Form

Statements of Common/Uncommon Ground for Hearings and Inquiries

Updated 14 November 2024

Applies to England

1. Introduction

This guidance covers Statements of Common Ground (SoCG) for appeals under s78 of the Town and Country Planning Act 1990. It applies to all appeals determined by way of an inquiry or a hearing format.

This document gives effect to recommendations of the Independent Review of Planning Inquiries (December 2018), which observed that SoCGs “can be extremely valuable to the Inspector” (The Independent Review of Planning Inquiries, Report (“Rosewell Report”) [5.23]) and that they could be “a powerful and effective tool for improving the efficiency and effectiveness of the process”. It is also intended to assist all professional representatives and expert witnesses in compliance with their duty to assist the inspector.

2. Legislative Requirements

There are three sets of relevant procedure rules:

• The Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 (“Inquiries Rules – Determination by Inspectors”)
• The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (“Inquiries Rules”)
• The Town and Country (Hearings Procedure) (England) Rules 2000, (“Hearings Rules”)
• The Town and Country Planning (Development Management Procedure) (England) Order 2015 (“DMPO”)

A SoCG is a written statement prepared jointly by the appellant and the local planning authority (LPA), which contains agreed factual information about the proposal, which is the subject of the application or appeal (Inquiries Rules, rule 2(1), Inquiries Rules – Determination by Inspectors, rule 2(1), Hearings rule 2(1)).

Rule 6 Parties may also become signatories to SoCGs. An appellant and LPA may wish to explore a separate SoCG with a Rule 6 Party in appropriate cases. Rule 6 Parties/interested parties may be asked for their views on the SoCG at the event.

The production of a SoCG (the main SoCG) is a mandatory requirement in all appeals heard by way of inquiry or hearing.

The appellant must, at the time of making their appeal, submit a draft statement of common ground (DMPO 37(3) (B) (X)).

Both the appellant and the LPA must prepare and agree the Main SoCG together and submit it within:

• 5 weeks of the start date of an appeal by way of inquiry to be determined by the inspector (Inquiries Rules – Determination by Inspectors, Rule 15(1))
• 6 weeks of the start date for an appeal by way of inquiry recovered by the Secretary of State for determination (Inquiries Rules, Rule 14(1))
• 5 weeks of the start date of an appeal by way of hearing (Hearings Rules, Rule 6A(1)).

Thereafter, the Main SoCG should be published on the LPA’s website (Inquiries Rules – Determination by Inspectors, Rule 15(2), Inquiries Rules, Rule 14(2), Hearings Rules, 6(A)(2)-(3).

Inspectors may also ask the parties to prepare and agree SoCGs on specific inquiry topics (topic-specific SoCG), ordinarily following the Case Management Conference (CMC). The inspector will provide all directions as to the structure, content and timing of topic-specific SoCGs at the CMC. Parties may also agree topic-specific SoCGs ahead of the inquiry CMC or hearing at their own initiative, consistent with the expectation as to party cooperation.

3. The Main SoCG

The main SoCG is an essential document for the effective determination of any appeal by way of inquiry or hearing. It ensures the evidence (both written and oral) considered at an event focuses on the material differences between the appellant and the LPA.

Working together in agreeing a SoCG will assist the parties in providing relevant evidence and should help to reduce the quantity of material which needs to be presented and considered and help inform the early engagement process. This is intended to narrow the scope of Proofs of Evidence to matters that are in issue.

A main SoCG provided in accordance with the statutory timetable, that is clearly drafted and comprehensive, greatly assists in the Inspector’s preparation for the inquiry / hearing and its efficient conduct. The Main SoCG also performs a vital function in public understanding of the appeal. It helps the public to understand precisely what is contested between the appellant and LPA and what has been agreed.

A concluded Main SoCG does not bind the inspector on a particular matter and an inspector may exercise their own judgment on all matters. However, Inspectors should alert parties if they have reason for departing from a matter or position that has been agreed in a SoCG. Equally, an interested party can still submit evidence on matters that have been agreed between the appellant and LPA, provided that it is submitted by the relevant deadline.

The main SoCG should be a single document, compiled and signed by the main parties. It should ordinarily be drafted using Word and then agreed in either Word or PDF format, in an OCR (optical character recognition) format, which enables the document to be searchable. The use of tables, bullet points and diagrams (where relevant) is encouraged.

A main SoCG should contain statements about the appeal proposal that the appellant reasonably considers will not be disputed by the local planning authority.

The primary example are factual statements, i.e. descriptions of the appeal site, appeal proposal, planning history, development plan, reasons for refusal and topic areas not in dispute. However, statements should not be limited to pure factual/descriptive matters, they should extend to identifying agreement/disagreement on points of law, policy interpretation or technical matters as appropriate.

Parties should take care in drafting the main SoCG so that it accurately reflects the key documents relied upon in the determination of the application, including (as applicable) the Decision Notice, Officer’s Report and Appeal Statement of Case and other evidence. A Main SoCG should not add to the reasons for refusal nor be used to change the case of any party on any matter. It may, however, identify new information (and its relevance), which has become available post-determination and which is relevant to the Inspector’s consideration of the appeal.

