Rossi v Living Choice Australia Ltd
[2015] NSWCA 244
•21 August 2015
|
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]; |
Decision: | (A) With respect to Mr Rossi’s appeal: |
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 |
Legislation Cited: | Civil Procedure Act 2005 (NSW), s 56 |
Cases Cited: | ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 |
Category: | Principal judgment |
Parties: | Anthony Rossi (Appellant) |
Representation: | Counsel: |
File Number(s): | 2013/366851 |
Decision under appeal: | |
Court or Tribunal: | Land and Environment Court of NSW |
Jurisdiction: | Class 4 |
Citation: | Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46 |
Date of Decision: | 25 November 2013 |
Before: | Pain J |
File Number(s): | 2012/40018 |
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The first respondent, Living Choice Pty Ltd (Living Choice), obtained development approval (the Stage 2 Consent) for the construction of villa units as part of a retirement village on land owned by it in Glenhaven, NSW. That land adjoined land owned by the appellant, Mr Anthony Rossi. Living Choice later obtained separate development approval for the construction of a retaining wall (the Retaining Walls Consent) close to the boundary between its land and Mr Rossi’s land (the Rossi Boundary).
Mr Rossi commenced proceedings in the Land and Environment Court against Living Choice, the Hills Shire Council (the Council) and the Sydney West Joint Regional Planning Panel (the Panel). The relevant legislation – the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act) – and its associated regulations – including the State Environmental Planning Policy (Housing for Seniors of People with a Disability) 2004 (NSW) (the Seniors Policy) – bifurcated responsibility for the assessment and determination of certain development applications between the Council and the Panel. Broadly, the Council had certain administrative and reporting functions, while the Panel, having regard to a number of considerations required by the legislation and regulations, determined the applications.
Mr Rossi’s complaints focused on the validity of the Stage 2 Consent and of the Retaining Walls Consent, as well as on certain work undertaken by Living Choice (including the removal of trees, the excavation of a trench and the construction of a keystone block wall) on the Rossi Boundary without development consent. He alleged a series of errors and oversights on the part of the Council and the Panel in the development approval process, and alleged errors in the notification and subsequent modification of the Stage 2 Consent. One of the oversights of the Council and Panel alleged by Mr Rossi was that they failed to consider, in relation to the Stage 2 Consent, the method of retention of a large amount of fill material that would be required on the Rossi Boundary. (That fill material was required because the finished floor levels of the villa units approved by the Stage 2 Consent were substantially higher than the natural ground level next to the Rossi Boundary.)
Ultimately, a judge of the Land and Environment Court (the primary judge) concluded that there were some material failures in the exercise of statutory power by the Council and the Panel in the assessment and determination leading to the Stage 2 Consent. However, her Honour did not make a declaration of invalidity in respect of the Stage 2 Consent, but did do so in respect of part of the Retaining Walls Consent. The primary judge concluded that the first of two notices of determination of the Stage 2 Consent was valid, despite some irregularities. The primary judge made a series of orders providing for landscaping work to be carried out on the Rossi Boundary, to remediate the unauthorised works undertaken by Living Choice.
Mr Rossi appealed from some of the primary judge’s orders, and Living Choice and the Council filed cross-appeals and applications for leave to cross-appeal.
The principal issues on appeal were:
(1) whether the primary judge erred in finding that the Council’s assessment function was amenable to judicial review, such that an error that it made could invalidate consent granted by the Panel;
(2) whether the primary judge’s factual finding that the Council had assessed the fill intended to be placed along the Rossi Boundary in order to locate some of the villa units at certain levels was not open, wrong or contrary to the evidence;
(3) whether the primary judge erred in finding that the Council and the Panel had breached s 79C of the Planning Act, on the basis that both had failed to consider the retention of fill and the impacts thereof on the Rossi Boundary and on the basis that the Panel had not complied with cl 32 of the Seniors Policy (in relation to cll 33, 34 and 36);
(4) whether the primary judge erred in law in failing to find that the notices of determination relating to the Stage 2 Consent were invalid; and
(5) whether the primary judge erred in law in failing to make a declaration of invalidity in relation to the Stage 2 Consent and whether her Honour erred in the making of ameliorative orders.
The Court of Appeal (Basten JA, Emmett JA, Ward JA agreeing) held, allowing the appeal in part, directing the parties to seek agreement on the form of ameliorative relief and to provide further submissions on the issue of costs, that:
(1) Contrary to the conclusion of the primary judge, it was the determination of the Panel, not the assessment of the Council, that was amenable to judicial review. The Council’s assessment had no juridical consequences on its own, and it would increase uncertainty to find some implicit judgmental or evaluative function being conferred on the Council: Basten JA at [23]; Emmett JA at [268]-[269]; (Ward JA agreeing with both at [79])
Environmental Planning and Assessment Act 1979 (NSW), s 23G, s 79C; Environmental Planning and Assessment Regulation 2000 (NSW), cl 123E; State Environmental Planning Policy (Major Development) 2005 (NSW), cl 13F, considered
Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138; 191 LGERA 51; Eco-Villages Australia Pty Ltd v Pittwater Council [2012] NSWLEC 49, considered
Further, although the Panel was a necessary party to the proceedings and properly submitted to whatever orders the Court might make, the Council was only properly joined to the extent that it was affected by the declarations sought by Mr Rossi that the notices of determination relating to the Stage 2 Consent were invalid. Otherwise, it was unnecessary for the Council to play an adversarial role, there already being active contestants (namely Mr Rossi and Living Choice): Basten JA at [15]; Emmett JA at [270] (Ward JA agreeing with both at [79]);
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72, applied
(2) There was no error in the primary judge’s factual finding that, to the extent that there was to be fill placed along the Rossi Boundary, its impact was assessed by the Council: Emmett JA at [283]; (Ward JA agreeing with both at [79])
(3) The primary judge did not err in finding that the Council and the Panel had breached s 79C of the Planning Act. Neither body had regard to the fact that the finished floor levels of the villa units at the western end of the Rossi Boundary were significantly higher than the natural levels of Mr Rossi’s land. That constituted a contravention of s 79C(1)(a)(i), s 79C(1)(b) and s 79C(1)(c) of the Planning Act: Basten JA at [18]; Emmett JA at [339]; (Ward JA agreeing with both at [79])
(4) The defects in the first notification of the Stage 2 Consent did not have the result that the Panel’s determination was invalid. However, although those defects did not result in any demonstrated detriment to Mr Rossi, there should be a declaration of invalidity in respect of that notification. The second notification, sent approximately 18 months after the first notification, is of no significance and no such declaration should be made in respect of it: Basten JA at [37]; Emmett JA at [370]; (Ward JA agreeing with both at [79])
Environmental Planning and Assessment Act 1979 (NSW), ss 81, 83; Environmental Planning and Assessment Regulation 2000 (NSW), cll 100, 102, 266, 268, considered
Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638, considered
(5) Notwithstanding the breach of s 79C of the Planning Act, the preferable course is not to make a declaration of invalidity in relation to the Stage 2 Consent but instead to make an order under s 25B of the Land and Environment Court Act 1979 (NSW) that landscaping work be carried out along the Rossi Boundary. Instead of adopting the landscaping plan ordered by the primary judge, the parties should seek agreement on the appropriate form of ameliorative orders: Basten JA at [55]-[56]; Emmett JA at [370], [384]; (Ward JA agreeing with both at [79])
Consideration of the scope of the discretionary power of the Court: Basten JA at [39]-[45]
Land and Environment Court Act 1979 (NSW), s 25B; Environmental Planning and Assessment Act 1979 (NSW), s 124; Supreme Court Act 1970 (NSW), s 75A, applied
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306; Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; 190 LGERA 119, considered
Further, Basten JA considered the principles relevant to the making of costs orders in relation to the proceedings in the Land and Environment Court and in the Court of Appeal: at [66]-[77]
The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72; Cutcliffe v Lithgow City Council [2006] NSWLEC 463; 147 LGERA 330, considered
Judgment
BASTEN JA: The appellant, Anthony Rossi, owns land adjoining a retirement village at Glenhaven, within the local government area of The Hills Shire Council (the Council). The retirement village was developed by the first respondent, Living Choice Australia Ltd (the developer).
Development consent – regional panels
The development of the retirement village took place in stages, each requiring development consent under the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act), from an appropriate consent authority. For most developments assessed under Pt 4 of the EP&A Act, the appropriate consent authority is the local council. However, that is not always the case. In particular cases, the consent authority may be a joint regional planning panel.[1] A joint regional planning panel (referred to below as a regional panel) is a body constituted by the Minister under s 23G of the EP&A Act.[2] Relevantly for present purposes, s 23G provides:
[1] Major Development Policy, regional panel.
[2] EP&A Act, s 4(1), joint regional planning panel.
23G Joint regional planning panels
(1) The Minister may, by order published on the NSW legislation website, constitute a joint regional planning panel for a particular part of the State specified in the order.
(2) A regional panel has the following functions:
(a) any of a council’s functions as a consent authority that are conferred on it under an environmental planning instrument,
…
(5) A regional panel is a statutory body representing the Crown.
Note. …
(5A) Subject to the regulations, a regional panel is, in the exercise of functions conferred under subsection (2)(a), taken to be the council whose functions are conferred on a regional panel as referred to in subsection (2)(a).
(5B) A regional panel is to exercise functions conferred as referred to in subsection (2)(a) to the exclusion of the applicable council (subject to any delegation under this Act).
