Land and Environment Court of New South Wales CITATION : Rivers SOS Inc v Minister for Planning (No 2) [2009] NSWLEC 216 APPLICANT Rivers SOS Inc PARTIES : FIRST DEFENDANT Minister for Planning SECOND DEFENDANT Helensburgh Coal Pty Limited FILE NUMBER(S) : 40691 of 2009 CORAM: Preston CJ KEY ISSUES: EVIDENCE :- admissibility - judicial review proceedings - expert affidavit evidence - relevance to grounds of challenge - disclosure of factual basis and reasoning - evidence admitted Environmental Planning and Assessment Act 1979, Part 3A, s 75I, s 75J LEGISLATION CITED: Evidence Act 1995, s 80, s 135 Sydney Water Catchment Management Act 1998, s 47 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764 Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 CASES CITED: Corowa v Geographe Point Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 McCormack v Commissioner of Taxation [2001] FCA 1700; (2001) 114 FCR 574 Norvill v Stokes [2006] NSWLEC 622; (2006) 153 LGERA 278 Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 DATES OF HEARING: 24 and 25 November 2009 EX TEMPORE JUDGMENT DATE : 25 November 2009 APPLICANT Mr T F Robertson SC with Mr J E Lazarus SOLICITORS Environmental Defender's Office FIRST RESPONDENT Mr S J Free (barrister) LEGAL REPRESENTATIVES: SOLICITORS Department of Planning SECOND RESPONDENT Dr J E Griffiths SC SOLICITORS Blake Dawson JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 25 NOVEMBER 2009 40691 OF 2009 RIVERS SOS INC V MINISTER FOR PLANNING (NO 2) JUDGMENT ON ADMISSIBILITY OF EVIDENCE 1 HIS HONOUR: The applicant has brought judicial review proceedings challenging the validity of an approval granted by the Minister for Planning under Part 3A of the Environmental Planning and Assessment Act 1979 ("the Act") to approve a coal project at Helensburgh. 2 The applicant claims invalidity on five grounds. To establish three of the grounds the applicant seeks to rely on the expert evidence of a civil engineer who specialises in groundwater and related earth science issues in the mining industry, namely Dr Adrian Brown. Dr Brown has sworn an affidavit dated 13 November 2009. The respondents object to the whole of Dr Brown's affidavit on the basis of relevance, in particular that the evidence of Dr Brown was not before the Minister as decision-maker and the pleaded grounds of review do not otherwise justify the introduction of the evidence. 3 The respondents rely on a number of cases including Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540; McCormack v Commissioner of Taxation [2001] FCA 1700; (2001) 114 FCR 574 at 586-587; Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 83; Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 [649]-[668] and on ss 80 and 135 of the Evidence Act 1995. 4 The respondents also object to a number of paragraphs of Dr Brown's affidavit on the basis that they fail to disclose the underlying facts and process of reasoning by which the stated opinion has been reached, relying on authorities on the admissibility of expert evidence such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]; ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764 at [92]-[107]; Norvill v Stokes [2006] NSWLEC 622; (2006) 153 LGERA 278 at [86]-[87]; and Corowa v Geographe Point Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117 at [64] and on s 135 of the Evidence Act. 5 The applicant submits the expert evidence is relevant to grounds 2, 4 and 5 of its further amended points of claim. 6 In ground 2, the applicant claims that the Minister failed to comply with s 47(3) of the Sydney Water Catchment Management Act 1998 because the Minister failed to give notice, or give sufficient notice, to the Sydney Catchment Authority ("SCA") that the decision the Minister intended to make would be contrary to representations that SCA had made. The applicant claims that SCA made representations that included representations to the effect that there shall be no permanent reduction in water quantity or quality and that there shall be no adverse environmental consequences of subsidence impact. The applicant submits that the project, if carried out in accordance with the Minister's approval, would result in, at least to some extent, a permanent reduction in water quantity or quality and adverse environmental consequences of subsidence impact. The effects included those pleaded in paras 35-39A of the further amended points of claim. To establish these facts, the applicant seeks to rely on Dr Brown's evidence. 7 In ground 4, the applicant submits that by reason of Condition 6 of Schedule 6 of the Minister's approval, the project that will be carried out will be a significantly different project from that in respect of which application was made. Condition 6 of Schedule 6 provides that if the proponent exceeds certain performance measures specified in the approval, "the Proponent shall provide a suitable offset to compensate for the impact to the satisfaction of the Director-General." 8 The applicant relies on the evidence of Dr Brown to establish the set of possible offsets that could be provided to compensate for the impact. Of course, Condition 6 says that the offset selected must be to the satisfaction of the Director-General. This is a hurdle that the applicant will need to clear if its claim on this ground is to succeed. Nevertheless, the applicant needs to establish a set of possible offsets out of which the Director-General could select one or more to his satisfaction. The applicant relies on Dr Brown's evidence to establish that set of possible offsets. 9 In ground 5, the applicant claims that the report of the Planning Assessment Commission ("the PAC") that was in fact provided to the Minister was not the report that was required to be included with the Director-General's report to the Minister under s 75I of the Act and required to be considered by the Minister under s 75J of the Act, by reason of the fact that the project was fundamentally amended subsequent to the public hearing held by the PAC. One consequence of this was that the submissions of the public and of many government agencies only addressed the original project and had no opportunity to address the amended project. Accordingly, the PAC's report of the Director-General's report could not comment upon the public submissions made in respect of the amended project. 10 The applicant submits that the amended project had substantial and quite different subsidence impacts to the original project. The fact of these changed impacts is relevant, the applicant claims, to establish that the breach was intended by the legislature to lead to the consequence of invalidity of the Minister's approval and to establish the materiality of the breach of natural justice. The applicant relies on Dr Brown's evidence to establish the fact that the amended project has substantial and quite different impacts to the original project. 11 At this stage in determining the admissibility of the evidence, I am satisfied that the applicant has established sufficient relevance of Dr Brown's evidence to three of the grounds of its further amended points of claim to allow the admission of Dr Brown's affidavit evidence. 12 In relation to the particular objections to certain paragraphs of Dr Brown's affidavit on the ground that the factual basis and reasoning for Dr Brown's opinions have not been sufficiently established, in my opinion, the paragraphs in question, read fairly and with the other paragraphs to which they expressly or impliedly relate and in the context of the whole affidavit, establish a sufficient factual basis and reasoning to be admissible. 13 Accordingly, I propose to allow the whole affidavit of Dr Brown to be read. 14 The applicant also objected to the second respondent's affidavits of Lindsay Gilbert dated 17 November 2009, Dr Noel Patrick Merrick dated 17 November 2009, Dr Greg Tarrant dated 17 November 2009 and Arthur Annesley Waddington dated 17 November 2009. Consistent with my ruling on Dr Brown's affidavit, I propose for the same reasons to allow the second respondent to read and rely upon these affidavits. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.