Hinset Pty Ltd v Lane Cove Council

Land and Environment Court (NSW)|2011-07-11|Before: Pepper J, Mr P

Introduction 1This is an application by Lane Cove Council ("the council") for a direction under r 31.20(2)(e) of the Uniform Civil Procedure Rules 2005 ("UCPR"), that the number of bushfire expert witnesses who may be called to give evidence by the applicant, Hinset Pty Ltd ("Hinset"), be limited to only one expert witness. 2At the conclusion of the application the Court ruled that the council had not been successful and that no direction would be given. These are the reasons for that ruling.

The Contentions at Issue in the Class 1 Proceedings 3The proceedings concern an appeal against a refusal of a development application (DA D266/10, or "the DA") by the council on the grounds that inadequate information had been provided by Hinset to demonstrate that the existing road network in the precinct of the development was able to adequately and safely cater for emergency vehicle ingress and evacuating vehicle egress in a bushfire emergency, in circumstances where the cumulative effect of the proposed development, and any likely future development, would result in increased vehicle movements and reliance on the existing infrastructure. 4The DA sought consent for the demolition of three existing dwelling houses and the construction of a four storey residential flat building containing 32 dwellings with associated two level basement car parking. The 32 dwellings were compromised of 13 one bedroom dwellings and 19 two bedroom dwellings. 5The proposed development site is located in North Lane Cove and is partly mapped as being Bush Fire Prone Land - Vegetation Buffer 100m and 30m. Adjacent to the site is a reserve of bushland called Batten Reserve. 6The DA was lodged with the council on 11 November 2010. Plans were modified to address concerns raised by the council and the DA was referred to the New South Wales Rural Fire Service on 16 November 2010 for comment pursuant to s 79BA of the Environmental Planning and Assessment Act 1979. On 13 December 2010 the Rural Fire Service provided a response in relation to the DA outlining the further information that was required. On 21 March 2011 the Rural Fire Service provided further comments in relation to the DA and on 11 April 2011, the Rural Fire Service provided recommended conditions in relation to the DA. 7Hinset lodged an appeal in this Court on 2 June 2011 against the council's deemed refusal of the DA. But, on 8 June 2011 the DA was refused under delegated authority for the following reason: Issues with regard to Bush Fire Evacuation are outstanding. The traffic report prepared by Urbanhorizon is inadequate and unsatisfactory. Council does not endorse any of the "options for amelioration" or any of the suggestions such as reducing the tree canopy of Batten Reserve to 15-30%. Council is not satisfied that satisfactory evacuation can occur in case of a bush fire emergency situation. 8On 28 June 2011, the Court made directions in relation to the proceedings, including listing the matter for a one day hearing on 25 July 2011 and fixing a timetable for the filing and service of expert evidence. In particular the following direction was made in relation to the preparation of the expert evidence: The bushfire and traffic experts are to confer on a multi- disciplinarily basis in accordance with the requirements of Division 2 of Pt 31 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in the Schedule 7 of the Uniform Civil Procedure Rules and are to file and serve a single joint report by 18 July 2011. 9During the process of exchanging the names and contact details of the parties' respective experts, Hinset informed the council that it intended to rely upon two bushfire experts, Mr Stuart McMonnies and Mr Graham Swain. The council, however, only seeks to rely on one bushfire expert, Mr Danny Wotherspoon. The council objected to Hinset's use of two bushfire experts.

