09/10/08 (AUS):
Interesting Australian Ruling on Planning Experts
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In welcome news for developers that will surely have councils up in arms, a judge of the Land and Environment Court in Australia has turned decades of Land and Environment practice and procedure on its head, 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 Willoughby Council v Transport Infrastructure Development Corporation (No 2) (August 2008), Justice Lloyd refused to allow an expert report by a council planner to be tendered in the Court proceedings as evidence. Although that was a Class 3 (land acquisition) matter, the judgment was sufficiently blanket in nature that it could be applied in almost any Land and Environment Court matter.
Justice Lloyd relied upon the Expert Witness Code of Conduct (requiring experts to be independent from the parties), a 7-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, saying:
"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. 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.
It will be interesting to see how this decision affects other cases.
© X-Pro 2008
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