Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd - [2022] NSWLEC 62 - NSWLEC 2022 case summary — Zoe

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Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd

[2022] NSWLEC 62

Land and Environment Court (NSW)|2022-05-13|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-05-13

Before

Pain J

Catchwords

Merrywinebone Pty Ltd
Greentree

Source

Original judgment source is linked above.

Catchwords

Merrywinebone Pty LtdGreentree

Judgment (21 paragraphs)

[1]

Solicitors: Department of Planning and Environment, Legal Branch (Prosecutor) McGirr Lawyers (Defendant) File Number(s): 2019/81751

[2]

Judgment

The Defendant is charged with illegal clearing being an offence under the Native Vegetation Act 2003 (NSW) (NV Act) on a property near Pilliga (Property). The admissibility of two expert reports of Mr Watts are in issue, dated 6 March 2019 and 28 June 2019 attached to affidavits dated respectively 12 March 2019 and 28 June 2019.
Mr Watts has a Bachelor of Applied Science (surveying) conferred in 1986, a graduate diploma in mapping and surveying conferred in 1988 and over 30 years' experience in mapping and surveying.
Whether Mr Watts' evidence should be admitted as expert evidence pursuant to s 79 of the Evidence Act 1995 (NSW) arises. The relevant principles to apply are as identified in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (Dasreef). The evidence must satisfy two criteria, first that the witness must have specialised knowledge based on his or her training, study or experience. Secondly, the opinion expressed by the witness must be wholly or substantially based on that knowledge. The party tendering such evidence must show that the author has specialised knowledge based on training, study or experience that enables him or her to express an opinion on a matter that is relevant to an issue in the proceedings, and show that the opinion was wholly or substantially based on that knowledge: Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209] per Sackville AJA, Meagher and Barrett JJA agreeing.

[4]

Native Vegetation Act 2003 (NSW)

Relevant aspects of the NV Act are as follows: Part 2 Key concepts … 11 Meaning of routine agricultural management activities (1) For the purposes of this Act, routine agricultural management activities mean any of the following activities on land carried out by or on behalf of the landholder: (a) the construction, operation and maintenance of rural infrastructure: (i) including (subject to the regulations) dams, permanent fences, buildings, windmills, bores, air strips (in the Western Division), stockyards, and farm roads, but (ii) not including rural infrastructure in areas zoned as rural-residential under environmental planning instruments or on small holdings (as defined in the regulations), (b) anything done to prevent, eliminate, minimise or manage a biosecurity risk posed or likely to be posed by a pest (within the meaning of the Biosecurity Act 2015) and which is authorised or required by any of the following: (i) the mandatory measures under that Act, (ii) an emergency order under that Act, (iii) a control order under that Act, (iv) a biosecurity zone regulation under that Act, (v) a biosecurity direction under that Act, (c) (Repealed) (d) the collection of firewood (except for commercial purposes), (e) the harvesting or other clearing of native vegetation planted for commercial purposes, (f) the lopping of native vegetation for stock fodder (including uprooting mulga in the Western Division in areas officially declared to be drought affected), (g) traditional Aboriginal cultural activities (except commercial activities), (h) the maintenance of public utilities (such as those associated with the transmission of electricity, the supply of water, the supply of gas and electronic communication), (i) any activity reasonably considered necessary to remove or reduce an imminent risk of serious personal injury or damage to property. (2) The regulations may make provision for or with respect to extending, limiting or varying the activities that are routine agricultural management activities, and subsection (1) is to be construed accordingly. … Part 3 Clearing native vegetation … Division 3 Permitted Activities … 22 Routine agriculture management activities (1) Clearing for routine agricultural management activities is permitted. (2) This section does not authorise any clearing of native vegetation: (a) if it exceeds the minimum extent necessary for carrying out the activity, or (b) if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure.

