Land and Environment Court New South Wales

• Medium Neutral Citation: Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) [2014] NSWLEC 134
• Hearing dates: 21 August 2014
• Decision date: 21 August 2014
• Jurisdiction: Class 4
• Before: Pepper J

Decision

See orders at [38].

• Catchwords: EVIDENCE: expert evidence - whether evidence of an opinion - whether opinion based on specialised knowledge - whether reasoning of expert sufficiently disclosed - whether evidence probative - evidence rejected.
• Legislation Cited: Evidence Act 1995, ss 76, 77, 79(1); Uniform Civil Procedure Rules 2005, Pt 3 Div 2, Sch 7
• Cases Cited: Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588; Friends of Tumblebee Incorporated v ATB Morton Pty Limited [2014] NSWLEC 127; Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 3) [2014] NSWLEC 133; HG v The Queen [1999] HCA 2; (1999) 197 CLR 414; Honeysett v The Queen [2014] HCA 29; (2014) 88 ALJR 786; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
• Category: Interlocutory applications
• Parties: Friends of Tumblebee Incorporated (Applicant); ATB Morton Pty Limited (First Respondent); Cessnock City Council (Second Respondent)
• Representation: Mr J Lazarus with Ms J Walker (Applicant); Ms H Irish (First Respondent); Submitting Appearance (Second Respondent); Environmental Defender's Office NSW (Applicant); ATB Morton Pty Limited (First Respondent); Marsdens Law Group (Second Respondent)
• File Number(s): 40027 of 2014

Judgment

Tumblebee Objects to a Town Planning Report

1 The background to this evidential ruling is contained in Friends of Tumblebee Incorporated v ATB Morton Pty Limited [2014] NSWLEC 127 (at [5]-[8]):

5 ...this case concerns a challenge to the council's determination of a development application, lodged by ATB, on 23 October 2013. The development consent is for the construction of a steel fabrication workshop and distribution facility and associated infrastructure in Weston, New South Wales. The proposal includes the clearing of approximately 3.2ha of habitat for the Regent Honeyeater, which is listed as a critically endangered species under Sch 1A of the Threatened Species Conservation Act 1995.

6 The development application was not accompanied by a species impact statement which Tumblebee claims is required pursuant to s 78A(8)(b) of the EPAA. That provision provides as follows:

(8) A development application (other than an application in respect of State significant development) must be accompanied by:

...

(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats-a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

7 It is Tumblebee's case that the development is likely to significantly affect the Regent Honeyeater and its habitat, and therefore, the development application ought to have been accompanied by a species impact statement. Because at the time the council purported to determine the development application there was no species impact statement, the determination is invalid.

8 There does not appear to be any serious dispute between the parties that encompassed within the asserted likely effect that the development would have on the Regent Honeyeater, is a significant impact on both the species and its habitat, insofar as any changes to the habitat of the Regent Honeyeater would also be likely to have a significant effect on the Regent Honeyeater itself. This assertion has been met in the ecological evidence relied upon by the parties (Dr Stephen Debus, on behalf of Tumblebee, and Mr Craig Anderson, on behalf of ATB).

2 In this application, the applicant, Friends of Tumblebee Incorporated ("Tumblebee"), objects to parts of the affidavit of Mr Craig Anderson affirmed 15 July 2014 that rely on Attachment H to that affidavit, and the entirety of a supplementary affidavit affirmed by him on 14 August 2014.

3 At the time the objection was made, I gave truncated reasons for upholding the objection and rejecting the part of the affidavit relying on Attachment H together with Attachment H itself and the entirety of Mr Anderson's supplementary affidavit. The reason for the overly succinct nature of my reasons was to ensure that the hearing concluded in the time allocated to it. At the time I stated that I would deliver more fulsome reasons at a later date. This is that judgment.

4 Mr Anderson is, by his own description, an "ecologist". His expertise is relied upon by the respondent, ATB Morton Pty Limited ("ATB"), in these proceedings.

5 Attachment H to Mr Anderson's affidavit is a report authored by Mr Robert Dwyer, the Planning Manager at RPS ("the Dwyer Report"). The Dwyer Report purports to express opinions concerning town planning matters of relevance to the proceedings.

6 Mr Anderson's supplementary affidavit refers to paragraphs 37 to 39 of the Dwyer Report and states that he undertook an independent review of matters referred to in those paragraphs, and consequently, he is "independently satisfied that the findings of RPS set out in Table 1 on pages 77 and 78 of my First Affidavit as to the status of each development application is correct."

