Rossi v Living Choice Australia Ltd

Land and Environment Court (NSW)|2013-04-12|Before: Pain J, Mr P, Mr J

Making of final declarations and orders 1In Rossi v Living Choice Australia (No 3) [2013] NSWLEC 46 delivered on 12 April 2013 I made findings in relation to numerous judicial review grounds of challenge to two development consents and related civil enforcement issues. One consent was granted by the Joint Regional Planning Panel Sydney West Region (JRPP) and is known as the stage 2 consent. The other consent was granted by the Hills Shire Council (the Council) and is known as the retaining walls consent. The notice of the receipt of the stage 2 application and two notifications of grant of the stage 2 consent were also challenged. I also identified the parties' submissions and evidence on the exercise of the Court's discretion to make declarations and ameliorative orders. I stated at [392] as follows: 392 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. ... 2I considered the parties' extensive evidence and submissions on discretion at [357]-[407]. I made some findings relevant to whether consequential orders for demolition would be made in relation to some aspects of Mr Rossi's claim. I held as follows: 408 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. 409 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. 410 A timetable for further progress of the matter will be discussed with the parties. 3The parties embarked on a course of providing further evidence to the Court relevant to the making of declarations and ameliorative orders. Orders providing a timetable to that end were made on 22 May 2013 and evidence filed by all parties. A three day hearing was set down for 17-19 July 2013. A Notice of Motion dated 8 July 2013 was filed by the Applicant seeking, inter alia, prayer 3: An order (for the avoidance of doubt) that notwithstanding the Court's 'partial finding on discretion' commencing at [389] and following of the Judgment, the parties are not prevented by any res judicata or issue estoppel from addressing the Court on the unfettered exercise of the Court's discretion. 4The Notice of Motion prayer 3 was argued on 17 July 2013. Before an ex tempore judgment was delivered Mr Rossi's counsel advised that he had instructions to the effect that I should make my final determination on the basis of what was before me as at 13 December 2012, the last day of the substantive hearing. This course was agreed by the other parties. Accordingly no judgment was given on prayer 3 of Mr Rossi's Notice of Motion dated 8 July 2013 and the balance of the hearing time was vacated. I now proceed to finalise the making of declarations and consequential orders for relief on the basis of what was presented at the substantive hearing in 2012 in light of my findings in Rossi (No 3). I considered in that judgment the entirety of the matters which the parties put during the substantive hearing. As the parties have now not sought to rely on any further evidence or make further submissions in relation to the exercise of my discretion to make declarations and orders, there are no additional factual matters for me to consider. In particular I do not have before me any proposals for alternative landscaping along the Rossi boundary which was envisaged as part of the material to be presented in the further July hearing which was vacated.

