Rossi v Living Choice Australia Ltd - [2014] NSWLEC 116 - NSWLEC 2014 case summary — Zoe

NSWNSWLEC

Rossi v Living Choice Australia Ltd

[2014] NSWLEC 116

Land and Environment Court (NSW)|2014-06-05|Before: Pain J, Mr P, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2014-06-05

Before

Pain J, Mr P, Mr J

Catchwords

(2012) 191 LGERA 51 Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 76 LGRA 381
(1988) 81 ALR 166 Bankstown City Council v Bennett [2012] NSWLEC 38
(2006) 147 LGERA 330 De Haas v Williams [2004] NSWLEC 15
(2013) 196 LGERA 28 James v Surf Road Nominees (No 2) [2005] NSWCA 296 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23

Source

Original judgment source is linked above.

Catchwords

(2012) 191 LGERA 51 Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 76 LGRA 381(1988) 81 ALR 166 Bankstown City Council v Bennett [2012] NSWLEC 38(2006) 147 LGERA 330 De Haas v Williams [2004] NSWLEC 15(2013) 196 LGERA 28 James v Surf Road Nominees (No 2) [2005] NSWCA 296 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23(2006) 143 LGERA 277 Latoudis v Casey [1990] HCA 69(1990) 170 CLR 534 Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40(1986) 162 CLR 24 Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300(2009) 170 LGERA 162 North Sydney Council v Wouters [2012] NSWLEC 94 Oshlack v Richmond River Council [1998] HCA 11(1998) 193 CLR 72 Re Minister for Immigration and Ethnic AffairsEx parte Lai Qin [1997] HCA 6(1997) 186 CLR 622 R v Australian Broadcasting Tribunal

Judgment (30 paragraphs)

[1]

[4]

Rossi (No 3) 6Rossi (No 3) considered the substantive issues in the proceedings, namely ground 1 (failure in notification of stage 2 DA by the Council to Mr Rossi) at [111]-[136], ground 2 (failure in assessment by the Council and determination by JRPP of stage 2 DA) at [137]-[253], ground 3/4 (failure of notification of stage 2 consent of 12 October 2010; 6 June 2012) at [254]-[277], ground 5 (for breach of s 76A of the Environmental Planning and Assessment Act 1979 (the EPA Act) (civil enforcement against Living Choice) at [278]-[330], and ground 6 (invalidity of retaining walls consent) at [331]-351]. The most substantial issue was ground 2. All issues occupied court time and involved preparation by the parties. At [353] I summarised my legal conclusions as follows: Mr Rossi has been successful in relation to other grounds of challenge and related issues in establishing as follows: (a) A failure to consider a mandatory relevant consideration under s 79C(1)(b) and (c), and s 79C(1)(a) in relation to cl 32 of the Seniors SEPP, in relation to the retention of fill on the Rossi boundary in the Council's assessment and the JRPP's determination of the stage 2 DA in ground 2; (b) A breach of s 76A of the EPA Act with the removal of tall pines on the western end of the Rossi boundary on Mr Rossi's land and Living Choice land without development consent (ground 5); (c) A breach of s 76A of the EPA Act for work related to the keystone concrete block wall of digging a trench and backfilling on Rossi land without development consent (ground 5); (d) The keystone concrete block wall on the Rossi boundary is not exempt development and was built without development consent (within ground 5); (e) The retaining walls development consent is invalid (ground 6). 7Matters relevant to the exercise of discretion were considered in Rossi (No 3) at [357]-[408]. No declaration or consequential orders were made in Rossi (No 3). 8The relief sought in the Further Amended Summons (FAS) the subject of Rossi (No 3) was as follows: (1)Declaration that the stage 2 consent is void and of no effect; (2)Declaration that the notification of the stage 2 consent is void and of no effect; (3)Declaration that the modification of the stage 2 consent is void and of no effect; (4)Declaration that notification of the modification is void and of no effect; (5)Declaration that notification dated 6 June 2012 is void and of no effect; (6)Injunction restraining Living Choice from carrying out any works on the Living Choice land without development consent; (7)(a) Order for demolition of the relevant buildings, including timber piles and posts, retaining walls and related infrastructure; (7)(b) Order requiring Living Choice to remove the fill from the Living Choice land from the area adjacent to the common boundary for a distance of 50m; and (7)(c) Demolish the key stone concrete block wall on the common boundary, remove the gravel and backfill placed on the Applicant's land by Living Choice and restore the Applicant's land including planting of advanced trees in the place of those removed. 9The declarations and orders in 1 - 7(b) were not made. 10In the reply filed by Mr Rossi additional relief sought was the declaration of invalidity of the retaining walls consent. This declaration was made following Rossi (No 5). 11In relation to 7(c), detailed orders were made for demolition of the keystone concrete block wall on the common boundary, removal of gravel and backfill and restoration of Mr Rossi's land including planting of advanced trees to replace those removed by Living Choice in accordance with a landscaping plan specified in the orders.

