Rossi v Living Choice Australia Ltd (No 3)
[2013] NSWLEC 46
•12 April 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46 Hearing dates: 6 - 7, 14 - 15 August, 17 - 20 September, 19 November, 12 - 13 December 2012 Decision date: 12 April 2013 Jurisdiction: Class 4 Before: Pain J Decision: A timetable for further progress of the matter will be discussed with the parties.
Catchwords: JUDICIAL REVIEW - notification requirements for development application for seniors SEPP complied with - whether assessment of DA by council took into account mandatory relevant consideration- whether determination by JRPP took into account mandatory relevant consideration - no consideration of impact of retention of fill on neighbour in rural zone - whether assessment under Seniors Living SEPP valid - notification of determination of development consent valid
CIVIL ENFORCEMENT - unauthorised work undertaken on neighbouring property -unauthorised removal of trees without development consent - building work conducted without development consent - boundary wall not exempt development
JUDICIAL REVIEW - retaining walls development consent invalid as prohibited development under LEP
DISCRETION - relevant principles -consideration of whether demolition would be orderedLegislation Cited: Baulkham Hills Development Control Plan
Baulkham Hills Resident Development Control Plan Part C Section 3 clause 2.24.7, Section 3 clause 2.14.7
Baulkham Hills Local Environmental Plan 2005 cl 5, cl 8, cl 10, Sch 2
Environmental and Planning Assessment Act 1979 s 4, s 23G, s 23H, s 76A, s 79A, s 79C, s 80, s 80A, s 81, s 82A, s 83, s 94, s 96, s 124, s 125, s 149E, s 153, Pt 4
Environmental and Planning Assessment Regulation 2000 cl 12A, cl 98, cl 98A, cl 98E, cl 100, cl 102, cl 123B, cl 123D, cl 123E, cl 123F
Evidence Act 1995 s 140
Interpretation Act 1987 s 3, s 32, s 35
Land and Environment Court Act 1979 Div 3, s 20, s 25B, s 25E
Local Government Act 1993 s 710
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cl 1.9, cl 1.10, cl 1.15, cl 1.16, cl 2.29, cl 2.30,
State Environmental Planning Policy (Major Development) 2005 cl 13B, cl 13F
State Environmental Planning Policy (Housing for Seniors or People with a Disability) cl 2, cl 4, cl 14, cl 15, cl 24, cl 25, cl 26, cl 27, cl 28, cl 30, cl 31, cl 32, cl 33, cl 34, cl 35, cl 36, cl 37, cl 38, cl 39, cl 40
Sydney Water Act 1994 s 73Cases Cited: Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138; (2012) 191 LGERA 51
Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Australian Broadcasting Tribunal v Saatchi (1985) 10 FCR 1
Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382
Browne v Dunn (1893) 6 R 67
Centro Properties Limited v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257
Coffs Harbour City Council v Arrawarra Beach [2006] NSWLEC 365; (2006) 148 LGERA 11
Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; (2009) 167 LGERA 52
Currey v Sutherland Shire Council (1998) 100 LGERA 365
Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349
Eco-Villages Australia Pty Ltd v Pittwater Council [2012] NSWLEC 49
F Hannan v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306
Franklins Limited v Penrith City Council [1999] NSWCA 134
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155
Glaser v Poole [2010] NSWLEC 143
Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7
Holloway v McFeeters (1956) 94 CLR 470
Hortis v Manly Council [1999] NSWLEC 151; (1999) 104 LGERA 43
Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
Ku-ring-gai Council v Sydney West Joint Regional Planning Panel (No 2) [2010] NSWLEC 270; (2010) 181 LGERA 11
Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361
Lockwood v Commonwealth (1954) 90 CLR 177
Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695
Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321
Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-41
Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 268 CLR 627
Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Notaras v Waverley Council [2007] NSWCA 333
Parramatta City Council v Hale (1982) 47 LGRA 319
Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 168 LGERA 59
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302
Simpson v Wakool Shire Council [2012] NSWLEC 163
Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170
Swift v SAS Trustee Corporation [2010] NSWCA 182; (2010) 6 ASTLR 339
Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297; (2003) 58 NSWLR 631
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Williams v Minister for Planning [2009] NSWLEC 5; (2009) 164 LGERA 204
Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707Texts Cited: Stephen Odgers, Uniform Evidence Law, 10th ed (2012) Thomson Reuters Category: Principal judgment Parties: Anthony Rossi (Applicant)
Living Choice Australia Ltd (First Respondent)
The Hills Shire Council (Second Respondent)
Joint Regional Planning Panel - Sydney West Region (Third Respondent)Representation: Mr P Tomasetti SC with Mr N Eastman (Applicant)
Ms H Irish (First Respondent)
Mr A Galasso SC with Mr J Lazarus (Second Respondent)
Submitting appearance (Third Respondent)
DG Briggs and Associates (Applicant)
Pikes and Verekers Lawyers (First Respondent)
Maddocks Lawyers (Second Respondent)
Department of Planning and Infrastructure, Legal Services (Third Respondent)
File Number(s): 40018 of 2012
INDEX
Judicial review challenge to validity of seniors housing development and civil enforcement under Environmental Planning and Assessment Act
Topic
Paragraph
Background
6
A. Invalidity of stage 2 development consent
Ground 1 - Failure in notification of stage 2 DA by the Council to Mr Rossi
111
Ground 2 - Failure in assessment by the Council and determination by JRPP of stage 2 DA
137
B. Stage 2 development consent inoperative
Ground 3 - Failure of 12 October 2010 notification of DA by the Council
250
Ground 4 - Failure of 6 June 2012 notification of DA by the Council
271
C. Civil enforcement
Ground 5 - Breach of s 76A EPA Act on Rossi and Living Choice land
274
D. Invalidity of retaining walls consent
Ground 6 -Retaining walls consent invalid
326
E. Exercise of discretion
357
Judgment
Judicial review challenge to validity of seniors housing development and civil enforcement under Environmental Planning and Assessment Act
Mr Rossi, the Applicant, commenced Class 4 proceedings on 11 January 2012 which, by the first stage of hearing, challenged the validity of two development consents. The first consent was granted on 23 September 2010 for development on land owned by the First Respondent, Living Choice Australia Ltd (Living Choice), in Glenhaven (the Living Choice land). That development consent was granted by the Joint Regional Planning Panel Sydney West Region (the JRPP) for stage 2 of a large seniors housing development on the Living Choice land (the stage 2 consent). The JRPP has filed a submitting appearance. The second consent arose from a separate retaining walls development application lodged by Living Choice with Hills Shire Council (the Council) in August 2011. Development consent was sought for curtain walls and landscaping on the northern boundary and part of the western boundary of the Living Choice land from the Council. The retaining walls consent was initially refused and then granted by the Council after amendment on 2 July 2012. A challenge to its validity was incorporated into these proceedings. The Council appears as the Second Respondent. It also assessed the stage 2 development application for which the JRPP gave development consent.
Mr Rossi owns land adjacent to the Living Choice land (the Rossi land) also zoned rural 1(c) under the Baulkham Hills Local Environmental Plan 2005 (the LEP). Mr Rossi's land is approximately 2ha. The Living Choice land in stage 2 comprises approximately 7ha. Part of the northern boundary of the Living Choice land (122.815m) is common with the entire southern boundary of the Rossi land (the Rossi boundary). The retaining walls consent relates in part to the Rossi boundary. Mr Rossi seeks declarations that both development consents are void and of no effect. Mr Rossi also seeks orders restraining Living Choice from carrying out any works on the Living Choice land until development consent is obtained, and requiring Living Choice to undertake works to demolish and remove structures and remove fill within 50m of the Rossi boundary and demolish the keystone concrete block wall on the Rossi boundary and replace mature trees removed from the Rossi land.
Living Choice was granted development consent in 2003 for land to the east of the Rossi land which has now been developed for seniors housing, known as stage 1. The 2003 stage 1 development consent was also granted over the Living Choice land to the south of the Rossi land now the subject of the stage 2 consent. No legal issue arises in these proceedings in relation to the stage 1 development consent.
The stage 2 proposal has a capital value of greater than $10 million and is therefore subject to the State Environmental Planning Policy (Major Development) 2005 (Major Development SEPP) which provides that determination of such development applications can be by a JRPP. The JRPP in this case is a regional panel within the meaning of s 23G of the Environmental Planning and Assessment Act 1979 (the EPA Act). The stage 2 consent approved development of 97 independent living villas.
Mr Rossi complains throughout the pleadings and submissions of retaining walls built without development consent. The Respondents do not agree that the walls so described by Mr Rossi are retaining walls. The walls in issue, now built, are a 600mm keystone concrete block wall built on the Rossi boundary on the Living Choice land and curtain walls underneath the concrete slabs for villas 204-210. These villas are constructed within 3m of the Rossi boundary. Mr Rossi describes the curtain walls as retaining walls as he submits that fill has been placed behind them in order to build up the height of the ground to the finished floor level (FFL) of these villas approved in the stage 2 consent.
Background
The parties agreed a chronology which has been slightly amended.
On 9 December 2003 deferred commencement development consent (421/2004/HC) was granted for Glenhaven Retirement Village. That month Mr Hobbs and Mr Tregoning (current directors of Living Choice) acquired Living Choice. (Graham Hobbs [8]).
On 29 March 2006 at the request of Mr Hoyle, the former owner of the Rossi land, Mr Galton carried out an identification survey of the pines on the Rossi boundary (Robert Galton 09.07.2012 [7]). On 30 March 2006 the identification survey report was prepared (Robert Galton 09.07.2012 [9]).
On 17 August 2006 Mr Hoyle communicated with Mr Buckton, Living Choice's national construction manager, about the pines (Gregory Hoyle 25.07.2012 [19]; Annexure GRH-3 p8).
On 25 August 2006 backhoe machinery started removing the pines along the Rossi boundary. Mr Hoyle took steps to stop the tree removal (Gregory Hoyle 25.07.2012 [19]).
On June 2008 Mr Rossi began working for Living Choice on stage 1 (John Elliott 11.07.12 [3]; Anthony Rossi 25.07.12 [62]).
On 8 July 2008 Mr Rossi contracted to purchase the Rossi land (Anthony Rossi oral evidence 15.08.12).
On 14 July 2008 Mr Rossi's company made its first delivery of plasterboard materials for stage 1 (Anthony Rossi 12.09.2012 [3]).
