Planning solicitor or planning consultant: who to instruct
Consultants work on the merits, solicitors on the documents and the statutory powers. The tasks that belong to each, the ones that overlap, and four ways to stop them duplicating.
Instruct a planning consultant for the planning judgement and a planning solicitor for anything that turns on the meaning of a document or the exercise of a statutory power. That is the dividing line, and on most schemes it means the consultant runs the application and the appeal while the solicitor drafts the section 106, deals with CIL, and handles enforcement or any challenge in the High Court.
The question of planning solicitor or consultant usually arrives at the wrong moment, when something has already gone wrong. Decide the split at the start of the project and the handover points stop being arguments.
What each discipline is equipped to do
A planning consultant, typically a chartered town planner, works on the merits. Site appraisal and risk assessment before acquisition. Application strategy and the choice of consent route. Pre-application negotiation with officers. Assembling and directing the technical team. Drafting the policy case. Negotiating heads of terms in substance. Running appeals by written representations or hearing, and giving planning evidence at inquiry.
A planning solicitor works on the law and the documents. Drafting and completing the section 106 agreement. Advising on CIL liability, reliefs, exemptions and the consequences of getting a commencement notice wrong. Interpreting conditions and obligations where value turns on the wording. Title matters that affect delivery: covenants, easements, rights of light, ransom strips. Enforcement notices and prosecutions. Statutory challenge and judicial review.
Some work sits plainly with one and not the other. Some sits in the middle and that is where duplication happens.
| Task | Usually the consultant | Usually the solicitor |
|---|---|---|
| Site and policy appraisal | Yes | No |
| Application strategy and submission | Yes | No |
| Heads of terms, commercial content | Yes | Input |
| Section 106 drafting and completion | Input | Yes |
| CIL liability, reliefs and notices | Input | Yes |
| Condition wording at decision stage | Yes | Input on anything onerous |
| Appeal by written representations | Yes | No |
| Inquiry advocacy | No | Yes, usually counsel |
| Enforcement notice appeal | Evidence | Legal grounds |
| High Court challenge | No | Yes |
Policy judgement against legal interpretation
The useful test is to ask what the answer depends on.
If it depends on weighing material considerations, reading an adopted plan in context, predicting how an officer or an inspector will approach a balance, or knowing what evidence persuades, that is planning judgement, and a consultant is better at it and costs less.
If it depends on the meaning of words in a statute, a condition, an obligation or a decision notice, that is legal interpretation and a solicitor is better at it. Interpretation of a planning permission is a question of law decided on the document itself, which is why a view on what a condition means should come from someone who argues that kind of point for a living.
The practical case comes up all the time. A condition restricts occupation to persons employed in agriculture. Whether it is capable of being removed is a planning question about policy and need. Whether it currently bites on a particular occupier is a legal question about construction of the words.
Agreements, CIL and the drafting
Section 106 drafting is the clearest case for a solicitor, and underinvesting here is a recurring commercial error.
Three reasons. Obligations run with the land and bind successors, so a drafting error is inherited by whoever buys the site. Triggers and definitions decide cash flow, and the difference between "first occupation" and "occupation of the 25th dwelling" is often a seven figure timing difference on a large scheme. And a badly drafted obligation cannot be put right later unless the authority agrees to a variation, which it is under no duty to do.
CIL is its own discipline and a trap for the unwary. The liability notice, the assumption of liability, the commencement notice and the relief claims all run on strict timetables, and missing a step can lose a relief or trigger a surcharge regardless of the merits. Treat it as a legal workstream from the date permission is granted, not as an administrative task for the site manager.
Enforcement, challenge and litigation
Enforcement is where the two disciplines really do share the work. An appeal against an enforcement notice has statutory grounds, some legal and some factual, so the legal grounds and the drafting come from the solicitor while the planning merits and the evidence come from the consultant.
Statutory challenge is solicitor territory and the deadlines are short and unforgiving. A challenge to an appeal decision under section 288 of the Town and Country Planning Act 1990 must be brought within six weeks. Judicial review of a planning decision must be brought promptly and in any event within six weeks. Those periods do not flex because you were still deciding whether to instruct anyone.
There is also a regulatory point. Conducting litigation and exercising a right of audience in court are reserved legal activities under the Legal Services Act 2007, so a planning consultant cannot run a High Court case however experienced they are. Planning inquiries are different, because they are not courts, and a consultant can and does appear at them.
Counsel's opinion and when it earns its fee
A barrister's opinion is worth buying in four situations.
Where a point of statutory interpretation determines whether a scheme is possible at all, such as whether a permission has been lawfully implemented.
Before an inquiry where a legal issue will be argued, so that the planning witness and the advocate are working from the same analysis.
Where a decision is going to be challenged, by you or by someone else, and you need a view on prospects before spending on proceedings.
Where a funder or a purchaser asks for one as a condition of proceeding, which happens on sites with complicated planning history.
It is not worth buying to settle an argument about policy weight, or to give comfort on a judgement an experienced consultant has already made. An opinion on a merits question tends to produce a carefully hedged answer that moves nobody.
Working together without duplicating
Four arrangements prevent most of the overlap.
- Name one person who leads the project and holds the programme, usually the consultant during the application and the solicitor during the agreement.
- Decide who owns the condition schedule before the decision is issued, and have both read it, because an onerous pre-commencement condition is a legal and a planning problem at once.
- Agree that heads of terms are negotiated by the consultant and documented by the solicitor, rather than both negotiating.
- Give both the same document set. Most duplication comes from one of them working on a superseded version.
Specialist technical competence sits outside both disciplines. An acoustician, an ecologist or a fire engineer brings a competence neither a planner nor a lawyer has, and the question of who is qualified for what is a separate one, as acoustician qualifications in planning shows for one field, and what registration with a professional body means shows for another. The professional directory is where reviewers who can sign off technical drafts sit.
On a straightforward minor application you may need neither. On anything with an obligation, a CIL liability or a planning history, instruct both and tell each what the other is doing. The full report index sets out the technical documents the consultant will be commissioning.
This is general guidance, not legal advice; take advice from a solicitor on any legal question and check the position with your local planning authority before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
Who should draft the section 106 agreement?
A solicitor. Obligations run with the land and bind successors, so drafting errors are inherited by whoever buys the site, and trigger definitions decide cash flow. The consultant should negotiate the commercial heads of terms and the solicitor should document them, rather than both negotiating in parallel.
Can a planning consultant represent me at an appeal?
Yes for written representations and hearings, and as a planning witness at an inquiry. Inquiry advocacy is normally done by counsel. A consultant cannot conduct High Court litigation or exercise a right of audience in court, because those are reserved legal activities under the Legal Services Act 2007.
What are the deadlines for challenging a planning decision?
A challenge to an appeal decision under section 288 of the Town and Country Planning Act 1990 must be brought within six weeks. Judicial review of a planning decision must be brought promptly and in any event within six weeks. Those periods do not flex while you decide whether to instruct anyone.
Do I need a solicitor for the CIL paperwork?
On anything other than the simplest case, yes. The liability notice, assumption of liability, commencement notice and relief claims run on strict timetables, and missing a step can lose a relief or trigger a surcharge whatever the merits. Treat it as a legal workstream from the date permission is granted.
When is a barrister's opinion worth the fee?
Where statutory interpretation decides whether a scheme is possible, before an inquiry at which a legal issue will be argued, where a decision is likely to be challenged, or where a funder requires one. It is not worth buying to settle an argument about policy weight, which produces a hedged answer.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.