…
(6) Schedule 4 has effect with respect to regional panels.
It is not necessary to go to Sch 4, except to note that each regional panel is to consist of five members, three of whom are appointed by the Minister and two are council nominees; four must have expertise in areas relevant to planning.
The functions may be conferred on a regional panel in two ways, each carefully confined. First, functions may be conferred by a relevant environmental planning instrument, which includes a State Environmental Planning Policy (“SEPP”).[3] Secondly, powers or functions are conferred by deeming a regional panel to be a council, pursuant to sub-s (5A): that conferral may be limited by regulations. The limiting effect is found in cl 123D of the Environmental Planning and Assessment Regulation 2000 (NSW), which states:
[3] EP&A Act, s 4(1), environmental planning instrument.
123D Provisions of Act not to apply as if regional panels were councils
(1) For the purposes of section 23G(5A) of the Act, a regional panel is not taken to be the council for the purposes of the following provisions of the Act:
(a) section 78A(3)–(6),
(b) section 81(2),
(c) sections 82A, 82C, 82D and 96AB,
(d) section 89(2).
Note. Under section 23G(5A) of the Act, a regional panel exercising consent authority functions of a council is taken to be the council, subject to the regulations.
(2) For the purposes of section 23G(5A) of the Act, a regional panel is not taken to be the council for the purposes of appeal proceedings under the Act, or proceedings under section 123 of the Act, if:
(a) the council is the applicant for a development application or the modification of a development consent, and
(b) the council makes an appeal under the Act, or brings proceedings under section 123 of the Act, in relation to a determination by the regional panel.
The development undertaken by Living Choice was subject to two State Environmental Planning Policies, namely “Housing for Seniors or People with a Disability 2004” (“the Seniors Policy”) and the Major Development 2005 Policy (“the Major Development Policy”).
The Seniors Policy prescribes relevant standards and considerations. The Major Development Policy (as in force at the relevant time)[4] conferred functions on regional panels:
[4] Clause 13F was repealed by the State Environmental Planning Policy (State and Regional Development) 2011, Sch 6.12[19].
13F Council consent functions to be exercised by regional panels
(1) A regional panel for a part of the State may exercise the following consent authority functions of the council ... for that part of the State for development to which this Part applies:
(a) the determination of development applications, and applications for the modification of development consents previously granted by the panel, in accordance with Part 4 of the Act,
(b) without limiting paragraph (a), the functions of a consent authority under Divisions 2 and 2A of Part 4 of the Act and [specified sections].
(2) However, the following functions of a council as a consent authority are not conferred by this clause on a regional panel:
(a) the functions conferred by section 79B of the Act (other than section 79B(9)),
…
(d) the receipt and assessment of development applications,
…
(3) The council remains the consent authority for development to which this Part applies, subject to the exercise by regional panels of functions conferred on them by this clause.
Note. The Environmental Planning and Assessment Regulation 2000 also provides that a regional panel is taken not to be the council for specified provisions of the Environmental Planning and Assessment Act 1979.
Clause 13F appears in Pt 3 of the Policy. Relevantly for present purposes, cl 13B(1)(a) provided that Pt 3 applies to a development that has a capital investment value of more than $10 million. The retirement village had a value in excess of that figure. The excluded provisions set out in the Regulation, cl 123D(1) are neither expressly included nor excluded by cl 13F of the Major Development Policy.
The way in which the scheme is intended to operate may be identified in three stages. First, although cl 13F of the Major Development Policy is expressed in terms of the conferral of functions, where it is engaged, it would appear to render the conferral exclusive of the applicable council, by virtue of s 23G(5B).
Secondly, the relevant instrument (in this case the Major Development Policy) is not expected to spell out the nature of the functions conferred on the regional panel. Thus, relevantly for present purposes, cl 13F(1)(a) identifies a function simply as “the determination of applications”. Pursuant to s 23G(5A) the regional panel will, in the exercise of that function, be “taken to be the council whose functions are conferred on the panel”. Thus, when the council determines a development application, it is subject to the requirements of s 79C of the EP&A Act, which sets out the matters which the council as consent authority must take into account. Thus, the effect of s 23G(5A) is to apply s 79C to the regional panel. Because that provision is said to be subject to the regulations, the EP&A Regulation could limit, for example, the application of s 79C to the determination of a development application by a regional panel. However, cl 123D does not have that effect.
The third way in which the scheme operated was to leave with the council certain administrative functions (including receipt of development applications and notification of determinations)[5] and more significant, but resource intensive functions, including the preparation of assessment reports. So much is reflected in the Regulation, cl 123E(1) of which provides:
123E Procedural matters related to determination of development applications
(1) A regional panel may, for the purpose of determining a development application:
(a) obtain assessment reports, in addition to any assessment report or other information provided by a relevant council in dealing with the application, and
(b) obtain other technical advice or assistance as the panel thinks fit.
[5] Major Development Policy, cl 13F(2)(d) and (f).
Judicial supervision of planning decisions
Next it is convenient to consider the scheme for judicial supervision. Part 6, Div 3 of the EP&A Act confers power on “[a]ny person” to bring proceedings in the Land and Environment Court “for an order to remedy or restrain a breach of this Act”, whether or not a right of that person has been infringed.[6] There are definitional provisions in s 122:
[6] EP&A Act, s 123(1).
122 Definitions
In this Division:
(a) a reference to a breach of this Act is a reference to:
(i) a contravention of or failure to comply with this Act, and
(ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and
(b) a reference to this Act includes a reference to the following:
(i) the regulations,
(ii) an environmental planning instrument,
(iii) a consent granted under this Act, including a condition subject to which a consent is granted,
….
To employ s 123, it is necessary to identify the body with responsibility for making a determination. Given the breadth and apparent purpose of s 123, it is unfortunate if that cannot be done with certainty in a particular case. Yet there was confusion in the present case arising from a combination of the provisions set out above, including cl 13F(2)(d) of the Major Development Policy. That provision appears to distinguish “assessment of development applications” from “determination of development applications”. Subclause (3), providing that the council “remains the consent authority … subject to the exercise by regional panels of functions conferred on them by this clause”, is also apt to lead to confusion. That is because the term “consent authority” identifies a specified body, being either a council or a body other than a council, such as a regional panel.[7] Although a consent authority may have a range of functions and powers (the term “functions” being defined to include “powers, authorities and duties”[8]), there cannot be two consent authorities with respect to the one development application. Accordingly, cl 13F(3) of the Major Development Policy must be understood to refer to functions of a council other than the determination of a development application to which the clause applies.
[7] EP&A Act, s 4(1), consent authority.
[8] EP&A Act, s 4(1), functions.
It follows that, in circumstances where a party seeks to challenge the validity of a development consent given by a regional panel, the regional panel, which is itself a statutory corporation, is the appropriate respondent. That is not to say that it should play an active role in any litigation: clearly it should not, in accordance with the principle enunciated in Oshlack v Richmond River Council.[9]
[9] (1998) 193 CLR 72; [1998] HCA 11 at [46] (Gaudron and Gummow JJ) and [141] (Kirby J).
In the absence of any question of delegation, the power to determine the development application remains at all times with the regional panel. Like many statutory authorities, it may need resources to inform itself of relevant considerations. To the extent that it has a duty to make inquiries, its failure to make necessary inquiries may lead to a decision being invalid. To the extent that it relies on officers or agents to make inquiries or carry out investigations and report to it, inadequacies which underlie or are reflected in the reports (and other material) which the repository of the power takes into account may result in invalidity of the final decision. However, to the extent that a statute imposes a duty on the decision-maker to take a particular matter into account, the failure of an officer or agent of the decision-maker will not, of itself, constitute a breach of the statutory obligation.
Generally, as with most complex decision-making, any flaw in the process must be identified either by reference to the materials before the decision-maker or to any reasons it gives for its decision. In this case, the fact that the council, or council officers or agents, performed functions of inquiry and investigation and, indeed, assessment, would not diminish the legal responsibility vested in the regional panel. In such circumstances, it would usually be inappropriate to join the officer or agent and, if he or she is employed by a council, the council itself, to the proceedings. The exception will be where a statutory obligation is imposed on the council or its officer or agent, or one of them is required to exercise an independent decision-making function as part of the process of determination of an application. One such function reserved to the Council was to give notification of the determination of the panel. In doing that, the Council erroneously stated that it had determined the application and had included conditions which were not imposed by the regional panel. To the extent that the proceedings included an allegation that the notification was invalid, the relief sought affected directly the function exercised by the Council and it was, to that extent, a proper party to the proceedings. Otherwise, it was inappropriate to join the Council. Having been joined, it was unnecessary for the Council to play an adversarial role, there being active contestants, namely Mr Rossi and the developer.
Before considering the key issues raised on the appeal, it is necessary to note the limits to this Court’s jurisdiction. The challenge to the development consent was brought in the class 4 jurisdiction of the Land and Environment Court, in reliance on alleged contraventions within the jurisdiction conferred by s 123 of the EP&A Act. Accordingly, the appellant had a right of appeal from an order or decision of that Court, pursuant to s 58 of the Land and Environment Court Act 1979 (NSW) (the Court Act). Although it is commonly said that the right of appeal is not restricted to questions of law, that is not always the case: the right of appeal will be restricted to the jurisdiction invoked in the Land and Environment Court, which may be by way of judicial review. Proceedings brought to restrain a breach of the EP&A Act (or of an environmental planning instrument) may, depending upon the nature of the breach, rely on grounds equivalent to those permitted by way of judicial review. Thus, to the extent that the regional panel was said not to have taken into account mandatory considerations, what was alleged was an error of law.
