Shellharbour City Council v Minister for Planning (No 2)

[2011] NSWLEC 107

Land and Environment Court

New South Wales

Medium Neutral Citation:	Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107
Hearing dates:	25 May 2011
Decision date:	26 May 2011
Before:	Pain J
Decision:	The Council's application for a direction to rely on expert evidence is refused.
Catchwords:	PROCEDURE - whether direction allowing filing of expert ecological evidence ought be granted in judicial review proceedings
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Pt 3A s 75O Shellharbour Local Environmental Plan 2000 State Environmental Planning Policy (Major Development) 2005 cl 3 Uniform Civil Procedure Rules 2005 Pt 31 r 31.19
Cases Cited:	Chapman v Chapman [2007] NSWSC 1109 Countouris v Kallos [2007] NSWSC 944 Ex parte MacKaness v Avery Pty Limited re Royce (1943) 43 SR (NSW) 239
Texts Cited:	DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6th ed (2006) LexisNexis Butterworths Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney, 2005 to date
Category:	Procedural and other rulings
Parties:	Shellharbour City Council (Applicant) Minister for Planning (First Respondent) Delfin Lend Lease Limited (Second Respondent)
Representation:	Mr J Lazarus (Applicant) Ms K Richardson (First Respondent) Ms A Mitchelmore (Second Respondent) Sparke Helmore Lawyers (Applicant) Legal Services Branch, Department of Planning (First Respondent) Allens Arthur Robinson (Second Respondent)
File Number(s):	40183 of 2011

Judgment

1. The Applicant, Shellharbour City Council (the Council), is seeking directions under Pt 31 r 31.19 of the Uniform Civil Procedure Rules 2005 (the UCPR) to adduce expert evidence. Rule 31.19 states:

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....

1. The expert evidence sought is from an ecologist to provide advice to the Court on the meaning of the phrases '"high biodiversity significance" and "environmentally sensitive area of state significance". These phrases appear in State Environmental Planning Policy (Major Development) 2005 (the SEPP). The latter is defined in the SEPP at cl 3.

1. The expert evidence is also intended to be called on the meaning of "areas of high conservation value", a phrase which appears in the Shellharbour Local Environmental Plan 2000 (the Shellharbour LEP). That phrase is defined in the dictionary in that LEP.

1. These judicial review proceedings concern the operation of the SEPP, and its relationship to Pt 3A s 75O (concept plans) of the Environmental Planning and Assessment Act 1979 and possible interaction with the provisions of the Shellharbour LEP. The Council wants to argue that these phrases have a technical meaning which should be the subject of expert evidence before the Court to enable it to put its case in relation to the appropriate statutory construction which should apply.

1. The Minister submits that issues raised require the application of orthodox principles of statutory construction for which expert evidence is unnecessary. Further the Court is a specialist court and to the extent that a technical understanding is necessary (which the Minister argues it is not) the meaning of phrases such as "high biodiversity significance" is a matter this Court can consider without the technical assistance of a single ecologist.

Conclusion

1. 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.

1. 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.

1. 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 , 6th 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.

1. 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.

1. 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.

1. I also note [6] of Chapman where Brereton J identifies why such directions should be sought promptly, and that the obligation arises before an expert has been retained by a particular party so that essentially the court can rule on the need for expert evidence before anybody incurs any costs at all in relation to that matter.

1. The Council's application for a direction to rely on expert evidence is refused.

Decision last updated: 28 June 2011