An Bord Pleanála

Planning and Developments Act 2000, as amended Guidelines on Procedures at Oral Hearings

1. Main Legal Provisions re Oral Hearings

(1) The main legal provisions are contained in-

• sections 134, 134A, 135 and 218 of the Planning and Development Act 2000, as amended by sections 22 and 23 of the Planning and Development (Strategic Infrastructure) Act 2006 and by section 26 of the Environment (Miscellaneous Provisions) Act 2011 and

• articles 67, 76, 77 and 78 of the Planning and Development Regulations 2001, as amended by articles 12 and 16 of the Planning and Development Regulations 2006.

Other relevant provisions are contained in sections 138(3), 252(8) and 156(1) and (9) of the 2000 Act, as amended by the 2006 Act and the Planning and Development (Amendment) Act 2010.

(The procedural provisions in section 134 relate only to oral hearings of appeals, referrals and section 34E (7th Schedule) strategic infrastructure applications).

(2) Section 135 of the 2000 Planning Act, as amended, provides that the Inspector[1] conducting an oral hearing –

“shall have discretion as to the conduct of the hearing and shall conduct the hearing expeditiously and without undue formality”. Subject to these provisions, the Inspector –

(a) shall decide the order of appearances of persons at the hearing,

(b) shall permit any person to appear in person or to be represented by another person,

(c) may limit the time within which each person may make points or arguments (including arguments in refutation of arguments made by others at the hearing) or question the evidence of others at the hearing,

(d) may refuse to allow the making of a point or argument if -

(i) the point or a summary of the argument has not been submitted in advance (to the Inspector) in accordance with a requirement made pursuant to a direction given (by the Board),

(ii) the point or argument is not relevant to the subject matter of the hearing, or

(iii) if it would involve undue repetition of the same point or argument.

(3) Section 26 of the Environment (Miscellaneous Provisions) Act 2011 amended section 135 of the 2000 Act to provide that in certain circumstances the Board can direct a “limited agenda” oral hearing where only specified matters relating to a case are discussed at the oral hearing. Relevant persons will be notified of any such direction in advance of the commencement of the oral hearing. In such cases the Inspector may only allow other matters to be raised in limited circumstances.

(4) Under article 76 of the 2001 Regulations, as amended, “relevant persons” are persons who are parties to an appeal, referral or other case, e.g. the appellant, applicant and planning authority in a planning appeal, an applicant for strategic infrastructure development and any other persons who have made submissions or observations to the Board in accordance with the Planning Acts or Regulations.

2. Requirement to hold an Oral Hearing:

The Board has discretion to hold an oral hearing of any case e.g. an appeal, referral or an application for permission or approval of strategic infrastructure development. In the case of strategic infrastructure development, it will normally direct the holding of an oral hearing, unless the application can be readily assessed by way of written submissions. In appeals and other cases, it will normally grant an oral hearing only where this will assist its understanding of a complex case or where significant national or local issues

are involved. The hearing is designed to allow further necessary elaboration, discussion and examination of relevant issues over and above the written submissions.

3. Who may attend the Oral Hearing?

Any member of the public.

4. Non-Attendance of any Party or other Person:

An oral hearing may proceed notwithstanding that any party or other relevant person has failed to attend or leaves the hearing.

5. Who may speak/make Submissions at the Oral Hearing?

(1) Parties and other persons who have made submissions in relation to the appeal, referral or application and/or other persons representing them, and

(2) Persons other than the above, where the Inspector considers this appropriate in the interests of justice and subject to payment of the appropriate fee for making submissions or observations.

The Inspector will assist inexperienced participants who are appearing “in person”.

6. Public Representatives:

Public representative wishing to speak at the hearing will generally be facilitated at the discretion of the Inspector. A public representative may either –

(a) represent persons involved in the appeal, referral or application without payment of a fee, or

(b) make a separate submission at the hearing, subject to he/she having paid a fee in accordance with the statutory provisions.

The point during the hearing when public representatives may make a submission or be questioned is at the discretion of the Inspector.

7. Conduct of the Hearing:

In law, the Inspector has discretion as to the conduct of the oral hearing and will exercise this discretion with courtesy and reasonableness. In particular, the Inspector is obliged to conduct the hearing expeditiously and without undue formality.

For small attendance hearings, the proceedings can be informal. In larger attendance hearings, a greater degree of formality may be necessary. In such cases, the order of speakers is determined by the Inspector, and this may be notified to the parties in advance of the hearing by means of a proposed agenda. Speakers may be asked to stand in order that they may be identified and heard. Where speakers are to be subject to questioning, this will be in a manner determined by the Inspector.

