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.