Knowing when you need an expert
Last week I read about the case in the Court of Appeal – Page v Greater Wellington Regional Council [2024] NZCA 51 where the Court overturned 29 charges and set aside a $118,742 fine and three month prison sentence because Greater Wellington (GW) had not proved that the alleged wetlands support “a natural ecosystem of plants and animals that are adapted to wet conditions” as required by the definition of wetlands in the Resource Management Act (RMA).
One thing I really noticed was that the Court commented on the fact that the only relevant expert evidence at the trial in the District Court was that of a senior environmental monitoring officer who did not have the requisite expert qualifications.
It is essential that before you carry out a site visit, you think hard about whether you need to take an expert with you. It is particularly important that you have relevant experts to give evidence in a prosecution, as the Judge said in the Page case.
If your investigation or prosecution relates, for example, to damage to a stream or wetland, you will need a freshwater ecologist. If you are dealing with damage to a tree, talk to an arborist, or if the problem is instability of land, talk to a geotechnical engineer. In one case which involved a considerable spill of concrete slurry into a stream from a sloping retaining wall, we had to get advice from someone who was an expert in the properties of concrete to find out why the spill had occurred and how long it would take for the concrete to solidify in the stream. Even if one of the investigators had laid a new concrete driveway at their house, it would not have meant they were an expert!
You also need to trust the opinion of your expert rather than think you know better. I remember one occasion where a compliance officer was convinced that a stream didn’t exist as it didn’t show up on Google Maps and didn’t meet a definition of a stream they had found on Google, despite the ecologist being certain it was an ephemeral stream. Google is not an expert!
It’s in the name – expert. You might decide that because you’ve been out to many forestry sites, you are an expert, but if you do not have a relevant academic qualification and/or considerable directly relevant experience of all aspects of forestry, you may not be an expert in the eyes of the court.
So, if you want good technical or scientific advice regarding a site you are dealing with, or technical or scientific evidence for a prosecution that will be accepted by the Court, you need an expert.
Janet Whiteside – April 2024