On 2 February 2009 Mr Rossi acquired the Rossi land (Anthony Rossi 5.07.12 [4]).
On 20 August 2009 the DA (280/2010/JP) for seniors housing development, being the demolition of existing buildings and the erection of 115 self-contained aged care villas, 111 supported living units, and associated infrastructure (stage 2 DA) was lodged with the Council (1A Tabs 1 & 7 and 2A Tabs 5, 7). City Plan Services sent the application form and supplementary documents with a cover letter dated 14 August 2009 (AB 2A Tab 7). Supplementary documents included:
(a) architectural plans prepared by CED Building Design dated 28 July 2009 (AB 1B Tab 27)
(b) statement of landscape intent prepared by Deep Rainforest Co (Australia) Pty Ltd dated January 2009 showing view sheds and trees on the Rossi land and the Anderson property (AB 1A Tab 17) addressing cl 30(3) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) (Seniors SEPP)
(c) BASIX certificate issued 5 August 2009 (AB 1B Tab 30)
(d) Association of Building Sustainability Assessors certificate issued on 4 August 2009 and certified plans (AB 1B Tabs 28-29)
(e) statement of environmental effects (SEE) prepared by City Plan Services dated April 2009 (AB 1A Tab 9)
(f) bushfire assessment report prepared by Travers Environmental dated 11 December 2008, with Sch 1 Bushfire Protection Measures Old Glenhaven Rd, Glenhaven plan showing trees on the Rossi land and the Anderson's property on Holland Road (AB Tab 13, 14)
(g) site compatibility certificate issued by the Office of the Director-General, NSW Department of Planning on 5 March 2009 (AB 1A Tab 8) addressing cl 24 and cl 25 of the Seniors SEPP
(h) disability access report prepared by an access and mobility consultant, dated 10 June 2009 (AB 1A Tab 16)
(i) waste management plan for stage 2 prepared by Cardno dated July 2009 (AB 2A tab 6)
(j) civil design report for stage 2 including slope analysis survey prepared by Cardno dated June 2009 (AB 1B Tabs18 to 26)
(k) feasibility letter written by Sydney Water dated 13 March 2009 providing general information about Sydney Water's requirements if Living Choice were to apply for a compliance certificate under s 73 of the Sydney Water Act 1994 for the development (AB 1A Tab 10)
(l) operations management plan prepared by Living Choice dated 13 April 2009 (AB 1A Tab 18)
(m) traffic assessment report prepared by consulting civil and traffic engineers dated 12 August 2009 (AB 1A Tab 12)
(n) flora and fauna assessment prepared by Harper Somers O'Sullivan dated February 2009 (AB 1A Tab 11) (first tranche of information).
The SEE states that the proposed development forms an extension to the completed stage 1 of the seniors housing village and that acquiring 1 Holland Road, Glenhaven, "has facilitated [a] modified regime to that originally approved under the Development Consent of 9 December 2003. A new format is proposed across both sites incorporating a Supported Living component." Therefore Living Choice was seeking development consent for the "revised villa format and a supported living component to the new parcel." It notes that the site has a moderate slope from east to west and argues that the "scale of the development is appropriate, maintaining low density, low scale residential form ... entirely consistent with the built form throughout the area". The SEE argues that the "proposal provides a gradient in density from the immediate adjoining residential land uses, to the semi-rural/residential land uses to the north and west", and that it "provides generous setbacks to these boundaries to provide a buffer at the interface of the two land uses". It then assesses the proposal against relevant planning provisions. It addresses cls 26 - 28, 30, 31 and 38 of the Seniors SEPP.
On 26 August 2009 the stage 2 DA including the supplementary documents was referred to the JRPP (AB 1B Tab 1). All except the waste management plan at AB 2A tab 6 were produced on subpoena by the JRPP.
On 27 August 2009 the Council's Flora & Fauna Projects Officer commented on the flora and fauna assessment report (AB 2A tab 11).
The Council publicly notified the stage 2 DA from 28 August 2009 to 14 September 2009 (AB 2B Tabs 1 & 4; Affidavit of Buckham par 10).
On 2 September 2009 the Council's Development Assessment Manager prepared an internal memorandum to brief councillors on referred DAs including the stage 2 DA. It advised that the proposed development forms an extension to the completed stage 1 development (AB 2B Tab 2).
On 9 September 2009 an officer from the Council's environment and planning group identified proposed conditions of approval including in relation to waste management in an internal memorandum (AB 2B Tab 3). The conditions concerned issues such as stormwater management, erosion and sediment control and stockpiles treatment.
On 17 September 2009 the Council's Senior Coordinator Community Services and Planning advised the Senior Town Planner in an internal memorandum that the access assessment report was comprehensive and that it was important for Living Choice to adhere to that report to ensure compliance with access guidelines (AB 2B Tab 5).
On 21 September 2009 the Council's Project Manager of Forward Planning advised that they did not object to the stage 2 DA as the development is not located within a s 94 contributions plan area or item of heritage significance under the LEP (AB 2B Tab 6).
On 23 September 2009 engineering comments were made by the Council's Senior Subdivision Engineer who referred to Cardno's civil design report and requested further information regarding the site layout and identification of the extent and amount of earth fill and excavation (AB 2B Tab 7). In relation to earthworks he stated that "the development site is subject to excessive earthworks including excavation and filling particularly along the site boundaries". The Council's Tree Management Officer also commented on the stage 2 DA stating that a detailed landscape plan showing, inter alia, all existing trees to be removed, was required (AB 2B Tab 8).
On 30 September 2009 in a letter to Living Choice, the Council advised that a preliminary assessment of the stage 2 DA had been undertaken and requested additional information regarding bushfire assessment, landscaping, trees, and garbage and recycling (AB 2B Tab 9).
In September 2009 a JRPP Status Report was prepared by Mr Buckham, development assessment coordinator of the Council, (AB 1B Tab 7).
On 13 October 2009 the Council wrote a further letter to Living Choice requesting additional information regarding site drainage, vehicular access and parking, and extent and amount of earthworks (AB 2B Tab 10).
On 15 October 2009 the JRPP was briefed by way of an interactive presentation on the stage 2 DA by Council officers. The briefing note provided the JRPP with details of the site's description and zoning, including that it adjoined stage 1 of an existing seniors housing development, the fact that the site "slopes gently from east to west", and an aerial photograph dated 14 October 2009 showing stage 1, the Rossi land, and buildings and major trees on the Rossi land which stage 2 would adjoin. The JRPP was informed that the DA was notified to 79 adjoining and surrounding properties between 28 August and 14 September 2009, resulting in two submissions from residents (being Mr and Mrs Doherty and Mr and Mrs Anderson). The submissions raised several issues including bulk of development, setbacks, and landscaping and vegetation. The architectural drawings showing elevations attached to the briefing note show the south elevation. As recorded in the JRPP's formal minutes endorsed on 21 October 2009 and the Council's file note of the meeting dated 19 October 2009, the briefing session was attended by JRPP members Ms Thomson (chair), Mr McDonald (member), Mr Mitchell (member), and Mr Searle (alternate) (AB 1B Tabs 2 to 4; and 2B Tabs 11, 12 & 15).
On 2 November 2009 the Council wrote a letter to the JRPP advising the application would be held in abeyance pending the receipt of the additional information.
On 30 December 2009 the Council wrote a letter to Living Choice repeating previous requests for additional information (AB 2B Tabs 18). The email attaching the letter mentions that assessment of the stage 2 DA was re-assigned to the Council's development assessment coordinator (AB 2B Tab 19).
On 1 April 2010 City Plan Services provided some additional information in response to the Council's requests including revised architectural drawings showing levels on the site, earthworks plans numbered 001 - 013, and a revised landscape plan (AB 2B Tabs 21-22, 53) (second tranche of information).
On 14 April 2010 the Council emailed City Plan Services advising that it would be referring the additional documentation to all relevant Council officers and external parties including the NSW Rural Fire Service. It advised that while the Council is managing and assessing the DA, the JRPP is the determining authority (AB 2B Tab 25).
On 21 April 2010 the Council prepared a briefing note to the JRPP (AB 2B Tab 26) and the next day, 22 April 2010, it conducted the second briefing session for the JRPP (see AB 1B Tab 7).
On 28 April 2010 the Council emailed City Plan Services requesting additional information regarding the bushfire assessment, and advising that as the NSW Rural Fire Service had not yet provided their general terms of approval, the Council could recommend to the JRPP that it grant part approval to the stage 2 DA excluding the bushfire assessment components (AB 2B Tab 27).
An email from City Plan Services to the Council dated 29 April 2010 confirmed that Living Choice was seeking a part approval, that is, excluding the bushfire assessment components (AB 2B Tab 29). (third tranche of information)
On 3 May 2010 City Plan Services emailed the Council enclosing additional information including a revised construction staging plan excluding 18 villa units (stage 2.6) and supported living housing (sheets 13.01/P4 engineers job 8902/20.07 dated 29 April 2010, 13.01/P5 engineers job 8902/20.07 dated 30 April 2010, 13.02/P1 engineers job 8902/20.07 dated 30 April 2010) identifying the stages proposed for part approval. The residential stages were excluded pending the NSW Rural Fire Service's concurrence (AB 2B Tab 30). (third tranche)
On 17 May 2010 the Council's Tree Management Officer stated that a detailed landscape plan was required for the stage 2 DA (AB 2B Tab 32).
In May 2010 a JRPP Status Report was prepared by Mr Buckham, which was the third briefing of the JRPP. The report assessed the proposal's compliance with the Seniors SEPP including the site compatibility certificate required by cl 24 - 25, the site-related requirements of cl 26 - 28, the design requirements of cl 32 - 39, the development standard requirements of cl 40; and the response to issues raised in the submissions including external design and appearance of development. The Council recommended that the JRPP defer its determination to allow Living Choice the opportunity to address concerns raised by the Council and the NSW Rural Fire Service regarding bushfire assessment (AB 1B Tab 7).
