In the Zone - December 2024

Welcome to our final edition of ‘In the Zone’ for 2024. In this edition we highlight cases we have been involved in as well as those that have had a material influence on the work we have been doing.

We continue to see significant developments in environmental law, particularly around biodiversity and climate change. We are also seeing increasing regulatory activity for breaches of planning and environmental laws and the fines being imposed by the Land and Environment Court appear to be increasing. Additionally, there have been some interesting developments in how merit appeals in the Land and Environment Court should be conducted and a reminder about the importance of well-prepared expert evidence.

Overall, environment and planning law continues to develop quickly, and we know that this edition of In the Zone will help you stay up to date with some important developments.

We hope everyone enjoys the Christmas break and we look forward to working with you in 2025.

Federal Court

Full Federal Court dismisses appeal against decision that applicant failed to establish fuel reduction burns are likely to have a significant impact on the Southern Greater Glider

Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] FCAFC  134 (Strathbogie Appeal) by Moshinsky J, Charlesworth J, Kennett J (23 October 2024) [link]

Background

The applicant applied for an injunction under s 475 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) seeking to restrain the respondent from carrying out planned fuel reduction burns in the Strathbogie Forest, Victoria (Forest). The Forest was home to an important population of the Southern Greater Glider (Glider), which is a listed threatened species (vulnerable) under the EPBC Act.

Under s 18(3) of the EPBC Act it is an offence to carry out an action that will have a significant impact on a vulnerable threatened species without an approval under Part 9 of the EPBC Act.

The primary judge was not satisfied that the planned burns were likely to have a significant impact on the Glider and dismissed the applicant’s case in Save our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] 317 (Strathbogie).

The appellant appealed the judgment in Strathbogie, relying on two grounds:

1. The primary judge should have found that the action was likely to have a significant impact on the Glider based on the facts found, including the primary judge’s findings about the likely impact on hollow-bearing trees (HBTs) and his finding that there was a real chance the burns would result in a reduction in the abundance of HBTs (Ground 1).
2. In the alternative, the primary judge erred in his approach to the application of s 140 of the Evidence Act 1995 (Cth), that is the standard of proof in civil proceedings (Ground 2). The appellant contended that, applying the correct approach, the primary judge should have made two particular factual findings that he did not make, being that the proposed action would result in:
   1. a decrease in the abundance of HBTs of 26% or more, and
   2. a substantial or material reduction in the abundance of Gliders from collapse of HBTs.

The appellant argued that this action would constitute the taking of an action that is likely to have a significant impact on the Glider.

Ground 1

The Court found at [108] that the appellant had “not established (on the basis of the primary judge’s findings) that there was a real chance that the proposed action would adversely affect habitat critical to the survival of the Glider as a species or that the likely effect on hollow-bearing trees was otherwise likely to be a significant impact on the Glider”, for the following reasons:

• The appellant’s contention was premised on the planned burn areas comprising ‘habitat critical to the survival of the species’ (as defined in the Australian Government’s Conservation Advice for the greater glider (southern and central) (Conservation Advice) – it did not suggest that the habitat was “critical habitat”, which is the term used in the EPBC Act and refers to a listing in a register of critical habitat (see s 207A(4)).
• In referring to the description of what constitutes 'habitat critical to the survival of the Glider’ in the Conservation Advice, it was necessary for there to be expert evidence on the issue of whether a particular area is “critical habitat” before a finding to that effect can be made.
• There was no finding by the primary judge that the planned burn areas comprised ‘habitat critical to the survival of the species’ because there was no expert evidence to that effect.
• The expert evidence on the number of HBTs within the planned burned areas was not well developed and so it could not be said with any certainty how many HBTs were likely to be impacted.

The Court however clarified that its finding was not to say that “the approach underpinning the appellant’s primary contention (namely, reliance on a real chance that an action would adversely affect habitat critical to the survival of a species) is not an available approach in an appropriate case” (at [108]). 

On the appellant’s secondary contention, which was that there was a “real chance” that the burns may kill or injure some Gliders thereby having a significant impact on the species, the full Court upheld the primary judge’s conclusion that “it is a matter of speculation as to whether the reduction in the abundance of hollow-bearing trees will have any impact, let alone a significant impact, on the abundance of gliders present in the planned burn areas”. The Court held that the primary judge was correct to reach this conclusion because there was no evidence of the number of HBTs within the planned burn areas or of the number of HBTs that might be in use by Gliders (at [116]).

