Rossi v Living Choice Australia Ltd - [2013] NSWLEC 46 - NSWLEC 2012 case summary — Zoe

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Rossi v Living Choice Australia Ltd

[2013] NSWLEC 46

Land and Environment Court (NSW)|2012-12-13|Before: Pain J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2012-12-13

Before

Pain J

Source

Original judgment source is linked above.

Judgment (92 paragraphs)

[1]

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 707 Texts 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

[11]

Judicial review challenge to validity of seniors housing development and civil enforcement under Environmental Planning and Assessment Act 1Mr 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. 2Mr 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. 3Living 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. 4The 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. 5Mr 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.

[12]

Background 6The parties agreed a chronology which has been slightly amended. 7On 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]). 8On 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]). 9On 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). 10On 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]). 11On June 2008 Mr Rossi began working for Living Choice on stage 1 (John Elliott 11.07.12 [3]; Anthony Rossi 25.07.12 [62]). 12On 8 July 2008 Mr Rossi contracted to purchase the Rossi land (Anthony Rossi oral evidence 15.08.12). 13On 14 July 2008 Mr Rossi's company made its first delivery of plasterboard materials for stage 1 (Anthony Rossi 12.09.2012 [3]). 14On 2 February 2009 Mr Rossi acquired the Rossi land (Anthony Rossi 5.07.12 [4]). 15On 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). 16The 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. 17On 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. 18On 27 August 2009 the Council's Flora & Fauna Projects Officer commented on the flora and fauna assessment report (AB 2A tab 11). 19The 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). 20On 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). 21On 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. 22On 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). 23On 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). 24On 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). 25On 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). 26In September 2009 a JRPP Status Report was prepared by Mr Buckham, development assessment coordinator of the Council, (AB 1B Tab 7). 27On 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). 28On 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). 29On 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. 30On 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). 31On 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). 32On 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). 33On 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). 34On 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). 35An 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) 36On 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) 37On 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). 38In 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). 39A 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). 40An 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). 41On 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). 42On 13 August 2010 general terms of approval were granted by the NSW Rural Fire Service (AB 1B Tab 16; and 2B Tab 41). 43On 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). 44In 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. 45On 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). 46The 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. 47On 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. 48On 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). 49On 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. 50In June 2011 Mr Rossi was quoted for work on stage 2 (John Elliott 11.07.12 [5]). 51Also 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. 52In mid-June 2011 Mr Rossi and Mr Turnbull attended the Council (Glynis Charles [3]-[6]). 53On 20 June 2011 a construction certificate was issued for the stage 2 DA. 54In 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]). 55On 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]). 56On 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). 57On 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]). 58In June - July 2011 land filling occurred on the Living Choice land (Anthony Rossi 05.07.2012 [138] Leigh Buckton 11.07.212 [3]). 59On 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]). 60Commencing 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]). 61On 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]). 62On 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. 63On 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]). 64On 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). 65An 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) 66On 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). 67On 1 September 2011 Arbour Pride prepared an arboricultural impact assessment with tree survey for the retaining walls DA (AB 3 Tab 17). 68On 3 September 2011 Mr and Mrs Anderson wrote a letter objecting to the retaining walls DA (AB 3 Tab 18). 69On 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). 70On 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]). 71On 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. 72On 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). 73City 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. 74On 20 December 2011 Mr and Mrs Anderson lodged a further letter of objection to the retaining walls DA (AB 3 Tab 23). 75That month the first villas in stage 2 were completed (Graham Hobbs [18]). 76On 1 January 2012 34 deposits were held for villas in stage 2 (Graham Hobbs [22] and Annexure D). 77On 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). 78On 11 January 2012 the summons commencing these proceedings was filed. 79On 30 January 2012 Living Choice commenced earthworks for villas 204 - 210 (John Elliott 15.08.12 [7]). 80On 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). 81On 9 February 2012 Living Choice commenced construction of a 600mm keystone concrete block wall (John Elliott 15.08.12 [12]). 82On 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). 83On 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). 84The 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. 85On 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. 86On 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). 87On 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) 88In 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) 89On 1 March 2012 Mr Rossi filed Points of Claim. 90On 2 March 2012 Mr Hobbs, a director of Living Choice, met with Mr and Mrs Rossi on a without prejudice basis (Graham Hobbs [24]). 91On 16 March 2012 Court-facilitated mediation in Class 1 and Class 4 proceedings occurred. 92In March 2012 Living Choice was in breach of financial covenants (Graham Hobbs [6]). 93Also in March 2012 the keystone concrete block wall collapsed (Anthony Rossi 05.07.12 [47]-[50]; Exhibit AR-1 Photos) 94In April 2012 Mr Hobbs met with Mr Rossi. 95On 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. 96On 19 April 2012 Mr Elliott met with Mr Rossi on the Rossi land (John Elliott 15.08.12 [13]). 97On 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). 98On 30 April 2012 Mr Rossi filed Amended Points of Claim (APOC) which were served on 3 April 2012. 99In May 2012 Mr Hobbs rang Mr Rossi to offer to purchase the Rossi land (Graham Hobbs [28]). 100On 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). 101On 8 May 2012 the Council received Mr and Mrs Anderson's letter of objection to the s 82A review application (AB 3 Tab 32). 102In 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). 103On 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). 104On 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). 105On 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). 106In June 2012 Living Choice was in breach of financial covenants (Graham Hobbs [6]). 107On 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). 108On 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). 109On 15 August 2012 leases of 26 villas were settled and deposits were held on a further 25 villas in stage 2 (exhibit 6). 110On 3 September 2012 the Council issued the building certificate (Exhibit 5).

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Evidence 112Mr 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. 113Mr 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. 114Mr 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). 115The 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. 116Ms 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. 117Ms 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. 118In 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. 119Mr 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. 120In 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.

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No failure in stage 2 DA notification 125It 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. 126Mr 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. 127The 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. 128The 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. 129What 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". 130In 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. 131As 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. 132Mr 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. 133Mr 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. 134In 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. 135Mr 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. 136As 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.

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Ground 2 - Failure in assessment by the Council and determination by JRPP of stage 2 DA (FAPOC par 22-30) 137The 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. 138The 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. 139Paragraph 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. 140An 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.

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Is Council's assessment function amenable to judicial review proceedings? 141The 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. 142The 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). ... 23H Regulations The regulations may make provision for or with respect to the following matters: (a) functions conferred by this Act on a regional panel including its procedures in exercising its functions, and procedures in relation to its determination of development applications and applications to modify development consents, ... 79C Evaluation (1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. ... 80 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. ... 80A Imposition of conditions (1) Conditions-generally A condition of development consent may be imposed if: ... (g) it modifies details of the development the subject of the development application, or ...

[21]

Environmental Planning and Assessment Regulation 2000 143The Environmental Planning and Assessment Regulation 2000 (EPA Regulation) provides: Division 12A Additional provisions where regional panel is exercising consent authority functions 123B Application of Division (1) This Division applies to development for which a regional panel has the function of determining the development application or an application to modify a development consent. (2) In this Division, a reference to a development application includes a reference to an application to modify a development consent. ... 123D Provisions of Act not to apply as if regional panels were councils (1) For the purposes of section 23G (5A) of the Act, a regional panel is not taken to be the council for the purposes of the following provisions of the Act: (a) section 78A (3)-(6), (application of specified Local Government Act provisions) (b) section 81 (2), (post-determination notification) (c) sections 82A, 82C, 82D and 96AB, (review of DA determination/review of modification application) (d) section 89 (2). (Crown DAs) Note. Under section 23G (5A) of the Act, a regional panel exercising consent authority functions of a council is taken to be the council, subject to the regulations. (2) For the purposes of section 23G (5A) of the Act, a regional panel is not taken to be the council for the purposes of appeal proceedings under the Act, or proceedings under section 123 of the Act, if: (a) the council is the applicant for a development application or the modification of a development consent, and (b) the council makes an appeal under the Act, or brings proceedings under section 123 of the Act, in relation to a determination by the regional panel. 123E Procedural matters related to determination of development applications (1) A regional panel may, for the purpose of determining a development application: (a) obtain assessment reports, in addition to any assessment report or other information provided by a relevant council in dealing with the application, and (b) obtain other technical advice or assistance as the panel thinks fit. (2) If a development consent is granted by a regional panel subject to a condition referred to in section 80 (3) or 80A (2) of the Act, the regional panel is taken to be satisfied as to a matter specified in the condition if the council for the area in which the land on which the development is to be carried out notifies the chairperson of the panel in writing that the matter specified in the condition has been satisfied. 123F Procedural matters relating to determination of applications to modify consents For the purposes of section 23H (a) of the Act, a regional panel may carry out consultation for the purposes of section 96 (2) (b) of the Act by directing the general manager of a council for an area in which the development the subject of the consent is to be carried out to consult with the relevant Minister, public authority or approval body on behalf of the regional panel. Note. It is an offence under section 23N (2) of the Act for a general manager to fail to comply with a direction.

[22]

State Environmental Planning Policy (Major Development) 2005 144The aims of the Major Development SEPP include the identification of development for which regional panels (JRPPs) are to exercise specified consent authority functions. Part 3 (cl 13 to 13G) entitled "Regional development" provided at the relevant time: 13B General development to which Part applies (1) This Part applies to the following development: (a) development that has a capital investment value of more than $10 million, ... Division 3 Consent authority functions that may be exercised by regional panels 13F Council consent functions to be exercised by regional panels (1) A regional panel for a part of the State may exercise the following consent authority functions of the council or councils for that part of the State for development to which this Part applies: (a) the determination of development applications, and applications for the modification of development consents previously granted by the panel, in accordance with Part 4 of the Act, (b) without limiting paragraph (a), the functions of a consent authority under Divisions 2 and 2A of Part 4 of the Act and sections 89A, 93I, 94, 94A, 94B, 94C, 94CA, 94EF, 94F, 95 (2), 96 (2) and 96AA. (2) However, the following functions of a council as a consent authority are not conferred by this clause on a regional panel: (a) the functions conferred by section 79B of the Act (other than section 79B (9)), (b) the functions conferred by section 80A (7)-(10) of the Act, (c) the functions conferred by sections 94 (5) and 94EF (5) of the Act, (d) the receipt and assessment of development applications, (e) the determination and receipt of fees for development applications, (f) notification of determination of development applications, (g) the functions conferred by section 95A of the Act, (h) the determination of applications for modification of consents on the ground of a minor error, misdescription or miscalculation under section 96 (1) of the Act, (i) the functions conferred by section 96 (1A) of the Act, (j) the functions conferred by section 96AA of the Act, if the original development application was not determined by a regional panel. (3) The council remains the consent authority for development to which this Part applies, subject to the exercise by regional panels of functions conferred on them by this clause.

[24]

Council's submissions 146The Council's assessment role is not a stand alone statutory function under Pt 4 of the EPA Act. The JRPP had to take into consideration certain matters in s 79C in determining the stage 2 DA, not the Council. See Eco-Villages Australia Pty Ltd v Pittwater Council [2012] NSWLEC 49 at [40]; Ku-ring-gai Council v Sydney West Joint Regional Planning Panel (No 2) [2010] NSWLEC 270; (2010) 181 LGERA 11 at [59], [65], [86]. There is no legal consequence for any breach of s 79C or legal error made by the Council in its assessment of the stage 2 DA. The Council's assessment cannot be the subject of judicial review proceedings, the principles of which are concerned with the review of a decision made by a decision-maker. Whether the Council failed to take into account mandatory relevant considerations is irrelevant. The question is whether the JRPP took such matters into account. 147The Court is not bound to follow Biscoe J's obiter dictum findings in Amalgamated Holdings at [24] - [30]. There is no legislative foundation for his Honour's finding at [27] that a council's assessment is a condition precedent to a regional panel's determination of a DA. The assessment role of a council in the context of regional panel determinations may be likened to the non-statutory practice of a council officer preparing an assessment report which is considered by councillors to determine a DA. Even if Biscoe J's finding at [27] is correct, the statute does not support the proposition that it is also a statutory precondition for a council's assessment report to comply with s 79C. That is, the validity of a regional panel's determination is not dependent upon a council undertaking an assessment in accordance with s 79C. As Biscoe J observed (at [27], [29]), a regional panel need not accept a council's assessment and in exercising its determination function may undertake its own evaluation of the same matters as a council's assessment. Therefore assessment and determination of a DA are not separate statutory functions.

[26]

Council assessment function is amenable to judicial review 151There is no dispute that the JRPP must comply with s 79C when it determines a development application, that being clearly stated in the chapeau to that section. Mr Rossi pleaded that the Council also had such an obligation when the assessment of Living Choice's DA was undertaken and raised this as a separate basis for judicial review as against the Council. No relief as against the Council is sought however. On one view the relevant decision which does clearly give rise to judicial review of administrative action, if proper grounds exist, is the determination of the JRPP to grant conditional development consent. Both Respondents challenge this aspect of this ground of judicial review on the basis that no separate function was carried out by the Council which is reviewable in judicial review proceedings. If correct a consequence would presumably be that the Council should not be joined as a party in these proceedings. 152Mr Rossi submitted that the Council has an obligation to comply with s 79C in its assessment function, which function is expressly reserved to it under s 23G(2) of the EPA Act and cl 13(2)(d) of the Major Development SEPP. This has not been complied with in the Council's assessment. The same ground but not the same argument was considered in Amalgamated Holdings at [22]-[29]. The Council's submission here that there is no basis for judicial review of the Council's assessment function was not raised in Amalgamated Holdings. The JRPP and a council were respondents, both filing a submitting appearance, the proceedings being defended by the developer. 153The first ground of review in Amalgamated Holdings was a challenge to the determination of the JRPP on the basis that it had exceeded its jurisdiction when it approved a DA because the Council in the course of its assessment suggested modifications which would render the proposal more acceptable to the JRPP, which the latter adopted in granting approval. The basis of challenge was that the Council did not assess the modifications which it considered more acceptable. At issue was whether an assessment by the Council was a pre-condition to the exercise of the determination function of the JRPP. 154The ratio of the decision is found at [22] where his Honour rejected the submission that the Council had failed to discharge its assessment function in identifying modifications it considered appropriate as part of carrying out its assessment function. His Honour rejected a submission that the JRPP erred because the mandatory matters listed in s 79C are part of the determination function assigned to the JRPP not the assessment function assigned to the Council at [24] - [29]. Biscoe J considered the legislative scheme created under s 23G at [26] - [27] holding that a division of functions is provided, the assessment function remaining with the council while the determination function lies with the JRPP. A council's assessment of a development application is a condition precedent to a regional panel's determination of the application ([27]). A regional panel need not accept a council's assessment, can base its determination on its own evaluation, and can be assisted by any other assessment, information or technical advice, as provided for in cl 123E(1) of the Regulation. Biscoe J considered that this construction was supported by the regime in the EPA Act which implements a policy of assessment of development applications: at [28] - [29]. I agree with this description of the statutory scheme. While not expressly stated, a council must consider relevant matters in s 79C in its assessment function. Contrary to the Respondents' submissions, the assessment function incudes an obligation to consider s 79C. 155In Eco-Villages the Council was the only respondent. The JRPP was the consent authority for the purposes of determining an amended DA. At issue was the extent of the Council's functions in receiving and assessing a DA (a function reserved to it under cl 13F(2)(d) of the Major Development SEPP) and whether it could accept an amended DA or whether the JRPP as the determining authority had to consent to the receipt of an amended DA. Craig J held that this was part of the council's functions and in doing so considered that receipt and assessment at [38] - [39] includes the mechanical processing of the application and the formation of judgments and opinions which are a precedent to the determination of a JRPP. The circumstances before Craig J were different to this case but his reasoning suggests that where a council is carrying out a function reserved to it under cl 13F(2) of the Major Development SEPP, that function is amenable to judicial review. Once again the argument I am considering was not raised in that matter. 156The Council submitted that its argument was consistent with the reasoning in Ku-ring-gai Council. In that case the council, which had responsibility for the assessment of a particular development where the determination function was conferred on the Sydney West JRPP, commenced judicial review proceedings challenging the validity of the development consent granted by the JRPP alleging a failure to form a requisite opinion under the relevant planning scheme ordinance by it or the JRPP. At issue was whether the opinion required under the environmental planning instrument (EPI) was part of the determination function conferred on the JRPP or was a function remaining with the council. The issues requiring consideration in that case were different and do not assist me in determining the parties' arguments in this case. No issue arose concerning the scope of judicial review proceedings in light of the statutory regime in the Major Development SEPP. 157As Mr Rossi's counsel submitted, the evidence makes clear that the Council did undertake its assessment function of the stage 2 DA. The scheme of the EPA Act and Major Development SEPP does confer an obligation on the Council to assess the DA. That obligation includes the assessment of matters in s 79C. In this case the Council's assessment was a critical function leading up to a determination of the DA. The Council remains the consent authority for development to which Pt 3 applies; cl 13F(3). Given the grounds of review challenge the adequacy of the Council's assessment of the stage 2 DA it is open to the Court to make findings of failure by the Council to carry out of that function. Section 20(2)(b) of the Court Act applies as it provides for the Court to hear and dispose of the review of the exercise of a function conferred in an environmental planning law. This suggests that the Council is properly a party in these proceedings despite no particular relief being sought against it. The Council could have been entered a submitting appearance at least in relation to the case concerning the stage 2 consent. As the consent authority which determined the retaining walls DA it is also a proper party in relation to that aspect of these proceedings.

