Rossi v Living Choice Australia Ltd

ENVIRONMENT AND PLANNING - development applications - relief - orders under s 25B of the Land and Environment Court Act 1979 (NSW) - whether s 25B orders should be made in respect of the impugned development consent instead of a declaration of invalidity - form of ameliorative orders Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Environmental Planning and Assessment Act 1979 (NSW), ss 4, 20, 23G, 76A, 78A, 79B, 79C, 80, 80A, 81, 82, 82A, 83, 89, 96, 101, 122, 123, 124; Pt 4; Pt 6 Div 3, s 153 Environmental Planning and Assessment Regulation 2000 (NSW), cll 3, 100, 101, 102, 106, 113, 115, 122, 123D, 123E, 264, 266, 268 Land and Environment Court Act 1979 (NSW), ss 20, 25A, 25B, 25E, 58, 71; Pt 3 Div 3; Pt 6 Div 11 Supreme Court Act 1970 (NSW), s 75A State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 4, 14, 26, 28, 29, 30, 32, 33-39; Pt 3 State Environmental Planning Policy (Major Development) 2005, cll 13B, 13F; Pt 3 State Environmental Planning Policy (State and Regional Development) 2011, Sch 6.12[19] Uniform Civil Procedure Rules 2005 (NSW), rr 36.17, 51.53 Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138; 191 LGERA 51 Browne v Dunn (1893) 6 R 67 Cutcliffe v Lithgow City Council [2006] NSWLEC 463; 147 LGERA 330 Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 Eco-Villages Australia Pty Ltd v Pittwater Council [2012] NSWLEC 49 Emory University v Biochem Pharma Inc (1998) 86 FCR 1 F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306 House v The King (1936) 55 CLR 499 Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; 190 LGERA 119 Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; 150 LGERA 333 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Project Blue Sky Inc v Australian Broadcasting Authority [1998] 199 HCA 28; 194 CLR 355 Pselletes v Randwick City Council [2009] NSWCA 262; 77 NSWLR 287 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 Ross v Lane Cove Council [2014] NSWCA 50 Rossi v Living Choice Australia Ltd t/as Living Choice [2012] NSWLEC 112 Rossi v Living Choice Australia Ltd t/as Living Choice (No 2) [2012] NSWLEC 144 Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46 Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136 Rossi v Living Choice Australia Ltd (No 5) [2013] NSWLEC 197 Rossi v Living Choice Australia Ltd (No 6) [2014] NSWLEC 116 Scharer v State of New South Wales [2001] NSWCA 360; 116 LGERA 217 Swadling v Sutherland Shire Council (1994) 82 LGERA 431 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Category: Principal judgment Parties: Anthony Rossi (Appellant) Living Choice Australia Ltd (First Respondent) The Hills Shire Council (Second Respondent) Sydney West Joint Regional Planning Panel (Third Respondent) Representation: Counsel: Mr P Tomasetti SC with Ms V McWilliam (Appellant) Mr T Robertson SC with Ms H Irish (First Respondent) Mr A Galasso SC with Mr J Lazarus (Second Respondent) Submitting appearance (Third Respondent)

Solicitors: DG Briggs & Associates (Appellant) Pikes & Verekers Lawyers (First Respondent) Maddocks Lawyers (Second Respondent) Department of Planning and Infrastructure (Third Respondent) File Number(s): 2013/366851 Decision under appeal Court or tribunal: Land and Environment Court of NSW Jurisdiction: Class 4 Citation: Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46 Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136 Rossi v Living Choice Australia Ltd (No 5) [2013] NSWLEC 197 Rossi v Living Choice Australia Ltd (No 6) [2014] NSWLEC 116 Date of Decision: 25 November 2013 20 August 2014 Before: Pain J File Number(s): 2012/40018

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The first respondent, Living Choice Pty Ltd (Living Choice), obtained development approval (the Stage 2 Consent) for the construction of villa units as part of a retirement village on land owned by it in Glenhaven, NSW. That land adjoined land owned by the appellant, Mr Anthony Rossi. Living Choice later obtained separate development approval for the construction of a retaining wall (the Retaining Walls Consent) close to the boundary between its land and Mr Rossi's land (the Rossi Boundary). Mr Rossi commenced proceedings in the Land and Environment Court against Living Choice, the Hills Shire Council (the Council) and the Sydney West Joint Regional Planning Panel (the Panel). The relevant legislation - the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act) - and its associated regulations - including the State Environmental Planning Policy (Housing for Seniors of People with a Disability) 2004 (NSW) (the Seniors Policy) - bifurcated responsibility for the assessment and determination of certain development applications between the Council and the Panel. Broadly, the Council had certain administrative and reporting functions, while the Panel, having regard to a number of considerations required by the legislation and regulations, determined the applications. Mr Rossi's complaints focused on the validity of the Stage 2 Consent and of the Retaining Walls Consent, as well as on certain work undertaken by Living Choice (including the removal of trees, the excavation of a trench and the construction of a keystone block wall) on the Rossi Boundary without development consent. He alleged a series of errors and oversights on the part of the Council and the Panel in the development approval process, and alleged errors in the notification and subsequent modification of the Stage 2 Consent. One of the oversights of the Council and Panel alleged by Mr Rossi was that they failed to consider, in relation to the Stage 2 Consent, the method of retention of a large amount of fill material that would be required on the Rossi Boundary. (That fill material was required because the finished floor levels of the villa units approved by the Stage 2 Consent were substantially higher than the natural ground level next to the Rossi Boundary.) Ultimately, a judge of the Land and Environment Court (the primary judge) concluded that there were some material failures in the exercise of statutory power by the Council and the Panel in the assessment and determination leading to the Stage 2 Consent. However, her Honour did not make a declaration of invalidity in respect of the Stage 2 Consent, but did do so in respect of part of the Retaining Walls Consent. The primary judge concluded that the first of two notices of determination of the Stage 2 Consent was valid, despite some irregularities. The primary judge made a series of orders providing for landscaping work to be carried out on the Rossi Boundary, to remediate the unauthorised works undertaken by Living Choice. Mr Rossi appealed from some of the primary judge's orders, and Living Choice and the Council filed cross-appeals and applications for leave to cross-appeal. The principal issues on appeal were: (1) whether the primary judge erred in finding that the Council's assessment function was amenable to judicial review, such that an error that it made could invalidate consent granted by the Panel; (2) whether the primary judge's factual finding that the Council had assessed the fill intended to be placed along the Rossi Boundary in order to locate some of the villa units at certain levels was not open, wrong or contrary to the evidence; (3) whether the primary judge erred in finding that the Council and the Panel had breached s 79C of the Planning Act, on the basis that both had failed to consider the retention of fill and the impacts thereof on the Rossi Boundary and on the basis that the Panel had not complied with cl 32 of the Seniors Policy (in relation to cll 33, 34 and 36); (4) whether the primary judge erred in law in failing to find that the notices of determination relating to the Stage 2 Consent were invalid; and (5) whether the primary judge erred in law in failing to make a declaration of invalidity in relation to the Stage 2 Consent and whether her Honour erred in the making of ameliorative orders. The Court of Appeal (Basten JA, Emmett JA, Ward JA agreeing) held, allowing the appeal in part, directing the parties to seek agreement on the form of ameliorative relief and to provide further submissions on the issue of costs, that: (1) Contrary to the conclusion of the primary judge, it was the determination of the Panel, not the assessment of the Council, that was amenable to judicial review. The Council's assessment had no juridical consequences on its own, and it would increase uncertainty to find some implicit judgmental or evaluative function being conferred on the Council: Basten JA at [23]; Emmett JA at [268]-[269]; (Ward JA agreeing with both at [79]) Environmental Planning and Assessment Act 1979 (NSW), s 23G, s 79C; Environmental Planning and Assessment Regulation 2000 (NSW), cl 123E; State Environmental Planning Policy (Major Development) 2005 (NSW), cl 13F, considered Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138; 191 LGERA 51; Eco-Villages Australia Pty Ltd v Pittwater Council [2012] NSWLEC 49, considered Further, although the Panel was a necessary party to the proceedings and properly submitted to whatever orders the Court might make, the Council was only properly joined to the extent that it was affected by the declarations sought by Mr Rossi that the notices of determination relating to the Stage 2 Consent were invalid. Otherwise, it was unnecessary for the Council to play an adversarial role, there already being active contestants (namely Mr Rossi and Living Choice): Basten JA at [15]; Emmett JA at [270] (Ward JA agreeing with both at [79]); Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72, applied (2) There was no error in the primary judge's factual finding that, to the extent that there was to be fill placed along the Rossi Boundary, its impact was assessed by the Council: Emmett JA at [283]; (Ward JA agreeing with both at [79]) (3) The primary judge did not err in finding that the Council and the Panel had breached s 79C of the Planning Act. Neither body had regard to the fact that the finished floor levels of the villa units at the western end of the Rossi Boundary were significantly higher than the natural levels of Mr Rossi's land. That constituted a contravention of s 79C(1)(a)(i), s 79C(1)(b) and s 79C(1)(c) of the Planning Act: Basten JA at [18]; Emmett JA at [339]; (Ward JA agreeing with both at [79]) (4) The defects in the first notification of the Stage 2 Consent did not have the result that the Panel's determination was invalid. However, although those defects did not result in any demonstrated detriment to Mr Rossi, there should be a declaration of invalidity in respect of that notification. The second notification, sent approximately 18 months after the first notification, is of no significance and no such declaration should be made in respect of it: Basten JA at [37]; Emmett JA at [370]; (Ward JA agreeing with both at [79]) Environmental Planning and Assessment Act 1979 (NSW), ss 81, 83; Environmental Planning and Assessment Regulation 2000 (NSW), cll 100, 102, 266, 268, considered Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638, considered (5) Notwithstanding the breach of s 79C of the Planning Act, the preferable course is not to make a declaration of invalidity in relation to the Stage 2 Consent but instead to make an order under s 25B of the Land and Environment Court Act 1979 (NSW) that landscaping work be carried out along the Rossi Boundary. Instead of adopting the landscaping plan ordered by the primary judge, the parties should seek agreement on the appropriate form of ameliorative orders: Basten JA at [55]-[56]; Emmett JA at [370], [384]; (Ward JA agreeing with both at [79]) Consideration of the scope of the discretionary power of the Court: Basten JA at [39]-[45] Land and Environment Court Act 1979 (NSW), s 25B; Environmental Planning and Assessment Act 1979 (NSW), s 124; Supreme Court Act 1970 (NSW), s 75A, applied Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306; Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; 190 LGERA 119, considered Further, Basten JA considered the principles relevant to the making of costs orders in relation to the proceedings in the Land and Environment Court and in the Court of Appeal: at [66]-[77] The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72; Cutcliffe v Lithgow City Council [2006] NSWLEC 463; 147 LGERA 330, considered

Judgment

1. BASTEN JA: The appellant, Anthony Rossi, owns land adjoining a retirement village at Glenhaven, within the local government area of The Hills Shire Council (the Council). The retirement village was developed by the first respondent, Living Choice Australia Ltd (the developer).

Development consent - regional panels

1. The development of the retirement village took place in stages, each requiring development consent under the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act), from an appropriate consent authority. For most developments assessed under Pt 4 of the EP&A Act, the appropriate consent authority is the local council. However, that is not always the case. In particular cases, the consent authority may be a joint regional planning panel. [1] A joint regional planning panel (referred to below as a regional panel) is a body constituted by the Minister under s 23G of the EP&A Act. [2] Relevantly for present purposes, s 23G 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, … (5) A regional panel is a statutory body representing the Crown. Note. … (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). … (6) Schedule 4 has effect with respect to regional panels.
2. It is not necessary to go to Sch 4, except to note that each regional panel is to consist of five members, three of whom are appointed by the Minister and two are council nominees; four must have expertise in areas relevant to planning.
3. The functions may be conferred on a regional panel in two ways, each carefully confined. First, functions may be conferred by a relevant environmental planning instrument, which includes a State Environmental Planning Policy ("SEPP"). [3] Secondly, powers or functions are conferred by deeming a regional panel to be a council, pursuant to sub-s (5A): that conferral may be limited by regulations. The limiting effect is found in cl 123D of the Environmental Planning and Assessment Regulation 2000 (NSW), which states: 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), (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. (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.
4. The development undertaken by Living Choice was subject to two State Environmental Planning Policies, namely "Housing for Seniors or People with a Disability 2004" ("the Seniors Policy") and the Major Development 2005 Policy ("the Major Development Policy").
5. The Seniors Policy prescribes relevant standards and considerations. The Major Development Policy (as in force at the relevant time) [4] conferred functions on 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 ... 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 [specified sections]. (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)), … (d) the receipt and assessment of development applications, … (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. Note. The Environmental Planning and Assessment Regulation 2000 also provides that a regional panel is taken not to be the council for specified provisions of the Environmental Planning and Assessment Act 1979.
6. Clause 13F appears in Pt 3 of the Policy. Relevantly for present purposes, cl 13B(1)(a) provided that Pt 3 applies to a development that has a capital investment value of more than $10 million. The retirement village had a value in excess of that figure. The excluded provisions set out in the Regulation, cl 123D(1) are neither expressly included nor excluded by cl 13F of the Major Development Policy.
7. The way in which the scheme is intended to operate may be identified in three stages. First, although cl 13F of the Major Development Policy is expressed in terms of the conferral of functions, where it is engaged, it would appear to render the conferral exclusive of the applicable council, by virtue of s 23G(5B).
8. Secondly, the relevant instrument (in this case the Major Development Policy) is not expected to spell out the nature of the functions conferred on the regional panel. Thus, relevantly for present purposes, cl 13F(1)(a) identifies a function simply as "the determination of applications". Pursuant to s 23G(5A) the regional panel will, in the exercise of that function, be "taken to be the council whose functions are conferred on the panel". Thus, when the council determines a development application, it is subject to the requirements of s 79C of the EP&A Act, which sets out the matters which the council as consent authority must take into account. Thus, the effect of s 23G(5A) is to apply s 79C to the regional panel. Because that provision is said to be subject to the regulations, the EP&A Regulation could limit, for example, the application of s 79C to the determination of a development application by a regional panel. However, cl 123D does not have that effect.
9. The third way in which the scheme operated was to leave with the council certain administrative functions (including receipt of development applications and notification of determinations) [5] and more significant, but resource intensive functions, including the preparation of assessment reports. So much is reflected in the Regulation, cl 123E(1) of which provides: 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.

