ROBERTSON and CITY OF ALBANY

[2018] WASAT 137

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   ROBERTSON and CITY OF ALBANY [2018] WASAT 137

MEMBER:   DEPUTY PRESIDENT, JUDGE PARRY

MS M CONNOR (MEMBER)

HEARD:   15 AUGUST 2018

DELIVERED          :   15 AUGUST 2018

PUBLISHED           :   10 JANUARY 2019

FILE NO/S:   DR 354 of 2017

BETWEEN:   GRAEME ROBERTSON

Applicant

AND

CITY OF ALBANY

Respondent

Catchwords:

Town planning ­ Development application ­ Extractive industry ­ Practice & procedure ­ Expert evidence ­ Whether environmental planner qualified to give expert town planning evidence

Legislation:

City of Albany Local Planning Scheme No. 1
Environmental Planning and Assessment Act 1979 (NSW)
Planning and Development Act 2005 (WA), s 252(1)

Result:

The paragraphs in which Ms Price expressed opinions in relation to town planning matters were excluded from her evidence.

Summary of Tribunal's decision:

In a planning review proceeding concerning a proposed extractive industry development, the applicant sought to rely on a witness statement of Ms Melanie Price, who is an environmental scientist and who was previously employed by the Ministry for Planning and the City of Albany as an 'Environmental Planner' and has been a 'Contract Planner' with the Department of Planning and Infrastructure.  A question arose as to whether Ms Price is qualified to give expert evidence in relation to town planning matters.
The Tribunal determined that while expertise can be acquired through practical training or experience, when there is an academic qualification in relation to an area of expertise, a person should generally hold that qualification in order to be qualified to give expert evidence in relation to that area of expertise.  The Tribunal determined that Ms Price is not qualified to give expert evidence in relation to town planning matters.  The paragraphs in which Ms Price expressed opinions in relation to town planning matters were excluded from her evidence.

Category:    B

Representation:

Counsel:

Applicant	:	Mr K de Kerloy and Mr P Keeves
Respondent	:	Mr DF Nicholson

Solicitors:

Applicant	:	Herbert Smith Freehills
Respondent	:	McLeods

Case(s) referred to in decision(s):

Price v R [1981] Tas R 306

R v Harris (1997) 7 NTLR 1

Yildiz v R (1983) 11 A Crim R 115

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. Mr Graeme Robertson (applicant) seeks review, under s 252(1) of the Planning and Development Act 2005 (WA), of the decision of the City of Albany (City) to refuse development approval under the City of Albany Local Planning Scheme No. 1 (LPS1 or Scheme) for an extractive industry, in particular limestone extraction, at Lot 9005 Rock Cliff Circle and Eden Road, Nullaki (site). 

2. The applicant seeks to rely on a witness statement of Ms Melanie Price, who is an environmental scientist.  The Tribunal raised a potential concern about four paragraphs of Ms Price's proposed witness statement, which the City also objects to, on the basis that Ms Price does not appear to have relevant expertise to express the opinions in those parts of her witness statement. 

Ms Price's qualifications and experience

1. Ms Price holds academic qualifications or what she refers to as 'formal qualifications' as follows: 

   •Bachelor of Science (with Honours) in Zoology, Botany, Microbiology and English from the University of Western Australia, obtained in 1990; and

   •Post Graduate Diploma in Environmental Impact Assessment from Murdoch University, obtained in 1999. 

2. Ms Price also refers in her witness statement and in her attached curriculum vitae to having:

   … extensive experience in environmental impact assessment and management in the South West of Western Australia, with over 20 years of experience working in the Private, Local Government, and State Government sectors in biological and physical sciences with a focus on reduction and management of risk related development.

3. Ms Price also states that, based on her experience:

   I have a detailed knowledge of planning approval processes, project management, environmental impact assessment, natural resource management, town planning and community facilitation.

4. Ms Price's curriculum vitae indicates that, between 1995 and 1997, she was employed as an 'Environmental Planner' and then as a 'Bushplan Project Manager' at the Ministry for Planning.  Between 1997 and 2003, Ms Price was employed as a 'Reserves Officer' and 'Environmental Planner' with the City of Albany.  Between 2006 and 2007, Ms Price was a 'Contract Planner' with the Department of Planning and Infrastructure.

Evidence in question

1. The paragraphs in question are paragraphs 23, 26, 28 and one sentence in paragraph 30.  These state as follows:

   23The [s]ite is zoned "Conservation Zone" under the City of Albany's Local Planning Scheme.  That type of zoning is usually directed to landscape protection rather than specific flora and fauna conservation.  It is not intended to be conservation in the true sense of a formal conservation reserve (e.g. a nature conservation reserve created under the Conservation and Land Management Act 1984 and managed by the Conservation and Parks Commission).

   26From a planning perspective, conservation zoning must also be viewed in light of other policies.  Statement of Planning Policy 2.4, Basic Raw Materials (which applies to specific areas within the State) introduces the concept that significant basic raw materials should not be sterilised through land zoning or incompatible land uses which would limit future use of the material.

   28Extraction of significant basic raw materials like lime can be compatible with a conservation zone where it can be demonstrated that the impacts of the proposed extraction activity can be managed and are relatively short-term.

   30… The proposed development will not adversely affect the values of the Nullaki area in terms of its conservation zoning.