[27]

Challenge to assessment by the Council/determination by JRPP under s 79C EPA Act 158Given that the facts in this case show that the JRPP did rely on the Council's assessment in large part, the significance of the previous issue is somewhat reduced. It is necessary to look at the Council's assessment in any event to see if this satisfied s 79C as this assessment was relied upon by the JRPP in its determination. The JRPP accepted the Council's recommendation to approve the stage 2 DA. This requires consideration of the process of determination undertaken by the JRPP informed by the Council's assessment. The FAPOC allege failures by the Council and the JRPP to take into account mandatory relevant considerations as found in s 79C of the EPA Act on two bases: firstly, a failure to consider aspects of the Seniors SEPP and the BH Resident DCP and, secondly, to consider specified mandatory relevant matters as required by s 79C(1) in relation to the placement and retention of fill on the Living Choice land close to the Rossi boundary. In both alternatives, the Court is asked to determine the adequacy of the assessment of placement and retention of fill by the Council and in the JRPP's determination with the Seniors SEPP raising additional issues. This is a fundamental issue in Mr Rossi's case and is raised most squarely in the second alleged failure to consider mandatory matters under s 79C. 159The plans approved by the JRPP included an overall master site plan showing FFLs of each villa including villas 204-210 adjacent to the Rossi boundary and the intended configuration of specified residential layouts in typical floor plans and elevations. A specific treatment of the Rossi boundary was not in these approved plans. 160The FAPOC par 22 states that: 22. At the common boundary between Mr Rossi's Land and the Living Choice Land, the Development Consent permitted the placement of a substantial quantity and depth of fill on the Living Choice Land. Particulars: (a) The finished floor levels of the "Endeavour" villas at the western end of the common boundary on the Living Choice Land have an approved FFL of RL 135.90; (b) The natural ground level upon the Applicant's Land immediately adjacent the "Endeavour" villas is RL 132.00 which is 3.9 m below the FFL of the Endeavour villas; (c) The setback of the "Endeavour" villas from the boundary with the Applicant's Land was not dimensioned on the approved plans. By scaling the setback is between 2.5 and 3 metres.

[28]

(a) Failure to consider State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 and Baulkham Hills Resident DCP (FAPOC 23) 161The Seniors SEPP provides: 2 Aims of Policy (1) This Policy aims to encourage the provision of housing (including residential care facilities) that will: (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and (b) make efficient use of existing infrastructure and services, and (c) be of good design. (2) These aims will be achieved by: (a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and (b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and (c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes. 4 Land to which Policy applies (1) General This Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if: (a) development for the purpose of any of the following is permitted on the land: ... (ii) residential flat buildings, (iii) hospitals, ... Chapter 3 Development for seniors housing Part 1 General 14 Objective of Chapter The objective of this Chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age. 15 What Chapter does This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy: (a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing,... ... 29 Consent authority to consider certain site compatibility criteria for development applications to which clause 24 does not apply (1) This clause applies to a development application made pursuant to this Chapter in respect of development for the purposes of seniors housing (other than dual occupancy) to which clause 24 does not apply. ... (3) Nothing in this clause limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies. Part 3 Design requirements Division 1 General 30 Site analysis (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the applicant has taken into account a site analysis prepared by the applicant in accordance with this clause. (2) A site analysis must: (a) contain information about the site and its surrounds as described in subclauses (3) and (4), and (b) be accompanied by a written statement (supported by plans including drawings of sections and elevations and, in the case of proposed development on land adjoining land zoned primarily for urban purposes, an aerial photograph of the site): (i) explaining how the design of the proposed development has regard to the site analysis, and (ii) explaining how the design of the proposed development has regard to the design principles set out in Division 2. (3) The following information about a site is to be identified in a site analysis: (a) Site dimensions: length width (b) Topography: spot levels and/or contour north point natural drainage any contaminated soils or filled areas (c) Services: easements connections for drainage and utility services (d) Existing vegetation: location height spread of established trees species (e) Micro climates: orientation prevailing winds (f) Location of: buildings and other structures heritage features and items including archaeology fences property boundaries pedestrian and vehicle access (g) Views to and from the site (h) Overshadowing by neighbouring structures (4) The following information about the surrounds of a site is to be identified in a site analysis: (a) Neighbouring buildings: location height use balconies on adjacent properties pedestrian and vehicle access to adjacent properties (b) Privacy: adjoining private open spaces living room windows overlooking site location of any facing doors and/or windows (c) Walls built to the site's boundary: location height materials (d) Difference in levels between the site and adjacent properties at their boundaries (e) Views and solar access enjoyed by neighbouring properties (f) Major trees on adjacent properties (g) Street frontage features: poles trees kerb crossovers bus stops other services (h) The built form and character of adjacent development (including buildings opposite on both sides of the street(s) fronted): architectural character front fencing garden styles (i) Heritage features of surrounding locality and landscape (j) Direction and distance to local facilities: local shops schools public transport recreation and community facilities (k) Public open space: location use (l) Adjoining bushland or environmentally sensitive land (m) Sources of nuisance: flight paths noisy roads or significant noise sources polluting operations (n) Adjoining land uses and activities (such as agricultural activities) 31 Design of in-fill self-care housing In determining a development application made pursuant to this Chapter to carry out development for the purpose of in-fill self-care housing, a consent authority must take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration) the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004. 32 Design of residential development A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2. Division 2 Design principles ... 33 Neighbourhood amenity and streetscape The proposed development should: (a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area ... (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and ... (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours ... 34 Visual and acoustic privacy The proposed development should consider the visual and acoustic privacy of neighbours in the vicinity and residents by: (a) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, 36 Stormwater The proposed development should: (a) control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters by, for example, finishing driveway surfaces with semi-pervious material, minimising the width of paths and minimising paved areas ... 162Mr Rossi also relied on the BH Resident DCP Part C section 3, 2.14.7. This provides: 2.14.7. CUT AND FILL OBJECTIVE (i) To ensure that dwellings are designed with regard to site conditions and minimise the impact on landform. DEVELOPMENT CONTROLS (a) Building siting and design should consider the topography of the site and if cut and fill is necessary it must be balanced to ensure no fill leaves the site. (b) Where plans show an excess of 600mm of filling and, provided that the filling does not exceed 1.5 metres, a condition of approval will be imposed requiring a concealed dropped edge beam to contain the fill in excess of 600mm. Should the plans show an excess of filling above 1.5 metres, the applicant will be requested to amend the design to reduce the filling required. (c) Excavation in excess of 1 metre may be permitted, subject to there being no adverse effect on the adjoining owners and the submission of structural engineers details of retaining walls with the Development Application, or alternatively, a separate Development Application is to be submitted. 163Paragraph 23 of the FAPOC as amended during the hearing alleges that, the Council when it assessed, and the JRPP when it determined, the stage 2 DA breached s 79C of the EPA Act in failing to consider and assess: (a)The difference in levels of the land of the Living Choice Land and the Applicant's Land as an adjacent property pre development and post development: SEPP cl 30, cl 32, cl 33(c)(i), cl 33(c)(ii) and cl 33(c)(iv); DCP Part C section 3 2.14.7 (b)The difference in finished floor levels and heights of buildings overall on the site and the levels of the Applicant's Land as an adjacent property post development: SEPP cl 30(4)(b), (c), (d), (f); cl 32; cl 33(c)(i), (ii), (iv); DCP Part C section 3 2.14.7 (c)The depth of fill that was proposed to be placed upon the Rossi boundary: SEPP cl 30(4)(b), (c), (d), (f); cl 32, cl 33(c)(i), (ii), (iv); DCP Part C section 3 2.14.7 (d)How the fill to be placed upon the Rossi boundary was to be retained as the sections and elevations of the buildings as provided to the Council in the DA by Living Choice particularly in respect to dwellings 204-212 do not show the relationship of the building form to natural, pre-development or post development ground levels particularly in respect to the Applicant's Land and the adjoining land at 5 Holland Avenue: SEPP cl 30(4)(b), (c), (d), (f); cl 32; cl 33(c)(i), (ii), (iv); DCP (e)The environmental impact of the placement and retention of substantial quantities of fill along the Rossi boundary: SEPP cl 30(4)(b), (c), (d), (f); cl 32; cl 33(c)(i), (ii), (iv); DCP (f)If the fill was to be physically retained, what was the method of retention of the fill and how the proposed method of retention might impact the Applicant and the Applicant's Land and the enjoyment thereof: SEPP cl 30(4)(b), (c), (d), (f); cl 32; cl 33(c)(i), (ii), (iv); DCP Part C section 3 2.14.7 (g)The location, height, spread and species of existing trees upon the Living Choice Land next to the boundary with the Applicant's Land and adjacent to the Living Choice Land; and the Applicant's Land and how the proposed development would adversely affect any such trees: SEPP cl 30(4)(b), (c), (d), (f); cl 32; cl 33(c)(i), (ii), (iv) (h)The proposed building setbacks along the Rossi boundary with the Applicant's Land and whether the setbacks would adequately reduce the building bulk: SEPP cl 33(c)(i) (i)Whether the building form and siting related to the site's land form: SEPP cl 33(c)(ii) (j)The spatial arrangement and visual appearance of the development when viewed from Edgecliff Road: SEPP cl 33(a), (c) (k)The appropriateness of the site planning along the Rossi boundary with the Applicant's Land and the use of screening devices and landscaping to afford privacy to the Applicant's Land and the adjoining land at 5 Holland Avenue: SEPP cl 34(a) (l)How stormwater from the Living Choice land was to be controlled and drained so as to minimise the disturbance and impacts upon the Applicant's Land: SEPP cl 36(a) (m)Whether the Applicant for development consent had taken into account a site analysis plan prepared in accordance with cl 30 of the Seniors SEPP. (added by letter dated 6 August 2012) (n)Whether the dwellings were designed with regard to site conditions and to minimise the impact on landform. Particulars Baulkham Hills resident Development Plan Part C Section 3 2.14.7 (added by letter dated 6 August 2012)

[29]

(b) Failure to consider s 79C(1)(b)-(c) FAPOC 24-29 164The FAPOC par 24 identifies a number of matters which have occurred since the stage 2 consent was granted including bulk earthworks undertaken by Living Choice, building of curtain (called retaining) walls up to 4m in height adjacent to the Rossi boundary (these walls are 3m from the boundary), and placement of several timber piles within 3m of the Rossi boundary. These were asserted by Mr Rossi to be facts which demonstrate the failure in assessment by the Council and determination by the JRPP at the time development consent was granted for the stage 2 DA. 165No mention of par 25-29 and most of par 30 of the FAPOC was made in Mr Rossi's counsel's lengthy opening submissions and it only became apparent that these were nevertheless relied on in the course of Living Choice's submissions on day ten of the protracted hearing. Living Choice's counsel had assumed these paragraphs were not relied on. The Council's counsel, who addressed before Living Choice, did not address this part of the FAPOC in submissions on the basis that he did not understand these were to be relied upon. Ultimately these paragraphs were dealt with on the run during the hearing. It is with some reluctance that I deal with this part of Mr Rossi's case given the unsatisfactory way this was presented. The FAPOC par 25-29 allege numerous failures to consider the impact of the placement and retention of fill on the Living Choice land close to the Rossi boundary. There is overlap with some of the failures alleged in the consideration of the Seniors SEPP which also referred to a failure to consider the placement of fill and its impact on the Rossi land at FAPOC 23(c) - (f). While not stated explicitly in the FAPOC the focus of the particulars is intended to be the Rossi boundary. 25 The Council as the consent authority and the JRPP pursuant to its functions as the decision maker of the Development Application, -were obliged, prior to, by and at the time of the determination of the development consent, to consider under s 79C of the Act: (a) the volume, (b) the depth, (c) the drainage, (d) the compaction, (e) the need for retention, and (f) the effect of the proposed method of any retention upon the environment of the fill approved to be placed upon the Living Choice Land. 26 Furthermore the Council was obliged to assess and the JRPP was obliged to consider the proposed method of retention of any approved fill on the Living Choice Land and the impact of retaining structures upon the amenity of Mr Rossi and his land. 27 Furthermore, the Council was obliged to assess and the JRPP was obliged to consider the overlooking and any loss of privacy to Mr Rossi's Land caused from dwellings approved for construction on top of the proposed fill and adjacent to the common boundary. 28 Furthermore, the Council was obliged to assess and the JRPP was obliged to consider the conditions necessary to impose on the grant of any development consent to ameliorate the environmental impact of the fill, the fill placement, any proposed method of retention of fill and whether such conditions were reasonable in all the circumstances. 29 In breach of the obligations aforesaid, the Council did not assess and the JRPP did not consider the aforesaid matters including the: (a) placing of the fill, (b) depth of the fill, (c) retention of the fill on the Living Choice Land, (d) visual impact of any method of retention of the fill, and (e) overlooking and loss of privacy to the Applicant's Land from dwellings approved to be constructed upon the proposed fill; (f) the landscape treatment (if any) of the fill; and (g) conditions that might be appropriate to ameliorate the impact of the fill referred to. Particulars i. The fill is up to 4m deep. ii. The fill is now retained by high retaining wall/s. iii. The retaining walls are unsightly and out of character with the rural residential character and environment in the locality. iv. Houses built on top of the fill overlook the Applicant's land. v. The retaining walls supporting the dwellings are high, bulky and visually obtrusive on the common boundary with the Applicant's Land. 30 (first) In the alternative and in addition, the Council in making the assessment that it did and the JRPP in making the determination that it did, both deferred undertaking essential considerations in the assessment and determination process in paragraph 29(a)-(g) above. 166Paragraph 30 of the FAPOC identifies a number of legal consequences if one or more of the failures in par 23 - 29 are established. 30 In all the circumstances aforesaid and in addition the assessment of the Development application by the Council and the consideration and decision of the JRPP was: (a) manifestly unreasonable (b) irrational (c) arbitrary (d) not a valid exercise of the statutory power; and (e) beyond its jurisdiction 167No mention of subparagraphs 30(a), (b) or (c) was made in the opening oral and written submissions. Subparagraph 30(d) and possibly subparagraph 30(e) were understood to be the basis of Mr Rossi's claim. In closing submissions Mr Rossi's counsel described the case in relation to cl 30 and cl 32 of the SEPP as the failure to consider a jurisdictional fact. That is a different ground to the case presented and was raised too late to be considered. I should note that the wording in cl 30 and cl 32 which refers to a consent authority being satisfied of certain matters does not suggest these give rise to a jurisdictional fact which the Court could determine in the sense recognised in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55. 168The voluminous evidence tendered consisted of all the documents produced by the JRPP (Vol 1A and Vol 1B) and a bundle produced from the Council's files and the JRPP (Vol 2B). Many of the documents on the JRPP files were from the Council. All the parties made extensive submissions on the documents in the tendered bundles which related to the stage 2 DA assessment and determination process. It is necessary to summarise these submissions to confine this judgment in some way.

