Form

A Guide for Appellants (Notice Appeals)

Published 1 March 2013

Applies to England and Wales

Appeals under section 38 of the Countryside and Rights of Way Act 2000

Appeals under paragraph 4 of Schedule 20 to the Marine and Coastal Access Act 2009

This guidance sets out the procedures for appeals made under section 38 of the Countryside and Rights of Way Act 2000 and appeals under paragraph 4 of Schedule 20 to the Marine and Coastal Access Act 2009 to the Secretary of State for Environment, Food and Rural Affairs in connection with means of access. Only the courts can give an authoritative interpretation of any point of law, so this guidance has no legal force.

The following terms are used in this guidance:

• The relevant authority refers either to Natural England, or the relevant access authority.
• The Countryside and Rights of Way Act 2000 will be referred to elsewhere in this guidance simply as “the 2000 Act”.
• The Marine and Coastal Access Act 2009 will be referred to elsewhere in this guidance simply as “the 2009 Act”.
• Appeals against notices issued under both section 36 and 37 of the 2000 Act and paragraph 3(3) of Schedule 20 to the 2009 Act are referred to as “notice appeals”.
• The Secretary of State for Environment, Food and Rural Affairs will be referred to as “the Secretary of State”.

1. Introduction

1.1 The Countryside and Rights of Way Act 2000 – Access Land

1.1.2. Section 34 defines “means of access”, in relation to land, as meaning:

• any opening in a wall, fence, or hedge bounding the land (or part of the land) with or without a gate, stile or other works;
• any stairs or steps to enable people to enter on the land (or any part of the land); and,
• any bridge, stepping stone or other works for crossing a watercourse, ditch or bog on the land or adjoining the boundary of land.

1.1.3. Under section 35 the relevant authority may make an agreement with an owner or occupier where it considers that an existing means of access needs to be opened, improved or repaired or maintained. Section 36 of the 2000 Act sets out the action a relevant authority may take if the owner or occupier fails to carry out their obligations under the agreement. Where the agreement was for the owner or occupier to observe a restriction, and they fail to abide by that agreement, the relevant authority may serve a notice requiring them to carry out work to remedy the breach of the restriction, within no fewer than 21 days. If the owner or occupier fails to comply with the notice, the relevant authority may carry out any work specified in the notice and may recover the expenses reasonably incurred by them from the person to whom the notice was given. There is a right of appeal (see paragraph 1.2.1 below).

1.1.4. Where the agreement was for the owner or occupier to carry out work to an agreed or reasonable timetable, the relevant authority may, after giving at least 21 days’ notice, carry out the work themselves. There is no right of appeal against this action (which is provided for under section 36(1) of the Act).

1.1.5. Where a relevant authority believes it cannot reach an agreement under section 35, it may serve on the owner or occupier a notice stating its intention, after a period of at least 21 days, to carry out work to provide the means of access. The appropriate authority must serve a copy of the notice on any other owner or occupier of the land.

1.2 The right to appeal

1.2.1. Section 38 allows for appeals against notices from relevant authorities alleging breach of an agreement imposing restrictions not to destroy or alter an existing means of access (under section 36(3)) or requiring the creation or safeguarding of a means of access (under section 37(1)). The person who has been issued with the notice, or any other owner or occupier of the land, may appeal against the notice.

1.2.2 The grounds of appeal for the two types of notice are slightly different:

• An appeal against a notice under section 36(3) may be brought on any of the following grounds:

(a) that the notice requires the carrying out of any works which are not necessary for remedying a breach of the agreement;

(b) that any of the works have already been carried out; and

(c) that the period specified in the notice as that before the end of which the works must be carried out is too short.

• An appeal against a notice under section 37(1) may be brought on any of the following grounds:

(a) that the notice requires the carrying out of any works which are not necessary for giving the public reasonable access to the access land in question;

(b) in the case of works to provide a means of access, that the means of access should be provided elsewhere, or that a different means of access should be provided; and

(c) that any of the works have already been carried out.

1.2.3. The Secretary of State, or an Inspector appointed by her, may confirm the notice with any modifications, or cancel it. The relevant authority will not be able to carry out any works while they remain the subject of an appeal.