7 Table 1 of the Dwyer Report is responsive to a summary document relied upon by Tumblebee entitled Summary of Development Approvals Involving the Clearing of Native Vegetation Within the Hunter Economic Zone Granted Up to April 2014 ("the Summary").

8 The Summary listed the number of hectares permitted to be cleared in various concept plan and development approvals in close proximity to the land the subject of the development application approved by Cessnock City Council ("the council"), and challenged in these proceedings ("the consent"). It was prepared because it is a central feature of Tumblebee's claim that in assessing the impact of the proposed development regard cannot be had merely to the 3.2ha of land permitted to be cleared under the impugned consent, rather, regard must be had to the total clearing of land permitted in the Hunter Economic Zone ("the HEZ") in order to properly assess the cumulative significance of the loss of an additional 3.2ha of Regent Honeyeater habitat.

9 It is not necessary to reproduce Table 1 for the purposes of this judgment. Suffice it to say that Table 1 updates the Summary to "include a 'Status (RPS June 2014)' column and a column indicating the amount of clearing actually undertaken up until 30th June 2014." The reference to a "'Status'...column" is a reference to whether, in Mr Dwyer's opinion, the approval has lapsed or has been partially or wholly completed.

10 In his affidavit Mr Anderson was asked to opine on the following question:

Question 5 - Cumulative Impacts

In your opinion, is there likely to be any cumulative impact arising from existing developments in the HEZ LEP area. In forming your opinion, please consider the cumulative impact arising from existing and proposed developments as referred to in the Applicant's development approvals table.

11 He relevantly expressed his opinion thus:

Response:

35. If maximised development of the HEZ LEP area occurred in accordance with the gazetted zonings, associated land use controls, relevant approvals and guiding environmental management strategies, then a loss of the majority of vegetation from within the industrial zoned lands (excluding "Deferred Areas" as nominated within the Assumed Concurrence - see Attachment F) may occur. This statement is made on the assumption that approval for such development would be able to be obtained under the Environmental Planning & Assessment Act 1979 (i.e. the state approvals process), bearing in mind that a Commonwealth EPBC approval is in place (see Attachment G) which also contains controls on vegetation clearing and retention.

36. Under the above scenario, as development and associated vegetation clearing progressed within the HEZ LEP area, then the impact of such clearing would be likely to have a cumulative and incremental impact on the amount of vegetation, and hence habitat present for species such as the Regent Honeyeater.

37. An assessment has been undertaken of the two Tables prepared by the NSW EDO (noting that only the first of these has been the subject of a qualified direction by the Land and Environment Court under s50 of the Evidence Act 1995), namely:

· Summary of Development Approvals Involving Clearing of Native Vegetation within Hunter Economic Zone granted up to April 2014; and

· Summary of Permissible Development within Hunter Economic Zone

The assessment was prepared by RPS (July 2014), and is included herewith as Attachment H.

38. The key points of outcome of the RPS (2014) assessment as relates to existing development approvals include:

· Of the 157.6ha indicated by NSW EDO as being approved for clearing, only approximately 27.5ha (17.4%) has been cleared in accordance with the respective approvals

· Aside from a 0.86ha development approval for a proposed Concrete Batching Plant which is still current (but not cleared), all other previously approved developments that have not been cleared have now lapsed.

39. The key points of outcome of the RPS (2014) assessment as relates to permissible development includes:

· The possibility of a large number of the nominated permissible without consent and permissible with consent uses in the E1 National Parks and Nature Reserves Zone and the E2 Environmental Conservation Zone actually occurring in the future would be low having regard for the NSW DEC Assumed Concurrence (see Attachment F) and the Commonwealth EPBC Approval (see Attachment G) as relates to the HEZ site, and the land management commitments contained therein.

· Any development proposal within IN1 Industrial zoned lands will be subject to standard development controls under the relevant section of the EPA Act, and be determined on an individual merits based assessment process.

12 Paragraphs 37 to 39 above, together with Attachment H, and the supplementary affidavit of Mr Anderson, were objected to by Tumblebee on the following bases:

(a) first, Mr Anderson is an ecologist, not a town planner, and therefore, his evidence was opinion evidence contrary to s 76(1) of the Evidence Act 1995;

(b) second, the reasoning of neither Mr Anderson nor Mr Dwyer was sufficiently disclosed in their reports;

(c) third, in expressing his opinions, Mr Dwyer did not comply with the Expert Witness Code of Conduct in Sch 7 of the Uniform Civil Procedure Rules 2005 and there was no statement by him that his Report complied with the Code; and

(d) fourth, Mr Anderson's evidence was not probative because evidence is not required to interpret the planning controls Mr Dwyer refers to in his Report, and in any event, the approvals summarised in Table 1 of that Report speak for themselves.

