Priority applications for transmission infrastructure guidance: section 37 of the Electricity Act 1989

9. Public Inquiry

This guidance applies where an inquiry is held under section 62 and/or Schedule 8 to the Electricity Act 1989. Section 62 provides that Scottish Ministers may hold an inquiry where they consider it advisable to do so. Subsections (2) to (8) of section 210 of the Local Government (Scotland) Act 1973 (which relate to giving evidence at, and defraying the costs of, local inquiries) apply to inquiries held under the Electricity Act.

Opt-in

Immediately after receipt of a case, DPEA will write to all of those who have made representations or consultation responses. These letters will inform those ‘interested parties’ that a public inquiry is to be held. Parties will be asked to confirm whether or not they wish to participate in the public inquiry. If they wish to participate, they will also be asked whether they wish to attend the pre-inquiry meeting which will normally be organised to discuss the procedures to be followed at the public inquiry. All such parties will be treated as having ‘opted-in’ to the public inquiry. Those parties not wishing to take part in the public inquiry will have their representations fully considered by the Reporter in their report to Ministers.

The fixed timeline for the application (including for the public inquiry procedures) will be appended to the opt-in letter. All opted-in parties will be expected to participate in the various stages of the public inquiry in accordance with that fixed timeline.

Parties who confirm that they do not wish to participate (or who do not respond to this letter within 14 days) will not be sent any further correspondence in relation to the public inquiry. These parties will be treated as ‘opted-out’.

Pre-inquiry Meeting

The Reporter will normally hold a pre-inquiry meeting to discuss the procedures to be adopted at the inquiry. The purpose of the pre-inquiry meeting is to discuss how the case can be conducted in an efficient, yet inclusive, manner. The DPEA will identify an appropriate location and method of holding the pre-inquiry meeting.

The discussions at the pre-inquiry meeting as to which procedures are to be adopted (and who wishes to be involved in each) will be informed by the position statements already submitted, and by the views expressed by all parties at the meeting. Other matters to be discussed may include the extent to which the public inquiry procedures should be virtual or in-person, the venue (or venues) for in-person procedures, the need for accompanied and unaccompanied site inspections, and the detailed programme of hearing and inquiry sessions (in accordance with the fixed timeline). The Reporter will issue an agenda for the pre-inquiry meeting containing their provisional views on these matters.

Regardless of the procedures to be adopted, these will be conducted in accordance with the fixed timeline which ECU will already have issued for the case. Parties will need to be prepared to submit documentation and participate in the procedures all in accordance with that timeline.

Business of the Pre-Inquiry Meeting

The Reporter will set the agenda for the pre-inquiry meeting. Amongst other things the agenda will identify the Reporter’s provisional views on:

• the issues requiring no further procedure;
• the issues requiring further written submissions;
• the issues requiring a roundtable hearing discussion;
• the options for a hearing where parties can state their views, but where discussion is limited;
• the issues requiring formal cross-examination; and
• whether any unaccompanied site inspections are required.

Parties will be given the opportunity at the meeting to make representations to the Reporter on the identification of the issues, the proposed method of procedure and the arrangements for site inspections. The Reporter will make the final decision on what procedures are to be adopted, choosing an appropriate procedure so that, for each issue, the evidence of the parties can be properly considered, and an adequately informed report can be submitted to Ministers. The choice of any given procedure for an issue does not indicate that that issue is necessarily considered by the report to be more or less important than the other issues.

The Reporter will issue a note of the pre-inquiry meeting that records the matters discussed and the Reporter’s decision on the procedure to be adopted. The note will set out which topics are to be dealt with by which form of procedures.

The note will specify the dates by which further evidence and documentation must be lodged, all in accordance with the fixed timeline for the case. Where accompanied site inspections are to be undertaken, the note will also record this.

Parties will be asked to notify DPEA within 14 days of receiving the note of the pre-inquiry meeting whether or not they intend to participate in the further procedures to be followed and, if so, in which they intend to participate.

The public inquiry will then be conducted in accordance with the fixed timescale for the case. Only in very exceptional circumstances will this be departed from. The availability of parties’ witnesses or their legal or expert advisers will not be accepted as a basis for departing from the fixed timeline for the inquiry procedures.