Judicial supervision of planning decisions

1. Next it is convenient to consider the scheme for judicial supervision. Part 6, Div 3 of the EP&A Act confers power on "[a]ny person" to bring proceedings in the Land and Environment Court "for an order to remedy or restrain a breach of this Act", whether or not a right of that person has been infringed. [6] There are definitional provisions in s 122: 122 Definitions In this Division: (a) a reference to a breach of this Act is a reference to: (i) a contravention of or failure to comply with this Act, and (ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and (b) a reference to this Act includes a reference to the following: (i) the regulations, (ii) an environmental planning instrument, (iii) a consent granted under this Act, including a condition subject to which a consent is granted, ….
2. To employ s 123, it is necessary to identify the body with responsibility for making a determination. Given the breadth and apparent purpose of s 123, it is unfortunate if that cannot be done with certainty in a particular case. Yet there was confusion in the present case arising from a combination of the provisions set out above, including cl 13F(2)(d) of the Major Development Policy. That provision appears to distinguish "assessment of development applications" from "determination of development applications". Subclause (3), providing that the council "remains the consent authority … subject to the exercise by regional panels of functions conferred on them by this clause", is also apt to lead to confusion. That is because the term "consent authority" identifies a specified body, being either a council or a body other than a council, such as a regional panel. [7] Although a consent authority may have a range of functions and powers (the term "functions" being defined to include "powers, authorities and duties" [8] ), there cannot be two consent authorities with respect to the one development application. Accordingly, cl 13F(3) of the Major Development Policy must be understood to refer to functions of a council other than the determination of a development application to which the clause applies.
3. It follows that, in circumstances where a party seeks to challenge the validity of a development consent given by a regional panel, the regional panel, which is itself a statutory corporation, is the appropriate respondent. That is not to say that it should play an active role in any litigation: clearly it should not, in accordance with the principle enunciated in Oshlack v Richmond River Council. [9]
4. In the absence of any question of delegation, the power to determine the development application remains at all times with the regional panel. Like many statutory authorities, it may need resources to inform itself of relevant considerations. To the extent that it has a duty to make inquiries, its failure to make necessary inquiries may lead to a decision being invalid. To the extent that it relies on officers or agents to make inquiries or carry out investigations and report to it, inadequacies which underlie or are reflected in the reports (and other material) which the repository of the power takes into account may result in invalidity of the final decision. However, to the extent that a statute imposes a duty on the decision-maker to take a particular matter into account, the failure of an officer or agent of the decision-maker will not, of itself, constitute a breach of the statutory obligation.
5. Generally, as with most complex decision-making, any flaw in the process must be identified either by reference to the materials before the decision-maker or to any reasons it gives for its decision. In this case, the fact that the council, or council officers or agents, performed functions of inquiry and investigation and, indeed, assessment, would not diminish the legal responsibility vested in the regional panel. In such circumstances, it would usually be inappropriate to join the officer or agent and, if he or she is employed by a council, the council itself, to the proceedings. The exception will be where a statutory obligation is imposed on the council or its officer or agent, or one of them is required to exercise an independent decision-making function as part of the process of determination of an application. One such function reserved to the Council was to give notification of the determination of the panel. In doing that, the Council erroneously stated that it had determined the application and had included conditions which were not imposed by the regional panel. To the extent that the proceedings included an allegation that the notification was invalid, the relief sought affected directly the function exercised by the Council and it was, to that extent, a proper party to the proceedings. Otherwise, it was inappropriate to join the Council. Having been joined, it was unnecessary for the Council to play an adversarial role, there being active contestants, namely Mr Rossi and the developer.
6. Before considering the key issues raised on the appeal, it is necessary to note the limits to this Court's jurisdiction. The challenge to the development consent was brought in the class 4 jurisdiction of the Land and Environment Court, in reliance on alleged contraventions within the jurisdiction conferred by s 123 of the EP&A Act. Accordingly, the appellant had a right of appeal from an order or decision of that Court, pursuant to s 58 of the Land and Environment Court Act 1979 (NSW) (the Court Act). Although it is commonly said that the right of appeal is not restricted to questions of law, that is not always the case: the right of appeal will be restricted to the jurisdiction invoked in the Land and Environment Court, which may be by way of judicial review. Proceedings brought to restrain a breach of the EP&A Act (or of an environmental planning instrument) may, depending upon the nature of the breach, rely on grounds equivalent to those permitted by way of judicial review. Thus, to the extent that the regional panel was said not to have taken into account mandatory considerations, what was alleged was an error of law.

Issue not addressed by panel

1. The significance of the scope of the court's jurisdiction arises with respect to a critical factual question identified by Mr Rossi, namely whether it was open to the primary judge to find that "the Council had assessed the fill intended to be placed in order to locate villas 204-210 at certain levels". The true question was not whether Council officers had assessed this factual issue, but whether the regional panel had assessed the intended floor level of the relevant villas in relation to the natural ground level of the land at the boundary with Mr Rossi's land. The statutory obligation to undertake that assessment derived from two sources. First, s 79C required that the regional panel take into account the likely impacts of the development on the natural environment and the social impacts in the locality, together with the suitability of the site for the development. [10] Secondly, the regional panel was required to have regard to the design requirements set out in Pt 3 of the Seniors Policy, and in particular cll 32-34. 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. 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, and (b) … (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 (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and (f) retain, wherever reasonable, major existing trees, and (g) be designed so that no building is constructed in a riparian zone. 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, and (b) ensuring acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths.
2. As explained by Emmett JA [11] the primary basis of Mr Rossi's complaints was that the floor level of the villas at the western end of the development adjoining his land was 3.9 metres above the natural level of the land. That was a factor which was required to be assessed by the consent authority as a significant environmental impact of a built development on neighbouring rural land. The trial judge found on the evidence that it had not been assessed: there was no error in that finding.

Council's role in "assessment"

1. The Council submitted, both in resisting the appeal and by way of a notice of cross-appeal, that the analysis of the statutory scheme which identified a substantive obligation to "assess" a development application as a condition precedent to a valid determination by a regional panel was erroneous. In addition to the matters identified above, the Council submitted that the reference to "assessment" as a distinct function, in cl 13F(2)(d) of the Major Development Policy, read in context referred merely to the administrative processing of the application. The context provides support for that reading, in that paragraph (d) refers to the "receipt and assessment" of development applications, par (e) to the "determination and receipt of fees" and par (f) to the notification of determinations. On the other hand, the term "assessment" appears to envisage more than a purely clerical function. It does not follow, however, that there is some separate substantive function which would, in effect, diminish the responsibility of the regional panel for assessing the relevant criteria and factual matters in making its determination.
2. The approach adopted by the primary judge, accepting that "assessment" involves a reviewable function of the Council, [12] followed the reasoning in Amalgamated Holdings Ltd v North Sydney Council. [13] That case turned on an assumption (albeit accepted by the judge) that the Council retained a substantive function of assessing an application, which extended to consideration of any modifications which it proposed to the regional panel. Thus, the focus of the Court's attention was certain suggested height reductions and setbacks which were said not to have been assessed. The judge dismissed that challenge on the basis that the modifications suggested "were the very product of the Council's assessment of the development application." [14] So far as the assumed obligation was concerned, the conclusion reached depended in large part upon reading the use of the word "assessment" in cl 13F(d) in isolation.
3. Accepting that, as a practical matter, the council has available to it staff, expertise and experience in assessing matters relevant to planning decisions, whereas the EP&A Act makes no provision for a regional panel to have any staff, when council's officers are investigating, considering and reporting on a development application where the consent authority is a regional panel, they are no more conducting an independent statutory function than would be the case if the council itself were the consent authority.
4. As the Council noted, this conclusion is not consistent with the reasoning of Craig J in Eco-Villages Australia Pty Ltd v Pittwater Council [15] in the following passage: "[37] Relevantly, a 'consent authority' function retained by a council which is otherwise a consent authority is the 'receipt and assessment of development applications' (cl 13F(2)(d)). By retaining the right of a council to 'assess' a given development application, the terms of cl 13F indicate something more than a mere mechanical process. Judgement or opinion on the part of the council is called for in respect of a development application to which the Major Development SEPP applies short of that judgment or opinion that results in the 'determination' of that development application. [38] In the context of cl 13F, it seems to me that 'the receipt and assessment' of a development application by a council involves both the 'mechanical' processing of the application and the formation of those judgments and opinions in respect of it that are precedent to the determination of that application by a planning panel. While it is correct to observe that cl 13F(2) does not, in terms, retain for a council, as a consent authority, the power to exercise any function identified in the Regulation directed to the "assessment' of a development application, the application of those provisions of the Regulation is, so it seems to me, implicit."
5. While it is unfortunate that the EP&A Act fails to identify with clarity the respective roles of a regional panel and a council, it would increase, rather than avoid, uncertainty to find some implicit judgmental or evaluative function being conferred on the council. Absent some clearer indication of such an intention, that approach should not be adopted. Where the material relied on by the regional panel is inadequate for a proper exercise of its function in determining the application, it will remain the determination of the regional panel which is the subject matter of any legal challenge.
6. The remaining question with respect to this aspect of the proceedings is what orders should follow. As a precaution, the Council filed both a notice of cross-appeal and a summons seeking leave to cross-appeal. No orders were made against the Council in the Land and Environment Court (except as to costs), but the Council sought an additional order, namely that the proceedings against it be dismissed, with a consequential order as to costs.
7. Mr Rossi's further amended summons, filed on 28 June 2012, sought declarations that the notification by the Council of the determinations of the developer's development applications be declared void and of no effect. Those orders affected the Council. If the relief sought by the applicant in relation to the decisions of the regional panel were to be granted, the summons might otherwise be dismissed. That would have the effect sought by the Council. There would remain, however, a question as to whether Mr Rossi was entitled to a declaration that the notifications given by the Council, at least as to the first determination of the regional panel, should be declared invalid. For reasons set out below, such a declaration should be made. It follows that the relief sought by the Council cannot be granted in terms in which it is sought. Although the Council's argument with respect to the appeal should succeed in part, the appropriate course is to dismiss the Council's notice of cross-appeal and its summons seeking leave to cross-appeal. There is no reason for any separate order as to the costs of those proceedings.