[6]

First report dated 6 March 2019

Mr Watts for his first report was asked to provide his opinion on three topics: 1. identify changes in the vegetation present on the Property which have occurred during and post-2013; 2. if changes have occurred, identify what they are including their location and the dates between which such changes took place; and 3. if any vegetation has been cleared, identify if that vegetation was present on the property prior to 1 January 1990.
His report was to be based on an examination of aerial photographs and satellite images over the Property and the report was to include a sequence of images which shows any vegetation change.
A second instruction was also received asking that he review three aerial photographs of the Property from the 1960s, 1970s and 1980s to see whether there is any evidence of the Property having been cultivated during that time.
For the first instructions Mr Watts analysed a total of 22 aerial images supplied by the Office of Environment and Heritage (OEH) (see par 5), which were included in appendices to this report. Mr Watts was also supplied with the cadastral boundaries of the Property in digital Computer Aided Design (CAD) format as supplied by the OEH.
Mr Watts describes his methodology at par 24 as a process called image rectification. At pars 25-38 he identifies the 22 aerial images (I note these are from different image sensors) and states that he visually examined successive pairs of aerial images to determine the extent of change to vegetation between consecutive dates of imagery. He adopts the definition of vegetation from the NV Act. He identifies what images he uses to establish a baseline of what area of vegetation was in the areas of interest at a particular date, being 25 October 2012, which he identifies from what he can see in the image areas of change in the vegetation since the preceding aerial image. He discusses what he can see in the images in relation to the changes in vegetation and calculates the total area of vegetation modified since the previous date. The determination of changes to the vegetation between dates of aerial imagery and the determination of areas of cultivated land was undertaken by visual inspection of each aerial image. This was a manual process where Mr Watts made his own assessment of what change had occurred as at each date of image. A software package was used to record his observations. The assessment of such change was not directly determined by the software package or program. He states that for the most part it was a relatively simple process to visually assess and determine the extent of vegetation change over the property as the clarity and resolution of the majority of images was of sufficient quality for him to determine where changes had occurred. For each date of image he manually digitised the areas of observed vegetation since the previous aerial image and the areas of cultivated land within a software package called Global Mapper and saved as CAD polygons. The area calculation tool within Global Mapper was then used to calculate the areas contained within each digitized polygon. As these polygons were digitised from a geo-referenced digital rectified image within a Geographic Information System (GIS) software package the areas in hectares of all polygons could be determined. Mr Watts gives his opinion about various changes to vegetation on the Property at pars 43-60 and I was referred to a number of these.

[11]

Prosecutor's submission on first report

The Prosecutor provided two sets of lengthy written submissions which I do not have time to summarise fully but address in my consideration. A summary of the Prosecutor's submissions is that, firstly, the court can infer from viewing Mr Watts' Curriculum Vitae (CV) and the whole report that Mr Watts has specialised knowledge in analysis and interpretation of aerial photographs and satellite imagery based on his qualifications, experience and training as seen in his CV and the introduction to his report. He uses specialised equipment and computer software in order to carry out the analysis in his report, using a specialist GIS program called Global Mapper to outline areas of observed clearing on rectified aerial image, creating polygons, and to measure the areas within a created polygon. It is useful to consider Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126 (Greentree No 2) per Robson J considering a challenge to the expertise of a Mr Spiers who gave evidence in an identical area to Mr Watts at [50]-[52], [55], [60]-[61] (but see [53], [54]). It can be inferred from the material he cites and his reference to cadastral boundaries and their interpretation that Mr Watts has the expertise needed.
Secondly, Mr Watts methodology is identified in the early sections of his report and in his comparison of images, as identified in the table in the Prosecutor's second set of submissions at pages 4-12.
Thirdly, the cadastral boundary information supplied by OEH is the same as found in the evidence of Mr Turner tendered for this voir dire (Ex C). It can be readily seen that the cadastral boundaries outlining the property are the same in Mr Watts' report as in Ex K in the substantive proceedings.
Fourthly Mr Watts makes clear in the first report the basis on which he is able to calculate areas of land using appropriate software which he specifies in his report.

