Cases - Burroughs Day v Bristol City Council
Record details
- Name
- Burroughs Day v Bristol City Council
- Date
- [1996]
- Citation
- 1 EGLR 167, QBD
- Legislation
- Keywords
- Expert witness - Town and Country Planning Act 1990 - planning control
- Summary
-
The appellant proposed alterations to a listed Georgian building involving the construction of a lift shaft with a flat roof. This would be situated in the valley gutter between the double ridges of a roof. It would not exceed the height of the ridges and would not be visible from the street.
The High Court judge held that the proposals were not interior works as they would alter the exterior surface of the roof. He also held that, as the 'external appearance' must be affected, not just the exterior, it must affect the way in which the exterior is seen. The effect must be judged for its materiality in relation to the building as a whole. Whether the effect on appearance is 'material' depends in part on the degree of visibility. It also depends on the nature of the building and the nature of the alteration.
The judge took account of the fact the building was listed, of some distinction and within a conservation area, but found that the works would not materially affect the external appearance of the building as they were invisible except from some unusual vantage points.
The judge criticised the expert witnesses’ lack of independence in this case. They had been called by the local planning authority when applying for a declaration that proposed building works did not constitute 'development' for the purposes of the Town and Country Planning Act 1990.
'... it is not the role of an expert in a case such as this to express opinions as to the interpretation of statutory provisions. The expert evidence adduced before me went this far: indeed one town planning witness called by the council went further and decided that an estoppel pleaded by the solicitors ... did not arise. This represented a misuse of expert evidence and showed a misunderstanding of the role of an expert witness in a case such as this ...
The Council adduced the evidence of two witnesses described as "expert witnesses" ... Both were long-serving employees of the council (though (one) was now retired) and were not in any sense independent experts. Both appeared to regard advocacy for their employer as an integral part of their role as an expert. Both expressed opinions on statutory interpretation ... I can give only limited weight to any of their evidence'.
Approving the guidance in The Ikarian Reefer, the judge indicated 3 conclusions:
- 'Some of the expert witnesses were not independent, being employees or ex-employees of the council.
- Some of the expert witnesses apparently thought that it was an essential part of their function as experts to act as supplementary advocates for their clients, the council.
- Each of the expert witnesses, who were architects or town planners, took it upon himself to reach conclusions as to the interpretation of the statutory provisions, a matter on which expert opinion from a non-lawyer is neither admissible nor helpful.'