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[2011] NSWLEC 1289
Land and Environment Court (NSW)
2011-09-08
Original judgment source is linked above.
Judgment 1In these proceedings Mr David Mansfield (the applicant) has appealed pursuant to s75L of the Environmental Planning and Assessment Act 1979 (the Act) against the approval granted by the Minister for Planning (the first respondent) under Part 3A of the Act on 6 January 2011 to Hanson Construction Materials Pty Ltd (the second respondent) for a hard rock quarry to extract, process and transport by road up to 400,000 tonnes of basalt a year for 25-30 years (the Project). 2The Court has had a view of the Project site and heard evidence from objectors; evidence from two expert geologists concerning the drilling and other investigations undertaken on behalf of the second respondent and by others; and evidence concerning the second respondent's proposed management plans. 3The applicant seeks to rely on expert evidence from Dr Christopher Clarke in the form of an affidavit sworn by him on 22 July 2011. The second respondent objects to the entirety of the affidavit on the basis of relevance and to certain paragraphs on the basis that they are the expression of an unqualified opinion.
Relevance 4It is common ground in the proceedings that the Project area has an underlying stratum of Byng Volcanics, which may contain tremolite asbestos, a form of naturally occurring asbestos. The applicant contends that the application for approval should be refused on the basis that the Project is inconsistent with the principles of ecologically sustainable development (ESD), and that the full extent of the possible naturally occurring asbestos on the site is not known and the conditions of the approval are inadequate. 5The second respondent submits that it accepts that the Project site has an underlying stratum of Byng Volcanics which may contain tremolite asbestos, and it is not proposing to extract that stratum. The risk of harm posed by the inhalation of tremolite asbestos by humans is not an issue. The second respondent submits that the entirety of Dr Clarke's evidence is directed at matters that are not or could not be an issue between the parties, in particular his evidence as to the nature of tremolite asbestos ([7]-[10]), the nature and extent of impact of tremolite asbestos exposure on the health of humans ([11]-[13]), the way in which tremolite asbestos enters the body ([14]-[15]), the period over which symptoms of any disease arising from exposure to tremolite asbestos may become manifest ([20]), prevention of disease onset once exposed to tremolite asbestos ([21]-[22]), and the effects on humans of unspecified levels of exposure to crocidolite or tremolite ([24]-[25]). 6The second respondent submits that preventing exposure of workers and inhabitants of neighbouring properties to airborne asbestos fibres is the basic approach to the development, and that not only will there be negligible risk of exposure to asbestos fibres but also no risk of disturbing and exposing Byng Volcanics bedrock which may or may not contain tremolite asbestos. At issue is whether the management measures employed by the second respondent will prevent exposure to asbestos to workers and visitors to the site and to the community, and the paragraphs identified above do not address the adequacy of those measures. The second respondent submits that even if this evidence is relevant to the contentions concerning the precautionary principle, the evidence would have to address the risk posed by exposure to asbestos in the context of the conditions of consent and risk management in the proposed development. Consideration 7These proceedings are in Class 1 of the Court's jurisdiction, and s38 of the Land and Environment Court Act 1979 (the Court Act) applies. Subsections 38(2) and (3) provide: (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. (3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person. 8Relevance is the primary test of admissibility on Class 1 proceedings: Diamond v Minister for Planning & Anor [2004] NSWLEC 84 at [3]. The focus for determining whether the evidence of Dr Clarke is relevant is "identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving": Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [31]. 9The issues in dispute in these proceedings are identified in the parties' Statements of Facts and Contentions. The applicant's Amended Statement of Facts and Contentions (Ex B) raises two contentions: ESD and Asbestos. The ESD contention has two elements: the application of the precautionary principle and intergenerational equity in relation to the possible presence of asbestos on the site and its potential disturbance and airborne circulation; and consideration of the requirements of State Environment Planning Policy No 33- Offensive and Hazardous Development . In relation to asbestos, the applicant contends that relevant matters for the purposes of s75J(3) of the Act include that the particular form of asbestos found on the site, namely tremolite, has a high level of risk for humans, and that the underlying factual information as to the location of naturally occurring asbestos is such that the full extent of the asbestiform minerals on the site is not known; and that the conditions imposed on the project approval are inadequate. The applicant's contentions raise as issues to be determined by the Court whether the known risk to humans and animals resulting from exposure to asbestos, in the absence of comprehensive information regarding the presence of asbestos on the site and the absence of an effective method to eliminate the risk of airborne asbestos fibres, means that the precautionary principle militates against approval; whether the presence of asbestos on the site and the environmental impact of exposure of humans or livestock to asbestos means that there must be sufficient information to assess the risk, including a comprehensive hazard analysis, rather than defer consideration; whether the particular form of asbestos found on the site has a high level of risk for humans; and the type of information available and its accuracy and certainty in assessing the risk to humans posed by the project. 10Whether the principles of ESD are a mandatory (or otherwise) relevant consideration, whether the Project is inconsistent with those principles, and whether the requirements of SEPP 33 should be, or have been, taken into consideration, are matters which are in dispute, and which are yet to be the subject of argument. Subject to hearing that argument, we are satisfied that information as to the nature of tremolite asbestos and the consequences to human health of exposure to it would be relevant to the application of the principles of ESD and the requirements of SEPP 33 in addressing the contentions raised by the applicant. We are satisfied that the evidence of Dr Clarke is relevant.
