PIKES LAWYERS JUDGMENTS BULLETIN FEBRUARY 2009 Pikes Lawyers 50 King Street SYDNEY NSW 2000 DX 521 SYDNEY Tel: (02)9262 6188 Fax: (02)9262 6175 Email: email@example.com 2 PROSECUTION OF COUNCIL OFFICER Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council  NSWLEC 1 6 February 2009 – Land and Environment Court of NSW – Lloyd J In our June 2006 Bulletin we reported on the decision of Garrett v Freeman (No. 2)  NSWLEC 334 (Lloyd J) in which a Council officer, Mr Freeman, then Director of Infrastructure at Port Macquarie Hastings Council was facing criminal charges relating to construction of a Council roadway. The Court held that he was not protected by section 731 of the Local Government Act 1993 which was interpreted by the Court to provide protection from civil actions but not criminal ones. The Court handed down its sentences in this and other related matters on 6 February 2009. The Council had pleaded guilty to four charges arising from the construction of a road in an area that was habitat for a number of threatened species, being the Eastern Chestnut Mouse, the Grass Owl and the Wallum Froglet. Three charges were under the National Parks and Wildlife Act 1974 for causing damage to the habitat of these three threatened species. There was a fourth charge under the Fisheries Management Act 1994 for carrying out reclamation work (i.e. a road in a wetland) without the authority of a permit issued by the Minister. Mr Freeman, Council’s then Director of Infrastructure, had also been charged personally under section 175B of the National Parks and Wildlife Act 1974 for two of the offences with respect to damaging the habitats of the Grass Owl and the Eastern Chestnut Mouse. There was a contested hearing and he was found guilty of these two offences. In his sentencing Judgment, Justice Lloyd described Mr Freeman as having led “an exemplary life”, noting that “But for one error of judgment, Mr Freeman has been a model citizen”. However, he considered it appropriate in the circumstances to fine Mr Freeman $57,000.00. He was also ordered to pay the legal costs of the Prosecutor of $167,500.00. Council was fined a total of $80,500.00 and agreed to pay the Prosecutor’s costs totalling $194,000.00. DISCLAIMER The above are summaries only of the relevant Judgments concerned. They are not intended to take the place of legal advice. 3 These Judgments demonstrate that severe consequences can follow for an individual Council officer who is involved in a breach of environmental laws. For questions about these Judgments, please contact Peter Jackson or Andrew Simpson. DISCLAIMER The above are summaries only of the relevant Judgments concerned. They are not intended to take the place of legal advice. 4 VALUATION OF COMMUNITY LAND UPON COMPULSORY ACQUISITION Leichhardt Council v RTA (No. 3)  NSWLEC 3 6 February 2009 – Land and Environment Court of NSW – Lloyd J In our January 2007 Bulletin we reported on the decision of the New South Wales Court of Appeal in this case concerning the compensation payable to Leichhardt Council by the RTA under the Land Acquisition (Just Terms Compensation) Act 1991 for the compulsory acquisition of part of a Council park by the RTA. The park was classified as community land under the Local Government Act 1993 and zoned open space. The Land and Environment Court had determined the market value of the land at $1,175.00 per square metre, which it then reduced by 80% by reason of the statutory constraints imposed by the open space zoning and its classification as community land. Previous decisions of the Land and Environment Court had applied a discount of up to 50% to residential values where the land was subject to such constraints. After the Court of Appeal upheld the Council’s appeal by overturning long-established legal precedents concerning land subject to restrictions in the hands of the owner, the case was remitted to the Land and Environment Court for re-determination. The Court handed down its decision on 6 February 2009. The evidence before the Land and Environment Court was that there was a shortage of open space land in the Leichhardt local government area and that the Council and the Department of Planning were active buyers of land for open space in the market place at full residential values. The Court accepted that there would be other potential purchasers of such land apart from the Council, such as State government authorities, developers, sporting and recreation clubs, and schools and universities. The “willing but not anxious vendor” would know this and would know the price that the hypothetical purchaser would be prepared to pay, and would be unlikely to settle for any less. Accordingly, in the circumstances of this case, the Court did not consider it appropriate to discount the figure of $1,175.00 per square metre. The RTA was ordered to pay compensation of $1,465,000.00 to the Council. On acquisition, the RTA had offered Council compensation of $52,000.00. DISCLAIMER The above are summaries only of the relevant Judgments concerned. They are not intended to take the place of legal advice. 