Well, that clears it up: Guidance on role of expert planning witnesses released

Following some fairly vigorous criticism of the role of witnesses by the Environment Court,[1] the Resource Management Law Association (RMLA) and New Zealand Planning Institute (NZPI) have jointly released a paper seeking to clarify the scope of planning witnesses’ role.  It provides some ‘good practice’ tips for witnesses to consider when drafting and presenting expert planning evidence before the Court. The paper addresses the Court’s concern at planning witnesses purporting to present a conclusion as to the ultimate outcome – without appropriate consideration of the evidence of other expert witnesses, and/or effectively predetermining the ultimate decision of the Court. The paper, entitled ‘The Role of Expert Planning Witnesses’, is available on both the RMLA and NZPI websites.

Having reviewed the paper, we agree with its recommendations on the role of expert planning witnesses. In particular, we agree that expert planners should seek to offer an opinion on the ultimate issue: for a resource consent application, whether or not the overall broad judgment required under Part 2 comes down on the side of grant or refusal of consent. Of course, that opinion is only that (i.e. a professional expert opinion, based on the application, relevant planning instruments, planner’s professional experience, and other expert evidence). It should not, and cannot, be substituted for the Court’s judicial function. The paper suggests a number of considerations for expert planning witnesses when framing their evidence, in order to ensure that the evidence is appropriate, able to be supported, and does not usurp the Court’s judicial function. Useful suggestions for preparation of evidence include:

  • Not straying into areas beyond the planner’s expertise;
  • Confining evidence to relevant matters before the Court, having regard to the applicable factual, statutory and planning framework;
  • Undertaking an objective and professional evaluation of relevant matters, having regard to other expert evidence, and clearly articulating matters on which an opinion is based; and
  • Reaching conclusions as to any matters in dispute through a coherent and reasoned process.

However sensible these recommendations are, they must surely be well-known and accepted practice amongst all expert planners.

We hope that the real message received by planners is that rather than simply prefacing statements with “In my opinion...” or “From a planning perspective...” they give careful thought to their role and duties to apply their knowledge and experience to assist the Court impartially on relevant matters.

 

[1] Refer the decisions Tram Lease Limited v Auckland Council [2015] NZEnvC 133 and Tram Lease Limited v Auckland Transport [2015] NZEnvC 137.

Posted on March 1, 2016 .