Examining applications
Section 41 – Examining authority to examine applications
112.Section 41 provides that an examining authority has the function of examining an application in respect of which it has been appointed.
Section 42 – Choice of inquiry, hearing or written procedure
113.Section 42 requires the examining authority to determine how each application it examines is to be examined before the end of a period specified in regulations.
114.The examining authority must determine whether the application is to be examined on the basis of the application and any written representations (if any) about the application at a hearing, at a local inquiry, or by any combination of these procedures. The examining authority must provide for examination of the application to include a hearing, unless the determination provides for a local inquiry or the examining authority considers a hearing would not assist the examination.
115.The examining authority may vary its determination as to how an application is to be examined at any time before the application being examined is decided.
116.The examining authority is required to notify any person or person of a description specified in regulations of its determination under subsection (1). The examining authority must also notify persons specified in regulations if it varies a determination made under subsection (1).
117.This section also requires the Welsh Ministers to publish a document setting out the criteria to be applied by an examining authority in determining how an application is to be examined.
118.The functions of an examining authority are subject to any provision made by regulations under section 43 or 44.
Section 43 – Open-floor hearings
119.Section 43 provides the Welsh Ministers with a power to make regulations to require an examining authority to cause an open-floor hearing to be held in connection with the examination of an application under Part 4. And the regulations may make the requirement to hold an open-floor hearing subject to conditions. In this section an “open-floor hearing” is where each interested party is entitled to make oral representations about the application, subject to the examining authority’s powers of control over the conduct of the hearing.
Section 44 – Examination procedure
120.Section 44 provides the Welsh Ministers with a power to make regulations about the procedure to be followed in connection with the examination of an application under Part 4.
Section 45 – Power to enter land in connection with examination
121.Section 45 provides that a person authorised in writing by the Welsh Ministers may, at a reasonable time, enter land in Wales to inspect the land in connection with the examination of an application.
122.Subsection (2) sets out the conditions that apply where a person is entering land. Subsection (2)(e) allows the Welsh Ministers to set other conditions for the entering of land in the giving of their authorisation.
123.A person commits an offence if they intentionally obstruct a person exercising the power to enter land and is liable on summary conviction to a fine.
Section 46 – Power to enter Crown land in connection with examination
124.Section 46 provides that a person must not enter Crown land in connection with the examination of an application, unless they have the permission of a person appearing to be entitled to give it or of the appropriate Crown authority (see section 134 for the definition of “appropriate Crown authority”).
125.This section also provides that specified subsections of section 45 do not apply in relation to Crown land.
Section 47 – Power of examining authority to hold local inquiry
126.Section 47 allows an examining authority to hold a local inquiry for the purposes of examining an application.
127.The examining authority may, by summons, require any person to attend an inquiry in accordance with the requirements specified in the summons and to give evidence, and require any person to produce any documents which relate to any matter in question at the inquiry.
128.The summons must specify the time and place at which the person is required to attend. However, the person is not required to attend unless their expenses for attending are paid or offered to them.
129.Where a person refuses or deliberately fails to comply with a requirement of a summons or deliberately alters, suppresses, conceals or destroys a document they are required to produce, they will have committed an offence and can be tried in the Magistrates Court or in the Crown Court. If found guilty, they will be liable to an unlimited fine.
130.The examining authority holding the inquiry may also administer oaths and take evidence on oath.
Section 48 – Access to evidence at inquiry
131.Where a local inquiry is held, this section requires that all oral evidence is to be heard in public and that all documentary evidence is to be open to the public for inspection.
132.But the Welsh Ministers or the Secretary of State (a “ministerial authority”) may direct that oral evidence is to be heard and documents are to be inspected by specific persons only (and not the public) if they are satisfied that public disclosure of evidence would likely result in the disclosure of information about national security or measures taken (or to be taken) to ensure the security of any land or property and that the public disclosure of information would be against the national interest.
133.If such a direction is being considered, the Counsel General may appoint a person (“
134.This section also provides the Welsh Ministers with a power to make regulations about the procedure to be followed by a ministerial authority before a direction is given where there is an appointed representative and about the functions of an appointed representative.
Section 49 – Payment of appointed representative where access to evidence restricted
135.Section 49 makes provision about paying the appointed representative, whether or not an inquiry takes place.
Section 50 – Assessors
136.Section 50 allows the examining authority or the Welsh Ministers to appoint an assessor to assist in the examination of an application. An assessor might assist with examining a particular specialist matter or specific topic. A person may only be appointed as an assessor if the examining authority or the Welsh Ministers consider the person has suitable expertise to assist the examining authority.
Section 51 – Legal assistance
137.Section 51 allows the examining authority or the Welsh Ministers to appoint a barrister or solicitor to provide legal advice and assistance to the examining authority in connection with the examination under Part 4 of the Act.
138.Where a barrister or solicitor is appointed they may, for example, assist the examining authority by carrying out oral questioning of a person making representations at a hearing or inquiry on behalf of the examining authority.
Section 52 – Reports by examining authority
139.Where the Welsh Ministers have the function of deciding an application, this section requires the examining authority to make a report to the Welsh Ministers. The report must set out the examining authority’s findings and conclusions in respect of the application and its recommendations as to the decision to be made on the application.
Section 53 – Power to direct further examination
140.Section 53 allows the Welsh Ministers to direct the examining authority to re-open its examination of an application following receipt of a report by the examining authority.
141.Where an examination is re-opened, it must be undertaken in accordance with any requirements specified in the direction given under subsection (1). The direction must include a statement explaining why it is given and be published as soon as reasonably practicable after it is given.
142.The duty of an examining authority in section 52 applies to any further examination required by virtue of a direction under this section.
Section 54 – Orders relating to costs of parties on examination proceedings
143.Section 54 allows the Welsh Ministers to make orders about the costs of the applicant, a planning authority, the Welsh Ministers themselves or any other party to examination proceedings (which may include costs in respect of a hearing or inquiry that does not take place) and about the person(s) who must pay these costs.
144.Subsection (4) sets out how costs payable by virtue of such an order are recoverable.
