Shellharbour City Council v Minister for Planning

Judgment - on application for leave to appeal 1HODGSON JA: Uniform Civil Procedure Rules (UCPR) r 31.19 provides as follows: 31.19 Parties to seek directions before calling expert witnesses (1) Any party: (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the court in that regard. (2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore. (3) Unless the court otherwise orders, expert evidence may not be adduced at trial: (a) unless directions have been sought in accordance with this rule, and (b) if any such directions have been given by the court, otherwise than in accordance with those directions. (4) This rule does not apply to proceedings with respect to a professional negligence claim. 2On 25 May 2011 the applicant (the Council) sought directions under that rule in relation to expert evidence it proposed to lead in proceedings which it had brought in the Land and Environment Court against the first respondent (the Minister) and the second respondent (Delfin). So far as material before this Court is concerned, the nature of that evidence is identified as an "expert ecological report" directed towards showing that certain expressions in two statutory instruments have a particular technical or scientific meaning. 3On 26 May 2011 Pain J refused that application for directions. 4The Council seeks leave to appeal against that decision. The matter has some urgency because the case is set down for hearing on 25 and 26 July 2011. 5The proceedings before the Land and Environment Court concern a challenge by the Council to a decision made by the Minister on 8 December 2010 to give approval, pursuant to s 75O of the Environmental Planning and Assessment Act 1979, for a concept plan for a project known as the Calderwood Project. There is effectively a single ground of challenge to this decision, namely, that approval was precluded by cl 8N(1) of the Environmental Planning and Assessment Regulation 2000 because the project or part of it was located within "an environmentally sensitive area of State significance". 6That expression is defined in cl 8N(3) as follows: (3) In this clause: environmentally sensitive area of State significance has the same meaning as it has in State Environmental Planning Policy (Major Development) 2005 . 7The State Environmental Planning Policy (Major Development) 2005 (the SEPP) has the following definition of "environmentally sensitive area of State significance" in cl 3(1): environmentally sensitive area of State significance means: (a) coastal waters of the State, or (b) land to which State Environmental Planning Policy No 14 - Coastal Wetlands or State Environmental Planning Policy No 26 -Littoral Rainforests applies, or (c) land reserved as an aquatic reserve under the Fisheries Management Act 1994 or as a marine park under the Marine Park Act 1997 , or (d) land within a wetland of international significance declared under the Ramsar Convention on Wetlands or within a World heritage area declared under the World Heritage Convention, or (e) land identified in an environmental planning instrument as being of high Aboriginal cultural significance or high biodiversity significance, or (f) land reserved as a State conservation area under the National Parks and Wildlife Act 1974 , or (g) land, places, buildings or structures listed on the State Heritage Register, or (h) land reserved or dedicated under the Crown Lands Act 1989 for the preservation of flora, fauna, geological formations or for other environmental protection purposes, or (i) land identified as being critical habitat under the Threatened Species Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994 . The Council wishes to rely on the reference in par (e) to "land identified in an environmental planning instrument as being of ... high biodiversity significance". 8The Shellharbour Rural Local Environmental Plan 2004 (the LEP) does not in terms refer to land of high biodiversity significance. However, cl 36 provides as follows: 36 Areas of high conservation value (1) Environmental management objectives The environmental management objectives of this clause are: (a) to require certain environmental issues to be considered before development is carried out on land within an area of high conservation value, and (b) to retain bushland in parcels of a size and configuration which will, as far as possible, enable the native flora and fauna species and communities to survive in the long term, and (c) to maintain and, where appropriate, revegetate habitat corridors between remnant areas of bushland, and (d) to ensure that any development adjacent to, adjoining or within a watercourse or wetland does not adversely impact on water quality, the natural hydrological regime or habitat value, and (e) to ensure that any development adjacent to, adjoining or within a riparian corridor conserves or enhances the aquatic and native vegetation of the riparian corridor, and (f) to protect bushland and existing landforms for their scenic values, and (g) to retain the unique visual identity of the landscape. (2) Is consent required? A person shall not carry out development, including the clearing of land, in an area of high conservation value except with development consent. (3) What must be included in an assessment by the consent authority? Before granting consent for development of land allowed to be carried out with consent by Part 2, the consent authority must consider the following: (a) the impact of the proposal on the habitat value of vegetation within riparian corridors and wildlife corridors or links, (b) the potential for undertaking environmental conservation works to enhance the biodiversity values of the land, including the potential for rehabilitation works of degraded habitats or breaks in riparian corridors or wildlife corridors or links, (c) whether the design and construction of any proposed fencing minimises possible limitation of fauna movement, (d) whether provision has been made for the planting of appropriate native plant species on the land where the planting would visually screen the development or contribute to the restoration or enhancement of riparian and wildlife corridors or links. (4) What must the consent authority be satisfied about before granting consent? Consent must not be granted to development of land in an area of high conservation value unless the consent authority is satisfied that: (a) the development has been designed to minimise disturbance to native vegetation communities, and (b) opportunities to restore or enhance the biodiversity values of the land, including riparian corridors and wildlife corridors or links, have been considered. (5) The consent authority may decline to consent to development of land in an area of high conservation value until it has considered a site plan of an appropriate scale clearly and accurately showing the boundary of any vegetation edge and stands of remnant vegetation on the subject land to enable it to properly assess the impact of the proposed development on that vegetation and the biodiversity it supports. 