Rossi v Living Choice Australia Ltd (No 2)

In this matter before the Court of Appeal of New South Wales, Mr Rossi appealed against decisions of the primary judge concerning a development consent issued to Living Choice Australia Ltd. The dispute centred on the validity of the planning consent and the appropriate relief to be granted to protect Mr Rossi's adjacent property from adverse impacts arising from the development. The appeal also concerned the apportionment of costs in complex litigation.

The Court was required to determine whether the development consent was partly invalid, and if so, what orders should be made. Specifically, the Court considered whether to suspend the operation of the consent, the terms of any such suspension, and the appropriate relief where terms had been substantially complied with. The Court also had to determine the appropriate orders for ameliorative relief to protect the privacy and amenity of Mr Rossi's land, and how costs should be apportioned between the parties, including whether the liability of respondents should be joint and several.

The Court allowed Mr Rossi's appeal in part, finding that the development consent was partly invalid. It suspended the development consent concerning the construction of specific villa units until orders made by the Land and Environment Court on remittal were substantially complied with. The Court set aside certain orders of the primary judge and remitted the matter to the Land and Environment Court to determine the appropriate ameliorative relief. The Court also varied the costs orders, ordering that Living Choice Australia Ltd and the local council pay a significant percentage of Mr Rossi's costs of both the trial and the appeal, with liability to be joint and several and apportioned between the respondents.