Issue not addressed by panel
The significance of the scope of the court’s jurisdiction arises with respect to a critical factual question identified by Mr Rossi, namely whether it was open to the primary judge to find that “the Council had assessed the fill intended to be placed in order to locate villas 204-210 at certain levels”. The true question was not whether Council officers had assessed this factual issue, but whether the regional panel had assessed the intended floor level of the relevant villas in relation to the natural ground level of the land at the boundary with Mr Rossi’s land. The statutory obligation to undertake that assessment derived from two sources. First, s 79C required that the regional panel take into account the likely impacts of the development on the natural environment and the social impacts in the locality, together with the suitability of the site for the development.[10] Secondly, the regional panel was required to have regard to the design requirements set out in Pt 3 of the Seniors Policy, and in particular cll 32-34.
[10] EP&A Act, s 79C(1)(b) and (c).
32 Design of residential development
A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.
33 Neighbourhood amenity and streetscape
The proposed development should:
(a) recognise the desirable elements of the location’s current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and
(b) …
(c) maintain reasonable neighbourhood amenity and appropriate residential character by:
(i) providing building setbacks to reduce bulk and overshadowing, and
(ii using building form and siting that relates to the site’s land form, and
(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and
(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and
(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and
(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and
(f) retain, wherever reasonable, major existing trees, and
(g) be designed so that no building is constructed in a riparian zone.
34 Visual and acoustic privacy
The proposed development should consider the visual and acoustic privacy of neighbours in the vicinity and residents by:
(a) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and
(b) ensuring acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths.
As explained by Emmett JA[11] the primary basis of Mr Rossi’s complaints was that the floor level of the villas at the western end of the development adjoining his land was 3.9 metres above the natural level of the land. That was a factor which was required to be assessed by the consent authority as a significant environmental impact of a built development on neighbouring rural land. The trial judge found on the evidence that it had not been assessed: there was no error in that finding.
[11] Specifically at [322] and [338]-[339].
Council’s role in “assessment”
The Council submitted, both in resisting the appeal and by way of a notice of cross-appeal, that the analysis of the statutory scheme which identified a substantive obligation to “assess” a development application as a condition precedent to a valid determination by a regional panel was erroneous. In addition to the matters identified above, the Council submitted that the reference to “assessment” as a distinct function, in cl 13F(2)(d) of the Major Development Policy, read in context referred merely to the administrative processing of the application. The context provides support for that reading, in that paragraph (d) refers to the “receipt and assessment” of development applications, par (e) to the “determination and receipt of fees” and par (f) to the notification of determinations. On the other hand, the term “assessment” appears to envisage more than a purely clerical function. It does not follow, however, that there is some separate substantive function which would, in effect, diminish the responsibility of the regional panel for assessing the relevant criteria and factual matters in making its determination.
The approach adopted by the primary judge, accepting that “assessment” involves a reviewable function of the Council,[12] followed the reasoning in Amalgamated Holdings Ltd v North Sydney Council.[13] That case turned on an assumption (albeit accepted by the judge) that the Council retained a substantive function of assessing an application, which extended to consideration of any modifications which it proposed to the regional panel. Thus, the focus of the Court’s attention was certain suggested height reductions and setbacks which were said not to have been assessed. The judge dismissed that challenge on the basis that the modifications suggested “were the very product of the Council’s assessment of the development application.”[14] So far as the assumed obligation was concerned, the conclusion reached depended in large part upon reading the use of the word “assessment” in cl 13F(d) in isolation.
[12] Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46 at [175].
[13] [2012] NSWLEC 138; 191 LGERA 51 (Biscoe J).
[14] Amalgamated Holdings at [22].
Accepting that, as a practical matter, the council has available to it staff, expertise and experience in assessing matters relevant to planning decisions, whereas the EP&A Act makes no provision for a regional panel to have any staff, when council’s officers are investigating, considering and reporting on a development application where the consent authority is a regional panel, they are no more conducting an independent statutory function than would be the case if the council itself were the consent authority.
As the Council noted, this conclusion is not consistent with the reasoning of Craig J in Eco-Villages Australia Pty Ltd v Pittwater Council[15] in the following passage:
“[37] Relevantly, a ‘consent authority’ function retained by a council which is otherwise a consent authority is the ‘receipt and assessment of development applications’ (cl 13F(2)(d)). By retaining the right of a council to ‘assess’ a given development application, the terms of cl 13F indicate something more than a mere mechanical process. Judgement or opinion on the part of the council is called for in respect of a development application to which the Major Development SEPP applies short of that judgment or opinion that results in the ‘determination’ of that development application.
[38] In the context of cl 13F, it seems to me that ‘the receipt and assessment’ of a development application by a council involves both the ‘mechanical’ processing of the application and the formation of those judgments and opinions in respect of it that are precedent to the determination of that application by a planning panel. While it is correct to observe that cl 13F(2) does not, in terms, retain for a council, as a consent authority, the power to exercise any function identified in the Regulation directed to the “assessment’ of a development application, the application of those provisions of the Regulation is, so it seems to me, implicit.”
[15] [2012] NSWLEC 49.
While it is unfortunate that the EP&A Act fails to identify with clarity the respective roles of a regional panel and a council, it would increase, rather than avoid, uncertainty to find some implicit judgmental or evaluative function being conferred on the council. Absent some clearer indication of such an intention, that approach should not be adopted. Where the material relied on by the regional panel is inadequate for a proper exercise of its function in determining the application, it will remain the determination of the regional panel which is the subject matter of any legal challenge.
The remaining question with respect to this aspect of the proceedings is what orders should follow. As a precaution, the Council filed both a notice of cross-appeal and a summons seeking leave to cross-appeal. No orders were made against the Council in the Land and Environment Court (except as to costs), but the Council sought an additional order, namely that the proceedings against it be dismissed, with a consequential order as to costs.
Mr Rossi’s further amended summons, filed on 28 June 2012, sought declarations that the notification by the Council of the determinations of the developer’s development applications be declared void and of no effect. Those orders affected the Council. If the relief sought by the applicant in relation to the decisions of the regional panel were to be granted, the summons might otherwise be dismissed. That would have the effect sought by the Council. There would remain, however, a question as to whether Mr Rossi was entitled to a declaration that the notifications given by the Council, at least as to the first determination of the regional panel, should be declared invalid. For reasons set out below, such a declaration should be made. It follows that the relief sought by the Council cannot be granted in terms in which it is sought. Although the Council’s argument with respect to the appeal should succeed in part, the appropriate course is to dismiss the Council’s notice of cross-appeal and its summons seeking leave to cross-appeal. There is no reason for any separate order as to the costs of those proceedings.
Notification of development consent
Mr Rossi has taken a somewhat ambivalent approach to the validity of the notifications of the various consents. In his further amended points of claim filed in the Land and Environment Court on 29 June 2012, he particularised a complaint with respect to the first notification, purporting to relate to a determination of the regional panel made on 23 September 2010 and the subject of a notice to the developer from the Council dated 12 October 2010.
The reference at the top of the letter included the notation “JRPP –23 September 2010”. However the notification stated:
“Pursuant to Section 81 of the Environmental Planning and Assessment Act, 1979, notice is hereby given of the determination by The Hills Shire Council of the Development Application referred to herein.
The Application has been determined by the granting of Consent subject to the conditions referred to in this Notice.
The conditions of the Consent referred to herein are deemed necessary by Baulkham Hills Shire Council, pursuant to Part 4, Division 2 of the Environmental Planning and Assessment Act, 1979.”
There was a possible argument as to ambiguity in the first sentence of the letter; the natural reading is that it was the determination which was made by the Council, rather than the notice being given by the Council. However, the ambiguity, if there was such, was resolved by the third sentence which made it clear that the Council was imposing conditions, as indeed it did, including in the notification conditions which had not been imposed by the regional panel.
The notice is not merely confusing, it is positively misleading. There is much to be said for the view that it was “invalid” as Mr Rossi asserted.[16] That may have consequences; however, it did not have the consequence for which Mr Rossi contended, namely that the determination by the regional panel was invalid or that the conditions it had imposed were ineffective. The trial judge was correct in so concluding. Rather, any additional conditions contained in the notice, not imposed by the regional panel, may have been ineffective, but that was not the result for which Mr Rossi contended. The most important consequence of the invalidity of a notice will arise in circumstances where specific statutory consequences flow from the time at which notification is given. For example, there is a temporal limit on challenges to the validity of a consent where public notice of the granting of the consent has been given in accordance with the regulations.[17] That issue was not raised in these proceedings.
[16] Pselletes v Randwick City Council (2009) 77 NSWLR 287; [2009] NSWCA 262 at [44].
[17] EP&A Act, s 101.
Similar problems arose with respect to the formula adopted by the Council in giving notice of the decision of 26 June 2012 with respect to the variation of the development application. Mr Rossi’s primary complaint with respect to that determination was that he had not received a notice of the determination as required by the regulations. The primary judge rejected that challenge.[18]
[18] Rossi (No 3) at [136].
In this Court, Mr Rossi contended that the notifications should be declared invalid on the basis that the determination itself was invalid.