Ground 2

In its consideration of Ground 2, the full Court noted (at [121]):

In the circumstances of this case, where an injunction was sought under s 475(2) of the EPBC Act to restrain future conduct, and the Secretary evidently considered that the conduct did not require approval because it fell within an exemption, it is open to question whether the aspect of s 140(2) of the Evidence Act concerned with the “gravity of the matters alleged” had much of a role to play. 

The Court considered that the primary judge appreciated that the “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct” did not assist in the process of fact-finding in the circumstances. Accordingly, no error was shown in the primary judge’s approach to the application of s 140 of the Evidence Act 1995 (NSW).  In any event, the Court held there was insufficient evidence to establish either of the factual propositions contended for by the appellant. 

Section 43B exception

In its notice of contention, the Secretary argued that the decision of the primary judge should be affirmed on the additional basis that the exemption in s 43B of the EPBC Act applies (an argument that was rejected by Horan J in Strathbogie). Section 43B allows a person to take an action without an approval under Part 9 if that action is a lawful continuation of a use of land that was occurring immediately before the commencement of the EPBC Act.

In Strathbogie a threshold issue involved the identification of the relevant “land” which was said to have been used for the relevant purpose (planned fuel reduction burning) immediately before the commencement of the EPBC Act.

Although the full Court accepted the Secretary’s submissions about the appropriate approach to the identification of the relevant “land” (which were summarised at [133]), the Court was not satisfied that the evidence was sufficient to establish that the Forest was the relevant land because the evidence did not establish that, ‘from a practical point of view, the Strathbogie State Forest was treated as a unit for the purposes of fuel reduction burning’ (at [135]). Accordingly, the findings of the primary judge on this point were upheld.

As the full Court rejected both Grounds 1 and 2, it was not necessary for the Court to decide the Secretary’s notice of contention.

Key takeaways

Although any determination about whether an action is likely to have a significant impact on a threatened species will be fact specific, the Strathbogie Appeal affirmed that Horan J’s discussion of the principles about ‘likely’ and ‘significant impact’ in the context of the EPBC Act (found at paragraphs [335] – [343] in Strathbogie) is the correct approach. His Honour found:

• a significant impact is one that is “important, notable or of consequence having regard to its context or intensity”
• the term “significant” has been taken to operate as a limitation to “exclude impacts which are minor or negligible on a listed threatened species”
• “likely” in s 18(3) refers to “a real or not remote chance or possibility”, in the sense of “prone” or “with a propensity” or “liable”, as distinct from a test of “more probable than not”, and
• the text of s 18(3) requires demonstration of a significant adverse impact on the relevant species as a whole.

Land and Environment Court

Fuel supply company fined over $130,000.00 for pollution of Mittagong Creek and surrounding land in oil spill

Environment Protection Authority v Park Pty Ltd [2024] NSWLEC 120 by Duggan J (15 November 2024) [link]

Background

Park Pty Ltd (Park), an Australian fuel supply company that sources, supplies and distributes petrol and diesel in NSW was charged with, and pleaded guilty to, two offences under the Protection of the Environment Operations Act 1997 (POEO Act) for the pollution of waters and land in Bowral after a spill of diesel fuel at the Highland Fuels petrol station.

On 3 June 2022, an employee of Park delivered 14,000 litres of diesel fuel to the Highland Fuels petrol station (the Premises) and connected the hose from the fuel tanker to an incorrect fitting on the pump of the aboveground storage tank.  This caused fuel to be drawn out of the storage tank into the already loaded diesel tanker, filling into all six compartments and reaching maximum capacity.

Between 11,250 and 11,750 litres of diesel spilled onto the concrete hardstand, with an unknown proportion flowing onto the grassed and gravelled area and into the stormwater system and discharging into Mittagong Creek.

Park entered a plea of guilty but submitted at the sentencing hearing that the harm was caused by the following deficiencies at the Premises, including that they did not have:

1. bunding so as to prevent the escape of the diesel spill from the land
2. stormwater drains within the fuel loading area
3. a collection pit for water and fuel spills in the forecourt, and
4. a check valve installed in the transfer tank (as was required by the Australian Standard) so as to prevent the transfer of fuel back into the tanker.

The Court ultimately found that, while these features could have impacted on the extent of spill, they were not directly connected to the cause of the pollution. In particular, while a check valve may have reduced the quantum of fuel spilled, it was the employee’s erroneous connection of the pumping equipment that caused the spill.