5 While this decision and the earlier decision in Sutherland Shire Council v Sydney Water Corporation (which was the subject of our special November 2008 Judgments Bulletin) will have significant implications for both Councils and resuming authorities, the Court did note that the facts and circumstances pertaining in the Leichhardt local government area might not apply in other local government areas. For questions about this Judgment, please contact Julie Walsh or Roslyn McCulloch. DISCLAIMER The above are summaries only of the relevant Judgments concerned. They are not intended to take the place of legal advice. 6 EXCLUSION OF “PARTISAN” EXPERT EVIDENCE Pittwater Council v A1 Professional Tree Recycling Pty Limited (No. 1)  NSWLEC 325 15 December 2008 – Land and Environment Court of NSW – Biscoe J These were prosecution proceedings in relation to alleged unlawful clearing of bushland contrary to a Council’s Tree Preservation Order. During the proceedings an objection was made by the Defendant concerning the admissibility of a portion of the prosecution’s expert’s evidence on the basis that it was not impartial. The Defendant relied on a recent and somewhat controversial decision in the Land and Environment Court in Willoughby City Council v Transport Infrastructure Development Corporation (No. 2)  NSWLEC 238 where Lloyd J refused to admit an expert’s report for the following reasons (at paragraph 11): “In my opinion, the report of [the Council witness] should be rejected. She is not independent from a party but, on the contrary, is an employee of a party. Moreover, she appears to have been heavily involved in the proposal for the development of the land in question and so is not independent from the matter in dispute. 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.” An expert witness is bound by the Expert Witness Code of Conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005. In summary, the Code states that an expert witness has an overriding duty to assist the Court impartially, that the expert’s paramount duty is to the Court and not to any party in the proceedings and that an expert witness is not an advocate for a party. In the Pittwater Council decision, on the facts, Biscoe J found that the Council officer had not crossed the line. In particular, Biscoe J noted that merely because the expert witness is or was an employee of the party retaining that expert, had investigated the matter prior to commencement of the proceedings and recommended that the proceedings be taken was insufficient to lead to rejection of that expert’s evidence. The decision highlights that the earlier Willoughby decision is distinguishable on the particular facts. DISCLAIMER The above are summaries only of the relevant Judgments concerned. They are not intended to take the place of legal advice. 7 Council employees commonly give expert evidence and it is sensible and economic that this should occur. However, in so doing, the following quote from the Judgment should be borne in mind: “There is no ethical reason why [expert evidence] cannot be given by the person providing assistance [in the litigation], as long as that person and legal advisors understand and recognise the difference between the two tasks and keep them separate.” For questions about this Judgment, please contact Jacinta Reid or Andrew Simpson. DISCLAIMER The above are summaries only of the relevant Judgments concerned. They are not intended to take the place of legal advice. 8 NEW PLANNING PRINCIPLE THE PUBLIC INTEREST IN DEVELOPMENT APPLICATIONS Double Bay Marina v Woollahra Council  NSWLEC 1001 9 January 2009 – Land and Environment Court of NSW – Roseth SC This matter involved a proposal to re-develop the existing 40 berth fixed marina at Double Bay. The proposal constituted designated development. There were a large number of objections to the proposal. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to marina developments in Sydney Harbour. Clause 2(2) of the REP sets out guidelines for weighing the competing aims of the REP. The clause provides that: A Sydney Harbour is to be recognised as a public resource, owned by the public to be protected for the public good. B The public good has precedence over the private good whenever and whatever changes are proposed for Sydney Harbour or its foreshores. C Protection of the natural assets of Sydney Harbour has precedence over all other interests. The key to the Court’s decision was the public interest and how to weigh the public interest against the private interest in the circumstances of this case. The Commissioner set out a planning principle for discerning the public interest in development applications. The Commissioner noted that consideration of the public interest ought to be broken into three steps: 1 Defining the public whose interest is being invoked. 2 Defining the benefit towards which a proposal claims to make a contribution (or from which it is claimed to detract). 3 Making explicit the weight given to the public interest relative to other considerations. The Commissioner noted that “the public” is a variable term requiring definition in every case and may range from all the people in the world down to people who live or work a locality or business centre or use a public facility. He noted that it was vital not to confuse the public interest with complaints of individual objectors as, in most cases, the interest of objectors is a private interest. DISCLAIMER The above are summaries only of the relevant Judgments concerned. They are not intended to take the place of legal advice. 