A RECENT judgment handed down by the Land and Environment Court in New South Wales which will have developers rejoicing, is expected to have a ripple effect across Australia.
A judge in the Land and
Gadens Lawyers’ Partner Environment Anthony Whealy said Justice Lloyd’s decision has turned decades of Land and
He said whilst it is welcome news for developers, the decision will surely have councils up in arms.
“A judge of the Land and Environment Court, by ruling that council staff / employees such as council planners are biased and therefore prevented from being expert witnesses in Land and Environment Court cases. Their opinions will be excluded.
In
Instead, Whealey said Justice Lloyd relied upon the Expert Witness Code of Conduct, which required experts to be independent from the parties.
The Expert Witness Code of Conduct is seven year old High Court decision, and even an ASIC Regulatory Guide, to rule that “the existence of an ongoing or existing relationship between an expert witness and a party results in a breach of the necessary independence”.
In this case, Justice Lloyd excluded the expert report by Council’s senior development planner Noni de Carvalho.
In reaching his decision, the judge said:
“In my opinion, the report of Mrs de Carvalho should be rejected. She is not independent from a party but, on the contrary, is an employee of a party…Finally, as I have already noted, the report itself contains not only facts but also partisan opinions, which demonstrate that she has clearly adopted the role of an advocate for a party. I reject the tender of the report”.
“The question of whether an expert is independent will turn on its own facts and circumstances, but the ruling in this matter stands to generally exclude Council staff from giving expert evidence or preparing expert reports, other than where they merely state factual matters,” Whealey said.
“It may well prevent Council staff from providing any “partisan opinion”, which really means that no opinion at all may be expressed if it supports the Council’s case,” Whealey concluded.
A legal planning expert said the decision could have ramifications across other planning matters across the country.
“Whilst the Land and
“The Court also has the same status as the NSW Supreme Court and this Judge’s decision could be use as legal precedent by tribunals and planning courts,” he concluded.
Australian Property Journal
