Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 6)

[2022] NSWLEC 62

Land and Environment Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 6) [2022] NSWLEC 62

Hearing dates:

13 May 2022, 16 May 2022

Date of orders:

17 May 2022

Decision date:

17 May 2022

Jurisdiction:

Class 5

Before:

Pain J

Decision:

See [47]-[49]

Catchwords:

EVIDENCE – admissibility of expert evidence concerning aerial imagery in prosecution for illegal clearing of native vegetation

Legislation Cited:

Evidence Act 1995 (NSW), s 79

Native Vegetation Act 2003 (NSW), ss 11, 22

Native Vegetation Regulation 2013 (NSW), Pt 6, Div 1, Div 2

Cases Cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126

Category:

Procedural rulings

Parties:

Secretary, Department of Planning and Environment (Prosecutor)
Namoi Valley Farms Pty Ltd (Defendant)

Representation:

Counsel:
D Buchanan SC with A Garsia (Prosecutor)
J Ireland QC with A Connolly (Defendant)

Solicitors:
Department of Planning and Environment, Legal Branch (Prosecutor)
McGirr Lawyers (Defendant)

File Number(s):

2019/81751

Judgment

1. 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.

2. 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.

3. 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.

Evidence Act 1995 (NSW)

4. Section 79 of the Evidence Act 1995 (NSW) is as follows:

Part 3.3 Opinion

…

79   Exception: opinions based on specialised knowledge

(1)  If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2)  To avoid doubt, and without limiting subsection (1)—

(a)  a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and

(b)  a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following—

(i)  the development and behaviour of children generally,

(ii)  the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

Native Vegetation Act 2003 (NSW)

5. 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.

Native Vegetation Regulation 2013 (NSW)

6. Relevantly the Native Vegetation Regulation 2013 (NSW) (NV Regulation) Pt 6, Divs 1 and 2 set out in more detail the parameters of routine agricultural management activities for the purpose of ss 11 and 22 of the NV Act.

First report dated 6 March 2019

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

Second report dated 28 June 2019

12. Mr Watts second report instructed him to consider aerial photographs and satellite images over the Property and provide a report on the following:

Between the period 24 April 2014 and 14 March 2019 identify all buildings structures and works on the area which you identified in your first report dated 6 March 2019 as having been cleared between 11 April 2013 and 23 April 2014. He was asked to analyse one photograph for each 12 month period after 24 April 2014. He analysed 6 aerial images provided by OEH and relied on the cadastral boundaries of the Property in digital CAD format as supplied by OEH.

Evidence

13. The prosecutor tendered the following documents on the voir dire:

1. The affidavit of Mr Watts dated 12 March 2019 (Ex A);

2. The affidavit of Mr Watts dated 28 June 2019 (Ex B);

3. The affidavit of Ben Turner dated 10 March 2022 pars 1-6, 23-26, 31, 36, 39-43 and Exhibit K on the substantive proceedings (Ex C);

4. The transcript of 11 May 2022 in these proceedings, p 386(20-39), p 387 (14-18) and (36-40) (Ex D);

5. The transcript of 12 May 2022 in these proceedings, p 463(42)-p 464(21) (Ex E); and

6. The affidavit of Ms Susan Rea dated 16 December 2020 and Exhibit H in the substantive proceedings (Ex F).

First report dated 6 March 2019

14. The Defendant’s list of objections dated 12 May 2022 is addressed which consisted of a table with five rows of objections identified.

Defendant’s submissions on first report

15. Firstly, the Defendant submitted that the whole report should not be admitted because the expertise of Mr Watts in the identification of vegetation change from considering aerial and satellite images is not demonstrated in his CV or in the first report.

16. Secondly, the whole report fails to identify data applied and the methodology used to interpret images to enable the identification of alleged clearing. Numerous examples of Mr Watts’ failure to elucidate his approach were identified in the first report at court book pages 23 (par 20), 28, 30 (report par 44) 31, 32 (report par 45), 33 (report par 46), 36, 37,38, 39, 40 (report par 47), 43,44 (report par 48), 49 (report par 51), 92 (Appendix 5) 94 (Appendix 6), 70 (report Appendix 8), 71 (report Appendix 9).

17. Thirdly, various examples of unsupported opinion concerning the calculation of area of land were identified with objections to specific paragraphs identified in the third row, second column of the list of objections.

