Evidence at a hearing may be given by witnesses (whether orally or in writing such as in an affidavit, witness statement or expert report) or in documentary form (whether documents, plans, maps or photographs). The evidence given may be of facts or opinions by experts.
People who give evidence and who are not experts are sometimes referred to as lay witnesses.
These pages provide information on lay witnesses giving their evidence.
Evidence of lay witnesses given on site
In certain types of proceedings in Classes 1 and 2, such as development appeals, residential development appeals, and tree and hedge disputes, evidence of lay persons such as residents who object to the proposal, is usually given on or nearby to the site of the dispute. Although the evidence is not recorded, notes of the evidence may be taken, usually by the legal representatives of the parties, or the witnesses may speak from their own notes. Either way, the notes may be tendered later in evidence. Cross-examination of lay witnesses is permitted, but often not undertaken in practice.
The Court has prepared a Site Inspections Policy (PDF , 64.8 KB) to guide the conduct of inspections and hearings on the site of a dispute. The Site Inspections Policy (PDF , 64.8 KB) includes a number of matters that are relevant to lay persons such as residents giving evidence on the site. These matters can be summarised as follows.
Scheduling of evidence
Evidence of local residents and representatives of community groups is normally given at the site inspection that commences at 9.30 am on the first morning of the hearing.
Number of witnesses
Lay evidence is normally limited to a maximum of six residents, with preference given to the likely most affected resident.
Preparing to give evidence
Local residents and community group representatives should have a full understanding of the proposal (including recent amendments) so that any concerns expressed on-site are relevant.
Obligation of witnesses
Local residents and community group representatives should provide their evidence in a truthful and helpful manner even though they are not required to swear an oath.
Written submissions and evidence
Where written submissions have been prepared, on-site evidence should address only the main points of concern. The full text of the submission can be tendered by the Council as part of the proceedings. The Council will normally tender to the Court copies of any resident submissions provided to the Council.
Referring to others' evidence
Where one specific issue has been addressed in detail by one local resident or a community group representative, it is not necessary for each subsequent person to address in full the same issue. It is sufficient for the Court’s assessment if the subsequent persons acknowledge that they hold similar views to the previous person who has given evidence.
When local residents and community group representatives give evidence, there should be no interruptions or interjections so that those attending the site inspection can fully understand the matters raised by the resident.
The local residents and community group representatives should understand that their opportunity to give evidence is limited to their formal presentation of their evidence and it is not appropriate that further comments be made during the site inspection unless requested by the judge or commissioner hearing the case, or agreed to by the parties, or as part of an explanation of the previously given evidence, for example, from their property if their evidence was given elsewhere.
The local residents and community group representatives should understand that they may be cross-examined on their evidence.
Agreeing on a summary of the evidence
Where local residents or community group representatives give evidence on-site, notes are to be taken by each party or their legal representatives or agents and an agreed summary of the evidence is to be tendered to the Court. Local residents and community group representatives are welcome to watch the remainder of the hearing, if the hearing resumes in court.
Giving evidence in court
In proceedings in Classes 1 and 2, lay witnesses such as local residents and community group representatives, may also give oral evidence in court. This is a more formal process where evidence is given in the witness box in the Court and persons are required to take an oath or affirmation to tell the truth. They may be cross-examined.
In proceedings in Classes 3 to 8 of the Court’s jurisdiction, evidence of lay witnesses of fact will be given in writing in the form of an affidavit, unless the Court otherwise orders. The affidavits will be read by the party calling the lay witnesses at the hearing in court. The lay witnesses may be cross-examined in court.
Participation of lay witnesses at conciliation conferences
Conciliation conferences (s 34 and s 34AA of the Land and Environment Court Act 1979) provide an opportunity for the parties to proceedings to discuss options for the resolution of all or some of the issues in dispute. Local residents and community group representatives may be invited to assist the parties to resolve some or all of the issues by explaining their particular concerns on site where their concerns may be more easily understood.
Local residents and community group representatives are, however, not parties the proceedings and have no legal right to participate in the conciliation conference or to prevent the parties from reaching agreement at the conciliation.
Conciliations are also private to the parties. Anything said by the parties in the conciliation is confidential and without prejudice and cannot be used in any subsequent hearing without the consent of both parties. These considerations also explain why people who are not parties may be restricted in their participation in the conciliation.
Local residents and community group representatives will normally be advised of the outcome of the conciliation conference by the council’s solicitors or council staff following the conclusion of the conciliation conference.
If no agreement is reached, and the case proceeds to a hearing, the local residents and community group representatives may be called to give evidence at the hearing.
The procedures for conducting a conciliation conference are set out in the Conciliation Conference Policy. (PDF , 139.7 KB)