Notification of development consent

1. Mr Rossi has taken a somewhat ambivalent approach to the validity of the notifications of the various consents. In his further amended points of claim filed in the Land and Environment Court on 29 June 2012, he particularised a complaint with respect to the first notification, purporting to relate to a determination of the regional panel made on 23 September 2010 and the subject of a notice to the developer from the Council dated 12 October 2010.
2. The reference at the top of the letter included the notation "JRPP -23 September 2010". However the notification stated: "Pursuant to Section 81 of the Environmental Planning and Assessment Act, 1979, notice is hereby given of the determination by The Hills Shire Council of the Development Application referred to herein. The Application has been determined by the granting of Consent subject to the conditions referred to in this Notice. The conditions of the Consent referred to herein are deemed necessary by Baulkham Hills Shire Council, pursuant to Part 4, Division 2 of the Environmental Planning and Assessment Act, 1979."
3. There was a possible argument as to ambiguity in the first sentence of the letter; the natural reading is that it was the determination which was made by the Council, rather than the notice being given by the Council. However, the ambiguity, if there was such, was resolved by the third sentence which made it clear that the Council was imposing conditions, as indeed it did, including in the notification conditions which had not been imposed by the regional panel.
4. The notice is not merely confusing, it is positively misleading. There is much to be said for the view that it was "invalid" as Mr Rossi asserted. [16] That may have consequences; however, it did not have the consequence for which Mr Rossi contended, namely that the determination by the regional panel was invalid or that the conditions it had imposed were ineffective. The trial judge was correct in so concluding. Rather, any additional conditions contained in the notice, not imposed by the regional panel, may have been ineffective, but that was not the result for which Mr Rossi contended. The most important consequence of the invalidity of a notice will arise in circumstances where specific statutory consequences flow from the time at which notification is given. For example, there is a temporal limit on challenges to the validity of a consent where public notice of the granting of the consent has been given in accordance with the regulations. [17] That issue was not raised in these proceedings.
5. Similar problems arose with respect to the formula adopted by the Council in giving notice of the decision of 26 June 2012 with respect to the variation of the development application. Mr Rossi's primary complaint with respect to that determination was that he had not received a notice of the determination as required by the regulations. The primary judge rejected that challenge. [18]
6. In this Court, Mr Rossi contended that the notifications should be declared invalid on the basis that the determination itself was invalid.
7. The submissions in this Court focused, understandably, on the basis upon which the primary judge had rejected a submission that the first notification of the regional panel's determination should be declared invalid. The structure of that reasoning was as follows: first, the judge concluded that there was "a material failure in the exercise of statutory power by the Council in its assessment and [by] the [regional panel] in its determination of the stage 2 consent". [19] (She did not at that point determine whether to make a declaration of invalidity.) Secondly, the judge noted submissions that the form of the notice did not comply with cl 100 of the Regulation or s 81(1) of the EP&A Act. [20] Those submissions were rejected for two broad reasons. First, it was said that the notice complied with cl 100 of the Regulation, because it stated (correctly) that the application had been granted and contained (correctly) the terms of the conditions on which it had been granted. [21] The fact that it contained a further set of conditions was treated as immaterial because the additional conditions "have no lawful effect", as conceded by the Council. [22] With respect to the incorrect identification of the consent authority, the judgment stated: "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."
8. The notice the subject of dispute was the notice given to the developer. Whether it was assumed that a notice in similar terms would have been given to Mr Rossi is unclear. Further, there may be distinctions between the notice given to a neighbour and a public notice. Nevertheless, the reasoning of the primary judge as to the requirements of a valid notice does not sit easily with the approach adopted by this Court in Hoxton Park Residents Action Group Inc v Liverpool City Council. [23] The inclusion of unenforceable conditions can hardly be immaterial. The recipient of the notice may be happy with the determination because his or her concerns are alleviated by the imposition of the (unenforceable) conditions. Similarly, to treat as immaterial the misstatement as to the identity of the consent authority is to read the requirements of the regulation without consideration of their purpose. What is to be given, for the purposes of s 81(1), is a notice of "the determination of a development application": a notice of a purported determination by a body which had no power to determine the application is not such a notice.
9. The third stage in the judge's reasoning was to consider the validity of the notification given on 6 June 2012. That notice did not include the invalid conditions, but did contain the misleading statements as to the identity of the consent authority. The primary judge dismissed the challenge to the second notice as irrelevant "as it can have no legal effect", given her earlier conclusion that the first notice was valid.
10. A further notice omitted the additional conditions and correctly identified the consent authority. It was not, therefore, invalid on those grounds. It was, however, dated "12 October 2010", although the covering letter from the solicitor for the Council was dated 6 June 2012 and it was common ground that the "reissued" notice was provided on that date. There is no reason to suppose that the notice could have retrospective effect. That would raise an issue as to when the consent became "effective" for the purposes of s 83 of the EP&A Act. Further, cl 102(1) of the Regulation requires that a notice under s 81(1) of the EP&A Act be sent within 14 days after the date of the determination. While the clause also provides that a failure to send the notice within 14 days "does not affect the validity of the notice or the development consent", there may well be a question as to whether a notice sent some 21 months after the date of the determination would constitute a notice for the purposes of s 81(1).
11. There may also be an issue as to whether a determination, of which no valid notice has been given for a significant period, will itself remain indefinitely a valid determination. However that issue did not arise in the present proceedings. Nor, in the way the case was conducted, was there any reason to conclude that the determination of the regional panel was invalid because the notification of the determination was invalid or ineffective. On the other hand, if the determination itself were invalid for other reasons, the validity of a notice might become critical because it would condition the availability of proceedings to review the determination. Even if no point were taken in that regard, the validity of the notice which misidentified the consent authority might be important if the wrong consent authority (the Council) were joined in part as a result of its own incorrect notice.
12. In my view, Mr Rossi was entitled to have a declaration of invalidity of the notice of 12 October 2010. On the basis of the submissions in this Court, it is not possible to determine that the notice of 6 June 2012 was invalid.

Appropriate relief

1. The conclusion that the regional panel failed properly to determine the stage 2 development application engaged the obligation of the Land and Environment Court under s 25E of the Court Act to consider whether to make an order under Pt 3 Div 3 of that Act, "instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part." Division 3 applies to any development consent granted, or purporting to be granted, under the EP&A Act by the Minister "or any other consent authority". [24] It is not in doubt that this provision extends to a determination of a regional panel.
2. The orders which the Land and Environment Court may make and which, pursuant to s 75A of the Supreme Court Act 1970 (NSW), this Court may make on appeal are as follows: 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.
3. Section 25B requires that the Court exercise a discretionary power which will involve suspending the operation of the consent and specifying conditions compliance with which will validate the consent. These steps cannot be wholly separated, as the nature of the terms which may be imposed will affect a decision as to whether to exercise the power.
4. On its face, the language of s 25B appears to be internally inconsistent. An order suspending the operation of a consent is not self-evidently appropriate if the consent is invalid. To understand the logic of the provision it is necessary to consider the legislative background.
5. The conferral of power to restrain breaches of the Act and provide other remedies, pursuant to s 123 of the EP&A Act, was accompanied by s 124 which reads as follows: 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. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.
6. In its original form the section did not contain subs (5), which was added with the introduction of s 25B in Div 3 of Pt 3 of the Court Act, in 1997. Prior to those amendments, s 124(1) had been construed as conferring a broad discretionary power which might, in appropriate circumstances, involve the Court declining to grant any relief, despite being satisfied that a breach had been or would be committed. In Warringah Shire Council v Sedevcic [25] Kirby P had identified a number of guidelines for the exercise of the discretion. The other members of the Court (Mahoney JA and Clarke JA) did not expressly join in that statement of "guidelines", but they have been referred to in numerous subsequent cases, including ACR Trading Pty Ltd v Fat-Sel Pty Ltd [26] by Kirby P, [27] in a judgment with which Samuels JA and Hunt AJA agreed. By contrast, s 124(2) is expansive in the powers it confers on the Court in circumstances where intervention is thought appropriate.
7. As explained by McHugh JA in F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3], [28] in language consistent with the approach adopted in Project Blue Sky Inc v Australian Broadcasting Authority: [29] "The [EP&A Act] shows in my opinion a clear intention that a breach of the Act only has the consequences which the Act provides. Questions as to whether a breach of the Act is void or voidable are beside the point. This is because the Act prescribes exhaustively the civil remedies available in respect of a breach of the Act and also because proceedings for breach can only be brought in the Land and Environment Court. [30] Professor SA De Smith has pointed out in Judicial Review of Administrative Action, [31] that 'void acts and decisions are indeed usually destitute of legal effect; they can be ignored with impunity; their validity can be attacked, if necessary, in collateral (or indirect) proceedings; they confer no legal rights on anybody'. But the provisions of the [EP&A Act] and the [Court Act] to which I have just referred make it plain that a decision made in breach of the Act cannot be attacked in other courts or in collateral proceedings. So far as other courts are concerned the decision is unchallengable and must be acted on. This is the antithesis of a void decision. The only civil remedies for breaches of the Act are those conferred by the Act." [emphasis in original]
8. It follows from this analysis that even a determination which has failed to take into account a mandatory consideration is not void or invalid until declared to be so by the court. Nevertheless, as Biscoe J said in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3), it has been noted on more than one occasion that "there is a distinction between a discrete technical breach, on the one hand, and a breach of a mandatory consideration requirement in s 79C of the [EP&A Act] requiring reconsideration of the whole development application, on the other." [32]
9. The breach in the present case did not, in a practical sense, affect the whole of the determination of the regional panel. Rather, it directly affected seven villas constructed near the boundary with Mr Rossi's land. Further, the adverse impacts on Mr Rossi's land were not uniform, even across that part of the boundary. Thus, even if the seven villas were to be removed, the effect on the whole development, constituting some 97 villas and accompanying infrastructure, would be quite limited.
10. At least by the time the matter reached this Court, Mr Rossi was not seeking an order for demolition, with the consequential issues that would have raised. Nor was he seeking an order restraining use of the villas, understandably because such a restraint would have had little impact on his land and would hardly have been consistent with allowing the buildings to stand. In those circumstances, it became apparent that more limited relief would be appropriate.
11. At a time when demolition was sought, Pain J concluded that such relief would be inappropriate, but considered that "ameliorative orders should be made". [33] The matter proceeded on that basis. Proposals were then presented to the Court with respect to landscaping and planting of established trees, so as to provide privacy to the Rossi dwelling from the inadequately considered heights above the natural ground level of the offending villas. [34] Final orders, other than with respect to costs, were made on 18 November 2013. [35] By that stage the Council was no longer participating in the proceedings and the Court heard lengthy submissions with respect to appropriate landscaping, but without detailed evidence. A significant issue between Mr Rossi and the developer was that Mr Rossi considered that aspects of the landscaping work should be done on his land, but that the developer should pay for the work. He did not want the developer to come onto his land. The developer proposed to undertake the landscaping (at its own expense) entirely on its land. [36] Mr Rossi's concern was that the offending villas came to within three metres of his land and that there was inadequate space for establishing mature trees; further, mature trees which might have formed an appropriate screen and which had stood partly on his land had been removed by the developer without consent.
12. On 25 November 2013 the judge made the following orders: "1. A declaration that the retaining wall consent No 10/2012/HA/A is invalid and of no effect. 2. The First Respondent shall remove the key stone concrete block wall on the common boundary including all gravel footings and backfill placed on the Rossi Land by Living Choice, and: 2.1 Remediate the Applicant's land by the following method: ● Cultivate the disturbed soil to 300mm in depth; ● Infill resultant depressions with garden soil equivalent to Australian Native Landscapes Organic Garden Mix; ● Grass seed with pasture seed mix equivalent to Native Seeds All-Year Green Blend. 2.2 Landscape the First Respondent's land along the common boundary with the Applicant's land in accordance with Annexure A being the landscape plans by Narelle Sonter, Botanica numbered LP 02/D dated 25 November 2013 and LE 02/A dated 1 November 2013; the Work Method Statement (revised) dated 25 November 2013 and the Program of Works dated 1 November 2013. 75mm depth of composted organic mulch shall be spread within 3m of the boundary. 2.3 The landscaping shall be irrigated by an automatic irrigation system installed by a licenced contractor and maintained for the life of the current development on the First Respondent's land. 3. In the carrying out the ameliorative order the First Respondent shall comply with the following conditions: Prior to the commencement of Work 3.1 Serve on the Applicant appropriate workers compensation and public liability insurance documents (naming the Applicant and identifying the Applicant' land) for the carrying out of the works by the First Respondent on the Applicant's land. 3.2 Erect a temporary safety fence upon the Applicant's land a maximum of 5 metres from the common boundary. 3.3 Serve on the Applicant a scope of works identifying when access will be required to the area of the Applicant's land inside the temporary safety fence and a timetable detailing when the works are to be undertaken on the Applicant's land. Prior to completion of the work 3.4 Remove the safety fence within 7 days of the completion of the erection of the boundary fence."
13. Mr Rossi has adopted inconsistent positions over time as to the nature of the relief he seeks. That is not to be critical: from the commencement of the proceedings in 2012, before the development was completed, physical changes have occurred on the land. Nor is that intended to be critical of the developer: no interlocutory relief was sought to prevent the development continuing. However, events subsequent to the principal judgment (delivered on 12 April 2013) [37] are a matter for criticism. By that stage the judge had indicated that she would not order the villas to be demolished. It was clear, therefore, that some form of ameliorative relief would be required. The developer proposed a landscaping plan, ultimately adopted by the judge. In this Court that relief was attacked on the basis that the landscaping plan had never been tendered in evidence. Mr Rossi sought compensation but did not quantify an appropriate figure, nor proffer evidence on the basis of which a figure might be calculated. He also sought "restoration" for the damage done on his land. [38]
14. There is merit in the proposition that the developer's proposal, confined to its own land, although a course understandable from a legal perspective, was not adequate. What was required, however, was a clear and precise proposal from Mr Rossi as to the terms of the order he sought. None was forthcoming. The orders sought in the appeal were as follows: (a) a declaration that development consents DA 280/2010/JP and DA 110/2012/HA are invalid; (b) an order that the developer pay compensation to Mr Rossi for the purpose of mature landscaping on his boundary in an amount to be determined by the primary judge following further determination according to law; (c) in the alternative to (b) above, an order that the developer carry out landscaping on Mr Rossi's land sufficient to restore his land and privacy to the state prior to the unlawful development being carried out; (d) in the alternative to orders (b) and (c) above, an order that the matter be remitted to the primary judge for further determination according to law.
15. The trial of this matter took 11 days over a period of five months in the second half of 2012; although the principal judgment was delivered on 12 April 2013, final orders were not made until the end of that year, namely 25 November 2013 (although for some reason the orders were not entered until 2 March 2015, shortly before the hearing in this Court). There have already been six judgments in the Land and Environment Court.
16. This Court has jurisdiction under s 75A of the Supreme Court Act to exercise the powers and functions of the Land and Environment Court. [39] It is required not to "order a new trial" unless satisfied that some substantial wrong or miscarriage has been occasioned. [40] (A new trial may be ordered on a limited basis. [41] ) The Court is also required under s 56 of the Civil Procedure Act 2005 (NSW), in exercising any power given to it by that Act or by the UCPR, to take such steps as will facilitate the just, quick and cheap resolution of the real issues in the proceedings. That principle should apply to the disposal of proceedings in accordance with s 75A of the Supreme Court Act.
17. The governing principle at this stage must be to ensure that the proceedings are terminated as speedily and with as little further expenditure as is practically possible. Remitting any aspect of the matter to the Land and Environment Court, if it can be properly disposed of in this Court is unattractive. Even the costs of the appeal taken in isolation (the appeal took three days hearing) must be of the same order as the value of the ultimate relief. On the other hand, it may be said that this Court is not well placed to evaluate competing submissions (assuming disputation continues) as to the merits of particular proposals for landscaping and planting. Nevertheless, the alternative course is even less attractive.
18. In these circumstances, the orders made by the primary judge should stand subject to any variation to orders 2.1-2.3 and 3.2-3.4 to give effect to the planting of mature screen trees on Mr Rossi's land.
19. The parties should have an opportunity to reach agreement as to the proposed plantings, the timetable within which they are to occur and the steps to be taken in undertaking the work. For unavoidable reasons, the time table can accommodate only a tight period for that consultation. To the extent that agreement is not reached, each party will have 21 days from the date of this judgment in which to file and serve copies of each proposed plan. The plans may be accompanied by written explanations, not exceeding three pages. Each party may have a further seven days to respond to the plan and explanation submitted by the other, such response not exceeding two pages.