[5]

Mr Rossi's submissions 12Mr Rossi seeks his costs of the proceedings from Living Choice and the Council jointly and severally because he was the successful party and costs should follow the event. The Court found breaches of the EPA Act and granted declaratory and ameliorative relief to Mr Rossi. The Court retains a discretion to make another costs order where there is a discrete, severable or dominant issue on which Mr Rossi failed or there was some form of disentitling conduct. Neither circumstance applies here. The mere fact that a successful party does not succeed on all the issues is not sufficient by itself for a court to depart from the usual rule. 13The Council caused the litigation through its failure to properly assess the stage 2 development application of Living Choice. It was found to be a proper party, contested every ground of challenge and was the consent authority for the retaining walls DA. De Haas v Williams [2004] NSWLEC 15; (2004) 132 LGERA 195 supports the position that where a council actively defends proceedings it will be liable for the costs of that defence. Living Choice also chose to defend the proceedings. Mr Rossi sought to uphold public law obligations and established a legal right to a determination of whether a declaration should be made. 14No issue in the proceedings is discrete, dominant or severable. The approach of the Council and Living Choice impermissibly seeks to divide the matter into issues and attribute costs to the party that succeeded or lost on a particular issue. That approach is contrary to Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 76 LGRA 381; (1988) 81 ALR 166 at 169 per Burchett J, Brown v Randwick City Council (No 2) [2012] NSWLEC 28 at [10]-[11], Bankstown City Council v Bennett [2012] NSWLEC 38; (2012) 187 LGERA 446 at [110]-[111], and Greenwood v Warringah Council (No 2) [2013] NSWLEC 3; (2013) 196 LGERA 28. 15Mr Rossi succeeded on the substantial issue of establishing a breach of the EPA Act in granting the approval for the stage 2 consent (Rossi (No 3) at [253]). The second issue of notification in which Mr Rossi was not successful was not clearly discrete, dominant or severable. In any event the issue did not lack merit. Mr Rossi was successful on the civil enforcement issue in relation to Living Choice. Mr Rossi was successful on the fourth issue of the invalidity of the retaining walls consent, at [351] -[353]. Mr Rossi succeeded in obtaining ameliorative relief, identified in Rossi (No 4). 16The settlement offers relied on by Living Choice are irrelevant. They were not offers of compromise under the Uniform Civil Procedure Rules 2005 (UCPR), were not Calderbank offers (Calderbank v Calderbank [1975] 3 All ER 333) and did not equate to the relief that Mr Rossi finally obtained. 17The hearing on 17-19 July 2013 was not aborted. The transcript shows that all parties adopted a course of consenting to the Court determining final orders on the basis of the evidence as it was in December 2012. The NOM filed by Mr Rossi on 8 July 2013 was not supported by evidence. The motion was not ultimately determined. The costs of 17 July are properly part of the overall costs of the proceedings. No separate costs of the motion were reserved on that occasion. 18Following the judgment in Rossi (No 3) an iterative process occurred in which numerous versions of proposed orders were put forward and revised following the Court's comments. The end result cannot be described as one party winning or losing. The directions following judgment are properly part of the overall proceedings. 19Both the Council and Living Choice should remain jointly and severally liable for any costs payable. Mr Rossi agreed with the JRPP that the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36 applies so that the JRPP should not be liable for costs.

[6]