Whilst giving participants adequate time to make their points, the Inspector, on behalf of all concerned, will be anxious to obtain the necessary level of information and views, without undue waste of time. The Inspector may question the relevance of certain lines of evidence or limit arguments or submissions in relation to particular topics. Where a significant number of observers or participants are likely to express similar views, the Inspector may request that they combine to be represented by one or more spokespersons. The Inspector may refuse to hear evidence where it is not relevant to the hearing or to avoid undue repetition by the same or other witnesses. See also 1(2) above.

The Inspector may, at his/her discretion, decide that it is appropriate to allow submissions to be made at the hearing involving issues which have not been raised already in written submissions. The Inspector may also raise such issues. The Inspector has powers to hear evidence under oath but this is rarely used.

An Inspector may adjourn an oral hearing. He/she may do so where significant submissions have been made which require time to be assimilated. The Inspector however will be anxious that the oral hearing should be completed in an expeditious manner and in a reasonable time scale.

8. Standards of Behaviour / Offences

Proper standards of behaviour are expected from all persons attending oral hearings. This will include maintaining a polite and courteous approach at all times. The ruling of the Inspector in relation to the conduct of the hearing, including the order of speakers, tone and manner of questioning of witnesses, time allowed to speak, interjections, etc must be accepted by all participants.

It is an offence under section 135(7)(b) of the 2000 Planning Act, by act or omission, to obstruct or hinder the Inspector in the performance of his/her duties and there are severe penalties laid down for persons convicted of such offences. Where the obstruction or hindrance causes a delay in the oral hearing, the courts may, in addition, order a person convicted on indictment, to pay to the Board or any party or person who appeared at the oral hearing the additional costs arising from the delays concerned. The courts may also order costs to be paid by anybody with whose consent, connivance or approval the offence was committed. The Inspector may, in accordance with section 252(8) of the Act, request a Garda to assist him/her in the exercise of his/her duties, and the Garda shall comply with the request.

Generally, oral hearings are held in a businesslike manner and the standard of behaviour from participants is professional. This assists all concerned in having the hearing conducted in an effective and efficient manner. Where, however, a person does not desist from hindering or obstructing the hearing following a warning, the Inspector will exercise his/her power under section 252(8) of the 2000 Planning Act and have the person removed from the hearing. In addition, the Board will consider initiating action under 135(7)(b) of the Act with a view to having the person prosecuted.

9. Order of Speakers/Submissions:

(1) In appeals and referrals, inopening the hearing and taking note of the appearance of relevant persons, the Inspector may give a brief summary of the development proposed, the planning authority and the observations received. The Inspector will also indicate the order of presentations and consider any particular requests concerning this order.

In applicant (first party) appeals, the applicant will generally be heard first, then the planning authority, and then other appellants and observers, if any.

Where appeals involve “third parties” the order of presentations may differ, at the discretion of the Inspector, the common alternatives being:-

▪ applicant, planning authority, third party appellants and observers,

▪ applicant, third party appellants and observers, planning authority, or

▪ third party appellants, applicant, planning authority and observers.

The Inspector may, irrespective of the general order of appearance, ask the applicant to start the proceedings with a summary of the facts and display of drawings relating to the development in order to facilitate the understanding of the development proposed.

On conclusion of all evidence and of questioning of witnesses, parties will be permitted a short summing up, usually in reverse order to their original submissions. The summing up should not raise any new points, issues or new legal arguments.

(2) In the case of oral hearings in relation to strategic infrastructure development, the applicant will generally be heard first, followed by the planning authority/authorities, prescribed/invited bodies and other observers.

(3) The Inspector may vary the above order of presentation in any particular case. Questioning of certain speakers, particularly expert witnesses, may be allowed immediately after such speakers have given their evidence. However, the Inspector may determine that such questioning should be left to the end of the full submission of the relevant party or, alternatively, until after all the parties, and observers (if any) have presented their submissions, on the basis that possible questions are frequently answered during the submissions of other witnesses.

In complex cases, the Inspector may determine that the presentations can be subdivided into a number of identified separate issues or modules and, in such cases, the above procedure would apply to each separate issue or module in turn with concluding statements being allowed at the end of the overall hearing.

10. Who may Question Witnesses and How?

The Inspector will normally allow parties to an appeal toask questions directly of the presenters of evidence of the other parties. Observers would not normally question witnesses directly, but occasionally, where the Inspector deems it appropriate, a group of observers may be allowed to question witnesses directly through one or two agreed representatives, or alternatively their questions may be asked by the Inspector.

The degree and intensity of questioning will be controlled by the Inspector to elicit an acceptable level of information and views without harassment of the witness or inappropriate questions being asked.

Expert witnesses giving technical evidence should indicate their professional qualifications and relevant experience. However, the Inspector will not permit undue investigation of the background of any witness.

Cross-questioning should not be used by participants to make statements of their case, but is intended to allow the participants to examine the relevance of matters raised in the submissions.