[30]

(a) Failure to consider State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 and Baulkham Hills Resident DCP (FAPOC 23) 169The Council failed to assess the following mandatory relevant considerations which led to a miscarriage in the JRPP's consideration and determination process: (1)satisfaction required under cl 30 of the Seniors SEPP; a relevant environmental planning instrument under s 79C(1)(a)(i) (2)satisfaction required under cl 32 of the Seniors SEPP and how that relates to the matters in cl 33 - 39, in breach of s 79C(1)(a)(i). 170The assessment and consideration of design principles in cl 30 of the Seniors SEPP is cast in mandatory terms. There is no evidence of the requisite state of satisfaction expressed in cl 30 being reached. Mr Buckham's assessment report does not refer to cl 30 of the SEPP and there is no site analysis. The Council was required but failed to call evidence to contradict this and no witness was brought to deal with this aspect regarding the JRPP's consideration: Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321 at [21]. The Court can draw the inference that the requisite state of satisfaction expressed in cl 30 was not reached when the JRPP granted consent: see Hortis v Manly Council [1999] NSWLEC 151; (1999) 104 LGERA 43 at [171] - [172] affirmed in Manly Council v Hortis at [28] - [32]; and Coffs Harbour City Council v Arrawarra Beach [2006] NSWLEC 365; (2006) 148 LGERA 11 at [42]. This state of satisfaction was an essential precondition to the JRPP's exercise of power to grant consent. Therefore the consent is invalid: Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; (2009) 167 LGERA 52 at [19]. 171In a similar vein, as the assessment and consideration of the design principles in cl 33 - 39 of the Seniors SEPP are also cast in mandatory terms, the consent is invalid because the JRPP did not reach the requisite satisfaction regarding them when it granted consent. There is only mere advertence or lip service given to the design principles set out in cl 33 - 39 in the JRPP's Planning Report, contrary to Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at [86] and Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 at [58]. 172Section 79C(1)(b) and (c) required an engagement with the subject matter in the DA so that the suitability of the site for the development and likely impact of it could be properly understood: Weal at [13], [96]; and Centro Properties Limited v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 at [37]. The Council failed to assess and consider the volume, depth, drainage, compaction, need for retention, and the effect on the environment of the proposed method of retention, of fill on the Living Choice land. The Council also failed to assess and consider the impact of retaining structures on the amenity of Mr Rossi and his land, the overlooking and any loss of privacy to the Rossi land caused by the dwellings approved for construction on top of the proposed fill and adjacent to the Rossi boundary, and the need to impose any development consent conditions to ameliorate the environmental impact of the fill, the fill placement, any proposed method of retention of fill and whether such conditions were reasonable in all the circumstances. The JRPP Planning Report and proposed conditions of consent do not demonstrate any such assessment. 173The Council viewed fill and boundary wall treatment as matters of importance which it was not able to consider during the assessment of the stage 2 DA because of its misunderstanding of what the plans were for: see Council's assessment report for the August 2011 retaining wall DA (vol 3 tab 10 p 164); letter from Mr Buckham to Living Choice dated 12 October 2011 (vol 3 tab 9 p 341); letter from Mr Buckham to Living Choice dated 15 November 2011 (vol 3 tab 22 p 348); and internal Council memorandum dated 14 February 2012 (vol 3 tab 27 p 372). Mr Rossi relied on the letter written on 12 October 2011 by Mr Buckham of the Council in response to the retaining wall DA which stated to Living Choice's planners that he considered the stage 2 DA was misleading in relation to the quantity and placement of fill on the Rossi boundary. 174No northern elevation plan accompanied the DA. The approved plans do not show alteration in levels, retained land or walls on the Rossi boundary. The SEE did not mention the proposed filling of land along the Rossi boundary in addressing the LEP which permits filling of land with development consent in the rural 1(c) zone. The SEE makes misleading statements when addressing context and does not mention proposed filling. The SEE does not address proposed filling or boundary retaining walls when dealing with neighbourhood amenity and design under cl 33 of the Seniors SEPP. The existing contour plan does not extend the contours onto the Rossi land or the Anderson land. The view drawings showing elevations of the development at vol 1 B tab 27 p 4 do not have a north elevation for the Rossi boundary. This is a critical elevation for Mr Rossi. None of the cross-sections show the view of the development when completed from the Rossi land. The assessor's certificate issued in accordance with BASIX also indicates that dwellings 104 to 111 would have a floor type slab on the ground. 175In reply to the Council's submissions, Mr Rossi argued that "assessment" includes collation of material and the evaluative process involved in considering whether there is sufficient material for determination to ensue. The process of collation of material in a DA and providing reports as to their content as against the relevant heads of consideration in s 79C is an ordinary and well understood function undertaken by Council staff in the assessment and evaluation of DAs prior to determination by elected councillors. Biscoe J in Amalgamated Holdings at [38] held that cl 32 of the Seniors SEPP was a mandatory relevant consideration. As cl 30 is phrased similarly to cl 32, it must also be a mandatory relevant consideration. The failure to assess and consider both clauses means the DA was not properly assessed and the condition precedent to the JRPP's determination was not fulfilled. 176Mr Rossi submitted that the JRPP had no further information available to it than that supplied by the Council and the JRPP relied exclusively on the Council's assessment. The JRPP Planning Report prepared by Mr Buckham that was briefly considered and adopted without alteration by the JRPP is evidence of what the decision-maker did and the basis upon which it acted: see Simpson at [35]. Mr Rossi submitted that for the same reasons the Council's assessment task miscarried the JRPP's evaluation and consideration also failed. The JRPP relied on the Council's assessment, no other material was prepared or was evident on the material. Prescribed mandatory matters were not considered by the JRPP. 177No site analysis as required by cl 30(2) of the Seniors SEPP was provided. The plan identified as the site analysis plan does not contain all the necessary information required by cl 30.

[31]

(b) Failure to consider s 79C(1)(b)-(c) FAPOC 24-29 178Mr Rossi submitted that the suitability of the site for the development and the likely environmental impact on his property were not assessed by the Council and hence not considered by the JRPP, in breach of s 79C(1)(b) - (c). The grounds raising these issues are in FAPOC 25, 26, 27, 28, 29. Assessment of the likely impact and the suitability of the site requires an assessment and consideration of the subject matter of the DA so that these matters can be properly understood. As particularised in the FAPOC, various aspects of the intended fill required consideration but were not considered such as the placement and depth of fill on the Living Choice land, the need for retention,; compaction, drainage, the effect on the environment of any retention such as the visual impact of any method of retention, overlooking and loss of privacy to the Rossi land from dwellings approved to be constructed upon the fill, the landscape treatment, if any, and conditions that might be appropriate to ameliorate the impact of the fill. There is no evidence that the Council made any assessment of these matters. There is no mention of these in the JRPP Planning Report or the proposed conditions of consent. That is understandable given the material supplied by Living Choice to the Council. Despite the extensive documentation provided with the DA there is no reference to land being filled along the Rossi boundary. No specific northern elevation was provided. The general elevations of the dwelling types intended on the Rossi boundary adjacent to the Rossi land provided on the plans do not depict any alteration in levels, retained fill or walls on the Rossi boundary. This can be contrasted with the detail in the retaining walls DA. 179Mr Rossi's counsel made detailed submissions concerning the report prepared by City Plan Services on behalf of Living Choice dated April 2009 which is described as misleading in its portrayal of the development as compatible with the surrounding semi-rural residential land use to the north and west, as providing generous setbacks to these boundaries to provide a buffer at the interface of the two land uses and as providing spatial consistency with surrounding development. The report does not refer to cl 32 of the Seniors SEPP. In relation to cl 33, neighbourhood amenity and design, there is no mention of proposed filling or boundary retaining walls. The statement that the proposed development will have minimal impact on the visual and acoustic privacy of surrounding residences is grossly deceptive. 180In Weal Mason P at [13] stated that an understanding of relevant matters and their significance to the decision was required and a process of evaluation sufficient to warrant the description of the matter being taken into consideration. 181The plans (Vol 1 Part B table 27 pp 235,9,10,11,12) show retaining walls adjacent to Holland Road but no such walls are shown along the Rossi boundary. The site analysis plan (Vol 1B Tab 27) does not show the contours extending from the development site onto the Rossi land. Unless very careful in studying this plan it would not be appreciated that the land required filling and that houses were intended to be constructed at a significantly higher level than the adjacent land to the north and west. 182Living Choice prepared floor plans and elevations for Cranbrook, Endeavour and Darlington dwellings. The elevations and sections portray dwellings with a concrete slab on simple brick piers and the elevations show the dwellings sitting on level ground with a FFL marginally above the finished level of the ground outside. The left elevation of the Endeavour dwelling portrays a rear yard to the boundary which is at a flat level consistent with a photograph shown in volume 1 part A tab 9 p 44. 183In the assessor's certificate issued in accordance with BASIX the assessor also assumed the dwellings 104 to 111 would have a floor type all slab on ground "SOG". 184There are several legal consequences arising from the failure in assessment of the Council and the determination of the JRPP as outlined in par 30 (second) FAPOC. The decisions were manifestly unreasonable, irrational and arbitrary, not a valid exercise of the statutory power and beyond jurisdiction per Basten JA in Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 at [208].

[32]

(a) Failure to consider State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 and Baulkham Hills Resident DCP (FAPOC 23) 185In judicial review cases relying on a failure to consider mandatory matters under s 79C, the Court of Appeal has cautioned against the test in Weal requiring a decision-maker to give "proper, genuine and realistic consideration" to each matter it is bound to consider per Anderson at [54]-[56]; Swift v SAS Trustee Corporation [2010] NSWCA 182; (2010) 6 ASTLR 339 at [45]-[47] inter alia. 186Context is important when determining the extent to which a matter has been taken into account. The stage 2 DA was over a large area. The focus of Mr Rossi's case is one part of the large boundary of the Living Choice land the subject of the stage 2 DA. The stage 2 scheme included dense planting at the boundary and planting along the boundary was identified in the plans as being off-site. 187Division 2 of Part 3 of the Seniors SEPP should not be construed as a code of relevant considerations for the consent authority to take into account. While relevant under s 79C, its primary role is the design of the development not its assessment. This is made clear by the wording of cl 32 which requires that a consent authority must be satisfied that a proposed development demonstrates adequate regard for Div 2 principles. Mr Rossi's case also does not address the terms of cl 30, which requires that the consent authority be satisfied that a proponent has taken into account a site analysis prepared by the proponent in accordance with this clause. The consent authority has to be satisfied the proponent has taken matters into account. The SEE dealt with matters specific to cl 30 and that document was before the JRPP. 188A site analysis in cl 30 is not a site analysis plan, contrary to the central plank in Mr Rossi's argument. Clause 30(2) makes clear that an analysis is a narrative accompanied by statements and supported by plans, cl 30(2)(b). The clause does not require that all the information be in a single document (plan), but can be in a number of places per Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349 at [102]-[106]. A further table in the Council's written submissions (pp 21-29) identified where matters relevant to cl 30 were in evidence, which included matters beyond those identified in the FAPOC in relation to site dimensions, topography including spot levels and/or contours, natural drainage, services, existing vegetation, micro climates, location of buildings, views to and from the site, overshadowing, neighbouring buildings, privacy, difference in levels between the site and adjacent properties (existing contour plan sheet no 1.05/P1), views and solar access enjoyed by neighbouring properties, major trees on adjoining land, street frontage features, built form and character of adjacent development, distance to local facilities, public open space, adjoining bushland, adjoining land uses and activities, neighbourhood amenity and streetscape, solar access and design for climate and stormwater (stormwater was assessed entirely correctly by the Council). 189The Council sought additional information by letter dated 30 September 2009 about NSW Rural Fire Service requirements, submission of a detailed landscape plan requiring the identification of all existing trees clearly marked for retention or removal, and a detailed arborist report, inter alia. By letter dated 13 October 2009 the Council's engineer requested information about site drainage, extensive detail about vehicular access and parking, and a site layout plan identifying the extent and amount of fill and excavation. Further information was sought by letter dated 30 December 2009 in relation to site drainage, vehicular access and parking and reiteration of the requirement for a site layout plan identifying the extent and amount of earth fill and excavation. Living Choice provided a fill plan in response (vol 2B Tab 22). 190The BH Resident DCP Part C cl 3 (FAPOC 23(n)) does not apply as it concerns residential zones whereas this development is in a rural zone. In any case the material before the Council also demonstrates that cut and fill was considered by the Council. The JRPP was advised in the JRPP briefing note of 15 October 2009 that Council staff had identified the extent of earthworks as a matter requiring further information. The Council's assessment included fill with an earthworks plan submitted by Living Choice. Clause 32 was addressed in the JRPP Planning Report in the context of the principles set out in cl 33-39 in Div 2 of the Seniors SEPP which were considered to be satisfied. The landscape statement of intent (Vol 1A tab 17) provided information on screening about which the JRPP was informed. Vegetation not authorised for removal is to be protected. 191Mr Rossi's case elevates matters such as the difference in land levels and the placement of fill to specific mandatory relevant considerations when the SEPP is directed to consideration of matters at a higher level of generality per Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [41]. This can be contrasted with, for example, cl 27(2) of the Seniors SEPP which contains mandatory relevant considerations. 192In any event, there was no failure to consider mandatory relevant matters. Mr Rossi's submissions incorrectly focussed only on the JRPP Planning Report prepared by the Council for the JRPP. The assessment process was lengthy, went for over a year, and various matters were considered. In a lengthy table in written submissions the Council identified those parts of cl 30 which were addressed in the evidence (submissions pp 21 - 9) and those matters relevant to cl 32. The Council's engineering department sought additional information including in relation to earthworks and placement of fill which was provided by Living Choice's consultants. The consideration of matters related to infill development in the SEE while not applicable to this proposal are relevant. Further, any assessment must be considered at the time of that assessment. At that time a large number of pines along the Rossi boundary acted as a screen between the two parcels of land. Mr Hoyle's evidence established that the height of the pines at the time of the sale to Mr Rossi was over 6m. The pines would have acted as a screen to any development on the Rossi land had they remained. No authority was given for the removal of those trees. The distance between the subject development and the Rossi residence is quite large being 80m.

[33]

Living Choice's submissions 193Concerning the FAPOC par 22 (set out above in par 160) Living Choice submitted that the architectural plans as amended show seven villas adjacent to but set back 3m from the Rossi boundary with the Rossi land. These consisted of four buildings being attached Cranbrook/Darlington villa units with FFL of 139.80, freestanding Endeavour villa with FFL of 138.90, attached Cranbrook/Darlington villas with FFL of 137.40 and attached Endeavour villas with FFL 135.90. The concept drawings are not intended to show a particular location and are to be read in context with the balance of the information included in the stage 2 DA. The architectural plans included concept drawings for the different villa types. 194The cross-sections attached to the JRPP Briefing Note dated 15 October 2009 were not incomplete or erroneous. Cross-section D, along the north-south axis of Road No. 2, looks east at four buildings being eight attached villa units. While the prolongation of cross-section D to the boundary with the Rossi land intersects a negligible portion of Darlington villa 105 on the plan, it is immaterial that this negligible portion is not shown in cross-section D. 195The existing contour plan and the civil design documentation respectively are based on a detail and contour survey dated 29 October 2007. These documents, and the statement of landscape intent, show the existing site dam and a ground level (existing) spot height of 131.93m adjacent to the north-western corner of the Rossi boundary and demonstrate that, commencing in that north-western corner, the existing dam wall inside Living Choice's boundary rose to a ground level (existing) of at least 134.92m in the vicinity of Endeavour villa 111 (subsequently renumbered 210), and to a ground level (existing) of at least 136.12m in the vicinity of the driveway to Cranbrook villa 109 (subsequently renumbered 208). That is, pre-development, the ground level (existing) of the existing dam on Living Choice's land was three or four metres above a ground level (existing) spot height of 131.93m adjacent to the north western corner of the Rossi boundary. Having regard to the Endeavour villa 111 FFL of 135.90m, and the fact that the bulk earthworks levels would necessarily finish below the slab FFLs, the proposal simply cannot have involved placing the alleged quantity and depth of fill on Living Choice's land of 4m to FFL.

[34]

(a) Failure to consider State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 and Baulkham Hills Resident DCP (FAPOC 23) 196For Mr Rossi to succeed he must prove a breach of s 79C of the EPA Act by the Council and/or the JRPP. 197The information supplied by Living Choice in support of the DA was provided in four tranches. The first tranche consisted of the documents supporting the DA identified in par 15 (a - n) of written submissions and was supplied by the Council to the JRPP on 26 August 2009. These documents are contained in vol 1A and 1B being those documents produced by the JRPP. All except the waste management plan were produced pursuant to a subpoena by the JRPP. A briefing note dated 15 October 2009 was prepared by the Council for the JRPP. An interactive briefing was held on 15 October 2009. The Council sought additional information on various matters including earthworks. 198The second tranche of information consisted of a letter and an email dated 1 April 2010 from City Plan Services with attachments including earthworks details. A second interactive briefing of the JRPP was held on 22 April 2010 with a briefing note prepared on 21 April 2010. The third tranche of information was contained in City Plan Services' emails dated 29 April 2010 and 3 May 2010 and enclosures including revised construction staging plans. The Council prepared a third briefing note to the JRPP (a JRPP Status Report) some time after 4 May 2010 and possibly after 11 May 2010. This included an assessment of the proposal's compliance with the Seniors SEPP including but not limited to 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 submissions including the external design and appearance of the development. The Council recommended to the JRPP that the DA be deferred to allow Living Choice to address concerns raised by the Council and the NSW Rural Fire Service. 199The fourth tranche of information was contained in an email from City Plan Services and a letter dated 10 June 2010 and enclosures. The Council prepared a detailed assessment and fourth briefing called a JRPP Planning Report prepared some time after 13 August 2010 prior to publication of the JRPP's meeting agenda and business paper concerning an interactive public meeting held on 23 September 2010. The JRPP Planning Report added substantively to the JRPP Status report (May 2010). It included an assessment of issues for consideration including addressing compliance with the Seniors SEPP, site compatibility certificate required by cl 24 - 25, site-related requirements of cl 26 - 28, design requirements of cl 32 - 39, the development standard requirements of cl 40, compliance with the LEP 2005, the NSW Rural Fire Services General Terms of Approval, response to issues raised in submissions, including the external design and appearance of the development and the requirements of s 79C(1)(a)-(e) of the EPA Act. 200The JRPP Planning Report dated 20 August 2009 included a statement of compliance with the Seniors SEPP which must be taken to include cl 30. It is implicit that the JRPP as consent authority was satisfied for the purposes of cl 30 that Living Choice had taken into account a site analysis meeting the description in cl 30(2) and that the proposed development demonstrated that adequate regard had been given to the principles in cl 33 - 39, as a precondition to adopting the Council's recommendation for approval. 201A certificate of site compatibility and the Director-General's letter dated 5 March 2009 expressly refer to the criteria specified in cl 25(5)(b) of the Seniors SEPP. An available inference is that the conditions precedent in subclauses 25(5)(a) and (b) exist. Schedule A prepared by Living Choice identifies those documents before the Council or the JRPP which allow the consideration of mandatory matters of relevance to the proposed development. Schedule B sets out further material constituting the process of evaluation of the matters identified in subparagraph 23 of the FAPOC. The material on the JRPP file can be treated as in the possession of the panel members per Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67], [72]. At the least the documents in vol 1A and 1B were in the possession of the JRPP members, including the first tranche of information which included site cross-sections and civil design documentation. The JRPP interactively applied its collegiate mind to DA 280/2010/JP over a 13 month period. No case against JRPP 202Mr Rossi has not demonstrated any failure by the JRPP to take into consideration mandatory matters in relation to the DA. Officers of the Council did provide assessment reports and other information which included the consideration of s 79C(1) matters that were relevant. The inference arises that all those documents were before the panel members. An equally available inference is that the JRPP also applied its collegiate mind to the other information included in the DA, to the interactive briefings and to the speakers who addressed its public meeting over the 13 month period before deciding the DA. The JRPP may base its determination on its own assessment; Amalgamated Holdings (obiter at [27]). The JRPP had 83 conditions proposed by the Council especially 9, 11-13, 15, 24, 32(b), 35-36, 41, 43, 46, 59-60 and 62. 203Clause 30 of the Seniors SEPP was expressly referred to in the SEE. It requires that a consent authority not approve a development under the Seniors SEPP unless satisfied that a proponent has taken into account a site analysis (defined in cl 3(1)) prepared by the proponent in accordance with cl 30. There is no requirement in the Regulation that a DA must include a "site analysis" for the purposes of cl 30 of the Seniors SEPP. The DA demonstrated the process of identification and analysis of key features of the site and immediate surroundings to assist in understanding how future dwellings would relate to each other and to their locality (not confined to neighbouring sites). The DA included information about the site and its surrounds as referred to in cl 30(3) and (4) and was accompanied by all of the written statements (identified in Sch A of Living Choice's written submissions), and architectural and other plans. 204The SEE expressly refers to s 79C as does the JRPP Status Report and the JRPP Planning Report (August 2010), all of which are on the JRPP file. An available inference is that each of those written assessments is informed by s 79C. The recommendation of the JRPP included numerous conditions of consent and the Court would draw the inference that the JRPP considered a number of matters specified in s 79C(1) of relevance to the development, as part of the exclusive function of determination of the JRPP. 205Taking into account all the material before the JRPP the Court would find that the JRPP as the consent authority was satisfied for the purposes of cl 30(1) that Living Choice had taken into account a site analysis meeting the description in cl 30(2). Mr Rossi's case ignores any material beyond Site Analysis Plan 1.07/P1 dated 28 July 2009 and a paragraph in the SEE. What is required by cl 30 is the consent authority's subjective satisfaction contrary to Mr Rossi's submissions. 206In relation to cl 32 and cl 33 - 39, cl 32 requires only that a consent authority not consent to a development application made pursuant to Ch 3 of the Seniors SEPP unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in cl 33 - 39. Clause 32 is concerned only with the consent authority's subjective satisfaction. The JRPP Planning Report included a statement of compliance with the Seniors SEPP which must be taken to include cl 32. Clauses 33 - 39 are not mandatory relevant considerations. 207Mr Rossi has not established on the balance of probabilities that the Council and/or the JRPP failed to take into consideration a mandatory matter of relevance to the development.

