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Rossi v Living Choice Australia Ltd

Rossi v Living Choice Australia Ltd

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Court of Appeal
Supreme Court

New South Wales

Case Name:	Rossi v Living Choice Australia Ltd
Medium Neutral Citation:	[2015] NSWCA 244
Hearing Date(s):	27 - 29 April 2015
Date of Orders:	21 August 2015
Decision Date:	21 August 2015
Before:	Basten JA at [1]; Ward JA at [79]; Emmett JA at [80]
Decision:	(A) With respect to Mr Rossi’s appeal: (1) Direct that the parties consult with a view to reaching a common position as to appropriate variations to orders 2.1–2.3 and 3.2–3.4 made on 25 November 2013 to allow for the landscaping and planting of mature trees both on land owned by the first respondent and on land owned by the appellant to provide a necessary screen, and, if agreement is reached, to file and serve short minutes giving effect to such agreement within 14 days of these directions. (2) In default of such agreement, the appellant and the first respondent are directed to file and serve, (a) within 21 days of the date of these directions, their proposed forms of orders as varied together with submissions (not to exceed three pages) in support thereof; (b) each party to have leave to file submissions in reply within 7 days thereafter, not exceeding two pages, with the Court to determine the matter on the papers. (3) Set aside the costs orders made in the Land and Environment Court on 20 August 2014 and entered on 24 March 2015, except with respect to so much of orders (1) and (5) as require payments by the Joint Regional Planning Panel – Sydney West Region. (4) Declare the first purported notification of the determination of development application 280/2010/JP dated 12 October 2010 is invalid. (5) Give leave to the appellant and the first and second respondents to file and serve submissions (not exceeding three pages) as to the appropriate orders as to the costs of the proceedings at trial and on appeal, together with submissions in reply (not exceeding two pages) in accordance with the timetable set out in (2) above. (B) With respect to the applications by The Hills Shire Council: (1) dismiss the cross-appeal and the application for leave to cross-appeal; (2) note that the costs of those two proceedings are to be costs of the parties in the appeal by Anthony Rossi. (C) With respect to the applications by Living Choice Australia Pty Ltd: (1) dismiss the cross-appeal and the application for leave to cross-appeal; (2) note that the costs of those two proceedings are to be costs of the parties in the appeal by Anthony Rossi.
Catchwords:	ENVIRONMENT AND PLANNING – development applications – functions of local councils and regional panels – nature of the “assessment” function of a council – whether the assessment of a development application by a council is amenable to judicial review where the application is later determined by a regional panel – State Environmental Planning Policy (Major Development) 2005, cl 13F ENVIRONMENT AND PLANNING – development applications – assessment function of local council…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCA 244
Decision Date: 21 August 2015

CaseChat Overview and Summary

This case concerned an appeal by Mr Rossi against decisions made by the Land and Environment Court regarding a development application. The dispute involved allegations that the local council and a regional planning panel failed to properly assess aspects of the development, including fill material and stormwater management, and that mandatory considerations under planning legislation were breached. Mr Rossi also challenged the validity of the notification of the development consent. The appeal was heard by Basten, Ward, and Emmett JJA in the Court of Appeal.

The primary legal issues before the Court of Appeal included whether the council's assessment function, when a development application is ultimately determined by a regional panel, is amenable to judicial review. The court also considered whether the primary judge erred in finding that the council had adequately assessed fill material intended for the boundary of Mr Rossi's land and whether both the council and the regional panel had breached mandatory considerations under section 79C of the *Environmental Planning and Assessment Act 1979* (NSW) and relevant State Environmental Planning Policies. Furthermore, the court had to determine the consequences of defects in the notification of the development consent, specifically whether such defects should render the consent invalid, and whether ameliorative orders under section 25B of the *Land and Environment Court Act 1979* (NSW) were more appropriate than a declaration of invalidity.

The Court of Appeal reasoned that the onus was on Mr Rossi to establish a failure to assess stormwater, and found that the primary judge had not erred in concluding that the council had assessed site drainage and runoff, particularly as the relevant development application did not involve fill or retaining walls. Regarding the utility of a declaration of invalidity, the court noted the broad jurisdiction to grant declaratory relief but acknowledged that it could be declined if there was no utility. The primary judge had considered a declaration of invalidity to be without utility as the substance of what was not assessed by the panel was addressed by a subsequent consent relating to retaining walls. However, the Court of Appeal ultimately set aside certain costs orders and declared the first purported notification of the development consent invalid. The court also directed the parties to consult on variations to existing orders to allow for landscaping and mature trees to provide a screen, with a process for determining proposed orders in default of agreement.

