Rossi v Living Choice Australia Ltd

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

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

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