[37]

Failure to consider s 79C(1)(b), (c) and (e) 212The provisions of s 79C(1) are broad and, it is obvious to observe, do not refer to the placement and retention of fill as a matter that must be considered. Paragraphs 25, 26, 27 and 28 of the FAPOC overlap to a large degree, Mr Rossi alleging in several ways failures to assess and consider the placement and retention of fill on the Rossi boundary and the impact necessary retention walls and elevated villas would have on the amenity of the Rossi land including loss of privacy. Whether a particular matter is a mandatory relevant consideration depends on the construction of the statute conferring the discretion. If not expressly stated such a matter must be determined by implication from the subject matter, scope and purpose of the relevant Act, per Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-41. Mr Rossi relies on s 79C(1)(b), (c) and (e). 213There has been much judicial consideration of the judicial review ground of failure to consider a mandatory matter commencing with the High Court in Peko-Wallsend per Mason J at 41. In Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at 297 Basten JA, noted in Walker per Hodgson JA at [35] and in Notaras v Waverley Council [2007] NSWCA 333 at [118] per Tobias JA, identified its application must not lead to impermissible merits review. Mr Rossi's counsel has relied on Weal per Giles JA (Priestley JA agreeing) at [80] finding that taking matters into consideration requires more than adverting to them but rather an understanding of the matters, the significance of the decision to be made about them and a process of evaluation. In Kindimindi Basten JA at [76] considered Weal and other authorities before concluding that care is necessary in relation to requiring "proper, genuine and realistic" consideration by a decision-maker. As Living Choice submitted, an inference of mere advertence must be drawn only after anxious consideration; Centro Properties at [37] referring to Parramatta City Council v Hale (1982) 47 LGRA 319, Currey v Sutherland Shire Council (1998) 100 LGERA 365. The Council emphasised that a decision based on consideration which is more than lip service will be valid, per Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302 at [111], Williams v Minister for Planning [2009] NSWLEC 5; (2009) 164 LGERA 204 at [41]. These cautionary findings must be borne in mind given Mr Rossi's reliance on Weal. 214Extensive submissions were made about what the plans lodged in support of the stage 2 DA disclosed about differences in levels of the Rossi and Living Choice lands on or near the Rossi boundary. These are outlined in the submissions of Living Choice at par 195. Living Choice submitted and its planner wrote on 23 November 2011 to the Council that the plans lodged initially by Living Choice in support of the stage 2 DA disclosed the relevant heights of the land on the boundary as well as the FFL of the various residential units so that it must have been clear to anyone assessing the plans that there was a variation in height between the FFL sought in the application and the boundary, particularly in the western corner. That submission is supported by the documents lodged with the Council. 215The plans lodged with the Council included the existing contour plan (sheet no 1.05/P1) which show the contours along the Rossi boundary, with the 8m fall from east to west across the boundary from 139.75m to 131.93m. The dam wall berm heights are 134.61 to 134.12m in the western corner of the Living Choice land close to the Rossi boundary. Villa 210 in the western corner is located 3m from the Rossi boundary and 6m from the Anderson boundary and must be located generally over the dam area, although the precise correlation between the two is not indicated on a plan before the Court. This relationship can be inferred from the site plan stage 2 sheet no 1.02/P1 showing villa 210 (then numbered 211) with a FFL 135.90 and the existing contour plan sheet no 1.05/P1. Villas 204-210 face road no 2 which runs from the intersection with road no 1 within the Living Choice land and ends at the Anderson boundary. Road longitudinal section sheet 89022007-004 Rev 1 was provided by Cardno Engineering which shows the depth of cut and fill necessary to create the northern no 2 road at the design level along its length. The road passes over the dam. Villas 204 - 210 face the road. The existing levels, design levels (height at which the road is to be built) and the amount of fill in the location of the dam invert are shown as requiring fill ranging from 2.122 to 1.353 cubic metres where the design levels are 136.244 to 135.44m. That information was before the Council. 216Mr Rossi's counsel undertook a subtraction exercise of comparing the natural ground levels on the Rossi boundary with the submitted plans to show the large differences between the two. This was made in support of a submission that up to 4m of fill was placed on the Living Choice land to ensure villas were built at the approved FFL. The subtraction exercise does identify changes in height up to 4m although generally less. While Living Choice submitted that fill was up to slab height and must be less than 4m, the plans lodged in support of the stage 2 DA show that substantial quantities of fill were necessary in the north-western corner to achieve the approved FFLs reducing to the east as the slope of the land reduced. 217Living Choice also submitted that at the western end of the Rossi boundary the natural ground level should be measured at the top of the dam wall and consequently the variation in ground level at that point from the FFL of the villas was minimal. This was the approach reflected in Mr Elliott's evidence that only 500mm of fill was necessary so that the villas were built as slab on ground level 3m from the Rossi boundary. 218Even if the top of the dam wall height is considered the relevant ground level for villas 204 - 210, additional fill was required over and above 500mm in the invert of the dam. All villas on the Rossi boundary required fill under them to varying degrees in order to achieve the approved FFL under the slab. Further, at the western end of the Rossi boundary the natural ground level of Mr Rossi's property varied to a substantial degree from the dam wall height, requiring fill which has resulted in villas 210 and 209, 208 and 207, 206 to a lesser extent, being elevated well above the Rossi land. As Mr Rossi emphasised the plans before the Council did disclose that there was a marked change from that height to the Rossi boundary. 219As identified in the documents supplied by Living Choice, such as the disability access report, the Seniors SEPP requires self-contained dwellings to be built at certain levels to enhance mobility and accessibility for residents. Grading across the site to achieve the necessary levels was proposed to achieve that end and engineering drawings by Cardno prepared to give effect to these requirements. During the Council assessment process the engineering department requested a further earthworks plan from Living Choice's consultants which was provided. This showed fill was intended to be placed across the whole site including on the Rossi boundary. This material suggests that Council officers were aware generally that earthworks, grading and filling, were necessary to varying degrees across the site. The earthworks plan requested does not identify the retention measures intended on the Rossi boundary. There is no mention of the retention of fill on the Rossi boundary in the Council's reports to the JRPP. 220A site plan showing overall villa locations for the whole site was provided and approved. Separate floor plans of villas proposed in various configurations lodged with the stage 2 DA and approved by the JRPP are indicative not actual. The indicative villa floor plans lodged with the stage 2 DA generally suggested a slab on ground boundary treatment. The only cross-section of the proposed development on the Rossi boundary (at D) is at the eastern end of the boundary where the difference in levels between the Living Choice land and the Rossi land is minimal. None of the indicative floor plans or cross-sections lodged reflect the actual boundary treatment for fill intended along the Rossi boundary particularly towards the western end of the Rossi boundary.

[38]

221If the correspondence from Mr Buckham, the principal assessing officer within the Council, dated 12 October 2011 and his assessment report of the first version of the retaining wall DA (seeking consent for a retaining wall of variable height up to 3.1m on the Rossi boundary) is considered, as relied on by Mr Rossi, Mr Buckham stated that the stage 2 DA did not properly identify the intended retention of fill on the Rossi boundary. That these statements were made after the assessment process for the stage 2 DA does not render them irrelevant, contrary to the submissions of Living Choice. In Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [104]-[105] Spigelman CJ recognised that evidence arising after a decision is made can be considered by a court which is reviewing a jurisdictional fact. I am not determining a jurisdictional fact. Nevertheless similar reasoning should apply so that these statements after the event are relevant to illustrate the state of mind of the assessment officer in the Council at the time he was undertaking the assessment. 222I agree with Mr Rossi that these statements can properly be considered to reflect Mr Buckham's state of mind at the time he considered the stage 2 DA in relation to the Rossi boundary. This suggests that Mr Buckham as the assessment officer did not appreciate that retaining walls were intended on or near the Rossi boundary. The effect of these statements is not undermined by a later letter from the Council's solicitor dated 10 January 2012 to Mr Rossi's solicitor stating that all mandatory relevant matters had been satisfied. Mr Buckham understood that the houses would be slab on ground. As Living Choice's letter from its planners to the Council dated 23 November 2011 conceded, retaining walls were not identified for the entirety of the stage 2 site. Mr Buckham's later statements are significant as they reflect his state of mind when he informed the JRPP in the Council reports and briefings he prepared.

[39]

223The principle in Browne v Dunn (1893) 6 R 67 requires that if any adverse imputation is to be attributed to a witness he or she should be given the opportunity to respond to that imputation, generally in cross-examination (see discussion in Odgers, Uniform Evidence Law at [1.2.4440]). Mr Buckham gave evidence for the Council in relation to the notification of the stage 2 DA, not in relation to his assessment of the stage 2 DA. Mr Rossi's counsel was criticised by the Respondents' counsel for not cross-examining Mr Buckham about his assessment of the DA as part of Mr Rossi's case that the Council failed in its assessment of the stage 2 DA in relation to the Rossi boundary. Mr Rossi's counsel submitted that cross-examination on this topic was unnecessary. Mr Rossi relied on Mr Buckham's statements in letters written to Living Choice and his Council reports in 2011 responding to the retaining walls DA lodged with the Council where he stated he had been misled in the stage 2 DA about the boundary treatment on the Rossi boundary as being slab on ground or a modest battered slope to natural ground level. Mr Rossi's counsel submitted that he had nothing to test Mr Buckham's evidence about. No adverse inference based on Browne v Dunn should be drawn against Mr Rossi's case in these circumstances. Mr Rossi's counsel does not impugn Mr Buckham's abilities as the assessing officer which would potentially give rise to the application of Browne v Dunn. Rather his written statements are embraced in Mr Rossi's case. 224As Mr Rossi's counsel submitted, the plans lodged with the stage 2 DA along the Holland Road section on the southern boundary show retaining walls and batter. By way of contrast, no plans alerted Mr Buckham to the retention of fill apparently intended for the Rossi boundary on the western end. There was no express reference to the retention of fill on the Rossi boundary in the stage 2 DA documents. Comments were made more generally in the Council's assessment report to the JRPP that the proposal complied with the general locality. It cannot be inferred that the retention of fill on the Rossi boundary was assessed by someone in the Council, and therefore by the JRPP in its determination. 225Mr Buckton from Living Choice gave oral evidence that filling of the dam area near the north-western corner of the Rossi boundary and cut and fill to varying degrees along the boundary was required. Retention walls were thought to be necessary to achieve this. That at all times it was the intention of Living Choice to employ retaining walls of some description on the Rossi boundary is confirmed by the first options for the treatment of the Rossi boundary presented by Mr Buckton to Mr Rossi on 8 July 2011. The first option was described as being consistent with the development consent and shows a 600mm landscaping wall on the boundary, 1 vertical to 6 horizontal batter between walls for a short distance, a retaining wall of variable length up to 3.4m maximum, with an average of 2.5m, up to slab height with a 1.5m privacy screen on top. I note that the Council did not agree that this option was consistent with the stage 2 consent on the basis that the stage 2 consent did not authorise such structures on the boundary. The second option was similar except that the villa yards were at the same height as the privacy screen. A third option identified was a retaining wall on the boundary of variable height of maximum 3.4m with an average of 2.5m. This option was similar to that first applied for by Living Choice in the retaining walls DA which proposed a retaining wall up to 3.1m on the boundary. The Council refused that application on 28 February 2012. The proposal was subsequently amended as contained in the retaining walls consent.

[40]

Breach of s 79C(1) established 226It is relatively straightforward to conclude that the method of retention of fill, here retaining walls, and the impact of these on Mr Rossi's land were not considered in the assessment process. In relation to the actual location and volume of fill, the Council had plans before it which did show the proposed FFLs and the height of the land at spots along the Rossi boundary including on the western end of the boundary. Additional details of the intended fill were sought by the Council's engineer. The earthworks plan provided by Living Choice to the Council shows fill across the whole of the 7ha site. It is difficult to conclude in these circumstances that there was no assessment by the Council of the fill intended to be placed in order to locate villas 204-210 at certain levels. The JRPP was told that the Council had requested further information about earthworks. No issue was identified by the Council to the JRPP in relation to the proposed FFLs for the villas suggesting these were considered satisfactory. 227Mr Rossi challenged the assessment of one part of the boundary of the large stage 2 site. The Respondents emphasised that a large scale development was before the Council and that the assessment needs to be considered in that context. The Respondents have pointed to the lengthy period of assessment of the stage 2 DA and the large volume of material provided in support of it. Those submissions can all be accepted. That a development is complex and over a large area does not mean that assessment is sufficient if undertaken at a general level. The nature of the development cannot overcome the absence of consideration of fill retention and overlooking, being amenity impacts at the Rossi boundary, by the Council in its assessment of the DA and consequently the JRPP when it determined to grant development consent. While Living Choice submitted that the Court can infer the JRPP members read all the documents sent by the Council and I agree (per Schroders), there is no reference in the documents which would alert them to this issue. The additional earthworks plan requested by the Council's engineering department was not sent to the JRPP and does not refer to retention measures on the Rossi boundary. The JRPP was told in the 15 October 2009 briefing paper that more information about earthworks was to be sought. No further briefing on that topic was provided. There is no basis to infer that the expertise of the JRPP members would have allowed them to otherwise assess this issue as it was not drawn to their attention and is not apparent, as already stated, from the documents. 228Reference was made to Walker in the Court of Appeal where Hodgson JA at [41] held that the requirement to consider the public interest in s 79C(1)(e) operates at a very high level of generality and did not of itself require that regard be had to any particular aspect of the EPA Act scheme. Mr Rossi's case relied on more than subsection (e) of s 79C(1) and raised matters that I consider were fundamental to the assessment exercise required under s 79C(1) in relation to subsection (b) in particular. There was a failure to consider the impact of the stage 2 development on the Rossi boundary in the Council's assessment. That matter is a mandatory relevant consideration given the requirement to take the likely impact of the development on the natural and built environment into account as specified in s 79C(1)(b) and suitability of the site under subsection (c). This must be considered in the context of large scale medium density housing proposed in a rural zone which, but for the Seniors SEPP, would be prohibited. 229This is not a case where there is inadequate reference to a mandatory matter. As Mr Rossi submitted there is no reference to fill retention on the Rossi boundary in the material provided by Living Choice to the Council and by the Council to the JRPP. Consequently the impact of the proposed development on the Rossi land did not arise. To the extent there was some assessment by the Council's engineering department, that did not apparently inform the understanding of the Council's assessment officer Mr Buckham in relation to intended retention of fill on the Rossi boundary. Mr Buckham bore much of the responsibility for briefing the JRPP. In these circumstances it is appropriate to conclude there was no assessment of this matter by the Council. It is not necessary to discuss further the cautionary statements about Weal referred to at par 213. As there was no advertence to a fundamental matter in the assessment by the Council and hence in the reports by the Council to the JRPP, and the JRPP chose to rely on the Council's assessment as it was entitled to, I consider that the JRPP in its determination also failed to consider a mandatory relevant matter under s 79C(1)(b) and (c).