1.3 The Marine and Coastal Access Act 2009 – Coastal Route

1.3.1. Paragraph 2(3) of Schedule 20 to the 2009 Act defines works to be carried out for the purposes of the coastal access duty as:

(a) the clearance or maintenance of land for the purpose of facilitating the use of the English coastal route by the public for journeys on foot;

(b) the removal, for that purpose, of any obstruction of the route;

(c) the clearance or maintenance of land which is coastal margin for the purpose of facilitating the exercise by the public of any right to enter or remain on the land on a bicycle or on horseback which is conferred by section 2(1) of the Countryside and Rights of Way Act 2000 (by virtue of the removal or relaxation of any of the general restrictions in Schedule 2 to that Act);

(d) the drainage or levelling of land, or the improvement of its surface, for the purpose of mentioned in (a), or if the land is coastal margin, the purpose mentioned in (c);.

(e) the construction, removal, repair or improvement of any wall, rail, fence or other barrier or any posts, or the planting of any hedge.

1.4 The right to appeal

1.4.1. Paragraph 3 of Schedule 20 to the 2009 Act allows for a relevant authority to give a notice to an owner or occupier of the land stating that after the end of the specified period, it intends to carry out all the necessary steps for carrying out the required works. Paragraph 4 allows for appeals against notices from relevant authorities. The person who has been issued with the notice, or any other owner or occupier of the land, may appeal against the notice. The grounds of appeal are:

(a) the notice requires the carrying out of any works which it is not necessary to carry out for the purposes of access duty;

(b) any of the works have already been carried out;

(c) the period specified in the notice as the period after which the steps are to be taken to carry out the work is too short.

2. How to make an appeal

2.1 Do I have the right to appeal?

2.1.1. You may appeal if you are:

• The person who has been issued with the notice, or
• any other owner or occupier of the land (to whom the relevant authority must also give notice in section 37(1) cases).

2.2 When and how do I make the appeal?

2.2.1. For an appeal against a notice under section 36(3) of the 2000 Act, your appeal must reach the Planning Inspectorate within the period specified in that notice within which the works required should be carried out. For an appeal against a notice under section 37(1) of the 2000 Act or paragraph 3(3) of Schedule 20 to the 2009 Act, your appeal must reach us within the period specified in the notice after which the relevant authority has given notice of its intention to carry out the works. This must be a period of not less than 21 days beginning with the day on which the notice was given.

2.2.2. The appeal must be made on our appeal form. You can download the appeal form from the GOV.UK website or we can post one to you. Our postal address and telephone number is given in section 13 of this guidance. If you download the appeal form you can e-mail it back to us at: rightsofway2@pins.gsi.gov.uk. You must send a copy of the appeal form to the relevant authority at the same time that you send it to us.

2.2.3. 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. If you send your appeal on paper you should keep a copy for your own reference.

2.3 Which procedure will my appeal follow?

2.3.1. There are 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 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, which the Inspector will consider when reaching a decision. We will also notify any third parties who made representations about the notice previously. These third parties will be given an opportunity to add to, or to withdraw, any representations they made at that time. Third parties may also speak at a hearing or inquiry with the Inspector’s permission.

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

2.4.3. 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, therefore, not include personal information unless you are happy for it to be seen by others (see section 12 of this guidance).

2.4.4. It is possible that a relevant authority will look at means of access throughout a particular locality, rather than just at one specific site. This could result in a number of notices being issued to several owners or occupiers at a similar time resulting in several appeals being made. Where that happens we will normally link the appeals to be dealt with by one Inspector.

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 if you decide to employ a professional adviser (eg: a solicitor) to help you make and advise on your appeal.

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 10 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 the following information.

• your name and postal address

your legal interest in the land (ie: whether you are the owner or occupier and, if you are the “occupier” the nature of your interest)

• a copy of the notice issued to you by the relevant authority

• a map clearly identifying:

  • the location of the proposed works or other land directly affected by the notice, and
  • the access land adjoining or surrounding the land affected by the notice
  • any proposed alternative location for a means of access
• a diagram or plan if you are proposing an alternative design to a means of access (eg a different type of stile or bridge)
• a statement of the grounds of your appeal
• your choice of procedure.

3.2 Checking that your appeal is valid

3.2.1 We will check your entitlement to appeal and that your appeal has been made on valid grounds. 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 any remaining appeal period (see paragraph 2.2.2. above) 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 your appeal towards the end of the 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.

3.2.2. 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 us telling you that your appeal was incomplete.