9In the dictionary to the LEP the following definition appears: Area of high conservation value means an area shown coloured beige on the Areas of High Conservation Value Map. 10In the proceedings, the Council wishes to contend that the LEP has thereby identified the area thus shown in the specified map, or at least part of it, as being land of high biodiversity significance; and the expert evidence is sought to be led in support of that contention. 11The relevant part of the primary judge's decision rejecting the Council's application is as follows: 6 In terms of what I should consider in deciding whether I should make a direction allowing for the filing of expert evidence, r 31.19 is the subject of commentary in Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date (loose-leaf at Service 54, April 2011) "Uniform Civil Procedure Rules". In particular I refer to [31.19.15] which states that the purpose of the requirement to obtain a direction for expert evidence is to restrict the use of expert evidence to that which is reasonably required having regard to the overriding purpose of facilitating the fair, just and economic resolution of proceedings. Ritchie's Uniform Civil Procedure NSW refers for authority to that effect to Countouris v Kallos [2007] NSWSC 944 at [5], a decision of Young CJ in Equity as he then was and Chapman v Chapman [2007] NSWSC 1109 where Brereton J held at [7] that the expert evidence has to be reasonably required to resolve the issue in the proceedings. 7 The experience of the Court generally is that expert evidence in judicial review proceedings, including cases which raise issues of statutory construction, is of very limited assistance. That observation applies to the statutory instruments in question in this case. The usual principles of statutory construction in relation to the consideration of extrinsic aids which apply to assist in statutory construction do not generally include evidence of what a particular expert considers the phrases appearing in a statute mean. Most of the terms about which expert evidence is sought to be adduced are defined in the instrument in question. 8 I was referred by the Council's counsel to Jordan CJ in Ex parte MacKaness and Avery Pty Limited; Re Royce (1943) 43 SR (NSW) 239 in DC Pearce and RS Geddes, Statutory Interpretation in Australia , 6 th ed (2006) LexisNexis Butterworths at [4.16] to support the Council's application. That decision substantially predates the passage of the Civil Procedure Act 2005 and the UCPR under which this Court operates in this class of proceedings. 9 It is not clear that the Council's counsel's assertion that the terms are technical applies, or that expert evidence as to their meaning in the view of a particular expert is correct given that this Court is a specialist court. I note that the provision of one particular view from an expert is likely to lead to an alternative expert view being sought to be relied on by the other party, a cause of further cost. I consider the evidence to be of marginal relevance, if any, if called. 10 The term "biodiversity" is well-known to this Court, contrary to assertions from the Council's counsel that it is a relatively recent concept in environmental law. I believe that the judges of the Court could deal with any submissions made as to the meaning of the phrases the subject of these proceedings. 12The Council seeks to rely on the following grounds of appeal: 1 Her Honour Pain J erred in principle by precluding the appellant from arguing that the expressions "high biodiversity value" in the State Environment Planning Policy (Major Development) 2005 ( Major Development SEPP ) and "high conservation value" in the Shellharbour Rural Local Environmental Plan 2004 ( SRLEP ) had technical meanings in respect of which expert evidence would be admissible, by reference to a procedural rule. 2 Her Honour Pain J erred in taking account of an irrelevant consideration, namely that the Land and Environment Court was a specialist court, in determining the relevance of the expert evidence proposed to be adduced by the appellant. 3 Her Honour Pain J erred in principle in concluding that no assistance would be gained from expert evidence as to the technical meanings on the basis that they were defined terms, in circumstances where the definition of "high conservation value" in the SRLEP provides no meaningful assistance, and there is no definition of "high biodiversity significance" in the Major Development SEPP. 4 Her Honour Pain J erred in applying an incorrect test, in holding that the proposed expert evidence needed to have more than "marginal relevance" in order for her Honour to have permitted the appellant to adduce it. 5 Her Honour Pain J erred in principle in rejecting Jordan CJ's statement of principle in Ex parte MacKaness and Avery Pty Ltd; Re Royce (1943) 43 SR (NSW) 239 at 244 relating to the admissibility of expert evidence to interpret technical expressions on the basis that the decision predated the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. 6 Her Honour Pain J erred in taking into account the fact that further cost would be expended as a result of the likely obtaining by the respondents of an alternate expert opinion, which was an irrelevant consideration to the question of whether the appellant should have been entitled to adduce expert evidence. 13The proposed grounds of appeal are expanded on in the applicant's written summary of argument. 