Rossi v Living Choice Australia Ltd

Making of final orders 1It is necessary to finalise the orders to be made in these proceedings following my two earlier judgments in particular Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136. This has proved difficult in circumstances where the parties abandoned the three day hearing set down in July 2013 to adduce evidence and make submissions on the form of any orders which would include landscaping along the Rossi boundary. The Hills Shire Council (the Council) sought leave not to participate in this phase of the proceedings which was granted. I have been presented with alternative and conflicting orders over three lengthy mentions by Mr Rossi and Living Choice Australia Ltd (Living Choice) including for landscaping. In the absence of properly adduced evidence it is difficult to assess the material relied on by the parties. Assertions of fact from the bar table cannot assist in the absence of a proper hearing. It is an unsatisfactory way of making orders, done essentially on the run and not a position the Court should be placed in. 2The parties do agree that orders should be made requiring Living Choice to remove the keystone concrete block wall on the Rossi boundary including all gravel footings and backfill placed on the Rossi land by Living Choice. I need to consider the appropriate time frame for doing this, with 28 days proposed by Mr Rossi. Living Choice proposes a slightly longer period in which to do the work. 3Mr Rossi also seeks removal of fill placed on Living Choice land next to the Rossi boundary between the Rossi boundary and the northern face of the curtain walls to dwellings 204 - 210 to a finished level in accordance with existing contours on his land. This is not a straightforward issue as the precise legal position of this fill was not considered in my first lengthy judgment Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46 (Rossi (No 3)). Rossi (No 3) considered firstly the original Stage 2 consent granted by the Joint Regional Planning Panel - Sydney West Region to Living Choice for work on or near the Rossi boundary. Contrary to submissions by Living Choice that my finding that fill placed on the Living Choice land included the fill within 3m of the boundary was lawful, as Mr Rossi's counsel submitted, my findings on fill were directed to the fill retained behind the curtain walls supporting villas 204 - 210, that being the retained fill the focus of the evidence and submissions presented by the parties. I accept that the findings made by me as to fill are without qualification but in my view the factual context for that finding is clear from the judgment. 4Further I should note that the work proposed for the Living Choice land next to the Rossi boundary changed over time, including during the course of these proceedings. The original retaining walls DA lodged by Living Choice with the Council in August 2011 had high retaining walls on the boundary and this scheme changed substantially over time, resulting in the landscaping treatment in the retaining walls consent granted by the Council on 26 June 2012. These proceedings were commenced on 11 January 2012. In relation to the retaining walls consent, I held in Rossi (No 3) at [338] that the amended plans the subject of that development application lodged on 17 April 2012 which related to landscaping on the 3m strip of land between the curtain walls and the Rossi boundary did not include fill. I was not asked to by the parties, and did not direct my attention, to whether the 3m strip on which fill had by then been placed was lawful in that it required development consent. No criticism of the parties is intended as I consider the issues in this matter have been complex and that is not a matter that should have obviously occurred to anyone at the time and it did not occur to me. It is now too late for this issue to be raised and I do not intend to consider whether that fill requires development consent. I will consider the removal of this fill solely on the basis of whether it aids a practical resolution of the landscaping issues that remain. 5Mr Rossi also seeks removal of all drainage behind the keystone concrete wall. There is no basis to be found in Rossi (No 3) for making such an order and I will not do so. 6The orders sought by Mr Rossi have changed to some extent. The latest version handed up in Court on 5 November 2013 seeks an order that Mr Rossi be bound to do landscaping work as contained in a plan prepared by a landscape architect, with Living Choice to pay for that work. This is a highly unusual approach to the remedying of a breach under s 124 of the Environmental Planning and Assessment Act 1979 (EPA Act) as Mr Rossi is the moving party for relief in relation to the established breach. The material presented by his counsel included a single quotation for landscaping work from Mr Rossi presented without leave at the mention on 5 November 2013. Living Choice opposes that order as unorthodox (as it is) and proposes instead its landscaping scheme, also prepared by a landscape architect, take place on its land along the Rossi boundary at its expense. 7In Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444 Davies AJA (Heydon and Young JJA agreeing) stated at [36] that s 122 - s 124 are concerned with breaches of the EPA Act and authorise the Court to make orders against persons who are in breach of or who have breached the EPA Act. Where a breach is established the Court's jurisdiction is enlivened and it can make orders which restrain and remedy the breach. Davies AJA did not consider orders could be made against a person who has not breached or is not in breach of the EPA Act. This suggests the orders sought by Mr Rossi are not within the Court's power to impose, he not being found to be in breach of the EPA Act. Davies AJA at [37] stated that he was not considering the circumstances in which a rectification order may be made against an owner of land where unauthorised improvements have been made. That is not the circumstance pertaining to Mr Rossi in any event. 8Mr Rossi's counsel submitted in the alternative that he could give an undertaking to the Court that the work be done. In my view that approach is still problematic in terms of the exercise of the Court's power as the failure to comply with an undertaking to a court gives rise to the possibility of contempt of court proceedings if there is a failure to comply with the undertaking. Who would commence contempt proceedings in these circumstances is an interesting question. Part of the orders sought by Mr Rossi require payment by Living Choice of a one-off large sum to Mr Rossi, raising the spectre that Living Choice theoretically could take such action if Mr Rossi does not do all the work. The outcome of such an approach in the future is uncertain, another reason not to take such an approach. 9The Living Choice landscaping scheme reflects a more orthodox and usual approach for such orders, requires expenditure by it on its own land, with minimal work on Mr Rossi's land, and is in accordance with orders I would expect to make in circumstances where a breach of the EPA Act is established. The orders include a detailed landscape plan and work method statement dated 4 November 2013 which sets out what work is to be done when over a three and a half month period commencing 2 December 2013 and finishing 10 March 2014. This level of certainty and clarity is highly desirable to both parties so that this protracted litigation can come to a clearly defined end. 10Appropriate orders are also sought for the construction of a safety fence on Mr Rossi's land to enable machinery to be used where necessary. According to the work schedule much of the work using large machinery, such as a crane, will be done from the Living Choice land. 11It follows from the making of the orders proposed by Living Choice that I will not order removal of the fill in the 3m strip on the Living Choice land along the Rossi boundary as that is the area where landscaping is to occur in the fill placed there. 12Another area of dispute is what kind of boundary fence should be erected. Living Choice wishes to reuse the existing open metal palisade fence such as occurs on the Anderson boundary, while Mr Rossi would like a closed brushwood fence such as exists on his eastern boundary next to stage 1 of the Living Choice development. Once again in the absence of a hearing to further test the suitability of different kinds of fencing it is difficult to resolve this matter. The form of permanent fencing on the boundary was not part of the original orders sought by Mr Rossi and was not therefore a matter I considered in my earlier judgments. It is preferable that this is resolved to bring finality to these proceedings. Consistency of presentation to Mr Rossi's land suggests that a brushwood fence is preferable but I am concerned that the establishment of the landscaping may require access to light which would be afforded by the open metal palisade fence. Although hesitating to return to the parties for yet more clarification I need to ascertain whether they have any further views now that the orders I intend to make are known. For example, whether the landscaping on the Living Choice land is best facilitated by the open metal palisade fence is one consideration whereas Mr Rossi prefers the brushwood fence to protect privacy. 13Subject to the final matter of the fence referred to in the previous paragraph I will be making the orders as proposed by Living Choice. 14The matter of costs remains outstanding and a timetable for consideration of this issue needs to be made with all interested parties.