What Does A Planning Lawyer Do?

Fair question. Particularly at this festive time of year for planning lawyers given the annual publication yesterday by Planning magazine of its Planning Law Survey (16 June 2023, subscription only).

Perhaps recognising our narcissism as a profession, the magazine’s survey of planning lawyers doesn’t rank us by size, turnover or diversity as it does with planning consultants. Instead, it’s a survey of other professionals (“The firms and individual solicitors singled out in this year’s Planning Law Survey by a panel of 195 consultants, developers, councils and other client groups”) as to how highly we and, where relevant, our firms are “rated” (whatever that means). And don’t we all want to be loved? Don’t we just purr at the attention?

To declare an interest, obviously personally I love it. Thank you Planning magazine and thank you those who voted.

To declare another interest, personally I hate it. Inevitably good people are excluded – there may be seven solicitors from my firm in this year’s top 20 but, honestly, we could fill every place on it and more besides! And there are many lawyers from other firms who are as good (if being “good” is the criterion, as opposed to just having the necessary brand recognition – a large element of the rankings is inevitably down to brand recognition).  And have we spoken about the humble brags and (this is not meant as a humble brag) the imposter syndrome arising?

So, what is a planning lawyer in the first place? What does a planning solicitor do? What does a planning barrister do? What are you actually rating us on?

Planning law is short-hand for a fluctuating bundle of areas of law, the breadth or narrowness of the bundle depending on the individual. In England and Wales, its core is of course the Town and Country Planning Act 1990 and related legislation and case law, as a strand of public/administrative law. But nowadays I would expect specialist knowledge of aspects of highways law, heritage law, environmental law relevant to development consenting (including environmental impact assessment, strategic environmental assessment and habitats protection), the Freedom of Information Act and Environmental Information Regulations, the community infrastructure levy, local government law and other relevant legislative areas. Some may be particular specialists in for instance compulsory purchase, infrastructure planning, Parliamentary processes and/or rating.  I would also expect a working knowledge of other areas of law – in most roles you aren’t going to be getting far without a working knowledge of, for example, contract, tort, real estate, corporate, banking and trusts law – if only to the extent of knowing when to call in a specialist. If you engage at all in litigation, you need to understand court processes. And there are some areas which might be thought to be close to planning law which often fall in a different pigeon-hole, for instance housing law, alcohol and events licensing and the detailed operation of the Building Regulations.

Obviously, it’s a split legal profession in England and Wales: solicitors and barristers (not to forget legal executives as well).

What does a planning solicitor do?

• Of course, much non-contentious legal work, including preparing and negotiating planning, highways and other statutory agreements.

• Give specialist advice in relation to relevant aspects of real estate,  corporate or other corporate transactions.

• Give advice as to strategy and legal interpretation – sometimes by way of an advice note equivalent to a barrister’s opinion, sometimes iteratively through close ongoing contact with the client and team.

• Correspond with external parties (not the role of the Bar).

• Undertake legal audits of draft application and environmental statement submissions in relation to more complex schemes.

• On the contentious side, a solicitor needs to be on the record for the purposes of litigation and will usually co-ordinate the litigation process for their client , communicating with the court and the other parties and instructing the barrister.

• For planning appeals and other statutory processes (eg highways, compulsory purchase) the extent of the solicitor’s role depends on the scale and complexity of the project and the wishes of the client – either right at the centre of things as coordinator, or being called upon for specific tasks.

Private practice solicitors will usually operate as a team, in a firm. You don’t instruct the individual – you instruct the firm.

What does a planning barrister do? You’re probably better off asking a planning barrister but here goes:

• Advocacy in the High Court and beyond is the domain of those with a right of audience – barristers and those solicitors who have qualified to have the higher right. In litigation, advocacy is of course the final, most visible, lap – after initial advice has been given, pleadings settled and skeleton arguments prepared.

• Anyone – lawyer, non-lawyer, barrister or solicitor – can appear as advocate at a planning inquiry, but again the Bar has retained a central advocacy role – a barrister is the natural choice as advocate for cases of any complexity given his or her experience and training. Even where the forum doesn’t call for traditional advocacy – eg hearings and examinations – the barrister can play a valuable role in marshalling and stress-testing the case, evidence and witnesses.

• Giving advice, whether as to strategy or as to legal interpretation, whether in meetings  or by way of formal opinion.

Private practice barristers will usually operate within a set of chambers, as self-employed individuals.

There are a few activities, “reserved legal activities”,  which only can be carried out by an appropriately regulated lawyer. I’ve already mentioned the exercise of a right of audience. Another is the conduct of litigation (except in very specific circumstances non-lawyers should never be tempted to go on the record with the court in relation to legal proceedings). Another is preparing documents for registration at Land Registry and preparing other instruments relating to real or personal estate (I take this to include for instance section 106 agreements and agreements under section 38 of the Highways Act 1980 – solicitor or another qualified legal professional is required).

Maybe, aside from the usually forward looking focus in planning (“what is likely to happen/how can we influence that?” rather than “what happened/who was to blame?”) the teamwork element is what is most enjoyable. There are many areas where there are potential overlaps between the roles of lawyers and planners. I hope that a big part of what clients rate all of us on, lawyers and planners alike, is the extent to which we can:

• work in seamless and efficient project teams.
• explain clearly for them our now ridiculously complex planning system and collectively guide them to good outcomes
• remain professional – people they can trust.

I suspect I have only scratched the surface. And that you will have views. What have I missed?

Simon Ricketts, 17 June 2023

Personal views, et cetera