A letter from City Plan Services dated 10 June 2010 was sent to the Council by email enclosing the NSW Rural Fire Service's advice dated 3 June 2010 on bushfire assessment which necessitated deletion of the supported living housing from the stage 2 proposal. The email stated that Living Choice sought to stage the development consistent with the enclosed staging plan. (The staging plan excluded the 18 villa units (stage 2.6) and supported living housing adjoining Holland Road (engineers job 8902/20.07 dated 30 April 2010)). The stage 2 DA was now for the demolition of existing buildings and the staged erection of 97 villa units for use as self-contained aged care villa units with ancillary facilities, car parking and associated infrastructure (AB 2B Tabs 35 & 36) (fourth tranche of information).
An email from City Plan Services dated 9 July 2010 to the Council attached Cardno's civil design report dated June 2009 (AB 1B Tab 18) (AB 2B Tab 37).
On 12 July 2010 the Council emailed City Plan Services confirming that the information received was forwarded to the Council's engineers last week, and stating that the NSW Rural Fire Service had not given a timeframe for the provision of conditions (AB 2B Tab 39).
On 13 August 2010 general terms of approval were granted by the NSW Rural Fire Service (AB 1B Tab 16; and 2B Tab 41).
On 25 August 2010 in response to a referral, the Council's Senior Subdivision Engineer, recommended approval of the engineering component subject to specified conditions (AB 2B Tab 42).
In August/September 2010 the JRPP Planning Report was prepared by Mr Buckham (AB 1B Tab 16). It had an updated detailed chronology, noted that the amended development proposal was for the "demolition of existing buildings and the erection of 97 villa units for use as serviced self-care Seniors Housing with ancillary facilities, car parking and associated infrastructure". Eighteen self-care villas and the supported living component were deleted to comply with the requirements of the NSW Rural Fire Service. The report then assessed issues such as compliance with the Seniors SEPP including the site compatibility certificate required by cl 24 - 25, the site-related requirements of cl 26 - 28, the design requirements of cl 32 - 39, the development standard requirements of cl 40; compliance with the LEP; the NSW Rural Fire Service's general terms of approval, the response to issues raised in the submissions including the external design and appearance of the development; and the requirements of s 79C(1)(a) - (e) of the EPA Act. The report concluded that the stage 2 DA was satisfactory and recommended approval subject to 83 proposed conditions. Proposed condition 1 stated that development be carried out in accordance with approved plans submitted to the Council. These included the overall masterplan (sheet 1.01 rev P3 dated 1 April 2010), site plan stage 2 (sheet 13.02 rev P5 dated 30 April 2010), villa floor plans (sheets 3.01, 4.01, 5.01, 6.01, 7.01, 8.01, 9.01, 10.01, 11.01 dated 28 July 2009), and villa elevations (sheets 3.02, 4.02, 5.02, 6.02, 7.02, 8.02, 9.02, 10.02, 1.02 dated 28 July 2009). The report attached a locality plan, an aerial photograph, site plan (as amended), original site plan, typically dwelling floor plans, typical dwelling elevations, and the NSW Rural Fire Service's general terms of approval dated 13 August 2010.
On 9 September 2010 the JRPP provided notice by letter to the objectors, the Council and City Plan Services of the proposed meeting to be held on 23 September 2010 (AB 1B tab 10).
The minutes of the JRPP meeting on 23 September 2010 published on 7 October 2010 record that it commenced at 3pm and concluded at 3:50pm, during which time the JRPP considered a number of development applications. In relation to the stage 2 DA the JRPP considered the Council's JRPP Planning Report, and heard from an objector and a City Plan Services staff member. A motion was then moved and carried that the JRPP adopt the Council's recommendation to approve the stage 2 DA subject to the 83 conditions (stage 2 consent) (AB 1B Tab 17 and 2B Tab 44). The meeting was attended by JRPP members Ms Thomson, Mr McDonald, Mr Mitchell, Mr Walker, Mr Searle and Council staff.
On 12 October 2010 the Council issued a notice of determination of the stage 2 DA (AB 2B Tab 43). In addition to the 83 conditions of consent approved by the JRPP on 23 September 2010, the notice of determination attached general conditions, including general condition C pertaining to retaining walls.
On 3 November 2010 City Plan Services emailed the Council querying the ambit of general condition C(3). Mr Buckham replied that it was a "cover-all that goes on all DA's" and applied to retaining walls not indicated in the stage 2 DA (AB 2B Tab 46).
On 23 March 2011 a s 96(1A) application (280/2010/JP/A) to modify the stage 2 consent was lodged seeking to alter staging and certain levels on dwellings.
In June 2011 Mr Rossi was quoted for work on stage 2 (John Elliott 11.07.12 [5]).
Also that month Mr Prince, horticulturalist, arborist and landscape designer, of Deep Rainforest Co (Australia) Pty Ltd, prepared a tree removal plan and an amended version of that plan for Living Choice.
In mid-June 2011 Mr Rossi and Mr Turnbull attended the Council (Glynis Charles [3]-[6]).
On 20 June 2011 a construction certificate was issued for the stage 2 DA.
In the week of 25 June 2011 Mr Elliott, Living Choice's construction manager, and Mr Douglass of Douglass Plumbing Drainage and Civil Pty Ltd met with Mr Rossi to discuss a temporary fence (John Elliott 11.07.12 [8]).
On 24 June 2011 Mr Buckton, national construction manager for Living Choice, instructed Mr Douglass by email to carry out tree clearing operations on the Rossi boundary. The email attached a letter of instruction and the tree removal plan prepared by Deep Rainforest Co (Australia) Pty Ltd dated June 2011 (John Elliott 15.08.12 [11]).
On 27 June 2011 the s 96 application (280/2010/JP/A) was approved and a notice of determination was issued on 28 June 2011 (AB 2B Tab 49).
On 29 June 2011 installation of the temporary fence was completed on the Rossi land (John Elliott 15.08.12 [10]). Tree clearing operations were also carried out along the Rossi boundary (John Elliott 15.08.12 [11]).
In June - July 2011 land filling occurred on the Living Choice land (Anthony Rossi 05.07.2012 [138] Leigh Buckton 11.07.212 [3]).
On 1 July 2011 the Council advised City Plan Services that the retaining wall did not have development consent, that any works in the vicinity of the boundary should cease, consent should be sought, and consideration should be given to the interface of the retaining wall with the properties to the north. The Council advised Living Choice to explore opportunities to reduce the wall height and provide landscape screening on the development site to lessen the impact of any wall. (AB 3 Tab 20 AB 3 Tab 22 pp 351-353 AB 3 Tab 33 - "History"). Emails were exchanged about this between the Council and City Plan Services on 4 July 2011 (AB 3 Tab 20 AB 3 Tab 22 [pp 353-355]).
Commencing on 29 June 2011 all trees along the Rossi boundary were removed. Mr Elliott attests in his affidavit to 12 trees being removed from the Rossi land. (Anthony Rossi 05.07.2012 [130]).
On 6 July 2011 Mr Elliott and Mr Buckton met with Mr Rossi at the Leisure Centre on stage 1 to discuss Living Choice's proposed solution for a transition along the Rossi boundary and landscaping (John Elliott 11.07.12 [9]-[11] Leigh Buckton [6]-[11]).
On 8 July 2011 an email from Mr Buckton to Mr Rossi was sent with boundary options attached (AB 3 Tab 2). A plan by Cardno depicting the options shows that option 1 is a 600mm landscaping wall on the Rossi boundary, a 1mm vertical to 6mm horizontal batter between walls with surface drain, a 600mm high retaining wall extended as a privacy wall up to slab height set back 1m from the boundary with a 1.5m high privacy screen/fence, the landscaped yard being below slab height, and the villa set back 3m from the boundary. Option 2 is a 600mm landscaping wall on the boundary, a retaining wall set back 1m from the boundary and up to slab height with a 1.5m high privacy screen/fence, the landscaped yard being up to slab height and level with the dining and living rooms, and the villa set back 3m from the boundary. Option 3 is a retaining wall on the boundary up to slab height with an average height of 2.5m and maximum of 3.4m, the landscaped yard being up to slab height and level with the dining and living rooms, and the villa set back 3m from the boundary.
On 13 July 2011 a Council officer verbally requested or directed Living Choice to cease works in proximity to the Rossi boundary (see AB 3 Tab 20). It did not. That day Mr Elliott, Mr Buckton, and Mr Cardno met with Mr Rossi to discuss the transition between the levels of the villa development to the boundary and various options for the treatment of the Rossi boundary (John Elliott 11.07.12 [13]-[14] Leigh Buckton [12]-[14]).
On 2 August 2011 the retaining walls DA (110/2012/HA) for the removal of trees and erection of retaining walls on the Rossi boundary and the Anderson boundary was lodged (AB 3 Tab 8; Tab 9 pp 34-153). Supplementary documents submitted included City Plan Service's SEE dated 19 July 2011 and a second version of Cardno's waste management plan dated July 2011. On 12 August 2011 the Council publicly notified the retaining walls DA (AB 3 Tab 13).
An undated report assessing the retaining walls DA prepared by the Council states that it became aware of Living Choice's intention to build a retaining wall on the western and southern boundaries after being contacted by neighbours. Council staff advised Living Choice that given the absence of detail identifying retaining walls along the boundaries, it did not have consent to build those walls and consent was required. The report states that Living Choice originally proposed a retaining wall up to 3.1m high along the boundary but it then sought to amend that proposal to build instead lower retaining walls and a landscaped batter. While the Council considered the landscaped batter an improvement on the original proposal, it did not provide a design that ameliorated impacts on neighbours to an acceptable level. The report notes that issues regarding the development interface could have been better resolved when initial discussions were undertaken with the Council in July 2011. However, Living Choice continued to build primary infrastructure, thereby reducing opportunities to adequately deal with the matter. (AB 3 tab 10 p 164)
On 24 August 2011 Proust & Gardner, Surveyors & Planners wrote a submission on behalf of Mr Rossi in relation to the retaining walls DA. (AB 3 Tab 14). That day the Council wrote to Living Choice advising that walls up to 3.1m in height proposed in the retaining walls DA were inappropriate (AB 3 Tab 16).
On 1 September 2011 Arbour Pride prepared an arboricultural impact assessment with tree survey for the retaining walls DA (AB 3 Tab 17).
On 3 September 2011 Mr and Mrs Anderson wrote a letter objecting to the retaining walls DA (AB 3 Tab 18).