The submissions in this Court focused, understandably, on the basis upon which the primary judge had rejected a submission that the first notification of the regional panel’s determination should be declared invalid. The structure of that reasoning was as follows: first, the judge concluded that there was “a material failure in the exercise of statutory power by the Council in its assessment and [by] the [regional panel] in its determination of the stage 2 consent”.[19] (She did not at that point determine whether to make a declaration of invalidity.) Secondly, the judge noted submissions that the form of the notice did not comply with cl 100 of the Regulation or s 81(1) of the EP&A Act.[20] Those submissions were rejected for two broad reasons. First, it was said that the notice complied with cl 100 of the Regulation, because it stated (correctly) that the application had been granted and contained (correctly) the terms of the conditions on which it had been granted.[21] The fact that it contained a further set of conditions was treated as immaterial because the additional conditions “have no lawful effect”, as conceded by the Council.[22] With respect to the incorrect identification of the consent authority, the judgment stated:
“That the notice of determination identifies the Council as the consent authority is of no moment because there is no statutory requirement to identify the entity which determined the development application.”
[19] Rossi (No 3) at [253].
[20] Rossi (No 3) at [254].
[21] Regulation, cl 100(1)(a) and (b).
[22] Rossi (No 3) at [273].
The notice the subject of dispute was the notice given to the developer. Whether it was assumed that a notice in similar terms would have been given to Mr Rossi is unclear. Further, there may be distinctions between the notice given to a neighbour and a public notice. Nevertheless, the reasoning of the primary judge as to the requirements of a valid notice does not sit easily with the approach adopted by this Court in Hoxton Park Residents Action Group Inc v Liverpool City Council.[23] The inclusion of unenforceable conditions can hardly be immaterial. The recipient of the notice may be happy with the determination because his or her concerns are alleviated by the imposition of the (unenforceable) conditions. Similarly, to treat as immaterial the misstatement as to the identity of the consent authority is to read the requirements of the regulation without consideration of their purpose. What is to be given, for the purposes of s 81(1), is a notice of “the determination of a development application”: a notice of a purported determination by a body which had no power to determine the application is not such a notice.
[23] (2011) 81 NSWLR 638; [2011] NSWCA 349 at [17] and [25]-[29].
The third stage in the judge’s reasoning was to consider the validity of the notification given on 6 June 2012. That notice did not include the invalid conditions, but did contain the misleading statements as to the identity of the consent authority. The primary judge dismissed the challenge to the second notice as irrelevant “as it can have no legal effect”, given her earlier conclusion that the first notice was valid.
A further notice omitted the additional conditions and correctly identified the consent authority. It was not, therefore, invalid on those grounds. It was, however, dated “12 October 2010”, although the covering letter from the solicitor for the Council was dated 6 June 2012 and it was common ground that the “reissued” notice was provided on that date. There is no reason to suppose that the notice could have retrospective effect. That would raise an issue as to when the consent became “effective” for the purposes of s 83 of the EP&A Act. Further, cl 102(1) of the Regulation requires that a notice under s 81(1) of the EP&A Act be sent within 14 days after the date of the determination. While the clause also provides that a failure to send the notice within 14 days “does not affect the validity of the notice or the development consent”, there may well be a question as to whether a notice sent some 21 months after the date of the determination would constitute a notice for the purposes of s 81(1).
There may also be an issue as to whether a determination, of which no valid notice has been given for a significant period, will itself remain indefinitely a valid determination. However that issue did not arise in the present proceedings. Nor, in the way the case was conducted, was there any reason to conclude that the determination of the regional panel was invalid because the notification of the determination was invalid or ineffective. On the other hand, if the determination itself were invalid for other reasons, the validity of a notice might become critical because it would condition the availability of proceedings to review the determination. Even if no point were taken in that regard, the validity of the notice which misidentified the consent authority might be important if the wrong consent authority (the Council) were joined in part as a result of its own incorrect notice.
In my view, Mr Rossi was entitled to have a declaration of invalidity of the notice of 12 October 2010. On the basis of the submissions in this Court, it is not possible to determine that the notice of 6 June 2012 was invalid.
Appropriate relief
The conclusion that the regional panel failed properly to determine the stage 2 development application engaged the obligation of the Land and Environment Court under s 25E of the Court Act to consider whether to make an order under Pt 3 Div 3 of that Act, “instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part.” Division 3 applies to any development consent granted, or purporting to be granted, under the EP&A Act by the Minister “or any other consent authority”.[24] It is not in doubt that this provision extends to a determination of a regional panel.
[24] Court Act, s 25A(1).
The orders which the Land and Environment Court may make and which, pursuant to s 75A of the Supreme Court Act 1970 (NSW), this Court may make on appeal are as follows:
25B Orders for conditional validity of development consents
(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order:
(a) suspending the operation of the consent in whole or in part, and
(b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).
(2) Terms may include (without limitation):
(a) terms requiring the carrying out again of steps already carried out, or
(b) terms requiring the carrying out of steps not already commenced or carried out, or
(c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.
Section 25B requires that the Court exercise a discretionary power which will involve suspending the operation of the consent and specifying conditions compliance with which will validate the consent. These steps cannot be wholly separated, as the nature of the terms which may be imposed will affect a decision as to whether to exercise the power.
On its face, the language of s 25B appears to be internally inconsistent. An order suspending the operation of a consent is not self-evidently appropriate if the consent is invalid. To understand the logic of the provision it is necessary to consider the legislative background.
The conferral of power to restrain breaches of the Act and provide other remedies, pursuant to s 123 of the EP&A Act, was accompanied by s 124 which reads as follows:
124 Orders of the Court
(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
(a) where the breach of this Act comprises a use of any building, work or land—restrain that use,
(b) where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or
(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.
(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:
(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and
(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.
(4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.
(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.
In its original form the section did not contain subs (5), which was added with the introduction of s 25B in Div 3 of Pt 3 of the Court Act, in 1997. Prior to those amendments, s 124(1) had been construed as conferring a broad discretionary power which might, in appropriate circumstances, involve the Court declining to grant any relief, despite being satisfied that a breach had been or would be committed. In Warringah Shire Council v Sedevcic[25] Kirby P had identified a number of guidelines for the exercise of the discretion. The other members of the Court (Mahoney JA and Clarke JA) did not expressly join in that statement of “guidelines”, but they have been referred to in numerous subsequent cases, including ACR Trading Pty Ltd v Fat-Sel Pty Ltd[26] by Kirby P,[27] in a judgment with which Samuels JA and Hunt AJA agreed. By contrast, s 124(2) is expansive in the powers it confers on the Court in circumstances where intervention is thought appropriate.
[25] (1987) 10 NSWLR 335 at 339-341.
[26] (1987) 11 NSWLR 67.
[27] ACR at 82D.
As explained by McHugh JA in F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3],[28] in language consistent with the approach adopted in Project Blue Sky Inc v Australian Broadcasting Authority:[29]
“The [EP&A Act] shows in my opinion a clear intention that a breach of the Act only has the consequences which the Act provides. Questions as to whether a breach of the Act is void or voidable are beside the point. This is because the Act prescribes exhaustively the civil remedies available in respect of a breach of the Act and also because proceedings for breach can only be brought in the Land and Environment Court.[30] Professor SA De Smith has pointed out in Judicial Review of Administrative Action,[31] that ‘void acts and decisions are indeed usually destitute of legal effect; they can be ignored with impunity; their validity can be attacked, if necessary, in collateral (or indirect) proceedings; they confer no legal rights on anybody’. But the provisions of the [EP&A Act] and the [Court Act] to which I have just referred make it plain that a decision made in breach of the Act cannot be attacked in other courts or in collateral proceedings. So far as other courts are concerned the decision is unchallengable and must be acted on. This is the antithesis of a void decision. The only civil remedies for breaches of the Act are those conferred by the Act.” [emphasis in original]
[28] (1985) 66 LGRA 306 at 327.
[29] (1998) 194 CLR 355; [1998] HCA 28.
[30] See ss 123 and 124 of the EP&A Act and ss 20 and 71 of the Court Act.
[31] 4th ed (1980) at 152.
It follows from this analysis that even a determination which has failed to take into account a mandatory consideration is not void or invalid until declared to be so by the court. Nevertheless, as Biscoe J said in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3), it has been noted on more than one occasion that “there is a distinction between a discrete technical breach, on the one hand, and a breach of a mandatory consideration requirement in s 79C of the [EP&A Act] requiring reconsideration of the whole development application, on the other.”[32]
[32] [2012] NSWLEC 43; 190 LGERA 119 at [37] referring to Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; 150 LGERA 333.
The breach in the present case did not, in a practical sense, affect the whole of the determination of the regional panel. Rather, it directly affected seven villas constructed near the boundary with Mr Rossi’s land. Further, the adverse impacts on Mr Rossi’s land were not uniform, even across that part of the boundary. Thus, even if the seven villas were to be removed, the effect on the whole development, constituting some 97 villas and accompanying infrastructure, would be quite limited.
At least by the time the matter reached this Court, Mr Rossi was not seeking an order for demolition, with the consequential issues that would have raised. Nor was he seeking an order restraining use of the villas, understandably because such a restraint would have had little impact on his land and would hardly have been consistent with allowing the buildings to stand. In those circumstances, it became apparent that more limited relief would be appropriate.