3.3 Setting the ‘start date’

3.3.1 If your appeal is valid and you have supplied all the information we require, we will tell you so and inform you of the contact details of your case officer and the unique reference assigned to your case. At the same time we will tell the relevant authority that your appeal is valid.

3.3.2 Within two weeks of being notified of a valid appeal 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 any third parties who made representations previously in respect of the notice and the address of the local access forum.

3.3.3 As soon as practicable after we receive the questionnaire we will contact you, the relevant authority, any third parties that we have been informed of, and the local access forum, to advise you of the procedure by which the appeal will be processed (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 statutory timetable - we will not send you reminders.

3.3.4 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.

4.0.2. The written representations procedure may not be suitable for appeals in which complex legal issues are raised, or which have 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 10 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 the notice. They will also copy to you and us any correspondence they exchanged with you over the issue of the notice.

The 6-week deadline

4.1.2 We must receive your statement of case, which sets out your side of the argument, within 6 weeks of the start date 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 appeal form 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 any statements and representations submitted by the relevant authority and third parties (see “The 9-week deadline” at paragraphs 4.1.4 and 4.1.5 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 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

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 does the opposing party would have no opportunity to respond - so we will reject 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, we will arrange for the Inspector to carry out a site visit where appropriate. It is a matter for the Secretary of State’s discretion whether or not a site visit takes place. When completing the appeal form if you are of the opinion that a site visit is necessary you should give us your reasons. If we think a site visit is necessary we will notify you of the date on which the site inspection is to take place so that you may attend if you wish. The relevant authority will also be asked whether it wishes to attend.

4.2 The Inspector’s site visit

4.2.1 Please note that you cannot discuss the merits of the case during the site visit. Any comments that you or the relevant authority wish to make on each other’s case (or on any representations made by third parties) must have been made in your written statements. The Inspector may, however, ask you to point out physical features referred to in your written evidence.

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 assists the parties to focus upon the main issues of disagreement. An important advantage of this procedure is that the Inspector can adjourn the hearing to the site so that the discussions can continue whilst everyone can see the layout of the land. 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 the notice. They will also copy to you and us any correspondence they exchanged with you over the issue of the notice.

The 6-week deadline

5.1.2. We must receive your statement of case, which sets out your side of the argument, within 6 weeks of the start date 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 appeal form 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 5.2.7. below).

5.1.3. Third parties may also submit representations. All representations that have been received before the specified deadline 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, rather than distorted by special lenses or digitally manipulated. The Inspector may wish to inspect the site, and may wish to see it from the viewpoints shown in photographic evidence.

The 9-week deadline

5.1.7. 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 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 the hearing. We may require the relevant authority to advertise the hearing in a local newspaper not less than 2 weeks before it 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. Whether or not we make these requirements we will advertise the hearing on the https://www.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 choose an alternative. We will do our best to avoid any dates that you tell us are not convenient, but we cannot guarantee that we will be able to find a date that is more convenient for you. If you later find 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. 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 the appeal. 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.

5.4.3. The Inspector may, at any time during the hearing adjourn to the appeal site so that the discussion can resume there. The advantage of this is that it enables the details of any proposed works, and their effect on the land or existing features, to be discussed in context.

5.5 Should I instruct a representative to present my case?

5.5.1. You do not have to be professionally represented at the hearing. We understand that in most cases the relevant authority will be represented by one of their staff and will not employ a specialist advocate. You may, of course, 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 case made by others. The Inspector will ensure that the hearing is conducted correctly and that the appeal is decided fairly on the basis of the evidence. 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 may visit the site and will usually wish to be accompanied by you and the relevant authority, as it will be necessary to establish and confirm exactly what is proposed and the effect it would have on the land. The site visit will usually take place on the day of the hearing but may be scheduled for a later date. 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. After the site visit has taken place, the Inspector will give a written decision based on the evidence before him/her. When making the 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 where considerable public interest has been shown in the appeal.

6.1 The timetable of events following the start date

The 2-week deadline

6.1.1. Within 2 weeks of the start date the relevant authority should have provided you and us with copies of any third party representations they received in respect of the notice. They will copy to you and us any correspondence they exchanged with you over the issue of the notice.