Costs

1. The primary judge made costs orders on 20 August 2014, which were entered on 24 March 2015. They sought to identify those issues upon which each party had been partly or wholly successful. (The orders as entered included a correction to two paragraphs of the reasons for judgment, purportedly pursuant to UCPR, r 36.17: that rule is for correcting clerical mistakes in the orders and not in the reasons.)
2. Mr Rossi challenged the costs order on the basis that the judge erred in seeking to order costs with respect to separate issues when there were no "clearly definable and several issues" in the trial. On that basis, Mr Rossi claimed he should have the whole of his costs of the trial. He also complained of a failure to award interest on costs. He asserted, correctly, that the primary judge had failed to address the express claim for interest.
3. The developer also challenged the costs order in its cross-appeal, but the challenge appears to have been contingent upon a substantive order requiring that Mr Rossi's proceedings be dismissed with respect to the "stage 2 consent judicial review challenge". The Council also sought to challenge the costs orders made by the primary judge, apparently independently of any other challenge raised by its cross-appeal.
4. The real concern about the costs orders (raised by no party) was that the execution would require a complex assessment by each party of costs incurred with respect to particular issues which would not only be time consuming in itself, but would be conducive to further disputation.
5. It is undoubtedly true that no party was entirely successful in the Court below, regardless of the changes to the outcome resulting from the appeal. In that circumstance it was entirely appropriate for the trial judge to decline to award costs in favour of any party without qualification. Mr Rossi's submission to the contrary must be rejected.
6. The fact that liability for costs may by now have become a dominating interest for all parties should not obscure the fact that a broad brush approach, which may produce somewhat arbitrary results, is preferable in the interests of avoiding, or at least reducing, the likelihood of further significant costs being incurred. Nor should it be assumed that an attempt at greater precision would achieve more than a façade of greater fairness.
7. Having regard to the reasons for the costs orders given by the primary judge in Rossi v Living Choice Australia Ltd (No 6), [42] extending over 100 paragraphs, the substance of the complaints made in the written submissions in this Court and the terms of the orders themselves, an appropriate result may be an order in favour of Mr Rossi that he be paid 65% of his costs of the trial. However, the parties should have leave to make further submissions in this respect.
8. The question which then arises is as to the proper allocation of those costs between the three respondents: the developer, and the Council and the regional panel.
9. The regional panel submitted: how it came to be a party to the costs orders (1) and (5) is obscure, although it has not sought to challenge them. The only way in which this Court can deal with that circumstance is to leave orders (1) and (5) as they presently stand with respect to the liability of the regional panel.
10. With respect to the liabilities of the developer and the Council, different considerations arise. First, so far as the developer is concerned, its challenge with respect to the costs relating to the stage 2 consent depended on success on the cross-appeal, which has not been upheld. Its second challenge concerned a notice of motion to reopen the evidence: it had been ordered to pay 50% of Mr Rossi's costs of the motion, which the developer said depended upon a misunderstanding as to the circumstances in which the motion had been abandoned. That factor has been taken into account in the overall adjustment proposed above. The developer did not, as it explained in its submissions with respect to its application for leave to cross-appeal, have a "freestanding claim that the costs order should be disturbed." [43]
11. The position of the Council is somewhat different. For the reasons set out above, the proposition that it was under no freestanding obligation with respect to assessment of the development application should be accepted. On the other hand, it was properly joined to the proceedings to the extent that relief was sought with respect to its notification of determinations of the development applications. In my view the complaints with respect to the validity of the primary notification should have been upheld. On any view, there was an element of confusion as to whether the Council had played a substantive and challengeable role in the assessment of the development applications. In accordance with prior authority in the Land and Environment Court, it had such an obligation. Further, its involvement in the trial did not accord with the principle articulated in Oshlack. These propositions were, to a large extent, accepted by the primary judge. [44]
12. Before the primary judge, the Council and the developer made submissions that the other should be liable in the event that costs were ordered to be paid by the respondents. [45] In the event, the primary judge declined to apportion costs between the Council and the developer. [46]
13. Apportionment may have been appropriate. The significance of the Council playing an active role, in apparent disregard of principles identified by the High Court in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [47] and in Oshlack, was not addressed. It is not appropriate to revisit these principles, which are of some public importance, in a case in which no party sought to address them. Furthermore, there are separate questions as to the propriety of the Council taking an active role in litigation, the appropriateness of visiting costs of proceedings on a Council which does take an active role and the appropriateness of a costs order against a decision-maker which has filed a submitting appearance. It is sufficient to say that, in the circumstances of this case, Mr Rossi was faced with a respondent Council, which played an active role extending far beyond defence against the relief sought in respect of its specific functions, namely the notification of determinations. Nevertheless, it quite properly sought to remove itself from an active role when the question of final relief was being addressed.
14. As noted above, the developer did not make any freestanding challenge to the costs orders made by the primary judge: although the Council did raise an issue as to apportionment in its notice of cross-appeal, the ground was not pressed. [48] Accordingly, it is sufficient that the costs orders against the respondents treat the Council and the developer as jointly and severally liable to the extent that they are liable for the costs to be paid to Mr Rossi. To the extent that it is also held liable, the regional panel will be jointly and severally liable as indicated in the orders to which reference was made above.
15. Nevertheless, the proposition that a submitting decision-maker should be liable for the costs of proceedings should not be accepted without further consideration. As a matter of principle, a submitting respondent should only be liable for the costs of a successful applicant incurred prior to the submitting appearance. [49] The reason is that, thereafter, the costs of the litigation cannot be the responsibility of that party, which did not cause them to be incurred. A possible qualification to that principle may arise where the litigation is brought to have the decision of a court, tribunal or other statutory authority set aside and the decision-maker is the only respondent. Despite the lack of opposition, the court may require the applicant to satisfy it that relief is appropriate, a course which may involve some increase in the cost to the applicant. There is no great qualification of the general rule if the respondent (who will usually be a government authority) is required to bear the additional costs in such circumstances, despite entering a submitting appearance.
16. This was not such a case: the application brought by Mr Rossi was vigorously opposed by two active respondents. This case should not be treated as authority for the proposition that it is appropriate in such circumstances to award costs against the submitting decision-maker (beyond any costs which may have been incurred prior to the filing of the submitting appearance). The view that such an order might be appropriate appears to have resulted from the judgment of Biscoe J in Cutcliffe v Lithgow City Council. [50] The trial judge in Rossi (No 6) at [98] sought to rely upon a principle set out in Cutcliffe in the following terms: "(c) where the beneficiary [of the decision] does defend the proceedings, albeit unsuccessfully, the applicant's costs will ordinarily be awarded against both the beneficiary and the consent authority, whether or not the latter enters a submitting appearance. The award of costs against the consent authority is because its error is the cause of the litigation. It cannot immunise itself from costs by entering a submitting appearance for the reason given in (b) above."
17. The circumstance engaging par (b) in Cutcliffe was that the beneficiary of the decision does not defend the proceedings; it was then said that the reason why the consent authority could not "immunise itself from costs consequences of its own error by entering a submitting appearance [was] because then a successful applicant cannot be properly compensated in costs." But that cannot be true in the case of proceedings which are actively defended by another party. The mere fact that the decision-maker is ultimately found to have erred in its approach is not, of itself, a sufficient reason to order costs against it, being costs incurred after the entry of a submitting appearance. So far as the guidelines in Cutcliffe suggest otherwise, they should not be applied.

Costs of appeal

1. With respect to the appeal, the time taken in this Court was largely a function of the complexity of the material presented at trial and, in part, the separate stages of the proceedings at trial. The substantial relief sought on appeal was within a relatively narrow compass. The appellant has had some success in his appeal: the developer's cross-appeal has been unsuccessful. The Council has been both successful and unsuccessful with respect to different issues.
2. Bearing in mind the principles stated above with respect to the desirability of making definitive orders which have the least opportunity for further disputation, it is preferable that a costs order deal with the costs in this Court globally, without regard to the fact that there was an appeal, two cross-appeals, two summonses seeking leave to cross-appeal and a notice of contention.
3. Because the orders sought by Mr Rossi were, ultimately, in a form which fell within a relatively limited compass and contained a number of choices, one of which has been adopted, with modifications, it may be said that he was successful on the appeal. On the other hand, the grounds of appeal expanded somewhat more widely and encompassed a number of issues, including factual challenges with respect to the conduct of the Council, which have not been upheld.
4. My tentative view is that the Council and the developer should pay 80% of the appellant's costs in this Court. As they did not seek apportionment between them as to the costs of the trial, it may be assumed that they will not seek apportionment of the costs of the appeal. Nevertheless, the outcome not being entirely predictable, it is appropriate to grant each of the active parties an opportunity to seek a different costs order if he or it wishes. Submissions in that regard should be made within the timetable provided with respect to the plans for amelioration. Submissions on costs should be limited to three pages.

Orders

1. In accordance with these reasons, I would propose the following orders: (A) With respect to Mr Rossi's appeal: (1) Direct that the parties consult with a view to reaching a common position as to appropriate variations to orders 2.1-2.3 and 3.2-3.4 made on 25 November 2013 to allow for the landscaping and planting of mature trees both on land owned by the first respondent and on land owned by the appellant to provide a necessary screen, and, if agreement is reached, to file and serve short minutes giving effect to such agreement within 14 days of these directions. (2) In default of such agreement, the appellant and the first respondent are directed to file and serve, (a) within 21 days of the date of these directions, their proposed forms of orders as varied together with submissions (not to exceed three pages) in support thereof; (b) each party to have leave to file submissions in reply within 7 days thereafter, not exceeding two pages, with the Court to determine the matter on the papers. (3) Set aside the costs orders made in the Land and Environment Court on 20 August 2014 and entered on 24 March 2015, except with respect to so much of orders (1) and (5) as require payments by the Joint Regional Planning Panel - Sydney West Region. (4) Declare the first purported notification of the determination of development application 280/2010/JP dated 12 October 2010 is invalid. (5) Give leave to the appellant and the first and second respondents to file and serve submissions (not exceeding three pages) as to the appropriate orders as to the costs of the proceedings at trial and on appeal, together with submissions in reply (not exceeding two pages) in accordance with the timetable set out in (2) above. (B) With respect to the applications by The Hills Shire Council: (1) dismiss the cross-appeal and the application for leave to cross-appeal; (2) note that the costs of those two proceedings are to be costs of the parties in the appeal by Anthony Rossi. (C) With respect to the applications by Living Choice Australia Pty Ltd: (1) dismiss the cross-appeal and the application for leave to cross-appeal; (2) note that the costs of those two proceedings are to be costs of the parties in the appeal by Anthony Rossi.
2. WARD JA: I have had the benefit of considering in advance Emmett JA's comprehensive reasons, with which I agree. For the reasons his Honour gives the appeal should be allowed in part. I also agree with the reasons of Basten JA and with the orders his Honour proposes (though I express no view at this stage as to the manner in which costs should be apportioned - which issue will be determined following consideration of written submissions from the parties).
3. EMMETT JA: The principal questions in this appeal concern the appropriate relief to be ordered when development consent granted under the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act) is found to be invalid and when development is carried out without the required development consent. The proceedings relate to a development carried out by the first respondent, Living Choice Australia Ltd (Living Choice), on land owned by it situated at Glenhaven, New South Wales (the Living Choice Land). The development in question (the Development) consisted of the construction of 97 self-care villa units on the Living Choice Land after the demolition of existing buildings.
4. The appellant, Mr Anthony Rossi, commenced proceedings in the Land and Environment Court of New South Wales (the L & E Court) against Living Choice, The Hills Shire Council (the Council), which is the second respondent to the appeal, and Sydney West Joint Regional Planning Panel (the Panel), which is the third respondent. Mr Rossi sought declarations that two consents granted in respect of the Development were void and of no effect. The first consent (the Stage 2 Consent) was granted on 23 September 2010 by the Panel, and related to the whole of the Development. The second consent (the Retaining Walls Consent) was granted on 26 June 2012 by the Council, and related to the construction of retaining walls close to one of the boundaries of the Living Choice Land. Mr Rossi also claimed orders for the demolition of certain of the villa units erected on the Living Choice Land and remedial orders in respect of work that he alleged Living Choice had carried out without necessary development consent. The Panel filed a submitting appearance. However, the proceedings were firmly contested by both Living Choice and the Council.
5. On 25 November 2013, for reasons published on 12 April 2013, 16 August 2013 and 18 November 2013, Pain J of the L & E Court (the primary judge) made a declaration of invalidity in relation to the Retaining Walls Consent and made remedial orders as a consequence of that declaration. However, her Honour declined to make an order of invalidity in respect of the Stage 2 Consent. On 20 August 2014, her Honour made orders for costs of the proceedings for reasons published on 6 August 2014.
6. Mr Rossi has now appealed to this Court from the orders made by the primary judge. The Council has also filed a cross-appeal from certain of the orders of the primary judge. In addition, Living Choice has filed a notice of contention supporting the orders made by the primary judge and has also sought leave to file a cross-appeal raising the same questions as those raised in the notice of contention and appealing from certain of the orders for costs made by her Honour. The Panel has filed a submitting appearance in all three appeals.