Further Amended Summons of Mr Rossi 5There were numerous grounds of challenge to the two development consents in the proceedings. Mr Rossi filed a Further Amended Summons during the substantive hearing seeking the following relief in relation to the stage 2 consent: 1. A declaration that development consent number 280/2010/JP granted on 23 September 2010 for the development of the land described as 93 Glenhaven Road and 15 Old Glenhaven Road, Glenhaven (comprised by Lot 301 in DP 1160437 formerly Lot 1 in DP 135818 and Lot 300 in DP 1130391) is void and of no effect. ... 3. A declaration that modification of the development consent number 280/2010/JP granted on 27 June 2011 for the development of the land described as 93 Glenhaven Road and 15 Old Glenhaven Road, Glenhaven (comprised by Lot 301 in DP 1160437) is void and of no effect. ... 6. An Order that the First Respondent be restrained from carrying out any works on the Living Choice Land (pursuant to the said Development Consent or Development Consent as modified) until development consent is obtained therefore pursuant to the Environmental Planning and Assessment Act 1979 (if required). 7. Orders requiring that Living Choice: a. Demolish forthwith the buildings erected on the fill in the area described in (b) below including timber piles and posts, retaining wall/s and related infrastructures b. Remove the fill from the Living Choice Land from the area adjacent to the common boundary with the Applicant's land for a distance of 50m; c. Demolish the key stone concrete block wall on the common boundary, remove the gravel and backfill placed on the Applicant's Land by Living Choice and restore the Applicant's Land including planting of advanced trees in the place of those removed. 6Mr Rossi's Amended Reply dated 14 August 2012 sought an order that the retaining walls consent be declared void by this Court on several bases. 7In Rossi (No 3) Mr Rossi did not succeed on ground 1 in establishing a failure in the notification of the stage 2 DA. Mr Rossi also did not establish a failure to notify the stage 2 consent in grounds 3 and 4. Mr Rossi was successful in relation to other grounds of challenge and related issues in the Amended Reply establishing as follows: (a)A failure to consider a mandatory relevant consideration under s 79C(1)(b) and (c) of the Environmental Planning and Assessment Act 1979 (EPA Act), and s 79C(1)(a) in relation to cl 32 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, in relation to the retention of fill on the Rossi boundary in the Council's assessment and the JRPP's determination of the stage 2 DA in ground 2; (b)A breach of s 76A of the EPA Act with the removal of tall pines on the western end of the Rossi boundary on Mr Rossi's land and Living Choice land without development consent (ground 5); (c)A breach of s 76A of the EPA Act for work related to the keystone concrete block wall of digging a trench and backfilling on Rossi land without development consent (ground 5); (d)The keystone concrete block wall on the Rossi boundary is not exempt development and was built without development consent (within ground 5); (e)the retaining walls development consent is invalid (ground 6). 8I made the following observations in relation to the declaratory relief sought: 354 In the further amended summons, Mr Rossi seeks a declaration that the stage 2 consent is void (prayer 1). If so declared, the modification to that consent follows as a matter of course and is not a matter I need to consider (prayer 3). The parties agreed it was unnecessary to consider that ground separately as the modification lives or dies with the stage 2 consent. Prayer 2 seeks a declaration that the notification of the stage 2 consent [application] was invalid and does not arise given my finding on that issue. Prayers 4 and 5 concerning the two notifications of determination of the stage 2 consent also do not arise given my finding on those issues.

Declaration of invalidity of retaining walls consent made 9I found that the stage 2 consent granted by the JRPP to Living Choice Australia Ltd (Living Choice) was granted beyond power at [253] in Rossi (No 3) due to the failure to assess a mandatory relevant matter under s 79C. I found that the retaining walls consent was invalidly granted under the Baulkham Hills Local Environmental Plan 2005 (LEP) as the work proposed was prohibited in the rural zone and was not approved as ancillary to the seniors housing development in stage 2 at [349] - [351]. Mr Rossi seeks declarations that the stage 2 consent and the retaining walls consent are void and of no effect. These are the declarations referred to in prayers 1 (and by extension prayer 3) of the Further Amended Summons and in the Amended Reply. 10The Court's powers to grant or withhold relief by the making of declarations are wide given its powers as a superior court of record under s 5 and s 16 the Land and Environment Court Act 1979 (the Court Act). The exercise of the Court's discretion to remedy breaches under s 124 of the EPA Act is also recognised as wide as I canvassed in Rossi (No 3) at [389]-[391]. 11Mr Rossi seeks declaratory orders in the course of judicial review proceedings. As identified in Lord Woolf and J Woolf, Zamir & Woolf The Declaratory Judgment, 4th ed (2011) Sweet & Maxwell, the making of a declaration in such public law proceedings is discretionary, must serve a practical purpose and accord with public policy. A court should weigh the usefulness of the declaration for the claimant as against the inconvenience and embarrassment it may cause to a respondent and whether the declaration is in the public interest (p 168 - 184). In this case the declaration that the stage 2 consent is void and of no effect, while directed at the JRPP's decision to approve, is likely to have most practical and financial inconvenience for the holder of the consent, Living Choice. A similar observation applies to the retaining walls consent granted by the Council. This consideration must be weighed up with the importance of enforcement of the integrity of the planning system in the EPA Act. 12Due to the link between the two consents it is appropriate to consider them together in assessing whether one or both should be declared void. The stage 2 consent was granted by the JRPP for 97 independent living villas to be constructed over several hectares including on land adjoining Mr Rossi's southern boundary. The area in dispute in these proceedings is a relatively small part of the large area over which the development consent extends and is being constructed. I held there was a failure to consider at the time this development consent was granted by the JRPP the retention of fill on or near the Rossi boundary. I did not find, contrary to Mr Rossi's contentions, that the placement of fill close to the Rossi boundary which results in the villas along that boundary, especially numbers 206-210, being elevated, was not assessed. The retention of this fill by high retaining walls on or close to the Rossi boundary was the subject of the retaining walls consent in its original form, which application was refused by the Council. The method of retention for that fill approved by the Council under a s 82A review by the time of the substantive hearing was by curtain walls under the proposed villas. The villas were constructed at the height identified in the plans submitted in support of the stage 2 DA and approved by the JRPP. I do not consider I should declare void the stage 2 consent as the substance of what was not assessed or approved by the JRPP was the subject of the retaining walls consent, which ultimately dealt with landscaping on the Rossi boundary, inter alia. There is no utility served by declaring the stage 2 consent void. I will not therefore make prayers 1 or 3 in the Further Amended Summons. 13The retaining walls consent related to the Rossi boundary and also to work to be done on or near another boundary adjoining another property belonging to Mr and Mrs Anderson. No issue was raised before me about the validity of the consent in relation to the Anderson boundary. The basis for the finding of invalidity of this consent was that it gave consent to prohibited development in a rural zone, not as development ancillary to seniors housing. I do consider that there is utility in the retaining walls consent being declared void and of no effect, as sought in the Amended Reply, in part to the extent that it relates to the Rossi boundary. The breach of the EPA Act established by Mr Rossi is more than technical and in the circumstances of this case the boundary treatment must be revisited as I discuss below. 14I identified and indeed it was agreed by Living Choice in Rossi (No 3) at [335] that Living Choice built most of the curtain walls under the villas 206-210 before the retaining walls consent was granted. They do not have development consent regardless of my findings in relation to the stage 2 consent or the retaining walls consent. Carrying out development without the required development consent is not lawful. Demolition orders would generally be a remedy available in such circumstances. The multiple considerations relevant to the exercise of my discretion not to order demolition in relation to the curtain walls (and the villas on top) were canvassed extensively in Rossi (No 3) as I have referred to above in par [2].

