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Expert Witness

By Michelle Bolger
Knowing your subject is essential if you are to be a success as an expert witness – but there are other things you need to understand as well.

When choosing landscape architecture as a career few people are aware that landscape architects act as expert witnesses. Yet is it an area of work with which a significant number of landscape architects, mostly those working within landscape planning, are involved. It is work that requires a range of skills, including good report writing, thinking on your feet and composure under cross examination, that are not always demanded by landscape architecture. Although some people find the prospect daunting for those of us who enjoy it, expert witness work is challenging, exciting and rewarding. In the following pages, I set out some of the information that may assist those considering working as an expert witness.

Understanding the basics

What is an expert witness?

An expert witness is a professional who has acquired sufficient expertise that their opinion can be relied on by a public body. Expert landscape witnesses are concerned with the planning process.

How do you become an expert witness?
Most landscape architects’ first experience as an expert witness comes when a scheme that they have been working on at the planning application stage is refused by the Local Planning Authority (LPA). If the applicant decides to appeal the decision, the landscape architect is called upon to give evidence about the scheme and the effects of the scheme on the landscape and on visual amenity. The applicant now becomes the appellant. The LPAs will also need an expert landscape witnesses to defend their reasons for refusal.

Who is the appellant appealing to?
Most planning decisions are initially taken by the LPA which issues a decision notice setting out the reasons why it has refused the application. The appeal, which is made to the Secretary of State (SoS) for the Department of Communities and Local Government (DCLG), is asking for the decision to be reversed and the planning application to be approved. DCLG has delegated its powers to the Planning Inspectorate (PINS) which appoints a Planning Inspector to look at the facts and reach an independent decision. Expert witnesses help the Inspector by providing their expert opinion which is known as ‘evidence’.

Types of appeals
Appeals can be heard by written representations, by a Hearing or at a Public Inquiry.

For Written Representations only written evidence is required which is submitted by the appellant and the LPA to PINS. A Planning Inspector reviews all the evidence, makes a site visit and issues a written decision.

A Hearing is an inquisitorial process led by the Inspector who identifies the issues for discussion based on the evidence received and any representations made. The Inspector’s questions may be fact checking or elucidation. Hearings are meant to be suitable for less complex appeals. Neither advocacy nor cross examination is allowed.

A Public Inquiry is the most formal of the appeal procedures, and usually involves larger or more complicated appeals. Expert evidence is presented, and witnesses are cross-examined.

Why Public?
The public in public inquiry means that all the evidence submitted is available to the public. They can hear what the experts are saying, put forward their own views and question the experts.

The Script

The evidence is exchanged four weeks before the start of the Inquiry. In addition to the written document, known as a Proof of Evidence, plans and photographs and other supporting documents are submitted as Appendices.

An expert should provide a well-reasoned analysis which can withstand scrutiny at a public inquiry whilst at the same time taking a realistic/pragmatic approach
Anne Williams, Barrister, 6 Pump Court

PINS provides guidance on how evidence should be presented in Guide to taking part in planning, listed building and conservation area consent appeals proceeding by an inquiry – England http://bit.ly/1RLmY6e

If your proof of evidence is longer than 15,000 words, a Summary Proof of about 1,500 words is also required. Summary proofs often don’t get the attention they deserve. They are read out so it’s very important that a Summary Proof is written in a style that can be read easily. It should put forward the bones of your argument – that is your reasoned justification for the opinion that you are giving the Inspector. The back-up, the detailed evidence on which you are basing your opinion, should be in your main Proof of Evidence.

The Cast
The diagram below provides the cast list for the inquiry. The LPA and the Appellant are the first two parties to the inquiry and anyone else can make themselves a third party, also called Rule 6 parties. Landscape architects often get involved with local action groups who generally hold strong views about their local landscapes.

Each of the parties has an advocate who puts their case to the Inspector. LPAs and Appellants generally use barristers to do this. QCs (Queen’s Counsel) are the most senior barristers but all are generally described as Counsel. It is the role of Counsel to put forward their client’s case to the best of their ability even if they have privately told their client that their chances of winning are slim. In contrast an expert witness is there to help the Inspector and must offer only their honest professional opinion.

The Inquiry
At the inquiry, each expert witness puts forward their evidence. This generally consists of reading out your summary proof and answering questions from your own Counsel, called Examination in Chief. Unlike in criminal cases, it is quite acceptable to have rehearsed these questions in advance. This is your opportunity to get the Inspector to see the landscape and the proposed development through your eyes. Make sure you are talking to the Inspector and keep an eye out that s/he has found the right photograph or plan before you start explaining what it shows.

After Examination in Chief, Counsel from the other side will cross-examine you. It is usually the case that the other side has also employed a landscape architect who has come to a different conclusion from you. During the cross examination, the other side’s Counsel will try to persuade you that you are wrong and their landscape architect is right. This might involve finding holes in your evidence or pointing to issues that you have not considered. It is rare these days, but not unknown, that the other side’s Counsel will try to denigrate your professionalism. Having the appropriate professional qualifications is essential.