Opinion Evidence: Specialised Knowlege

13 Section 76(1) of the Evidence Act states a rule of exclusion:

(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

14 It is indisputable that in the impugned paragraphs referred to above and in his supplementary affidavit Mr Anderson purports to give evidence of an opinion. As such it is inadmissible unless it comes within one of the exceptions to the opinion evidence rule in Pt 3.3 of the Evidence Act.

15 The exception on which ATB relied is contained in s 79(1) of that Act. It states that:

(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

16 In Honeysett v The Queen [2014] HCA 29; (2014) 88 ALJR 786 the High Court explained the operation of the exception provided for in s 79(1) of the Evidence Act as follows (at [23] and [24]):

23 Section 79(1) states two conditions of admissibility: first, the witness must have "specialised knowledge based on the person's training, study or experience" and, secondly, the opinion must be "wholly or substantially based on that knowledge". The first condition directs attention to the existence of an area of "specialised knowledge". "Specialised knowledge" is to be distinguished from matters of "common knowledge". Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines "knowledge" as "acquaintance with facts, truths, or principles, as from study or investigation" (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc: "the word 'knowledge' connotes more than subjective belief or unsupported speculation. ... [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds".

24 The second condition of admissibility under s 79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert's opinion depends "observations and knowledge of everyday affairs and events". It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based.

17 The complaint made by Tumblebee is that Mr Anderson did not demonstrably express an opinion on the likely cumulative impact arising from existing developments in the "HEZ LEP area" that was based on his specialised knowledge informed by his training, study or experience.

18 In order for Mr Anderson to proffer an admissible opinion with respect to Question 5 referred to above and in relation to the Dwyer Report, it was necessary for ATB to demonstrate, first, that he had specialised knowledge based on his training, study or experience that permitted him to express the opinions he did in paragraphs 38 and 39 of his evidence. Second, it was necessary for ATB to demonstrate that these opinions were "wholly or substantially based on that knowledge" (Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [35]). Further, it was incumbent upon the opinion of Mr Anderson to be "presented in a form that makes it possible to answer that question" (HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [39] per Gleeson CJ).

19 As the plurality of the High Court emphasised in Dasreef (at [37]):

37 It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.

20 A failure to demonstrate that an opinion expressed by a witness is based on the witness' specialised knowledge which in turn is based on his or her training, study or experience is a matter that goes to its admissibility, and not weight (Dasreef at [42]).

21 Mr Anderson detailed his expertise in the body of his affidavit as follows (emphasis added):

1 I am an Ecologist. I have approximately 20 years experience in environmental consulting and associated roles.

2 Much of this work has involved ecological literature and legislation review, ecological field survey and monitoring, ecological impact assessment and input into land use planning, ecological management strategy preparation, and ecological impact assessment report preparation required to address relevant legislation relating to a variety of land use proposals.

3 Much of the above work has involved components relating to the survey, assessment and management of impacts on native bird species, including Anthochaera phrygia (Regent Honeyeater).

22 In short, Mr Anderson is an ecologist, with a particular specialisation in avian ecology.

23 ATB conceded that Mr Anderson was not a qualified town planner. He holds a Bachelor of Applied Science in Environmental Assessment and Management and a Graduate Diploma in Archaeological Heritage, but no specific town planning certification or qualifications are possessed by him. Nevertheless, ATB submitted that Mr Anderson's experience and specialised knowledge and training enabled him to properly express the opinions he did in his evidence at paragraphs 38 to 39.

24 In his curriculum vitae Mr Anderson described his "Field of Special Competence" as:

Fields of Special Competence

· Production and peer review of detailed environmental impact assessment documentation. Author and / or Manager of hundreds of ecological / environmental / bushfire / historical heritage / archaeological heritage / strategic & statutory planning documents over approximately 20 years of environmental work

· Detailed ecological field survey, covering all aspects of terrestrial and aquatic flora and fauna

· Expert witness legal representation

· Ecological Management Planning, ranging from individual species to full ecosystem management

· Project Management and delivery of complex projects, including projects worth more than $100M

· Project Management (including areas outside environmental sphere)

· Environmental Due Diligence processes for both asset procurement and divestment

· Management and co-ordination of teams producing EIA documentation

· Identification of strategic approval pathways and key project risk evaluation and management

· Extensive experience in conflict resolution, impact mediation and outcome negotiation on large scale and contentious projects

· Project advocacy and representation with all levels of stakeholders

· Detailed knowledge of land and infrastructure development processes

· Detailed knowledge of coal mining development and operational processes

25 No attempt was made by ATB to elicit further information from Mr Anderson concerning his town planning expertise, study, training or experience.