Council's submissions 20The issues in these proceedings and the result are as follows: (i)Failure in notification of stage 2 DA by the Council, ground 1 (Further Amended Points of Claim (FAPOC) [10], [11]). This claim failed (Rossi (No 3) at [125]-[136]). A number of Council officers giving evidence were relevant to this issue alone. (ii)Whether the Council's assessment function was amenable to judicial review (FAPOC [12], [14]). Mr Rossi's argument was accepted (Rossi (No 3) at [151]-[157]). (iii)Alleged failure to consider s 79C(1)(b), (c) (FAPOC [24], [29]). The Court upheld Mr Rossi's argument in relation to the Council's assessment, and the JRPP's determination, of the consideration of the issues of retention of fill on the Rossi boundary, the visual impact of retention methods and overlooking impacts, but Mr Rossi failed in relation to the balance of the relevant matters pleaded such as placing of fill and depth of fill (Rossi (No 3) [212]-[233]). (iv)Alleged failure to consider State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors SEPP) under s 79C(1)(a)(i) (FAPOC [23]). Of the numerous alleged breaches, none were established as against the Council. The only success of Mr Rossi was in relation to the cl 32 claim, and that was a claim directed to the JRPP alone. Mr Rossi failed on his cl 30, vegetation, stormwater and Baulkham Hills Resident Development Control Plan claims (Rossi (No 3) [234]-[251]). (v)Manifest unreasonableness (FAPOC [30]). Claim failed (Rossi (No 3) [252]). (vi)Alleged failure of 12 October 2010 notification of DA (FAPOC [13(b)], [17]-[21]). Claim failed (Rossi (No 3) [271]-[274]). (vii)Alleged failure of 6 June 2012 notification of DA (FAPOC [42], [44]). Claim failed (Rossi (No 3) [275], [276]). (viii)Breach of s 76A on Rossi and Living Choice land (FAPOC [45], [46]). Mr Rossi partially successful, but the issue did not concern the Council (Rossi (No 3) [278]-[330]). (ix)Validity of retaining walls consent (Amended Reply [1]). Claim succeeded (Rossi (No 3) [346]-[351]). (x)Declaration of invalidity of stage 2 consent (Amended Summons [1]). Claim failed (Rossi (No 4) [12]). (xi)Claim for demolition order (Amended Summons [7(a)]). Claim failed (Rossi (No 3) [408]). (xii)Claim for injunctive relief (Amended Summons [6]). Claim failed (Rossi (No 4)). (xiii)Ameliorative orders (Amended Summons [7(c)]). The Court preferred Living Choice's proposal over Mr Rossi's (Rossi (No 5) [13]). 21As a shield to an award of costs against it, the Council said it was not the decision-maker, that was the JRPP as the consent authority. Ground 2, failure to consider various matters including the SEPP issue, is a finding against the JRPP. Of necessity the defect in the Council's assessment of the stage 2 DA was transmitted to the JRPP. Secondly no declaration of invalidity was made in relation to the stage 2 consent so that Mr Rossi was unsuccessful. That issue occupied the bulk of the Court time and case preparation. Mr Rossi failed on all the major issues including all those that directly concerned the Council (grounds 1, 3 and 4) and these issues are discrete and severable. 22The Council seeks orders that (sword): (i)Mr Rossi pay 50 per cent of its costs. Mr Rossi did not succeed on two grounds of most relevance to the Council, the failure of notification of the stage 2 DA, ground 1 issue 1 for which a number of council officers were required. Mr Rossi also failed in relation to ground 3/issue 6 in relation to the second notice, or (ii)If the Court resolves that Mr Rossi's costs ought be paid this should be apportioned as 75 per cent Living Choice, 15 per cent Council and 10 per cent JRPP. 23The Council's position may be further summarised as follows: Mr Rossi should be deprived of a substantial proportion of his costs because: (i)Mr Rossi did not achieve overall success in the proceedings, particularly in relation to the issues that concerned the Council; (ii)it was legally unnecessary for allegations of breach of s 79C to be made against the Council, given that Mr Rossi made identical allegations against the JRPP; (iii)of the abortive second hearing in July 2013; and/or (iv)of his conduct of the proceedings generally, and in particular the 3 days it took for the case to be opened. 24For these reasons, Mr Rossi should pay a proportion of the Council's costs. 25Alternatively, the Council's share of Mr Rossi's costs should be reduced because: (i)the only substantive issue in respect of which Mr Rossi enjoyed success against the Council (breach of s 79C) did not lead to the grant of any relief; (ii)the "error" which led to the finding of breach of s 79C was due to the Council being misled by Living Choice; (iii)even if the "error" could be attributed to the Council, it is equally the fault of the JRPP, which cannot immunise itself from costs liability by filing a submitting appearance; and/or (iv)the majority of the case (especially evidence) related to the issue of discretion and appropriate ameliorative orders, an issue primarily between Mr Rossi and Living Choice. 26As to the retaining walls consent: (a)this issue only arose in Mr Rossi's Amended Reply and was not part of the primary relief sought in the FAS; (b)the issue only arose in the context of a dispute concerning whether Living Choice had carried out works without development consent, an issue that did not concern the Council; (c)the issue as to the validity of the retaining walls consent occupied very little of the Court's time or in preparation, relative to the other issues in the case, at most 5 per cent; and (d)the declaration of invalidity did not lead to any substantive orders being made, because the relevant works were constructed prior to the grant of the consent on 26 June 2012, notice of which was issued on 2 July 2012. 27It is clear that these proceedings are not the usual kind of judicial review proceedings. First of all, a large part of the case related to an action for enforcement of the EPA Act against Living Choice, which did not concern the Council. Secondly, a significant part of the judicial review case related to the exercise of discretion, rather than issues of validity. Thirdly, the Council was not the ultimate decision-maker in relation to the stage 2 consent, it was the JRPP. Fourthly, as submitted above, Mr Rossi failed to obtain the grant of relief in relation to any claim brought against the Council. 28In relation to the exercise of discretion, Mr Rossi was substantially unsuccessful in obtaining the relief he sought, particularly in relation to the declaration of invalidity of the stage 2 consent, and the orders for demolition sought by him. The whole issue of discretion occupied the majority of the Court's time, and the bulk of the evidence. It was a discrete and severable issue, not only because the evidence relevant to it was discrete, but also because the issue was primarily one between Mr Rossi and Living Choice. 29Although it may be accepted that the process of apportionment is a matter of impressionistic judgment, the Court has the benefit of Mr Winram's evidence concerning the likely time and costs expended in relation to each relevant issue. Only 20 per cent of the time and cost spent on the case related to issues in respect of which Mr Rossi could be said to have achieved some success against the Council, and that percentage needs to be further reduced because Mr Rossi also succeeded on those issues against Living Choice and the JRPP.

[8]