Legislative Framework

1. Before dealing with the issues raised by the appeal and cross-appeals, it is desirable to say something about the legislative framework within which the issues arise. That will require a consideration of the Planning Act and the Environmental Planning and Assessment Regulation 2000 (NSW) (the Planning Regulation), as well as the provisions of two environmental planning instruments, being the State Environmental Planning Policy (Major Development) 2005 (NSW) (the Major Development Policy) and the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (NSW) (the Seniors Policy). It is also desirable to mention some relevant provisions of the Land and Environment Court Act 1979 (NSW) (the L & E Court Act).

Development Consents

1. The starting point is s 76A of the Planning Act. Section 76A(1) relevantly provides that, if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless such consent has been obtained and is in force and the development is carried out in accordance with the consent and the instrument. It is common ground that the Development required development consent.
2. Under s 76A(2), development consent may be obtained, relevantly, by a consent authority making a determination to grant development consent. Under s 78A, a person may, subject to the Planning Regulation, apply to a consent authority for consent to carry out development. Consent authority, in relation to a development application, means, relevantly, the council having the function to determine the application or, if a provision of the Planning Act, the Planning Regulation or an environmental planning instrument specifies a joint regional planning panel as having the function of determining the application, that panel. [51] Under s 4, each of the Major Development Policy and the Seniors Policy is an environmental planning instrument, since each was made, or taken to have been made, under Pt 3 of the Planning Act and is in force).
3. Division 11 of Pt 6 of the Planning Regulation deals with the time within which development application procedures are to be completed. Under cl 113, which is within Div 11, a development application is taken to be refused if a consent authority has not determined the application within a period of (relevantly) 40 days or 60 days, depending upon the nature of the development. Under s 82(1) of the Planning Act, a consent authority that has not determined a development application within the period prescribed by the Planning Regulation is taken to have determined the application by refusing consent on the date on which the period expires. That period is defined for the purposes of Div 11 as the "assessment period". [52] The provisions of Div 11 of the Planning Regulation exclude some days in calculating the assessment period. [53] The significance of the provisions in the present context is that the Planning Regulation contemplates a time during which a process of "assessment" is to take place and, once that time has expired, a development application is taken to be refused, for the purpose of triggering the time for an appeal by an applicant.
4. Under s 79C of the Planning Act, which deals with "Evaluation", a consent authority, in determining a development application, is to take into account such of a number of specified matters as are of relevance to the development the subject of the application. The matters include the following: 1. the provisions of any environmental planning instrument that applies to the land to which the application relates; 2. the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality; 3. the suitability of the site for the development; 4. any submissions made in accordance with the Planning Act; and 5. the public interest.
5. Under s 80(1) of the Planning Act, a consent authority is to determine a development application by granting consent to the application, either unconditionally or subject to conditions, or by refusing consent to the application. Under s 81, the consent authority must, in accordance with the Planning Regulation, notify its determination of a development application to the applicant and to such other persons as are required by the Planning Regulation to be notified of the determination. If the consent authority is not the relevant council, the consent authority must notify that council of its determination. Section 83 provides that, if a determination is made by the granting of consent, the consent becomes effective and operates from, relevantly, the date that is endorsed on the notice of the determination given to the applicant in accordance with s 81.
6. Division 10 of Pt 6 of the Planning Regulation deals with post-determination notifications. Clause 100 relevantly provides that a notice of determination of a development application under s 81 of the Planning Act must contain information as to whether the application has been granted or refused, the terms of any conditions on which it has been granted, the date on which the determination was made and the date from which any development consent that is granted operates. Under cl 102, a notice under s 81 of the Planning Act must be sent to each person to whom it is required by that section to be sent within 14 days after the date of the determination of the development application. However, failure to send the notice within the 14-day period does not affect the validity of the notice or the development consent to which it relates.
7. Clause 264 of the Planning Regulation provides that a council must maintain a register containing details of specified matters for each development application that is either made to it as the consent authority or furnished to it in cases where it is not the consent authority. The register must also contain details of specified matters for each development consent, including the name of the person to whom the consent was granted, particulars of the land to which the consent relates, the date when the consent was granted, any conditions to which the consent is subject, the date when the consent becomes effective, the date when any notice was published under s 101 of the Planning Act (which deals with the effect of the giving of public notice of the granting of a consent on the validity of that consent) and the date of issue of any related construction certificates. The register must also contain details of whether development consent has been revoked, modified or surrendered.
8. Section 96 of the Planning Act relevantly provides that a consent authority may, on application being made by the applicant, modify the consent in certain circumstances. Clause 115 of the Planning Regulation specifies information that must be contained in an application for modification. Clause 122 requires notice to be given to an applicant for modification of a development consent as soon as practicable after the determination is made.

Regional Panels

1. Under s 23G(1) of the Planning Act, the Minister may constitute a joint regional planning panel (regional panel) for a particular part of the State. A regional panel has, relevantly, any of the relevant council's functions as a consent authority that are conferred on it under an environmental planning instrument (s 23G(2)(a)). A regional panel also has the functions conferred or imposed on it by or under the Planning Act or any other Act (s 23G(3)).
2. Under s 23G(5A), a regional panel is, in the exercise of functions conferred under s 23G(2)(a), taken to be the council whose functions are conferred on the regional panel as referred to in s 23G(2)(a). Under s 23G(5B), a regional panel is to exercise functions conferred as referred to in s 23G(2)(a) to the exclusion of the relevant council. However, under cl 123D of the Planning Regulation, a regional panel is not taken to be the council for the purposes of s 78A(3)-(6), s 81(2), s 82A and s 89(2), which deal with circumstances where a distinction is expressly made between a council and a consent authority.
3. Division 12A of Pt 6 of the Planning Regulation contains additional provisions where a regional panel exercises consent authority functions. Division 12A applies to a development for which a regional panel has the function of determining the development application or an application to modify development consent. Clause 123E(1) provides that a regional panel may, for the purpose of determining a development application, obtain assessment reports, in addition to any assessment report or other information provided by a relevant council in dealing with the application and may also obtain other technical advice or assistance as the panel thinks fit.

The Major Development Policy

1. Part 3 of the Major Development Policy as in force at the relevant time, [54] which dealt with regional development, and consisted of cll 13 to 13G, applied, relevantly for present purposes, to a development that has a capital investment value of more than $10 million (cl 13B(1)(a)). It is common ground that the value of the Development satisfied that provision. [55] Under cl 13F(1), a regional panel for a part of the State may exercise certain consent authority functions of the council or councils for that part of the State, including the determination of development applications.
2. However, under cl 13F(2), certain functions of the relevant council as a consent authority were not conferred on a regional panel. The functions that were not conferred include, relevantly for present purposes, the following:

• receipt and assessment of development applications (cl 13F(2)(d));
• determination and receipt of fees for development applications (cl 13F(2)(e));
• notification of the determination of development applications (cl 13F(2)(f));
• determination of applications for modification of consents on the grounds of a minor error, misdescription or miscalculation under s 96(1) of the Planning Act (cl 13F(2)(h)). Under cl 13F(3), the relevant council remained the consent authority for a development to which Pt 3 applied, subject to the exercise by regional panels of functions conferred on them by cl 13F.

1. As the structure of the legislation and regulations summarised above demonstrates, there will not be a proper exercise of the function of determining a development application until there has been an assessment of the development application. The function of carrying out that assessment, at least in the first instance, remains with the relevant council, although the regional panel might obtain further assessment reports or advice under cl 123E of the Planning Regulation.
2. The word "functions" is defined in s 4 of the Planning Act as including powers, authorities and duties. The term "assessment" is not defined in either the Planning Act or the Major Development Policy. While "Development Assessment" is the heading of Pt 4 of the Planning Act, which deals with the need for and process of obtaining development consent, the concept of "assessment" is not expressly mentioned as being a part of the process for the determination of a development application, except for the reference to "assessment report prepared by the consent authority" in the context of the exercise of the power of concurrence in s 79B(5)(b) and a reference to the "assessment" of a development application in s 79C(3A)(c). [56]
3. Under s 79B(1) of the Planning Act, if a consent authority is required to consult with and obtain the concurrence of a person, the consent authority must consult with or obtain that concurrence, unless the consent authority determines to refuse to grant the development consent. For example, s 79B(3) provides that certain development consent cannot be granted without the concurrence of the Director-General of the Department of Environment, Climate Change and Water. Under s 79B(5)(b), in deciding whether or not concurrence should be granted, the Director-General must take into consideration, inter alia, any "assessment report" prepared by the consent authority. Division 2 of Pt 6 of the Planning Regulation deals with development applications for developments that require the concurrence of a concurrence authority. A concurrence authority, as defined in cl 3, is a person whose concurrence is required by the consent authority before determining a development application.
4. It is reasonable to assume that the process of determining a development application necessarily involves the assessment of the application, although there is no express provision in the statutory scheme that imposes an obligation on a consent authority to conduct an "assessment" of a development application. However, it appears to be implicit in the statutory scheme that the process of determining a development application necessarily requires the "assessment" of the development application before it is determined. Clearly, the Planning Act (and its related environmental instruments) implements a policy of "assessment" of development applications. An interpretation of the undefined word "assessment" that diminishes the importance of that policy would not justify the assessment provisions of the Act or an instrument made under it, let alone the name of the Act. [57]
5. In ordinary English usage, the assessment of a development application might be understood as signifying the evaluation of the application and forming a judgment as to whether it satisfies necessary prerequisites for consent, including the identification of deficiencies in satisfying relevant statutory prerequisites. In the ordinary course, where a council is the consent authority, a development application would be considered by various officers of that council, who would prepare memoranda for consideration by one of them or by another officer, who had primary responsibility for the assessment. No doubt there would often be communications between officers before a report might be prepared for submission to the relevant council for determination of the application by granting or refusing consent. Where an officer involved in that process perceived deficiencies in the proposed development, there would be occasion for communication with the applicant with a view to obtaining further information or suggesting alterations to ensure compliance with statutory prerequisites. That would be part of the process of assessment.
6. Clearly enough, the Major Development Policy contemplates that the process of assessment just described would be conducted by the relevant council. The probable rationale for reserving the function of assessment to the relevant council, where a regional panel is the consent authority, is that a regional panel would not be expected to have the resources to conduct such an assessment whereas the relevant council would be expected to have the necessary resources and expertise.

The Seniors Policy

1. Under cl 4 of the Seniors Policy, the Seniors Policy applies to land within New South Wales that is zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if, relevantly, development for dwelling-houses is permitted on the land. It is common ground that the Seniors Policy applies to the Living Choice Land.
2. Chapter 3 of the Seniors Policy, which consists of, relevantly, cll 14 to 39, deals with "development for seniors housing". The object of Ch 3 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 to other people with a disability regardless of their age. [58] Chapter 3 allows the development on land that adjoins land zoned primarily for urban purposes for the purpose of any of certain forms of seniors housing despite the provisions of any other environmental planning instrument, provided that the development is carried out in accordance with the Seniors Policy. [59]
3. Under cl 26 of the Seniors Policy, a consent authority must not consent to a development application made pursuant to Ch 3 unless the consent authority is satisfied that residents of the proposed development will have access to certain facilities that satisfy cl 26(2). Access will satisfy that provision if the facilities and services are within a specified distance by means of a suitable access pathway and the gradient for the pathway is no more than as specified. Thus, levels and gradients are of some significance if a proposed development is to satisfy the prerequisites of the Seniors Policy.
4. Under cl 28 of the Seniors Policy, a consent authority must not consent to a development application made pursuant to Ch 3 unless the consent authority is satisfied that the housing will be connected to a reticulated water system and have adequate facilities for the removal of or disposal of sewage. Under cl 29, a consent authority must take into consideration criteria concerning the natural environment; the services and infrastructure that would be available to meet the demands arising from the proposed development; and the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development.
5. Of critical relevance to this appeal is cl 30, which provides that a consent authority must not consent to a development application made pursuant to Ch 3 unless the consent authority is satisfied that "the applicant has taken into account a site analysis prepared by the applicant" in accordance with cl 30. A site analysis must contain specified information about the site and its surrounds, as specified in cl 30(3) and cl 30(4) respectively.
6. Under cl 30(3), the site analysis must identify the site dimensions; topography, services; existing vegetation; micro climates; the location of buildings, fences, boundaries and access; views; and overshadowing by neighbouring structures.
7. Under cl 30(4), the site analysis must identify neighbouring buildings, privacy, walls built to the site's boundary, difference in levels between the site and adjacent properties at their boundaries, views and solar access, major trees on adjacent properties, street frontage features, the built form and character of adjacent development, heritage features, direction and distance to local facilities, public open space, adjoining bushland or environmentally sensitive land, sources of nuisance and adjoining land uses and activities.
8. Clause 32 provides that a consent authority must not consent to a development application made pursuant to Ch 3 unless the consent authority is satisfied that "the proposed development demonstrates that adequate regard has been given to the principles" set out in cll 33-39. Those clauses deal with the following matters:

• neighbourhood amenity and streetscape (cl 33);
• visual and acoustic privacy (cl 34);
• solar access and design for climate (cl 35);
• stormwater (cl 36);
• crime prevention (cl 37);
• accessibility (cl 38); and
• waste management (cl 39).

