Barristers: Access all areas

The new planning regime should see a shift away from courtroom confrontation towards advisory work at an earlier stage and input from more parties, finds Domenic Donatantonio.

Ricketts: Individuals are more aware of their rights and willing to litigate to defend them
Ricketts: Individuals are more aware of their rights and willing to litigate to defend them

Like everyone in the planning field, barristers are continually adapting to reflect changes in legislation, policy and practice. Yet clients still cite exhaustive knowledge of the law, presentational skills and accessible ways of working as key factors for consideration when appointing silks and junior barristers.

Communities secretary Eric Pickles is the latest in a long line of planning ministers to talk of simplifying procedures and reducing the need for barristers' advice. "But the reality is that the system now encompasses most of society's problems," says Simon Ricketts, a partner at law firm SJ Berwin. "Individuals are more aware of their rights and willing to litigate to defend them."

There are few signs that barristers are being cut out of work at public inquiries. "We are still in a period of uncertainty for developers and planning authorities as we seek to deliver the localism agenda. So there is still an element of planning by appeal," says Kathryn Ventham, a director at consultancy Barton Willmore.

The bar is also still prominent in plan-making, Ventham finds. "Barristers are becoming involved early on, either in reviewing councils' evidence base or preparing developers' input," she says. "This could be in terms of reviewing the justification for proposed levels of housing and employment growth."

Angus Walker, a partner at law firm Bircham Dyson Bell, says clients are looking for clear legal and tactical advice before inquiries or hearings. "They also look for good inquiry skills, such as cross-examination and adaptability, should matters change," he adds.

Yvonne Walsham, legal services built environment manager at Walsall Council, points to a number of factors in choosing the right barrister. "We look for the way they bring in witnesses and commercial consultants, whether they are good at leading a team, and of course value for money, efficiency and awareness," she says.

Walsham says presentation style is key. The new planning regime is expected to foster a move away from confrontational court and inquiry cases towards input from more parties, particularly on a local level. She looks for barristers who are "moderate, not flamboyant".

Ventham also recognises that each barrister has a different technique. "It depends on the type of project whether you need to take a quiet or a more forceful approach," she says. "Barristers must also be able to stand back from a project and view it as the opposing party would in the case of an appeal. I am looking for someone who can anticipate the questions that the opposing side would be asking."

So how is the planning bar rising to the challenge? Robin Purchas QC, head of chambers at Francis Taylor Building, identifies some key attributes for success. "We need to offer objectivity, comprehensive expertise, advocacy skills, strategic and tactical guidance, team player skills and clear and practical advice," he concludes.

Sasha White, a barrister at Landmark Chambers, says: "Our clients look for practical answers that give them the advice they need in an accessible and commercial manner. They want advice that implicitly instills confidence that it is the right advice, reflecting both their position and the position in law and policy. The most successful advocates are unquestionably those who engage with the decision-making body in an effective, constructive and approachable manner."

Ricketts pinpoints three skill sets that he looks for from barristers. "In advisory work, you need someone who is authoritative and creative and makes an analytical input which builds on the team's thinking and arrives at the correct legal answers and a practical, positive way forward," he says.

"For public inquiries, barristers need an understanding of, and empathy with, the various technical disciplines and the client's objectives, together with good leadership and project management skills and the emotional intelligence to deal constructively with whatever issues are thrown up. In court, I want to be sitting behind the biggest brain in the room, with superlative powers of expression and the mental agility to win any point."

The Localism Bill will bring a new set of challenges for the planning bar. "There is a shift away from contentious advocacy at public inquiries to more advisory work at an earlier stage in the process," says White. "There is also a marked increase in High Court work. The localism agenda will lead to a more interventionist legal approach, with neighbourhood plans and orders coming under scrutiny."

When it comes to fees, clients are looking for a pragmatic approach. "We usually charge an hourly rate but there is more flexibility now, particularly for those who wish to have a fixed fee," says White. "Success-related bonuses are still rare."

Ricketts says a traditional approach avoids surprises. "Fees for consultations and written work, together with brief fees and daily 'refreshers' for court work and inquiries, work well. But it demands discipline on the part of the instructing professional."

Ventham says barristers' fees should be governed by the scale of the project and the type of proposal. "For appeal work, clients generally prefer a fixed fee to give them certainty on costs," she says. "For work on the evidence base or local development framework, it is generally on an hourly rate for set items which emerge as the process unfolds."

In a technological age, clients should be wary of overloading barristers with information. "Get the balance right between what should be dealt with by the planning consultant or solicitor, and what needs counsel's input," says Ricketts. "Copying barristers into every email destroys the value of their role."

The top five planning barristers
Graphic: Top-rated planning silks
Graphic: Top-rated juniors
Top-rated under 35s
More from The Guide to Planning Lawyers 2011-12


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