On 12 October 2011 Mr Buckham wrote to Living Choice advising that the Council could not support the retaining walls DA because of the adverse impact on adjoining properties by the proposed finished ground level of the development. The stage 2 DA was supported on the basis that the impact on neighbours would be minimised and the development's finished ground level was graded to finish at natural ground level at the Rossi boundary. Living Choice was advised to review levels across the rear portion of the site with a view to resolving the situation. Further, the Council's tree management team considered that the extent of fill proposed within the tree protection zone and structural zone would have an adverse impact on trees on the Rossi land (AB 3 Tab 19).
On 2 November 2011 a site meeting was held between Mr Buckton, Council officers Mr McKenzie, Mr Osborne and Mr Buckham, Mr Rossi, Mr Pittendrigh, a landscape architect, and Mr and Mrs Anderson (Leigh Buckton [24]-[26]).
On 15 November 2011 Mr Buckham wrote to Living Choice regarding the retaining walls DA, referring to written and verbal communications on 1 July and 13 July, respectively, when it was advised and directed to cease works in proximity to the Rossi boundary (AB 3 Tab 20). He noted that at the site meeting on 2 November, Living Choice advised that works on the site had progressed to a point where the site levels could not be reduced at the interface with the properties to the north and that there were limited opportunities to resolve potential impacts on neighbours (AB 3 Tab 20). Mr Buckham stated on p 2:
In the opinion of Council staff, the works carried out differ from the design put forward in the suite of documents considered with the [stage 2 DA]. It is noted that ... the Statement of Environmental Effects ... on page 35 stated:
"The proposed development maintains density and placement patterns and scale of form to that of the existing Aged Care Facility. Additionally the conservative elevation is consistent with the scale of built form throughout the locality. The landscape elements amongst generous open spaces reinforce the local character and compliment the transition between adjoining residential and rural zones".
The plans submitted also did not convey your intended outcome along the northern boundary and are therefore considered misleading. These plans resulted in a favourable determination however if the actual situation had been identified in the architectural plans assessed by Council's planning staff, amendments to the scheme consistent with the SEE would have been required to ensure an appropriate transition to neighbouring properties.
...
Living Choice also undertook to consider building design amendments that would lessen the impacts of the built form. This included potential amendments to the roof design to reduce the overall height of the proposed dwellings.
On 21 November 2011 Mr Rossi wrote a letter to the Council about its letter of 15 November 2011 and the site meeting on 2 November 2011 (AB 3 Tab 21).
City Plan Services responded to the Council's letter on 23 November 2011, stating:
Whilst it is acknowledged that retaining wall details were not specifically provided for the entirety of the development, sketch elevations were provided as noted by Council being drawing C804.4 Sheet 1.04/P1 in particular Cross Sections C and D (one point of the elevation only), however it is also noted, that should Council see a lack of information/ detail within an application, specific requests should be made before determination or recommendation is made (as in this case, additional earthwork detail was requested and provided).
Earthworks were raised by Council as an area of concern and further documentation was requested. It is fair to assume at this stage that Council had assessed the [stage 2 DA] with all the supporting documentation ... even with the lack of retaining wall details, there was sufficient documentation ... clearly identifying a significant change in levels across the site and in particular sections of the northern boundary.
...the engineering plans by Cardno submitted with the [stage 2 DA] clearly identified level changes of up to 2.1m along the most northern roads in the site.
On 20 December 2011 Mr and Mrs Anderson lodged a further letter of objection to the retaining walls DA (AB 3 Tab 23).
That month the first villas in stage 2 were completed (Graham Hobbs [18]).
On 1 January 2012 34 deposits were held for villas in stage 2 (Graham Hobbs [22] and Annexure D).
On 3 January 2012 Mr Rossi's solicitor wrote to Living Choice and the Council regarding the validity of the stage 2 DA (280/2010/JP) (AB 3 Tabs 24, 25) and indicated that he had instructions to commence proceedings. On 10 January 2012 the Council's solicitor advised in reply that he was instructed that all mandatory considerations were assessed (AB 3 Tab 26).
On 11 January 2012 the summons commencing these proceedings was filed.
On 30 January 2012 Living Choice commenced earthworks for villas 204 - 210 (John Elliott 15.08.12 [7]).
On 31 January 2012 Mr Rossi's solicitor wrote a further letter of objection to the retaining walls DA (Anthony Rossi 5.07.12 Annexure AR-12).
On 9 February 2012 Living Choice commenced construction of a 600mm keystone concrete block wall (John Elliott 15.08.12 [12]).
On 10 February 2012 Living Choice excavated the trench along the Rossi boundary (Anthony Rossi 5.07.2012 [27]-[29]) and Mr Rossi observed pallets of blocks being placed on his land without his consent (Anthony Rossi 5.07.2012 [27]-[29]; Exhibit AR-1 photos 178-183).
On 13 February 2012 City Plan Services prepared a SEE for the s 96(1A) application for the amendment of general condition C (AB 2B Tab 50). The same day Mr Rossi's solicitor wrote to the Council's solicitors regarding unauthorised excavation for the keystone concrete block wall, absence of sedimentation controls, and requesting the Council to take action. (AB 4 Tab 75). He also wrote to Living Choice's solicitors raising unauthorised excavation for the wall; storage of materials upon the Rossi land without consent; absence of sedimentation controls; and requesting Living Choice give undertakings to remove items from the Rossi land, not to trespass on the Rossi land, and to cease works relating to fences and walls on the Rossi boundary (AB 4 Tab 76).
The next day, 14 February 2012, Mr Buckham visited the site and recommended Living Choice cease works in proximity to the boundary (AB 3 Tab 27 [pp 372-373]). On 15 February 2012 he visited the site and directed relocation of the safety fence (John Elliott 15.08.12 [9]). The same day Living Choice commenced Class 1 proceedings (10100 of 2012) against the deemed refusal of the retaining walls DA.
On 17 February 2012 a s 96(1A) application (280/2010/JP/B) to modify the stage 2 consent to delete general condition C was lodged and its determination is still pending. Also on that day the Council's assessment report on the retaining walls DA was prepared (AB 3 Tabs 10 to 12) stating that the works proposed differed from the design put forward originally with the stage 2 DA. The retaining walls DA was initially for 3.1m high retaining walls which was considered unsatisfactory. Subsequently Living Choice amended its application to include a landscaped batter which the Council considered was an improvement, nevertheless Living Choice did not provide a design that ameliorated impacts on neighbours to an acceptable level. The report states that the architectural plans submitted originally did not convey Living Choice's intended outcome along the Rossi boundary and in this regard were misleading. It notes that plan C804.4 sheet 1.04/P1 provided cross-sections C and D across the site including the boundary at issue but neither section identified a retaining wall. Cross-section D showed a falling batter from the proposed dwellings to the boundary which would appear to be finished ground level. These plans resulted in a favourable determination by the JRPP however if the actual situation had been identified in the architectural plans assessed by Council's planning staff, amendments to the scheme consistent with the SEE would have been required to ensure an appropriate transition to the neighbouring properties.
On 23 February 2012 installation of timber piles for foundations of villas 204 - 210 commenced. Mr Rossi states that this occurred after 28 February and before 7 March 2012 (John Elliott 15.08.12 [7], exhibit AR-1 photographs taken on 28 February and 7 March).
On 28 February 2012 the Council refused consent for the retaining walls DA (AB 3 Tab 28). That day Mr Rossi observed the wall being erected on the Rossi boundary (Anthony Rossi 5.07.2012 [30]; Exhibit AR-1 Photos)
In February 2012 construction of dwellings 204 - 210 began with the laying of the concrete slabs (Anthony Rossi 05.07.2012 [39] - [46]; Exhibit AR-1 Photos)
On 1 March 2012 Mr Rossi filed Points of Claim.
On 2 March 2012 Mr Hobbs, a director of Living Choice, met with Mr and Mrs Rossi on a without prejudice basis (Graham Hobbs [24]).
On 16 March 2012 Court-facilitated mediation in Class 1 and Class 4 proceedings occurred.
In March 2012 Living Choice was in breach of financial covenants (Graham Hobbs [6]).
Also in March 2012 the keystone concrete block wall collapsed (Anthony Rossi 05.07.12 [47]-[50]; Exhibit AR-1 Photos)
In April 2012 Mr Hobbs met with Mr Rossi.
On 17 April 2012 Living Choice lodged a s 82A review application requesting the Council to review its determination of the retaining walls DA, making amendments to the development described in that DA (s 82A review application) (AB 3 Tab 30). Development it considered exempt development being the keystone concrete block wall on the boundary was excluded.
On 19 April 2012 Mr Elliott met with Mr Rossi on the Rossi land (John Elliott 15.08.12 [13]).
On 24 April 2012 the Council's solicitors wrote to Mr Rossi's solicitor advising that the general conditions of consent section of the notice of determination issued on 23 October 2010 was not before them and did not form part of the consideration of the stage 2 DA by the JRPP, and therefore did not form part of the stage 2 consent. (AB 2B Tab 51).
On 30 April 2012 Mr Rossi filed Amended Points of Claim (APOC) which were served on 3 April 2012.
In May 2012 Mr Hobbs rang Mr Rossi to offer to purchase the Rossi land (Graham Hobbs [28]).
On 7 May 2012 Mr Rossi's solicitor wrote a letter of objection to the s 82A review application (Anthony Rossi 5.07.12 Annexure AR-14).
On 8 May 2012 the Council received Mr and Mrs Anderson's letter of objection to the s 82A review application (AB 3 Tab 32).
In early June 2012 retaining walls along the Rossi boundary and supporting dwellings facing the Rossi land were completed (Anthony Rossi 05.07.2012 [120] Exhibit AR-1 Photos).
On 6 June 2012 the Council issued a revised notice of determination of the stage 2 DA (280/2010/JP) dated 12 October 2010 excluding the general conditions of consent (AB 2B Tab 52).
On 26 June 2012 the Council's assessment report on the s 82A review application was considered at an ordinary meeting of the Council (AB 3 Tab 33). The Council changed its previous determination and resolved to grant consent to the retaining walls DA as amended subject to conditions (retaining walls consent).
On 28 June 2012 Mr Rossi filed and served a further amended summons. An amended summons was served on 18 May 2012. On 29 June 2012, Mr Rossi filed and served Further Amended Points of Claim (FAPOC).
In June 2012 Living Choice was in breach of financial covenants (Graham Hobbs [6]).
On 2 July 2012 the Council issued a notice of determination approving the s 82A review application for the retaining walls DA (110/2012/HA) (AB 3 Tab 34).