[42]

Failure to consider Seniors SEPP under s 79C(1)(a)(i) 234Mr Rossi bears the onus of establishing that the Council and hence the JRPP erred in law in failing to consider cl 30 and cl 32 of the Seniors SEPP when the stage 2 DA was assessed by the Council and determined by the JRPP. While Mr Rossi's counsel submitted that cl 30 of the Seniors SEPP refers to a consent authority which must refer to the Council not the JRPP, cl 30(1) states that a consent authority before granting consent must be satisfied of a certain matter. The JRPP has the function of determination conferred on it and in doing so is exercising that function of the Council as a consent authority. In this case the obligation in cl 30 falls on the JRPP. Whether cl 30 and 32 are mandatory relevant considerations in the way Mr Rossi's counsel contended is in issue. Mr Rossi relied on Hortis, Franklins Limited v Penrith City Council [1999] NSWCA 134 and Arrawarra Beach to assert a failure to properly consider a mandatory relevant matter in relation to cl 30 and cl 32. 235The terms of the statutory instrument must always be considered to determine if these give rise to a particular mandatory consideration. The mandatory statutory provisions found not to have been considered by a council in Hortis were two LEP provisions which stated, firstly, that a council must not grant consent to the carrying out of development on land to which the plan applies unless the council is of the opinion that the carrying out of development on land is consistent with the objectives of the zone where development is proposed; secondly, the council shall not grant consent to development unless satisfied that development would not have a detrimental impact on amenity of foreshore scenic protection areas. In Franklins the provision was that a person can carry out development for the purposes of a wholesale and retail warehouse only if the council is satisfied that not less than 60 percent of the goods from the land will be resold by retail. In Arrawarra Beach the instrument provided that consent must not be granted unless the consent authority had taken into account certain objectives of the Marine Parks Act 1997 and the proposed activity, in the opinion of the consent authority, would not have an effect on plants and animals within the marine park and their habitat. Such provisions are of a different character to cl 30 and cl 32 as they specify that a consent authority was required to consider a particular matter.

[43]

Clause 30 236Clause 30 is different from the provisions considered in Hortis, Franklins and Arrawarra Beach in requiring the consent authority to be satisfied that an applicant for development has taken into account a site analysis prepared in accordance with the clause. Clause 30(2) identifies that a site analysis must contain information about the site and its surrounds in subclauses (3) and (4), and be accompanied by a written statement detailing a number of specified matters. Clause 30(3) identifies at (a)-(h) various matters about the site and subclause (4) information about the site surrounds which must be identified in a site analysis. No issue was raised about cl 30(3). 237A late issue added in the course of the hearing was whether or not a site analysis required by cl 30 was provided by Living Choice (FAPOC par 23(m)). This was a major focus of Mr Rossi's submissions and appropriately so as that is central to the operation of the clause. Clause 30 requires the achievement of the requisite state of satisfaction of the decision-maker, the JRPP, that Living Choice had taken into account a site analysis which satisfied the broad requirements identified in cl 30(2)-(4). While FAPOC par 23(b), (c), (d), (e), (f) and (g) were drafted to refer to a failure to consider various matters by the Council and the JRPP relying on cl 30(4)(b), (c), (d) and (f), these subclauses are not separate mandatory considerations, as the Respondents submitted, but information required by cl 30(2) to be identified in a site analysis. Paragraph 23 of the FAPOC does not reflect the obligation imposed by cl 30 and need not be considered in the terms raised in relation to these subclauses of cl 30(4). Further, given the general terms of cl 30(4) the specific matters raised in the FAPOC par 23 (c)-(g) are not reflective of the information required by cl 30. As considered in the previous section at par 215, a number of plans lodged in support of the stage 2 DA indicate spot levels on the Rossi boundary, the dam which previously existed in the north-west corner close to the boundary and the FFL of the proposed villas. This material does address FAPOC par 23(a) and (b) and wherever cl 30(4)(d) is identified in the FAPOC. 238Clause 30(1) does not require that a site analysis be prepared as a single document, and cl 30(2) suggests to the contrary in any event as it refers to a written statement supported by plans. Such information can be located in more than one place in the documents supporting a DA, as is the case in this matter. While Mr Rossi's counsel was critical of the Respondents' submissions which included lengthy tables recording references to various documents filed in support of the DA referring to information required in cl 30(2)-(4), that appears an appropriate approach to a large development of this nature and is compliant with cl 30(2). 239The SEE states (p 19) 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 (Rossi) and west (Anderson). The proposal provides generous setbacks to these boundaries to provide a buffer at the interface of the two land uses. In relation to cl 30, the SEE states that a site analysis plan is included which details the relevant information relating to site attributes and context. Additionally the SEE states that the content of the report is provided which seeks to expand upon the design motivations, context, strategic and statutory environment around the proposal. Clause 31 of the Seniors Living Policy Urban Design Guidelines for Infill Development is referred to. While the parties agreed this did not in fact apply, the matters identified and addressed are relevant to cl 30 considerations. Additional matters addressed in the SEE include impacts on streetscape referring to built form, trees, landscaping and impacts on neighbours described as "protect neighbours amenity by carefully designing bulk and scale, reduce visual bulk of roof forms, design second storeys to reduce overlooking of neighbours' properties, reduce impact of unrelieved walls on narrow side and rear setbacks." In relation to trees, landscaping and deep soil zones these provide privacy between new and existing dwellings, consider planting for privacy, and shade and species characteristic of local area. There is specific reference to the design principles in cl 33 and cl 34 of the Seniors SEPP. Numerous reports and plans were included in support of the DA as outlined at par 15. This material was supplied to the JRPP. 240The nature of the material, including the documents referred to in the previous paragraph, supplied to the Council in four tranches by Living Choice in support of the stage 2 DA over a number of months is summarised above in par 197-199. This information was further presented by Living Choice in table A to reflect the FAPOC par 23 and where information relevant to these was located in the four tranches of information. Table B provided references to where the Council had considered issues in its internal referrals and in four briefings to the JRPP, addressing both cl 30 and cl 32. The Council provided two tables in its submissions. The first table refers to the matters raised in the FAPOC par 23 and identifies where material relevant to the matters raised is located in the evidence. The second table identifies by reference to cl 30 the material submitted by Living Choice which the Council submitted showed that the clause was satisfied. 241There is difficulty in reconciling the opposing cases of the parties in the context of the Seniors SEPP because I agree with the Respondents, particularly the Council, that the SEPP is directed at a general level of assessment of what in this case is a large scale development across several hectares of land. The general nature of the site analysis required is clear from a reading of cl 30. If information at a general level is sufficient to satisfy cl 30 it is apparent that a site analysis was supplied by Living Choice and assessed adequately by the Council when the contents of the tables in its submissions are considered. It is difficult to summarise the content of the Respondents' tables in the detail presented in the evidence as the material referred to is voluminous, reflecting the amount of material supplied in support of the stage 2 DA. Having perused in the course of the hearing the documents referred to I agree that the documents identified by the Council and Living Choice did provide the general information required in a site analysis. The information having been prepared and considered by Living Choice and its consultants there is a basis for the JRPP concluding pursuant to cl 30(1) that Living Choice had taken into account a compliant site analysis. 242Mr Rossi argued that cl 30 must be referred to in the Council's documents before the JRPP and it was not, relying on Hortis, Franklins Limited v Penrith City Council [1999] NSWCA 134 and Arrawarra Beach to assert a failure to properly consider a mandatory relevant matter. Provided a council or a JRPP addresses the question it is required to address it does not have to refer explicitly to the statute or instrument that poses the question. Absence of explicit reference to the statutory provision does not alone indicate a provision was not considered; Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 at [53]. Mr Rossi's submissions focussed on the absence of reference to cl 30 in the material prepared by the Council before the JRPP as indicating that the necessary assessment was not undertaken by the Council and therefore consideration was not given by the JRPP. As the Respondents identified, the SEE addressed cl 30 and was provided to the JRPP. The Council recommended approval of the development and in the final report to the JRPP stated that the proposal complied with the Seniors SEPP. I accept the Respondents' submissions that cl 30 was addressed to the Council's satisfaction, the JRPP was so advised and was able to consider the large amount of material filed in support of the application including the SEE in its determination. Mr Rossi's case as pleaded in relation to cl 30 is not established.

[44]

Clause 32 243Numerous failures to comply with cl 32 are also raised in the FAPOC par 23(a) - (g) relying on the same matters as identified for cl 30. The FAPOC cited cl 32 in relation to the failure to consider the difference in land levels between the Living Choice land and the Rossi land, the difference in height of the FFLs, overall heights of buildings and the levels of the Rossi land; numerous failures to consider the extent of fill intended to be placed on the Rossi boundary, its retention and the impact of that on the Rossi land and how the proposed development would adversely affect existing trees on the Living Choice land and the Rossi land. The particular principles relied on in the FAPOC are cl 33(c)(i), (ii) and (iv) dealing with neighbourhood amenity, cl 34 (visual and acoustic privacy) and cl 36 (stormwater). 244Clause 32 states that a consent authority cannot approve a DA unless satisfied a proposed development demonstrates adequate regard has been given to the design principles identified in Div 2 of Part 3. This requirement is different to the specific provisions in Hortis, Franklins and Arrawarra Beach as already discussed above in par 235. In this matter the JRPP as the body with the function of determination as the consent authority for the stage 2 DA must not consent unless satisfied that the proposed development demonstrates that adequate regard had been given to the design principles in Div 2 by Living Choice. Mr Rossi's counsel submitted that this gave rise to numerous mandatory relevant considerations on the part of the consent authority but that does not reflect the consideration cl 32 requires, as emphasised by the Respondents. The design principles in Div 2 of Part 3 of the Seniors SEPP are not free-standing mandatory considerations for the consent authority under s 79C: Amalgamated Holdings at [38]. The JRPP had to be satisfied that adequate regard had been given to the Div 2 design principles by Living Choice not that the JRPP had to consider the design principles as mandatory relevant considerations in its own determination. There is reference to satisfaction of cl 32 and the design principles in the final report of the Council to the JRPP. 245As identified in the Respondents' submissions including tables summarising references to material relating to cl 30 and cl 32 referred to above in par 240, there was a lengthy assessment process which does demonstrate that the particular design principles referred to by Mr Rossi were addressed. Once again there is some difficulty in marrying the specific assessment requirements which underpin Mr Rossi's case with the broader obligations for assessment identified in cl 32. The Rossi boundary is one part of a much larger development site the subject of the DA. I have found already that Mr Rossi has established that there was a failure to consider the need for retention of fill and the impact of that on the Rossi land which matters were mandatory relevant considerations. That failure arose because of the absence of any proposal for retention walls on or near the Rossi boundary in the documents lodged by Living Choice. It also must follow that to the extent that cl 32 required the JRPP to be satisfied that certain matters were taken into account by Living Choice, there was a failure in consideration of the management of the development form along the Rossi boundary in the western corner in particular. Therefore the JRPP could not be satisfied of consideration by Living Choice of design principles in cl 33(c)(i) and (ii) in relation to that area. That clause requires maintaining reasonable neighbourhood amenity by providing building setbacks to reduce bulk and overshadowing, and using building form and siting that relate to the site's land form. This is the subject of FAPOC par 23(f), (h), (i) and (j). While it is possible to conclude that much of the material before the Council and ultimately the JRPP did properly address the design guidelines in cl 33, there is a demonstrated failure in relation to consideration by Living Choice of the impact on the Rossi boundary in the context of the design principles. 246Separately, amenity issues as found in the design principles in cl 33(a) and (c) concerning spatial arrangement and cl 34(a) regarding privacy are identified in the FAPOC. These impacts flow from the failure to identify the intended retention of fill on the Rossi boundary by Living Choice. This is a matter where the obligation imposed on the JRPP in cl 32 could not have been discharged. This part of this ground of judicial review is established.

[49]

Ground 3 - Failure of 12 October 2010 notification of DA by the Council (FAPOC cl 13(b), 17 - 21) 254The Council retained the function of notifying the determination of a DA as a consent authority according to cl 13F(2)(d) of the Major Development SEPP. Paragraphs 17 to 21 of the FAPOC allege that the notification dated 12 October 2010 sent by the Council was invalid because it was not in accordance with the EPA Regulation cl 100 and EPA Act s 81(1). It did not contain the conditions imposed by the JRPP, but included general conditions including condition C(3) which was not in accordance with the JRPP's determination, it incorrectly identified the Council as having determined the DA, and it did not contain the date on which the determination was made. 255The relevant sections of the EPA Act and clauses of the EPA Regulation dealing with notification and commencement of development consents including those approved by the JRPP follow. 256Section 80 of the EPA Act "Determination" provides: (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. ... Section 81(1) headed "Post-determination notification" provides: The consent authority must, in accordance with the regulations, notify its determination of a development application to: (a) the applicant, and ... (c) such other persons as are required by the regulations to be notified of the determination of the development application. Section 83 headed "Date from which consent operates" relevantly provides: (1) ... if a determination is made by the granting of consent, the consent becomes effective and operates from: (a) ... the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82D (4) ... ... (5) Despite any other provision of this section, a development consent is taken to become effective and operate from such date as may be fixed by: (a) a court (whether or not the Land and Environment Court) that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the consent ... 257The EPA Regulation cl 100 "Notice of determination" relevantly states: (1) For the purposes of section 81 (1) of the Act, a notice of the determination of a development application must contain the following information: (a) whether the application has been granted or refused, (b) if the application has been granted, the terms of any conditions (including conditions prescribed under section 80A (11) of the Act) on which it has been granted, (c) if the application has been refused, or granted subject to conditions (other than conditions prescribed under section 80A (11) of the Act), the consent authority's reasons for the refusal or for the imposition of those conditions, (c1) whether the applicant has the right to request a review of the determination under section 82A of the Act, ... (d) the date on which the determination was made, (e) the date from which any development consent that is granted operates, ... (2) The notice of determination must clearly identify the relevant development application by reference to its registered number. ... 258Clause 102 "How soon must a notice of determination be sent" provides: (1) A notice under section 81 (1) of the Act must be sent to each person to whom it is required by that subsection to be sent within 14 days after the date of the determination of the applicant's development application. (2) For the purposes of section 81 (1) (c) of the Act, any person who made a submission under the Act in relation to a development application (whether or not involving designated development) is required to be notified of the consent authority's determination of the application. (3) Failure to send the notice within the 14-day period does not affect the validity of the notice or the development consent (if any) to which it relates. 259Clause 123D headed "Provisions of Act not to apply as if regional panels were councils" provides: (1) For the purposes of section 23G (5A) of the Act, a regional panel is not taken to be the council for the purposes of the following provisions of the Act: (a) section 78A (3)-(6), (b) section 81 (2), (c) sections 82A, 82C, 82D and 96AB, (d) section 89 (2). Note. Under section 23G (5A) of the Act, a regional panel exercising consent authority functions of a council is taken to be the council, subject to the regulations.

[51]

Mr Rossi's submissions 262The notice of determination dated 12 October 2010 should be declared invalid. Firstly, it incorrectly identifies that the consent was granted by the Council but the JRPP approved the development. Secondly the Council invalidly added general conditions of consent including condition C(3). These additional conditions were not the subject of any resolution by the JRPP. 263The incorrect notice is putatively an exercise of power by the Council when it had no relevant power to exercise. Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 168 LGERA 59 at [44] held that "[w]here, however, the s 81 notice does not correctly reflect the council's decision as so represented, then that notice is invalid as a consequence whereof the consent does not become operative for the purpose of s 83(1) of the EPA Act." There is no scope for a void exercise of power in the EPA Act scheme and a development consent is valid until this Court declares otherwise: F Hannan v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 at 327 per McHugh JA. The notice refers to an exercise of power by the Council which is outside of its power. 264The Council admitted that the additional general conditions imposed were beyond its power to impose. The Council's submission that the general conditions imposed were ultra vires and can be ignored as they do not have legal effect should not be accepted. On the basis of that submission, anyone could form a view about the lawfulness of any given condition on the face of the document. Determining what a development authorises involves looking primarily at the approval and construing it: Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [199] citing Hope J in Auburn Municipal Council v Szabo (1971) 67 LGRA 427. By proposing that conditions be ignored, the Council is supporting actions which could be the subject of criminal sanctions pursuant to s 125 of the EPA Act. 265Condition C(3) cannot be severed as it is inextricably linked to the remainder of the development consent in relation to consideration of cut and fill. Living Choice's submissions on severability should be rejected. It was clear the Council's senior town planner in the JRPP Planning Report did not properly understand the change in the levels to the Rossi boundary of the Living Choice development. If condition C(3) was then imposed to ensure that the issue of cut and fill and retention of land was to be assessed at a later time, it could potentially be construed as fundamental to the consent. Consequently, the condition is not severable. As established in Hannan the conditions imposed by the Council outside of power remain valid until declared otherwise.

