INQUIRY INTO PROPOSED IRONSTONE WORKING (Hansard, 13 April 1961)

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)

The noble Lord gave a number of reasons why the circumstances of this inquiry made it desirable in his opinion that the matter should422WA be referred to the Council on Tribunals for their consideration.

The first was a suggestion made at the inquiry that my right honourable friend the Minister of Housing and Local Government was under pressure to grant planning permission because Richard Thomas & Baldwin (Mineral Recovery) Limited had already committed themselves to considerable expenditure in advance of the Minister's decision. There can be no question of the inspector's or the Minister's judgment being influenced by the company's admission that expenditure was incurred on plant partly designed for Oxfordshire ore before a decision was reached on their applications; or by the statement made by counsel for the applicants that the Government have a financial interest in the parent company. The developer who embarks on expenditure in such circumstances must be assumed to be aware of the risk he is running, and developers often refer to commitments of this sort, particularly in minerals cases. On such matters the manner in which they present their case at the inquiry is for the developers themselves to decide, but no weight is given to arguments of this sort in reaching a decision.

The noble Lord went on to say that vital information necessary for the proper conduct of the objectors' case was withheld by the applicants, the parent company and the Iron and Steel Board.

When application is made for planning permission, it is clearly in the applicant's interest to support his application by making available as much relevant information as possible. But it cannot be held against him if he takes the view that there is a limit to the information which he is prepared to give. When an application is referred to the Minister for decision under Section 15 of the Town and Country Planning Act, 1947, the Minister can only elicit from the applicant before the inquiry information which he is willing to supply. The applicant cannot be required before the inquiry opens to elaborate his description of the proposed development by explanation of the grounds on which the application is based. This will be his task at the inquiry itself, and the view taken by the inspector will largely depend upon the applicant's ability and willingness to justify his proposals.

423WA

Over a year before the Banbury inquiry, the Minister suggested to the applicants that the inquiry might be shortened if they were to prepare a written statement on a number of points which he would expect them to deal with in presenting their case. This statement would be made available to the inspector and the Oxfordshire County Council before the inquiry. The company accepted this suggestion and provided the Council with information on the points mentioned by the Minister. But they went further, and in the course of prolonged correspondence with the Council both they and the Iron and Steel Board supplied a good deal more information about the proposed development. This procedure was exceptional and depended upon the goodwill of the applicants and the Board. Even so, the Council were not satisfied that sufficient information was supplied. They took the view at one time that the full facts of the case should be made available before they would agree a definite date for the inquiry. In the event a date was arranged, but the Council said that they were still lacking a satisfactory plan showing the detailed programme of working of the proposed development over the first 35 years and particulars of the comparative costs of using Oxfordshire and imported ore.

In the course of the inquiry the company were instructed by the inspector to provide plans showing their programme of working over the first ten years and other particulars of their proposals. This extra information was the subject of lengthy cross-examination. So far as the applicants may be said to have failed in other aspects to support their generalisations at the inquiry by detailed evidence, this should be regarded not as depriving their opponents of an opportunity to attack them in cross-examination, but as reducing their own chances of getting planning permission. In short, no advantage was gained by the applicants from not producing the information.

The question was raised in the course of the debate whether, since the Minister had asked local planning authorities in appeal cases to provide the objector with the fullest possible information to enable him to conduct his case, he ought not himself to furnish such information to 424WA objectors in a case which (like this) he had directed should be referred to him.

This appears to be an argument derived from the advice given to local planning authorities by the Minister in Circular No. 9/58, but it is not relevant in a case of this kind where the Minister has no information which he can disclose. There is an obvious distinction between appeal proceedings and the procedure under Section 15 of the Town and Country Planning Act, 1947, applicable to the applications by Richard Thomas and Baldwin Ltd. Reference of the applications to the Minister under this section was not preceded by a decision, and there were, therefore, no reasons for a previous decision on which the party giving it could be expected to elaborate. Paragraph 10 of Circular No. 9/58 does, however, suggest that where Section 15 powers are used, the Minister should list the main points which he would expect the applicants to deal with at the inquiry, and that was done in this case.

The noble Lord referred to the fact that the Minister had rejected the County Council's suggestion of a meeting before the inquiry as part of their contention that information had been withheld. This meeting was to be attended by the Department's officials, by the inspector and by representatives of both parties, and its main purpose would be to say that further information should be made available. My right honourable friend took the view that since a person had already been appointed to hold the inquiry a meeting at that stage would not only interfere with his initiative but might throw doubt on his independence, and that it was for the inspector to decide in the light of the evidence submitted at the inquiry whether further information should be obtained. It was made clear that further information could if necessary be obtained by the inspector in the course of the inquiry.

At the opening of the inquiry counsel for the applicants said that since Richard Thomas and Baldwin were carrying out the policy of the Iron and Steel Board, the applicants did not intend to call any witnesses or produce any evidence for cross-examination on the policy of using home-produced ore. This was opposed by the County Council, who suggested 425WA that Sir Robert Shone, the Executive Member of the Board, should be directed by the inspector to attend. The inspector took the view at that stage that cross-examination of the official made available by the Board should proceed as far as possible and that he would decide later whether to exercise his powers to summon another witness. In the event the suggestion that he should do so was not pursued. Moreover, although it was admitted by the applicants under cross-examination that witnesses from the parent company who were not present might be able to help on questions of cost and policy, the objectors eventually decided, in view of the course of events at the inquiry, not to request the inspector to call for further evidence.

I agree with my right honourable friend that it is for the applicants to choose their witnesses and present their case as they think fit. The inspector cannot be expected to use his powers to summon witnesses unless either party is withholding information which is essential for the Minister's decision or to an extent which makes it impossible for their opponents properly to develop their case. Neither of these conditions obtained at the Banbury inquiry. The inspector concluded that sufficient information had been made available to enable him to make a recommendation, and the County Council claimed that the applicants' case was destroyed by its own inadequacy and did not press for further information to be obtained.

In these circumstances I am unable to accept the suggestion that the procedure followed at the inquiry was defective because the inspector did not exercise his powers under the Local Government Act, 1933, to summon further witnesses.

The noble Lord referred to the claim made by counsel for the applicants that the official of the Iron and Steel 426WA Board called to give evidence at the inquiry was entitled to protection under the Minister's Circular No. 9/58. My right honourable friend has asked me to make it clear that the does not accept this claim, but it does not appear that the course of the inquiry was impeded by it and it was admitted by counsel for the County Council that the Board's witness had been fair and helpful within the limits of his knowledge and ability.

As regards the applicants' offer to produce confidential figures of costs after the inquiry, I need hardly say that the Minister would certainly not take account of new evidence in reaching his decision unless an opportunity were afforded to the local planning authority for considering and commenting on it. On the question whether such information ought to have been made available at the inquiry, the noble Lord will appreciate that it must be for the applicants to weigh the risk of disclosing information to their competitors against the advantage to be obtained from its disclosure. This is a frequent problem in cases of this kind.

In my view the procedure followed at this inquiry was in full accordance with the policy adopted by the Government following on the recommendations made by the Franks Committee, and I do not consider that any circumstances have been disclosed which would justify a reference to the Council on Tribunals.