18. Fourthly, Mr Watts has no expertise to determine status of vegetation as regrowth as he does in in par 60(a) (fourth row, second column).

19. Fifthly, the data underpinning the cadastral boundary of the Property, shown on multiple images, is not disclosed, so that all references to the boundary of the property are unsupported opinion. This occurs throughout both reports where reference is made to matters within the property and beyond it.

Prosecutor’s submission on first report

20. 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.

21. 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.

22. 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.

23. 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.

Consideration of first report

Expertise

24. In relation to Mr Watts expertise, while his somewhat truncated CV does confirm his training, experience and knowledge in relation to aerial mapping and surveying gained over a thirty-year career no specific information is provided which is directed particularly to vegetation mapping, the principal criticism of the Defendant. It is therefore necessary to review the whole of his report to determine if that expertise is demonstrated. I have taken into account, in combination, his length of experience, and his familiarity with the software programs used based on this experience and when examined in the report (as identified in the Prosecutor’s lengthy first set of written submissions on this topic). I consider that his expertise has been demonstrated albeit a more comprehensive CV would have largely avoided this argument in my view.

Methodology

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

Calculation of area of land

31. Concerning the calculation of areas which appear throughout the report, all of which are objected to, Mr Watts explains his approach in par 24 of the report identifying the use of the specified software program which enabled Mr Watts with his specialised knowledge to calculate the areas he identifies. Similar to the analogy with the use of Microsoft Excel, Mr Watts is not required to explain the fundamentals of how that software works in order for this evidence to be admissible.

Property boundaries

32. Concerning the Property boundaries, Mr Watts used a CAD package supplied by OEH. He is criticised for not providing further detail of this. I am not sure what further detail can be provided beyond applying the data as he has done by showing the cadastral boundaries in his report. Mr Watts does not purport to check the information in the CAD package, he simply adopts it. The Prosecutor referred to Mr Turner’s evidence concerning the production of the cadastral boundaries in Ex K on the substantive proceedings to demonstrate that what Mr Watts identifies is the same. No direct connection between the two appears in the evidence. Mr Watts does not refer explicitly to Mr Turner as the source, referring to OEH generally. The inference arises from what has been otherwise tendered in evidence by the prosecutor that the OEH CAD package supplied to Mr Watts is what Mr Turner prepared in that I don’t understand that any other cadastral boundary data package is in evidence. To my eye the cadastral boundaries in Ex K of Mr Turner and in Mr Watts’ report appear the same. As I understand the Defendant’s submissions Mr Turner’s identification of boundaries may lack precision as to the location of the cadastral boundaries of the Property. That does not affect the admissibility of Mr Watts evidence. It may affect its weight in due course.

Regrowth

33. The Defendant submitted that Mr Watts was not qualified to determine if there was regrowth as he does in par 60(a). I do not consider that is what Mr Watts is doing in that part of his report and do not uphold that objection.

Report dated 28 June 2019

Defendant’s submission on second report

34. The Defendant submitted that the whole of the second report is irrelevant as it relates to periods outside the charge period.

35. Secondly, the boundaries of the Property are not based on any disclosed data.

36. Thirdly, the opinion of what is inside or outside the property is not established as the property boundary is not established.

37. The identification of items outside the Property are irrelevant.

Prosecutor’s submission on second report

38. The second report is directed to addressing any defence by the Defendant that it engaged in routine agricultural management activities as provided for in s 22 of the NV Act. Such activities are defined in s 11 of the NV Act and the NV Regulation Part 6, Div1 and Div 2. It is relevant to consider the presence or absence of infrastructure and fencing inter alia and the evidence is retrospectant, enabling inferences to be drawn about earlier events. The matters Mr Watts addresses are relevant to the operation of the NV Act, including areas of cultivation.

39. Calculation of areas of property have been addressed above in relation to the first report. Similarly identification of cadastral boundaries are addressed above.

Consideration of second report

40. The same conclusion on expertise as I reached above that Mr Watts has the relevant expertise to prepare the report applies to his second report.

41. The report is relevant to the operation of the NV Act including the presence of structures inter alia outside the property boundary for the reasons identified by the Prosecutor.

42. The same conclusion on cadastral boundaries as above applies and that is not a basis for objection.

43. The same conclusion on the identification of areas of land as above applies.

44. The second report can be admitted.

Supplementary judgment

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

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Decision last updated: 20 May 2022