Sentencing factors

In this matter the Court found that the objective seriousness of the offences was:

1. For the water pollution charge: in the high end of the lower range of objective seriousness.
2. For the land pollution charge: at the lower end of the range of objective seriousness.

In determining the appropriate sentence to be imposed, the Court considered the following matters in particular:

• The discharge of diesel caused actual and likely environmental harm to Mittagong Creek, extending over a distance of 300 metres downstream, lasting for 20 days.
• Park acted in cooperation with emergency services to ameliorate the risk of further harm and to clean up the spill in Mittagong Creek.
• The diesel spilled on the land was effectively removed and the land was appropriately remediated within a week after the spill, and prior to the issuing of a clean-up notice by the EPA.
• The remediation measures in respect of the land pollution were sufficient to prevent adverse future impacts to the environment and human health.
• While the offence was not deliberate, Park had control over the cause of harm in failing to ensure, either by sufficient training of its employees, or adequate emergency response procedures, that appropriate action was taken with the speed required to respond to the incident.
• Park could foresee the harm.

Notwithstanding that Park gave an undertaking to the Court to implement certain measures to prevent a future offence, the Court found that specific deterrence was necessary because Park continues to operate in the fuel industry and had a continued responsibility to ensure adequate training and responsive support.

The Court also considered that there was a need for general deterrence as the transfer of diesel is an inherently risky activity, which has the potential to affect the environment and is an industry wide concern.

Penalty

The Court imposed an initial monetary penalty of:

1. For the water pollution charge - $150,000, less 25% for the early guilty plea and less a further 10% in consideration of the principle of totality, resulting in a fine of $101,250.
2. For the land pollution charge - $50,000, less 25% for the early guilty plea and less a further 10% in consideration of the principle of totality, resulting in a fine of $33,750.

Park was also ordered to pay the EPA’s investigative costs of $17,968.50 and legal costs (anticipated to be in the order of $190,000) pursuant to s 248 of the POEO Act, apportioned to 50% to each of the proceedings.

Additionally, the Court made an order for moiety, which meant that half of the fines paid by Park went to the EPA on the basis that an order for payment of the EPA’s investigation costs would not compensate the EPA for the time spent by its investigating officers.

Land and Environment Court finds inadequate access for bushfire fighting purposes warrants refusal of rural residential subdivision

Bird in the Hand 1 Pty Ltd v Tweed Shire Council [2024] NSWLEC 1709 by Walsh C (6 November 2024) [link]

Background

In Bird in the Hand 1 Pty Ltd v Tweed Shire Council [2024] NSWLEC 1709 an appeal against the refusal of a development application for a 22-lot rural residential subdivision has been dismissed, principally because of bushfire emergency access concerns. 

The proposed development included the construction of new internal access roads, as well as a new emergency vehicle access via an existing driveway along the southern site of the boundary.  The subject site was identified as bushfire prone land, located on steeply sloping terrain which regularly exceeded 20 degrees, and surrounded by farmland and bushland to the west, north and east. 

There was a dispute between the parties’ respective bushfire experts about whether the accessibility to the subject site for firefighting purposes was adequate, and also whether provision of a perimeter road was necessary. 

Section 5 of Planning for Bushfire Protection 2019 (PBP) is concerned with residential and rural residential subdivision and establishes evaluation principles and the following “specific objectives” for residential and rural residential subdivision (emphasis added):

• minimise perimeters of the subdivision exposed to the bush fire hazard (hourglass shapes, which maximise perimeters and create bottlenecks should be avoided)
• minimise vegetated corridors that permit the passage of bush fire towards buildings; provide for the siting of future dwellings away from ridge-tops and steep slopes, within saddles and narrow ridge crests
• ensure that APZs between a bush fire hazard and future dwellings are effectively designed to address the relevant bush fire attack mechanisms
• ensure the ongoing maintenance of APZs
• provide adequate access from all properties to the wider road network for residents and emergency services
• provide access to hazard vegetation to facilitate bush fire mitigation works and fire suppression, and
• ensure the provision of an adequate supply of water and other services to facilitate effective firefighting.

It was contended by the applicant that the Table in s 5.3.2 of PBP did not require provision of a perimeter access road for “rural residential” as opposed to “residential subdivisions of 3 or more allotments”.

