12 Hearings Announced As IPC To Allow Cross-Examination

This is entry number 249, published on 8 June 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.

Today's entry reports on the programme of hearings for the first IPC application and an issue affecting the second.

The Infrastructure Planning Commission is currently examining two applications (and technically even that has only been the case since Tuesday of this week). The Planning Act regime places an emphasis on the examination taking place through written representations, but does allow oral hearings in three situations. Here is how hearings are being addressed in the more advanced of the two applications.

Meanwhile, the examiners of the second application are having to grapple with the issue of application changes. How this is resolved will be of interest to many involved in preparing other applications.

Hearings news

The three types of hearing that can be held are:

• open floor hearings (OF hearings) - hearings on general issues that can be requested by anyone who made a valid objection;
• issue specific hearings (IS hearings) - hearings on particular issues that are held at the discretion of the IPC; and
• compulsory acquisition hearings (CA hearings) - hearings on the compulsory purchase of land or rights in land that can be requested by anyone who is subject to such powers

The first IPC application is for an energy from waste project in Bedfordshire, promoted by Covanta Energy. It has already been announced that five days of IS hearings would be held, the panel of Commissioners originally being of the view that there should not be any, and following the preliminary meeting that there should be one or two on the drafting of the development consent order.

Not surprisingly, the panel received several applications for OF hearings and CA hearings and has decided to hold two days of hearings for the former and five days for the latter.

The full timetable for hearings is (and I don't think this has been collated anywhere else):

The venues are the Park Inn, Bedford, the Forest Centre, Marston Moretaine, and the Village Hall, Stewartby.

So that is in effect a '12 day public inquiry' if you want to look at it that way. Would that have been any longer if it had been a single formal public inquiry instead of a series of hearings? There's probably not much in it. What is certainly shorter is the overall period within which the hearings take place of six months' examination in total.

In an attempt to make the OF hearings as productive as possible, the IPC has produced an advice note on their conduct. Individual contributors are limited to 5 minutes, and those representing organisations to 15.

For the CA hearings, the panel has announced that it will allow cross-examination of witnesses. This is interesting because the Planning Act only allows this when the panel thinks it necessary. The Planning Bill used to say 'in exceptional circumstances' but the phrase was removed from the eventual Act. No cross-examination has been allowed for the other types of hearing.

It is also interesting that as much as five days have been set aside for these hearings, given that by my calculations only 26 landowners are having land taken. They are thus getting about an hour each, when the remaining 978 objectors have to make do with two days between them, which works out at less than a minute each.

The main reason for the time allocated and the availability of cross-examination is likely to be the human right not to have land taken compulsorily except in certain circumstances, which in turn engages the human right to have a 'fair trial'.

Changed application

Meanwhile, the second application for another energy from waste project promoted by Covanta, near Merthyr Tydfil this time, had its preliminary meeting on Tuesday. At that meeting, the promoter announced that the main building would be 3 metres higher than the 52 metres previously proposed. The panel of Commissioners will decide what to do about this next week. The issue of how much an application can change after it has been made has been one of great interest to project promoters as it is not entirely clear from the Planning Act the extent to which this can happen.

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