14Very briefly, in support of ground 1, it is submitted that the meaning of the expressions "high conservation value" and "high biological diversity" were in issue, that it was arguable that the expressions have a technical meaning, and that accordingly a party seeking to adduce expert evidence as to such a technical meaning should not be precluded from doing so. 15In support of ground 2, it is put that the circumstance that the Land and Environment Court is a specialist court is not a basis for refusing to allow such evidence. 16In support of ground 3, it is put that the existence of statutory definitions did not in the circumstances provide a ground for refusal to lead the expert evidence. 17In support of ground 4, it is put that the primary judge's view that the relevance of such evidence was marginal did not provide a ground for refusal. 18In support of ground 5, it is put that the conditions for the admission of expert evidence on the meaning of technical terms, as set out in Ex parte MacKaness and Avery Pty Ltd; Re Royce (1943) 43 SR(NSW) 239 at 244, were satisfied in this case; and it is not to the point that that decision predated the Civil Procedure Act and the Uniform Civil Procedure Rules. 19In support of ground 6, it is put that the circumstance that to permit reliance on an expert report would produce an expert report in reply was not a ground for refusal. There was no basis for concluding that the costs involved would be unduly large, having regard to the importance of the issue. 20In oral submissions before this Court, Mr Robertson SC expanded on the nature and significance of the expert evidence which the Council wished to lead. Mr Robertson submitted that expert evidence should be permitted which showed (1) that "high biodiversity significance" had a technical meaning in ecology science, such that land would be of high biodiversity significance if it substantially enhanced biodiversity, whether or not the land itself contained a large diversity of genes or species or ecosystems; and (2) that the way an area of high conservation value was identified and described in the LEP sufficiently identified at least relevant parts of that area as being of high biodiversity significance, in particular because it identified relevant parts as riparian or wildlife corridors which must be of high significance for biodiversity. That evidence could thereby support a contention that the way the expression "high conservation value" was used in the LEP was apt to identify relevant areas as land of high biodiversity significance. 21One difficulty of these submissions of Mr Robertson is that they vary from the way the application for expert evidence was put before the primary judge. The way expert evidence sought to be led before the primary judge was explained to her by counsel for the Council was most fully set out in p 4 of the transcript for 25 May 2011, with reference to pars 16 and 17 of the points of claim, as follows: Paragraph 17 it's pleaded that the HCV land, which your Honour will see defined at paragraph 16, is land identified in an EPA as being of high biodiversity significance and is, therefore, an environmentally sensitive area of State significance. So, in other words, what we pleaded there is that there is, at the very least, an overlap and perhaps even an equivalence between those two expressions, such that where the LEP identifies land as being high conservation value, that falls within the expression "high biodiversity significance" as used in the major development SEP which is then incorporated by reference into the EPA regulation. Now, neither of those two terms is defined and they are, we would contend, terms or expressions which have a particular technical or scientific meaning. That proposition may well be open to doubt but it is certainly open to my client to contend that they have a technical or scientific meaning and that therefore we would be entitled to call evidence from an expert in that particular technical or scientific discipline, namely ecology, in order to demonstrate the proposition that, as I say, there is an overlap or an equivalence, such that where the LEP is talking about one it is intended that it fall within the other. So, it is a very narrow area for potential expert evidence and at this very, very early stage your Honour simply needs to be satisfied that there is a potential for that evidence to be relevant. The actual debate about relevance can be had, if there is to be an objection, at the trial. So, your Honour simply needs to be satisfied that there is the possibility that these terms have a technical or scientific meaning. Once your Honour is satisfied about that possibility, then we are, I would submit, entitled to call evidence directed to the meaning -when I say "the meaning", the technical or scientific meaning - of those terms and we simply seek that that be done by 10 June. 22On the basis of that explanation of the proposed expert evidence, in my opinion it was well open to the primary judge to take the view that it was unlikely in the extreme that such evidence could be material to the Court's decision. 23What the Council had to prove was that the LEP identified relevant land as "land of high biodiversity significance". It sought to do so by relying on the LEP's provisions concerning areas of high conservation value. One way of reaching the conclusion sought by the Council depended on establishing an identity of meaning of the phrases "land of high biodiversity significance" and "areas of high conservation value". Insofar as the way the submissions before the primary judge went, that was the way the Council was proposing that the evidence be used. 24However, the explanation of the evidence sought to be led was that it would seek to show there was an overlap or equivalence between these expressions. An overlap between the expressions would be insufficient for the Council's purposes. The circumstance that high conservation value had a meaning such that some or all of an area of high conservation value might be land of high biodiversity significance would not help the Council's case. 25As regards equivalence of the two expressions, in my opinion it was well open to the primary judge to consider that the likelihood that expert evidence could establish equivalence of the expressions was extremely small. In ordinary parlance, areas could be of high conservation value for many reasons other than their having high biodiversity significance, for example, because of "unique visual identity", to refer to just one factor adverted to in cl 36 of the LEP itself. Indeed, it was not indicated to the primary judge that, contrary to this estimate of likelihood, the expert evidence would in fact support equivalence. 