[52]

Living Choice's submissions 266The notice of determination should not be declared invalid. Firstly, it complied with the only requirement of s 81(1)(a) in notifying Mr Rossi of the determination of the DA. It also mentioned the JRPP, although this is not required by cl 100 of the Regulation; conditions 1 - 83 on which consent was granted by the JRPP, as required by cl 100(1)(b); and the date on which determination was made, as required by cl 100(1)(d). Secondly, the notice of determination correctly reflects the JRPP's decision except for the "Attachment: General Conditions A to M". The general conditions are similar to conditions prescribed by the Regulation and/or were of an advisory nature and/or were superimposed surplusage. 267The first notice of determination is an instrument for the purposes of s 3(1) of the Interpretation Act and s 32(1) and (2)(a) of that Act apply so that instruments must be construed so as not to exceed the powers conferred by the Acts under which they were made. 268Alternatively, the Parliament would not have intended for the notice of determination's non-compliance to lead to its invalidity and the consequential collapse of the development consent because that outcome would be absurd: see Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 268 CLR 627 at [26], [35]. 269Further, if the notice of determination is flawed, the Court could sever the general conditions because they were not fundamental to the determination of the DA; they were not inextricably connected to the remainder of the consent; the consent authority would not have proceeded differently in their absence; they would not have limited the manner in which the land could be developed; they were advisory in nature and they were merely surplusage. The subsequent attachment of general condition C(3), which was not recommended by the Council's senior town planner in the JRPP Planning Report, could not go to anterior considerations of cut and fill of the land and retention of land. The remainder of the consent, being an instrument for the purposes of s 3(1) of the Interpretation Act, would not be affected. See also Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695 at [165] referring to s 32(2)(b) of that Act.

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Notice of determination dated 12 October 2010 valid 271As the Respondents submitted, the exercise of the power of determination of the stage 2 DA was by the JRPP. The function of the Council under cl 13F(2)(f) of the Major Development SEPP is to issue a notice confirming that determination. The publication of a notice which incorrectly identifies in one location the Council as the determining authority does not have the effect of the Council exercising the determination power. It is simply issuing notice of that fact as part of the function under s 81(1) of the EPA Act it retains pursuant to cl 123D(1)(b) of the EPA Regulation and as a consent authority under cl 13F(2)(f) of the Major Development SEPP. As held in Pselletes at [47]; Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382 at [42], the notice issued under s 81(1) does not constitute development consent. 272Consequently the additional conditions added by the Council can have no legal effect including condition C(3). There was no power in the Council to issue conditions beyond those imposed by the JRPP. Mr Rossi's argument that there was a putative exercise of power by the Council through issuing the notice is not correct and Pselletes does not support that submission. None of the consequences identified by Mr Rossi's counsel based on Hannan can arise as there is no exercise of power by the Council which is open to be declared void. This conclusion does not result in the determination of lawfulness of conditions being left to individual interpretation. The only conditions lawfully imposed were by the JRPP. The issuing of an inaccurate notice by the Council does not alter the legal position in relation to the development consent conditions. The approach in Winn relied on by Mr Rossi's counsel can be embraced but has no application in these circumstances. Applying this logic the conditions can have no effect and whether they are severable does not arise. 273I agree with and adopt Living Choice's submissions that the consent was operative because it complied with the requirements of s 81(1) of the EPA Act and cl 100 of the EPA Regulation. The notice identifies that the application was granted, contained the terms of the conditions on which the application was granted, identified the date on which determination was made, specified the date on which the development consent operated, specified the date on which the development consent lapsed, identified the relevant development application by reference to its registered number, and included the terms of conditions imposed by the JRPP and conditions prescribed under s 80A(11) of the EPA Act. The latter are contained in the EPA Regulation and include conditions in the Schedule to the consent which the Council added, in particular condition A (EPA Regulation cl 98), condition D (EPA Regulation cl 98E) and condition F (EPA Regulation cl 98A). For the reasons identified above the additional conditions imposed have no lawful effect as the Council also submitted. That the notice of determination identifies the Council as the consent authority is of no moment because there is no statutory requirement to identify the entity which determined the development application. There was no defect in nomination of the consent authority because the Council is deemed to have remained the consent authority notwithstanding that the JRPP exercised a function in the process: Major Development SEPP cl 13F(3). 274Further, as Living Choice submitted, the words relied upon by Mr Rossi to allege that the notice of determination indicates that the Council was the consent authority, can equally be construed as advising that pursuant to s 81 of the EPA Act, the Council was giving Mr Rossi notice of the determination. I consider that the notice dated 12 October 2010 was valid. This ground of review fails.

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LEP provisions 284The LEP defines "tree" in cl 5(1) as a perennial plant with a self-supporting woody stem that has a spread of more than 3 metres, or a height of more than 5 metres, and measures more than 150 millimetres in diameter measured 1 metre up from the ground 285Clause 2.2 of the Council's Tree Management Guidelines for Trees on Private Land dated December 2009 (Ex A, Vol 5, Tab 30.188) has a similar definition of "tree", and is accompanied by a diagrammatic representation. 286A statement of landscape intent prepared by Mr Prince of Deep Rainforest Co (Australia) Pty Ltd dated January 2009 showing view sheds and trees on the Rossi land and the Anderson land (AB 1A Tab 17) accompanied the stage 2 DA. Following a request by the Council on 30 September 2009 for further information regarding trees and landscaping, Living Choice provided the Council with a revised landscape plan on 1 April 2010. A Council officer noted on the file on 17 May 2010 that a more detailed landscape plan was required. Development consent was granted by the JRPP on 23 September 2010. When development consent was granted no specific landscape plan was approved. 287Conditions 9 and 11 of the stage 2 consent state: 9. Provision of Existing Vegetation Vegetation not authorised for removal by this consent shall be protected during construction to ensure that natural vegetation and topography on the subject site is not unnecessarily disturbed. Any excavated material not used in the construction of the subject works is to be removed from the site and under no circumstances is to be deposited in bushland areas. 11. Landscaping Plan to be Submitted A detailed Landscaping Plan to be submitted to Council's Manager Development Assessment prior to the issue of a Construction Certificate. The plan is to be prepared by a suitably qualified person and screen the proposal from public places. The plan should include: All existing trees clearly marked for retention or removal. + Location of plan species and quantities clearly shown + A schedule of proposed planting, including botanic name, common name, size at planting, quantities, staking requirements, expected mature height. + Details indicating a minimum of 300mm of good quality garden mix to all garden beds + Details showing good quality topsoil to all lawn areas + All garden bed areas to be clearly defined by brick edging with its to edge finishing flush with the surface of adjacent grass areas + All garden bed areas to have drip irrigation 288No landscape plan produced by Living Choice pursuant to condition 11 was in evidence. There is no direct evidence of what if any trees were authorised for removal pursuant to conditions 9 and 11. Condition 12 stated that all trees planted as part of the approved landscape plan had to be a certain size.

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289Mr Hoyle, former owner of the Rossi land, swore an affidavit dated 25 July 2012 stating that he purchased that property in 1996. He understood all the pines were planted along the Rossi boundary in the mid 1990s. The pines at the eastern end are a different species to the pines planted at the western end. The pines planted towards the western end grew faster than the other pines at the eastern end. When the land was sold to Mr Rossi he estimated that the pines located on the boundary were about 1.6 - 2m high. The pines towards the western boundary and along the Anderson boundary were about 4 - 6m high. Some of those pines near the dam could have been higher than 6m in height. He disagreed with Mr Elliott's affidavit of 11 July 2012 that the trees near the Anderson land were much bigger than those along the Rossi boundary. He did not observe the pines being watered. Late on the night of 18 August 2006 Mr Hoyle received an email from Mr Buckton stating that Living Choice required his confirmation by the next morning whether he accepted purchasing the pines on the Rossi boundary in lieu of installing a brush fence. If those terms were unacceptable Mr Buckton wrote that Mr Andrews, the former owner of the plant nursery land (now owned by Living Choice), would be removing the pines. 290On 25 August 2006 Mr Hoyle noticed a backhoe machine starting to remove the pines on the Rossi boundary and told the operator to stop. Two pines had been removed by then. Mr Hoyle attached two photographs he took that day of the Rossi boundary to his affidavit. They show that there were two species of pines planted, one of a light green or yellowish colour and the second of a darker green colour, planted toward the Anderson land. The darker green pines were also planted along the boundary between the Living Choice land and the Anderson land. Mr Hoyle told Mr Andrews that the survey pegs placed by his surveyor identified pines on his land and that he did not want them removed. Mr Andrews had replied that he understood they were on his land, that he would not remove the trees but that Living Choice wanted the pines removed. 291On 31 August 2006 Mr Hoyle's solicitor sent a letter to Living Choice requesting that it not remove the pines on the Rossi land and asking it to confirm that it had hired a surveyor to resolve the issue. When Mr Hoyle sold the property to Mr Rossi in February 2009, the line of pines on the Rossi boundary towards the eastern boundary were 1.6 - 2m high and the pines toward the western boundary (the Anderson land) were 4 - 6m high. Some of the pines near the dam could have been higher than 6m. He estimated that the pines would have been around 10 - 12 years old at the time. 292Mr Hoyle gave oral evidence that stage 1 of Living Choice's retirement village development had commenced at the time he sold the property to Mr Rossi. Mr Hoyle was aware that consent had been granted for development on the boundary of his former property. Mr Hoyle assumed that Mr Rossi knew there was an existing development consent for stage 2 of Living Choice's retirement village applying to the former nursery land on his rear boundary and did not tell Mr Rossi about this. 293He stated that Mr Andrews planted the pines on the Rossi boundary and assumed that they were planted on the former nursery land. Mr Hoyle assumed the pines on the boundary between the former nursery land and the Anderson land were planted at the same time as some of the pines on his property were of the same species and size. Mr Hoyle obtained the boundary survey to identify the location of the pines as he was preparing to sell the property. He asked his solicitor to write a letter to Living Choice because he was trying to sell his property and did not want the pines removed because the works occurring on the Living Choice land were an eyesore. At the time he sold the property, Mr Hoyle said standing at the lower end of the sloping property, the pines on the Rossi boundary formed a hedge so that he could not see the dam on the former nursery land. Standing at the higher end, the dam could be seen. The dam could not be seen from the house porch as the pines were higher than the dam wall. 294Mr Galton's affidavit dated 9 July 2012 states that he is a registered surveyor. On 22 March 2006 he received instructions from Mr Hoyle to carry out an identification survey showing improvements on the land and the line of trees near the Rossi boundary. Mr Galton carried out the field work on 29 March 2006 and located the position of two lines of small pines on the Rossi boundary. He prepared an identification survey indicating the improvements and the location of the trees on the Rossi boundary on 30 March 2006. (I note there is no estimate of precise number of pines just indicative lines crossing the boundary in two different sections with a gap between two different species.) 295In his affidavit sworn 5 July 2012 Mr Rossi states that when he bought the Rossi land there was a row of 50 or 60 pines along the Rossi boundary. The pines screened much of the Living Choice land, which was formerly a plant nursery. In July 2011 when he visited the Rossi land, all of the pines were removed and no one had asked for Mr Rossi's approval. Mr Elliott, a construction manager of Living Choice, told Mr Rossi that the pines were on Living Choice land, Living Choice had approval to remove them and it also removed a couple of small pines on the Rossi land which were "no good". Mr Rossi could not recall the date of that conversation. Since that conversation Mr Rossi had seen a survey plan of Living Choice's land prepared on its behalf before the date of the development consent which showed trees on and adjacent to the Rossi boundary on Rossi land. On 8 June 2012 Mr Rossi spoke to Mr Hoyle who said he had arranged for a survey to be undertaken of the boundary and that 60 per cent of the trees were on the Rossi land. On 14 June 2012 Mr Rossi received an electronic copy of the survey from the surveyor, Survey Plus. A copy of the survey is attached to Mr Rossi's affidavit. 296Mr Rossi's affidavit sworn 25 July 2012 disagrees with Mr Elliott's affidavit of 11 July 2012, that the pines on his land were much smaller than those on the Anderson land. He is familiar with the pines on the Anderson land near the Rossi boundary. There were two stands of different species with the eastern stand being smaller than those closer to the western boundary which were also darker and had a greater spread. At the time the pines were removed, in about June 2011, the eastern stand of the pines were about 2 - 3.5m high. Mr Rossi estimates that the pine in the photograph attached to Mr Elliott's affidavit was approximately 3m high because the adjoining safety fence, which Mr Rossi has measured, was 2.2m. That pine was not on the Rossi land when Mr Rossi visited the property on 22 July 2012. Mr Rossi estimates that the western stand of pines were 6 - 8.5m high in June 2011. The western stand formed a continuous screen because most of the trees spread in to one another. Those pines were similar in height, colour, shape, spread and appearance to the pines located on the boundary between the Living Choice land and the Anderson land. On 22 July 2012 Mr Rossi counted 41 pines along the Anderson boundary with the Living Choice land. Their heights varied from 5 - 9.5m, their trunk diameters from 150 - 350mm, and spread from 2 - 2.5m. 297Mr Elliott's affidavit of 11 July 2012 states that there were a number of small pines located along the Rossi boundary which were less than 5m in height and less than 3m in spread. These were much smaller than the trees near the Anderson land. Mr Elliott attached a photograph of a small pine which he says was similar in height to the pines along the eastern end of the Rossi boundary. 298Mr Elliott's second affidavit of 15 August 2012 states that tree clearing operations were carried out near the Rossi boundary on or about 29 June 2011. He was not present on site that day. The contract for the tree clearing operations was Vickery's Tree Services under instruction from Douglass Plumbing Drainage and Civil Pty Ltd. A copy of the tree removal plan prepared by Deep Rainforest (Australia) Pty Ltd dated June 2011 was sent by email from Mr Buckton to Mr Douglass of Douglass Plumbing Drainage and Civil Pty Ltd with a letter of instruction from Living Choice. When Mr Elliott next returned to that part of the site on or about 4 July 2011, the tree clearing operations were complete. From Mr Elliott's recollection ten small pines in the eastern stand and two other pines on the western stand on the Rossi land were removed and should not have been. 299Mr Prince, of Deep Rainforest (Australia) Pty Ltd, prepared a tree removal plan for Living Choice in June 2011 and an amended version of that plan with the note "amendment June 2011 - addnal trees to survey addnal area for cut". Copies of those plans were attached to his affidavit. Subsequently Mr Prince realised that the notations relating to vegetation along the Rossi boundary had greater than and less than symbols reversed. Those plans ought to have read that pines on the Rossi boundary have less than 2.5m spread and are indicated in the legend as vegetation which is not of concern.

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Unauthorised tree removal established 304Some of the history of the pines on the Rossi boundary commencing with the evidence of Mr Hoyle and circumstances leading to his obtaining a survey dated August 2006 to establish their location is identified above. The pines were in place when Mr Rossi purchased the land in February 2009 and provided a screen of the Living Choice land. That pines on both sides of the Rossi boundary were removed in July 2011 is established and admitted by Living Choice. The issues for determination are, firstly, whether the removal of pines on the Rossi land and Living Choice land required development consent. If the LEP definition of tree is satisfied, development consent for removal was required. Secondly, whether Mr Rossi has established that tree removal along the boundary on Living Choice land was not approved by the stage 2 development consent and was therefore unauthorised. 305Firstly, the definition of tree in the LEP refers to a circumference of 150mm in diameter measured 1m from the ground and a height or an area of canopy spread of more than 3m. The evidence establishes that there were two species of pine on the boundary, with the western end species being larger. There is differing evidence of the height of the pines. Mr Rossi's evidence is that he estimated that the pines on the western end of the Rossi boundary, which are the same species as those on the Anderson boundary which he identified to be of varied heights from 5 - 9.5m, with trunk diameters from 150 - 350mm and spread of 2 - 2.5m on 22 July 2012. Mr Prince's evidence is that these were less than 2.5m in spread. In more detailed sheet layout plans attached to Mr Elliott's affidavit dated 15 August 2012, Mr Prince provides plans of vegetation with greater resolution. Sheets 3 and 4 relate to the Rossi boundary. The larger western end trees are identified as all on Living Choice land with a couple queried as on Rossi land. The smaller eastern end pines are identified with a strip towards the middle as on Rossi land and the remainder being on the boundary or inside Living Choice land. There is no indication of height or spread on the higher resolution plans. 306The photographs attached to Mr Hoyle's affidavit showing the pines in August 2006 combined with Mr Rossi's evidence suggest the pine species at the western end of the boundary did meet the definition of tree in the LEP particularly given that they were the same species as those presently still located in the Anderson boundary. That evidence establishes on the balance of probabilities that these were more than 5m in height and more than 150mm in diameter 1m from the ground. While Mr Prince identifies these as having a spread of less than 2.5m, the amended tree removal plan does not address other aspects of the definition of tree, being height and circumference. Development consent for their removal whether on the Rossi land or Living Choice land was required. 307The evidence in relation to the size of the pine species at the eastern end of the boundary at the time of removal is more equivocal. Mr Rossi's evidence is that these trees were 2 - 3.5m high. Mr Elliott's evidence is that there were small pines located along the Rossi boundary which were less than 5m in height and less than 3m in spread. This evidence is likely to relate to the smaller pines on the eastern end some of which were identified by Mr Prince as on Mr Rossi's land. The evidence does not establish on the balance of probabilities that the smaller pines towards the eastern end of the boundary were covered by the definition of tree in the LEP. It follows therefore that their removal from the Living Choice land did not require development consent. 308Secondly, in the absence of the landscape plan required by condition 11 of the stage 2 consent which was to identify those trees marked for removal, it cannot be demonstrated what development consent for tree removal, if any, was given to Living Choice. The landscaping documents provided to the Council for assessment are identified and Living Choice submitted this provided for the planting on the boundary which necessitated the removal of boundary trees. While Mr Rossi bears the onus, that gap in the evidence undercuts Living Choice's position. The only plan in the evidence prepared after the grant of development consent concerning tree removal is the amended tree removal plan dated June 2011 prepared by Mr Prince which identified a number of pines on the Rossi boundary, as discussed above. The notes to the plan state the application for tree removal covers all trees within the site as nominated in the flora and fauna report, and that retention of any trees was not possible due to extensive earthworks. There is no evidence that the tree removal plan is in accordance with the landscape plan required by condition 11 and in its absence cannot establish that the tree removal was lawful. 309In the absence of positive evidence that consent was given for tree removal I consider that Mr Rossi has established that the larger pines on the western end of the Rossi boundary were removed without the necessary development consent.

