Mansfield v Minister for Planning & Anor

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.