Planning & Environment

I’ve just finished my first inquiry experience since I joined the team in July. I’m told inquiries, particularly long inquiries, are rare now. The team suggested I should share my insights.

The inquiry concerned a proposed new retail unit at Fort Kinnaird in Edinburgh. The issues included the existing floorspace cap, the existing maximum unit size, retail impact, and the sequential test.

Here are a few of my observations on the inquiry process:

  • The presentation of evidence at inquiry is crucial. Expert witnesses play a key role.
  • This inquiry had three QCs and a solicitor, cross-examining witnesses on their credibility and weaknesses in their evidence.
  • A full set of papers for this inquiry stretched to an impressive 14 lever arch folders. The hours required to scrutinise the relevant documents – in addition to the administrative burden – cannot be underestimated.
  • With 4 parties, 10 witnesses and 14 folders, the inquiry lasted for 6 days. The issues were thoroughly scrutinised!
  • The inquiry was held at a hotel on the outskirts of Portobello. While not known as a locale for the determination of prominent legal issues, this is not a reflection on the level of advocacy displayed or commercial importance of the issues at stake. Aside from the conference-like setting, the format and conduct of proceedings was similar to the Court of Session or English High Court.
  • The key question, then, is – was the inquiry a success? In terms of the outcome, it is too early to tell as the decision is still awaited. The procedural value of running a case to inquiry, however, was clear to me only a few hours into the evidence.
  • Where parties are particularly opposed on an issue – for example, in this case, the application of the sequential test – the scope of written submissions may be limited. Parties can continue to present or re-state their own analysis of legislation or policy in a most favourable light without necessarily engaging with their opponent’s interpretation. In contrast, in cross examination, there are few places to hide. And the Reporter is right there, ready to hear witnesses’ answers to the questions they maybe didn’t want to be asked.

Above all, an inquiry is an intense if exhilarating experience, with months, sometimes years, of preparation coming together over a matter of days.

The Report’s decision is anticipated in early 2015. Watch this space for an update in due course…

Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar