THE EVOLVING ROLE OF EXPERT WITNESSES

Fashions in the appointment of experts

For the first 20 years of the LEC, separate experts were appointed by parties to a dispute. The experts wrote voluminous reports, often repeating a detailed discussion of the circumstances of the case, without any engagement with the opinions of the other party to the dispute. Following the submission of the main Statements of Evidence, Reports-in-Reply were prepared refuting the arguments of the opposing party. The experts then gave separate evidence in the hearing leaving any debate to be conducted by the advocates.

When Peter McClellan became Chief Judge in 2003, he sought to bring the experience of other courts to the LEC. In order to bring together important aspects of objective evidence, he instituted court rules requiring a single, jointly appointed expert to sort out the issues. The Chief Judge did not expect that subjective evidence could be represented by a single joint expert but, for a short time, this was tried.

Even in objective matters, the appointment (for economy) of a single expert proved unsuccessful. Each party hired additional experts to explain the joint expert’s report and conclusions, thus increasing the number of experts in each field from two to three. Costs increased.

However, a second change, that of requiring experts in a field to give concurrent evidence (often referred to as “hot tubbing”, a term that conjures up all manner of unappealing images!!) proved very productive, often involving interesting direct expert-to-expert debate and the consideration of alternative design solutions.

The requirement to have a joint single expert was relaxed by current Chief Judge Brian Preston when he saw how the number of experts had grown following adoption of the “single” expert. However, there is still a place for the single expert in some fields and for cases without complexity.

Nevertheless, joint reports are popular and are required by the rules in most cases, even when there is little or no prospect of any convergence of opinions.

Another aspect of the changes instituted by the present Chief Judge has been the emphasis of the Court on negotiations via mediation, arbitration or conciliation. This has placed experts in design/merit matters in the role of negotiators for better planning outcomes.

Why are expert views so divergent?

In his paper to the August 2007 NEERG seminar , barrister Andrew Pickles noted that the former Chief Judge of the LEC, Peter McClellan, had distinguished between objective (scientific/technical) and subjective (aesthetic/visual) evidence when initiating the concept of a single court appointed expert . By distinguishing between the objective and the subjective, the Chief Judge implied that there will always be at least two opinions, if not many more, about the aesthetic/visual aspects and qualities of any development proposal. He also implied that the scientific/technical aspects of a project would not generally be the subject of divergent opinions. In addressing the problems of reports in objective areas such as acoustics and noise, another NEERG presenter, Steven Cooper , has pointed out that even areas regarded as “objective” may nevertheless provide room for dispute.

Former Chief Judge McClellan’s comments hinted that the possibility of two experts coming together in a meaningful joint report on the subjective aspects of any development proposal is unlikely. There are many reasons for this:

1. If both experts have assessed the project before the case, as is most commonly the situation, it is probable that they will already have formed divergent views. The expert for the consent authority has probably recommended refusal of a proposal framed and, guided by the applicant’s expert, has brought about the conflict which requires resolution by the LEC.
2. Both experts will be guided, or at least influenced, by the views of their respective employers/clients. This was the reasoning behind the now largely abandoned LEC practice of appointing a single expert to report to both parties. The more experienced the expert, the more impervious he or she is to being guided or influenced in this way.
3. Many experts come with predictable opinions. This stance seriously diminishes the value of their appointment as experts advising the Court. Much jostling in the Court has arisen over the difficulty of selecting appropriate experts. If that hurdle is leapt, the next problem the Court faces is the difficulty of achieving any agreement at all between experts superglued to strongly held viewpoints - they cannot put aside their own doctrinal opinions in order to meet the requirement to examine each case on its merits.
4. Any expert employed by a consent authority must be aware that his or her continuity of employment by the authority depends on toeing the “company” line. Before a case is brought to Court, consent authorities and their legal advisers weed out any views sympathetic to the proposed development. If the consent authority has refused the development, and even if it has not, it is very unlikely that a consent authority will allow its view to be represented by a dissenting voice recommending approval or approval subject to conditions.
5. Similarly, an applicant’s expert is often pressured to adopt the client’s view, even when the expert has urged caution in framing a proposal. However, applicant experts at least have the option of terminating the contract if the applicant gets unreasonable – provided the applicant is backed up with a current and sufficient professional indemnity insurance policy!

The experts’ role in negotiations in the LEC

If the Court path agreed between the parties is to be that of an on-site hearing and, subject to mediation, conciliation or arbitration, the experts must have some ideas about where compromise may be made. This implies a very good understanding of the proposal and often its constructability as well. Clearly, the proposal’s designer or another specialist designer must be involved on the applicant’s side. Unfortunately, an equivalent person on the council side is not always available. The result of this imbalance is that suggestions of compromise are made which may be unnecessarily complex, visually or spatially meaningless, not reasonably constructible and/or impractical. In the end, the general outcome can be acceptable but much more costly without any benefit to the applicant, neighbours or the public at large as represented by the approval authority.

However, the expert must be equipped to deal with design changes, often on the run. On the applicant’s side, this may mean understanding where a proposal can be reduced without major impact on the overall design, character and function. Negotiated processes imply a negotiating position, an approach I have counselled against in the past. However, building “fat” into proposals is a legitimate negotiating tool and one likely to become more common as a result of the current court emphasis on ADR solutions. This may be reinforced by the costly habit of approval authorities’ refusal to negotiate before an appeal and by their steadfast determination to support objectors, even when their fears/anxieties are known to be misconceived.