Should an order under S 25B be made? 15Under s 25E Div 3 of the Court Act the Court is bound to "consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part." One matter flagged in [392] of Rossi (No 3), is whether an order(s) under s 25B of the Court Act ought be made in light of my decision in relation to the retaining walls consent. 16Sections 25B and 25C of the Court Act provide: 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act. 25C Orders for validity of development consents (1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order: (a) declaring that the terms have been substantially complied with, and (b) declaring that the consent is valid, and (c) revoking the order of suspension. (2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order: (a) declaring that the terms have been complied with, and (b) declaring that the development consent has been validly regranted, and (c) declaring that the suspended development consent has been revoked, and (d) revoking the order of suspension. 17If an order under s 25B suspending a consent is made and terms specified, on the application by a consent authority under s 25C, the Court can make an order that the terms have been satisfied, the consent is valid and revoke the suspension. Under s 103 of the EPA Act a development consent may be regranted or revoked after an order of the Court has been made to suspend a consent under s 25B. Section 104 provides that a development declared valid or regranted under s 25C is final. 18The Council submitted that if the Court concludes that one or more of Mr Rossi's grounds of challenge to the validity of the consent are upheld, then the Court should exercise its discretion to suspend the operation of the consent and specify the terms compliance with which will validate the consent. The appropriateness of such an order, and its terms, will depend upon the basis for invalidity found by the Court. The Council acknowledged that there may be difficulties in formulating an appropriate s 25B order in the context of a successful challenge to the validity of a consent on the basis of a failure to consider matters the consideration of which is mandated by s 79C of the EPA Act: see Hoxton Park Residents Action Group Inc. v Liverpool City Council (No.3) [2012] NSWLEC 43; (2012) 190 LGERA 119 at [30]-[46]. Living Choice adopted these submissions. 19A failure to consider a mandatory relevant matter under s 79C presents practical problems in formulating an appropriate regime under s 25B given that this failure goes to the heart of the assessment process. In Hoxton Park Biscoe J considered the history of the legislation and its application by the Court exhaustively at [33]-[46] and I gratefully adopt his Honour's observations in these paragraphs. While it is open for the Court to make an order under s 25B where there has been a failure to consider under s 79C, as observed at [40], the Court has rarely done so due to the difficulty of articulating orders which do not give rise to further contest between the parties due to the need to undertake again the consideration process under s 79C on all issues. Biscoe J further explores these challenges at [42]-[46] in the context of Mid Western Community Action Group Inc v Mid-Western Regional Council (No 1) [2007] NSWLEC 411 and Mid Western Community Action Group Inc v Mid-Western Regional Council (No 2) [2008] NSWLEC 143. While the retaining walls consent was not held to be invalid because of a failure to consider a mandatory relevant consideration under s 79C, the assessment by the Council would have to be redone in a similarly fundamental way as I have held that it was invalidly granted under the LEP and was not approved as ancillary to the seniors housing development in stage 2. The difficulty of framing effective orders in these circumstances is one reason not to make a s 25B order. 20A second reason not to make a s 25B order is that I have found that clearing of a large number of mature trees occurred on part of the Rossi boundary without development consent and consider these should be replaced. I also accepted Mr Rossi's submission in Rossi (No 3) at [394] that his property suffers adverse amenity impacts as a result of what has been built close to the boundary by Living Choice. Established large trees along the entire boundary are warranted in these circumstances. This is likely to prevent the present boundary landscaping treatment approved under the retaining walls consent remaining untouched. Further, a low keystone concrete block wall (and by extension the open powder coated metal post fence on top) was built without development consent. The landscaping treatment on the Living Choice land between the two properties needs to be fundamentally reconsidered. As the parties chose not to bring any further landscaping plans before the Court it is difficult to be more prescriptive on what should occur such as, for example, the species of tree to be planted. 21In these circumstances it is not appropriate to make a s 25B order in relation to the retaining walls consent. It will therefore be declared void and of no effect. It is desirable that only that part of the consent found to be wanting in these proceedings is declared void, namely along the Rossi boundary. The remainder of the consent can continue to lawfully authorise the balance of the work elsewhere on the site. The parties advice on an appropriate description of the Rossi boundary to be included in an order is sought.