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 6.1.9. & 6.1.10. 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 10 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 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

6.1.5. 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 a statement of common ground to us. 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 (see paragraph 6.2.1.), if one was held, or otherwise. Its purpose is to set out the agreed factual information about your appeal and it should, by narrowing the areas of dispute, result 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 statutory requirement it assists the inquiry. 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 6.1.7.). If your proof contains more than 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 wider notice of it).

6.2.2. The purpose of the statement of matters is to provide a clear indication of what we think the key issues are. 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 may also require the relevant authority to affix a notice of the inquiry firmly to the appeal land or to something nearby which is clearly visible to the public for a period of time. We will advertise the inquiry on the GOV.UK website at least 2 weeks before the event and 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 choose an alternative. We will do our best to avoid any dates that you tell us are not convenient, but we cannot guarantee that we will be able to find a more convenient day. If you later find 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 professionally 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. 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 Who will be allowed to speak at the inquiry?

6.6.1. 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.

6.7 Procedure at inquiry

6.7.1. 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, repetitious or offensive.
• The relevant authority will call 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.

6.8 The site visit

6.8.1. The Inspector will normally visit the site and will usually wish to be accompanied by you and the relevant authority, as it will be necessary to establish and confirm exactly what is proposed and the effect it would have on the land. The site visit will usually take place during an adjournment of the inquiry or after it has closed. You should bear in mind that if the inquiry has closed the Inspector will be unable to accept evidence or discuss your appeal further. 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 What happens after the inquiry?

6.9.1. The Inspector will give a written decision based on all the evidence before him/her. When making the 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 can 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 I decide to withdraw my appeal?

7.1.1. You can withdraw your appeal at any time before we issue the Inspector’s decision. 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 who request a copy. Inspectors’ decisions will also be published on: TBC

8.1 Decisions by the Secretary of State

8.1.1. Decisions are usually made 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. Where the Secretary of State agrees with the Inspector’s recommendations, the report will be issued with the Secretary of State’s decision.

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 decision is made. If necessary, the Secretary of State may re-open the inquiry - and must do so if you or the relevant authority requests it. The decision will be copied to everyone who is entitled to receive it.

9. How long will it take?

9.0.1. It is unlikely that appeals will be ready to go to an Inspector for determination in less than 16 weeks from the start date. This is because of the timetable for actions to be taken by the parties to the appeal which are set out in the Regulations, and the time it will take for the Planning Inspectorate to carry out our various activities. This timescale is the most optimistic and will be heavily dependent 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.

9.0.2. We normally endeavour to issue the decision within four weeks of the Inspector conducting any site visit, or closing the hearing or inquiry.

10. Costs

10.1 Who can apply for costs?

10.1.1. 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 caused you 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.

10.1.2. If the appeal is decided by a hearing or inquiry, the relevant authority can also ask for 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 one of you behaved unreasonably and thus caused unnecessary or wasted expense.

10.1.3. A claim for costs could be made, for example, if due to the introduction of fresh evidence at the hearing or inquiry, the event had to be adjourned or prolonged. When and how should I apply for costs?

10.1.4. There is no formal procedure or application form. An application for costs should be made to the Inspector at the hearing (at the hearing venue, even if the hearing is adjourned to site) or inquiry, 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 after the issue of the appeal decision.

10.2 Further information

10.2.1. Further information on the rules relating to costs.

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

11.0.1. 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

11.0.2. 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.

11.1 How can I challenge a decision?

11.1.1. 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.

12. Data Protection and Privacy

12.0.1. 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.

12.0.2. 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.

12.1 Data Protection

12.1.1. 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 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.

12.1.2. 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.

12.2 Who has access to your personal information?

12.2.1. 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 a web site and will be accessible worldwide by any third party including individuals or organisations that have no direct interest in the particular appeal.

What information do we hold?

12.2.2. 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.

12.3 What steps should you take?

12.3.1. 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.

12.4 The Data Controller

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

12.5 Your rights to see personal information

12.5.1. 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.

12.5.2. 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: feedback@pins.gsi.gov.uk

12.6 Complaints about access to personal information

12.6.1. 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

Phone: 0303 123 1113 (local rate)

Fax: 01625 524 510

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

Email: casework@ico.org.uk

13. About the Planning Inspectorate

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

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

Phone: 0303 444 5226

Email: rightsofway2@pins.gsi.gov.uk

The team is responsible for the administration of these appeals. The Rights of Way Team will be happy to answer queries on appeal procedures and the progress of specific cases. Find more detailed information about the Planning Inspectorate..