The decision

Commissioner Walsh preferred the Council’s expert evidence, finding that the proposed development did not satisfy the PBP specific objective (highlighted above) of providing access to hazard vegetation in the scenario of a serious active fire with high levels of bushfire fighting activity in response. The Commissioner found (at [63]):

…. In the circumstances of this site, and in the interests of reasonable operational management of a serious fire situation, it is necessary to have a firefighting vehicle moving along or near the outer edge of the APZ beyond the dwellings. The alternative of having firefighters having to traverse steep land on foot, moving up and down to meet changing fire circumstances with long hoses is not a sufficient response.

While other contentions (including adverse ecological and biodiversity impact) were also raised by the Council as warranting refusal of the proposed development, the appeal was ultimately dismissed because of “the serious adverse aspects of the proposal relating to bushfire risk management” as well as concerns about the adequacy of internal access roads. 

The Commissioner relevantly concluded that (at [108]):

… the proposal brings a serious deficit in regard to providing access to hazard vegetation to facilitate bush fire suppression. The concern is fire paths in favourable weather conditions spreading from the forest areas to the west and north-west (both within and outside the site) introducing fire hazard lines along certain steep areas of this site on the western side of the spine road. It is essential for this access (ie beyond the APZ to the vegetation fire line) to include access for firefighting vehicles. This is a determinative factor in the evaluation of the proposal. A further significant negative aspect of the proposal also concerns the site topography. The spine road design would involve substantial breaches of controls for retaining walls and associated structures under TDCP, which have a significant relationship to risk of failure and repair timelines. The associated user consequences of road failure are severe due to the fact that there is only one safe access into/out of the site for future residents.

Climate change considerations

Interestingly, at the conclusion of the hearing, the Commissioner also asked the parties’ bushfire experts to consider whether climate change has been factored into the PBP provisions.  A joint report from the bushfire experts concluded that it had not.  The Commissioner made the following observations on the further bushfire expert evidence provided on climate change (at [72] and [76]):

Acceptable solutions under PBP (relating to achieving the required BAL 29 at the building) for both rural residential and residential subdivisions is that APZs are provided in accordance with nominated tables. These tables relate the following three factors: vegetation formation (eg rainforest is seen as less risky that dryer forests), slope of the site and forest fire danger index (FFDI). The RFS nominates FFDIs for groupings of local government areas (LGAs) for use in the application of PBP.

…. I understood both experts to hold the view that the current applicable FFDI 80 indicator for Tweed, at least, no longer reflected the current situation. Generally, Mr Swain indicated that impact of climate change on bushfire behaviour is now irrefutable and that modelling for planning purposes is not sufficiently mature to account for this change yet….

The Commissioner further concluded on the evidence that (at [85]):

…it seems fair to understand that policy makers are working towards climate change adaptation policy to reduce impact on climate change on existing and future development. The bushfire experts advise of a current review of PBP. They were uncertain whether this review was intended to factor in climate change. They did not indicate any knowledge of the review of any localised FFDIs, which appeared on the evidence of the experts (and reliant on localised empirical weather data) to provide a less intricate policy challenge.

Key takeaways

The decision highlights the need for development proposed on bushfire-prone land to be designed to not only appropriately manage bushfire risk while ensuring the safety of future residents, but also to ensure the provision of appropriate and safe access to emergency personnel and vehicles in the event of a bushfire. The decision indicates that the Court is aware of the potential for increased bushfire risk in certain areas due to climate change and that there may be impacts that have not been factored into in the development of the current PBP.

Revocation of Interim Heritage Order

Tang v Newcastle City Council [2024] NSWLEC 1723 by Porter C (8 November 2024) [link]

Sparke Helmore acted successfully for the Applicant in these proceedings.

Background

On 1 March 2024, Newcastle City Council (Council) published Interim Heritage Order No 2024/01 (IHO) in the Government Gazette. The IHO preserved an existing dwelling located at 14 Sunderland Street, Mayfield.

The IHO was made after a development application was lodged which sought consent to demolish the existing building a construct a two-storey co-living development with 30 rooms.

The IHO was appealed by the landowners. Prior to the hearing of the IHO, the Council publicly exhibited a planning proposal to identify the existing dwelling as an item of local heritage significance in Schedule 5 of the Newcastle Local Environmental Plan 2012 (Planning Proposal). 

The Planning Proposal was supported by a Heritage Statement of Significance (HSA) prepared by an appropriately qualified and experienced heritage consultant. The HSA was prepared taking into account the criteria in the Heritage Council’s  “Assessing Heritage Significance – Guidelines for addressing place and objects against the Heritage Council of NSW criteria” (Heritage Guidelines). The HSA was not supported by evidence from other expert disciplines.

