Northmead P Pty Ltd ATF Northmead Discretionary Trust v City of Parramatta Council [2024] NSWLEC 1608 

Background 

This is a Class 1 Development Appeal under the Environmental Planning and Assessment Act 1979 (NSW), regarding the refusal of a development application (DA 314/2023) to demolish, remove trees and construct a 72-place childcare centre with basement parking at 52 Hammers Road, Northmead. 

The respondent opposed the project due to traffic and safety concerns, arguing the existing road network was unsuitable and posed risks to users. Objectors raised similar issues, including traffic, parking and privacy. 

The applicant contended the proposal complied with planning controls and that their Plan of Management (POM) addressed safety concerns. The case hinged on whether the amendments resolved traffic and pedestrian safety issues. 

Expert evidence 

Experts provided differing views on the traffic impact and the effectiveness of the proposed left-in/left-out driveway design. The applicant’s expert, Mr MM, argued that the driveway design complied with Australian Standards. The respondent’s expert, Mrs SS, expressed concerns about the safety and adequacy of parking and pedestrian access, even with amendments like a left-in/left-out driveway design. 

The applicant requested the court reject Mrs SS’ evidence because during cross-examination, it was revealed that she lives 800m west of the site. She had not disclosed this in the Joint Expert Report (JER). 

Initially, Mrs SS’ evidence was allowed. While the court acknowledged that Mrs SS’ undisclosed proximity may affect the impartiality of her opinions, it decided not to disregard her testimony entirely. Objective data and factual evidence she provided would still be considered. However, her opinion-based statements, especially those recommending the rejection of the application or reflecting Council’s stance, will be given little to no weight. The court will evaluate all evidence, including cross-examination, before assigning appropriate weight to her testimony.[12] 

However, the court said that these assumptions proved to be incorrect. During oral evidence, in response to questions from both the respondent’s and applicant’s counsel, Mrs SS revealed that, despite signing twice (in the JER and supplementary JER) that she had read and agreed to be bound by the Expert Witness Code of Conduct, she: [a] had not actually read the Code of Conduct and was unaware of its contents; [b] could not explain her understanding of her role in the proceedings; and [c] had never previously given expert evidence in the Land and Environment Court.[16] 

Although Mrs SS eventually claimed to understand the distinction between being an advocate and an independent expert, Espinosa C was not confident she fully grasped her role as an independent expert pursuant to the Uniform Civil Procedure Rules 2005 (NSW), the Court’s Conference of Expert Witnesses Policy and the Court’s Joint Expert Report Policy. In the Supplementary JER, Mrs SS stated “Council’s view on this application…should be refused,” confusing her role as an independent expert with her position as a Council employee. She also referred to the “financial burden to Council” and “a burden for Council to manage”, showing advocacy rather than impartiality.[17] 

The CV of Mrs SS attached to the JER highlights her role as a Team Leader and her familiarity with the road network, including submissions to Transport for NSW in 2019 about Windsor Road. However, she informed the court that her opinion was based on her personal experience as a local driver. She did not take any notes, exit her vehicle or conduct a formal assessment but simply drove down the road at different times.[18] 

The court found that, aside from her contextual knowledge from her role at Council, Mrs SS’ evidence offered little assistance. Her testimony is based on personal experience as a local road user rather than any forensic analysis and she primarily repeats the respondent’s contentions. As a result, her evidence was given minimal weight. The court favoured Mr MM’s detailed and independent expert analysis, which addresses the respondent’s concerns and concludes that the design of the centre, including the signage and POM, effectively resolved the issues raised.[19] 

Ultimately, the appeal was upheld. 

Key Takeaways:

• Experts must fully disclose any relevant information, such as conflicts of interest or proximity to the project, to maintain the credibility and impartiality of their testimony. 
• Experts should have a clear understanding of their role as independent witnesses, distinct from advocates for a party. They need to demonstrate familiarity with the relevant Codes of Conduct and legal standards governing expert testimony. 
• Expert opinion should be based on thorough and objective analysis, rather than personal experience alone. 

Read the full decision here.