At a time when demolition was sought, Pain J concluded that such relief would be inappropriate, but considered that “ameliorative orders should be made”.[33] The matter proceeded on that basis. Proposals were then presented to the Court with respect to landscaping and planting of established trees, so as to provide privacy to the Rossi dwelling from the inadequately considered heights above the natural ground level of the offending villas.[34] Final orders, other than with respect to costs, were made on 18 November 2013.[35] By that stage the Council was no longer participating in the proceedings and the Court heard lengthy submissions with respect to appropriate landscaping, but without detailed evidence. A significant issue between Mr Rossi and the developer was that Mr Rossi considered that aspects of the landscaping work should be done on his land, but that the developer should pay for the work. He did not want the developer to come onto his land. The developer proposed to undertake the landscaping (at its own expense) entirely on its land.[36] Mr Rossi’s concern was that the offending villas came to within three metres of his land and that there was inadequate space for establishing mature trees; further, mature trees which might have formed an appropriate screen and which had stood partly on his land had been removed by the developer without consent.
[33] Rossi (No 3) at [408] and [409].
[34] Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136.
[35] Rossi v Living Choice Australia Ltd (No 5) [2013] NSWLEC 197.
[36] Rossi (No 5) at [6].
On 25 November 2013 the judge made the following orders:
“1. A declaration that the retaining wall consent No 10/2012/HA/A is invalid and of no effect.
2. The First Respondent shall remove the key stone concrete block wall on the common boundary including all gravel footings and backfill placed on the Rossi Land by Living Choice, and:
2.1 Remediate the Applicant’s land by the following method:
● Cultivate the disturbed soil to 300mm in depth;
● Infill resultant depressions with garden soil equivalent to Australian Native Landscapes Organic Garden Mix;
● Grass seed with pasture seed mix equivalent to Native Seeds All-Year Green Blend.
2.2 Landscape the First Respondent’s land along the common boundary with the Applicant’s land in accordance with Annexure A being the landscape plans by Narelle Sonter, Botanica numbered LP 02/D dated 25 November 2013 and LE 02/A dated 1 November 2013; the Work Method Statement (revised) dated 25 November 2013 and the Program of Works dated 1 November 2013. 75mm depth of composted organic mulch shall be spread within 3m of the boundary.
2.3 The landscaping shall be irrigated by an automatic irrigation system installed by a licenced contractor and maintained for the life of the current development on the First Respondent’s land.
3. In the carrying out the ameliorative order the First Respondent shall comply with the following conditions:
Prior to the commencement of Work
3.1 Serve on the Applicant appropriate workers compensation and public liability insurance documents (naming the Applicant and identifying the Applicant’ land) for the carrying out of the works by the First Respondent on the Applicant’s land.
3.2 Erect a temporary safety fence upon the Applicant’s land a maximum of 5 metres from the common boundary.
3.3 Serve on the Applicant a scope of works identifying when access will be required to the area of the Applicant’s land inside the temporary safety fence and a timetable detailing when the works are to be undertaken on the Applicant’s land.
Prior to completion of the work
3.4 Remove the safety fence within 7 days of the completion of the erection of the boundary fence.”
Mr Rossi has adopted inconsistent positions over time as to the nature of the relief he seeks. That is not to be critical: from the commencement of the proceedings in 2012, before the development was completed, physical changes have occurred on the land. Nor is that intended to be critical of the developer: no interlocutory relief was sought to prevent the development continuing. However, events subsequent to the principal judgment (delivered on 12 April 2013)[37] are a matter for criticism. By that stage the judge had indicated that she would not order the villas to be demolished. It was clear, therefore, that some form of ameliorative relief would be required. The developer proposed a landscaping plan, ultimately adopted by the judge. In this Court that relief was attacked on the basis that the landscaping plan had never been tendered in evidence. Mr Rossi sought compensation but did not quantify an appropriate figure, nor proffer evidence on the basis of which a figure might be calculated. He also sought “restoration” for the damage done on his land.[38]
[37] Rossi (No 3).
[38] Written submissions in this Court, par 61.
There is merit in the proposition that the developer’s proposal, confined to its own land, although a course understandable from a legal perspective, was not adequate. What was required, however, was a clear and precise proposal from Mr Rossi as to the terms of the order he sought. None was forthcoming. The orders sought in the appeal were as follows:
(a) a declaration that development consents DA 280/2010/JP and DA 110/2012/HA are invalid;
(b) an order that the developer pay compensation to Mr Rossi for the purpose of mature landscaping on his boundary in an amount to be determined by the primary judge following further determination according to law;
(c) in the alternative to (b) above, an order that the developer carry out landscaping on Mr Rossi’s land sufficient to restore his land and privacy to the state prior to the unlawful development being carried out;
(d) in the alternative to orders (b) and (c) above, an order that the matter be remitted to the primary judge for further determination according to law.
The trial of this matter took 11 days over a period of five months in the second half of 2012; although the principal judgment was delivered on 12 April 2013, final orders were not made until the end of that year, namely 25 November 2013 (although for some reason the orders were not entered until 2 March 2015, shortly before the hearing in this Court). There have already been six judgments in the Land and Environment Court.
This Court has jurisdiction under s 75A of the Supreme Court Act to exercise the powers and functions of the Land and Environment Court.[39] It is required not to “order a new trial” unless satisfied that some substantial wrong or miscarriage has been occasioned.[40] (A new trial may be ordered on a limited basis.[41]) The Court is also required under s 56 of the Civil Procedure Act 2005 (NSW), in exercising any power given to it by that Act or by the UCPR, to take such steps as will facilitate the just, quick and cheap resolution of the real issues in the proceedings. That principle should apply to the disposal of proceedings in accordance with s 75A of the Supreme Court Act.
[39] Supreme Court Act, s 75A(6).
[40] Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 at [77].
[41] Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 51.53(1)–(4).
The governing principle at this stage must be to ensure that the proceedings are terminated as speedily and with as little further expenditure as is practically possible. Remitting any aspect of the matter to the Land and Environment Court, if it can be properly disposed of in this Court is unattractive. Even the costs of the appeal taken in isolation (the appeal took three days hearing) must be of the same order as the value of the ultimate relief. On the other hand, it may be said that this Court is not well placed to evaluate competing submissions (assuming disputation continues) as to the merits of particular proposals for landscaping and planting. Nevertheless, the alternative course is even less attractive.
In these circumstances, the orders made by the primary judge should stand subject to any variation to orders 2.1–2.3 and 3.2–3.4 to give effect to the planting of mature screen trees on Mr Rossi’s land.
The parties should have an opportunity to reach agreement as to the proposed plantings, the timetable within which they are to occur and the steps to be taken in undertaking the work. For unavoidable reasons, the time table can accommodate only a tight period for that consultation. To the extent that agreement is not reached, each party will have 21 days from the date of this judgment in which to file and serve copies of each proposed plan. The plans may be accompanied by written explanations, not exceeding three pages. Each party may have a further seven days to respond to the plan and explanation submitted by the other, such response not exceeding two pages.
Costs
The primary judge made costs orders on 20 August 2014, which were entered on 24 March 2015. They sought to identify those issues upon which each party had been partly or wholly successful. (The orders as entered included a correction to two paragraphs of the reasons for judgment, purportedly pursuant to UCPR, r 36.17: that rule is for correcting clerical mistakes in the orders and not in the reasons.)
Mr Rossi challenged the costs order on the basis that the judge erred in seeking to order costs with respect to separate issues when there were no “clearly definable and several issues” in the trial. On that basis, Mr Rossi claimed he should have the whole of his costs of the trial. He also complained of a failure to award interest on costs. He asserted, correctly, that the primary judge had failed to address the express claim for interest.
The developer also challenged the costs order in its cross-appeal, but the challenge appears to have been contingent upon a substantive order requiring that Mr Rossi’s proceedings be dismissed with respect to the “stage 2 consent judicial review challenge”. The Council also sought to challenge the costs orders made by the primary judge, apparently independently of any other challenge raised by its cross-appeal.
The real concern about the costs orders (raised by no party) was that the execution would require a complex assessment by each party of costs incurred with respect to particular issues which would not only be time consuming in itself, but would be conducive to further disputation.
It is undoubtedly true that no party was entirely successful in the Court below, regardless of the changes to the outcome resulting from the appeal. In that circumstance it was entirely appropriate for the trial judge to decline to award costs in favour of any party without qualification. Mr Rossi’s submission to the contrary must be rejected.
The fact that liability for costs may by now have become a dominating interest for all parties should not obscure the fact that a broad brush approach, which may produce somewhat arbitrary results, is preferable in the interests of avoiding, or at least reducing, the likelihood of further significant costs being incurred. Nor should it be assumed that an attempt at greater precision would achieve more than a façade of greater fairness.
Having regard to the reasons for the costs orders given by the primary judge in Rossi v Living Choice Australia Ltd (No 6),[42] extending over 100 paragraphs, the substance of the complaints made in the written submissions in this Court and the terms of the orders themselves, an appropriate result may be an order in favour of Mr Rossi that he be paid 65% of his costs of the trial. However, the parties should have leave to make further submissions in this respect.
[42] [2014] NSWLEC 116.
The question which then arises is as to the proper allocation of those costs between the three respondents: the developer, and the Council and the regional panel.
The regional panel submitted: how it came to be a party to the costs orders (1) and (5) is obscure, although it has not sought to challenge them. The only way in which this Court can deal with that circumstance is to leave orders (1) and (5) as they presently stand with respect to the liability of the regional panel.