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Keystone concrete block wall exempt development? 313In order to resolve whether the excavation and backfilling of a trench along the Rossi boundary required development consent, it is necessary to determine if the keystone concrete block wall erected in early 2012 was exempt development. Mr Rossi and the Council argued that the keystone wall adjoining the Rossi boundary was not exempt development and required development consent. This wall was removed from the retaining walls DA by letter from Living Choice's consultant on 17 April 2012 when the DA was amended on the basis that it was exempt development. The Council agreed with Living Choice that the keystone concrete block wall was removed from the s 82A review application. That is the basis on which I am considering this issue. Given that the keystone block wall was erected from late February 2012 it could not have been granted development consent in any event as the retaining walls DA had been refused at that stage. The Council approved the amended DA pursuant to s 82A of the EPA Act on 2 July 2012. Living Choice maintained in these proceedings that the keystone wall is exempt development under the LEP. 314In his second affidavit dated 15 August 2012, Mr Elliott states that he understood the construction of the keystone concrete block wall to be lawful. He instructed the excavator to be careful not to excavate beyond the site boundary. However Mr Elliott is aware that a small amount of excavation extended onto the Rossi land. 315The LEP provides: 8 Exempt development (1) Development listed in Schedule 2 is exempt development, but only if: (a) it complies with the requirements for exemption set out for the development in that Schedule, and (b) it is carried out in a zone in which exempt development is specifically allowed by the Table to clause 13, and (b1) it meets the relevant deemed-to-satisfy provisions of the Building Code of Australia, and (b2) it does not, if it relates to an existing building, cause the building to contravene the Building Code of Australia, and (c) it meets the other requirements for exempt development made by the Act and this clause. ... Clause 10 Zoning Zone 1 (c) (Rural 1 (c) Zone) 1 Objectives of zone The objectives are: ... 2 Development allowed without consent Exempt development and development for the purpose of: agriculture (other than dams); bed and breakfast establishments; bush fire hazard reduction; home activities; home-based child care or family day care homes. ... Schedule 2 Exempt Development Retaining walls (1) Maximum height of 0.6m above natural ground level for retaining filling and maximum 1m below natural ground level for excavation. ...

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State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 316The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt Development SEPP) provides exempt and complying development codes that have statewide application when the SEPP applies. 317Division 1 cl 1.9 "Relationship with local environmental plans and development control plans" provides: (1) Exempt or complying development under this Policy and standard plans A standard plan does not apply to development that is specified in the plan as exempt development or complying development and that is specified in this Policy as exempt development or complying development. (2) Exempt development under this Policy and non-standard plans If this Policy and a non-standard plan specify the same development as exempt development, the non-standard plan does not apply to that development. ... (9) Additional exempt and complying development under standard and non-standard plans If a standard plan or non-standard plan specifies exempt development or complying development that is not the same as development specified as either exempt development or complying development in this Policy, this Policy does not affect the operation of that plan in relation to that development. 318It is agreed that the LEP is a non-standard plan. 319Clause 1.10 "Same development" provides: (1) For the purposes of this Policy, 2 or more instruments are taken to specify the same development if they specify that development for the same purpose may be carried out on the same land, even though there may be some differences in the specifications or development standards for that development. Note. For example, "deck" is a development, even if the size of the deck or its location varies in different local environmental plans or development control plans. ... 320Division 2 of Part 1 - "Exempt and complying development" provides: 1.15 What development is exempt development? (1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out. ... 1.16 General requirements for exempt development ... (3) To be exempt development for the purposes of this Policy, the development must: ... (b) not involve the removal or pruning of a tree or other vegetation that requires a permit or development consent for removal or pruning, unless that removal or pruning is undertaken in accordance with a permit or development consent. 321Part 2 "Exempt development codes" Division 1 "General Exempt Development Code" Subdivision 15 "Earthworks and retaining walls" provides: 2.29 Specified development Earthworks and the construction or installation of a retaining wall is development specified for this code if it is not carried out, constructed or installed on or in a heritage item or a draft heritage item or on a flood control lot. 2.30 Development standards The standards specified for that development are that the development must: (a) be for domestic purposes only, and (b) be located at least 900mm from each lot boundary, and (c) if a retaining wall: (i) be not higher than 600mm (including the height of any batters) above ground level (existing), and (ii) if it is on a sloping site and stepped to accommodate the fall in the land-be not higher than 800mm above ground level (existing) at each step, and (iii) have adequate drainage lines behind it, and (d) not require cut or fill more than 600mm below or above ground level (existing), and (e) not redirect the flow of surface water onto an adjoining property, ... 322Mr Rossi disputed that the exempt development provisions of the LEP applied rather than the Exempt Development SEPP pursuant to cl 1.9(2). Mr Rossi also argued the keystone wall was not exempt development under the Exempt Development SEPP as it did not comply with cl 1.16(3)(b) and cl 2.30(b), (c)(ii), (c)(iii), (d), (e) of the Exempt Development SEPP. 323The Council submitted that the Exempt Development SEPP applies, not the LEP, as the keystone wall matches the description of earthworks and retaining walls. As the wall is located within 900mm of the Rossi boundary, it does not meet the development standard in Pt 2 cl 2.30 and cannot therefore be exempt development. 324Living Choice submitted that the LEP applies, not the Exempt Development SEPP. The 0.6m keystone concrete block wall is a retaining wall which is exempt development in a rural zone, as provided for in cl 10 and Sch 2 of the LEP. While subdivision 15 of the Exempt Development SEPP makes provision for "earthworks and retaining walls" this is not the same development as "retaining walls" in Sch 2 of the LEP. Earthworks is not defined in the Exempt Development SEPP but means "excavation or filling" according to the Standard Instrument (Local Environmental Plans) Order 2006. Retaining wall is not defined in the Exempt Development SEPP or the LEP or the standard instrument. Proviso (1) in the Sch 2 definition in the LEP is satisfied by the keystone block wall. Accordingly cl 1.10 of the Exempt Development SEPP does not apply as two or more instruments are not taken to specify the same development. Development for retaining walls and development for earthworks and retaining walls are not development for the same purpose. Clause 1.9(9) of the Exempt Development SEPP has effect so that the SEPP does not affect the operation of the LEP concerning "retaining walls" as exempt development. The earthworks in stage 2 were already part of the development consent. As the LEP applies rather than the SEPP it is not necessary that the SEPP requirements be complied with.

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Keystone concrete block wall is not exempt development 325The first issue to be determined is whether the LEP or the Exempt Development SEPP applies, which depends on whether the two instruments refer to the same development as exempt development. If they do, cl 1.9(2) of the Exempt Development SEPP applies, as Mr Rossi and the Council submitted, so that the LEP does not apply to the development and the Exempt Development SEPP does. Division 1 of the Exempt Development SEPP refers to LEPs in cl 1.9. Subclause 1.9(1) does not apply as the LEP is agreed to be a non-standard plan. Under cl 1.9(2) if non-standard plans and the SEPP refer to the same development as exempt, the SEPP applies. Same development is defined in cl 1.10(1). Instruments are taken to specify the same development if development for the same purpose is specified despite there being some differences in specifications or development standards for that development. The LEP in Sch 2 defines exempt development to include retaining walls (subsection (1)), undefined, being a maximum height of 0.6m above natural ground level for retaining fill. Living Choice relied on the retaining wall definition referred to in Sch 2(1) as the correct description of the keystone concrete block wall. 326Division 2 of the Exempt Development SEPP specifies exempt and complying development. If development specified in an exempt development code complies with the standards specified for that development and complies with the requirements for this Division for exempt development it is exempt development (cl 1.15). Part 2 of the Exempt Development SEPP is headed "Exempt Development Codes". In Div 1 "General Exempt Development Code", subdivision 15 is headed "Earthworks and retaining walls". Part 2 cl 2.29 refers to specified development for the code as "earthworks and the construction or installation of a retaining wall" if not constructed on or in a heritage item or a flood control lot. The conjunctive "and" means that both earthworks and the construction or installation of a retaining wall are the development specified. 327Living Choice argued there were no earthworks involved in the retaining wall construction but I do not accept that submission given the evidence of the work undertaken as identified and photographed in Mr Rossi's affidavit evidence. The retaining wall (keystone concrete block wall) on the boundary involved the excavation of ground along the whole Rossi boundary to make a trench the length of the boundary and filling of that trench to construct foundations. This work does meet the description of earthworks and retaining wall. Accordingly the Exempt Development SEPP applies, not the LEP. 328As the Council and Mr Rossi submitted, the standard in cl 2.30(b) of the Exempt Development SEPP is not satisfied as the wall is located on the boundary not 900mm away. On that basis alone the keystone concrete block wall is not exempt development. I do not need to consider the other bases of challenge of Mr Rossi but note that cl 1.16(3)(b) could apply given my conclusion that there was unauthorised removal of trees on the western end of the Rossi boundary at par 309. Accordingly, the wall was built without the necessary development consent. 329Living Choice applied for a building certificate for the keystone concrete block wall in July 2012 and this was issued on 3 September 2012 by the Council. Section 149E of the EPA Act provides that a building certificate operates to prevent the council from taking proceedings under the EPA Act requiring the demolition inter alia of development the subject of a certificate or for making an order requiring demolition under the EPA Act or Local Government Act 1993 for seven years. The Court is not subject to these provisions.

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Ground 6 - Retaining walls consent invalid (FAPOC cl 36 - 41; Mr Rossi's Amended Reply) 331Paragraph 41 of the FAPOC states: Beginning in about February 2012 Living Choice began to construct buildings and carry out works adjacent to the common boundary without development consent being work that requires development consent-Particulars Work is being carried out upon the Living Choice land otherwise than in accordance with the development consent Particulars (a) Timber posts have been erected within the 3 metre building setback to the Rossi land [images 3 to 8, 11, 13 to 15, 17 to 19 22, 24 to 28, 30 to 36, 42 to 46, 47, 48, 50 to 53. 60, 63, 64, 66 to 70, 80 to 86, 97 in the Exhibit "AR-Exhibit 1" referred to in the affidavit of Mr Anthony Rossi sworn 30 May 2012]. (b) Footings and brickwork curtain walls (below finished floor levels upon the approved plans) have been erected to the northern elevation to dwellings numbered 206, 207, 208, 209 and 210 which are not shown upon the approved plans. [Images 3 to 19, 21, 22, 24 to 39, 42 to 53, 55, 56, 60 to 71, 80 to 88, 91 to 92, 94, 96, 99 to 104, 109 to 113, 117 to 121, 123 to 131, 133 to 1431 (c) The work identified in particular (b) and the key stone concrete block retaining wall erected upon the boundary are identified as the proposed works in development application 110/2012/HA (the subject of Land and Environment Court proceedings 10100 of 2012 - Living Choice Australia Limited v The Hills Shire Council) and a Section 82A application for review lodged by Living Choice to the Council on 17 April 2012). 332Events after the proceedings were commenced overtook the FAPOC in par 41(b). These works were the subject of the retaining walls consent granted on 26 June 2012. The keystone concrete block wall the subject of par 41(c) has already been considered above. As noted already, it was excluded from the retaining walls DA after the commencement of proceedings. I have held that it is not exempt development. The timber posts referred to in par 41(a) are relatively minor works in the context of this litigation. I note that the unchallenged evidence of Mr Elliott in relation to these is that six timber posts within 3m of the Rossi boundary will be cut off below finished ground level and will not be visible. Mr Rossi has not established that these require development consent. 333The retaining walls consent was granted by the Council in June 2012, well after these proceedings were commenced in January 2012. At the hearing Mr Rossi filed a reply which challenges the validity of the retaining walls consent. Mr Rossi's Amended Reply dated 14 August 2012 at par 1 states that the retaining walls development consent should be declared void as: (a) the Council lacked the requisite jurisdiction to grant consent to development which, properly characterised, is prohibited in the 1(c) zone under the Baulkham Hills Local Environmental Plan 2005; (b) the Council lacked the requisite jurisdiction to grant consent to works already carried out; (c) insofar as it may be contended that the consent was granted pursuant to the State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 ("SEPP") then the Council failed to consider or be satisfied as to mandatory relevant matters pursuant to clauses 30 and 32. Particulars (i) The development application was not supported by a site analysis prepared by the applicant for development consent [Clause 30(1) of the SEPP] (ii) The development application was not accompanied by a written statement explaining: (a) how the design of the proposed development has regard to the site analysis [Clause 30(2)(b)(i) of the SEPP]; or (b) how the design of the development had regard for the Design Principles in Division 2 [Clause 30(2)(b)(ii) of the SEPP]. (iii) The development application was not supported by documentation demonstrating that adequate regard had been given to the principles set out in Division 2 insofar as they applied to the proposed development [Clause 30(2)(b)(ii) of the SEPP]. 334The retaining walls DA 110/2012/HA was lodged on 2 August 2011 by Living Choice. The Council refused that DA on 28 February 2012. Mr Rossi took numerous photographs of concrete footings and timber posts being erected on Living Choice land between 18 March 2012 and 29 May 2012: exhibit B photographs 9-18, 21, 24-37, 42-46, 48-56, 61-71, 79-86, 87-88, 91-92, 94, 96-97, 99-104, 110-112,114-120, 122-127, 129-132, 141-143. 335On 17 April 2012 Living Choice lodged an application (110/2012/HA/A) under s 82A of the EPA Act requesting a review of the Council's determination on 28 February 2012 and advising that the keystone concrete block wall on the Rossi boundary was excluded from the s 82A review application because this was considered to be exempt development. On 7 May 2012 Mr Rossi lodged a submission on the s 82A review application. Between March and July 2012 Living Choice constructed buildings and carried out development works adjacent to the Rossi boundary. In a plan marked by counsel during the hearing (MFI 5), Living Choice admitted that a large part of the curtain walls under villas 206 - 210 were constructed without development consent between February and June 2012. On 26 June 2012 the Council granted consent to DA 110/2010/HA/A and a notice of determination of consent was issued on 2 July 2012. A number of issues arise from the parties' submissions.

[70]

What is the subject of the retaining walls consent? 336A major preliminary dispute between the parties was what they considered the retaining walls consent related to. There was much discussion on this topic during the hearing. The retaining walls consent does not specify with great precision what was approved. The Respondents agreed as between them that the areas highlighted by their legal representatives on the plan identified as MFI 4 were the subject of the retaining walls consent. The highlighted areas are the curtain walls on which villas 206-210 sit (no relief is sought by Mr Rossi in relation to villas 204-205 as these are closer to natural ground level), and landscaping on the battered slope between the curtain walls and the keystone concrete block wall on the Rossi boundary. The keystone concrete block wall was not the subject of the retaining walls consent. No fill was highlighted. Mr Rossi's counsel insisted that in addition to these areas, the retaining walls consent related to the large amount of fill behind and in front of the curtain walls on which the slab for the villas and the villas sit. The area of fill highlighted in yellow by Mr Rossi's counsel on the plans in MFI 3 and plans attached to a document prepared by Mr Rossi's lawyers titled the s 76A statement concerning villas 204-210 are consequently much greater than those areas the Respondents identified (no fill being identified by the Respondents). 337The basis for Mr Rossi's argument that the substantial areas of fill under the slabs for the villas were also the subject of the retaining walls consent was that it could not have been approved in relation to the stage 2 DA given the absence of consideration of fill and its retention on the Rossi boundary in the assessment of that earlier DA. I have found that there was a failure to consider the retention of fill on the Rossi boundary at the western end but not a failure in relation to the placement of fill per se. 338Given that the applicant for the DA Living Choice did not consider that it was seeking consent for the fill behind and in front of the curtain walls and neither did the Council, there seems to be no basis to infer that the development application and subsequent development consent did apply to the areas of fill identified by Mr Rossi's counsel.