After the cross examination, the Inspector may have some questions to ask you. Some Inspectors don’t wait until the end and ask questions as issues come up. The Inspector’s questions are some of the most important questions you will be asked. Unlike those from the opposing Counsel they are not intended to trip you up or make a point. The Inspector genuinely wants to know the answer because it may be important in order to reach a decision. Make sure you think carefully and answer clearly.

Golden rules

1. Tell the truth

It is your duty to the inquiry to tell the truth and that excludes being economical with the truth.Telling the truth is not just matter of fact but also of opinion. You are being asked to give evidence because your professional opinion is considered reliable.

2. Start early (when you can)
If you are involved at the planning application stage, either for an applicant or a LPA, you should do the work with as much care as if it were an appeal. There is nothing more harmful to the case, or to the reputation of a landscape witness, than changes of mind between the planning application and the appeal. There is nothing more likely to lose you a client as well.

3. Be prepared
At every stage you must be prepared, know your evidence and everyone else’s.

Preparing your Evidence

Identify what matters and why
Landscape proofs of evidence are sometimes very strong on the detail of the assessment whilst failing to draw clear conclusions. Make sure your evidence identifies what matters and why.

Use reasoned arguments
There is always a degree of subjectivity to landscape evidence. You must be able to back up your opinion with a reasoned argument supported by independent evidence that explains why you have reached your conclusions. All opinions are not equally valid; in the end the Inspector must decide which opinion to believe.

Good English is essential
This is not just a question of punctuation and grammar. A reasoned argument cannot be presented in paragraphs of one sentence.

Cross reference everything and everywhere
Make cross-references to your plans, figures and photographs throughout your evidence including your summary proof. This may appear repetitive but will help you find the figure / photograph you need when you are in the inquiry room.

A good Summary Proof is invaluable
Don’t leave your Summary Proof to the last minute The Summary Proof is a good place to set out what matters and why without the detail.

Before you take the decision to go to an inquiry that is to be complex, packed full of expensive experts and vexatious amateurs what you really want is a genuine expert to advise you of the good and bad so you have your eyes wide open. When you finally get to such an inquiry you expect no surprises or changes from your expert and that they are as knowledgeable, credible, professional, confident and compelling under cross examination as they were when you first sought their advice. Tim Sargeant CEO City & Country

Read all the evidence of your own side at least once
This may seem onerous but it is vital that you know what the other members of your team are saying in case it conflicts with what you say. There is nothing opposing Counsel like better than to find inconsistences between witnesses on the same side.

You are the Expert Witness
On big projects you will have a team to support you and help prepare the evidence but it is your evidence and must be written by you. You must have done sufficient site work to understand the landscape and the issues.

Know your own evidence
Make sure you know your own evidence thoroughly and can find key passages quickly.

Organise your files
Use whatever method suits you best to make sure you can put your hand on a reference in a document immediately if you want to refer to it. Sticky notes are very popular. Nothing makes you feel worse than searching madly to find the quote that you are sure would answer the question conclusively if only you could find it.

At the Inquiry

You are the expert landscape architect

Counsel on the other side may be much smarter than you are but they are not a landscape architect. If you can convince the Inspector that you really understand your field of expertise s/he will be much more inclined to believe your opinion.

Answer the question
When being cross examined always answer the question first and then go on to qualify your answer if necessary. Inspectors get very cross with witnesses who won’t answer the question.

Focus on the issue
Focus on the issue you are being asked about and don’t stray off the point. Watch the Inspector, if s/he has stopped writing you should stop speaking.

Help the Inspector
Remember your role is to help the Inspector. If you can persuade the Inspector to see the landscape through your eyes you will also be helping your client. The Inspector should be the focus of your attention and not the other side’s Counsel.

Defend your position (but not if it’s indefensible)
You need to have all your reasoned arguments to hand to defend your position and your client will expect you to stick to your evidence. However, if it becomes apparent that there is something you have overlooked it is far better to accept it and move on than to try and defend an indefensible position.

Take your time
If, despite all your preparations, you are having difficulty finding something don’t be rushed into giving up. Take your time – everyone will wait for you.

On balance

Some landscape witnesses end their evidence with the statement ‘Therefore I respectfully ask the Inspector to allow / refuse this appeal’. I consider that this should only be found in the evidence of the planning witness.

Planning decisions are a question of balance – balancing whether the benefits of a proposal are sufficient to outweigh the harm. This is not an easy task as the benefits and the harm are often very different (e.g. the benefits of new houses v harm to the landscape). As landscape experts we are identifying the weight that the Inspector should give to the harms and benefits to the landscape when s/he undertakes the balancing act.

We are not undertaking that act ourselves.

Michelle Bolger runs Michelle Bolger Expert Landscape Consultancy

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