The HSA assessed the existing building as satisfying all of the criteria under the Heritage Guidelines principally on the basis that the dwelling was owned by former prominent citizen of Newcastle, Mr Thomas Braye (Braye), who may have lived in the building for approximately 18 months when elected the mayor of Waratah. The building also represented an early masonry dwelling within the Houghton Le Spring subdivision.

In the appeal, evidence was given by heritage experts on whether the evidence in the HSA satisfied any of the criteria in the Heritage Guidelines. This evidence was assisted by expert evidence from structural engineers concerning the structural stability of the existing building.

Decision

The Court found that the evidence in the HSA did not satisfy any of the criteria in the Heritage Guidelines to be an item of local heritage significance, principally for the following reasons:

1. There was nothing significant about the building being an early dwelling in the Houghton Le Spring subdivision on its own (criterion (a) – historical significance).
2. The relationship with Braye was brief and not for an extended period as required under the Heritage Guidelines and there are other buildings and places that have a stronger association with Braye (criterion (b) – historical association).
3. The construction technique was not creative or adapted technology of the time but was simply constructed from brick rather than timber, which was an inappropriate methodology for the area due to the highly reactive clay soils (criterion (c) – aesthetic/creative/technical achievement).
4. No evidence that the masonry construction was a rare example of an event, custom, way of life, distinctive attribute or that is composition to the local area as required under the Heritage Guidelines (criterion (f) – rare).
5. The dwelling was not a fine, notable, or highly intact example of a late Victorian dwelling and did not meet the criterion because of the integrity and condition of the building. It was not accepted that this criterion could be narrowed to a street level context (criterion (g) – representative).

The Court also determined, based on the structural engineering evidence, that the building had sustained extensive damage and a large portion of the dwelling could not be retained.  On this basis, the Court determined that if the building had any heritage significance, its current condition and integrity would have diminished that significance below the threshold required for the relevant criteria.

Key takeaways

It is important to pay close attention to the language used in the Heritage Guidelines when undertaking an assessment of significance. Errors in the evaluative task required for making interim heritage orders can occur when an assessment strays from the language of the Heritage Guidelines.

Additionally, it is essential that assessments of significance are properly informed by other disciplines where relevant, especially when evaluating a building that is in poor condition.  

Fine of $15,000, and further $15,000 per month, ordered for contempt of court after failure to comply with consent orders

Hawkesbury City Council v Laird [2024] NSWLEC 116 by Pain J (1 November 2024) [link]

Mr Laird and Ms Harte (the Respondents) were charged with contempt after failing to comply with Consent Orders entered in 2022 (the Consent Orders) about management of waste at premises in Putty NSW (the Premises). The Respondents pleaded guilty to the contempt charge and the judgment records Justice Pain’s determination of the appropriate penalty.

Background

Between October 2019 and July 2020, the Council and the Environment Protection Authority (EPA) conducted several inspections at the Premises, finding between 200 and 500 tonnes of waste, including asbestos material, evidence of earthworks and removed trees and vegetation. In October 2020, the EPA issued a Prevention Notice requiring the activities to cease. Prior to these proceedings, the Respondents had been convicted and fined pursuant to a number of offences under the Protection of the Environment Operations Act 1997 (NSW).

The Consent Orders were served on the Respondents in March 2022. Order 9 of the Consent Orders required that, within 60 days, the Respondents engaged a consultant to produce a Waste Classification Report.  The Council commenced the contempt proceedings by Notice of Motion on 22 July 2022, asserting a breach of Order 9 of the Consent Orders, and the Respondents, Mr Laird in particular, were given opportunity to purge the contempt over a long period. 

Sentencing considerations

Pain J sentenced the Respondents under r 13(1) of Part 55 of the Supreme Court Rules 1970 (NSW), which provides that the Court may punish contempt with a fine, imprisonment or both.

In determining an appropriate sentence, Pain J considered the lengthy period of non-compliance by Mr Laird, and that Mr Laird could have arranged his finances differently to achieve compliance with the Consent Orders. For example, there was evidence that Mr Laird spent money on a family holiday and a house during the relevant period.

Pain J also found that the failure to comply by Mr Laird was wilful. Ms Harte left compliance with Order 9 to Mr Laird, due to his greater knowledge about what was required. Pain J found that her reliance on Mr Laird was reasonable, and therefore her contempt was technical rather than wilful.