Disentitling conduct 32The Court has a discretion not to award costs in favour of a successful party, and/or to order the costs of the other parties to be paid by the successful party, if there is disentitling conduct by it: North Sydney Council v Wouters [2012] NSWLEC 94 at [26], Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330 at [50(a)]. Mr Rossi should pay the Council's costs of and associated with the aborted second hearing in July 2013 because: (a)the question of final orders was not conclusively determined by the Court in Rossi (No 3): see at [409], [410]; (b)a three day hearing was allocated to deal with that issue, commencing on 17 July 2013; (c)Mr Rossi filed a NOM on 8 July 2013, seeking a variation of the findings made by the Court concerning the two notifications of the stage 2 consent, in addition to a curiously framed order seeking in effect to reopen the question of discretion, and in particular the finding concerning demolition; (d)in support of the NOM, Mr Rossi filed and served lengthy affidavits of Mrs Rossi (7 July 2013) and Mr Rossi (8 July 2013); (e)the reopening application was vexatious and doomed to fail, because it sought to reopen matters that had already been fully dealt with by the Court on the basis of the evidence that was then before the Court; (f)Mr Rossi's evidence was outside the scope of the orders for evidence made by the Court, and worse than that, was irrelevant and scandalous, and in any event was evidence that ought to have been adduced at the first hearing in 2012, and which would have caused the Council substantial prejudice had it been allowed in; (g)Mr Rossi's NOM was debated at some length on 17 July 2013; (h)on the afternoon of that day, Mr Rossi abandoned his "new evidence" application, and acceded to the Council's proposal that the Court determine the issue of final orders based on the evidence already before the Court, and the submissions previously made to it. This is recorded in Rossi (No 4) at [4]; and (i)the costs of Mr Rossi's NOM have been reserved.

[12]

Ground 2 (judicial review challenge to stage 2 consent) 39No orders should be made in Mr Rossi's favour in relation to ground 2 because no remedial orders or declarations in the FAS were made. Mr Rossi contributed to his lack of success by his own disentitling conduct. Living Choice successfully opposed and persuaded the Court not to grant any relief in respect of ground 2. Its argument prevailed. Ground 2 of the proceedings was unsuccessful and unnecessary and Mr Rossi should not get any, far less 100 per cent, of his costs of ground 2. Mr Rossi should pay Living Choice's costs of ground 2 including in relation to manifest unreasonableness. 40Given Mr Rossi's rejections of Living Choice's various offers and undertakings pertaining to ground 2, Mr Rossi did no better than those offers and undertakings on ground 2 (the remedial relief ultimately granted being Living Choice's proposed orders wholly directed to a few of Mr Rossi's s 76A / ground 5 claims). Further, the claim was unaccompanied by prayers for expedition or interlocutory relief, in respect of a large scale, physically commenced, seniors housing development continuously reliant upon the stage 2 consent for its completion. 41As Mr Rossi failed outright on grounds 3 and 4 Living Choice should have those costs paid. 42Mr Rossi's challenge in pars 32-35 of the FAPOC was wholly disposed of in Rossi (No 3) at [354] and Rossi (No 4) at [8], [12] (including the relief sought in prayer 3 of Mr Rossi's FAS filed 28 June 2012 regarding the modification, and prayer 4 regarding notification of that modification). This judicial review challenge was doomed to fail because its only basis was invalidity of the stage 2 consent. The challenge nevertheless consumed party and Court resources which could and should have been avoided. Mr Rossi should pay Living Choice's costs of the challenge/case in par 32-35 of the FAPOC. 43If Living Choice's primary position is rejected it seeks orders that: (a)Alternatively, Mr Rossi should pay Living Choice's costs of Mr Rossi's "manifest unreasonableness" component of ground 2, and the Council and JRPP should pay the balance of Mr Rossi's costs of ground 2 as assessed or agreed. (b)Alternatively, the Council and JRPP should pay Mr Rossi's costs of ground 2 as assessed or agreed. (c)Alternatively, each party should pay its own costs of ground 2.

[14]

Ground 5 - Outcome of Mr Rossi's civil enforcement proceedings 47In the Court's "executive summary" finding in Rossi (No 3) at [353(b)], the Court found "A breach of s 76A of the EPA Act with the removal of tall pines on the western end of the Rossi boundary on Mr Rossi's land and Living Choice land without development consent (ground 5)". This ground of challenge was on the following bases: (a)that Living Choice had, on its own land, erected certain timber posts, footings and brickwork curtain walls otherwise than in accordance with the Development Consent (par 36-41 of Mr Rossi's FAPOC, part of what is called "Ground 5" in Rossi (No 3), (b)that Living Choice had, on Mr Rossi's land, without his consent, removed two lines of small pines, erected a temporary fence, excavated a trench into which it had placed crushed aggregate and backfilled with gravel and soil, and erected a wall of variable height between 550mm and 700mm along the common boundary (par 45-46 of Mr Rossi's FAPOC - the balance of what is called "Ground 5" in Rossi (No 3)). 48The relief sought in respect of ground 5 was wholly dealt with and disposed of in Rossi (No 3) at [408]). 49In relation to the remainder, the Court found (at [309]), "In 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". However, Living Choice had already admitted the removal of pines which it had offered to replace: see Rossi (No 3) at [281]; Living Choice's Points of Defence at [45] and [50h]. 50Similarly, in the Court's "executive summary" finding in Rossi (No 3) at [353(c)], the Court found "A breach of s 76A of the EPA Act for work related to the keystone concrete block wall of digging a trench and backfilling on Rossi land without development consent (ground 5)" (emphasis added). See also Rossi (No 3) at [330]. However, Living Choice had admitted undertaking the excavation of the trench (only a small part of which extended onto the Rossi land) and backfilling on the Rossi land without development consent and without Mr Rossi's consent (Rossi (No 3) at [312]; Living Choice's Points of Defence at [45]) since 9 July 2012). 51Accordingly, the Court's findings at [330] and [353(c)] were not the result of a contested dispute, and no party or Court resources should have been wasted on a temporary fence (the erection of which was also admitted): see Rossi (No 3) at [311]; Living Choice's Points of Defence at [45]. 52The keystone concrete block wall was ultimately found to have been "built without development consent (within ground 5)": see Rossi (No 3) at [328] and [353(d)]. 53In light of the above, Living Choice is prepared to pay Mr Rossi's costs of his civil enforcement proceedings relating to the keystone concrete block wall, as assessed or agreed, but not Mr Rossi's costs relating to the other two matters plainly admitted in Living Choice's Points of Defence since 9 July 2012 and/or the subject of offers to Mr Rossi to replant (trees) or remove and restore (the excavation of the trench, placing of crushed aggregate and backfilling). Living Choice ultimately proffered remedial orders to the Court (in the absence of Mr Rossi's acceptance/agreement, and after the abortive fixture of 17-19 July 2013 described in Rossi (No 4) at [3]-[4]). The remedial orders proposed by Living Choice were the orders made (Rossi (No 5) at [10], [13]).