11. Submissions of Documents/Evidence

All relevant documentation submitted to the Board in relation to the application, appeal or other case (with the exception of documentation already in the public domain – i.e. documents re the planning application to the planning authority) will have been made available for inspection and purchase at the offices of the planning or local authority and the Board at least 7 days prior to the opening of the oral hearing. In addition, this documentation will also be available for inspection (but not for purchase) at the oral hearing for its duration. As the written submissions from all relevant persons are already on file and available for inspection, these should be “taken as read” and need not be resubmitted except possibly in the form of a brief synopsis to lay the foundation for the submission of elaborating details and views.

Where it is proposed to submit written statements of evidence or other documentation at the hearing, two copies should be submitted to the Board, and sufficient other copies should be made available at the hearing that all the parties and observers in attendance are provided with a copy. Such statements of evidence need not be provided in advance of the presentation by the persons concerned to the hearing, unless requested to do so by the Inspector, but should be made available when presenting information at the hearing. It is a matter for the parties to make arrangements to have such copies provided, and the Board is not in a position to provide such copies. Where documents, etc are submitted at the hearing, one of the copies will be placed

with the other documentation available for public inspection at the hearing. If a presentation is made in Powerpoint format, hard copy versions of the presentation should also be submitted.

Under Section 135 (2A), the Board may require persons intending to appear at the oral hearing to submit, in advance, the points or summary of the argument they propose to make at the hearing or, in default, to refuse to allow the person concerned to make the point or argument.

If the Inspector considers it appropriate, he/she may invite, or otherwise accept provisionally, modifications of the proposed development provided they do not vary the proposal to a material extent. Where modifications are accepted provisionally by the Inspector for future consideration, the acceptance is on the basis that it is without prejudice to the question of eventual acceptance by the Board and subject to ensuring that the other parties have reasonable time to examine and comment on the modifications.

The Inspector may not accept information which he/she is requested to keep confidential from other parties. Persons are not permitted to speak to the Inspector in relation to the case on a one-to-one basis or to make arrangements to give him/her further information other than at the oral hearing.

12. Discussion of Possible Conditions:

The Inspector may request the persons attending to make submissions on conditions which might be attached to any possible permission or approval. Such a request is totally without prejudice to the Inspector’s recommendation to the Board or the Board’s decision.

13. Consideration of Environmental Issues:

The Environmental Protection Agency (EPA) is the body charged primarily with controlling emissions in Ireland. The Board is required, when considering an application for planning permission or approval for development which comprises or is for the purpose of an activity for which an integrated pollution control licence or a waste licence is required from the EPA, to take into consideration that the control of emissions arising from the activity is a function of the EPA. In such cases, the Board is not permitted to attach conditions to a grant of planning permission or approval for the purposes of controlling emissions from the operation of the activity or related to or following the cessation of the operation of the activity.

However, the Board is required to take an overall view on the acceptability of the development and, notwithstanding the licensing of an activity under the EPA or Waste Acts, it will consider the totality of the environmental issues involved in the context of the proper planning and sustainable development of the area, and may refuse planning permission or approval on environmental grounds. The Inspector may limit or curtail the submissions and discussion on ‘emissions’ to take account of the legislative provisions referred to in this part of the Guidelines.

14. Recording of the Proceedings:

Having regard to the legal requirements in section 135 of the 2000 Planning Act that the Inspector shall conduct the hearing “without undue formality”, private video recording, sound recording and recording of proceedings by a professional stenographer will be prohibited during the hearing. In oral hearing cases involving strategic infrastructure development or large or complex appeals, the Board may arrange for the recording by a professional stenographer or by audio tape/CD. Such recording is to facilitate and aid the Inspector, and the Board, and will not be made available to the parties during the hearing. In certain oral hearings, the Board may arrange a public address facility.

15. Inspector’s Report and Board’s Decision:

After the hearing, the Inspector will make a report (including recommendation) to the Board who will decide the case. While the Board is obliged to have regard to the report and recommendation of its Inspector, it is not obliged to accept that recommendation. Where it does not accept the recommendation as regards a grant or refusal, it will state the main reasons why it did not do so.

Copies of the Inspector’s report and the Board’s direction and decision and all other documents on the file are made available for public inspection and purchase, at reasonable cost, at the Board’s offices, three working days after the Board’s decision is made. Where a recording is made of the hearing, this will also be made available at that time.

The Inspector’s report, the Board’s direction and decision on the case are also published on the Board’s website

Note: notwithstanding these Guidelines in relation to the conduct of the oral hearing, the Inspector may use his/her discretion to vary or alter the above provisions so that the hearing is carried out expeditiously and in a fair and orderly manner.

[1] In this document, the term ‘Inspector’ is a reference to the person that has been appointed by the Board to conduct the oral hearing.

Revised June 2012

[1] In this document, the term ‘Inspector’ is a reference to the person that has been appointed by the Board to conduct the oral hearing.

Last modified: 13/06/2012