Rather than selecting their judges from the ranks of long-practising lawyers, they train them specially for a judicial role virtually from the moment they leave law school. Combined with the investigative method in courtrooms, it tends to get to the truth of cases more surely, quickly and cheaply than our adversary system. European judges ask a lot of questions of witnesses and even call witnesses, unlike Anglo-Saxon ones who leave it to the lawyers to put their case and sit mute while critical questions go unasked, usually for tactical purposes which are detrimental to the search for the truth.
It may be all right when both sides have equal legal strength, either from their own or the state’s resources. If not, the outcome is likely to be unfair.
This is one of the troubling things about Gary Humphries’ proposal to bring back lawyers into the planning appeals process, by attaching the Land and Planning Appeals Board to the Administrative Appeals Tribunal. The previous Government set up a lawyer-free system where each party came and presented its own case to the appeals board. Lawyers were not permitted represent parties. The trouble was that the bench was virtually lawyer-free, too. It meant appeals were heard devoid of legal input; injustice, inconsistency and procedural unfairness were inevitable.
Ideally, someone trained in law and dispute resolution could hear appeals (or at least be one of a bench of three) _ someone trained in the way French judges are trained. Such a judge would be able to ask questions and call for evidence and witnesses to see the merits of the case.
And then you could ban lawyers from representing parties at board hearings.
There is a good case for saying that in planning matters it is important to have a strong bench and not to allow legal representation of parties.
It is not just that in planning the sides are unequal; residents with little money and developers with a lot. Rather, it is because the thing being argued over is different for each party. The developer is seeking the opportunity to make a lot of money; residents are defending intangible things like amenity, light, lack of noise and so on. So a developer is likely to throw a lot of (tax deductible) money at lawyers to win the right to make more money. There is a limit to the (non-tax-deductible) money that a resident or group of residents will spend to defend amenity. Do they sell their house to defend their neighbourhood?
The strong bench is needed in planning appeals because a planning appeal body is not like a court. A court usually declares one side the winner and the other the loser. In planning compromises are available. Design changes and few dwellings can defend residential amenity while still allowing redevelopment. It is not a winner-take-all and it requires a strong bench to determine the middle ground. That exercise can only be done if the judge or board chair can call evidence, actively take part in questioning witnesses and order site inspections.
The other difficult with allowing lawyers in to planning appeals is that it can slant the development of the law. If the expensive legal talent is putting only one side of the issue, creation of legal principles protecting residents’ interests will get stunted. To take an analogy, the law of employment last century developed in a slanted way. Examples are the doctrines of common employment (workers consent to the negligence of their fellow workers) and last opportunity and contributory negligence (an employers’ negligence is excused if a worker had a chance to prevent injury or a worker’s negligence contributed to it however slightly). These enabled employers to escape liability for workers’ injuries. These doctrines developed only because of unequal legal representation and a passive bench.
Humphries was right to see defects in the present board _ its lack of legal and judicial strength. He is probably right to enlist the help of the Administrative Appeals Board, provided there is no application fee. But he should think before allowing lawyers to represent parties or allowing appeals into the court system. To do so will make the side more unequal and enable developers to get their way by forcing residents to unacceptable cost to defend their amenity.