With respect to the liabilities of the developer and the Council, different considerations arise. First, so far as the developer is concerned, its challenge with respect to the costs relating to the stage 2 consent depended on success on the cross-appeal, which has not been upheld. Its second challenge concerned a notice of motion to reopen the evidence: it had been ordered to pay 50% of Mr Rossi’s costs of the motion, which the developer said depended upon a misunderstanding as to the circumstances in which the motion had been abandoned. That factor has been taken into account in the overall adjustment proposed above. The developer did not, as it explained in its submissions with respect to its application for leave to cross-appeal, have a “freestanding claim that the costs order should be disturbed.”[43]
[43] Written submissions on appeal, par 90.
The position of the Council is somewhat different. For the reasons set out above, the proposition that it was under no freestanding obligation with respect to assessment of the development application should be accepted. On the other hand, it was properly joined to the proceedings to the extent that relief was sought with respect to its notification of determinations of the development applications. In my view the complaints with respect to the validity of the primary notification should have been upheld. On any view, there was an element of confusion as to whether the Council had played a substantive and challengeable role in the assessment of the development applications. In accordance with prior authority in the Land and Environment Court, it had such an obligation. Further, its involvement in the trial did not accord with the principle articulated in Oshlack. These propositions were, to a large extent, accepted by the primary judge.[44]
[44] Rossi (No 6) at [20]-[30]; the point of departure is at [31].
Before the primary judge, the Council and the developer made submissions that the other should be liable in the event that costs were ordered to be paid by the respondents.[45] In the event, the primary judge declined to apportion costs between the Council and the developer.[46]
[45] Rossi (No 6) at [89].
[46] Rossi (No 6) at [90]-[92].
Apportionment may have been appropriate. The significance of the Council playing an active role, in apparent disregard of principles identified by the High Court in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman[47] and in Oshlack, was not addressed. It is not appropriate to revisit these principles, which are of some public importance, in a case in which no party sought to address them. Furthermore, there are separate questions as to the propriety of the Council taking an active role in litigation, the appropriateness of visiting costs of proceedings on a Council which does take an active role and the appropriateness of a costs order against a decision-maker which has filed a submitting appearance. It is sufficient to say that, in the circumstances of this case, Mr Rossi was faced with a respondent Council, which played an active role extending far beyond defence against the relief sought in respect of its specific functions, namely the notification of determinations. Nevertheless, it quite properly sought to remove itself from an active role when the question of final relief was being addressed.
[47] (1980) 144 CLR 13 at 35-36.
As noted above, the developer did not make any freestanding challenge to the costs orders made by the primary judge: although the Council did raise an issue as to apportionment in its notice of cross-appeal, the ground was not pressed.[48] Accordingly, it is sufficient that the costs orders against the respondents treat the Council and the developer as jointly and severally liable to the extent that they are liable for the costs to be paid to Mr Rossi. To the extent that it is also held liable, the regional panel will be jointly and severally liable as indicated in the orders to which reference was made above.
[48] Council’s written submissions at par 66.
Nevertheless, the proposition that a submitting decision-maker should be liable for the costs of proceedings should not be accepted without further consideration. As a matter of principle, a submitting respondent should only be liable for the costs of a successful applicant incurred prior to the submitting appearance.[49] The reason is that, thereafter, the costs of the litigation cannot be the responsibility of that party, which did not cause them to be incurred. A possible qualification to that principle may arise where the litigation is brought to have the decision of a court, tribunal or other statutory authority set aside and the decision-maker is the only respondent. Despite the lack of opposition, the court may require the applicant to satisfy it that relief is appropriate, a course which may involve some increase in the cost to the applicant. There is no great qualification of the general rule if the respondent (who will usually be a government authority) is required to bear the additional costs in such circumstances, despite entering a submitting appearance.
[49] See, for example, Emory University v Biochem Pharma Inc (1998) 86 FCR 1 at 15 (Lindgren J).
This was not such a case: the application brought by Mr Rossi was vigorously opposed by two active respondents. This case should not be treated as authority for the proposition that it is appropriate in such circumstances to award costs against the submitting decision-maker (beyond any costs which may have been incurred prior to the filing of the submitting appearance). The view that such an order might be appropriate appears to have resulted from the judgment of Biscoe J in Cutcliffe v Lithgow City Council.[50] The trial judge in Rossi (No 6) at [98] sought to rely upon a principle set out in Cutcliffe in the following terms:
“(c) where the beneficiary [of the decision] does defend the proceedings, albeit unsuccessfully, the applicant’s costs will ordinarily be awarded against both the beneficiary and the consent authority, whether or not the latter enters a submitting appearance. The award of costs against the consent authority is because its error is the cause of the litigation. It cannot immunise itself from costs by entering a submitting appearance for the reason given in (b) above.”
[50] [2006] NSWLEC 463; 147 LGERA 330 at [50].
The circumstance engaging par (b) in Cutcliffe was that the beneficiary of the decision does not defend the proceedings; it was then said that the reason why the consent authority could not “immunise itself from costs consequences of its own error by entering a submitting appearance [was] because then a successful applicant cannot be properly compensated in costs.” But that cannot be true in the case of proceedings which are actively defended by another party. The mere fact that the decision-maker is ultimately found to have erred in its approach is not, of itself, a sufficient reason to order costs against it, being costs incurred after the entry of a submitting appearance. So far as the guidelines in Cutcliffe suggest otherwise, they should not be applied.
Costs of appeal
With respect to the appeal, the time taken in this Court was largely a function of the complexity of the material presented at trial and, in part, the separate stages of the proceedings at trial. The substantial relief sought on appeal was within a relatively narrow compass. The appellant has had some success in his appeal: the developer’s cross-appeal has been unsuccessful. The Council has been both successful and unsuccessful with respect to different issues.
Bearing in mind the principles stated above with respect to the desirability of making definitive orders which have the least opportunity for further disputation, it is preferable that a costs order deal with the costs in this Court globally, without regard to the fact that there was an appeal, two cross-appeals, two summonses seeking leave to cross-appeal and a notice of contention.
Because the orders sought by Mr Rossi were, ultimately, in a form which fell within a relatively limited compass and contained a number of choices, one of which has been adopted, with modifications, it may be said that he was successful on the appeal. On the other hand, the grounds of appeal expanded somewhat more widely and encompassed a number of issues, including factual challenges with respect to the conduct of the Council, which have not been upheld.
My tentative view is that the Council and the developer should pay 80% of the appellant’s costs in this Court. As they did not seek apportionment between them as to the costs of the trial, it may be assumed that they will not seek apportionment of the costs of the appeal. Nevertheless, the outcome not being entirely predictable, it is appropriate to grant each of the active parties an opportunity to seek a different costs order if he or it wishes. Submissions in that regard should be made within the timetable provided with respect to the plans for amelioration. Submissions on costs should be limited to three pages.
Orders
In accordance with these reasons, I would propose the following orders:
(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.
WARD JA: I have had the benefit of considering in advance Emmett JA's comprehensive reasons, with which I agree. For the reasons his Honour gives the appeal should be allowed in part. I also agree with the reasons of Basten JA and with the orders his Honour proposes (though I express no view at this stage as to the manner in which costs should be apportioned - which issue will be determined following consideration of written submissions from the parties).
The essential element of the rule in Browne v Dunn is that where there is a contradiction, an issue or an adverse inference in relation to a particular witness, there will be an obligation to give that witness the opportunity to deal with the contradiction, issue or adverse inference. Mr Rossi says that Mr Buckham’s evidence in chief did not contradict any of the evidence relied on by Mr Rossi, since the letters and reports written by Mr Buckham spoke for themselves. Further, Mr Rossi did not seek to impugn Mr Buckham’s credit. He says that, since the alleged failures in the assessment process were pleaded, and the Council should have been well aware of the case he was mounting, the rule in Browne v Dunn was not enlivened.
The primary judge made no error in rejecting the contention based on the rule in Browne v Dunn. The rule in Browne v Dunn is one of fairness. Mr Rossi’s case was made clear in his further amended points of claim. The Council could have been under no misapprehension as to the nature of the case that it had to meet. It was open to counsel for the Council to adduce evidence from Mr Buckham, if it chose to, to explain the material in his letters and report relied on by Mr Rossi and to explain any other matters that were the subject of allegations in the further amended points of claim. The Council did not do so.
In any event, it is difficult to see any basis upon which the Council should be permitted to complain about the conduct of this aspect of the hearing, in circumstances where no relief was sought against the Council. The Council ought to have submitted at first instance. Thus, it is difficult to see why the Council has an interest in the appeal except as to the costs orders made by the primary judge.
Issue 8: Assessment of Stormwater
Submissions
The assessment of drainage was a mandatory requirement by the operation of s 79C(1)(a)(i) of the Planning Act and cl 36 of the Seniors Policy. The primary judge dealt with a submission on behalf of Mr Rossi that there was a failure in the assessment by the Council and the Panel of how water would drain from the fill placed near the Rossi Boundary, to prevent impact on the Rossi Land. Mr Rossi relied on the collapse of part of the keystone block wall in March 2012 and the placement of an agricultural pipe behind the wall, which drained towards the western end of the Rossi Boundary onto or near the Anderson Land. Her Honour referred to evidence by Mr Buckham that stormwater runoff from the Living Choice Land to the Rossi Land had been improved, since the villa units and roads on the Living Choice Land drained into a local stormwater system that discharges into the Council’s stormwater system. Her Honour concluded that, in the absence of specific criticism of any of the documents in relation to stormwater filed in support of the Stage 2 Development Application, no failure had been established by Mr Rossi.
