Planning Inspectorate Newsletter - Issue 3
The Statement of Common Ground: A Missed Opportunity?
One of the keys to success as an expert witness at a planning inquiry is good preparation. The old military adage that if you fail to prepare you must prepare to fail could not be truer. This is particularly the case with expert witnesses preparing their proofs of evidence. Yet in my experience too often the preparation of the statement of common ground is overlooked by the parties until the last minute thereby undermining its purpose and value.
A statement of common ground is defined as “a written statement prepared jointly by the local planning authority and the appellant and which contains agreed factual information about the proposal which is the subject of the appeal”. As Annex 3(ii) to Circular 05/00 makes clear, the inclusion of agreed material in the statement of common ground should result in shorter proofs of evidence and shorter inquiries as it ought to facilitate the narrowing of the issues in dispute. It follows, in theory at least, that the scope and content of a statement ought to be agreed well before the witnesses have begun preparing their respective proofs of evidence and that the witnesses can then produce proofs that concentrate on the application of those facts to the various policy and other planning considerations relevant to the inquiry. This makes the late preparation of statements of common ground all the more perplexing.
One reason sometimes given for not agreeing the statement is that one side suspects that the other was trying to force backdoor “concessions” in the guise of agreed facts. This is particularly the case when agreeing what planning policies are relevant to the proposal. In my view this is an unnecessarily cautious approach because perceived relevance does not affect the weight, if any, that should be placed on the policy. As paragraph 4 of Annex 3(ii) makes clear statements should be kept factual and should not include opinion and comment. Also there is no reason why a statement should not record those areas where agreement is not possible.
Of course an inspector cannot be bound by a statement but the inspector may need to provide the main parties with an opportunity to comment if he or she takes or is likely to take a different view (The courts sometimes refer to this as “the fair crack of the whip” principle – see Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1253).
It is a pity that the opportunities provided by these statements are being missed. One solution may be to amend the rules so that the statement is prepared and agreed within, say, four weeks after the statements of case have been exchanged. It would then enable the witnesses to produce more concise proofs. It may have the added benefit of encouraging dialogue between the parties and could, in some cases, facilitate a negotiated settlement without the need for an inquiry.
Martin Edwards
39 Essex Street