The main SoCG should always seek to cover agreed matters in a comprehensive manner. It should not simply be limited to basic matters of agreement/disagreement between parties. It should not simply repeat the reasons for refusal, but instead should ‘flesh out’ the key areas of disagreement which underpin these.

Finally, it should be noted that SoCGs are an important aspect of parties’ reasonable conduct of appeals. The Planning Practice Guidance section on Appeals cites as a basis for unreasonable conduct: “not agreeing factual matters common to witnesses of both principal parties” (Paragraph: 047 Reference ID: 16-047-20140306). A party should also not seek to renege on previously agreed matters in the SoCG. This could amount to unreasonable conduct unless some form of agreed statement revising the position has been submitted.

4. Topic-Specific SoCGs

The Main SoCG is not the end-point in agreeing common ground for the appeal. Where there is scope to further narrow the issues, then that opportunity should be taken by Appellants and LPAs on any matter forming part of the identified Main Issues.

A topic-specific SoCG is supplementary to the Main SoCG. The potential to submit a topic-specific SoCG is not a basis to defer early agreement of matters through the Main SoCG, but is an opportunity to drill down further into specific detail as the witnesses prepare for the inquiry or hearing.

They are a particularly useful tool for more technical subjects, such as in respect of noise, flood risk or viability. They can also be useful for other issues relating to housing land supply. A topic-based SoCG on planning matters, such as the weight to be given to any benefits in the planning balance, can also be helpful.

Typically, topic based SoCGs are produced by the respective witnesses, who will speak to the inquiry or hearing on their particular subject. The input from a Rule 6 party or interested party is also welcomed for topic based SoCGs.

Similar to main SoCGs, the following should also be noted:

• The topic-specific SoCG should be signed and dated
• The use of tables, bullet points and diagrams is encouraged
• The use of headings and a formal structured approach is urged
• Large documents or further new detailed evidence should not be appended

5. Timing and Procedure

An appellant should discuss arrangements as to the draft Main SoCG with the LPA when they contact them before they make their appeal, including identifying the main point of contact and key dates. Whilst it is recognised that resourcing constraints may interfere with dates, the Inspectorate’s experience is that early agreement saves considerable resource over the long run.

Once the appeal is made, the appellant and the LPA must then prepare a main SoCG together. Inspectors need to receive the main SoCG in sufficient time ahead of any scheduled CMC for an inquiry or a hearing, to assist the inspector in the production of a CMC note and to facilitate the discussion.

The late submission of main SoCGs is a practice that should be avoided. Parties should collaborate well ahead of the stated deadline, including through early discussion of the first draft and provision of timely responses thereafter. Parties should be mindful that the Planning Practice Guidance (PPG) on costs makes clear that procedurally unreasonable behaviour may include “not agreeing a statement of common ground in a timely manner” (PPG Appeals, Reference ID: 16-047 and 16-052).

Where involved in the SoCG process, Rule 6 Parties will usually be subject to the same deadlines as the main parties.

It is understood that proposed changes are best explained/communicated by way of tracked changes and margin comments on the initial draft. It should be noted, however, that parties should not send such drafts to the Inspectorate, which will require only the final, agreed version.

If, for good reason, an updated signed version of a SoCG is necessary, the changes made should be clearly noted to the inspector along with the reasons for them.

The deadline for identified topic-specific SoCGs will normally be set at the CMC (for an inquiry) and will usually match the date of submission of Proofs of Evidence.

Where an inspector requests the production of a topic-specific SoCG, then it should be treated as a mandatory requirement in the same manner as the main SoCG. As with main SoCGs, meeting deadlines will require preparation and discussion considerably in advance of the date for submission.

A topic-specific SoCG should be as comprehensive as possible at the point of submission. However, where additional matters arise following exchange of Proofs of Evidence, that could not have been covered before, the parties may include a further Addendum to the topic-specific SoCG, rather than a rebuttal statement.

6. Templates

To assist, specific templates have been prepared for main SoCG to sit alongside this Guidance.

7. Conclusion

A good SoCG (be it main or topic-specific) will assist the cases of all parties and, crucially, will help the inspector. Parties should not be afraid to reach agreement where possible and, in doing so, it should not be perceived as weakening any case. Rather, a good SoCG provides focus and a spotlight on those areas that need to be further examined at inquiry or hearing.

The following table summarizes points of good practice:

Encouraged	To be avoided
Parties should work collaboratively	Avoid appending large documents to the SoCG
Stick to the specified deadlines and give yourself time to meet them	Avoid simply repeating basic facts such as the reasons for refusal
Consider whether the information is better presented in bullet points, tables and/or diagrams to avoid lots of text	Do not introduce new evidence or arguments
Rule 6 involvement can be useful and is encouraged	Topic specific SoCGs should supplement the main SoCG and not run counter to it
Focus on areas of disagreement within a clearly identified section (s) and give details of the areas of disagreement	Check there are no remaining tracked changes in the final version
Make sure the SoCG is signed and dated