In his amended notice of appeal, Mr Rossi contends that the primary judge erred in finding that stormwater had been assessed by the Council and the Panel. He says that the finding by the primary judge that stormwater drainage had been considered, by reason of the fact that plans prepared in June 2009 dealt with stormwater and those plans were not criticised, was not supported by the evidence and was contrary to the evidence. Mr Rossi claims that the plans did not identify the intention to fill along the Rossi Boundary and that the road and drainage plan did not show a drainage line along the Rossi Boundary.
Mr Rossi asserts that the assessment of stormwater drainage along the Rossi Boundary could only have been considered in the context of assessing the gradient of the transition to the Rossi Land and the retaining walls, since both of those matters alter the flow of water. He contends that, since the primary judge found that there was no assessment of the retention of fill on the Rossi Boundary, it was axiomatic that the effect on stormwater draining over or from that fill retention had also not been assessed.
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].
Issue 9: Declaration of Invalidity
Submissions
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.
Mr Rossi says that the requirement that a declaration must serve some useful purpose does not mean that the party seeking the declaration must be in a position to demonstrate that that party will benefit in a material or tangible way as a result of the declaration. He says that a declaration may be made as to the existence of an obligation to comply with statutory requirements and that the public interest in having a contravention of a statutory provision determined is an appropriate reason for declaratory relief. Mr Rossi contends that a declaration would be an appropriate means by which to record disapproval of conduct engaged in in contravention of a statute. He contends that the making of a declaration of invalidity would serve important law enforcement purposes, in that it would serve to warn others of the dangers of contravening conduct and would operate as a deterrent.
More particularly, Mr Rossi points to the fact that development consent runs with the land. Accordingly, the question of whether consent has been given lawfully and validly would be a matter of ongoing significance for future dealings with the Living Choice Land and the Rossi Land. Future owners of villa units in the Development may need to know whether the Stage 2 Consent was validly granted. That matter could also have ongoing consequences for the Rossi Land. A future owner of the Rossi Land may need to know whether the Development was carried out lawfully. Mr Rossi says that, in circumstances where there was a real and not a theoretical question involved, he had a real interest in raising the question of validity and there was a proper contradictor in Living Choice, it was appropriate to make a declaration of invalidity.
Development consent granted under the Planning Act is considered to be valid unless and until it is declared to be invalid by a court.[142] The Council contends that the making of a declaration in the present circumstances was a matter for the exercise of discretion by the L & E Court. It says that Mr Rossi must demonstrate an error of the kind referred to in House v The King[143] and that he has failed to grapple with the limitations on appellate review of the exercise of such a judicial discretion.
[142] See, eg, Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 436.
[143] (1936) 55 CLR 499.
Mr Rossi points out that one of the circumstances that would justify appellate intervention in the exercise of discretion by a judge at first instance is that the judge has acted upon a wrong principle, including making legal error.[144] Mr Rossi contends that the primary judge misunderstood the “utility principle” and that her Honour’s application of the principle to the facts in the present case was illogical, in so far as it relies upon the Retaining Walls Consent, which her Honour declared to be invalid. There is no challenge to that declaration. Mr Rossi says that his challenge to the refusal of a declaration of invalidity does not go beyond established categories of error.
[144] See House v The King at 505.
The Council says that the trial judge identified at least three bases for her Honour’s refusal of declaratory relief. The first was the practical and financial inconvenience for Living Choice, on whose application the Stage 2 Consent was granted, and the owners of villa units, that would be incurred by a declaration of invalidity. The second was that the area in dispute in the proceedings was a relatively small part of the whole of the Living Choice Land to which the Stage 2 Consent extended. The third was that there was no utility in making a declaration of invalidity.
Mr Rossi says that the likely practical and financial inconvenience to Living Choice and the fact that the area in dispute was only a small part of the total area that was the subject of the Stage 2 Consent were not reasons of the primary judge for declining to make a declaration. The only reason advanced by her Honour, he says, was that there was no utility served by declaring the Stage 2 Consent void in circumstances where the substance of what was not assessed in the course of the granting of the Stage 2 Consent, which led to jurisdictional error, was the subject of the subsequent Retaining Walls Consent.
Consideration
The primary judge’s reasoning on this issue is extracted above.[145] It is difficult to follow her Honour’s reasoning for declining to make a declaration of invalidity in respect of the Stage 2 Consent in so far as it is based on the fact that the substance of what was not assessed by the Council, or considered by the Panel, was the subject of the Retaining Walls Development Application. It may be that the relief granted in respect of landscaping on the Rossi Boundary would ameliorate any adverse consequences for Mr Rossi in relation to the Rossi Land as a consequence of any failure on the part of the Council and the Panel to have had regard to the impact of the Development on the Rossi Land by reason of the construction of villa units along the Rossi Boundary.
[145] At [234].
The purpose of declaring development consent invalid is not to punish conduct on the part of the applicant for development consent. The fact that Living Choice had misled the Council and the Panel, if that be the fact, would affect only the question of the extent to which the consequences for Living Choice might be relevant to the exercise of discretion. Thus, if it were the fact that a declaration of invalidity would have significant commercial and financial consequences for Living Choice and that that was a consideration in deciding whether to exercise the discretion to decline to make a declaration of invalidity, then misleading conduct on the part of Living Choice may have some part to play. However, that was not a reason advanced by the primary judge for declining to make a declaration of invalidity.
Where a regulatory authority seeks declarations that a party has contravened provisions of a statute for which that regulatory authority has responsibility, the making of the declaration can be an important tool of law enforcement. It serves to identify contravening conduct for the benefit of the community. It also serves as a means of sheeting home to the contravener the fact of the contravention. Mr Rossi, of course, is not a regulatory authority, although s 123 of the Planning Act grants standing to any person to seek orders for the enforcement of the Planning Act. Where the actions of a consent authority constitute a contumelious disregard of the provisions of the Planning Act, there may well be a justification for declaring development consent invalid. However, it is relevant that the Development is now virtually complete. It is significant that no interlocutory relief was sought by Mr Rossi. There has been no finding by the primary judge that, if the Council and the Panel were misled, that was deliberate on the part of Living Choice.
At least since the proceedings reached this Court, Mr Rossi has no longer pressed for an order requiring demolition of the works carried out along the Rossi Boundary. It appears that he accepts that, so long as adequate landscaping is carried out at that point, the adverse consequences of construction of villa units along the Rossi Boundary would be removed. In those circumstances, so long as adequate relief is granted in respect of the adverse impacts on the Rossi Land of that part of the Development, there would appear to be little utility in declaring the Stage 2 Consent invalid.
In the circumstances, notwithstanding that there was a contravention of s 79C on the part of the Panel, as a consequence of a defect in the assessment function on the part of the Council, I would not declare the Stage 2 Consent void or invalid. Rather, I would make an order under s 25B of the L & E Court Act suspending the Stage 2 Consent in so far as it relates to the construction of villa units 206 to 210 and specifying that landscaping work be carried out to mask the Development along the Rossi Boundary.
Because of the history of these proceedings, particularly their complexity and length, it is highly desirable that they be brought to conclusion as expeditiously as possible, with as little further cost as possible. One means of doing so would be to order that Living Choice carry out the landscaping work proposed by Mr Rossi before the primary judge (as identified in landscape plan No. 111.13(12)/219 dated October 2013 prepared by Mr Ian Jackson of iScape Landscape Architecture) as a term of validating the Stage 2 Consent. However, because there has not been full argument on that landscape plan, and in order to allow the parties an opportunity to agree on the work to be undertaken, it would be preferable, in the circumstances, for directions to be given to the parties to consult with that end in view. While this Court may not be well placed to evaluate competing submissions (assuming that disputation continues) as to the merits of particular proposals for landscaping and planting, the alternative course of remitting any aspect of the matter to the L & E Court should be avoided if possible.
In the circumstances, the orders made by the primary judge should be varied to give effect to plantings of screen trees on the Rossi Land and on the Living Choice land. The parties should have an opportunity to reach agreement as to the proposed plantings, the timetable within which they are to occur and the steps to be taken in undertaking the work. Directions to that end should be given.
Issue 10: Validity of Notices of Determination
Submissions
Mr Rossi contends that the two notices of determination dated 12 October 2010, one of which was not brought into existence until 6 June 2012, were invalid because the Stage 2 Consent of which they purported to give notice was invalid by reason of a jurisdictional error in the exercise of the power conferred on the Council. That contention is irrelevant if the Stage 2 Consent is found to be valid.
The Council asserts that the argument now sought to be advanced on behalf of Mr Rossi, namely that the notifications were invalid because the determination of which notice was given was invalid, was not pleaded or argued before the primary judge. Further, the Council says, there is no purpose to be served by ventilating the issue on appeal. In addition, if the first notice was valid, the fact that a second purported notification in differing terms was given is of no significance.[146] Mr Rossi’s answer is that the issue was raised to ensure that the register of documents (including notifications of development consents) kept under cl 266 of the Planning Regulation, and made public by cl 268, is correct and not misleading.
Consideration
[146] See Judgment No. 3 at [276].
As I have indicated, I would not interfere with the decision of the primary judge to decline to make a declaration of invalidity in respect of the Stage 2 Consent but would make an order under s 25B. Further, Mr Rossi has not pointed to any detriment that flows to him from the defects in the first notification. Although defects such as those raised by Mr Rossi may have consequences of significance in other factual situations, the basis on which Mr Rossi contended in this Court that the notifications should be declared invalid was that the Stage 2 Consent was itself invalid. For the foregoing reasons, that contention cannot succeed. However, it is desirable that the register kept under cl 266 of the Planning Regulation (which register is, importantly, available for public inspection pursuant to cl 268) be accurate. In those circumstances, notwithstanding the absence of any other demonstrated significance of the defects in the notifications, I consider that a declaration of invalidity should be made in relation to the first notification of the Stage 2 Consent. The second notification is of no significance, and on the basis of the submissions made to this Court, there does not appear to be any reason to make a declaration of invalidity in respect of that notification.
