Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority
[2004] NSWLEC 170
•19 April 2004
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2004] NSWLEC 170
PARTIES:
APPLICANT
Walker Corporation Pty Limited
RESPONDENT
Sydney Harbour Foreshore Authority
CASE NUMBER: 30024 of 2003
CATCH WORDS: Evidence
LEGISLATION CITED:
CORAM: Talbot J
DATES OF HEARING:
DECISION DATE: 19/04/2004
LEGAL REPRESENTATIVES
APPLICANT
Mr J J Webster SC with Mr I J Hemmings (Barrister)
SOLICITORS
Minter Ellison
RESPONDENT
Mr B J Preston SC with Mr A E Galasso (Barrister)
SOLICITORS
Deacons
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
30024 of 2003
Talbot J
19 April 2004
Walker Corporation Pty Limited
Applicant
v
Sydney Harbour Foreshore Authority
Respondent
Directions for Concurrent Expert Evidence
The purpose of the proposed concurrent evidence by the six town planning and architectural experts is to seek to narrow the issues in dispute and to save haring time. It also allows the Court, as the decision-maker, to consider the competing expert views while they are fresh in the mind. The prospect of partisanship is further reduced in the context of an open session. The experts will be given the opportunity to outline their own evidence and then participate in a forum wherein there will be an opportunity to hear the views of other experts and to question each other in order to facilitate critical evaluation of other expert opinions. The Court and the experts have already gained considerable benefit out of the process of generating joint reports in accordance with the Expert Witness Practice Direction.
The issue the Court has to decide is not whether the land should or should not be developed in a particular way but rather what would a prudent theoretical purchaser have had to pay for the land to a willing but not anxious vendor. The enquiry is directed to the reasonable expectation the purchaser and vendor may have held for future development of the land.
Each witness is to assume that the Court has been appraised of the alleged facts identified as constituting the planning history of the site and the evidence that the parties claim addresses the actual use of the site since about 1928. The Court has not determined how those facts and evidence should be applied in order to find the highest and best use of the site for the purpose of a hypothetical sale on 26 September 2002. A site inspection has taken place and attributes of the site identified on land and from the water.
The parties have nominated the following alternative prospective uses that they say a hypothetical purchaser would have had regard to at the relevant date in September 2003:-
(a)A residential use pursuant to a zoning that permits medium density. State Environmental Planning Policy No. 56 (“SEPP 56”) applies.
(b)A residential use pursuant to existing use rights attributable to the land.
(c)A medium density residential use relying upon State Environmental Planning Policy No. 5 with SEPP 56 also applying to that use.
(d)Torrens title subdivision.
(e)Industrial.
It is obvious from the written evidence the views and opinions of the experts relied upon by the parties are respectively divergent and inconsistent to varying degrees.
Summaries of relevant issues for concurrent evidence have been prepared by counsel. Copies of the summaries will be made available to each witness for assistance only. They are not suitable for use as a template for individual presentations by witnesses in the concurrent session.
The first objective of the concurrent evidence session is to provide a mechanism whereby each expert witness will be given the opportunity to present concise sworn oral testimony in support of their particular in a joint session. It is expected that the facts and circumstances relied upon might be referred to but with the understanding that the Court is already appraised of the existence of these matters and understands the implications that could be attached to them for the general purpose of the arguments being propounded. It is equally implicit that the experts opinions are being given and received for the primary purpose of assisting the Court to reach the correct decision. The evidence should be sufficiently detailed to achieve that objective.
In the first instance each witness will be asked to outline their preferred position and whatever facts and events are taken into account to reach that conclusion. If, in the opinion of the witness, there are alternatives that can be considered these should be identified and explained in the same manner. If a witness has changed their original opinion as a consequence of other or further evidence or has been persuaded to a view contrary to that previously expressed for any other reason then they have a duty to disclose that fact to the Court.
I will invite each witness to present a precise brief oral opening statement that:-
(a)Identifies the options considered;
(b)Identifies the option/s finally adopted and summarises the underlying reasoning that support that decision; and
(c)Identifies the option/s rejected and summarises the underlying reasoning that support that decision.
The applicant’s experts will, in turn, be followed by the respondent’s experts. Repetition can be avoided by merely adopting or qualifying, to whatever extent is necessary, a statement made or pinion given by an earlier witness.
After dealing with questions that I need to ask, the respondent’s experts will be invited to ask the applicant’s experts questions. The process will then be reversed to allow questions by the applicant’s experts to facilitate a colloquium followed by an invitation for each expert to sum up by briefly identifying matters agreed upon and issues in respect of which they disagree.
At the conclusion of the process the legal representative may ask questions of any witness.
The expert witnesses are directed to meet for a preliminary conference at 9:30am on 20 April 2004 in Courtroom 5B on Level 5 of the Land and Environment Court. Legal representatives shall not participate in the preliminary conference. The parties shall, prior to the preliminary conference, cause each expert witness to be provided with a copy of these directions and the respective Issues for Concurrent Evidence filed in Court by the parties on 16 April 2004.
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