Consequential orders 22The consequential relief sought by Mr Rossi in the Further Amended Summons is restraint of works by Living Choice until development consent is obtained (prayer 6). The basis for making an order restraining further work being carried out on the Living Choice land pursuant to the stage 2 consent until development consent is granted is unclear to me. Development consent cannot be obtained for work already completed. Such an order would be disproportionate in its effect on Living Choice. 23The summons prayer 7 seeks orders that Living Choice: a. Demolish forthwith the buildings erected on the fill in the area described in (b) below including timber piles and posts, retaining wall/s and related infrastructure; b. Remove the fill from the Living Choice land from the area adjacent to the Rossi boundary with Mr Rossi's Land for a distance of 50m; 24For reasons identified in Rossi (No 3) culminating in my finding at [410] I will not make these orders. Whether fill within 3m of the Rossi boundary on Living Choice land ought be removed is unclear, as I discuss below at par [28]. 25Prayer 7(c) of the Further Amended Summons states: c. Demolish the key stone concrete block wall on the common boundary, remove the gravel and backfill placed on the Applicant's Land by Living Choice and restore the Applicant's Land including planting of advanced trees in the place of those removed. 26I have found the work the subject of prayer 7(c) has been undertaken without development consent on both Mr Rossi's land and the Living Choice land and there is an impact on Mr Rossi's land. An ameliorative order such as in 7(c) is warranted. To the extent such an order requires agreement from Mr Rossi for work to be done on his land by Living Choice I will ask Mr Rossi what terms he wishes in that regard in any order(s). Draft declarations and orders will be provided to the parties for their comment and possible amendment before I finalise these. 27An alternative boundary treatment could be sorted out as part of a new DA incorporating large trees along the boundary. Provision for long-term maintenance of such trees for up to ten years or other appropriate period could be provided by Living Choice as part of any conditions of consent. A timeframe could be set for a new DA for the boundary treatment to be lodged by Living Choice with the Council. The DA could be notified to Mr Rossi in a timely fashion so that he can comment if he so chooses. The parties' advice is sought on whether orders providing for this should be made. 28Matters I am unclear about without more information include what "restore the Applicant's land" means in 7(c). I have included this in the proposed order but am concerned that more detail may be required. I am also not clear if the fill placed within 3m of the Rossi boundary for landscaping purposes as contemplated in the retaining walls consent should remain for the same purpose in any future landscaping scheme. I invite further submissions on this matter in the context of the draft orders I will provide to the parties. 29Draft declarations and orders are provided to the parties for their comment before finalisation. The parties are also to advise what steps they wish the Court to take in relation to a costs order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2013

(2012) 190 LGERA 119

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