“So, tell me Mr Robertson, what makes you an expert?”: On being a witness at UK Planning Inquiries
Nearly 25 years ago, as a young planner, and after giving evidence at my first Public Inquiry, my advocate, a self taught Council Solicitor with a remarkable resemblance to Colonel Sanders, offered me one of the best pieces of advice I ever received about being a Witness, “Stop trying to be funny, the Planning Inspectors don’t like it”.
This advice has been uppermost in my mind ever since, with the result that, year after year, I have usually ignored it. It is, I suppose, a sort of personal defence against tense situations and in spite of the quasi-judicial feel of a planning inquiry, one is not going to be sent down to the cells for contempt. But, Inspectors are human too.
After listening for hours to a local landowner and his witnesses banging on about the quality of the land reclamation, top-soiling and greening of his land in preparation for a pet cemetery, a dead-pan and studiously professional Inspector walked onto the field and said: “As you know gentlemen, I am entirely impartial in this process and no further evidence will be taken during this site visit”. Then, carefully and with theatrical thoroughness, he proceeded to turn over with his foot, every half brick, piece of timber and fibre cement roofing shard he came across as he walked.
According to the Planning Inspectorate statistics, around 23,000 planning appeals are received each year in England, the vast majority of which are heard in informal ways. Only some 850 each year involve a formal Public Inquiry. The likelihood of appellants winning their cases rises from 33% to about 45% when taken to Public Inquiry. Though it is hard to tease out whether this is because planning inquiries are more expensive for appellants and that therefore only the more marginal refusals of planning permission are heard, or whether it is the quality of the testing of the evidence that makes the difference. It means, of course, that the services of advocates and professional witnesses are in steady demand. The latter are drawn from the technical professions, such as highway engineers, architects, ecologists and the like, but the more generic skills of the town planner will also be required.
Such witnesses are of two types. In the vast majority Public Inquiries there are two protagonists, the local planning authority that has refused planning permission, and the appellant who wishes to develop the land. It is highly likely that the planning witness of the local authority will be the case officer who dealt with the original planning application. They are not always experienced at giving evidence, because they may only rarely become involved in public inquiries, perhaps with years between cases. Some of the larger authorities employ specialist Appeals Officers who more regularly attend inquiries and develop their skills accordingly, but not all will have been given specific professional training in providing expert evidence.
It has also become increasingly popular for local authorities to employ planners from the private planning consultancies to defend their cases. Particularly, Authorities that take the professionalism of their staff seriously would never require a case officer or even their Head of Planning to give evidence contrary to the advice given on the case. It should be remembered that Planning Authorities are elected bodies entitled to decide contrary to the advice they have received. Such Inquiries are a gift to counsel who can have lots of fun with wayward, often politically motivated, decisions!
The steady stream of Public Inquiries offers the private planning consultancies an excellent source of employment; particularly for the small firms that are often locally based. Here reputation is everything, if the business is to thrive and the quality of expert evidence given by such witnesses can be expected to be high. What, however, can a planning expert be expected to be expert in? They may not know the innermost machinations of a Traffic Model, nor can they be expected to wax lyrical on the aesthetic qualities of that particular modern office, nor are they likely to know much about the feeding habits of bats.
Such witnesses know how the increasingly complex planning legislation operates. They know how planning policy from national government to local planning interweaves to inform, either well or badly, the decision that has been taken. and how to interpret and weigh the myriad of technical considerations that tell whether or not a modern development will perform well or badly in the environment. The involvement of Local Authority planning witnesses in the process has five main landmarks. As we have noted, the witness is likely to be the case officer involved and will have been instrumental in the decision reached and they will be the principal author of the required Statement of Case. Although the Statement of Case is rarely full evidence, it sets out why the Authority made the decision. It is only a matter of weeks from the start of the Appeal against the Authority’s decision to the mandatory submission of the Statement of Case. The Statement is, therefore, often quickly drawn up without the guiding hand of the Council’s advocate and occasionally it is in need of “repair” during the Planning Inquiry. The Inquiry Inspectors will often provide direct support.
to the advocate as he co-ordinates the evidence from other witnesses, either from elsewhere in the Authority or from private consultancies. The latter will write and present their own Witness Statement and their Proof of Evidence about matters that may be at the heart of the Statement of Case. Sometimes they sweep up any residual issues not covered by the other technical witnesses. These will often sit on the right of the advocate during the Inquiry and facilitate such activities, often on the hoof, such as giving advice, preparing Statements of Common Ground, administration of the process of creating legal agreements and dealing with the requirements of third parties who enter into the fray on the day.
The role of the expert witness from the point of view of the appellant is slightly different. Such witnesses perform a more “purist” service, their main role being the creation of appropriate Planning evidence and its presentation. If they are not entirely divorced from the rest of the appellants case, they are at least semi-detached from it and take on a more recognisably “expert” role than their Local Authority opposite number.
At another level, however, a good Planning Witness of either kind will have something extra, such as an ability to recognise patterns in the complex inter-relationships between environment, people, vested interests, national aspirations, economic health and human nature. They believe that final objective is not to win a case, but rather to make a place better by virtue of a proper professional analysis. To that end, it is not unknown for two planners to come together during the early days of the hearing. They may are able to facilitate an agreement such that planning permission can pursued without recourse to arbitration. Thus, the end result is avoidance of the need to be a Planning Witness at an Inquiry at all! Fortunately, for those who make a living from being a witness, such meetings are rare. I can offer the following example. It is, one might say, my equivalent to Rumpole’s “Penge Bungalow Murders”; a case that might be recounted over a glass of Pomeroy’s.
In the past, this particularly dishevelled industrial site on the banks of a beautiful river within a spectacular wooded valley had a contentious and fractious planning history. A previous Planning Inquiry had been dogged by hundreds of third party objectors, who were often able to field their own witnesses, to the scheme offering often irrelevant or misjudged evidence. Even the professionals had not managed to get their evidence across properly. The result was that, though the appellant failed to obtain planning permission, this was only on a minor consideration of the industrial pollution on the site, rather than what many saw as more fundamental planning concerns. It was as if the Penge murderer had instead been convicted of a traffic offence.
With the appellant once more putting forward a similar scheme, and the prospect of another Planning Inquiry, both parties fielded their potential technical and planning witnesses at an early stage. Therefore, many of the basic evidence about traffic conditions was settled, even if the parties were not entirely in agreement. The relevant planning policy position could be discussed at an early stage and everyone could come to an agreement as to what was important, even though its weight remained in dispute. The land contamination experts could get together to agree completely what the problem was and how it was to be solved, and so on.
One of the most important preliminary activities was, however, a freely given co-operation between the appellant’s and the local authority’s potential witnesses. This resulted in the provision of detailed information, often of a complex nature, in a way that could, more or less, be explained to the layperson. The local authority held an intensive, workshop-style meeting with the main third-party protagonists to explain the proposals. Though this did not result in fewer objections, it meant that there was a greater understanding of the important issues. At the Public Inquiry itself, this was translated into a greater focus and therefore, in my view, what might have been a three week Inquiry lasted only two weeks.
This illustrates how Planners and their associated technical experts, should never be seen as isolated experts parachuted into an issue to give their opinion and then leave it all behind. They used their expertise from the beginning to shape the issue, find solutions and then focus on the true areas of disagreement. The giving of evidence, however rigorous the testing of it must be, became only a small part of that process.
You may well ask, "But what about the role of humour?"
I was once asked the question during the Inquiry that affords this article its title. My answer was, “I must be an expert witness… I’m sitting here and you’re the one asking me questions?” In my mind, the ghost of “Colonel Sanders” wagged his finger.