Preparing for the Environment, Resources and Development Court

Introduction

The best preparation for the Environment, Resources and Development Court (ERD) is to have a discussion with Council’s lawyers regarding the nature of the appeal and the planning issues that are subject to dispute.
Remember you, as a qualified planner, are there as an expert to assist the Court to understand these issues, not to act as an advocate for one party or another.

Being a good expert witness is not simply a matter of putting on a good performance in the witness box or before a panel.  It is a skill that requires a good understanding of the role of the expert; an open dialogue with other professionals; a thorough understanding of the issues and context; and, just as importantly, a professional approach to communicating both facts and opinions in circumstances of extreme duress. 

Roles

Crucial to the performance of an expert witness is their recognition of their own role and that of the dispute resolution procedure in which they are involved.  In most jurisdictions, the dispute resolution process culminates in a hearing that re-assesses a proposed development rather than simply testing the veracity of a previous decision.  More particularly it is to arrive at a decision that is in accordance with the statutory framework within which the development occurs.  (Notably this excludes political considerations from the decision process.) By focusing on decision making within a statutory framework another important characteristic of the dispute resolution process is revealed.  This is the approach that favours the legally correct decision over the idealistic planning outcome—a characteristic often cited as an impediment to good planning and used to criticise systems that operate in a judicial framework.  

With this role in mind, the dispute process has four fundamental questions to resolve.  These are:

  • Is the application competent?
  • What are the statutory considerations that are to be applied to its assessment?
  • How does the development perform against these considerations?
  • What conditions may be required to ensure compliance with the considerations are achieved?

An expert witness's role is to provide impartial advice in respect of the technical aspects of development specifically in terms of the performance of a development against the relevant statutory considerations.  To exercise judgements beyond these parameters will take the expert outside of the scope of their qualifications and/or beyond the jurisdiction of the dispute body. 

Dialogue with Other Professionals

Essential to the outcome of a dispute hearing is the establishment of an open dialogue with other professionals.  An obvious consideration here is the requirement to obtain advice concerning any legal issues that are relevant to the assessment.  A planner should also assist in the identification of other experts required to provide advice that will be integral to assessment e.g. Acoustic or Traffic Engineer.  

Expert Witness Statements prepared for the Court must be clearly presented and expressed.  They must be logical in their arrangement, unambiguous in language, and well supported with relevant plans, maps and photographs. 

Mediation

Where the jurisdiction incorporates a mediation process the expert witness should approach this stage somewhat differently because the process is one based on agreement and compromise rather than decision in favour of a particular party.  As mediation processes are usually without prejudice (not able to be used as evidence in later hearings), experts should approach them positively with the intention of agreement.  The mediation process should follow three basic steps: acceptance of the extent to which a development complies with the statutory framework; identification of areas of non-compliance; and agreement towards the measures required to achieve compliance. 

The Hearing

Preparation
Preparation starts well before the hearing and commences with the dialogues and preparation of assessments.  If considerable time has elapsed between these events and the hearing it is essential that the expert undertakes a refresher program involving re-reading the report, checking that the statutory framework has not changed and revisiting the site to identify changes.  Next it will be necessary to check that all relevant materials are ready to take to the hearing—witnesses who forget to take the relevant notes with them into the hearing do little to establish their professionalism.  Finally don't be rushed or flustered as you head to a hearing.  

On the Day
An expert witness should ensure they are dressed appropriately and avoid the body positions and gestures that convey defensive or insecure attitudes.  The expert witness should convey a confident and assured approach without arrogance. 

The verbal expression used in hearings needs also to be measured and controlled.  In answering questions the expert witness must avoid argument or debate with the questioner.  Don't be evasive or obstinate.  Instead, be prepared to concede points where they are not critical to the conclusion reached, remembering that the expert is not an advocate or an apologist for their client.  Where necessary provide explanations to answers but refrain from delivering a lecture.

Confinement to matters within an expert's field is also essential so it is essential to avoid being drawn into legal matters or issues within the field of other experts.  An expert witness must avoid exaggeration, refrain from guessing and abstain from comedy.  In all respects provide truthful answers that best assist the adjudicator in understanding why, as an expert, a particular conclusion has been reached.  

An expert witness's greatest asset is a reputation for integrity.  The successful expert witness is the one that is capable of convincing the adjudicator that their conclusion is solidly founded and devoid of bias.  These experts are able to convey a clear understanding of the issues and pertinent provisions and follow this with a thorough analysis that leads to a logical conclusion.  They demonstrate an openness for alternatives and deal with such propositions objectively and succinctly.  By these means these experts convey a professional attitude that is focussed on provision of unbiased advice for the adjudicator.

More Information

For more information on the role of expert witnesses, see, ‘The Role of Courts and Expert Witnesses: The South Australian Perspective’, Presented at NELA Conference - Judge Trenorden, (13 July 2005).

‘The Role of Expert Witness' in the ERD Court’ - Commissioner J Hodgson, (15 October 2004)