1. Clause 33 relevantly provides that a proposed development should:

• recognise the desirable elements of the location's current character so that new buildings contribute to the quality and identity of the area;
• maintain reasonable neighbourhood amenity and appropriate residential character by:
• providing building setbacks to reduce bulk and overshadowing,
• using building form and siting that relates to the site's landform,
• adopting building heights at the street frontage that are compatible in scale with adjacent development, and
• considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours;
• retain, wherever reasonable, major existing trees. Clause 34 relevantly provides that a proposed development should consider the visual and acoustic privacy of neighbours in the vicinity by appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping.

The L & E Court Act

1. Under s 20 of the L & E Court Act, the L & E Court has jurisdiction (referred to as "Class 4") to hear and dispose of, relevantly for present purposes, proceedings under s 123 of the Planning Act. [60] Under s 123, any person may bring proceedings in the L & E Court for an order to remedy or restrain a breach of the Planning Act, whether or not any right of that person has been or may be infringed by, or as a consequence of, that breach. Under s 124, where the L & E Court is satisfied that a breach of the Planning Act (or of the Planning Regulation or an environmental planning instrument, such as the Seniors Policy and the Major Development Policy) has been committed, or that such a breach will, unless restrained, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
2. Division 3 of Pt 3 of the L & E Court Act, which consists of s 25A to s 25E, deals with orders of conditional validity for certain development consents. Division 3 applies to any development consent granted or purporting to be granted under the Planning Act by a consent authority [61] and extends to invalidity arising from any steps preliminary to the granting of such development consent. [62]
3. Under s 25B(1), the L & E Court may, instead of declaring or determining that a development consent is invalid, make an order suspending the operation of the consent in whole or in part and specifying terms compliance with which will validate the consent. Section 25B(2) provides that terms may require the carrying out again of steps already carried out, the carrying out of steps not already commenced or carried out and acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under the Planning Act or any other Act. Section 25C then provides that, on an application by a consent authority, the L & E Court may make an order declaring that such terms have been substantially complied with, declaring that the consent is valid and revoking the order of suspension. Such an order may be made where it is not proposed that the relevant development consent be regranted with alterations. Section 25E expressly provides that it is the duty of the L & E Court to consider making an order under Div 3, instead of declaring or determining that particular development consent is invalid, whether in whole or in part.

The Land in Question

1. The Living Choice Land consists of approximately seven hectares. It has a frontage to Old Glenhaven Road and Holland Road. Mr Rossi owns land (the Rossi Land) that has a common boundary with the Living Choice Land. The Rossi Land consists of approximately two hectares and has a frontage to Edgecliff Road. The southern boundary of the Rossi Land (the Rossi Boundary) is common with part of the northern boundary of the Living Choice Land. The Living Choice Land, which is irregular in shape, also has a common boundary with land owned by Mr and Mrs Anderson (the Anderson Land). The Anderson Land, which comprises a similar area to the Rossi Land, is approximately rectangular and has a frontage to Holland Road and Edgecliff Road. Its southern boundary is common with part of the northern boundary of the Living Choice Land and part of its eastern boundary is common with part of the western boundary of the Living Choice Land (the Anderson Boundary). The balance of the eastern boundary of the Anderson Land is common with part of the western boundary of the Rossi Land. A locality plan showing the three parcels is set out in the Appendix to these reasons.
2. There had previously been a dam in the north western corner of the Living Choice Land close to the western end of the Rossi Boundary and close to the Anderson Boundary. While the dam had been filled in, the walls of the dam remained, such that there was a steep slope from the top of the walls down to the western end of the Rossi Boundary and part of the Anderson Boundary.

The Consents

1. On 9 December 2003, development consent (the Stage 1 Consent) was granted to Living Choice in respect of land to the east of the Rossi Land and the Living Choice Land (the Stage 1 Land). The Stage 1 Land has now been developed for seniors housing (known as the Glenhaven Retirement Village) and there is no complaint about that development. While the Stage 1 Consent related to both the Stage 1 Land and the Living Choice Land, the Stage 2 Consent relates only to the Living Choice Land. There was no development of the Living Choice Land pursuant to the Stage 1 Consent.
2. On 8 July 2008, Mr Rossi entered into a contract for the purchase of the Rossi Land. On 2 February 2009, that contract was completed and Mr Rossi became the owner of the Rossi Land. It appears that Mr Rossi had previously worked for Living Choice in connection with development on the Stage 1 Land. That fact may have been the source of some animosity between Mr Rossi and Living Choice but does not otherwise appear to be relevant.

Developments in 2009

1. On 20 August 2009, under cover of a letter dated 14 August 2009, Living Choice lodged development application 280/2010/JP in respect of the Living Choice Land (the Stage 2 Development Application). The proposed development was then described as the demolition of existing buildings and the erection of 115 self-contained aged care villas, 111 supported living units and associated infrastructure. The Stage 2 Development Application was lodged with the Council by City Plan Services, a planning services company, on behalf of Living Choice. The supplementary documentation submitted with the Stage 2 Development Application included the following:

• architectural plans prepared by CED Building Design dated 28 July 2009;
• statement of environmental effects prepared by City Plan Services dated April 2009 (the 2009 SEE);
• civil design report, including slope analysis survey, prepared by Cardno (NSW) Pty Ltd (Cardno), an infrastructure and environmental services company, dated June 2009;

1. The 2009 SEE stated that the proposed development formed an extension to the completed Stage 1 of the Glenhaven Retirement Village and that the acquisition of the property known as 1 Holland Road, Glenhaven had facilitated a modified regime to that originally approved under the Stage 1 Consent. The 2009 SEE said that Living Choice was seeking development consent for the villa format and a supported living component for the new parcel. It stated that the site had a moderate slope from east to west and asserted that the scale of the proposed development was "appropriate, maintaining low density, low scale, residential form" that was "entirely consistent with the built form throughout the area". The 2009 SEE also asserted that the proposal provided a gradient in density from the immediate adjoining residential land uses to the semi-rural residential land uses to the north and west. It asserted that the proposed development provided generous setbacks to those boundaries to provide a buffer at the interface of the two land uses.
2. On 26 August 2009, the Stage 2 Development Application was referred to the Panel. All of the supporting documentation described above was also referred to the Panel. The Stage 2 Development Application was publicly notified from 28 August 2009 to 14 September 2009.
3. On 2 September 2009, Mr Robert Buckham, the Council officer concerned with the assessment of the Stage 2 Development Application, who was the Council's development assessment manager, prepared an internal memorandum to brief councillors on several development applications, including the Stage 2 Development Application. The memorandum said that the Development proposed under the Stage 2 Development Application formed an extension of the completed development on the Stage 1 Land.
4. On 23 September 2009, the Council's senior subdivision engineer made engineering comments in relation to the Stage 2 Development Application. The engineer said that the concept plans prepared by Cardno did not demonstrate adequately the feasibility of onsite drainage storage locations and compatibility with the Development and that the concept plans would be amended to incorporate additional matters. The engineer also stated that the town planner was to note that the site of the Development was "subject to excessive earthworks, including excavation and filling, particularly along the site boundaries" and that, in that regard, Living Choice would be requested to provide a "site layout identifying the extent and amount of earth fill and excavation". On 13 October 2009, the Council wrote to Living Choice requesting information along the lines set out in the engineer's comments.
5. On 15 October 2009, the Council's officers gave an interactive presentation to the Panel on the Stage 2 Development Application. A briefing note in relation to the presentation stated that the Council had written to Living Choice in relation to various matters, including the extent of the earthworks. A file note was made of the presentation and the discussion that took place in the course of the presentation. The file note records that the Panel advised that the compatibility of the Development with the rural zoning of the Living Choice Land should be addressed in the planner's assessment report. Thus, the Panel was mindful of the process of assessment by the Council in connection with its consideration of the Stage 2 Development Application
6. On 30 December 2009, the Council wrote to Living Choice seeking additional information. After referring to previous letters of 2 November 2009 and 30 September 2009, the letter of 30 December 2009 identified further issues that were required to be addressed before determination of the Stage 2 Development Application. In addition to site drainage and vehicular access and parking, the letter asked for a site layout plan identifying "the extent and amount of earth fill and excavation", to enable a "full and proper consideration" of the Stage 2 Development Application. The letter said that the Stage 2 Development Application would be held in abeyance pending receipt of the additional information.

Developments in 2010

1. On 1 April 2010, City Plan Services provided additional information in response to the Council's request of 30 December 2009. The additional information provided included the following:

• landscape plan - revised landscape drawings;
• site drainage - additional information prepared by Cardno;
• earthworks - additional information.

1. The information in relation to site drainage consisted of a road and drainage plan of two sheets. Sheet 2 covered the Rossi Boundary and showed proposed surface contours, as well as finished floor levels for each of the seven villa units to be constructed along the Rossi Boundary. The surface contours ended at the Rossi Boundary. Accordingly, they did not expressly show the levels of the Rossi Land. The westernmost contour level shown on the plan was 136 m and the easternmost was 140 m. The finished floor levels of the seven units ranged from 135.9 m at the western end of the Rossi Boundary to 139.8 m at the eastern end of the Rossi Boundary. That demonstrated a slope upwards from west to east along the Rossi Boundary. It did not disclose that the level of 135.9 m was significantly higher than the level of the Rossi Land at the western end of the Rossi Boundary.
2. The additional information relating to earthworks consisted of an earthworks plan comprising two sheets. Sheet 2 dealt with the area on the Rossi Boundary. The plans showed the following:

• proposed finished floor levels of villa units;
• proposed finished surface contours;
• approximate fill area;
• approximate cut area;
• existing surface contours.

1. The whole of the area of the Living Choice Land on the Rossi Boundary was shown as fill area. The existing surface contours showed that the Rossi Boundary sloped up from 132 m at the western end to 139 m at the eastern end. The finished floor levels were consistent with the road and drainage plan. The proposed finished contours were also consistent with those shown on the road and drainage plan. The existing surface contours shown on the earthworks plan also showed the steep rise in the north-west corner of the Living Choice Land from the Rossi Boundary to the top of the walls of the dam that had existed in that corner.
2. On 21 April 2010, the Council prepared a briefing note for the Panel. On 22 April 2010, a further briefing took place at the request of the Panel to discuss the status of the Stage 2 Development Application.
3. On 28 April 2010, the Council sent an email to City Plan Services requesting additional information regarding bushfire assessment. The Council suggested that it could recommend to the Panel that part approval be granted excluding the bushfire assessment components, which required the approval of the NSW Rural Fire Service. On 29 April 2010, City Plan Services sent an email to the Council confirming that Living Choice was seeking a part approval, excluding the bushfire assessment components. On 3 May 2010, City Plan Services sent a further email to the Council enclosing additional information, including a revised construction staging plan. The revised plan excluded 18 of the villa units proposed and also excluded the proposed supported living housing, pending the relevant bushfire approval.

The May 2010 Status Report

1. In May 2010, a status report was prepared for the Panel by Mr Buckham. The status report outlined the history of the Stage 2 Development Application up to 4 May 2010, when Living Choice had sent a letter to the Council and the Panel seeking additional time to resolve outstanding issues. After describing the Development, the status report set out the issues for consideration, including compliance with the Major Development Policy and the Seniors Policy.
2. In dealing with the Seniors Policy, the status report referred to cll 32 to 39. In that regard, it recounted the requirement in cl 32 that the consent authority be satisfied that the proposed development demonstrates that adequate regard has been given to the design principles listed in cll 33-39. [63] The status report said that the Development had been designed having regard to those matters and, as such, the proposal was considered satisfactory in respect of the provisions of cll 33-39. It did not descend into any greater detail in dealing with those clauses. The conclusion of the status report was in the following terms: The proposal has been assessed having regard to the provisions of Section 79C of [the Planning Act], State Environmental Planning Policy (Infrastructure) 2007 [sic] and [the Seniors Policy] and is considered to be satisfactory. The objections raised in the submissions have been assessed in the report and do not warrant refusal of the application. A number of conditions of consent could be imposed to address the issues raised within the submissions should the application ultimately be recommended for approval. Given that the proposed development is generally satisfactory […], it is considered appropriate to defer determination of the development application to allow the applicant to respond to the issues raised and enable continued assessment by Council, which will result in [a] significantly amended proposal. Given the extent of the work already undertaken by the applicant on the development application, it is considered inappropriate to seek withdrawal, given that the remaining matters can be resolved.
3. The status report recommended that the Stage 2 Development Application be deferred to allow Living Choice to address concerns raised by the Council and the NSW Rural Fire Service. It stated that it was expected that a report would be prepared for the Panel by 30 July 2010.
4. Attached to the status report were the following:

• locality plan;
• aerial photograph;
• site plan;
• elevations;
• cross-sections;
• site perspectives. Mr Rossi asserts that none of those materials discloses the extent of any fill required on or near the Rossi Boundary. The significance of that assertion will become apparent below.

