When planning counsel is worth the fee at an inquiry

Counsel earns the fee at a planning inquiry when the case turns on what a policy means in law, on whether the council acted lawfully, or on evidence that has to survive cross-examination by a barrister acting for the other side. For a single-issue design or amenity appeal with one witness, an experienced planning consultant appearing as advocate will usually do the job well for a fraction of the cost. So the real decision about planning counsel at inquiry is a decision about what kind of dispute you are in, and it is better taken when the appeal is lodged than three weeks before the sitting date.

Appeals under section 78 of the Town and Country Planning Act 1990 are heard by one of three procedures, and the Planning Inspectorate decides which applies. Only the inquiry procedure involves advocacy and cross-examination. That is the procedure where the question of counsel arises at all.

What the advocate does at an inquiry

The advocate runs the case. That means opening and closing submissions, examining your own witnesses, cross-examining the council's witnesses and any Rule 6 party's witnesses, dealing with legal points as they arise, and agreeing the wording of conditions and the section 106 obligation with the other side while the inquiry is sitting.

Advocacy also means triage. An inquiry rarely turns on every issue in the statement of case, and the advocate decides which two or three issues to press and which to concede politely on day one. A consultant who has written the planning proof and believes every paragraph of it can find that hard.

The procedural spine is set by the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 and the parallel rules for inspector-determined appeals. Proofs of evidence must be sent in not later than four weeks before the inquiry opens, and any proof longer than 1,500 words needs a written summary. Those deadlines govern when you need counsel's input, because advice after the proof has gone in is advice on a document you can no longer change.

Where a consultant can present the case instead

There is no requirement for a legally qualified advocate at a planning inquiry. Chartered planners appear as advocates regularly, and in a short inquiry on a narrow planning judgement they often do it better than a barrister who has been handed the brief late, because they know the site and the local plan.

A consultant advocate is the sensible choice when the issues are matters of planning judgement, the policy wording is not in dispute, the council is fielding its own officer rather than counsel, and the sitting is one or two days. Heritage harm, design quality, landscape impact and highway safety all fall into that group when the law is settled and the argument is about weight.

Think carefully if the council has instructed counsel and you have not. The inquiry is not a level field in that situation, and an officer witness being cross-examined by a barrister while your side relies on the same person to both give evidence and argue the case is a weak position to be in.

Cross-examination and the risk of doing it yourself

Cross-examination is a skill with its own grammar. Short closed questions, one proposition at a time, no speeches, no arguing with the answer, and a clear idea of the admission you want before you open your mouth. Most people who have not done it will instead deliver their own case as a series of statements and invite the witness to disagree.

The sharper risk runs the other way. If you are your own advocate you will also be a witness, which means you can be cross-examined on your own evidence and then have to stand up and make submissions about how it went. Inspectors are used to it and will not penalise you for it. But the transcript of a long and uncomfortable cross-examination does not improve a decision letter.

Where the appeal carries a real costs risk, the calculation changes again. The Planning Practice Guidance on appeals explains that costs can be awarded against either party for unreasonable behaviour, and unreasonable conduct at an inquiry includes pursuing a case with no evidence to support it. A barrister will tell you that early. A member of your own team who has lived with the scheme for two years may not.

The legal issues that need counsel

Some points are questions of law, and a planning witness should not be arguing them. The interpretation of a development plan policy is a matter for the court rather than a matter of planning judgement, which is why the drafting of a disputed policy is usually a legal submission rather than evidence.

The same goes for the operation of section 38(6) of the Planning and Compulsory Purchase Act 2004 where the plan is out of date, the statutory duties under sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, the adequacy of information for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, appropriate assessment under the Conservation of Habitats and Species Regulations 2017, and the scope of what a condition can lawfully require.

Section 106 drafting is the other recurring reason to instruct. An obligation that has to be completed and executed during the inquiry, with a clean set of triggers and a workable review mechanism, is a legal document under time pressure. Our note on budgeting a viability appraisal and the review it triggers covers the review mechanism side of that in more detail.

Instructing early rather than late

The common and expensive mistake is to instruct counsel after the statement of case has been served. By then the issues are pinned, and if the statement of case has not pleaded a point, raising it in a proof invites an objection and a wasted morning.

A better sequence is to take a short written opinion before the appeal goes in, on the merits and on which procedure to ask for. Then have counsel settle the statement of case, hold a conference with the witnesses once the proofs are in draft, and sit down again at the case management conference stage. On larger appeals that conference and the resulting case management note shape the timetable you then have to work to.

Early advice also sometimes kills the appeal, which is the least costly outcome available. A written opinion that says the Green Belt case will not clear the very special circumstances test costs a small fraction of an inquiry, and the same logic applies to the evidence work discussed in our piece on EIA screening and scoping request costs.

What to agree about fees before you instruct

Counsel's fees at an inquiry are normally built from a brief fee that covers preparation, the opening and the first day, plus refreshers for each further sitting day. Written work before the inquiry is usually charged separately, as is attendance at a case management conference.

Agree in writing, before instruction, what the brief fee covers, the refresher rate, whether reading time and conference time are inside the brief fee, the position on adjournments and on an inquiry that collapses, and whether a junior is involved. Agree who settles the section 106 and whether that sits inside the appeal brief or with the land lawyer. The way a planning agent's own fee is built up follows similar lines, as set out in what a planning agent's fixed fee includes.

As an illustrative example, a two-day inquiry on a five-dwelling refusal in a conservation area might need a short merits opinion, a settled statement of case, one conference and two sitting days, while an eight-day inquiry on a 300-home allocation with housing land supply, heritage and highways in dispute needs counsel from the start and a leading and junior split. The second has a legal budget an order of magnitude above the first.

Hearings and written representations compared

Most appeals never reach an inquiry, and the procedure you get shapes the legal spend more than any other factor.

The Inspectorate's procedural guide sets out the criteria it applies in choosing between them, and you can ask for a particular procedure when you lodge the appeal. If you want an inquiry because the case needs cross-examination, say why in the appeal form and plead it properly. If you would rather avoid the cost, a hearing on a contained set of issues is often the better forum, and the cost comparison for other appeal routes is covered in budgeting a lawful development certificate application.

One honest uncertainty: nobody can tell you in advance whether an inspector will be persuaded by advocacy or by the planning merits, and plenty of inquiries are won on a single answer given in cross-examination that no budget could have predicted.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional 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. See PlanScope pricing for one free report, £50 per report, or Professional for unlimited reports: see pricing.