Insider tips – How essential are expert witness’ to win a VCAT case?

The appearance of expert witness’ in town planning appeals is common practice. All parties can call experts they believe are pertinent to their case and all the other parties in the matter have the right to cross examine the witness. This article will explain the role of witness, set out the pros and cons of engaging them, debunk some common perceptions and describe the circumstances under which you might consider engaging one.

The role of an expert witness?

It is to inform the tribunal. Specifically on an area of technical knowledge that the witness has demonstrated professional expertise in. The witness will provide an opinion based on a combination of their professional expertise and the instructions they receive from the advocate running the appeal. The tribunal can then decide how much weight to place on the evidence in forming their decision.

Do they act in their clients’ interests?

There is a stark distinction between an advocate and an expert witness in planning appeal at VCAT. It is the role of the advocate to represent their clients interests. It is true to say that the opinions and interests of the client align if a witness has been engaged to appear in a hearing. However, expert witness’ must base their opinion on a professional assessment only. This includes opinions that may not wholly align with their own clients interests.

What are the most common expert witness’ that appear in planning hearings?

Professional experts on traffic impacts, landscape architecture, arborists, town planning and urban design are amongst the most frequently used experts at VCAT. Other experts we have engaged in the past include professional risk assessors for threats to human life and civil engineers.

The most common circumstance under which an expert witness appears is when there is disagreement between decision makers and permit applicants about whether a proposal presents an acceptable outcome. For example, local councils frequently refuse applications seeking a dispensation of car parking. If an applicant elects to appeal this decision then they would likely appoint an experienced traffic engineer to present expert evidence during a hearing that supports their proposed dispensation based on the specifics of the site or proposal. Some of the features that would influence the opinion of the professional engineer might include the availability of public transport, or the availability of public street car parking. The engineer would then prepare an expert witness statement, also known as their evidence in chief, that outlines their opinion, the rationale and the information relied on to inform that opinion.

What are the pros of engaging a witness?

• The tribunal will typically give more weight to the opinions of an expert than the submissions of an advocate.
• They provide invaluable support for your advocate running the case.
• They can inform the tribunal on technical information that may be beyond the scope of knowledge of the individual tribunal member.

What are the cons?

• Their professional opinions may not align with the clients’ interests.
• Expert witness statements are circulated 10 business days before a hearing giving other parties time to prepare cross examination questions that must be answered during a hearing and ‘on the spot’.
• The tribunal is not obliged to agree or accept the opinions of expert witness

The use of expert witness is common for legal practitioners such as barristers acting as advocates in planning appeals. They are also common for larger or publicly contentions developments. The decision on whether or not to engage an expert witness is case specific and depends on the matters in dispute. The previous example of a traffic engineer is an obvious example of a situation where a client should always appoint an expert witness. Other common examples are where there is a disagreement about the extent of landscaping opportunities (landscape design witness) or a proposal is inconsistent with neighbourhood character (urban design or planning witness).