[13]

Methodology

Mr Watts provides a general explanation for what he has done in the early sections of his report summarised briefly above in [10] and as identified by the Prosecutor. I agree with the Prosecutor's submission that there is no failure on Mr Watts part in not explaining how the ArcGIS system operates. The analogy with not having to explain how Microsoft Excel works when presenting material in that software format is a sound one.
In the limited time available to prepare this judgment it is impossible to summarise the comparison of the 22 aerial images considered by Mr Watts and the extensive table in the Prosecutor's written submissions at pages 4-12 which considers approximately 9 images and sought to highlight Mr Watts' descriptions of colour changes and identification of bare patches and pale and exposed earth in order to draw conclusions about whether clearing/removal of vegetation had occurred. I nevertheless agree with the Defendant's criticism that Mr Watts does not provide any specific detail of how he was able to detect changes in vegetation based on his visual inspections, particularly in relation to his first set of instructions, as identified in the Defendant's submissions summarised in [16] above.
I agree with the Defendant's criticism that Mr Watts provides no basis for how he identifies undercover and understorey or its absence as he purports to do in relation to several images. Trees are said to be black blobs and that is the extent of his description of identification.
Further, the quality of production and resolution of the images in the report appears to vary so that some of his conclusions appear obvious to a lay eye (mine) but others do not. Whether his conclusions should be obvious to a lay eye is not necessarily determinative given that this is material presented as an expert report based on specialised knowledge. However to a lay eye his conclusions on what are pale areas of land on some images, for example those referred to in par 47(e), (f), and (g), are not readily apparent and without more detail as to the basis for these opinions the conclusions expressed do not enable his opinions to be readily tested. How his specialised knowledge is applied to the comparison of images is addressed at a very shallow level in his report. Mr Watts' report can be usefully considered in light of [53] and [54] in Greentree No 2 where Robson J noted the detailed pattern identification, 3D consideration of objects inter alia which the expert in that case applied, which detail is lacking in Mr Watts' report.
These findings are based particularly on the 22 images considered for the first set of instructions. I consider that his conclusions about clearing cannot be admitted as how he arrives at the conclusion is not explained in his report, which affects pars 45-52 and par 57 in the first report.
None of the Defendant's complaints addressed the images prepared for the second instruction as I understand them. The images prepared by Mr Watts in response to his second instructions do a better job of explaining what he sees, as relied on by the Prosecutor at pars 68(c) and (d), 70(d), (e) and (f) inter alia. These parts of his report can be admitted.

[20]

Supplementary judgment

Following delivery of my judgment this morning which identified which objections of the Defendant to Mr Watts' first report should be upheld, I must determine which specific paragraphs of the first report of Mr Watts dated 12 March 2019 should be excluded in light of my findings. I found that Mr Watts did have expertise in the areas based on his knowledge, skills and training with which he purported to deal in his first report, satisfying the first limb of Dasreef. I also found that Mr Watts failed to identify his methodology in relation to the comparison of numerous aerial images addressing the first set of instructions received by him so that his report in part does not satisfy the second limb of Dasreef in that it fails to demonstrate how his findings are based on his knowledge, skills and training. I stated that this finding affected pars 45-52 and 57 of the report.
The Defendant also objected to the calculation of areas of land by Mr Watts, which criticism I did not uphold generally in that I considered his expertise in applying the relevant software was demonstrated and that he was not required to further explain that software.
Having considered the first report in more detail with respect to the nominated paragraphs and beyond, several cannot be admitted by the Prosecutor. While observations by Mr Watts are made as to areas of land in these paragraphs which may not be objectionable on their own they are entirely based on his assessment of areas cleared and I have found that he has not demonstrated how his reasoning enables him to reach the conclusions about clearing that he does. I find that pars 45-52 and 57 of the report cannot be admitted into evidence.
In addition, to be consistent, the extent of vegetation change between 25 October 2012 and 23 April 2014 at pars 53-56 is summarised, which is based on material I have said cannot be relied upon and also cannot be admitted.
Mr Watts provided a pictorial summary of changes between 25 October 2012 and 23 April 2014 at pars 58, 59 and the following images on court book pages 58, 60 and 62. These suffer from the same problem and also cannot be admitted.

Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (4)

Cited By (4)