trump card for the decision-maker in the face of a significant local concern, which would have a significant impact.”
“If you looked at solar parks, there is a very strong steer in the National Planning Policy Framework, Planning Practice Guidance and the National Planning Statement on energy on the place of solar in the planning policy framework. But you will see many appeal decisions where, notwithstanding all that, the local impact has been deemed to be too great to permit it to go ahead.”
“It is an entirely legitimate material consideration provided that it is founded on proper planning concerns and they are evidenced and it’s not just ‘we don’t want that development here’.”
Both sides in the Cuadrilla inquiry pointed to past cases or previously-agreed conditions to support their arguments.
Planning inspectors are required by law to take account of past decisions when their attention is drawn to a case which is similar to the one they are considering. If they take a different decision they need to explain why. But Mr Linscott said there were practical difficulties with applying one case to another.
“It is nigh on impossible to be confident that you have been given, as a decision-maker, all the necessary evidence which would allow you to conclude that they are alike.”
“However, it is not sufficient to say that ‘I didn’t see all of that evidence and I haven’t seen the site so therefore I can’t attach any weight to it’ You’ve got to satisfy yourself if you’re not going to attach weight to it that there are sufficient distinctions in the documents before you to say that you can draw a reasonable distinction, otherwise the case is vulnerable to challenge.”
On practical issues, such as proposed noise limits, he said, inspectors were more likely to look at the specifics of a site, rather than accepting what had been applied to a different site in the past.
Local councils and planning inspectors
We asked how an inspector’s judgement was likely to differ from that of the local council which made the original decision.
“A local planning authority is probably looking at largely the same factors and essentially the same evidence as an inspector.”
But he added:
“However much consultation there is at planning application stage and however much discussion and negotiation may proceed the council making its decision, it’s often only at appeal stage that the appellant realises the precise nature of the council’s concerns.”
“New evidence often arises on appeal which the local planning authority hasn’t taken into account or has a different take on.”
“Sometimes it is because the applicant didn’t do as good a job as he should have done at application stage. It’s sometimes because the council didn’t really engage with the applicant at application stage. And sometimes it is a surprise to get that decision. Sometimes it’s because the planning officers did support an application and the planning committee didn’t.”
The inspector and the Secretary of State
All appeals are technically to the Secretary of State. But almost all are transferred by a statutory instrument to planning inspectors. In the Cuadrilla case, the Secretary of State, Greg Clark, recovered the appeal and will make the final decision.
Of the 10,201 appeals from April 2015-March 2016, just 67 were recovered. We asked how the Secretary of State’s judgement compared with that of the inspector.
“It is very rare in my experience for the Secretary of State to identify issues that the inspector didn’t.”
“It’s not inconceivable – and I’ve seen this a few times recently – that things happen after the inquiry has closed which the Secretary of State is bound to take into account.”
“So for example there’ve been various written statements, whether it is housing policy or onshore wind policy, made after the closure of the inquiry and the Secretary of State has taken them into account.”
“We’ve had a few cases where an inquiry has had to be reopened because something has emerged.”
“Natural justice requires that the Secretary of State goes go back to the parties. And sometimes that might prompt a supplementary report to be sought of the inspector.”
Challenging the decision
Mr Linscott said the Secretary of State’s decision could be challenged.
“Whichever way it goes there are opportunities to challenge it in the High Court.”
“If the Secretary of State were to dismiss the appeal then an appellant has a right of appeal. If it is allowed, the council has a right of appeal.”
“An interested person also has the right to appeal. That is someone who has an interest, not necessarily in the land, but in the outcome and would be affected by it and took an active part in both the planning application and the appeal.”