26 In my opinion, the high level of generality employed by Mr Anderson to describe his special competencies does not adequately demonstrate that he had either training, experience or knowledge permitting him to express the opinions he did in answer to Question 5 or in his supplementary affidavit.

27 Nor did his employment history assist. Apart from his present position (Director of Anderson E&P, Environmental Planning Consultants, Newcastle, since 2013 only), his employment history revealed a variety of roles in management. These roles were described in language that did not indicate with sufficient clarity or precision the extent to which, if any, Mr Anderson has experience in town planning matters or has engaged in providing advice on this highly specialised and often technical subject-matter. In the present case, his advice included, for example, expressing a view on whether the approvals referred to in the Summary had lapsed and providing commentary on the permissible uses in the E1 National Parks and Nature Reserves Zone, the E2 Environment Conservation Zone and the IN1 Industrial zoned lands having regard to various planning controls.

28 In my opinion, ATB have not demonstrated that the views expressed by Mr Anderson at paragraphs 37 to 39 of his evidence were wholly or substantially based on appropriate specialised knowledge. As a consequence, the exception to the opinion evidence rule contained in s 79(1) of the Evidence Act does not apply and the evidence must be rejected. This includes a rejection of Attachment H (the Dwyer Report), which was relied upon by Mr Anderson solely for the purpose of expressing the impugned opinions (see s 77 of the Evidence Act), and his supplementary affidavit which was wholly dependent on the admissibility of that Attachment.

29 This is sufficient to uphold Tumblebee's objection. However, because argument was devoted to the remaining bases of the objection, and in the event that the above conclusion is incorrect, I will briefly consider the additional bases of objection to the evidence raised by Tumblebee.

Opinion Evidence: Failure to Disclose Reasoning

30 In Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 3) [2014] NSWLEC 133, I considered the adequacy of the reasoning of Mr Dwyer in his Report and concluded that it did not disclose a sufficiently transparent basis for the conclusions he proffered therein. The Report was therefore rejected for this reason (amongst others). I rely, without reproduction, on the analysis contained in Tumblebee (No 3) and the cases referred to therein (especially Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]).

31 The same criticism can be levelled against the opinions expressed by Mr Anderson at paragraphs 37 to 39 of his evidence. For example, it is not known how he has concluded that only 27.5ha of land has been cleared, or that, with one exception, "all other previously approved developments that have been cleared have now lapsed", in paragraph 38. Nor is it known how he concluded that the possibility of a large number of the nominated permissible without consent uses in various zones actually occurring in the future would be low, in paragraph 39. In both instances Mr Anderson simply parrots, without more, the conclusions expressed by Mr Dwyer. It therefore follows that the paucity of reasoning infecting Mr Dwyer's Report have equally infected the opinions of Mr Anderson.

32 The failure of Mr Dwyer and Mr Anderson to properly disclose the basis of their reasoning for the opinions they expressed in their respective reports means that the Court is unable to conclude that their evidence was wholly or substantially based on their specialised knowledge, and therefore, the exception to s 76(1) contained in s 79(1) of the Evidence Act cannot apply.

Failure to Comply with the Expert Witness Code of Conduct

33 The basis of this objection was that, first, neither Mr Anderson nor Mr Dwyer had complied with the Expert Witness Code of Conduct ("the Code") because their reasoning was not sufficiently disclosed in their reports. This has been dealt with above.

34 Second, there was a complaint that Mr Dwyer had not, in his Report, acknowledged the Code.

35 In my view, the second assertion is, however, misconceived to the extent that ultimately it is Mr Anderson's evidence against whom objection is taken, and Mr Anderson was, as he states in his affidavit, provided with a copy of Div 2 of Pt 3 of the UCPR and a copy of the Code. This is sufficient.

Mr Anderson's Evidence is Not Probative

36 In the context of a challenge to the admissibility of the Dwyer Report the Court has concluded that, in part, the Report lacks probative value insofar as the second part of the Report does no more than comment upon planning controls and instruments that the Court is equally capable of reading absent the need for expert evidence (Tumblebee (No 3) at [48]-[49]).

37 To the extent that Mr Anderson repeats Mr Dwyer's evidence in this regard, the same finding applies.

Conclusion

38 For the reasons given above, the Court upholds Tumblebee's objections to Mr Anderson's affidavit, including Attachment H, and does not admit this material into evidence. Furthermore, because Mr Anderson's supplementary affidavit is wholly reliant on the admissibility of Attachment H, it must also be rejected in its entirety.

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Decision last updated: 29 August 2014