I was until recently Chairman of the British Driving Society Rights of Way Committee and a member of the Rights of Way Review Committee, and I am also still a member of the British Horse Society Rights of Way Advisory Group and the BHS Hampshire ROW Committee. The British Driving Society is the statutory consultee on ROW matters with regard to the driven horse. This present submission is a personal one; I have no doubt the BDS and the BHS will be making corporate representations to you on behalf of their members.

  I have represented horse drivers at four Public Inquiries into RUPP reclassification in Hampshire over the past two and a half years, and have made representations to the Planning Inspectorate both directly and through the ROWRC on certain matters of concern with regard to the performance of Public Inquiries, including the provision of an illustration of an Inquiry where the decision of the Inspector was in my view unreasonable, based on his assessment of the evidence.

  The specific problem that horse drawn vehicle users currently face is that the only off road routes available to us are RUPPs prior to reclassification and byways open to all traffic (BOATs). As the Sub-committee will be only too well aware, the whole subject of BOATs and RUPPs is a highly contentious one, with strongly held views by motor vehicle users on the one hand, and anti-vehicle pressure groups on the other. Although horse drawn vehicles are the traditional users of these routes over many hundreds of years, these days we are a minority, and our interersts get squeezed between these two other factions. This has the unfortunate effect of making every byway or RUPP Inquiry a fiercely contested battleground, and puts great pressure on the Inspector who has to decide these issues. It often seems that the Inspector is put in the position of having to make decisions that the legislature lack the political will to make, and this can lead to the appearance of bias against vehicular usage, even when an objective view of the balance of probabilities would indicate otherwise. The horse drawn vehicle users are the innocent victims of this process, and as a result find the number of routes available to them reduced with ever busier general purpose roads the only alternative.

  To address our concerns I have over the last two years put forward on behalf of horse drawn vehicle drivers the following suggestions to the Inspectorate and/or the Countryside Commission with regard to Inquiry procedures:

1.  The weighing of evidence and objective reporting of the reasons for decisions

  The basis of decisions in rights of way Inquiries is the civil burden of proof—ie the balance of probabilities test. This has been expressed as being a minimum of 51 per cent to 49 per cent, and the Inspectors task is to assess the evidence presented to him to establish this balance of probabilities. This clearly calls for meticulous technique in understanding and weighting the evidence presented. At the end of the process it is also essential to all parties that it is absoulutely clear how the Inspector has assessed all the evidence he has heard. It is quite common that the decision letter ignores important pieces of evidence, or misunderstands its significance. This of course must to some extent be accepted as a human limitation of a single Inspector sitting alone with no reporter available, and this is addressed in section 3 below.

  However, the particular concern that we have raised is the tendency for an Inspector to look at each piece of evidence and decide in each case whether to accept or reject it. If he rejects it then it does not feature in his final decision. This we believe is an incorrect approach. In the nature of the subject where old historical documents are being considered it is the combined effect of a number of pieces of evidence which is important, and some Inspectors seem incapable of handling this concept.

  This problem would be considerably reduced if the Inspector were to be required to show in his decision letter what weight he has given to each piece of evidence and how it has gone into the balance of probabilities assessment. The present formula of words in which the Inspector states he has taken into account all the evidence presented in arriving at his decision appears to be there to protect him against any subsequent judicial review rather than to assure the participants that he has done a thorough job.

2.  The Nature of Rights of Way Public Inquiries

  As already indicated ROW PIs can become very fierce battlegrounds, and can be intimidating to the ordinary member of the public, especially when associated with behind the scenes pressuring of opponents indulged in by some organisations. In such an environment there is a real danger that justice will not be done. It is quite normal that local residents will not appear to give evidence where one of the parties to the Inquiry is the local landowner, who may well be chairman of the parish council, a JP, and probably the landlord of many of them. This means that the main burden of contesting on behalf of the public falls on voluntary organisations such as those to which I belong. In turn, these organisations are subjected to pressure from those who hold anti-rights of way views, and this has certainly been occurring in the case of the BDS and the BHS.

  Another consequence of the very strongly contested character of these Inquiries is that landowners often are represented by barristers and/or expert advisers, and this tends to make interpretation of the law an important issue. Very few Inspectors are legally trained, and even if they were, it is contrary to the original intention of Public Inquiries for Inquiries to become a variety of law court. The procedures are quite unsuited for this type of hearing.

  It is also the case that there is generally a severe imbalance between the financial resources available to the two sides, such that there is seldom if ever legal representation or advice available to the ROW users. This is not too serious a problem where the Order Making Authority is willing to carry out its duties to "assert and protect" the rights of the public wholeheartedly, but often the OMA too is short of financial resources itself and can also be muted in its actions as a result of pressure from landowning members of the Council, particularly in Shire counties.