Pain J also considered the principles of both general and personal deterrence. On the need for general deterrence, Pain J applied Georges River Council v Mifsud [2017] NSWLEC 113, observing that the “underlying purpose of the exercise of the power of the Court to punish for contempt is to protect the effective administration of justice by demonstrating that the Court’s orders will be enforced.” For personal deterrence, Council raised that the non-compliance was ongoing, and that further requirements of the Consent Orders remained after Order 9 was complied with. Pain J applied Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 and considered that punishment for contempt must also be a denunciation of contempt.

In assessing the character and antecedents of Mr Laird, Pain J found that Mr Laird’s previous environmental convictions were not relevant. Pain J considered that Mr Laird’s apologies demonstrated remorse and were therefore mitigating factors.

Decision

Her Honour ultimately ordered Mr Laird to pay a $15,000 fine, with an additional $15,000 every six months in the event of non-compliance.

No penalty was imposed on Ms Harte because Pain J found she was of good prior character and that the penalty did not need to reflect deterrence and denunciation in the same way as Mr Laird’s penalty.  Her Honour also determined that a costs order against the Respondents would likely be a substantial liability for Ms Harte.

Finally, the Court made an order that Mr Laid pay the Council’s costs on an indemnity basis, with the costs payable by Ms Harte to be determined at a later date.

Key takeaways

This case is an example of the potential penalties that can arise in a contempt sentencing hearing. It serves as a reminder that seriousness, deterrence, and denunciation are important factors in contempt sentencing, and that the application of these factors will depend on the individual circumstances of the person charged.

Court dismisses Council’s motion for costs following discontinuance of Class 1 appeal (even though application lacking necessary information to satisfy all relevant merit contentions)

Simmattown Pty Ltd v Randwick City Council [2024] NSWLEC 118 by Pain J (31 October 2024) [link]

Background

On 21 November 2021 the Applicants commenced a Class 1 appeal against the deemed refusal of a Development Application (DA) for the redevelopment of the Coogee Bay Hotel site. On 7 May 2024 Council notified the Applicants that development consent had been granted by the Sydney Eastern City Planning Panel subject to a deferred commencement condition requiring the provision of acoustic information within 12 months and invited the Applicants to discontinue the Class 1 appeal.

The Applicants maintained the appeal contending that the timeframe specified in the deferred commencement condition should be extended to five years. The timeframe for compliance was the only matter in dispute between the parties, with neither party identifying acoustic issues generally in the statement of facts and contentions, or the reply. Further, the parties had agreed that expert evidence on acoustics was not required based on the contentions raised in the Council’s Statement of Facts and Contentions.

The one-day hearing commenced on 25 July 2024 before Senior Commissioner Dixon. The Senior Commissioner identified at the hearing that the Applicants’ acoustic assessment report lacked information and, as the matter before her was a hearing de novo, she would need to be satisfied of all relevant merit matters before development consent could be granted. The Applicants discontinued the appeal shortly after the hearing on 25 July 2024, consequently avoiding the risk that the already obtained development consent could be lost.  

The motion for costs

Council filed a notice of motion seeking an order that the Applicants’ pay its costs between 7 May 2024 and 25 July 2024 as well as the costs of the motion. Council sought its costs relying on subrule 3.7(3)(b)(ii) of the Land and Environment Court Rules 2007, which provides that the circumstances in which the Court might consider making a costs order to be “fair and reasonable” include where a party has failed to provide information or documents that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application.

In support of the motion, Council contended that the Applicants should have provided the information identified by the Senior Commissioner to be lacking in the DA as they should have been aware that the Court would need to be satisfied of all relevant matters before the consent could have been granted.

In response to the motion, the Applicants argued that although a Commissioner is not bound to determine proceedings solely by reference to the contentions raised by the parties, if the proceedings are to be determined by reference to matters outside the identified issues, then procedural fairness requires the parties be put on notice that some additional issue is raised (relying on Boral Cement Pty Ltd v SHCAG Pty Ltd [2013] NSWLEC 203 at [31]).

Decision

Pain J noted that the Applicants’ discontinuance of the proceedings was not itself a basis for awarding costs and that Council had the onus of showing that the decision to discontinue lacked a proper basis. Her Honour held that the Council failed to establish any unreasonable behaviour by the Applicants that would be sufficient to rely on subrule 3.7(3)(b)(ii).