Orders

Orders of the court

(A) With respect to Mr Rossi’s appeal:

(1) Direct that the parties consult with a view to reaching a common position as to appropriate variations to orders 2.1–2.3 and 3.2–3.4 made on 25 November 2013 to allow for the landscaping and planting of mature trees both on land owned by the first respondent and on land owned by the appellant to provide a necessary screen, and, if agreement is reached, to file and serve short minutes giving effect to such agreement within 14 days of these directions.

(2) In default of such agreement, the appellant and the first respondent are directed to file and serve,

(a) within 21 days of the date of these directions, their proposed forms of orders as varied together with submissions (not to exceed three pages) in support thereof;

(b) each party to have leave to file submissions in reply within 7 days thereafter, not exceeding two pages,

with the Court to determine the matter on the papers.

(3) Set aside the costs orders made in the Land and Environment Court on 20 August 2014 and entered on 24 March 2015, except with respect to so much of orders (1) and (5) as require payments by the Joint Regional Planning Panel – Sydney West Region.

(4) Declare the first purported notification of the determination of development application 280/2010/JP dated 12 October 2010 is invalid.

(5) Give leave to the appellant and the first and second respondents to file and serve submissions (not exceeding three pages) as to the appropriate orders as to the costs of the proceedings at trial and on appeal, together with submissions in reply (not exceeding two pages) in accordance with the timetable set out in (2) above.

(B) With respect to the applications by The Hills Shire Council:

(1) dismiss the cross-appeal and the application for leave to cross-appeal;

(2) note that the costs of those two proceedings are to be costs of the parties in the appeal by Anthony Rossi.

(1) dismiss the cross-appeal and the application for leave to cross-appeal;

(2) note that the costs of those two proceedings are to be costs of the parties in the appeal by Anthony Rossi.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Rossi also contends that the fact that part of the keystone block wall fell down in heavy rain, that is, stormwater, suggests that no one had directed attention to the impact on stormwater of fill along the Rossi Boundary. Mr Rossi asserts that the evidence demonstrated that a drainage line had been placed behind the retaining wall, but that it terminated and discharged onto the Rossi Land and the Anderson Land in an uncontrolled way.Consideration The onus of establishing a failure to assess stormwater lay with Mr Rossi. The primary judge found that neither the keystone concrete block wall, nor the agricultural pipe, was part of the Stage 2 Development Application and, therefore, neither constituted evidence that the Council had failed in its assessment of stormwater when assessing the Stage 2 Development Application. The evidence before the primary judge included an erosion and sediment control plan with details prepared by Cardno in 2010, and a concept civil design report prepared by Cardno in June 2009. As indicated above, the Stage 2 Development Application did not entail fill or retaining walls. In addition, an internal memorandum of the Council demonstrated that one of the Council’s engineering officers had considered site drainage and runoff generated by the Development.[140] In the light of that evidence, there was no error on the part of the primary judge in concluding that the Council had assessed how water would drain near the Rossi Boundary.[140] See above, [124]. The Council and Living Choice do not dispute the jurisdiction of the L & E Court to make declarations under s 20 of the L & E Court Act. The jurisdiction to grant declaratory relief is broad and the discretion whether to grant declaratory relief or not is not subject to close fetters. Accordingly, the L & E Court may decline to grant declaratory relief where there is no utility in doing so. The primary judge considered that a declaration should not be made that the Stage 2 Consent was void or invalid, since she concluded that there would be no utility in doing so because no useful purpose would be served by such a declaration. Her Honour said that the reason was that the substance of what had not been assessed or approved by the Panel was the subject of the Retaining Walls Consent, which, as her Honour said, ultimately dealt with landscaping on the Rossi Boundary.[141][141] Judgment No. 4 at [12]. Mr Rossi contends that the primary judge erred in failing to declare the Stage 2 Consent void or invalid, in circumstances where her Honour found that both the Council and the Panel had failed to consider mandatory relevant matters under s 79C of the Planning Act. He says that, in circumstances where her Honour had found that the Stage 2 Consent was infected with jurisdictional error, the Retaining Walls Consent was declared to be invalid and her Honour expressly declined to make orders under s 25B of the L & E Court Act in respect of the Retaining Walls Consent, there was utility in declaring the Stage 2 Consent void or invalid.