Issues 11 and 12: Ameliorative Orders
Submissions
Sections 122 to 124 of the Planning Act are concerned with breaches of the Planning Act and authorise the L & E Court to make orders against persons who are in breach of, or have breached, the Planning Act, the Planning Regulation or an environmental planning instrument (such as the Seniors Policy and the Major Development Policy). Where a breach is established, the L & E Court’s jurisdiction is enlivened and it can make orders that restrain a breach and orders requiring remedy of a breach. However, there may be a question as to whether orders can be made against a person who has not breached or is not in breach of the Planning Act. The primary judge was concerned that, in so far as Mr Rossi sought orders that he carry out landscaping work at the cost of Living Choice, the orders sought by him were not within the Court’s power.[147]
[147] Judgment No. 5 at [7].
The primary judge refused Mr Rossi’s application for an order that the villas on the Rossi Boundary be demolished. Nevertheless, her Honour contemplated ameliorative relief, which included the planting of trees on the Rossi Boundary. However, Mr Rossi was reluctant to agree to have Living Choice enter on the Rossi Land and therefore sought compensation in the form of a lump sum to enable him to carry out the necessary landscaping and the restoration of privacy with minimal dealings with Living Choice. He proffered an undertaking to carry out the work on his land in accordance with a specified landscaping plan, at the expense of Living Choice.
The primary judge considered that the alternative that Mr Rossi give an undertaking to the Court to carry out the work was “problematic” in so far as there would be a possibility of contempt if he failed to comply with the undertaking. Her Honour was concerned as to who would commence contempt proceedings in such circumstances. The orders sought by Mr Rossi involved payment by Living Choice of a large one-off sum and her Honour was concerned that that raised the spectre that Living Choice could take contempt proceedings if Mr Rossi did not carry out all of the work. Her Honour considered the uncertainty that would attend such an approach was a reason not to adopt it.[148]
[148] Judgment No. 5 at [8].
The primary judge considered that the landscaping scheme proposed by Living Choice reflected a more orthodox and usual approach, in so far as it required expenditure by Living Choice in doing work on the Living Choice Land, with minimal work on the Rossi Land. Her Honour considered that that scheme was in accordance with orders that her Honour would expect to make in circumstances where a breach of the Planning Act had been established.[149]
[149] Judgment No. 5 at [9].
Mr Rossi contends that the primary judge erred in the exercise of her discretion under s 124 in failing to make orders requiring Living Choice to pay compensation to him or to carry out landscaping on the Rossi Land. He says that her Honour erred in finding that it was necessary for an order to be made against him, since he would be bound by an order directed to Living Choice.[150] He says that, in circumstances where a finding had been made that trees on the Rossi Land had been unlawfully removed, the correct approach was for the Court to order compensation in an amount that was sufficient to restore privacy along the Rossi Boundary. Alternatively, he contends, the Court had power to order landscaping to be carried out on the Rossi Land by Living Choice.
[150] Citing Ross v Lane Cove Council [2014] NSWCA 50 at [42].
Mr Rossi also contends that the primary judge erred in adopting the landscaping scheme propounded by Living Choice that was not in evidence. He says that the procedure adopted by her Honour resulted in a denial of procedural fairness. He asserts that, on 17 July 2013, when the parties agreed to have the L & E Court make final orders on the evidence already before it, there was no suggestion that the Court might ultimately grant relief by reference to a landscaping plan that was expressly not tendered by Living Choice when the opportunity was afforded at that time. He complains that the approach adopted by the primary judge was unorthodox and could not have been anticipated by him.
Living Choice responds that no order for compensation was sought in the summons or the points of claim. The primary judge observed that the claim for compensation was first made on 5 November 2013 when proposed orders were formulated on behalf of Mr Rossi. Mr Rossi had amended the summons during the course of the hearing to seek specific orders that did not include compensation. No notice of a claim for compensation was made until the proceedings were almost complete.
On 16 August 2013, Mr Rossi was invited to provide the Court with the ameliorative orders that he sought within the scope of the further amended summons. Living Choice says that the orders proposed by him went well beyond that invitation. Living Choice contends that, properly understood, the primary judge rejected Mr Rossi’s proposed orders because her Honour favoured the orders proposed on behalf of Living Choice, since they were more likely to bring protracted litigation to a clearly defined end. It says that, in adopting that approach, there was no error of principle to the exercise of discretion.
Living Choice says that, even if the L & E Court had power to make the order proposed by Mr Rossi, the primary judge clearly thought that the making of such an order was undesirable, for the reasons that her Honour explained. It contends that, in any event, even if both parties consented, that would not confer power on the L & E Court to make orders that it otherwise lacked power to make. It says that, once it is accepted that an order cannot be made against a party who is not in breach, the Court cannot accept an undertaking from that party to do work that the Court has no power to order.
Living Choice contends that there was no error on the part of the primary judge in making the orders that she made, since the proposal for compensation and the giving of undertakings by, or the making of orders against, Mr Rossi was raised without notice and did not fall within the relief claimed. Further, the ground on which her Honour rejected the proposal is not the subject of a ground of appeal. It says that the orders were dependent upon the L & E Court’s accepting an undertaking by Mr Rossi to do work that the L & E Court had no power to order him to do.
Mr Rossi responds that the absence of a claim for compensation in the amended summons did not prevent the L & E Court from crafting the relief that it considers appropriate. He says that the L & E Court had power to award compensation, including as part of the ancillary relief available to enforce Mr Rossi’s rights. He says that the claim for compensation did not constitute a separate cause of action, as suggested by Living Choice. He contends that the order he sought was simply one requiring the restoration of the Rossi Boundary to its state before the unlawful removal of trees. That submission was made in light of the absence of any expert landscaping evidence. The primary judge rejected the submission and requested more detail and asked that the parties prepare a plan.
Consideration
The primary judge erred in refusing relief simply because it was not open to her to accept an undertaking from Mr Rossi. There is no reason why an order could not have been formulated that required Living Choice to pay a sum of compensation upon Mr Rossi’s carrying out specified work within a fixed period. That is to say, it could have been a term of the order that the work be carried out. There would be no need for an order that Mr Rossi carry it out or for the L & E Court to accept an undertaking that he carry it out.
In any event, where compensation is ordered by reason of harm caused by the person ordered to pay the compensation, there is no rule requiring that the compensation must be applied in making good the harm or damage. The discretionary power conferred on the L & E Court by s 124 of the Planning Act is wide,[151] and s 16(1A) of the L & E Court Act confers on the L & E Court jurisdiction to hear and dispose of any matter not falling within its jurisdiction, if that matter is ancillary to a matter that does fall within its jurisdiction. Damages are plainly ancillary to the matters that do fall within the L & E Court’s jurisdiction, being the existence of the right and its enforcement by injunctive orders or declaratory relief.[152] The difficulty with such an approach in the present case, of course, may be that there was no evidence before the primary judge as to the loss or damage occasioned to Mr Rossi by reason of the matters about which he complains. There was material before the primary judge as to the cost of landscaping that Mr Rossi wished to have carried out in order to obviate the consequences of the matters about which he complains. However, there was no evidence that the impacts of the Development along the Rossi Boundary resulted in any diminution in the value of the Rossi Land, by reason of loss of amenity, privacy and the like, or the quantum of such diminution.
[151] Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339.
[152] Scharer v State of New South Wales [2001] NSWCA 360; 116 LGERA 217 at [49].
In all the circumstances, I consider that the appropriate relief would be to order that work be carried out to obviate the adverse consequences for the Rossi Land that flows from the removal of vegetation on the Rossi Boundary without the consent of Mr Rossi and without development consent. The work should be done at the cost of Living Choice. While he was originally loathe to permit Living Choice or its contractors to have access to the Rossi Land, Mr Rossi’s ultimate position before this Court is that he will permit it to occur. As I have concluded above, however, the parties should be afforded the opportunity to agree on the precise terms of such ameliorative orders. Failing agreement within the time provided for in the orders, the parties should file short written submissions as to their respective proposals, and the Court should determine the outcome on the papers.
Conclusion
The appeal should be allowed in part. There should be orders under s 25B as foreshadowed above. Orders 2.1-2.3 and 3.2-3.4 made by the primary judge on 25 November 2013 should be varied in the light of the agreement or submissions of the parties, as foreshadowed above, rather than the work identified in those orders. The parties should be directed to bring in short minutes of orders to give effect to those conclusions.
It is desirable to reach finality in these proceedings as quickly as possible, including on all questions as to costs. However, in circumstances where the ameliorative orders are yet to be determined, I consider that it would be preferable to receive submissions from the parties on the question of the costs of the proceedings both before the primary judge and in this Court after they have had the opportunity of considering these reasons. The parties should be directed to make such further written submissions as they are advised in relation to the costs of both proceedings, in the light of the above conclusions. In so far as the costs orders made by the primary judge need to be revisited following the consideration of such further submissions, the orders made on 20 August 2014 may be varied accordingly.
I agree with the orders proposed by Basten JA.
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APPENDIX
Amendments
24 August 2015 - added decision date 20 August 2014 to the coversheet
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