In doing so, her Honour said at [20]:

The Council’s construction of subrule 3.7(3)(b)(ii) that a Class 1 appeal being a hearing de novo means that acoustic matters should have been addressed, although no contention identified this topic, gives the word ‘application’ too much work to do. The application is informed by the issues defined by the parties and does not mean an application for the purpose of subrule 3.7(3)(b)(ii) is at large. I also do not accept that the rule applies in the manner put irrespective of the Court’s Class 1 Practice Note applying to ensure that parties specify issues they wish the Court to consider and which inform the necessity of adducing expert evidence.

Pain J found that Council’s submissions would require the Applicants to consider in advance, essentially in a vacuum in the absence of an identified issue, any matter that might occur to a Commissioner separately to what the parties themselves had identified as issues in the dispute. Her Honour rejected Council’s argument that the matter of acoustic impact was so major that it should have been obvious to the Applicants, despite the lack of discussion on the issue prior to the hearing.

Council’s Motion was dismissed, and Council was ordered to pay the Applicants’ costs of the motion.

Key takeaways

The decision is a reminder that parties should ensure that all issues they wish the Court to consider are sufficiently identified in the Statement of Facts and Contentions and in any reply to that Statement.

The decision is also an example of the application of the ‘no discouragement’ principle, which asserts that a person should not be discouraged from making or defending an application by the prospect of an adverse costs order – see Boensch v Parramatta City Council [2022] NSWLEC 78 at [47].  The judgment specifies that the discontinuance of a Class 1 appeal in circumstances where it emerges at the hearing that there may be insufficient information for the Court to determine the application (with consequential risks for the litigation) is not by itself a basis for awarding costs against the discontinuing party.

Court admits expert report despite Council’s objection on lack of clarity regarding authorship

Wenkart v Blacktown City Council [2024] NSWLEC 117 by Pritchard J (6 November 2023) [link] 

Background

The applicants commenced proceedings pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) objecting to the amount of compensation following a compulsory acquisition.

Council objected to the admission of a report (the Report) prepared by valuation expert Mr Peter Irwin Phippen (Mr Phippen). The Report bore the electronic signature of Mr Phippen and attached his curriculum vitae. The basis for the objection was that the authorship of the Report was unclear, due to the first-person collective use of “we” throughout the Report and the shift from the possessive adjective “my” to the possessive pronoun “his” in the discussion of Mr Phippen’s curriculum vitae.

Expert opinion

Rule 31.23 of the Uniform Civil Procedure Rules 2005 (NSW) provides that an expert witness must comply with the Expert Witness Code of Conduct (the Code), which relevantly includes a requirement that an expert report must state the extent to which any opinion that the expert has expressed involves the acceptance of another person’s opinion, the identification of that other person and the opinion expressed by that other person (cl 3(h) of the Code).

Council submitted, and Justice Pritchard accepted, that Mr Phippen did not identify another person who undertook investigations or whose opinion he otherwise accepted while preparing the Report, despite the reoccurring use of “we”.

Further, Council submitted that Mr Phippen was not or may not have been the author of the Report, and that he was at best a ‘co-author’ and the other co-author’s identity was not disclosed. Consequently, and in the absence of evidence to the contrary, the Report was on its face inadmissible.

In cross-examination, Mr Phippen stated, among other things, that the Report “was 100% prepared by me. I have done thousands of valuations before. I have never been picked up on my use of "we".”

Admissibility and the use of “we”

Pritchard J considered the decision of Austin J in ASIC v Rich (2005) 190 FLR 242; NSWSC 149, in which the issue of an expert’s delegation and reliance on others was considered as follows:

[329] There is nothing in the law to prevent such delegation from occurring, but it is necessary for the expert who is the author of the report to apply his or her mind to the analysis and reasoning… so when the report is finalised, the whole of the reasonings and conclusions that it contains have been adopted as the expert’s own. Were that not the case, the expert could not be claimed as the author of the report…

[331] It is clear that ineffective delegation of work to assistants can lead to the exclusion of the expert’s opinion evidence…

[332] If the expert had not properly reviewed the assistants work, fully understood it, and then adopted it as their own, the other party to the litigation would be unfairly prejudiced by admission of the expert’s evidence, because the party who actually carried out the work will not be called and cannot therefore be cross-examined [citations omitted].

Her Honour also considered the matter of BrisConnections Finance Pty Limited (Receivers and Managers Appointed) v Arup Pty Limited (2017) 252 FCR 450; [2017] FCA 1268, where a similar concern arose within an expert opinion because it was not apparent whether the opinions expressed in that report were wholly or substantially based upon the specialised knowledge of either expert (where the report was co-authored). In that case, Justice Lee stated at [52], that it cannot be correct that a report is admissible under s 79 of the Evidence Act 1995 (NSW), just because the expert who signs the report takes all the opinions as his own and can testify about them.