Hinset Claims that Two Bushfire Experts are Necessary 10Hinset relied upon an affidavit of Ms Nadia Price sworn 11 July 2011. Ms Price is a solicitor with the day to day carriage of the matter for Hinset. 11It was Ms Price's evidence that in or about September 2010 Hinset retained Mr McMonnies to prepare a Bushfire Hazard Assessment Report to accompany the DA. This was done and his assessment was given to the council. 12On 16 June 2010, Ms Price was instructed to retain Mr Swain and Mr McMonnies to advise Hinset on bushfire issues in anticipation of the fact that the possibility of bushfire was to be a significant contention raised by the council in refusing the DA. However, because it was considered that the Court would not support Hinset obtaining more than one bushfire expert, a decision was made to retain only Mr McMonnies on the basis that he had experience with Lane Cove Council's bushfire controls and that he had done consulting work in the Lane Cove local government area, particularly in North Lane Cove. Further, Mr McMonnies had the benefit of having prepared the Bushfire Hazard Assessment Report referred to above and considerable expense had been incurred in preparing that assessment. 13However, on 1 July 2011, while Mr McMonnies attended a site meeting with Ms Price, Mr McMonnies clearly indicated that he was not qualified in local area evacuation management. Mr McMonnies stated to Ms Price: I have been a member of the Rural Fire Service for 10 years and have some experience with traffic management and emergency response through my involvement with that organisation but I have never been a senior officer there and I am not sufficiently experienced in those matters. In that area of expertise you need someone like Graham Swain. He was a senior officer with RFS for many years and he is much more experienced in that field. I would not feel comfortable dealing with evacuation issues in the court. 14Consequently, Mr Swain was once again retained to appear on behalf of Hinset. His specific brief was to advise on the strategic wider precinct emergency response issues raised in the council's Statement of Facts and Contentions. 15The curriculum vitaes of both Mr McMonnies and Mr Swain were attached to Ms Price's affidavit. It was candidly acknowledged by Hinset that both CVs had been either recently prepared or updated for the purpose of today's application. 16In the cover letter accompanying his cv, Mr McMonnies stated that he had "limited practical experience in co-ordinating crews and residents in major wildfires". It was for this reason, he went on to state in the cover letter attached to the CV, that he had suggested the appointment of Mr Swain for the precinct level planning matters because Mr Swain's practical experience of ground operations could provide valuable insight into "what happens (i.e. evacuation procedures, Incident Management Team and operational procedures) in major wildfires at a precinct level." 17The CV of Mr Swain indicated that he had experience in the planning and undertaking of evacuations; the safe operations of fire brigades attending bushfires; information concerning bushfire planning measures for development in bushfire prone areas, including the provision of advice on access/egress and evacuation protocols for remote development; the co-ordination and management of combat agencies during bushfire emergencies; the establishment and management of emergency control centres, including the co-ordination of police, ambulance, the NSW Fire brigade, the RTA, the SES and other related agencies; and the participation in emergency management planning for natural and other disasters. That is to say, the CV of Mr Swain demonstrated that he was amply qualified to provide assistance to the Court on the evacuation of the local precinct in the event of a bushfire emergency.

The Council Submits that Only One Bushfire Expert is Required 18The council submitted that it was sufficient for Mr Swain to give evidence on behalf of Hinset. According to the council, Mr Swain was more than qualified to do so and he had the relevant expertise to give expert bushfire evidence at both the site and the precinct level. 19The council also rejected the assertion by Hinset that there were two distinct issues in the proceedings, namely, whether: (a) there was an unacceptable risk to the development of bushfire in Batten Reserve (a matter on which Mr McMonnies could provide expert assistance); and (b) the local area could be safely evacuated in the event that this was necessary (a matter which was more readily within the purview of Mr Swain to advise upon). 20According to the council, the only issue for determination was the ability of the existing road work to deal with a bushfire event having regard to the proposed development and the cumulative impact of any future development in the area. This was a specific issue that necessitated the opinion of a single expert. 21Finally, the council submitted that the Court should issue a direction limiting the number of bushfire experts on the basis that a multiplicity of experts would not facilitate the overriding purpose contained in s 56 of the Civil Procedure Act 2005 ("the CPA") of the just, quick and cheap resolution of the real issues in dispute, but would create delay, with attendant further expense to the parties.

