“Speculate before you accumulate. I am a long term regular writer and advertiser in 'Your Expert Witness - the Solicitor’s Choice'. This investment pays me substantive dividends; I get more Expert Witness work with every issue. Not only solicitors and barristers but also judges seem to read it. It is a win-win situation. Success breeds success; I must continue to write and advertise.”
WHY DO YOU need an expert planning witness when everyone has such strongly held views on planning matters?
I seriously regret the day I told my local barber that I was a town planner. Not a cut has gone by since without him telling me about the ills of the local oneway system or his mate’s neighbour’s extension which “should never have been allowed”. Isn’t it all pretty obvious whether something looks too big or too ugly?
At one level, it is pretty obvious really, or at least an initial gut reaction to a proposed new building or use is none too difficult to come by. But in my experience, an expert planning witness is a critical and essential member of a witness team in a wide range of cases and tribunals.
So when would you need an expert planning witness? What does he do, and how does he do it?
A right to appeal When local councils refuse planning permission for a building or use, an applicant has the right to lodge an appeal against the decision to the Secretary of State. As things stand at the moment an appellant also has the right for his appeal to be heard before an inspector appointed by the Secretary of State.
The vast majority of appellants choose to have their cases considered by an alternative, quicker method of appeal whereby statements of evidence are exchanged between the council and the appellant without appearing in front of an inspector.
Approximately 18,000 appellants choose this written representation method each year.
However, this still leaves about 3,000 who choose to appear at a hearing and about 1,500 appellants who choose the most formal of procedures: appeal by way of a public inquiry.
Hearings are inspector-led discussions that involve witnesses explaining their case to an inspector directly, whereas public inquiries follow the more judicial type of route of advocates presenting cases with evidence provided by expert witnesses. This article is primarily concerned with expert witnesses at public inquiries.
A chartered planner
Any person qualified in town planning (yes, there are degrees in such things) can give evidence at an inquiry. However, the usual judicial requirement for witnesses to be impartial and to present only their bona fide professional opinion uninfluenced by the witness’s employer or client is guaranteed only if a qualified town planner is also a member of the Royal Town Planning Institute (RTPI) and is thereby a chartered town planner.
The majority of chartered town planners are employed by local councils, but there are many firms of planning consultants and sole practioners that provide a service to private clients and companies.
An increasing number of solicitors’ practices and other professions, such as surveyors and architects, are also employing chartered town planners.
The RTPI website provides a list of consultants by name, region and specialisms (www.rtpiconsultants.co.uk).
What do they do?
The main role of a planning witness is to provide evidence at public inquiries as to why a council’s decision to refuse planning permission is either right or wrong. However, planning witnesses are also used in a wide range of other sorts of cases.
If a council takes enforcement action, for instance to require a building to be removed or a use to cease, expert planning witnesses are usually required to support or defend such action at inquiries on behalf of councils and private clients.
Injunctions may be served to prevent or constrain a person from carrying out unauthorised development.
This can lead to the appearance of planning witnesses at High Court trials.
Cases involving the value of land, such as inquiries into compulsory purchase notices or the strange world of Certificates of Appropriate Alternative Development, will necessarily involve the giving of planning evidence by expert witnesses.
Tree preservation orders, advertisements and stopping-up orders under the Highway Act are further examples of types of development which may require planning evidence to be given.
How do they do it?
Planning witnesses need the same core skills as other types of professional witnesses who appear at inquiries and tribunals.
They need to understand what is expected of them during their examination in chief, cross-examination and re-examination. They need to know how to use their right to qualify an answer given during crossexamination effectively, but also the need to give an answer in the first instance that is direct and to the point. Above all, they need to understand the nature of advocacy in order to withstand the pressure of cross-examination and to survive the ordeal without too many tears.
In addition to these general witness skills, a planning witness has to have expertise in two specific areas: the assessment of the likely impact of a proposal, and the weighing of that impact against planning policy and objectives.
In relation to his or her assessment of impact, a planner’s tool kit may include urban design skills to assess character and setting or engineering skills to assess highway and drainage aspects. Noise, landscape and ecology are further areas of technical expertise which may be called on.
Proficiency is key
Depending on the complexity of the case, a client or council may prefer to offer evidence supported by urban designers, engineers or ecologists to support their position, none of whom need be chartered town planners.
However, an expert planning witness needs to have sufficient proficiency in these disciplines to either give evidence himself or to weigh the evidence of others in reaching his conclusions on the overall merits of the scheme.
In relation to a planner’s weighing of impact against planning policy, this is an exercise which can be undertaken satisfactorily only by a town planner. At its heart (and as statutorily defined), the planning system in the UK is a planled system, and refusals of panning permission are almost always justified or not justified by the extent to which the proposal complies with the relevant planning policies for the area.
Other considerations may well be material to the decision and need to be taken into account, but a clear conflict with policy will often deliver the fatal blow to a scheme.
The expert planning witness will not only need to know the status of existing and emerging policies but, critically, he or she will need to understand the social or environmental objectives that underscore the policy.
He/she will have to weigh the policies that support the scheme as much as those that conflict with the scheme, and must be able to explain to an inspector clearly and persuasively how the scheme accords or otherwise with the overriding objectives of the policy.
Weighing the balance
The specific skill of the planner is to assess a scheme, having regard to all the likely sorts of impact, against the objectives of policy and to justify whether the balance of advantage lies in allowing or refusing a scheme.
This balancing of competing issues and conflicting objectives is the art and science of town planning and is why planners often lead teams of other witnesses at inquiries. It is also why the expert planning witness is never far from an advocate’s side during proceedings. It’s not a skill, however, that is likely to be much recognised by your local barber!