9 Where the benefit or detriment can be quantified, this should be done. Where there are competing and feasible claims as to whether a proposal contributes to or detracts from the public interest, the decision maker will inevitably be required to make a subjective choice between them. In weighing the various interests against each other, the Commissioner noted that where all other things are equal, the public interest overrides the private interest. However, he noted that “other things are rarely equal” and thus a major private benefit may be given greater weight in certain circumstances than a minor public detriment. Where weighing competing public interests, again the decision maker will inevitably be making a value judgment but ought to make that value judgment explicit in their reasons. In the context of this case, the Commissioner found that the loss of views from the beach was a diminution of the public interest but that the loss of views from the ground floor of dwellings was a private detriment as the occupants of the dwellings did not constitute the “public” or a “section of the public”. The Commissioner also found that the provision of disabled facilities in the new marina would be a public benefit and that the provision of improved mooring facilities for future users of the marina would be a private benefit. In making his final decision, the Commissioner was required to assess the weight to be given to the loss of views from the beach and the balancing of the private benefit of better boat accommodation with the private detriment of view loss from the dwellings. He gave moderate weight to the loss of views from the beach as the beach was not readily accessible but nevertheless found that this public detriment outweighed the public benefit of the disabled facilities in the marina which would be used only by a very small number of people. In weighing the private benefits and detriments, the Commissioner found that the provision of boat accommodation was a convenience but that the loss of the water views, being the amenity of highest value to the dwellings, would be “devastating”. The appeal was dismissed. For questions about this Judgment, please contact Gary Green or Joshua Palmer. DISCLAIMER The above are summaries only of the relevant Judgments concerned. They are not intended to take the place of legal advice. 10 VALUATION OF COMPULSORILY ACQUIRED LAND - BETTERMENT AMP Capital Investors Limited v Transport Infrastructure Development Corporation  NSWCA 325 27 November 2008 – Court of Appeal – Hodgson JA; Bell JA; Gyles AJA This case concerned a claim for compensation by AMP Capital Investors Limited (“AMP”) against Transport Infrastructure Development Corporation (“TIDC”) under the Land Acquisition (Just Terms Compensation) Act 1991 for the acquisition of leasehold interests in land owned by AMP at the Macquarie Shopping Centre. The land was acquired for the construction of a railway station next to the Macquarie Centre as part of the Parramatta Rail Link. An amount of $683,150.00 was offered to AMP as compensation on acquisition. AMP disputed the compensation in the Land and Environment Court claiming $21.46 million for market value, disturbance and injurious affection. TIDC argued that there would be a substantial “betterment” to the shopping centre as a result of the public purpose being served by the railway station and that no compensation should therefore be payable. The Land and Environment Court held that the railway station would increase the value of the shopping centre by $15 million. As this amount exceeded the market value and disturbance determined by the Court of $5.74 million, nil compensation was payable. AMP appealed against this decision and the Court of Appeal affirmed the decision of the Land and Environment Court. One interesting side note is that AMP attempted to argue in the Court of Appeal a point that had not been argued in the Land and Environment Court, namely that where land is compulsorily acquired, the acquiring authority must pay compensation of at least the market value of that land, even if the person from whom the land is acquired owns land which is increased in value by the proposal and even if this increase is greater than the market value of the acquired land. Hodgson JA, who delivered the lead Judgment, agreed with this submission and would have allowed the appeal on this point. DISCLAIMER The above are summaries only of the relevant Judgments concerned. They are not intended to take the place of legal advice. 11 The other Judges held that it was inappropriate to allow this issue to be raised in the appeal given that it had not been raised in the Court below and expressed no view on the merits of the argument. For questions about this Judgment, please contact Michael Hewett or Kim Probert. DISCLAIMER The above are summaries only of the relevant Judgments concerned. They are not intended to take the place of legal advice. s only of the relevant Judgments concerned. They are not intended to take the place of legal advice.