1. On 10 June 2010, City Plan Services wrote to the Council enclosing a bushfire assessment by NSW Rural Fire Service that necessitated deletion of the supported living housing from the Stage 2 Development Application. City Plan Services said that Living Choice sought to stage the Development consistent with the staging plan enclosed, which, as foreshadowed, excluded 18 of the villa units and the supported living housing element of the proposed development. Thus, the Stage 2 Development Application was limited to the erection of 97 self-contained aged care village units with ancillary facilities, car parking and associated infrastructure. It also involved the demolition of the existing buildings on the Living Choice Land.
2. On 9 July 2010, City Plan Services submitted Cardno's concept civil design report dated June 2009 to the Council on behalf of Living Choice. That report, after describing the Living Choice Land and the Development, addressed stormwater drainage, sewer reticulation, water reticulation and internal driveway design. The report annexed a road and drainage plan, which showed the proposed finished floor levels, as well as a slope analysis, which showed areas in the north-west corner of the part of the Living Choice Land that meets the Rossi Boundary as having a gradient of more than 10%. However, none of the material contained in the report concerned the fill required in that part of the Living Choice Land that meets the Rossi Boundary.
3. On 13 August 2010, general terms of approval were granted by the NSW Rural Fire Service. On 25 August 2010, the Council's senior subdivision engineer sent a memorandum to Mr Buckham, the Council officer concerned with the assessment of the Stage 2 Development Application. The memorandum recommended conditional consent with respect to the engineering and subdivision component of the Development, subject to conditions set out relating to particular stages and longitudinal sections of certain of the roads that were to form part of the Development.

The September 2010 Planning Report

1. In September 2010, a planning report was prepared by Mr Buckham for consideration by the Panel at a meeting that was held on 23 September 2010. The report followed the format of the earlier report. After describing the Development, it set out the issues for consideration, including compliance with the Major Development Policy and compliance with the Seniors Policy. The report addressed cll 32 to 39 of the Seniors Policy in language identical to that of the May 2010 status report. The report contained a table indicating issues that had been raised, the response to the issues and the outcome. Two of the issues concerned landscaping. The landscaping proposed was said to be inadequate. The report recommended that a condition be imposed (which became condition 11) that required the submission of a detailed landscape plan to the Council prior to the issue of a construction certificate.
2. The status report then made reference to the relevant local environmental plan and to the objectives of the "Rural 1(c)" zone of which the Living Choice Land formed part. The status report said: The proposal is considered to be consistent with the stated objectives of the zone, in that the proposal does not detrimentally impact adjoining land uses and the natural environment when controlled through conditions of consent. In particular the proposal provides development that provides housing choice for residents. [emphasis added]
3. The conclusion of the report, in terms virtually identical to the conclusion of the May 2010 status report, [64] was that the Development had been "assessed" and was considered to be satisfactory. It stated that the Development complied with the provisions of the Seniors Policy and that its external design and appearance was consistent with the existing seniors development on the Stage 1 Land and was considered appropriate. The report recommended that the Stage 2 Development Application be approved subject to some 83 conditions. Once again, there were attachments, none of which addressed the question of fill on the Rossi Boundary or in the north-western corner of the Living Choice Land.
4. Condition 1 recommended by the report was that the Development be carried out in accordance with the approved plans and details submitted to the Council, as amended. No work, including excavation, land fill or earth reshaping, was to be undertaken prior to the issue of a construction certificate, where a construction certificate was required. Condition 9 provided that vegetation not authorised for removal by the consent was to be protected during construction to ensure that natural vegetation and topography on the site was not unnecessarily disturbed. Condition 11 required a detailed landscape plan to be submitted to the Council prior to the issue of a construction certificate. The plan was to be prepared by a suitably qualified person and was to screen the Development from public places. Specifically, all existing trees were to be clearly marked for retention or removal. Condition 26 defined the kinds of waste derived fill material that may be received at the site of the Development. Condition 25 provided that, prior to construction of the Development, a construction certificate must be obtained.
5. Condition 32 provided that the design certification and construction approval of the engineering works nominated later in the Stage 2 Consent required separate approval prior to the commencement of any works. Condition 40 provided for certain aspects of the design and construction of the engineering works for which Council approval was required. Condition 80 provided for construction inspections of engineering works at various stages specified.
6. At a meeting of the Panel held on 23 September 2010, the Panel dealt with the Stage 2 Development Application. The minutes of the meeting record that the Council's development assessment co-ordinator had advised that the Stage 2 Development Application had been amended at the request of the NSW Rural Fire Service to ensure that the Development complied with the bushfire protection guidelines, which had resulted in the deletion of the residential care facility component and 18 villa units. The Panel resolved to adopt the Council officer's recommendation to approve the Development contained in the September 2010 planning report prepared for the Panel.
7. On 12 October 2010, the Council wrote to Living Choice. The letter was in the following terms: ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 NOTICE TO APPLICANT OF DETERMINATION OF A DEVELOPMENT APPLICATION - INTEGRATED Pursuant to Section 81 of [the Planning Act], notice is hereby given of the determination by The Hills Shire Council of the Development Application referred to herein. The Application has been determined by the granting of Consent subject to the conditions referred to in this Notice. The conditions of the Consent referred to herein are deemed necessary by Baulkham Hills Shire Council, pursuant to Part 4, Division 2 of [the Planning Act].
8. Clearly, if the letter was intended to refer to a determination by the Council, rather than the Panel, the letter was wrong. However, it is correct if it is to be understood as saying that notice of the determination was thereby being given by the Council. The letter set out the 83 conditions contained in the planning report for the Panel of September 2010. Those conditions were set out verbatim.
9. In addition, the letter said that, pursuant to s 80A of the Planning Act, 13 general conditions attached were also to be complied with. They included conditions relating to "excavations and backfilling" and "retaining walls and drainage". The condition concerning "retaining walls and drainage" (general condition C) provided as follows: If the soil conditions require it: (1) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and (2) adequate provision must be made for drainage. (3) A separate Development Application and Construction Certificate Application are required for the retaining walls where cut exceeds 1 m in height, or fill to be retained exceeds 600 mm in height. Structural Engineer's details are required to be submitted to Council as part of the application if the amount to be retained is over 1 m in height. Notably, those general conditions were imposed not by the Panel, but by the Council.
10. The letter stated that the "endorsed date of consent" was 23 September 2010. That, of course, was the date of the resolution of the Panel.

Developments in 2011

1. On 28 June 2011, the Council wrote to Living Choice dealing with modification of the Stage 2 Development Application under s 96 of the Planning Act. The letter said that, pursuant to the provisions of cl 122 of the Planning Regulation, notice was thereby given of the determination by the Council of the application for modification of the Stage 2 Consent, namely, that the application was approved. The "date of approval" was given as 27 June 2011. The letter provided that certain conditions of consent be amended and that others be deleted, and that others be added. The detail does not appear to be presently relevant.
2. On 1 July 2011, the Council sent an email to City Plan Services saying that the Council had received representations regarding the intended construction of a retaining wall adjacent to the Rossi Land and the Anderson Land. The email said that concern was raised that the approved plans and details did not identify any such wall. The email referred to architectural plans and cross-sections, neither of which identified a retaining wall. Rather, one of the sections showed a falling batter from the proposed villa units to the Anderson Boundary and the Rossi Boundary, which appeared to finish at ground level.
3. The email of 1 July 2011 said that, in the absence of any detail identifying a retaining wall along the Anderson Boundary and the Rossi Boundary, the wall was considered not to have consent, and that consent was required. Specific reference was made to general condition C dealing with retaining walls and drainage, as specified in the letter of determination dated 12 October 2010. The email went on to say that, if Living Choice was relying on plans that conflicted with the architectural plans or with general condition C, then the conflict must be resolved. The email then said: As such[,] any works in the vicinity of the [Anderson Boundary and Rossi Boundary] should cease, and consent should be sought for the wall if a wall is indeed required. Consideration should be given to the interface of the wall with the properties to the north[;] in particular[,] opportunities should be explored to reduce the wall height and provide landscape screening on the development site to lessen the impact of any wall.
4. There then followed several email exchanges between City Plan Services and the Council. On 4 July 2011, the Council sent an email to City Plan Services advising that it had received a complaint from an adjoining neighbour in relation to site contamination, alleged future tree removal and inadequate sediment and erosion controls.
5. On 7 July 2011, City Plan Services sent an email to the Council saying that it was working on options on the landscaping and retaining of the northern boundary of the Development. It said that the retaining may involve retaining walls of under 600 millimetres and therefore would not require a separate development approval. The email said that the plans were aimed at reducing the visual impact on adjoining properties by means of 600 millimetre retaining walls and landscaping, with possibly a deck or the like, and privacy screens. Later on 7 July 2011, City Plan Services sent a further email to the Council saying that Living Choice had reached an agreement with neighbouring properties and would, on the following day, forward plans of proposed retaining walls. The Council responded on 8 July 2011, saying that the plans would be reviewed when submitted. The email said that, if a modification pursuant to s 96 of the Planning Act was required, it would be necessary to determine whether the matter had to go back to the Panel.
6. On 13 July 2011, representatives of Living Choice met with Mr Rossi to discuss the transition between the levels of the villa units close to the Rossi Boundary and various options for the treatment of the Rossi Boundary. On the same day, the Council verbally repeated to Living Choice representatives the advice conveyed in its email of 1 July 2011, namely, that any works in the vicinity of the Anderson Boundary and the Rossi Boundary should cease and that consent should be obtained for the retaining wall if such a wall was indeed required. Living Choice did not cease work.
7. On 2 August 2011, Living Choice lodged an application for development consent in respect of the Living Choice Land (the Retaining Walls Development Application). The description of the proposal was "removal of trees and erection of retaining walls". The attachments to the Retaining Walls Development Application included a locality plan, aerial photograph, approved plans for the Stage 2 Consent, architectural plans and landscape plans. Those materials included an elevation of the Rossi Boundary, showing villas 204 to 210. The elevation showed a slope down from east to west and showed unit 210 with a substantial "curtain wall" below its floor level.
8. On 12 October 2011, the Council, through Mr Buckham, wrote to Living Choice. After referring to a previous letter dated 24 August 2010 and Living Choice's responses received by email dated 9 September 2011 and 15 September 2011, the Council again advised Living Choice that the proposed retaining walls could not be supported "given the adverse impact on adjoining properties". The letter said: As previously advised, the original approval for [the Development] was supported by Council staff on the basis that impact on neighbours was minimised and [the Development's] finished ground level was graded to finish at natural ground level at the northern boundary [i.e. including the Rossi Boundary].
9. The letter also said that the Council's tree management team had advised that the extent of fill within the tree protection zone and structural root zone of trees on the Anderson Land and the Rossi Land would have an adverse impact on the trees. The letter said that, in light of the levels shown on the approved plans and the comments made by Living Choice regarding the need for appropriate accessibility across the Living Choice Land for residents, it would be appropriate for Living Choice to review levels across the rear portion of the Living Choice Land with a view to resolving the current situation. The letter said that the application as proposed was not supported and that significant amendments would be required prior to any further consideration by Council's staff.
10. Following a meeting on 14 October 2011 at the Council's administration building and a site meeting on 2 November 2011, the Council, again through Mr Buckham, wrote to Living Choice on 15 November 2011 regarding the Retaining Walls Development Application. The letter said: You indicated on site that works on the site have progressed to a point where the site levels cannot be reduced at the interface with the properties to the north and that there are now limited opportunities to resolve potential impacts on neighbours. At our meeting on 14 October 2011 you were advised to explore options in relation to the boundary treatment and provide details as to why levels cannot be reduced if that were the case. You were also requested to detail how the levels were arrived at and why no details of retaining walls were identified within the original application. This information has to date not been provided and must be provided to further this matter. 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 Development Application]. […] 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 the neighbouring properties.
11. On 23 November 2011, City Plan Services responded on behalf of Living Choice. City Plan Services said: 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 […] 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 Development Application with all the supporting documentation and not just one page of an application which subsequently does not even form part of the stamped approved plans. In this light, it is considered that even with the lack of retaining wall details, there was sufficient documentation provided to Council clearly identifying a significant change in levels across the site and in particular sections of the northern boundary. These were provided in the way of survey plans, floor levels and road levels.
12. The letter continued by stating that it appeared that, until the Council received complaints from neighbours about the Stage 2 Development Application, it had been in favour of the proposal. The letter made reference to the Council's September 2010 status report to the Panel in which the proposal was expressed to be "satisfactory" in relation to cll 33-39 of the Seniors Policy and that it did not "detrimentally impact adjoining land uses". [65] The letter said that Living Choice had made several attempts to achieve an outcome in which all parties were satisfied, but that that did not appear to have been achieved. The letter then attached the series of correspondence that had taken place between the Council, City Plan Services and Living Choice during the development application process, as well as the consultations that it had undertaken with Mr Rossi and Mrs Anderson.