How experts should prepare a joint report

How then should experts dealing with Court-required joint reports conduct a meaningful dialogue on the subjective areas of planning?

• Both parties should be able to reach common ground on any numerical aspects of compliance/non-compliance. This could be done before the Statement of Agreed Facts is tendered to the first call-over. Only if the figures are the subject of ongoing dispute should such issues be the subject of evidence in Court.
• The experts should hold a discussion on site to consider which issues can be solved by conditions. These issues should be separated from other issues. (If the consent authority expert insists on maintaining issues which are capable of resolution by condition, costs should be directed against the consent authority for wasting time and complicating the case unnecessarily.)
• Only after straight-forward numerical issues and those able to be solved by conditions have been dealt with, should the remaining issues be addressed. In the event that the refusal expert insists that all issues (such as height, FSR, footprint, etc) are inseparable, as is too often suggested, the applicant expert should report the lack of co-operation to the Court. Unfortunately, this has become the unacceptable tactic of some “experts”. No further reporting/discussion is warranted. Similarly, if one or other expert insists on importing the text of an original report or assessment verbatim into any joint report, no further discussion is warranted and this should also be reported to the Court. Joint reports should be concise, dot form items, preferably presented in a table. If this cannot be achieved, the efficacy of the joint report is seriously diminished.
• The experts should be required to co-operate on prioritisation of the issues. Failure to agree would necessitate the provision to the Court of individual priority lists compiled by each expert.

Joint reports by experts

What possible outcomes can result from joint conferencing of divergent expert opinions?

1. Joint conferencing can prompt a repetitive listing of the views of the various parties as already expressed in their reports on the matter. For example, Attachment 1 to this paper is a small section of the nearly 30 page joint report on a DA refusal in an inner Sydney municipality. Apart from the repetitiveness of the LEP, the table shows the consent authority planner has imported material from the statement of evidence holus bolus, without further analysis. This type of joint statement is unhelpful to the Court. By contrast, Attachment 2 shows a much more helpful joint report which reduces the number of issues. This quality of report is, unfortunately, uncommon.
2. The experts can agree to reduce the number of issues. In my experience, this can be moderately helpful. As professionals skilled in planning and/or architecture, the Commissioners can opt to dispense with issues of little relevance. Former Senior Commissioner Roseth had a good track record of requiring parties to prioritise the issues and advise him of the three most important. Regardless, to boost the consent authority’s stance, issues of minor importance are inevitably thrown into the mix, even when capable of resolution by appropriate conditions.
3. Minor issues should be weeded out by effective case management. If not, a Court rule should be implemented to the effect that before they can be added to the Statement of Issues, any issues additional to those stated in any refusal notice/motion must be justified to the Court. In my experience, the experts for consent authorities rarely agree to remove issues, arguing that the accumulation of minor issues eventually creates a major issue, even when appropriate conditions could be applied to resolve many or all the problems cited.
4. The experts can, and frequently do, agree to disagree on most, if not all, subjective points. Too often the consent authority expert quotes the planning policies relevant to the case without revealing any expert opinion, instead restating the stance of the authority that employs him/her. To the extent that officers of these authorities see their only role as mouthpieces for their employer, the meeting is not a joint meeting of experts, but rather a meeting between an expert and an advocate. Making this situation worse is the fact that too often the experts representing consent authorities are junior or less experienced officers, unable to articulate the basis for their views in the terms suggested by former Senior Commissioner Roseth in his paper to the 2007 NEERG seminar on appeals.
5. The appointment of independent consultants for consent authorities offers the best chance of successfully resolving cases before the Court. These professionals are not beholden to any authority for continuing remuneration. In such cases, the likelihood of coming to a full or partial agreement is greatly enhanced. Those experts who advise both sides of the development industry, consent authorities and applicants, are more likely to have a practical, non-doctrinaire opinion about proposals than those individuals who are almost invariably employed to support the views of a consent authority. For consent authorities, the likely outcome is an appropriate planning solution, but one which may not go down well on the local political scene.

Evolving role of the expert

Thus, the expert must be able to negotiate with other experts, often holding diametrically opposed opinions. Previously, much of this negotiation was the province of the lawyers. However, the expert’s role as negotiator has been further enhanced by the Court’s emphasis in merit appeals on negotiating outcomes on site. In this latter role, the practical expertise of the individual is put to the test. Suggestions are often made for changes to the proposal which lack understanding of the building issues involved. This can put either or both parties at a disadvantage. Nevertheless, the expert is still expected to comment.

Conclusion

With far greater Court emphasis on the negotiation process as an alternative to full-blown litigation, experts must become adept at negotiating outcomes. Two skill sets are required for this. The first is the ability to negotiate with parties who may hold very different views, often strongly and sometimes without great reason. The second is the ability to understand proposals sufficiently to be able to differentiate areas of importance and non-importance. Only then is an expert equipped to suggest changes during the process of Court-supervised negotiation.

Rather than requiring joint expert reports as a matter of course, the Court should consider abandoning this requirement in the case of subjective evidence (visual, streetscape, architecture etc). Instead, the Court should continue requiring separate expert reports, and should require the experts to discuss/negotiate/debate their differences by appearing concurrently in the Court hearing, whether on site or in a courtroom.