Unqualified opinion 11Dr Clarke is a thoracic physician, and his curriculum vitae indicates that he has practised as a medical practitioner since 1967 and as a thoracic physician since 1976. He has qualifications in medicine and law, and is currently an appointed member of the Medical Panel, NSW Dust Diseases Board; Thoracic Physician, Walgett Aboriginal Medical Service and Bourke Aboriginal Medical Service; Senior Clinical Advisor Asbestos Disease Research Institute and Bernie Banton Centre; and an Approved Medical Specialist (Permanent Impairment) Workers Compensation Commission. Dr Clarke has publications dating from 1975 on a range of chest and respiratory diseases. 12The second respondent acknowledges that Dr Clarke is extensively qualified in the field of asbestos diseases and other dust diseases, as evidenced by his appointment to the Medical Panel of the NSW Dust Diseases Board and to his being an Approved Medical Specialist for the NSW Workers Compensation Commission. The second respondent submits that Dr Clarke's capacity in those roles is limited to that of a medical professional diagnosing and managing dust diseases in affected persons and that he is not qualified to opine on risk management generally or methods of asbestos management in extractive industry specifically. 13The second respondent objects to the following paragraphs of Dr Clarke's affidavit: (a) [16]-[19]: Dr Clarke is not qualified to give an opinion on the safe level of exposure to tremolite in the workplace; (b)[23]: Dr Clarke is not qualified to give an opinion as to what is "accepted fact" as to a safe level of exposure to tremolite; (c)[27]-[33]: Dr Clarke is not qualified to give an opinion on the adequacy of dust suppression methods generally or in relation to occupational health and safety requirements nor does his curriculum vitae indicate that he has conducted any research in relation to or had any experience with dust suppression methods; (d) [34]: Dr Clarke is not qualified to give an expert opinion as to the manner in which asbestos should be managed in an extractive industry to prevent exposure to tremolite. Consideration 14In Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC120 at [24] Pepper J held that while evidence in Class 1 proceedings is not controlled by the Evidence Act 1995, an expert witness can only give evidence based on that witness's specialised knowledge based on his or her training, study or experience, and referred to the recent statement of that requirement by the High Court in Dasreef Pty Ltd v Hawchar [2011] HCA 21. The High Court (at [32]) identified the criteria that must be satisfied: The first is that the witness who gives the evidence 'has specialised knowledge based on the person's training, study or experience'; the second is that the opinion expressed in evidence by the witness 'is wholly or substantially based on that knowledge'. 15Paragraphs [16]-[19] of Dr Clarke's affidavit address the issue of what level of exposure to tremolite asbestos is regarded as safe. Dr Clarke expresses his opinion that with any type of asbestos, no fibre type or exposure should be regarded as safe, and bases that opinion on a publication of the National Institute for Occupational Safety and Health, US Department of Health and Human Services entitled Workplace Exposure to Asbestos (1980). We are satisfied that Dr Clarke's training, study and experience as a thoracic physician qualify him to express an opinion on different forms of asbestos, their contribution to lung disease, the manner in which exposure to asbestos produces the changes in lungs which manifest as disease, and the level of risk associated with exposure. We are satisfied that his experience in assessing the health consequences of exposure to asbestos, in particular exposure arising in a work-related context, through his involvement with the NSW Dust Diseases Board, the Asbestos Disease Research Institute, and the Workers Compensation Commission, qualify him to express an opinion on safe levels of exposure as expressed in paragraphs [16]-[19]. For the same reasons, he is qualified to express the opinion about removal of asbestos from the workplace environment in paragraph [23]; and his opinion regarding tremolite which he bases on evidence of occupational health and safety control measures relating to specific types of asbestos in [28]-[31]. 16In paragraph [27] Dr Clarke expresses an opinion about reduction of dust by water spray. On our reading of Dr Clarke's curriculum vitae, we are not satisfied that his training, study and experience would qualify him to express an opinion as to specific work practices. 17In paragraphs [32]-[33] Dr Clarke refers to examples of neighbourhood exposure to asbestos. In our view, to the extent that these paragraphs express an opinion, it is not clear that such an opinion is one based on Dr Clarke's specialised knowledge. 18In paragraph [34] Dr Clarke expresses the opinion that if one is aware that asbestos is in the environment then it should be left alone and not dealt with in a way that would render it likely to be released into the environment. We do not read that opinion as being one expressed, as the second respondent submits, as to asbestos management practices in an extractive industry, rather as one based on the opinions expressed earlier in his evidence as to the nature of, and consequences of exposure to, tremolite and asbestos generally. In our view Dr Clarke is qualified to express an opinion on that basis. 19We conclude that with the exception of paragraphs [27], [32] and [33] of his affidavit, the evidence of Dr Clarke is admitted. The respondents have indicated that they do not wish to cross-examine Dr Clarke. The weight to be given to his evidence will be a matter for submissions. Linda Pearson Commissioner of the Court David Johnson Acting Commissioner of the Court 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: 04 October 2011
Mansfield
Minister for Planning & Anor