On 12 July 2012 proceedings number 10100 of 2012 were discontinued. Also that day Living Choice applied for a building certificate (15/2013/AEU) for the unauthorised keystone concrete block wall erected upon the Rossi boundary (AB 5 Tab 13).
On 15 August 2012 leases of 26 villas were settled and deposits were held on a further 25 villas in stage 2 (exhibit 6).
On 3 September 2012 the Council issued the building certificate (Exhibit 5).
A. Invalidity of stage 2 DA
Ground 1 - Failure in notification of stage 2 DA by the Council to Mr Rossi
The FAPOC filed on 29 June 2012 at par 10 - 11 state that Mr Rossi enjoyed a legitimate expectation that he would receive notification from the Council of the making of the DA but did not receive such notification. Section 79A of the EPA Act relevantly provides:
(1) Notice of a development application for consent to carry out advertised development is to be given in accordance with this Act, the regulations, the relevant environmental planning instrument and any relevant development control plan.
(2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.
Section 153 provides:
(1) Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served:
(a) in the case of an individual:
...
(ii) by sending it by prepaid post addressed to him or her at the address, if any, specified by him or her for the giving of notices or service of documents under this Act, or, where no such address is specified, at his or her usual or last known place of abode or his or her last known place of business,
...
(2) A notice or other document shall, in respect of a notice or other document sent by prepaid post in accordance with subsection (1) (a) (ii) or (b) (ii), be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post.
Evidence
Mr Rossi relied in part on his affidavits dated 5 July 2012 and 25 July 2012; and on affidavits of Mr Turnbull dated 1 July 2012 par 8 - 20, and 4 July 2012.
Mr Rossi's first affidavit states that the settlement of his purchase of the Rossi land took place on 2 February 2009. The rear or southern boundary of this land is also the rear (or northern) boundary of land owned by Living Choice (Rossi boundary). Mr Rossi purchased the land with the intention of retiring and living there with his family. The Rossi land is currently leased to a tenant and Mr Rossi resides in Kellyville. He stated that he did not receive any notice of the stage 2 DA at any time during the 14 days commencing 28 August to 14 September 2009 or any time thereafter at Kellyville. Mr Rossi went to the Council offices in June/July 2011 with his friend Mr Turnbull. He recalled Mr Turnbull asking a counter officer to search the notifications records regarding the Living Choice development and the counter officer saying, "A blanket notification was sent out for the development. 1A Edgecliff Road was included." When Mr Turnbull asked whether the notification was sent to Mr Rossi's Kellyville address, the counter officer said that it was sent to 1A Edgecliff Road, Glenhaven. About July 2011 Mr Rossi obtained copies of the plans and documents relating to the development consent and properly appreciated the magnitude of the proposed development. He recalled attending the Council and making enquiries of Living Choice about the development but did not recall the dates.
Mr Turnbull's first affidavit states that in early to mid June 2011 he accompanied Mr Rossi to the Council. Mr Turnbull saw Ms Charles behind the counter and told her that Mr Rossi was the owner of the property at 1A Edgecliff Road, and that he did not know what was going on with the retirement village development on the land behind his. He asked Ms Charles to check whether the Council sent Mr Rossi a notice advising him that a DA had been lodged. Ms Charles worked on her computer then turned to Mr Turnbull and stated that neighbour notifications were sent out for a development consent for a retirement village. He recalled that Ms Charles said a letter was sent out to 1A Edgecliff, Glenhaven not to Mr Rossi's Kellyville address. Mr Turnbull's second affidavit disagreed with the record of that conversation as set out in Ms Charles' affidavit and confirmed his recollection of the conversation. He also disputed that a conversation with Ms Charles occurred on Monday 28 May 2012 and said it occurred mid afternoon on Wednesday 30 May 2012. Mr Turnbull recalls having a conversation with Mr Rossi on 28 May 2012 in which Mr Rossi told him that he had received notification of a recent DA. Mr Rossi requested that Mr Turnbull attend the Council to make another enquiry on his behalf about notification of the original stage 2 DA. When he attended the Council chambers on 30 May 2012 Ms Charles showed Mr Turnbull the computer screen of the names and mailing addresses of the owners of affected properties who were notified. Mr Turnbull saw Mr Rossi's name and his mailing address (his Kellyville address).
The Council relied on the affidavits of three staff: Ms Charles, a customer service officer, dated 13 June 2012; Ms Josephson, the rates team leader, dated 19 June 2012 and 13 August 2012; and Mr Buckham dated 18 June 2012. All three deponents gave oral evidence.
Ms Charles disagreed with Mr Turnbull's record of their conversation in mid-June 2011. She had said that according to the computer records the notification letter was sent to Mr Rossi's mailing address in Memorial Avenue, Kellyville. She denied saying to Mr Turnbull that the notification letter was sent to 1A Edgecliff Road, Glenhaven. On 28 May 2012 Mr Turnbull attended the Council chambers and asked whether, and on what date, Mr Rossi had been notified of the stage 2 DA for the retirement village. Ms Charles searched the Council's electronic system and found that the Council had sent a letter of notification of the stage 2 DA on 28 August 2009 to Mr Rossi's Kellyville address. Annexed to her affidavit is a notice of proposed development letter (notification letter) containing a list of the affected properties and the owners' mailing addresses, including Mr Rossi's Kellyville address. Ms Charles showed Mr Turnbull a list of affected properties without personal information of the owners. Mr Turnbull also wanted to know when the Council was notified that ownership of the Glenhaven property had changed. Ms Charles looked up the electronic system and told Mr Turnbull that the notice of sale/transfer for the property was scanned into the system in March 2009. A copy of that document was annexed to her affidavit.
Ms Josephson's first affidavit states that she is responsible for managing and supervising the Council's rates team and records. Ms Josephson reviewed the Council's records for Mr Rossi whose mailing address for both properties is recorded as his Kellyville address. Ms Josephson also attached a copy of the notice of sale/transfer to Mr Rossi for the Glenhaven property. It is date stamped 4 March 2009 and the printed address for service of notices to Mr Rossi, his Glenhaven address, is crossed out by hand and marked with his Kellyville address. She explained that the date stamped is when the notice of sale/transfer was scanned, and the information relating to it entered into the Council's electronic system. The handwritten notes show that a rates team member contacted the purchaser's solicitor to ascertain the preferred postal address for Council's correspondence. Ms Josephson stated that the Kellyville address would have been entered into Council's system as the mailing address for Mr Rossi as owner of the Glenhaven property, no later than 4 March 2009. Ms Josephson's second affidavit clarified a partially correct statement in her earlier affidavit about when a rates team member would call a purchaser's solicitor to ascertain a purchaser's mailing address.
In oral evidence Ms Josephson said that the reason she prepared her second affidavit was because she realised when she reread her first affidavit in preparation for the hearing that she had omitted some information. She confirmed that there were two major reasons a rates team member would call a purchaser's solicitor to ascertain a purchaser's mailing address. Firstly, if a property is considered to be vacant land and secondly, if a purchaser's name is in the Council's name and address register already. Ms Josephson suggested that the Council's staff member contacted Mr Rossi's solicitor to confirm his mailing address because his name and address were already on the Council's electronic system. Ms Josephson confirmed that the handwritten notations were not on the notice of sale as received from Land and Property Information but were made by a Council staff member. She said that Council's records of mailing addresses were only changed if requests were made in writing. There were no such written requests on the Council's system from Mr Rossi. Referring to a print out of a computer screen of the Council's electronic system at p 17 of Mr Buckham's affidavit, Ms Josephson stated that as at 19 January 2009 the default address for Mr Rossi was his Kellyville address. As at 3 March 2009, the default mailing address regarding Mr Rossi's Glenhaven property was his Kellyville address. Ms Josephson confirmed that the notice of sale/transfer was marked up on 3 March 2009 and scanned into the system on 4 March 2009. She was certain it was marked up on 3 March 2009 because the print out of the computer screen indicated that that was when Mr Rossi's Kellyville address became the default mailing address for his Glenhaven property. She denied that his Glenhaven address was ever entered as a mailing address for Mr Rossi.
Mr Buckham's affidavit states that he was responsible for the notification of the DA. Upon receiving the stage 2 DA he formed the view that the development was required to be notified in accordance with the provisions of the Baulkham Hills Development Control Plan (the DCP). Mr Buckham described the Council's standard notification procedure which he followed. As part of this procedure Mr Buckham placed a tick on the properties in the surrounding area to be notified of the application, including Mr Rossi's Glenhaven property. Notification occurred from 28 August to 14 September 2009. On 28 August 2009 notification letters to a number of properties surrounding the site were sent out by prepaid post. The Council's procedure is to keep the notification letter and the list of properties to which the letter was sent. The notification letter annexed to Mr Buckham's affidavit contains a list of affected properties and mailing addresses, including Mr Rossi's Kellyville address. Also annexed to Mr Buckham's affidavit are printouts of screens of Council's electronic system which contain the details for sending correspondence to property owners. Mr Buckham interprets the screens as indicating that as at 19 January 2009 the default address for Mr Rossi was his Kellyville address. The address for Council's correspondence regarding the Glenhaven property since 3 March 2009 was his Kellyville address. Mr Buckham's affidavit also annexes a rates notice for Mr Rossi's Glenhaven property dated 17 July 2009 which was sent to his Kellyville address.
In oral evidence Mr Buckham stated that he knows a letter was sent because the standard practice is that the Council's group support officers prepare a pro forma letter with the attached names and details, print the letters and put them in prepaid envelopes which are placed in the mail bag to be posted. Referring to a print out of electronic notes which became exhibit 1A, Mr Buckham explained it recorded Ms Sparkes on 28 August 2009 requesting him to check if all the properties were notified as requested. He is recorded as responding "OK" on 31 August 2009.