Choice of Public Inquiry Procedures

There are no prescribed rules for the conduct of inquiries held under schedule 8 to the Act. The procedure to be followed at inquiry is a matter for the discretion of the Reporter. The objective is to conduct proceedings in a fair, transparent and efficient manner.

Ministers expect all parties to assist Reporters and case officers in preparing for and conducting inquiries. They should make early and full disclosure of their case in a structured, consistent and comprehensive manner; observe timescales fixed by the Reporter; co-operate with one another and adopt a constructive approach to narrowing the range of issues to be considered at inquiry; conduct their case in a manner aimed to promote efficiency and best use of resources; and focus their evidence on the critical issues.

The Reporter may adopt a choice of different procedures depending on the issues raised. The procedural options open to the Reporter as follows:

No further procedure

The Reporter may consider that some issues require no further procedure, for example where it is agreed that no significant effects would arise or where the Reporter is satisfied that they sufficiently understand the evidence already before them.

Further written submissions

In some issues where further procedures are required, the Reporter may reach the view that further written submissions will suffice. Although this would be decided on a case-by-case basis, examples of where further written submissions might be required may include where:

• an important issue has been only partially or incompletely addressed and clarification is required;
• parties’ cases have not been sufficiently well expressed, and a clearer explanation is needed;
• the Planning Authority or a key agency has not submitted a response and the Reporter considers that it is essential to obtain it.

Hearing sessions

A hearing session normally takes the form of a structured discussion between the parties on the topics identified by the Reporter. The Reporter leads the discussion, and no formal examination or cross examination is permitted. Hearing statements may be required in advance. An agenda for the session is prepared by the Reporter and circulated in advance. Parties are given an opportunity to explain their position, elaborate areas of concern, put their point of view, and ask relevant questions informally through the Reporter, subject only to discussion being conducted in an orderly manner. The Reporter will seek contributions from parties at the relevant time and will indicate when they consider that they have sufficient information on each topic. Legal representation is not essential, although Applicants, planning authorities and consultees are usually legally represented.

Examples of where a hearing may be required may include where:

• the Reporter needs to enhance their understanding of an important matter by asking questions, seeking explanations of evidence or opinions;
• where there is some dispute but where cross examination of professional or other witnesses is not considered by the Reporter to be necessary;
• where the evidence to be examined is largely a matter of opinion rather than settled fact, such as design or policy issues or impact on the surroundings, and which could benefit from being explored through discussion led by the Reporter.

Another approach to hearing session has sometimes proven to be useful when there are a number of local community members who wish to express their views on a proposal, but in a less formal setting than the normally structured discussion of a hearing session. In such ‘community hearings’, local community members would be given the chance to speak in turn, with the Applicant usually given a more limited opportunity to ask questions or to make points of clarification.

Inquiry session with formal cross-examination

Witnesses giving evidence at an inquiry session submit a written statement of their evidence followed by a precognition in advance. Witnesses can be legally represented, but this is not essential. Witnesses give their evidence in chief, and then will be cross-examined by the opposing party. They can then be re-examined by their own representative. Inquiry sessions are the most formal of the range of procedures to be adopted.

An inquiry session may be necessary where:

• there is a dispute on complex or technical matters and the evidence needs to be thoroughly tested by cross-examination to enable the Reporter to reach clear conclusions on a matter which will be important to Ministers’ decision;
• essential facts are in dispute and cross-examination is considered by the Reporter to be necessary to clarify matters;
• where there is a conflict of professional opinion or evidence on an important matter and the Reporter would find it helpful for that evidence to be tested by cross examination.

Site inspections

The purpose of a site inspection is to give the Reporter an opportunity to observe the application site and surrounding area and how it relates to the issues raised by the application. Site inspections may be accompanied or unaccompanied, depending on the requirements of each case. Those attending any accompanied site inspections are not allowed to discuss the merits of the case with the Reporter, although they may point out particular physical features or be asked to respond to factual questions about the site.

Document exchange

The DPEA case officer will assist with the co-ordination and early assembly of all Relevant documents to each party's case be referenced in evidence.

The Reporter will raise this matter at the pre-inquiry meeting and promote use of the DPEA core documents library to enable efficient electronic document exchange. Parties should only submit documents which are essential to their case. This helps to facilitate a more efficient and proportionate inquiry process.

