Court’s advice for expert planning witnesses
In the recent decision of Grocke v City of Prospect [2022] SAERDC 20 the ERD Court provided valuable guidance to expert planning witnesses on preparing evidence in a manner which best assists the Court.
Background
Norman Waterhouse recently successfully acted for the City of Prospect (Council) in an appeal against its refusal to grant Development Plan consent to a proposal for a two-storey detached dwelling on a corner allotment. The application was refused for a range of reasons including excessive bulk and scale, building height and inadequate setbacks.
One of the most relevant factors at the hearing was the characterisation of development within the locality, with the Court ultimately finding that the proposal was:
- not complimentary to the predominant established residential character of the locality, which was predominantly single storey in both form and scale; and
- not consistent with the predominant design attributes sought by the planning policy and present within the locality.
In reaching this conclusion the Court was assisted by the written evidence of two expert planning witnesses, each of which included an assessment of the locality accompanied by photographic evidence.
Advice for Expert Witnesses
As an aside to the judgment Commissioner Nolan noted that:
‘[t]his Court has observed an ever-increasing practice of expert witnesses using photographs throughout the body of their written evidence. Such practice, however, often results in the image, rather than the words, being used to express an opinion or observation.’ It seems that not only may this introduce a degree of ambiguity to the evidence, it may also necessitate a lesser degree of analysis than if only words were used to express an opinion or observation.
The Commissioner further noted that the practice of interspersing images among the body of the statement of evidence was undesirable because it impacts the readability of the statement and can lead to unwieldy and excessively long statements.
Whilst photographic evidence is undoubtedly of assistance to the Court, particularly in matters where the characterisation of a locality are of particular importance, to best assist the Court, photographs should generally appear as appendices with the statement containing a detailed written summary of the attributes of the locality.
The Commissioner also suggested that the Court would be helped if all paragraphs were numbered [not just headings], such that they can be easily and quickly referred to.
For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or amiegel@normans.com.au.