Mr Rossi's submissions
Section 153(1)(a)(ii) requires sending of notices by prepaid post and there is no direct evidence that the Council sent a notification by prepaid post to Mr Rossi. Mr Rossi did not receive any notification. The evidence in Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170 at [55] can be contrasted with this case. If the Council wished to establish a certain procedure was undertaken it should have brought evidence from the group support officer responsible for mailing letters, as occurred in Sisic. The strong inference arises that no correspondence was sent to the Kellyville address. Mr Rossi accepted that the Council's database showed his Kellyville address as the address for correspondence. Notification and advertising requirements are mandatory and conditions precedent to the exercise of statutory power to determine a development application: Simpson v Wakool Shire Council [2012] NSWLEC 163 at [83]. Failure in proper notification ought to lead to invalidity of the development consent. This failure is not amenable to an order under s 25B of the Land and Environment Court Act 1979 (the Court Act) as the Court cannot know whether the JRPP would have made the same determination of the DA if the Council had complied with the statutory requirements for notification: Simpson at [89]. The Council did not bring forward a witness responsible for addressing or posting the notification letter. The inference is that any such evidence would not have assisted the Council: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 321. The presumption of regularity contended for by Living Choice has no role to play as it deals only with mechanical and procedural matters. Given the importance of notification of the DA, it is not such a matter; see Preston J in Simpson v Wakool Shire Council. That Mr Rossi did not receive notice rebuts the presumption in any event.
Living Choice's submissions
Direct evidence was brought by the Council that notification of the DA was effected by prepaid post to Mr Rossi at his Kellyville address being the one he specified to the Council for the giving of notices. The Court should draw the inference that the notice was sent to this address and no other inference arises to the contrary on the evidence. The evidence establishes that the Council had a standard procedure for the entering of the mailing address to which notices and other correspondence from the Council should be sent, as identified in the affidavit of Ms Josephson dated 19 June 2012 as amended by her affidavit of 13 August 2012. The Council also proved that it has a standard notification procedure for DAs which included placing ticks and dots on a map identifying the properties to be notified and those which submitted objections, as identified in Mr Buckham's evidence. The evidence of payment of rates by Mr Rossi for 1A Edgecliff Road Glenhaven for rate notices sent to his Kellyville address as referred to in Mr Buckham's and Mr Rossi's evidence further confirms the Council's notification procedures. The presumption of regularity applies in light of the Council's evidence.
Council's submissions
The evidence discloses that rates notices and correspondence relating to Mr Rossi's Glenhaven property were sent to his Kellyville address. Mr Buckham's evidence demonstrates full compliance with s 153 of the EPA Act. In his affidavit he identifies the standard procedure for notification of DAs which was followed in this case. The Council's records show a form notification letter was sent in 2009 to 79 properties at the addresses identified for mailing in the Council's records, including for the Rossi land to Mr Rossi's Kellyville address. The act of posting a notice by prepaid post completes the act of service in accordance with s 710 of the Local Government Act 1993 which is in the same terms as s 153 of the EPA Act: Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361 at [32]; [37]; Sisic at [70]. It is irrelevant that Mr Rossi did not in fact receive the notice as personal service of a notification letter is not required having regard to the deeming provision in s 153(2).
The FAPOC appears to plead that there was a breach of a common law procedural fairness obligation, separate from compliance with statutory notification requirements. The Council notes that the discharge of the Council's statutory notification obligation satisfied any common law obligation of procedural fairness: Sisic at [79] - [82].
No failure in stage 2 DA notification
It is agreed that the stage 2 DA was for specified development to which s 79A(2) applies and must be notified in accordance with the relevant DCP, Ch 7 Pt A requiring the Council to notify all adjoining landowners. This includes the Rossi land. Section 153(1)(a)(ii) of the EPA Act requires any such notice is to be sent by prepaid post to the address specified for the giving of notices. The notification period was in August/September 2009. Mr Rossi bought the Rossi land in February 2009. Mr Rossi then lived at another property in Kellyville.
Mr Rossi's undisputed evidence is that he did not receive any notice before or after the JRPP's determination of the stage 2 DA from the Council at his Kellyville address or anywhere else. The Council bears the onus of proving on the balance of probabilities that the letter of notification was posted to a specified address in accordance with s 153(1)(a)(ii). If that onus is discharged the presumption of receipt at the time a document would be delivered by ordinary post arises under s 153(2). It is not material to the discharge of the Council's onus under s 153(1)(a)(ii) or the operation of s 153(2) whether Mr Rossi actually received the notice as personal receipt is not a statutory requirement.
The first matter to consider is the evidence of the Council as to its records of the mailing address for the Rossi land at the time of the August/September 2009 notification period. Ms Josephson's two affidavits outline the Council's standard processes for identifying firstly the postal addresses for properties. Secondly, she identifies in her written evidence and by reference to the Council's records the circumstances specifically in relation to Edgecliff Road Glenhaven in 2009 following notice of the sale of the Rossi land to Mr Rossi. The postal address was then identified in the Council's records as the Kellyville address. This evidence proves the mailing address in the Council records for the Rossi land was the Kellyville address at the relevant time. This was the address specified for the purposes of s 153(1) of the EPA Act. The different versions of the conversations between Ms Charles, Council officer, and Mr Rossi and Mr Turnbull at the counter at the Council chambers in June and July 2011 are irrelevant. They occurred well after the fourteen day notification period from 28 August 2009 to 14 September 2009 when notice of the development consent was posted by the Council. It is unnecessary to resolve any of the discrepancies in that evidence.
The next matter to consider is whether the Council has discharged its onus of proving that the relevant notice was posted to the Kellyville address in 2009. Mr Rossi submitted that direct evidence of compliance with s 153(1)(a)(ii) was not adduced by the Council. The inference was therefore available that any such evidence would not have assisted the Council per Jones v Dunkel (1959) 101 CLR 298 at 321. There is no evidentiary requirement that the Council produce a person responsible for addressing and posting the actual letter sent to Mr Rossi as the only means by which compliance can be established by the Council. Sisic did not require such evidence. That absence does not give rise to any Jones v Dunkel inference that such evidence would not have assisted the Council. Such a requirement is impractical in any event given the voluminous number of notifications any council is likely to send in compliance with its statutory obligations under the EPA Act. Further, a substantial period of time may elapse between an alleged failure of notification and a court hearing requiring proof of posting, in this case a number of years. The likelihood of a particular council employee who posted a particular letter continuing in council employment is likely to diminish over time.
What is necessary from the Council is evidence in sufficient detail of the notification system employed by it to establish on the balance of probabilities that notification was sent by prepaid post to Mr Rossi at the Kellyville address. In the absence of direct evidence the Council's evidence must give rise to a reasonable inference of posting by the Council. The civil standard of proof is on the balance of probabilities, as set out in s 140 of the Evidence Act 1995. Section 140(2) states that a court may take into account the nature of the cause of action, the subject matter of the proceedings and the gravity of the matters alleged. The consideration of these factors are discussed in Stephen Odgers, Uniform Evidence Law, 10th ed (2012) Thomson Reuters at [1.4.100] in the context of cases which consider fraud in particular. Odgers concludes at p 866-867:
Subject to resolution of the issue whether "actual persuasion" is required, where the party bearing the onus of proof relies on circumstantial rather than direct evidence it is sufficient in a civil case that the circumstances raise a more probable inference in favour of what is alleged. It is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found. However, all the circumstances must be considered together at the final stage of the reasoning process and where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved. The standard of proof is not met if the circumstances appearing in evidence do not give rise to "a reasonable inference", but at most give rise to "conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture".
In light of the absence of direct evidence, the Council seeks to establish its case on the basis of evidence from which it says inferences can reasonably be drawn. In Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 the High Court considered whether conclusions of a board were a reasonable inference open on the evidence or conjecture alone. Stephen J cited Holloway v McFeeters (1956) 94 CLR 470 and Jones v Dunkel Dixon CJ at p 305. At 161-162, Stephen J stated that:
This is not a case of mere competing possibilities, no instance of "a choice among rival conjectures", such as Dixon C.J. spoke of in Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298, at p 304 . Here there exists what Dixon C.J. there referred to as "evidence supporting some positive inference . . . an inference which arises as an affirmative conclusion from the circumstances proved in evidence". His Honour went on to cite a passage from the unreported decision of five members of this Court in Bradshaw v. McEwans Pty. Ltd. Unreported; 27 April 1951. which is rather more fully reproduced in the report of Holloway v. McFeeters [1956] HCA 25; (1956) 94 CLR 470, at pp 480-481 ; speaking of civil cases, the passage reads:
"you need only circumstances raising a more probable inference in favour of what is alleged . . . where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687 . All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood'.
At p. 305 of Jones v. Dunkel Dixon C.J. added these observations:
But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.
As held in Girlock set out above, the drawing of inferences in the absence of specific evidence requires that there be adequate facts on which to base such inferences other than simply that there is a probability of events occurring. The evidence must do more than give rise to equally probable outcomes.
Mr Rossi's counsel criticised the Council's evidence because the group support person who would have arranged for the physical posting of the letters on Mr Buckham's instructions did not give evidence, unlike Sisic where a council document management officer gave evidence of her role in the system of posting employed by a council in greater detail than Mr Buckham. I must consider whether the Council's evidence discharges its onus of proof in these proceedings.
Mr Buckham's written and oral evidence about the Council's notification system for the stage 2 DA was that neighbouring properties to be notified were identified on a marked up plan, a list of addresses showing the property to be notified and the mailing address for notification of that property drawn up, and notification letters were sent to these properties in prepaid envelopes by the Council's group support officers. The relevant Council records including the notice and mailing list of properties to be notified were annexed to his affidavit and were produced by the Council in its file documents. The Council's list of addresses for notification for the Rossi land identifies the mailing address as the Kellyville address. Mr Buckham gave further oral evidence that on 28 August 2009 Council employee Ms Sparkes sent a request asking the recipient to "check if all properties notified as requested". Mr Buckham responded on 31 August 2009 with the answer OK meaning he had checked the map and notice and was satisfied that all properties had been notified as requested.
In addition to the evidence of Mr Buckham, the Council's file shows that objections were received as a result of the notification process. Two objections were received from people who received the notice. Objectors included the Andersons, Living Choice's neighbours on the western boundary. They were notified at an address that was not the address of their property, as can be seen in the Council's record of properties notified in the Council's bundle of documents (Volume 2B Tab 1). The Andersons provided a letter of objection to the Council dated 14 September 2009.