The fixed 52 week timeline for the application will confirm the date by which documents must be lodged. The Applicant, the Planning Authority and other parties participating in hearing or inquiry sessions should endeavour to agree a list of core documents and should agree who will lodge what, in order to avoid unnecessary duplication.

If a party attempts to lodge additional material outwith the exchanges allowed for by the Reporter, the Reporter will require the party to justify why it was not submitted on time, and why it is essential to admit it at a later stage, and seek the views of other parties before deciding whether to admit it. The default position will be that late documents will not be accepted, unless exceptional circumstances apply.

All relevant papers associated with the case (including the EIA Report where relevant) will be placed on deposit by the Planning Authority, for inspection by members of the public, at a local public building. The Applicant and Planning Authority should co-operate in supplying this information.

Material provided for the purpose of hearing or inquiry sessions, or in response to requests for information by the Reporter, should also be placed on deposit so an additional copy of this should be sent to the Planning Authority. The Planning Authority should bring the deposit set of documents to the hearing and inquiry sessions before they begin so that members of the public have access to them. Alternatively, and where agreed with the Reporter, an electronic device can be used to store and provide access to the deposit set of documents.

Each party taking part in an inquiry or hearing session will be encouraged to use the DPEA file sharing facility. DPEA will provide detailed guidance for parties on the arrangements for document exchange following the pre-examination meeting.

In order to comply with data protection principles DPEA will remove all personal telephone numbers, email addresses and signatures before publishing documents to the website. If parties do not want a document they submit to be published on the website (for example if it is commercially sensitive), they must explain the reason for this when submitting the document. Anonymous or confidential representations are unlikely to be given the same weight as other representations.

DPEA’s aim is to ensure that anything that is liable to cause offence is not displayed. However, individuals must take personal responsibility for the comments that they make and submit.

Summaries of case and closing submissions

In reporting to the Scottish Ministers, Reporters take care to provide a balanced view of the case. This involves rehearsing the views of the respective parties and recognising that Ministers may arrive at a different conclusion than that recommended by the appointed Reporter. However, the parties’ cases can prove difficult and confusing to summarise drawing on material from a range of documents, statements, precognitions and closing submissions. It is our view that parties’ cases can most efficiently be summarised by parties themselves.

Consequently, it is intended that the Reporter, through the pre-inquiry meeting, will agree an approach to submission of a summary of case by each party to the inquiry. This would essentially be the parties’ voice to Ministers.

Closing submissions must not introduce any new evidence. Parties to the inquiry will be invited to submit their summary of case and closing submissions in writing after the close of the final hearing or inquiry session.

Report of the public inquiry

After the submission of the final closing submissions the Reporter will proceed to draft their report of the public inquiry for submission to Ministers. This report will be submitted to the Energy Consents Unit no later than week 46 after the date of the application alongside a completed draft determination framework letter.

Expenses

The Local Government (Scotland) Act 1973 (section 210) enables Scottish Ministers to make awards to any party in relation to expenses they have incurred, to be paid by another party. Parties will normally be expected to pay their own expenses. An Applicant will not be awarded expenses simply because consent is granted, nor will a Planning Authority or objector be awarded expenses simply on the grounds that the application is refused. Awards of expenses will only be made in cases where a party has, in the opinion of the Reporter, acted unreasonably and, as a result, has caused unnecessary expense for the party making the claim.

In cases where a hearing session or inquiry session is held, an application for an award of expenses should be made before the end of the hearing session or inquiry session.

An award of expenses can be made only in relation to the costs incurred in participating in the proceedings. It cannot take the form of a compensation payment for matters such as loss of business during the proceedings, reputational damage or any other impacts not directly linked to the proceedings themselves.

An award of expenses will not necessarily mean that a claimant will receive the full cost of the proceedings. Any award made will relate to the amount of the expenses that have been incurred as a result of the unreasonable behaviour. While this might sometimes mean the full cost of the inquiry is awarded, in most cases it will lead to a partial award. Where a partial award is made, the extent of the award will be clearly explained. The Reporter will make a separate report to the Scottish Ministers in relation to any claims for expenses.