ADVICE ON by Honey Claws

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									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 C) CONSIDERATION OF NEW EVIDENCE BY INSPECTORS IN RIGHTS OF WAY ORDER DECISIONS Introduction 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 and is available on our website at www.planning-inspectorate.gov.uk. The booklet gives guidance on the presentation of evidence at a local inquiry, hearing or by an exchange of written representations. This advice note supplements that guidance. This advice note sets out our best advice on the presentation of evidence relating to High Court, Court of Appeal and House of Lords judgements (case law), and the Inspector's role in the consideration of Legal Submissions. The advice note also sets out our advice to Inspectors on the introduction of new evidence by them in their order decision. This note is publicly available, but has no legal force.

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Introduction of Case Law by the Parties to an Order 5. Where a party at an inquiry, hearing or in written representations wishes to introduce case law in support of their case, the Inspector should always try to obtain a full copy of the judgment from that party, or at least a sufficient extract, to ensure that what is being quoted is not being taken out of context. Its production will 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. The Inspector should consult the full judgment when determining the matter.

Legal Submissions at Inquiries

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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. In those cases where the order is decided by the Secretary of State or the Welsh Assembly Government, any legal submissions made at the inquiry should be included in the Inspector's report. The Secretary of State/the Welsh Assembly Government will take a view on the legal submission as it relates to the order when reaching a decision on the order, but again the Inspector should deal with the issue in his or her conclusions. Legal submissions on matters of validity and jurisdiction, whether about the inquiry or the definitive map modification order process, should be made right at the start of the inquiry, since this may determine whether there is any purpose in continuing with the inquiry. They should be put in writing and copies of any legal authorities or judgements referred to should be provided where appropriate. This undoubtedly saves inquiry 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. Where the party presenting its case first receives legal submissions from other parties only at the opening of the inquiry, that party should be given time to study these legal submissions and respond to them out of sequence if they wish to.

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10. Inspectors should not allow cross-questioning on legal submissions. If the other party disputes the legal submission they should make the relevant points in their own submission. Where an Inspector seeks clarification of a legal point this should be sought by engaging advocates from both parties equally in discussion. Qualified lawyers and unqualified amateurs will have equal standing as advocates. Should a party include points of law in an evidential statement, the Inspector should draw all the parties’ attention to this and remind them that cross-questioning on legal submissions is not allowed. 11. In some cases, 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 to be treated separately, just as if performed by different people. Inspectors should consider whether it would be helpful to make this clear to the parties. Where possible, legal and evidential statements should be kept separate and the parties should be encouraged to present legal and evidential statements separately. A suggested running order for presentation of each party’s case is: (1) legal arguments, (2) evidence, (3) closing submission, including comment on the other side’s case and any legal
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issues that arose during the inquiry. Consideration of New Evidence by Inspectors in Rights of Way Order Decisions 12. It is a golden rule of order decision writing that the conclusions reached by the Inspector should be based on the facts and arguments put before him/her at the inquiry, or hearing, or in the exchange of written representations. Conclusions should flow only from the facts and arguments recorded in previous paragraphs of the order decision. Therefore, Inspectors should avoid introducing into their conclusions new matters, including case law, if these have not been previously raised by, or canvassed with, the parties. This is a matter of fairness to those concerned. To introduce such matters for the first time in the order decision has the effect of denying the parties the right to respond. In such circumstances, the only course of action open to an aggrieved party to seek redress would be by way of a legal challenge to the decision in the High Court. 13. Before and/or at the inquiry/hearing the Inspector may be aware of a particular case or other matter of substance to the decision not raised by any of the parties. Should this be so, the Inspector should raise this him/herself as soon as appropriate at the inquiry/hearing, and certainly before closing submissions. This enables the parties to offer a view about the relevance of the case and its possible implications for the decision. 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 at the inquiry may ask the parties for their comments on deemed dedication at Common Law. 14. If a relevant or legal case, or other matter of substance, should come to light after the close of the proceedings, or during consideration of written representations, and the issues raised 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.

The Planning Inspectorate

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3rd Revision September 2009


								
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