Guidance

Rights of Way Section Advice Note No 3 - Advice on: A) Introduction of Case Law by the Parties to an Order, B) Legal Submissions at Inquiries and Hearings, C) Consideration of New Legal Issues either During or After the Inquiry, Hearing or Site Visit

Updated 12 November 2018

Applies to England and Wales

1. Introduction

1.1. The booklet ‘Guidance on procedures for considering objections to Definitive Map and Public Path Orders in England’ has been prepared by the Planning Inspectorate. The booklet gives guidance on the presentation of evidence at a local public inquiry, hearing or by an exchange of written representations.

1.2. This advice note supplements that guidance and covers presentation of evidence and in particular legal submissions in the context of The Rights of Way (Hearings and Inquiries Procedure)(England) Rules 2007 (‘Rules’).

1.3. This note is publicly available, but has no legal force.

2. Introduction of Case Law by the parties to an order

2.1. Where a party at an inquiry, hearing or in written representations wishes to introduce case law in support of their arguments, a full copy of the judgment should be provided to the Inspector by that party, or at least a sufficient extract, to ensure that what is being quoted is not being taken out of context. Its production may also help informed cross-examination. Where parties are unable to provide copies of the judgment, they should at least provide the Inspector with an accurate reference to the court proceedings being quoted. Where the principles established by a particular judgment are well known, then it may be sufficient to raise only those principles.

3. Legal Submissions at Inquiries and Hearings

3.1. Only the Courts can interpret the law authoritatively, but Inspectors reach a conclusion on the relevance of any legal submission made as it relates to the order before them.

3.2. The Rules govern the process for submitting evidence in relation to a hearing or an inquiry. Whilst not explicitly covered in the Rules, it is PINs’ view that legal submissions form part of the ‘material’ expected to be distributed as early as possible and in accordance with the timescales set out in the Rules. This is particularly so where they relate to the validity or jurisdiction of an order.

3.3. Legal submissions relating to validity and jurisdiction should therefore be included in a statement of case (A statement of case is a written statement containing full particulars of the case which a person proposes to put forward at a hearing, inquiry or as part of the written representations procedure. As far as possible, a legal submission should be submitted as a separate document alongside the statement of case, rather than being an integral part of it) so that they can be circulated to the other parties for comments in advance of the hearing/inquiry. However, if necessary, they can be made right at the start of the inquiry/hearing, since this may determine whether there is any purpose in continuing with the inquiry/hearing. They should be submitted to the Inspector in writing and copies of any legal authorities or legal judgments referred to should be provided where appropriate. This undoubtedly saves inquiry/hearing time, as the Inspector does not have to make notes of the submissions being made, and it helps reduce the possibility of error in recording the submission.

3.4. If not submitted at statement of case stage, legal submissions relating to the evidence may be submitted at the hearing/inquiry itself. Evidential legal submissions are generally given as part of closing statements at the end of a hearing or inquiry because it is usual to make references to the evidence that has been heard. An evidential legal submission submitted at statement of case stage may be added to or amended during closing statements.

3.5. To ensure a timely and efficient process for determining orders, we will return any material whether in the nature of evidence or legal submission received after the date for statements of case with a request that copies are either submitted at the start of the inquiry/hearing or raised in closing submissions (if evidential only). The only exception to this will be where the submission casts clear doubt over the validity of the order, and therefore the need for the hearing/inquiry. Such submissions will be circulated for comments in advance of the hearing or inquiry (if there is sufficient time).

3.6. Where the party presenting its case first receives legal submissions from other parties only at the opening of the inquiry/hearing, additional time may be needed for reading. That will be a matter for the Inspector.

3.7. Inspectors do not allow cross-questioning on legal submissions. Where there is disagreement on points of law, parties should make the relevant points in their own submission. In the event that an Inspector wishes to seek clarification of a legal point this will be done by engaging advocates from the parties equally in discussion. Persons representing themselves will have the same opportunity to make out their case as those who are professionally represented. Should a party include points of law in an evidential statement; the Inspector will draw all the parties’ attention to this and remind them that cross-questioning on legal submissions is not allowed.

3.8. In some inquiries, one or more parties may be represented by one person who will present both evidence and legal submissions. Where this occurs, that person performs the separate roles of advocate and witness and these roles are treated separately, just as if performed by different people. If necessary, Inspectors will point this out. Where possible, legal and evidential statements should be kept separate and the parties should be encouraged to present legal and evidential statements separately. The normal running order for presentation of each party’s case is: (1) legal arguments, (2) evidence, (3) closing submission, including comment on the opposing case(s) and any legal issues that arose during the hearing/inquiry.

4. Legal Submissions and the Written Representations Procedure

4.1. Legal submissions may also be relevant in written representation cases, although less common. In line with Procedure for Written Representations (see Annex B of our booklet) any submissions should be included in a statement of case so that they can be circulated to the other parties for comments. Legal submissions received after the deadline for statements of case will be circulated to the other parties for comment only if the issues are central to the consideration of the case. This is a matter for the Inspector. Consideration may be needed on whether the written procedure is still appropriate for determining the order or whether a hearing or inquiry is more appropriate depending upon the complexity of the case.

5. Consideration of new legal issues either during or after the inquiry, hearing or site visit

5.1. Decisions are based on facts and arguments put before the Inspector at the inquiry, the hearing, or in the exchange of written representations. Fairness dictates that relevant new matters, including case law, must be distributed to all parties for comment

5.2. It is possible that a new matter may be raised by the Inspector who becomes aware of a particular case or other matter of substance to the decision even if that matter has not been raised by any of the parties. This would usually happen before closing submissions. A common example is deemed dedication, where the evidence relates to Section 31 of the Highways Act 1980, and the issue of dedication at common law has not been raised specifically. In such circumstances, the Inspector may ask the parties for their comments on deemed dedication at common law.

5.3. In the unlikely event an Inspector recognises (after the event) that an important matter has not been addressed such as a relevant legal case, or other matter of substance, and the issues appear to be central to the consideration of the case, the Inspector will ask the Rights of Way Section in Bristol or Cardiff to write to the parties on his/her behalf to seek their comments.

5.4. Similarly, where one of the parties submits a document after the event such as a legal judgment, it will be circulated for comments if the Inspector confirms that it raises issues which appear to be central to the consideration of the case. Where the submission is not considered to be material to the Inspector’s consideration of the case, then it will not be circulated and the sender will be informed accordingly.

5.5. The Inspector will not accept any other material received after the event except in extraordinary circumstances (please see Annex G of the guidance booklet.