Mr Rossi stated that he did not receive correspondence from the Council at his Kellyville address about the Living Choice land next to the Rossi land until July 2011, following his approach to the Council about what was happening on the Living Choice land. The evidence does establish that one rate notice for Edgecliff Road Glenhaven (the Rossi land) posted to 32 Memorial Avenue Kellyville was paid on 19 August 2009. Subsequent rate instalments sent to the Kellyville address for the Rossi land were also paid. This provides further support that the Council did send other business documents for the Rossi land to the Kellyville address. I consider the whole of the Council's evidence establishes by reasonable inference on the balance of probabilities that the notice was posted by the Council to Mr Rossi's Kellyville address during the notification period in 2009.
As I consider the Council has discharged its onus of proof of posting under s 153(1), the presumption of posting of the letter of notification of receipt of the stage 2 DA by the Council arises under s 153(2). It is not necessary to consider whether a presumption of regularity arises in relation to the posting of the notice in accordance with s 153(1) contrary to Living Choice's submission. This ground of judicial review has not been established by Mr Rossi.
Ground 2 - Failure in assessment by the Council and determination by JRPP of stage 2 DA (FAPOC par 22-30)
The land along the Rossi boundary (122.815m) slopes downwards from east to west with a loss of height of approximately 8m. The difference in height between the Rossi land and the Living Choice land is less at the eastern end and increases towards the western end of the Rossi boundary. The only cross-section (D) shown in the plans submitted with the DA is at the eastern end of that boundary where the difference in levels between the respective blocks is small. That cross-section shows that the intended boundary treatment is a shallow grading to the Rossi boundary with no retaining wall identified. The difference in height between the two blocks at the western end of the boundary is markedly greater according to Mr Rossi's case. The FAPOC par 22 identifies the situation very near the Rossi boundary after the stage 2 DA was determined by the JRPP and the difference in height particularised in the FAPOC par 22 is between villas at the western end of the Rossi boundary with an approved finished floor level (FFL) of relative level (RL) 135.90 and the natural ground level of the Rossi land immediately adjacent to the villa of RL 132.
The height difference resulted, according to Mr Rossi's case, in the need for the placement of a large amount of fill on the Living Choice land in order to build several houses at the FFL identified in the approved plans which was not assessed as part of the stage 2 development consent process. Living Choice submitted that the relevant ground level is the top of the dam wall in the western corner. Only 500 mm of fill was required in order to achieve the approved levels (Mr Buckton's affidavit 11 July 2012). Mr Rossi submitted in response that the higher level of the dam wall is not uniform across that corner and the dam was filled in so that substantial areas of fill were required in order to achieve the approved FFL. In any event, substantial amounts of fill were necessary given the height difference between the Living Choice land and the Rossi land.
Paragraph 23(a)-(m) of the FAPOC alleges numerous failures to consider by the Council and to determine by the JRPP several provisions in the Seniors SEPP (clauses 30, 32, 33, 34, 36) in relation to the difference in height between the Living Choice land and the Rossi land, the placement of fill and its retention, the location of existing trees, amenity impacts on the Rossi land, land form, visual appearance, landscaping, stormwater and site analysis plan. Also raised (par 23(n)) was whether the dwellings were designed with regard to site conditions and to minimise the impact on landform, as required by Baulkham Hills Resident Development Control Plan (BH Resident DCP) Part C Section 3 cl 2.14.7. These fourteen issues were identified as mandatory relevant matters which were required to be assessed under s 79C of the EPA Act. Paragraph 24 of the FAPOC identifies a number of works Mr Rossi alleges have been carried out since development consent was granted.
An alternative case is found in par 25 - 27 and 29 of the FAPOC which allege that the Council (as a consent authority) was obliged under s 79C, but failed, to assess and consider the fill approved for placement on the Living Choice land, its retention and how that would impact on the amenity and privacy of the Rossi land. Paragraph 28 states that the Council was obliged to consider the conditions necessary to ameliorate the environmental impact of the fill, but failed to do so in breach of s 79C. In the alternative par 29 alleges that the Council and the JRPP deferred essential considerations about the specified matters in the assessment and determination process. Paragraph 30 alleges that the Council's assessment of the DA was manifestly unreasonable, irrational and arbitrary, not a valid exercise of statutory power and beyond jurisdiction. The same paragraphs allege that the JRPP also as a consent authority failed to properly determine the parent DA for all the same reasons.
1. Is Council's assessment function amenable to judicial review proceedings?
The response to this ground by the Council requires at the outset consideration of the statutory framework for the operation of a council undertaking an assessment function where the function of determining whether to grant development consent lies with the JRPP. The Council has been joined as a party and is the subject of pleadings outlined above in the FAPOC par 23 - 30. No relief is sought against the Council in the amended summons in relation to this part of the case. The Council put in issue whether it was properly joined as a party.
The EPA Act provides:
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,
...
(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).
Absence of prejudice to Mr Rossi
By letter dated 20 June 2012 Living Choice advised Mr Rossi of its willingness to replant trees of a similar species and of an equivalent size to those removed from the Rossi land during tree clearing operations in 2011. By a letter dated 11 July 2012 Living Choice invited Mr Rossi to nominate locations within the Rossi land where he would like the offered replacement trees to be planted. Contrary to Mr Rossi's submission, no development consent would be required to plant trees on the Rossi land. The excavations which extended beneath the toe of the keystone concrete block wall onto the Rossi land was a de minimus incursion.
Prejudice to Living Choice
Living Choice did not escalate the rate of work along the Rossi boundary. Because Living Choice delayed construction so long, trying to sort out the dispute with Mr Rossi, by the time proceedings commenced Living Choice had no choice but to continue building in order to meet both its contractual commitments and cash flow. It cannot be said that Living Choice sought to reward itself by the escalation of the works. Living Choice is not a developer and is under financial stress. Hardship to Living Choice is not a consequence of its own making. Mr Hobbs has given evidence about the cost of construction, cost of compliance with prayer 7 of the further amended summons, if made, and the impact of prayer 6, if made.
Mr Rossi's submissions
Mr Rossi submitted that the substantial impacts on his amenity are a considerable prejudice to him and his family. He commenced proceedings when he considered he would be unable to resolve matters with Living Choice. He considered that Living Choice acted deliberately to build on the Rossi boundary to aggravate the financial impact of any demolition orders made by the Court. This assertion is denied in the evidence of Living Choice.
That Mr Rossi's company did plastering work on stage 1 is irrelevant. Mr Rossi's evidence is that the first load of plasterboard was delivered to stage 1 on 14 July 2008. The topography of the Rossi land and Living Choice land where looking to the east at stage 1 of the Living Choice development was sloping from a ridge along the fenceline. The scale of development in stage 1 is single storey buildings amongst trees. On the southern boundary was an extensive line of pines measuring from 6 - 8m in height so that what was occurring on the stage 2 land could not be readily seen. Mr Rossi had no reason to believe that the stage 2 development would result in the environmental outcome that Living Choice caused to be developed along the Rossi boundary. Mr Rossi received a site plan for stage 2 for tendering purposes but this did not show elevations in any event. Mr Rossi acted promptly once he became aware of what was intended on his boundary.
Mr Rossi told Mr Buckton that he believed the stage 2 consent was invalid on 11 November 2011. He denies being opportunistic and having nominated his land as a site for increased dwelling production.
Living Choice did not identify all relevant aspects of its proposal in the stage 2 DA, did not comply with verbal directions from Council officers to stop work along the Rossi boundary on 1 and 13 July 2011 as confirmed in the letter from Mr Buckham to Living Choice dated 15 November 2011. These actions deprived the Council and Mr Rossi of any opportunity to have the development form on the Rossi boundary altered to be more sympathetic to the surrounding rural area.
Living Choice did not identify all relevant aspects of its proposal in the stage 2 DA, and did not comply with verbal directions from the Council officers to stop work along the Rossi land on 1 and 13 July 2011 as confirmed in the letter from Mr Buckham to Living Choice dated 15 November 2011 which deprived the Council and Mr Rossi of any opportunity to have the development form on the boundary altered.
Partial finding on discretion
The Court has power to make declarations of invalidity of administrative decisions in judicial review proceedings but whether it does so is a discretionary matter. The Court also has wide discretion to craft relief to remedy breaches of the EPA Act under s 124 which provides:
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.
...
I considered the wide discretion of the Court under s 124 of the EPA Act in Glaser v Poole [2010] NSWLEC 143. I held at [60] - [63]:
60 The exercise of discretion in this matter is broad as confirmed in Sedevcic by Kirby P (other members of the Court concurring) and also by the Court of Appeal in Fat-sel. The guidelines for the exercise of discretion articulated by Kirby P in Sedevcic include that the discretionary power of the Court is wide, similar to that of the Supreme Court in its equitable jurisdiction. The discretion is unfettered and can include whether the breach is merely technical, whether there was delay in commencing proceedings by the council in that matter or had a beneficial effect on the environment. The discretion is concerned with the enforcement of a public duty imposed by or under an Act of Parliament. The obvious intention of the Act is that normally its terms will be complied with so that if exceptions are allowed in the exercise of discretion under s 124 the orderly enforcement of the Act is undermined.
61 Fat-sel confirmed the broad approach to discretion available to the Court under s 124 Kirby P stating at 192 that:
Nevertheless, it is important to appreciate the wide scope and purpose of the discretion conferred by s 124 of the Act. Clearly, it is not a warrant to set at nought the complicated and sensitively balanced provisions of the legislation, substituting for the operation of the law laid down by Parliament, the personal opinions of the judge hearing the case. On the other hand, it would be equally erroneous to ignore the discretion or to give it an unduly restricted operation. It is just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are other parts. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; 63 LGRA 360, I collected the authorities and the principles which are applicable to the approach to be taken by a judge exercising the discretion conferred by s 124(1). That discretion was a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction.
62 In Tynan v Meharg the Court of Appeal considered whether an injunction should be mollified or softened to enable an application to be made to regularise an illegal structure referring to the principles in Sedevcic and Fat-Sel and considered in turn the breaches of the planning law, whether these were mere technical breaches, hardship and other matters personal to the appellants, harm to the environment, whether the laws were deliberately flouted, whether any injunction should be mollified by suspending its operation to allow the appellants to make an application to the Council to regularise the situation, the public interest in upholding the law and seeing that it is obeyed.
63 The exercise of the Court's discretion must reflect the particular circumstances of the case before it and the weight to be attributed to matters raised is a matter for the Court.
Issues identified as relevant to the exercise of discretion in the authorities canvassed in Glaser v Poole include upholding the integrity of the planning system as provided in the EPA Act as an important consideration. The findings of failure to comply with the EPA Act I have made collectively are more than technical breaches of the Act.