26It was put by Mr Robertson that, in a case such as this, to require specificity as to what the expert evidence would say would be contrary to the practice set down in Chapman v Chapman [2007] NSWSC 1109 at [6], to the effect that directions should be sought before an expert is retained, let alone before the expert provides a report. I accept that this practice should usually be followed, in particular in cases where it is plain that expert evidence will be relevant. However where, as in this case, it may very reasonably seem highly unlikely that expert evidence will be relevant to an issue, it may be necessary for an applicant for directions for expert evidence to provide some specificity as to the proposition or propositions that the expert evidence is expected to support, rather than merely give a vague indication of the area in which the expert evidence will be given. 27In my opinion, it was well open to the primary judge, having regard to the way the application was put and in the absence of any specificity as to the propositions which the expert evidence was expected to support, to take the view that the prospect that such evidence could assist the Court was so remote that directions should not be given. 28I accept the applicant's submission that the circumstance that the Land and Environment Court is a specialist court would not justify refusal of expert evidence, if such evidence otherwise was such as to be relevant and significant to an issue in the case. However, I do not read the decision of the primary judge to be contrary to this. Rather, I read it as saying that as a specialist court the Land and Environment Court is well able to understand expressions such as high conservation value and high biodiversity significance, and as using this in support of a conclusion that the prospect that the expert evidence, as outlined to her, could assist it was extremely remote. Nor do I read the judgment as rejecting principles stated in Ex parte MacKaness , or as saying that the circumstance that there would need to be evidence in reply was itself a ground for refusal. 29In my opinion, the primary judge could properly take the view that a substantial contest of experts would be a waste of time and money, having regard to her assessment of the unlikelihood that it could be of assistance. 30For those reasons, I would refuse leave to appeal and would propose that the application for leave to appeal be dismissed with costs. 31These reasons do not of themselves rule out the possibility that the Council could apply again for directions, this time specifying propositions that the expert evidence was expected to support. Whether such an application would be entertained, having regard to its lateness and the history of the proceedings, would be a matter for the Land and Environment Court. Of course, this comment is not intended to suggest that such an application should be entertained or that it might succeed. 32GILES JA: I agree with the reasons of Hodgson JA. I wish to add observations on two further matters. 33The first concerns the manner in which the application was presented to the primary judge. It was presented as if the Council was entitled to a direction whereby it could file the expert evidence if that evidence might possibly be relevant and admissible. That is seen in particular in a passage in the transcript in which it was submitted on the Council's behalf that: "The only real issue here is whether it is possible for my client to argue, possible, that these terms have a technical meaning and therefore we ought to be able to lead technical, scientific evidence as to what they mean." 34There was a strong similar flavour in the Council's written submissions in support of leave to appeal, although the matter was put rather differently in oral submissions. 35It should be made clear that this is not the correct approach to directions under r 31.19 of the UCPR. The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible. 36The second observation concerns the manner in which the leave application came before this Court. An oral judgment was given by Pain J on 26 May. On 2 June the proceedings in the Land and Environment Court were listed for hearing on 25 and 26 July. At that time, if there was to be any appeal from her Honour's ruling the urgency would have been apparent. The corrected transcript of her Honour's reasons was not available despite requests made for prompt attention to the transcript until 28 June, and the summons in which the Council applied for leave to appeal was filed on 30 June. There was a little over a month. The explanation for that delay was that the Council wished to obtain Senior Counsel's advice concerning an appeal and that that could not be done until the transcript of the reasons was available. 37This is not an acceptable explanation. The Court can and does hear matters at short notice and with expedition when necessary, but that can be inconvenient at the least and detrimental to the disposal of other litigants' cases. The application for leave to appeal in this case could and should have been brought earlier, promptly after the primary judge gave judgment, even if the transcript of her Honour's reasons was not available. The hearing of the application for leave to appeal could have been tailored to the availability of the transcript if other considerations permitted. Apart from that, a judge's oral reasons are to be listened to and understood at the time, and solicitors or if necessary counsel should make notes whereby a decision as to any appeal can be made promptly and the application for leave or the appeal can be conducted, should it come to that, even without the transcript of the oral reasons. 38I concur with the orders proposed by Hodgson JA. 39CAMPBELL JA: I agree with Hodgson JA and the orders he proposes. I also agree with the additional remarks of Giles JA. 40GILES JA: The orders of the Court will therefore be as proposed by Hodgson JA.