Decision

In her consideration, her Honour placed emphasis on Council’s submission that the difficulty with the Report was that the words “we” and “our” were deployed in critical parts of the Report, containing conclusions based on apparent collective analysis.

Further, Pritchard J noted that at no point in the Report had Mr Phippen acknowledged work done by an assistant or that he had adopted any other work as his own reasoning or conclusions.   

In deciding to admit the report, Pritchard J said the following at [30]:

Despite considerable reservations concerning a serious non-compliance with the Expert Witness Code of Conduct in relation to critical matters of valuation evidence, in particular the identity of the author of the report on which the applicants seek to rely, which matters I would not place at “the low end of the spectrum of opinion evidence”, in light of the evidence given on the voir dire and the fact that the rules of evidence do not apply in Class 3 proceedings, I admit the report of Mr Peter Phippen dated 29 February 2024 over the objections of the respondent.

The weight attached to the evidence in the report was to be determined on another occasion.

Key takeaways

This decision is an important reminder about the need for expert reports in Land and Environment Court proceedings to comply with the Code of Conduct in order to be admissible in evidence. The Code of Conduct can be read here.

• Protection of the Environment Legislation Amendment (FOGO Recycling) Bill 2024 – The Hon. Penny Sharpe, Minister for the Environment introduced the Bill on 21 November 2024. If passed, the Bill would amend the Protection of the Environment Operations Act 1997 and regulations to provide for separated collection of food organics and garden organics (FOGO) waste from households and businesses as follows:
  • supermarkets and hospitality premises that meet specified bin capacity limits would be required to ensure the separate collection and transport of food organics from 1 July 2026, and
  • local councils would be required to separately collect and transport FOGO waste from households from 1 July 2030.

The NSW Environment Protection Authority has been undertaking consultation on FOGO mandates throughout 2024 but is yet to release the Consultation Report.

• Environmental Planning and Assessment Amendment (State Significant Development) Act 2024 – The associated bill was introduced in response to the recent decision in Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205, which we reported on in our previous edition of In the Zone. The amendment to the EPA Act allows the Secretary of the Department of Planning, Housing and Infrastructure to determine that a particular development does or does not form part of a single proposed SSD for the purpose of certain development consent requirements. The amending instrument commenced on 2 December 2024.

• The Future Made in Australia (Guarantee of Origin) Bill 2024 (Cth) and associated bills were passed by both houses on 27 November 2024. The bills were introduced as part of the Federal Government’s initiative designed to make Australia a ‘renewable energy superpower’ and would see $22 billion being invested into renewable energy infrastructure and critical minerals. The bills establish the voluntary Guarantee of Origin scheme to certify renewable electricity and products such as hydrogen and provides for the creation of certificates that contain information about the attributes of the renewable electricity or product that they represent.

• The Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Bill 2024 was assented to on 2 December 2024. We provided a summary of some of the key amendments to the Biodiversity Offsets Scheme under the Bill in our previous In the Zone. Since our last edition, the Bill has been amended to remove the power of the Environment Agency Head to issue written directions on accredited assessors. The full text of the Bill passed by both houses can be viewed here.

The NSW Government has announced a new Housing Delivery Authority and approvals pathway aimed at boosting housing supply. The Authority would sit within the Department of Planning, Housing and Infrastructure and oversee the new approvals pathway that will be available for new housing developments above an estimated development cost of $60 million in Greater Sydney and a cost of approximately $30 million in regional NSW. Find out more here.

Australian Bureau of Statistics shows residential approvals and activity have surged since the covid pandemic – releases data from 2019 - 2024 – read more here.

The Land and Environment Court has released a Practice Note on the Use of Generative Artificial Intelligence (Gen AI) which commences on 3 February 2025. Among other things, the Practice Note prohibits the use of Gen AI for generating the content of affidavits, witness statements, character references or other material that is intended to reflect the deponent or witness’ evidence and/or opinion, although it does not prohibit the use of Gen AI in the preparation of written submissions or summaries of argument. View the practice note here.

The International Court of Justice has been asked to issue an advisory opinion on the obligations of states to protect the climate against greenhouse gas emissions.  Fifteen judges sat for two weeks and were addressed by nearly 100 countries, including Australia, in the landmark case that has been brought about by a group of students from Vanuatu. Read more here.