[16]

Response to Council's submissions 58Living Choice should not be responsible for the bulk of any costs order if made against the Respondents. The Council's solicitor advised, on 10 January 2012 (the day before the summons commencing the proceedings was filed) that all mandatory considerations were addressed in relation to the stage 2 consent, and the Council subsequently also pleaded the retaining walls consent by way of discretionary defence. The Court nevertheless expressly found obligation and errors attributable to the Council in relation to ground 2 (the stage 2 consent) and 6 (the retaining walls consent) (albeit granting no substantive relief to Mr Rossi in relation to either). 59Living Choice resisted the Council's contention that the Council's "error" in relation to ground 2 (the stage 2 consent) was due to it being "misled" by Living Choice. Rossi (No 3) at [224] follows [221]-[223], which are a mixture of facts and submissions wholly contingent on the ex post facto correspondence of Mr Buckham in 2011 being considered. If [224] contained any critical finding of fact by the Court it is significant that it is not characterised as lessening the findings of Council's own breaches at [228]-[230], [232], [253] or [353(a)]. Of more significance is the Council's (accurate) observation that Mr Rossi did not plead or particularise such matter(s) in any way in the FAPOC filed 29 June 2012. 60Pursuant to cl 13F(2)(d) of State Environmental Planning Policy (Major Development) 2005 (now repealed), Council was permitted the function of "the receipt and assessment of development applications". It was available to the Council, if it considered that more was required, to invoke its powers under the Environmental Planning and Assessment Regulation 2000 to reject the development application (cl 51) or request additional information (cl 54). It did not do so in relation to the purported absence of reference to fill retention on the Rossi boundary. This is a failure of Council, compounding its found "error" in relation to the stage 2 consent, and is not attributable to Living Choice.

[18]

Some of Mr Rossi's costs to be paid by Respondents 63Costs are compensatory per Latoudis v Casey [1990] HCA 69; (1990) 170 CLR 534. The Court's powers to make costs orders under s 98 of the Civil Procedure Act 2005 are broad. Under Pt 42 r 42.1 of the UCPR costs should follow the event unless it appears to the Court that some other order should be made in relation to the whole or part of the costs. 64The first issue to arise is defining the relevant event(s) for costs purposes with Mr Rossi submitting the various issues in the proceedings were interlinked and could not be separated. The Council and Living Choice's submissions separated the proceedings into various issues to ascertain which parties succeeded on what in order to define the multiple events which they submitted should be applied for costs purposes. These different approaches were reflected in the evidence relied on by the parties. Mr Rossi's counsel provided a summary of the events at the hearing based on the transcript, while Mr Winram, adopted by Ms McCulloch, provided his informed impression of how long particular issues took in terms of case preparation and court time. 65In proceedings concerning multiple issues in which an applicant does not succeed in all of them, and where issues are discrete, the court may consider the apportionment of costs per Brown v Randwick City Council, identifying various cases where the relevant principle has been considered in [10] and [11]. In Brown Preston J found that the fact that an applicant does not succeed on all issues raised in the proceedings is not sufficient by itself for the Court to depart from the usual rule and instead award costs only with respect to the issues on which the applicant did succeed. The issues on which an applicant does not succeed must be dominant or severable per James v Surf Road Nominees (No 2) [2005] NSWCA 296 at [35]. A strict mathematical approach is not called for per Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 6 IPR 261, Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 30 ASCR 20 at 22. 66These were complex and hard fought judicial review and civil enforcement proceedings which I will consider in four parts as I believe that reflects the nature of the litigation before me. Firstly, the judicial review challenge to the stage 2 consent on the ground of a failure in notification of the stage 2 DA and numerous failures to consider mandatory relevant considerations (grounds 1 and 2), and the judicial review challenge to the validity of two notifications of the stage 2 consent (grounds 3 and 4). Secondly, a civil enforcement action for breaches of s 76A of the EPA Act by Living Choice (ground 5). Thirdly, the judicial review challenge to the retaining walls consent (ground 6). Because Mr Rossi had some success in the legal issues raised by him concerning the exercise of the Court's discretion to grant the declaratory and consequential orders arose, the fourth part.