2. As will be seen from these parts of Ms Price's proposed witness statement, she is expressing opinions in relation to the nature and effect of the zoning in the site in question, in this case being the Conservation zone and particularly zone CZ1 under the Scheme.  Ms Price expresses opinions in relation to what we would term 'statutory planning matters'. 

Parties' submissions

1. The City objects to this evidence on the basis that Ms Price, while qualified as an environmental scientist and while having practical experience in relation to environmental planning matters, including impact assessment, is not qualified to give town planning expert evidence and express opinions in relation to statutory planning issues.  The City also submits that it is very difficult to assess a person's practical experience, whereas academic qualifications are clearly either obtained or not obtained. 

2. The applicant submits that academic qualifications are only one way in which a person may acquire relevant expertise to be qualified to give expert evidence.  Another way is through practical experience and it is submitted Ms Price has practical experience in relation to the matters as to which she proposes to give expert evidence in the paragraphs that we have referred to.

Is Ms Price qualified to give the evidence in question?

1. There is no dispute between the parties that town planning is an area of specialised knowledge and therefore a recognised area of expert evidence.  In this proceeding, there are in fact three other expert witnesses giving town planning evidence, Mr Samuel Williams and Mr William Burrell, called by the applicant, and Mr Joe Algeri, called by the City.  Each of these three witnesses holds academic qualifications in town planning as well as having significant practical experience as a town planner.  The question for the Tribunal is whether Ms Price is relevantly qualified to give the evidence in the four paragraphs we have referred to. 

2. Cross on Evidence by JD Heydon (LexisNexis Butterworths, 10^th Australian edition, 2015) states at [29060] that once the field of expertise in relation to proposed expert evidence is established:

   …the judge must consider the skill of the witness in question.  Clearly the nature and extent of studies pursued by the witness will vary infinitely and will depend upon the area of science in question.  There are fields in which the witness's skill could never, or need not, derive from scholastic studies, but rather from practical experience.

3. Cross on Evidence gives examples from cases of expert evidence based on expertise gained by practical experience, including evidence from an Aboriginal tracker trained from the age of seven by his grandparents in tracking, particularly human and animal footprint recognition, and experience gained over many years (R v Harris (1997) 7 NTLR 1 (NTSC)), where Turkish attitudes are in question, evidence from persons who either had lived among Turkish people or had studied their attitudes (Yildiz v R (1983) 11 A Crim R 115 (Vic FC)), and a heroin addict giving evidence identifying a substance as being heroin (Price v R [1981] Tas R 306 (TasCCA)). These are only three examples drawn from the cases that are cited in that paragraph. As Cross on Evidence also states at [29060]:

   It is for the judge to determine whether the witness has undergone such a course of special study or experience as will render the witness expert in a particular subject, and it is not necessary for the expertise to have been acquired professionally.

4. In our view, Ms Price does not have relevant expertise to express opinions about statutory town planning matters and in particular to give the evidence in question that we have set out earlier, for the following reasons. 

5. Although it is correct that a person can acquire expertise by practical training or experience, as well as by academic qualification, in our view, when there is an established academic qualification available in relation to an area of expertise, a person should generally hold that qualification obtained through scholastic study in order to be qualified to give expert evidence in relation to that area of expertise.

6. In particular, in this Tribunal, expert town planning evidence is of great importance in planning review proceedings.  The Tribunal relies on town planning expert evidence in a vast number of matters.  We consider that in order to express opinions in relation to statutory town planning matters, the person giving evidence should have academic qualifications as a town planner.  Of course, the weight to be given to the evidence of a planner may, and often will, depend on the level of their practical experience on top of their academic qualifications.  However, we consider that, in relation to town planning in this Tribunal, in order to have relevant expertise to express an opinion in relation to statutory town planning matters, the witness must have formal qualifications as a town planner. 

7. Secondly, although Ms Price has practical experience, initially as an environmental planner with the Ministry for Planning, then an environmental planner with the City, and finally as a contract planner with the Department of Planning and Infrastructure, it is clear that, given her background and formal qualifications, and given the description of those roles as, in part, 'environmental planner', the expertise that Ms Price holds is in the field of environmental planning, rather than statutory town planning.  'Environmental planning', as that term is understood in Western Australia, is not the same as statutory town planning.  The situation may be different, for example, in New South Wales where there is greater integration of planning and environmental laws under the Environmental Planning and Assessment Act 1979 (NSW). In Western Australia, an environmental planner is not town planner, and we do not consider that an environmental planner has the necessary expertise to give evidence in relation to statutory town planning matters.

8. Thirdly, and finally, we note that Ms Price's practical experience in environmental planning was gained in positions that she held between 12 and 21 years ago, and therefore that that experience gained in those practical contexts is now somewhat dated. 

Conclusion

1. For these reasons, we do not consider that Ms Price has the expertise to express the opinions that she seeks to give in those paragraphs of her witness statement that are in question and we exclude those parts of her witness statement.

2. We add that, as we have said, the applicant has called two expert town planners and can seek leave to ask further questions of those witnesses.  Furthermore, the applicant can seek leave to ask questions of Ms Price to supplement the witness statement excluding those paragraphs. 

3. We make the witness statement of Ms Melanie Price, dated 11 May 2018, excluding paragraphs 23, 26, 28 and the last sentence of paragraph 30, an exhibit in this proceeding.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MF
Associate

11 JANUARY 2019