3.  The Training of the Inspectorate

  We are told that Inspectors are trained, but we are also told that we should assume nothing about their knowledge of the subject. This makes it very difficult in complex cases to decide how much evidence it is necessary to lay before an Inspector. There is always too the worry of "a little learning being a dangerous thing". It would be of immense help if the training given to Inspectors was made publicly available, something which for reasons I have never understood the Inspectorate have been unwilling so far to disclose.

  It would also be desirable for it to be known who trains the Inspectors. Whilst in the specific case I do not think it will have been a problem, I was recently faced with an Inspector and an expert witness called by the landowner, exchanging pleasantries about how the expert witness had recently addressed an Inspectors' conference on the subject under discussion. In general I suggest that if someone acts as trainer to Inspectors he or she should not be available to appear as a paid expert witness in an Inquiry. This practice runs the risk of bringing an unnatural level of authority to that witness' statements in the eyes of the Inspector.

  Looking at the topic the other way round, it would be very helpful if participants in an Inquiry could know that an Inspector is well versed in the arguments about various fundamental items of history, as well as the legal position. For instance it should not be necessary to have to rehearse the history of the tarmacing of roads for the benefit of an Inspector.

  Fundamental to his whole matter is the guidance, or lack of it, provided by the Inspectorate to the Inspectors. It is true that "advice notes" are published from time to time, but these are generally extremely conservative in the advice offered, for no doubt quite good legal reasons. Typically they will only pronounce on the legal position (and even then from an ultra cautious perspective) and do not give weight to the available historical evidence. The whole Inquiry process could be much improved if the advice notes were properly researched by a team of experts on the subject, and were then tested by public scrutiny and debate before final publication. Although this would require more effort initially, in the long run PIs would be greatly assisted if there was clear and generally understood advice available in the public domain on major topics such as the significance of each of the major classes of evidence—eg. Deposited plans, enclosure awards, the definition of key words like highway, road, cross road etc. If these properly researched advice notes were then incorporated in the training manual for Inspectors, everyone would know where they were starting from and much time and cost might be saved. Moreover it would help bring some consistency to Inspectors' decisions, a quality that is notably absent at present.

  There is some evidence of complacency among the management of the Inspectorate over the quality of the job done by their Inspectors. This is totally misplaced. There is great concern among many users about the way the system works, and more responsiveness and less civil servant defensive reaction would certainly help. So too would more energetic quality control over the performance of Inspectors actually at Inquiries, not just in decision reviewing. The impression persists that the Inspectorate is seen as a nice quiet backwater where disturbances must be minimised. In fact it is the front line in defence of important public rights, and should be pro-active in protecting those rights led by a senior official with the right motivation.

4.  The procedure at Inquiries

  Whilst the general format of an Inquiry is well known, there is considerable scope available to an Inspector to conduct proceedings in whatever way he feels appropriate. This flexibility is clearly a potential strength, but it is unsatisfactory for this to be unknown to the participants until the actual opening of the Inquiry. It would be better if there were several defined different styles of Inquiry and that participants were told in advance which pattern was to be followed. Evidence could then be prepared accordingly. Without this knowledge one may not know whether the evidence is going to be read out or taken as read for instance.

  Another advantage of this pre-structuring of Inquiry formats is that where there is an anticipated complicated or highly contentious matter to be considered the Inspector could then be provided with two assessors and a writer to help him. This would be analogous to tribunals (or indeed football matches), and would help ensure that any limitations of the Inspector with regard to either knowledge or bias could be compensated, and he could devote full attention to ensuring the proceedings are properly conducted. In these major Inquiries too, it would be possible to lay down that the evidence of the participants is made available in advance to the Inspector and the other parties. At present this is not mandatory, and arguments occur over whether one party should have informed the other in advance of what they were going to say.

5.  The character of the Inspectors

  From my observation the normal run of Inspector is a typical lesser establishment figure, such as retired professional, civil servant or military, and exclusively male. As such they are generally worthy, industrious and anxious to do what they see as their public duty. However, they are generally elderly and the background that they bring is quite likely to be instinctively mysogonistic, pro-landowner and anti great British public. This leads to concern about their ability to make hard decisions that protect the public's rights, and whilst this may generally be an unfair observation, there is no doubt that it causes concern whenever one of the more quixotic anti-user decisions is handed down. A more varied pool of Inspectors, (possibly even including some women and younger people?!) might help the perception of the public as to the fairness of the decisions. As already observed, it must always be remembered that this body of people are our last defence against erosion of historical public rights, and this vital public responsibility must be clear for all to see and understand.