I do not intend to make any declarations or orders in this judgment before further consultation with the parties as to whether I should make any declarations and orders at all and, if so, what the appropriate terms of those may be. The Court is mindful that only part of the area the subject of the stage 2 consent is the subject of these proceedings. I am also required by s 25E of the Court Act to consider making an order under Div 3 of the Court Act instead of declaring or determining that a development consent to which that Division applies is invalid whether in whole or in part. Orders can be made under s 25B of the Court Act suspending the operation of the consent in whole or in part and specifying terms compliance with which will validate the consent.
Having heard extensive evidence and submissions on matters relevant to discretion I consider I should make some findings relevant to the exercise of discretion in the event I do determine finally to make any declarations and/or orders.
I accept that the development close to the Rossi boundary with villas 206-210 located at an increasing elevation above Mr Rossi's property have a substantial impact on the amenity of Mr Rossi's land and on his family. There is now a substantial change from the previously rural outlook which the seniors housing development does not reflect. Because of the failure to consider matters which impact on that boundary in the stage 2 DA approval process there is considerable prejudice to Mr Rossi which is now ongoing if the development remains as is. This suggests some relief should be granted to Mr Rossi in the absence of disentitling conduct.
Is demolition of curtain walls and villas appropriate?
The consequential orders (prayer 7 (a) and (b)) seek removal of fill on Living Choice land for 50m from the Rossi boundary and removal of all buildings in that area including structures, meaning villas 204-210 and the curtain walls. I understand demolition orders are actually sought in relation to villas 206-210. I will resolve now whether I would be minded to make such orders as these are by far the most substantial sought and have the greatest negative impact on Living Choice and other parties. The curtain walls and villas were largely erected in 2012 after the commencement of these proceedings in January 2012.
The villas built along the Rossi boundary were approved in the stage 2 consent and are built at the FFLs approved by the stage 2 consent. The curtain walls supporting the villas were not the subject of the stage 2 consent and were built without development consent, given their completion before the retaining walls consent was granted (which I have found to be invalid in any event).
Some delay in commencing proceedings by Mr Rossi
Mr Rossi did not receive notification of the stage 2 DA from the Council which I have found was posted to him in compliance with the EPA Act. He was not then living at the Rossi land and was not in a position to make an objection about the proposed development to the Council in the timeframe provided in 2010 for objections to be made. He did not attend any meeting held by the JRPP in relation to the project. His concerns were not therefore able to be considered by the Council or the JRPP.
The stage 2 consent was granted on 23 September 2010 and covers a large area of land. A construction certificate was issued on 20 June 2011. Discussions about a temporary fence were held with Mr Rossi in June 2011. Earthworks commenced near the Rossi boundary in June 2011. Mr Rossi met with Mr Elliott in June 2011 to discuss Mr Rossi's company tendering for plastering work on stage 2. The pines on the Rossi boundary were removed in July 2011. Following concerns raised by Mr Rossi and the Andersons about Living Choice's proposals for retaining walls on their boundaries the Council became involved which lead ultimately to the retaining walls DA being lodged with the Council on 2 August 2011. Mr Rossi's solicitor wrote to Living Choice on 3 January 2012 and indicated that he had instructions to commence these proceedings. These proceedings were commenced on 11 January 2012. Living Choice commenced earthworks for villas 204-210 on 30 January 2012 and concrete slabs were laid for these from February 2012. Mr Rossi stated that he first became aware and concerned about the work on the Living Choice land on and close to the Rossi boundary in June and July 2011. At that stage preliminary earthworks were commencing on the Rossi boundary.
Living Choice's submissions addressed at length circumstances which suggested that Mr Rossi should have been aware of what was happening near the Rossi boundary on the Living Choice land before mid 2011 but I do not intend to canvass this material in detail. No conduct was referred to which suggested that Mr Rossi should have become aware earlier of the extent of the development intended on the Rossi boundary. I would however expect that Mr Rossi as a prudent purchaser would have been aware that a seniors housing development had been approved on the Rossi boundary in 2003. Proceedings were commenced on 11 January 2012 after unsuccessful negotiations with Living Choice's employees and director about what should occur on the Rossi boundary. Given that building work in reliance on the stage 2 consent had already commenced by Living Choice time was of the essence. While I do not consider Mr Rossi unduly delayed in commencing these proceedings, the earlier the proceedings were commenced the better in these circumstances so that I consider some delay occurred. Of far greater moment however is the fact that no interlocutory relief was sought by Mr Rossi given the ongoing building work which has continued since the commencement of proceedings.
No interlocutory injunction sought
Mr Rossi did not seek an interlocutory injunction from the Court restraining the carrying out of work by Living Choice pursuant to the stage 2 consent or the retaining walls consent granted in July 2012. Mr Rossi's counsel quoted extensively from Hoxton ParkResidents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 particularly the favourable weighing up by the trial judge of submissions from the applicant that the respondent entered into contracts for building work after proceedings were commenced or at least while an appeal was pending, without provision for relief if the consent were to be declared invalid. The respondent entered into contracts knowing it was at risk if the challenge was successful. The Court should not sanction or encourage the development of a practice whereby respondents escalate works during litigation in order to gain a forensic advantage in relation to obtaining an exercise of discretion in their favour. The particular focus of that case was work done between Biscoe J's decision in favour of the applicant that a development consent was invalid, and the outcome of an appeal in the Court of Appeal on the issue of whether the Class 4 proceedings were time-barred. Further, at [23] Biscoe J noted there was no application for an interlocutory injunction in circumstances where the respondent and the council agreed to give notice of commencement of the particular part of the project which was the focus of the applicant's court challenge.
Each case must be assessed on its own facts and those in Hoxton Park are markedly different to those in this matter. Here Mr Rossi did not apply for an interlocutory injunction to restrain building work conducted in reliance on the stage 2 consent early in 2012, and substantial building work including construction of curtain walls and villas continued in reliance on the stage 2 consent while proceedings were on foot. No order was made for expedition of the proceedings. The proceedings, having been set down for four days in August 2012, took eleven days over five months. This greatly hindered the ability of the Court to deliver a prompt judgment given the complexity of the issues raised and the length of time over which these were argued.
Mr Rossi's counsel submitted that Mr Rossi did not have the resources to offer an undertaking as to damages as is generally required if such an order is sought. I have no detailed evidence before me about Mr Rossi's financial position to enable me to adequately test that proposition. In the absence of evidence to support that submission, I am not able to assess whether Mr Rossi's decision not to seek an interlocutory injunction was reasonable. Mr Rossi criticised Living Choice for continuing with building work and entering into long term leases for some of the villas on the Rossi boundary while these proceedings were on foot and submitted that Living Choice acted unreasonably in doing so. Living Choice was entitled as a matter of law to rely on the stage 2 consent and the retaining walls consent unless these are declared invalid by a court. The evidence of Living Choice's director Mr Hobbs identified the financial imperatives facing Living Choice if it did not continue with the development. There is no evidence that Living Choice altered its building program to accelerate building on the Rossi boundary once court proceedings had commenced. The staging of work over the entire site would have been determined before mid 2011. Living Choice's decision to continue with building work in reliance on its stage 2 consent is not disentitling conduct which weighs against it in the balancing exercise I must undertake.
These observations cannot apply to the curtain walls which were not the subject of the stage 2 consent and were already built by the time the retaining walls consent was approved. The essence of the issue to be considered therefore is whether the demolition of the curtain walls is appropriate in all the circumstances given that requires demolition of the approved villas which sit on top of these.
Financial and other impacts of orders to demolish villas on Living Choice and third parties
Related to the previous topic is the financial impact of orders for demolition if made in relation to the curtain walls and villas 206-210. The financial impacts on Living Choice would be substantial as the removal of five completed villas (206-210) and the curtain walls on which they stand is estimated to cost as much as the cost of building them, without taking into account any planning and construction of replacement buildings. The difficult financial position of the company was identified in the evidence of Mr Hobbs. While he was cross-examined about the substantial assets referred to in the company's financial returns I do not consider his evidence in this regard is undermined.
An additional important consideration is that some villas are leased and occupied and any such orders would therefore impact on third parties. According to the evidence of Living Choice many of the residents are elderly given that this is a seniors housing development, and must sell their homes in order to fund entry to the development. At the conclusion of the extended hearing on 13 December 2012 Living Choice advised that villas 204, 206, 207 and 208 were leased for 99 years. Letters of intent had been entered into for villas 205 (on 11 June 2011), 209 (on 28 April 2012) and 210 (on 6 July 2010). Under a letter of intent, a $5,000 deposit is paid and is refundable on demand if no binding lease is entered into.
Other factors
One factor weighing against Living Choice is that it did not comply with verbal requests or directions of Council officers, the evidence is unclear, to stop work on the Rossi boundary in July 2011. It is unfortunate that the Council did not issue a formal notice and/or enforce the verbal directions if issued at that point given the officers' expressed concerns about the development form on the Rossi boundary. Regardless, as Living Choice submitted, the Council did not issue a written stop work order as it could have and ultimately approved a boundary treatment in the retaining walls consent which means that the Council assessed that amended DA as satisfactory. While I have found that was not assessed as it should have been under the Seniors SEPP, from Living Choice's perspective it serves as evidence of approval for landscaping along the Rossi boundary which satisfied the Council.
Living Choice is not responsible for the fact that Mr Rossi did not receive notice of the lodging of the stage 2 DA with the JRPP/Council.
Weighing up these various factors in what is a finely balanced equation, I can conclude that I would not exercise my discretion to require demolition of the curtain walls and consequently villas 206-210.
Extent of other work done without development consent
I have found that development has been carried out without development consent in several respects in relation to the Rossi boundary on both Rossi land and Living Choice land. That development when considered in combination warrants the making of ameliorative orders by the Court. Living Choice submitted that the keystone concrete block wall on the Rossi boundary for which Living Choice obtained a building certificate is de minimus and can be regularised by incorporating it into an existing modification application presently before the Council. At this stage, I do not agree that is appropriate when viewed in combination with the tree removal and other work carried out on the Rossi land. Demolition of other work carried out without development consent and alternative landscaping may need to be considered.
A timetable for further progress of the matter will be discussed with the parties.
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Decision last updated: 14 August 2013
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