[76]

Retaining walls consent invalid 346The Major Development SEPP did not apply to the retaining walls DA so that the Council could determine and had jurisdiction to grant consent if the development was permissible. The SEE was prepared on the basis the DA was ancillary to the seniors housing development. While the Respondents' submissions emphasised that the retaining walls consent as ultimately approved was development ancillary to the stage 2 development already approved, that is not how the DA was assessed by the Council. The Council's planning report prepared for the original retaining walls DA, which was refused on 28 February 2012, refers to compliance with the LEP and the objectives of the rural zone. The s 82A review amended DA lodged on 17 April 2012 was considered in a planning report dated 26 June 2012. This states that the DA was assessed pursuant to s 79C and s 82A of the EPA Act, the LEP and DCP Part C s 1 - Rural. No mention is made of the Seniors SEPP in the Council reports in the assessment of the DA. Contrary to the Council's submissions, it is not abundantly clear that this was the basis for the Council's staff considering the proposal. As Mr Rossi's counsel submitted the development if characterised under the permitted and prohibited development table in the LEP is not permissible. 347The Respondents relied on Rosemount Estates to argue that as an alternative source of power existed to sustain the validity of the consent, as development ancillary to seniors housing development, the development consent was valid. Cole JA at 85 (Sheller JA agreeing, Handley JA in separate reasons advising caution in a court accepting an alternative source of power not relied on by a decision-maker) stated that the law is clear that a mistake in the source of power works no invalidity, provided any conditions necessary for the exercise of the alternative source of power were satisfied, citing Lockwood v Commonwealth (1954) 90 CLR 177 at 184 per Fullagar J, Australian Broadcasting Tribunal v Saatchi (1985) 10 FCR 1 at 9-10 per Bowen CJ inter alia. 348These principles and Rosemount Estates and the cases cited therein were discussed extensively in 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 by Spigelman CJ at [12]-[54]. The principle identified by Fullagar J in Lockwood that an act purporting to be done under one statutory power may be supported under another statutory power has been described as settled principle subject to exceptions, discussed in ABT v Saatchi inter alia. Spigelman CJ considered the issue is always one of statutory interpretation dependent on the statutory regime under consideration at [29]. His Honour favoured the reasoning of Wilcox J in Saatchi that there was a further exception to the settled principle in Lockwood where an alternative power exists which has different consequences for people relying on the exercise of a different power to the power actually relied on at [40] - [41]. At [56] - [57] Spigelman CJ summarised the application of authorities he considered as follows: 56 To use the terminology of the cases quoted above, the initiating mechanism: · "in no way affected ... the proceedings ... so that all the conditions on which the right of the (Scientific Committee) to exercise jurisdiction depended were in fact fulfilled". (R v Bevan; Ex parte Elias and Gordon) · "the power is to determine (a proposal for inclusion) and that is the power which the (Committee) exercised." (Brown v West) · " ... no consequence attached to the specification of a source of power that did not in fact exist. The circumstances relevant to the proper exercise of the power were exactly the same whether the source of power was (s18(1) or s18(2)(b)) ... it was quite immaterial whether the source was (s18(1) or s18(2)(b))." (Mercantile Mutual Life Insurance per Black CJ) · "Nor does reliance upon one rather than another head of power lead to any difference in the consequences for third parties." (Mercantile Mutual Life Insurance per Gummow J) · "There was no distinction required by the procedures ... dependant upon whether (the proposal was initiated under s18(1) or s18(2)(b))." And "The environmental aspects of the (proposal) are in truth the same whether the proposal was (initiated under s18(1) or s18(2)(b))." (Rosemount Estates) 57 On the other hand, it could not be said that: · "the scope of relevant considerations differed" (Abbott v Shire of Heidelberg) · "what was done ... differed markedly" (Newcrest Mining) · "the consequences ... of each exercise of power are different" (Saatchi & Saatchi) 349There is no explicit or implicit reference to the Seniors SEPP by the Council in its consideration of the retaining walls development application and no evidence of consideration by the Council of any of the matters identified in the Seniors SEPP such as cl 30 and cl 32 in relation to the retaining walls consent. There is no basis for inferring consideration of the DA as ancillary to the seniors housing development. While this may appear a perverse conclusion given that the material in support of the DA did refer to the Seniors SEPP that is simply not identified as the basis for the Council's decision to approve. 350It is therefore necessary to determine if an alternative source of power can be found to apply to validate the decision. VAW identifies the considerations relevant to determining when an exercise of power under an incorrect provision may not be invalid if a correct provision exists to justify a decision. Mr Rossi is correct that the principle does not apply here. Different considerations applied if the retaining walls consent had been considered under the Seniors SEPP, as particularised in Mr Rossi's amended reply at par 1(c). I do not consider that I can assume that an alternative power exists on which to base the validity of the retaining walls consent approved by the Council in these differing circumstances, as identified in [57] of VAW. 351Consequently I consider the Council purported to grant development consent to a development prohibited under the LEP and the consent is therefore invalid.

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E. Exercise of discretion 357There are competing discretionary considerations as to what relief the Court should grant in relation to the judicial review grounds which may give rise to declarations of invalidity of the stage 2 consent and the retaining walls consent. The established breaches of s 76A of the EPA Act can give rise to consequential orders for relief in the exercise of the Court's discretion. 358The parties filed extensive affidavit evidence on matters relevant to the exercise of the Court's discretion to grant or refuse relief. Mr Rossi, Mr Elliott and Mr Buckton for Living Choice were also cross-examined regarding this issue. 359Mr Rossi's affidavit sworn 5 July 2012 attests that he was very concerned when he saw the landfilling occurring on the Living Choice land in June and July 2011. Since then he has observed steady progress of works on that land. Having regard to the depth of fill that has been placed along the Rossi boundary and the housing that has been built on top of it, the new buildings do not contribute to the quality and identity of the area which is semi-rural in nature. It does not maintain reasonable amenity for Mr Rossi and his family. The building setbacks along the Rossi boundary are inadequate and mean that dwellings and the development appear very bulky and the development overlooks Mr Rossi's property. The building form and siting do not relate to the site's landform as the fill lifts the development above Mr Rossi's land. The buildings do not adopt building heights compatible with Mr Rossi's house or other buildings in the locality. Whilst the Living Choice villas are single storey, they are erected on high-retained fill so the villas appear to be much higher. 360Villas 206 - 210 are on the Rossi boundary and erected on increasingly higher curtain walls. The impact of those walls on Mr Rossi's land are unsightly, out of character and overbearing. There are no screening devices, no plantings, and no space for landscaping along the boundary. The stage 2 consent did not approve any privacy screens or dense vegetation. The dwellings have courtyard gardens from which the occupiers will be able to look out over Mr Rossi's land. The trees on the Rossi boundary on the Rossi land were removed from Mr Rossi's land without his permission. Trees on the Living Choice land were also removed by Living Choice. 361Mr Rossi states that the development has seriously eroded his visual and acoustic privacy. Mr Rossi also states that his property has been impacted by stormwater runoff. He sought to call expert evidence on this point but he was refused. Observing the works progressing and seeing the impacts of the buildings continuing to increase has been devastating for Mr Rossi and his wife who refuses to go to the Rossi land because she is upset by what is happening on the Living Choice land. Mr Rossi believes that villas 204 - 210 are up to 4m above ground level. That northern elevation is abrupt given the open grassland of the Rossi land. 362Mr Rossi states that the windows and the courtyards to most of the dwellings which face the Rossi land overlook it. There is no vegetation on the Rossi land. The floor levels of some of the courtyards are above fence height. If Mr Rossi were to plant vegetation along his boundary to give his property privacy, he fears that the vegetation would obstruct the villa occupiers' access to natural light and northerly views giving them cause to complain. Some of the trees on the plans Mr Rossi has seen show trees on the Rossi land but he has not approved any trees to be planted. Mr Rossi cannot protect his privacy unless he carries out significant landscaping along the Rossi boundary. Mr Rossi did not have an opportunity to make submissions on the stage 2 DA or the s 96 application to draw attention to the natural fall of the land and the importance of having the development follow it. 363Mr Rossi's reply affidavit dated 25 July 2012 responds to the affidavits of Mr Elliott dated 11 July 2012 and of Mr Buckton. Mr Rossi's version of events differs in some respects with Mr Buckton's. Mr Rossi agrees that Living Choice made several attempts to negotiate a resolution with him for the treatment of landfilling between the Rossi boundary and villas 204 - 210. However, Mr Rossi believed at all times that the options offered did not address his real concern; namely, the significant landfilling of the Living Choice land. On a number of occasions he recalls making statements to Mr Buckton and others in words to the effect that landscaping would not address his concern. 364In his further reply affidavit of 12 September 2012, Mr Rossi disagrees with many of the statements made in Mr Hobbs' affidavit. 365Mr Buckton's affidavit dated 11 July 2012 states that from late June to early July 2011 fill was placed in locations remote from the Rossi boundary. Building for the bases of the villas 204 - 210 commenced in early 2012 which were built on pile driven foundations. In order to establish the approved levels for the foundations shadow fill approximately 500mm deep was laid in the area proposed for the bases and compacted in layers. Villas 204 - 210 are all single storey. The cut and fill for these dwellings were in accordance with the approved development plans and the construction certificate plans. Extensive landscaping was approved along the Rossi boundary under the retaining walls consent. 366According to Mr Buckton, many alternative transition solutions were offered to Mr Rossi after July 2011 including landscaping on the Living Choice land, landscaping on the Rossi land, reducing the levels of villas 209 and 210, various retaining wall options and screens or fences at the boundary or within the villa courtyards. He states that villas 204 - 210 are not built on retaining walls but constructed on slabs with down-turned beam ends. 367Mr Buckton disagrees with Mr Rossi that any additional vegetation on the Rossi land would adversely impact on the villas due to the difference in levels and the distance between the villas and any vegetation. Mr Buckton also states that privacy screens and landscaping along the Rossi boundary were approved under the retaining walls consent. 368At the meeting on 2 November 2011 which was attended by Mr Rossi and Mr Pittendrigh, a landscape architect Mr Rossi asked to attend, among others, Mr Buckton informed everyone that no filling had taken place along the Rossi boundary. A stake was positioned on the then existing ground level at the approximate location of where villa 210 would be built indicating that the land would be raised approximately 500mm to achieve the appropriate level for its foundation. In order to appease Mr Rossi, Mr Buckton states Living Choice engaged Mr Pittendrigh to design a landscape proposal for the transitions along the Rossi boundary. Mr Pittendrigh's proposal was rejected by Mr Rossi. That landscape plan was approved as part of the retaining walls consent. Mr Rossi stated in his reply affidavit he did not engage Mr Pittendrigh beyond attendance at that meeting. 369Mr Elliott's affidavit dated 11 July 2012 states that he met Mr Rossi in June 2011 when he submitted quotes to do work on stage 2. The first meeting he had with Mr Rossi concerning the Rossi boundary was held at the stage 2 site office in the week following 22 June 2011. He and others met Mr Rossi on 6 July 2011 to discuss the proposed solution for transition along the Rossi boundary to the Living Choice land and to try to reach agreement regarding works, including landscaping on the Rossi boundary. Plans were prepared and sent to Mr Rossi. A further meeting was held on 13 July 2011. There was no escalation of the rate of work along the Rossi boundary. Mr Rossi knew that the staging of the development of stage 2 had been changed. Living Choice delayed construction as long as possible. 370Mr Elliott recalls that in April 2012 Mr Hobbs asked him to meet Mr Rossi to discuss possible work to be carried out to appease him. On 19 April 2012 Mr Elliott met with Mr Rossi who requested the planting of 20 advanced trees, removal of bamboo, masonry fencing with wrought iron infill around the entire perimeter of the site, fill the south-western corner of the Rossi land and drop the roof of villas 204 - 210. He says it was too late to alter the roofs of villas 204 - 210 as there were letters of intent and/or leases entered into with third parties for some of them. 371Mr Hobbs' affidavit of 15 August 2012 states that he and the other director, Mr Tregoning, own Living Choice and individually operate seven retirement villages located in South Australia, Queensland, and New South Wales and a further planned or approved two villages. Mr Hobbs and Mr Tregoning have given personal guarantees for all Living Choice's debt to its bank. 372Living Choice is under financial stress. By June 2011 Mr Hobbs states that almost all of stage 1 villas had been leased and they did not complete the construction of any villas in stage 2 until December 2011. This was against a background of significantly reduced sales volumes at their other villages. Without Glenhaven sales, Living Choice would have been financially strained. It had people waiting to settle and about 40 deposits for villas. Some of those people had already sold their homes. Mr Hobbs and Mr Tregoning made a difficult decision in acting on the stage 2 consent. Had Living Choice halted for the legal proceedings, it would have run the risk of insolvency, both personal and business. Going into insolvency would have caused severe financial ramifications for all of the approximately 1,500 residents in its retirement villages. The delay in obtaining approval for the construction of stage 2 was financially devastating for Living Choice. Mr Hobbs and Mr Tregoning knew they would not meet Living Choice's financial covenants with its bank in March and June 2012 because it was unable to meet principal repayment obligations totalling $5 million. Mr Hobbs and Mr Tregoning believe they acted responsibly and not recklessly in continuing to construct stage 2. 373Another reason for continuing to construct stage 2 was that by January 2012, a large number of prospective residents including for villas 204 - 210 had signed letters of intent or otherwise expressed interest in occupying stage 2 villas. The average age of residents is 77. Most prospective residents have to sell their homes in order to buy into retirement villages. 374Two further reasons were, firstly, that Mr Hobbs believed Mr Rossi was being disingenuous and opportunistic in commencing legal proceedings given that he must have known about the 2003 consent when he exchanged contracts in July 2008 and purchased the Rossi land in February 2009. Secondly, the summons filed on 11 January 2012 did not seek interim relief despite Mr Rossi having the financial means to do so, and despite the fact that delaying the construction of stage 2 would have had disastrous financial consequences for Living Choice and the residents eager to occupy stage 2 villas. 375Mr Hobbs gave evidence that the cost of construction of stage 2 to date, excluding the cost of land, was $4.5 million. He estimated that demolishing buildings 202 - 216 except 211 (known as 210), removing the fill from the Living Choice land, demolishing the keystone concrete block wall and planting advanced trees to replace those removed from the Rossi land (in compliance with prayer 7 of the further amended summons filed on 28 June 2012) would be approximately $4.5 million. That amount excludes the cost of a further development or modification application, rehousing displaced residents or damages claims which may be made against Living Choice should such orders be made, which could potentially total millions of dollars. 376Mr Hobbs states that an order to cease construction work on stage 2 would have a devastating impact on Living Choice (prayer 6 of the further amended summons). It relies on cash flow from settlements to fund the construction and operation of stage 2. If construction work ceased then they would be left partially completed which would prevent settlements from occurring. The jobs of construction and operations staff would be lost or jeopardised. He believes that such an order would result in Living Choice going into receivership. Deposit holders of 24 villas in stage 2, many of whom have sold their houses, would also be severely prejudiced and would have to find alternative accommodation until their villas were completed or withdraw their deposits. 377Mr Hobbs was cross-examined about the most recent ASIC return filed by Living Choice which stated that the company's total non current assets were $450,310,168 and non current liabilities were $392, 520,640 leaving net assets of $81.8 million as at 30 June 2011. Income for the year ended 30 June 2011 was up from $13.3 million to $24.1 million. He agreed that no financial records had been attached to his affidavit where he stated that the company would have gone into receivership if construction of stage 2 was halted. He stated that he made the statements in his affidavit after considering the financial state of the company. He agreed that he had entered into leases for several villas while proceedings were on foot in the second half of 2012. He decided with another director that he would not advise the leaseholders of these proceedings.

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Delay in commencing these proceedings 379Mr Rossi should have been aware as a prudent purchaser in 2008/2009 of the development consent granted in December 2003 for the land on the Rossi boundary. Mr Rossi's company undertook plastering work on stage 1 from June 2008 to about April 2010. Mr Rossi was aware of the construction work when he exchanged contracts on 6 July 2008. Living Choice moved its site office into the previous wholesale nursery owner's office on the stage 2 land after that owner moved out on 31 July 2008 (per Mr Elliott), a year before the stage 2 DA was lodged. An available inference is that Mr Rossi would have had dealings with Living Choice in its relocated site office on the stage 2 land. Mr Rossi was aware of the boundary being pegged in about April 2011. Mr Rossi's company undertook work on stage 2 from 23 September 2011 until the second week in January 2012. Living Choice provided him with a site plan of stage 2 showing the dwelling types and location. Quotes were also provided for plastering work in June 2011. Mr Rossi's evidence that the site plan meant nothing to him and that he would not have looked at the site plan or paid regard to where the dwellings were proposed should not be believed. He had then owned the land adjoining for more than two years. Mr Elliott's evidence is that he met Mr Rossi to discuss stage 2 work and gave him the site plan in Living Choice's site office on the stage 2 land about 100m from the common boundary with the Rossi land before Mr Elliott was aware that Mr Rossi owned the next door land. No explanation has been provided for why Mr Rossi took six or seven months to commence proceedings after he properly appreciated the magnitude of the development approved by the development consent where he says no notification was received of the stage 2 consent. 380Mr Rossi's solicitor's letter of 23 February 2012 in a response to a request for an undertaking as to damages, failed to explain why if no interlocutory relief was sought, the undertakings given by Living Choice were inadequate. Mr Rossi was not entitled to expect that he could postpone until hearing an injunction restraining Living Choice from carrying out any works. By letter dated 24 February 2012, Living Choice's solicitor warned that in the absence of an undertaking as to damages and any stop work order from the Court, commercial imperative required Living Choice to continue work on the development. No interlocutory relief was ever sought in respect of the validity of the stage 2 consent or retaining walls consent. 381Since Mr Elliott found out that Mr Rossi was the owner of the Rossi land, Living Choice has directly and actively cooperated in seeking a resolution of the boundary treatment between its land and the Rossi land which would be beneficial to Mr Rossi. Living Choice participated in meetings with Mr Rossi, engaged Mr Pittendrigh to satisfy Mr Rossi and made a variety of offers. Mr Rossi agreed that Living Choice made several attempts to negotiate a resolution with him in discussions over six months prior to the commencement of proceedings.

[84]

Mr Rossi's submissions 384Mr 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. 385That 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. 386Mr 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. 387Living 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. 388Living 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.

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Partial finding on discretion 389The 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. ... 390I 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. 391Issues 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. 392I 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. 393Having 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. 394I 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.

[87]

Some delay in commencing proceedings by Mr Rossi 397Mr 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. 398The 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. 399Living 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.

[88]

No interlocutory injunction sought 400Mr 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 Park Residents 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. 401Each 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. 402Mr 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. 403These 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.