Land and Environment Court New South Wales

• Medium Neutral Citation: Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 4) [2014] NSWLEC 166
• Hearing dates: 21 October 2014
• Decision date: 21 October 2014
• Jurisdiction: Class 4
• Before: Pepper J

Decision

Leave granted to applicant to rely upon the supplementary affidavit of Dr Stephen Debus affirmed 9 October 2014

• Catchwords: PROCEDURE: application for leave to rely on supplementary expert report - supplementary report required due to late publication of scientific material affecting the content of the original expert report - material relevant to principal issue for determination - no prejudice to parties if leave granted - leave granted.
• Legislation Cited: Uniform Civil Procedure Rules, rr 31.19, 31.20, Sch 7
• Cases Cited: Friends of Tumblebee Incorporated v ATB Morton Pty Limited [2014] NSWLEC 127
• Category: Interlocutory applications
• Parties: Friends of Tumblebee Incorporated (Applicant); ATB Morton Pty Limited (First Respondent); Cessnock City Council (Second Respondent)
• Representation: 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 Seeks Leave to Rely on a Supplementary Expert Report

1 By notice of motion filed on 15 October 2014, the applicant in these Class 4 judicial review proceedings, Friends of Tumblebee Incorporated ("Tumblebee"), seeks leave pursuant to either r 31.19 or r 31.20 of the Uniform Civil Procedure Rules 2005 ("UCPR") to rely upon the supplementary expert report of Dr Stephen Debus, dated 9 October 2014.

2 The application is not opposed by the first respondent, ATB Morton Pty Limited ("ATB"). The second respondent, Cessnock City Council ("the council"), has filed a submitting appearance. In my view, the application ought to be allowed.

Factual Background

3 The factual background to this application is set out in Friends of Tumblebee Incorporated v ATB Morton Pty Limited [2014] NSWLEC 127 (at [5]-[8]). It is not repeated here. Suffice it to say that the central issue for determination by the Court in the proceedings is whether or not, pursuant to s 78A(8)(b) of the Environmental Planning and Assessment Act 1979 ("the EPAA"), ATB's development application was required to be accompanied by a species impact statement ("SIS") because the application is in respect of development that is likely to significantly affect the Regent Honeyeater and its habitat.

4 In support of the claim that a SIS was required, Tumblebee relied on an expert report of Dr Debus, attached to an affidavit affirmed 8 May 2014 ("the first affidavit"). As Dr Debus explains in his most recent affidavit affirmed 9 October 2014 (attaching the supplementary expert report) since preparing his first affidavit a number of additional documents concerning the Regent Honeyeater and its presence on the land upon which the development is to take place (in particular, the Hunter Economic Zone, or "HEZ") have become available. According to Dr Debus, "these documents have led to a material change in my opinion expressed in my affidavit dated 8 May 2014."

5 The first additional document is a paper co-authored by the top three current Regent Honeyeater experts in the country published in September 2014, namely, after the date of Dr Debus' first affidavit. Dr Debus states that he received a copy of the paper on 26 September 2014.

6 The paper concerns:

(a) the contribution of the HEZ Regent Honeyeater breeding success and recruitment in relation to other Regent Honeyeater sites;

(b) the concentration of a Regent Honeyeater breeding event in 2007 in and around the HEZ but not in contiguous bushland in the wider Lower Hunter; and

(c) the occurrence of another Regent Honeyeater breeding event in and adjoining the HEZ in 2012.

7 Although, when preparing his first affidavit, Dr Debus was aware that the birds had been present in the HEZ in 2012, he was not aware, until the publication of the first additional document, that the birds had explicitly been recorded nesting there. This has led Dr Debus to conclude that the HEZ breeding area is "even more important than I understood at the time of writing my original affidavit".

8 The second additional document is the draft National Recovery Plan for the Regent Honeyeater 2013-2017 ("the draft Plan"). It was released on 18 September 2014. The draft Plan provides a "clear focus" as to what the Regent Honeyeater needs in order for its population to stabilise and recover. In particular, the draft Plan states that the areas of habitat must be increased and that there must be no reduction of remaining significant habitat. The draft Plan identifies the need for consent authorities to consider the impact of development on Regent Honeyeater habitat and the fact that any further loss of its forest or woodland habitat containing key tree species in regularly used areas would be significant.

9 In light of these two additional documents, in his supplementary report Dr Debus opines the following:

13. It is my opinion that the evidence presented in the Roderick et al. (2014) paper provides materially different, new information and perspective on:

(a) the relative importance of the Honeyeater's breeding events in the HEZ in 2007 and 2012, compared with other sites elsewhere and with the non-HEZ bushland in the Lower Hunter; and

(b) the HEZ as now potentially more important for the Regent Honeyeater than the Capertee Valley.

14. It is my opinion that the evidence presented in the draft Recovery Plan provides materially different, new information and perspective on:

(a) an enhanced understanding of what constitutes 'significant habitat' for the purpose of decision-making;

(b) the HEZ as a priority area needing protection; and

(c) the scientifically determined steps required for recovery of the Honeyeater's population, and therefore how these steps compare with the proposed action in the HEZ.

The Overriding Duty of Experts

10 It is a somewhat trite observation that the overriding duty of expert evidence is to assist the Court. So much so is contained at paragraph 2 of the Expert Witness Code of Conduct at Sch 7 of the UCPR ("the Code").

11 The new matters Dr Debus brings to the Court's attention are particularly significant in these proceedings, where the Court must determine for itself, as a jurisdictional fact, whether the development proposal is likely to significantly affect the Regent Honeyeater and/or its habitat, in order to decide whether or not the development application ought to have been accompanied by a SIS. This fact is to be established by the most current and best available evidence at the time of the hearing. Plainly, the two documents published in September 2014 are matters that the Court should consider in its assessment of the likely impact of the proposed development on the bird.

12 Dr Debus has done that which he is obliged to do, viz, bring to the attention of the Court additional material that he has become aware of, that has a bearing on the views he has expressed in his first expert report (see paragraph 5(4) of the Code). Given the late publication of both documents, Dr Debus cannot be criticised for not having referred to them in his first affidavit.

13 As ATB are able to meet the evidence by way of further expert evidence in reply that can be filed and served in sufficient time prior to the hearing being resumed on 29 October 2014, there can be no basis for refusing the leave Tumblebee seeks.

Leave Should be Granted

14 For all these reasons, leave is granted to Tumblebee to rely upon the second affidavit of Dr Debus affirmed 9 October 2014.

15 ATB is to file and serve any expert evidence in reply to Dr Debus' supplementary expert report by 9am, 27 October 2014.

**********

Decision last updated: 22 October 2014