[19]

Mr Rossi's challenge to stage 2 consent established in part 67The challenges to the stage 2 consent were identified in ground 1 (failure to notify stage 2 DA by the Council), see Rossi (No 3) at [111]-[136], and ground 2 (failure to consider various mandatory relevant matters) at [137] - [253] which I consider in greater detail below. Grounds 3 and 4 were challenges to the notification of the grant of the stage 2 consent, see Rossi (No 3) at [254]-[277]. Mr Rossi was unsuccessful on grounds 1, 3 and 4. Grounds 1, 3 and 4 were discrete issues in that their factual and legal consideration did not overlap with ground 2. 68Ground 2, the most substantial ground of challenge to the stage 2 consent, identified a number of alleged failures in the assessment by the Council and the determination by the JRPP of the stage 2 consent, outlined in Rossi (No 3) at [139]-[140]. The FAPOC (a)-(m) refer to failures to consider several provisions in the Seniors SEPP (clauses 30, 32, 33, 34 and 36) related 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 a site analysis plan. Failures to consider the Baulkham Hills Resident Development Control Plan were also alleged in par 23(n). An alternative case is identified in Rossi (No 3) at [140] as follows: An alternative case is found in par 25 - 27 and 29 of the FAPOC which allege that the Council (as a consent authority) was obliged under s 79C, but failed, to assess and consider the fill approved for placement on the Living Choice land, its retention and how that would impact on the amenity and privacy of the Rossi land. Paragraph 28 states that the Council was obliged to consider the conditions necessary to ameliorate the environmental impact of the fill, but failed to do so in breach of s 79C. In the alternative par 29 alleges that the Council and the JRPP deferred essential considerations about the specified matters in the assessment and determination process. Paragraph 30 alleges that the Council's assessment of the DA was manifestly unreasonable, irrational and arbitrary, not a valid exercise of statutory power and beyond jurisdiction. The same paragraphs allege that the JRPP also as a consent authority failed to properly determine the parent DA for all the same reasons. 69Consideration of ground 2 required first that I determine whether the Council's assessment function was amenable to judicial review proceedings at [141]-[157]. I found that it was. The challenge to the assessment of the Council and the determination of the JRPP was considered at [158]-[253]. I found two failures to consider mandatory relevant considerations, one by the Council in its assessment under s 79C(1) and consequently a failure in the determination of the JRPP to assess and consider a mandatory relevant consideration at [226]-[229]. I summarised my conclusions in relation to this part of the case in the FAPOC par 25-30 at [230]-[233]. I found the JRPP failed to consider cl 32 and by necessary extension cl 33 of the Seniors SEPP at [243]-[246]. 70Those findings of failure in the assessment and determination of the stage 2 consent were significant. While Mr Rossi was not successful in relation to all the grounds identified and the consideration of all the alleged breaches was lengthy, the evidence which the Court had to consider was largely common to all the identified failures and would have had to be addressed in any event. Accordingly, my finding of failure to consider mandatory relevant matters would usually mean that Mr Rossi should be entitled to his costs in relation to this part of the case except that a further consideration arises. Mr Rossi did not obtain any of the relief sought in relation to the stage 2 consent because I concluded as part of the exercise of the Court's discretion that I would not grant such relief. In Rossi (No 3) at [395]-[408] I determined that I would not make the orders for demolition of several villas or removal of substantial areas of fill sought by Mr Rossi. In Rossi (No 4) at [9]-[12] I determined that I would not make a declaration of invalidity of the stage 2 consent. This is considered further below. 71The Council submitted that it was not a proper party. I have already found that it was a proper party in Rossi (No 3) at [141]-[157] in the context of determining whether the Council's assessment function was justiciable. The Council chose to fully contest these proceedings in relation to the stage 2 consent. It is too late to be making that submission now in relation to costs when the substantive proceedings have been completed. 72In relation to Living Choice's counsel's submissions, no court time was spent on the modifications ground. There is no basis for apportioning costs in relation to that ground it being entirely consequential on other findings. Similarly in relation to manifest unreasonableness no court time was occupied by that issue, see Rossi (No 3) at [252]. I will not take this aspect into account in this costs determination.

[24]

Exercise of discretion not to grant declaratory or other relief in relation to stage 2 consent 79The exercise of discretion by the Court as to whether to grant the relief sought in the FAS arose because Mr Rossi was successful in part of his judicial review challenge to the stage 2 consent (and in relation to the retaining walls consent as already identified above). The Council's contention that it had no role to play in the exercise of discretion and therefore should be insulated from liability for these costs ignores the circumstance identified in the preceding sentence. It was only necessary for the Court to exercise discretion whether to grant relief because of the collective failure of the Council and the JRPP. The Council should not be insulated on that basis alone from any costs order if appropriate. 80The extensive evidence and submissions I considered in relation to the exercise of discretion whether to order demolition of several villas and a large area of fill are set out in Rossi (No 3) at [357]-[408] or to declare the stage 2 consent invalid in Rossi (No 4) at [9]-[12]. I held the issue was finely balanced and determined not to require the demolition sought by Mr Rossi in Rossi (No 3) at [408]. I also did not make the declaration of invalidity of the stage 2 consent sought, as found at Rossi (No 4) at [12]. That Mr Rossi failed to obtain that relief does not mean that his case should be considered a failure however. The finding of error in the assessment and approval process of the stage 2 consent was substantial. 81While I ultimately determined I would not exercise my discretion to grant the relief sought by Mr Rossi in relation to the stage 2 consent that was due to the balancing of a number of factors such as the long term leasing of parts of the stage 2 development to third parties not joined in the proceedings. I do not consider Mr Rossi should be described as the unsuccessful party. Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 All ER 685, relied on by Living Choice in relation to whether a party can be regarded as successful, is not applicable for the reasons given by Mr Rossi, namely in that case the plaintiff obtained nominal damages only. It has no application in the circumstances here of informing my consideration of whether Mr Rossi was a successful party. That submission fails to recognise that Mr Rossi did establish a legal right to relief irrespective of whether a remedy was granted. The necessarily lengthy consideration of issues relevant to the exercise of the Court's discretion whether to order demolition considered in Rossi (No 3) arose directly because Mr Rossi was successful on ground 2. No criticism can be made of Mr Rossi that the consideration of discretionary considerations was lengthy. That reflected the circumstances the parties wished to put before the Court, none of which were irrelevant to the exercise of the Court's discretion. Each party should pay its own costs of this part of the proceedings (Rossi (No 3) at [357]-[408] and Rossi (No 4) at [9]-[12]).

