SEAS written submission with regard to the procedural issues around physical vs virtual Hearings, 29 September 2020

Dear Mr Smith

Yes to Offshore Wind Energy, Let's Do It Right

As an Interested Party, Suffolk Energy Action Solutions (SEAS) would like to make a further written representation concerning the procedural issue of physical vs virtual Hearings, as raised in the Preliminary Meetings on 16th September 2020.  

We were pleased to hear the Examining Authority acknowledge that many Interested Parties have requested that the forthcoming meetings and Hearings should not be held virtually but rather deferred until traditional physical Hearings can occur.   Indeed, we welcome your comment  that, "it remains our very strong desire to hold physical hearings if we can".   We would also like to welcome the Applicant's 'hybrid' approach with the suggestion that physical Hearings are held at Snape Maltings particularly for those who find the technology necessary for virtual Hearings impossible or challenging.  In this way, with Hearings genuinely open to all interested parties, regardless of technological ability or availability, a fair and participatory examination can be undertaken.

It is then alarming that the Examining Authority intends to retain the Open Floor Hearings on 7th, 8th and 9th October as a virtual only event.  As you yourself said, these Open Floor Hearings are targeted at individuals (rather than organisations who might be better heard at the Issue Specific Hearings).  It is these very individuals who, as we have heard from SASES Barrister Richard Turney, Councillor Marianne Fellowes and Mr and Mrs Courage, are the most likely to struggle to operate the technology associated with remote Hearings.   In the interests of fairness and justice, all Interested Parties must be able to contribute if they so wish and the only way to guarantee this is for every Hearing, including the initial Open Floor Hearings, to have a physical option.  

Sir, you requested that we address the issue of the Ministerial Statement of 13th May 2020 which sets out the expectations of how the planning system should operate in the COVID 19 pandemic.  This states that whilst virtual arrangement should be the default method of operation,  “the Government recognises that in exceptional circumstances it may not be fair to proceed virtually and that alternative arrangements may be needed. These alternative arrangements should be taken forward speedily, where possible, taking into account the Government’s guidance on social distancing”.  With technological difficulties already established, it would indeed be unfair to proceed virtually.   If it is not possible for the Applicant to provide a physical space for ALL Hearings and enable ALL individuals to proactively engage with the planning process, then the Examination should be postponed until such time as they can.  The pursuit of fairness and justice must be sacrosanct.

You also draw our attention to the latest 'new normal' - the 'rule of 6'.  As we are sure you are aware, the rule of 6 does not apply to venues such as Snape Maltings, which under current government guidance can accommodate 150 people, socially distanced.  They have a rigid risk assessment in place.  Therefore there is no reason, under current government guidance why socially distanced physical Open Floor Hearings, or any future Hearings, can't occur at Snape Maltings.  

This brings me onto the point of the fluidity of government guidelines which was stated at the Preliminary Meetings as the principal reason for retaining virtual events so as to negate any unexpected delay.  Whilst the delay caused by any change in government guidelines is regrettable, virtual Hearings cannot be used as an unjust 'safety net' to simply bring these Hearings to a conclusion within the allotted time frame.  

Finally Sir, you refer us to the case of Tingey and the Secretary of State for Housing Communities and Local Government and Horsham District Council.  We would suggest that there is no comparison between Mr Tingey's case and over 800 individuals and organisations.  Whilst technological arrangement could in the case of Tingey be put in place for one party so that a virtual Hearing could lawfully take place, it would be impossible to guarantee such arrangements for the large numbers of Interested Parties for EA1N and EA2.   Thus we would respectfully suggest that to hold a virtual only event would be unlawful.  

To conclude.  SEAS believe, on the grounds of fairness and in the interests of justice, that remote only hearings must be ruled out.  Unless the Examining Authority can guarantee that all Hearings can be held physically for the digitally challenged then this Examination must be postponed until such time as this can happen.

Thank you for your consideration.


The SEAS Team

Yes to Offshore Wind Energy

Let's Do It Right

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