The Application Should be Rejected 22While the Court is generally loath to permit a multiplicity of experts on a specific issue - if for no other reason than the greater the number of expert witnesses, the longer the proceedings take to hear and determine, and therefore, the more costly they become - in the somewhat unusual circumstances of the present case, it is appropriate that more than one bushfire expert be engaged by Hinset. 23The reasons for this are as follows. First, I accept the submission of Hinset that properly analysed, the solitary bushfire issue raised by the council in its Statement of Facts and Contentions is in fact two specific sub-issues along the lines of those articulated above. Expert evidence is therefore required to address each issue. Second, Mr McMonnies quite properly indicated that he is not qualified and lacks sufficient expertise to address emergency procedures and traffic management, including likely evacuation scenarios, at a precinct level in the event of a catastrophic bushfire event. While at a generic level of characterisation Mr McMonnies is a trained bushfire consultant, he nevertheless has different expertise, experience and specialisation to that of Mr Swain. The CVs of both Mr Swain and Mr McMonnies are consistent with this conclusion. 24Third, although the Evidence Act 1995 doesn't control evidence in Class 1 proceedings of the Court's jurisdiction, an expert witnesses can only give evidence based on the witness's specialised knowledge based on his or her training, study or experience. A reminder of this most elementary of rules was recently given by the High Court in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 277 ALR 611 (at [41]-[42]). In particular, in that case the High Court emphasised that (at [42]): A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight 25As Mr McMonnies has expressly stated, and consonant with the expertise outlined in his CV, he does not have the necessary training, study or experience to opine on evacuation management at a precinct level in a bushfire event. 26Fourth, it is not appropriate to simply, as the council contended, rely on the evidence of Mr Swain in light of the fact that it was Mr McMonnies who prepared the original bushfire risk assessment analysis accompanying the DA. Unlike Mr Swain, Mr McMonnies has been intimately connected with the bushfire risk of the development at the site and has had familiarity with, for example, the slope, the vegetation and other features particular to the site. As a consequence, Mr McMonnies is, in my view, better placed than Mr Swain to comment on the bushfire risk for this particular site. To rely only on Mr Swain to provide this evidence would be unsatisfactory in the context of a merits based appeal given that Mr Swain is not the author of the original bushfire risk assessment report. Mr Swain cannot, for example, be tested on its contents. Further, in order for Mr Swain to be sufficiently familiar with the bushfire risk associated with the development site further monies would need to be expended by Hinset. In doing so Hinset would be throwing away some of the expenses it has already incurred to date by its initial engagement of Mr McMonnies. Such an outcome would certainly neither be "cheap" pursuant to s 56 of the CPA, nor, in my view, "just". 27In respect of the latter criterion, the council frankly acknowledged that the only prejudice that it would suffer as a result of the Court permitting more than one bushfire expert to be utilised by Hinset was the possible elongation of the hearing of the appeal in order to deal with the additional expert evidence. It was this possibility, with its consequential financial implications, with which the council was ultimately concerned. However, given that each bushfire expert will only be giving evidence based on their discrete and separate areas of expertise, the capacity for evidential overlap is diminished. I therefore do not consider that the retention of both Mr Swain and Mr McMonnies will materially lengthen the conduct of the proceedings or add to the costs. 28For all these reasons it is appropriate in the circumstances of this application to refuse to give the direction the council seeks.

Costs 29Hinset sought its costs of the application on the basis that by reason of the council's application it had been subjected to "an extra step not usually involved in Class 1 proceedings". On this basis, and pursuant to r 3.7(2) of the Land and Environment Court Rules 2007, it was fair and reasonable that the council pay its costs. 30I disagree. Rule 3.7(2) makes it abundantly clear that costs in Class 1 of the Court's jurisdiction do not simply follow the event. Yet the submission of Hinset above amounted to no more than an application of this general costs rule, a rule that has been statutorily displaced by r 3.7(2). The council has in no way acted unreasonably in brining today's application, which was, on any view, fairly arguable. To award costs in favour of Hinset would be entirely unfair and unreasonable in all the circumstances. I arrive at this conclusion irrespective of the correspondence passing between the parties wherein Hinset put the council on notice that it would be seeking to rely on two bushfire experts for precisely the same reasons that it has ventilated before the Court today.

Conclusion 31It follows from the above reasons that the Court declines to give a direction limiting the number of expert witnesses to be called to give evidence on bushfire related issues in these proceedings, and moreover, it declines to order the costs of today in favour of Hinset.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2011

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