[25]

Hearing of 17 July 2013 - no disentitling conduct 82The Council and Living Choice both alleged disentitling conduct by Mr Rossi and sought their costs of the hearing set down for 17-19 July 2013 and preparation for that hearing. The parties referred the Court to the transcript of 17 July 2013. The hearing of 17-19 July 2013 did not ultimately proceed as intended. One day was used to consider a NOM filed by Mr Rossi on 8 July 2013 seeking orders relating to Rossi (No 3). The motion was not finally dealt with by the Court because of the way events unfolded and I did not read any of the affidavits filed by the parties in relation to the orders which might be made in the exercise of the Court's discretion. In this costs hearing criticism was made of Mr Rossi's affidavits as scandalous and traversing matters already dealt with in Rossi (No 3). The same affidavits were tendered by the Council and Living Choice in this costs hearing as exhibits to the affidavits of Mr Winram and Ms McCullough. 83The transcript tendered as part of exhibit 1A shows in my view that the parties collectively decided that they would not proceed with the intended hearing and agreed the matter should be determined by the Court on the basis of the evidence adduced in the first hearing. That all parties spent time and money preparing affidavits they did not ultimately rely on was not caused by Mr Rossi's actions. All the parties concurred in that approach. Further Mr Rossi did not press for final determination of his motion. There is no basis for awarding costs against Mr Rossi in relation to that hearing as there was no disentitling conduct by Mr Rossi. 84I do not accept the Council's characterisation of the events on that day in par 32 such as that lengthy affidavits of Mr and Mrs Rossi were filed in support of the NOM. These were filed in relation to the substantive hearing on relief which did not proceed by agreement of the parties. Whether the motion was doomed to fail does not arise as I did not need to finally determine it. As already noted above, I did not consider the evidence filed by Mr Rossi, or indeed any of the parties, as the hearing on relief did not proceed. There is no reason to review the affidavits in this costs application, indeed I should not in accordance with the cautionary note identified in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624. 85Each party should pay his or its costs of preparation for and attendance at the hearing on 17 July 2013.

[27]

Should there be apportionment of costs as between the Council and Living Choice? 89The Council and Living Choice each made submissions that the other should be liable in the event costs are ordered to be paid by the Respondents. I will consider the JRPP separately. 90In relation to the stage 2 consent I do not consider I should apportion any costs order as between the Council and Living Choice, contrary to the Council's submissions. The unfortunate circumstances which resulted in the Council officer Mr Buckham not appreciating the Rossi boundary treatment then proposed by Living Choice is set out in Rossi (No 3) at [221]-[223] but I did not make any finding that Living Choice misled the Council. As Living Choice submitted the Council could have sought more information about any matter of concern. The Council's engineering department did request further detail about the amount of fill to be located on the land. The plan provided showed fill was intended across the whole site, see Rossi (No 3) at [219]. I found that the assessment of the placement of fill on Living Choice land occurred but not the containment of that fill along the Rossi boundary, which was clearly necessary given the marked differences in levels of the proposed stage 2 development and Mr Rossi's land particularly at the western end of the Rossi boundary. The change in contour of the Rossi land was clearly discernable in photographs before the Court. Contour levels were also identified on plans submitted by Living Choice to the Council. 91I would characterise the situation as one where in the assessment of a large scale development insufficient attention by both Living Choice in the plans submitted in support of the stage 2 DA and the Council in its assessment of those plans was directed to the containment of fill on all sections of the boundaries. This can be seen from the plans, including the cross-sections, lodged by Living Choice. The cross-section for the Rossi boundary was not directed to the western part of the boundary where the height difference was most extreme, see Rossi (No 3) at [220]. The Council's officers also apparently failed to appreciate the difference in height between the two properties would require retention of the fill indicated. Contour lines were provided on the plans filed by Living Choice. Fault does not obviously lie with either Respondent in my view. Apportionment as between them is not warranted in relation to the stage 2 consent judicial review challenge. Both Living Choice and the Council actively engaged in the proceedings and both should be liable for these costs. 92Living Choice submitted the Council should pay the costs of ground 6 (the retaining walls consent). Living Choice participated actively in all the issues in the proceedings including in relation to the retaining walls consent. It should also be liable for Mr Rossi's costs in relation to that ground.

[28]

Should the JRPP be subject to costs order? 93The JRPP's submission that it was not the cause of the litigation is not correct. It approved the stage 2 consent. If it had not approved that development this litigation would not have been commenced by Mr Rossi. At that broad level it can be considered entirely the cause of the litigation in relation to the stage 2 consent by virtue of its development assessment and approval role as the consent authority under the EPA Act. I considered that role in Rossi (No 3) at [141]-[157] in the context of determining whether a council's assessment function under the EPA Act was amenable to judicial review. At [151] I found unremarkably that the JRPP must comply with s 79C of the EPA Act when determining a DA. That the JRPP chose to rely on the Council's assessment as it was able to do under the EPA Act does not diminish the importance of its statutory assessment and determination functions under the EPA Act in relation to the stage 2 consent. 94The JRPP filed a submitting appearance save as to costs early in the proceedings as provided for under UCPR r 6.11. The rule makes no provision for costs in the event such an appearance is filed. That the rule providing for a submitting appearance does not provide for the costs consequences of doing so was confirmed by the Court of Appeal in Seller v Jones per McColl JA at [59], upholding the decision of the trial judge to award costs against a submitting party in the circumstances of that case. According to Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney 2005 to date (loose leaf at Service 87, July 2014) ordinarily where a submitting appearance is filed save as to costs a submitting party is not liable for costs incurred from the date of filing the submitting appearance at [6.11.10]. Ritchie then identifies at [6.11.15] two categories of cases where the cost consequences of submitting appearances have been considered, one being judicial review cases and one being cases where a council files submitting appearances in development consent proceedings in this Court. The cases cited include Develtor, where no costs order was made against a submitting council, and De Haas, Cutcliffe and Trenwith v Sutherland Shire Council (No 3) [2006] NSWLEC 490 in which costs orders were made against a submitting council. 95The JRPP relied on the Hardiman principle as justifying its position to file a submitting appearance and also as supporting its submission that it should not bear any costs. Whether that principle can be said to operate under the statutory context of the EPA Act is a matter for debate to be determined in the context of a particular proceeding. Underpinning the principle in Hardiman is the importance of considering whether the impartiality of the consent authority is affected by its participation in proceedings. Despite what was said in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 by Gummow and Gaudron JJ at 77-78, a non-binding authoritative statement by the two learned justices that the council in that case might have been expected not to be a protagonist because this might endanger its impartiality in subsequent applications by the applicant, councils regularly appear and actively participate in judicial review proceedings in this Court where development consents are challenged in cases where there is another contradictor and cases where there is not. The JRPP is a consent authority under the EPA Act and similar considerations apply to it. 96In Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 at [249]-[252] Biscoe J considered under the heading of the active role of the council in the proceedings the application of the Hardiman principle in judicial review proceedings challenging the making of a local environmental plan referring to observations by Basten JA in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162 (a case where apprehension of bias of an acting commissioner was raised). At [251]-[252] his Honour stated: 251 Oshlack and Murlan inform the role of a council in development appeals in this Court. I would respectfully observe that development consents are subject to consideration of a range of mandatory matters, including the public interest and environmental impacts: s 79C EPA Act. This may raise for further consideration whether a developer, with an eye to its commercial interests, is necessarily the proper contradictor and whether it is necessarily appropriate for the Council to submit to such order as the Court might make, at least where considerations such as the public interest and environmental impact are involved. 252 In the present case, some of the applicant's grounds of challenge go to the power of the Council and to alleged ostensible bias by the Council and to that extent, in my view, there is no conflict with the Hardiman principle. Otherwise, I think that Hardiman is distinguishable. I leave aside the fact that Village was not initially joined in the proceedings. The public interest at stake in the case of the making of a LEP does not necessarily correspond with the commercial interests of a developer and is generally broader than where a development consent by a council is under challenge. It is a council's role to balance a wide range of competing interests when addressing the matter of a LEP. In such a case, I consider that the Hardiman principle is generally inapplicable. 97In Cutcliffe Biscoe J had to determine costs consequences, if any, in judicial review proceedings of the grant of a development consent where a council filed a late submitting appearance save as to costs. His Honour resolved that the council should pay costs as it was the cause of the litigation. Biscoe J identified in obiter some general guidelines which he considered applied to the exercise of the Court's discretion to order costs in circumstances where one party has filed a submitting appearance. While these observations are obiter they are helpful, with [50] (a), (b) and (c) arguably applying to the circumstances of the JRPP in this case. In Brown Preston J also found at [25] that ordinarily the consent authority whose error caused the litigation would be liable for costs, citing Cutcliffe at [50]. Preston J found that a consent authority cannot immunise itself from costs by entering a submitting appearance because then a successful applicant cannot be properly compensated in costs, at [25]. 98For the reasons articulated by Biscoe J in Cutcliffe, particularly in [50(c)], I consider the JRPP should also be liable for costs jointly and severally with the other Respondents in relation to the stage 2 consent judicial review challenge. As Living Choice submitted, cases such as De Haas v Williams at [72], Cutcliffe and Seller v Jones do not support the JRPP's primary argument relying on Develtor. That decision has been distinguished or not applied subsequently. As I understand the various cases referred to, each case involving a submitting council is likely to be determined on its own facts rather than on the basis of a presumptive approach that costs incurred will not be awarded after a submitting appearance is filed. 99The JRPP had no role to play in relation to the retaining walls consent and should not be liable for costs in relation to that consent.

Rossi v Living Choice Australia Ltd

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