Developments in 2012

1. On 3 January 2012, Mr Rossi's solicitors wrote to Living Choice and the Council challenging the validity of the Stage 2 Development Consent and indicated that they had instructions to commence proceedings. The proceedings in the L & E Court were commenced by Mr Rossi on 11 January 2012.
2. On 30 January 2012, Living Choice commenced earthworks for villas 204 to 210. On 9 February 2012, Living Choice commenced construction of a 600 millimetre keystone concrete wall on the Rossi Boundary and on 10 February 2012, Living Choice excavated a trench along the Rossi Boundary. Pallets of concrete blocks were placed on the Rossi Land without Mr Rossi's consent.
3. On 13 February 2012, Mr Rossi's solicitors wrote to the Council's solicitors concerning unauthorised excavation for the keystone concrete block wall and requested the Council to take action. On the same day, his solicitors also wrote to Living Choice's solicitors raising (inter alia) unauthorised excavation for the keystone wall and storage of materials on the Rossi Land without Mr Rossi's consent, and requested Living Choice to 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. On 14 February 2012, Mr Buckham visited the Living Choice Land and recommended that Living Choice cease works in proximity to the Rossi Boundary.
4. An assessment report in respect of the Retaining Walls Development Application was prepared on 17 February 2012. The report stated that the Retaining Walls Development Application had been lodged in response to discussions with Council's staff, who became aware of the intention to build a retaining wall on the Rossi Boundary and the Anderson Boundary after being contacted directly by neighbours. Council's staff had advised Living Choice that, in the absence of any detail identifying a retaining wall along those boundaries, it was considered that the wall did not have consent, and that such consent was required.
5. The report continued: The application originally detailed a retaining wall up to 3.1 m high along the boundary however the applicant sought to amend the application by providing an outcome that primarily comprised lower retaining walls and a landscaped batter. Although the landscaped batter outcome is considered to be an improvement on the original proposal, it is considered that the applicant has not provided a design that ameliorates impacts on neighbours to an acceptable level. Particular concern remains along a portion of the [Anderson Boundary] where a number of established screening trees are to be removed and a cantilevered turning head is to be constructed. The proposal includes landscaping underneath this structure. Concern is raised in relation to the adequacy of this screening and the ability for the landscaping to survive and be maintained long term. The applicant should consider amending the design to enable the retention of existing conifers that already screen the development site. It is considered that the issues regarding the development interface that have arisen were able to be better resolved when initial discussions were undertaken with Council staff in July 2011 however the developer continued primarily infrastructure construction to a point where opportunities to adequately deal with [the] matter were reduced. It is noted that construction of the villas adjacent to the boundary have not commenced to date and the applicant should consider amending or deferring construction of these villas to allow an appropriate alternate design outcome.
6. After recounting communications that had taken place in July 2011, the report said that the works proposed differ from the design put forward in connection with the Stage 2 Development Application. The report said that the architectural plans submitted did not convey Living Choice's apparent intended outcome along the Rossi Boundary and "in this regard were misleading". The report referred to cross-sections across the Living Choice Land, including the Rossi Boundary, and said that neither cross-section identified a retaining wall and that one of the sections showed a falling batter from the proposed villa units to the Rossi Boundary, which appeared to be finished at ground level. The report said that those plans resulted in a favourable determination by the Panel. 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 2009 SEE would have been required to ensure an appropriate transition to the neighbouring properties.
7. The report ended with a recommendation that the application be refused for the following reasons:

• The proposed development is not consistent with the objectives for development specified in the Baulkham Hills Local Environmental Plan 2005;
• The likely impacts of the proposal are considered to be unacceptable, including environmental impacts on both the financial and built environments and social and economic impacts on the locality (in particular, inter alia, the proposal is likely to result in adverse impacts on privacy, and suitable measures have not been taken to mitigate them);
• The subject site is not considered to be suitable for the proposed development because of the "increase in intensity" proposed.

1. On 28 February 2012, the Council refused consent sought by the Retaining Walls Development Application. On that day, the keystone concrete block wall was being erected by Living Choice on the Rossi Boundary. At some time in February 2012, construction of villa units 204 to 210 began with the laying of concrete slabs.
2. In March 2012, the keystone concrete block wall collapsed. The mechanism of the collapse was not explained but the collapse occurred during heavy rainfall.
3. On 17 April 2012, Living Choice lodged an application under s 82A of the Planning Act, requesting the Council to review its determination of the Retaining Walls Development Application which had been amended.
4. On 24 April 2012, the Council's solicitors wrote to Mr Rossi's solicitors advising that the "general conditions" attached to the notice of determination issued in October 2010 in relation to the Stage 2 Development Application did not form part of the Panel's consideration and therefore did not form part of the Stage 2 Consent.
5. On 7 May 2012, Mr Rossi's solicitors wrote a letter of objection in respect of the s 82A review application and, on 8 May 2012, the Council received a letter of objection from Mr and Mrs Anderson.
6. In early June 2012, retaining walls along the Rossi Boundary and the units facing the Rossi Land were completed. It is unclear what the position was concerning the Anderson Boundary.
7. On 6 June 2012, the solicitors for the Council wrote to the solicitors for Mr Rossi and for Living Choice enclosing what they described as a "reissued" notice of determination in respect of the Stage 2 Development Application. The enclosed document was dated 12 October 2010 and was substantially similar to the original letter of that date, except that the first sentence read: Pursuant to Section 81 of [the Planning Act], notice is hereby given of the determination by The Joint Regional Planning Panel of the Development Application referred to herein. Thus, "the Joint Regional Planning Panel" was substituted for "The Hills Shire Council". [66] Further, the reference to general conditions at the end of the notice was deleted.
8. On 26 June 2012, following a meeting, the Council changed its previous determination in relation to the Retaining Walls Development Application and resolved to grant consent to the application, which had been modified in connection with the review application, subject to 13 conditions. On 2 July 2012, the Council issued a notice of determination approving the Retaining Walls Development Application, with the "endorsed date of consent" being 26 June 2012. The notification, being the Retaining Walls Consent, described the development as "Retaining Works". The first condition specified was that the development be carried out in accordance with identified approved plans and details, which were stamped and returned with the consent. Attached to the notice of determination were 13 "development advisory notes", which are in almost identical terms to the "general conditions" attached to the notice of determination originally issued in respect of the Stage 2 Development Application.

Mr Rossi's Claims

1. Mr Rossi's complaints relate to: 1. the removal of trees from the Living Choice Land and the Rossi Land close to the Rossi Boundary; 2. the erection of a 600 millimetre keystone concrete block wall on the Living Choice Land at the Rossi Boundary; and 3. the erection of curtain walls underneath the concrete slabs for villas 204 to 210 erected on the Living Choice Land within 3 metres of the Rossi Boundary. In relation to the third complaint, Mr Rossi characterises the curtain walls as retaining walls and asserts that fill has been placed behind them in order to build up the height of the ground to the finished floor level of those villas.
2. As indicated above, Mr Rossi commenced proceedings in the L & E Court on 11 January 2012. He filed points of claim on 1 March 2012 and filed amended points of claim on 30 April 2012. On 28 June 2012, he filed a further amended summons and on 29 June 2012, he filed further amended points of claim.
3. In his further amended summons filed on 28 June 2012 and further amended points of claimed filed on 29 June 2012, Mr Rossi claimed the following relief: 1. a declaration that the Stage 2 Consent is void and of no effect; 2. a declaration that the notification of the Stage 2 Consent on 12 October 2010 is void and of no effect; 3. a declaration that the modification of the Stage 2 Consent granted on 27 June 2011 is void and of no effect; 4. a declaration that the notification of the Stage 2 Consent as modified is void and of no effect; 5. a declaration that the notification of the ("reissued") Stage 2 Consent on 6 June 2012 is void and of no effect; 6. an order that Living Choice be restrained from carrying out any works on the Living Choice Land pursuant to the Stage 2 Consent, or the Stage 2 Consent as modified, until development consent is obtained for such works pursuant to the Planning Act; 7. orders requiring that Living Choice: 1. demolish the buildings erected on the fill on the area of the Living Choice Land adjacent to the Rossi Boundary for a distance of 50 metres, including timber piles and posts, retaining walls and related infrastructure; 2. remove the fill referred to in paragraph (a) above; 3. demolish the keystone concrete block wall on the Rossi Boundary, remove the gravel and backfill placed on the Rossi Land by Living Choice and restore the Rossi Land, including by planting advanced trees in the place of those removed. Mr Rossi also claimed costs and interest on costs.
4. The assertions made by Mr Rossi in the further amended points of claim in support of the contention that the Stage 2 Development Application was unlawfully determined, as relevant to the appeals, may be summarised as follows:

• the Panel was responsible, under s 23G of the Planning Act and cl 13F of the Major Development Policy, for the determination of the Stage 2 Development Application;
• the Council was responsible under the Planning Act for the assessment of the Stage 2 Development Application pursuant to cl 13F(2)(d) of the Major Development Policy and for the notification to Mr Rossi of the determination of the Stage 2 Development Application, pursuant to cl 13F(2)(f) of the Major Development Policy;
• the Council purported to assess the Stage 2 Development Application prior to 23 September 2010;
• on 23 September 2010, the Panel considered and determined the Stage 2 Development Application and granted the Stage 2 Consent;
• prior to determining the Stage 2 Development Application, the Panel did not inspect the Living Choice Land or its environs;
• on 12 October 2010, the Council purported to notify the determination of the Stage 2 Development Application;
• the Council notified that the Stage 2 Consent was subject to conditions, including general condition C(3), which provided that a separate development application and construction certificate application were required for retaining walls where the cut exceeded 1 metre in height or the fill to be retained exceeded 600 millimetres in height;
• general condition C(3) was added by the Council and was not in accordance with the determination of the Stage 2 Development Application by the Panel;
• the notification of the Stage 2 Consent on 12 October 2010 was not as required by s 81(1) of the Planning Act and was in accordance with cl 100 of the Planning Regulation in that: 1. the notification purported to be a notification of the determination by the Council, whereas the Council had not determined the Stage 2 Development Application and it was not a notification of the determination of the Stage 2 Development Application that was in fact made by the Panel; 2. the notification did not contain the conditions on which the Stage 2 Consent had in fact been granted by the Panel (as required by cl 100(1)(b)), but included general conditions imposed by the Council, which it had no jurisdiction to impose; 3. the notification did not contain the date on which the determination was made (as required by cl 100(1)(d)); 4. no determination had been made by the Panel that accorded with the notice of determination that was issued by the Council;
• accordingly, the notification of determination of the Stage 2 Development Application purportedly granted by the Panel on 23 September 2010 is liable to be declared invalid and of no force or effect and, if so declared, did not become effective or commence to operate.

1. The amended points of claim then make the following assertions in relation to the contention that the assessment of the Stage 2 Development Application by the Council and its determination by the Panel were unlawful.

• the Stage 2 Consent permitted the placement of a substantial quantity and depth of fill on the Living Choice Land at the Rossi Boundary, in that the finished floor levels of villa units at the western end of the Rossi Boundary have an approved level of 135.9 m, whereas the natural ground level on the Rossi Land immediately adjacent to the villa units is 132 m, which is 3.9 metres below the finished floor levels of those villa units;
• when the Council assessed and the Panel considered and determined the Stage 2 Development Application, the Council and the Panel, in breach of s 79C of the Planning Act, did not consider and assess a number of matters required by cll 30, 32, 33, 34 and 36 of the Seniors Policy;
• bulk earthworks have been undertaken on the Living Choice Land by Living Choice and its contractors, servants or agents;
• the Council, as the consent authority, and the Panel, pursuant to its functions as the decision maker in respect of the Stage 2 Development Application, were obliged, prior to, by and at the time of the determination of the Stage 2 Development Application, to consider under s 79C of the Planning Act, the volume, depth, drainage, compaction, need for retention and effect of the proposed method of any retention upon the environment of the fill approved to be placed on the Living Choice Land;
• the Council was obliged to assess, and the Panel 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 the Rossi Land;
• the Council was obliged to assess, and the Panel was obliged to consider, the overlooking of and any loss of privacy to the Rossi Land caused from dwellings approved for construction on top of the proposed fill and adjacent to the Rossi Boundary;
• the Council was obliged to assess, and the Panel was obliged to consider, the conditions necessary to impose on the grant of any development consent in order to ameliorate the environmental impact of the fill, the fill placement and any proposed method of retention of fill and whether such conditions were reasonable in all the circumstances;
• in breach of those obligations, the Council did not assess, and the Panel did not consider, the placing of the fill, the depth of the fill and the retention of the fill on the Living Choice Land, the visual impact of the method of retention of the fill or the overlooking of and loss of privacy to the Rossi Land from dwellings approved to be constructed on the proposed fill, the landscape treatment of the fill or the conditions that might be appropriate to ameliorate the impact of the fill;
• in the alternative, and in addition, the Council, in making the assessment that it did, and the Panel, in making the determination that it did, both failed to undertake essential considerations in the assessment and determination process described above;
• in the circumstances set out above, and in addition, the assessment by the Council, and the consideration and determination by the Panel, of the Stage 2 Development Application were manifestly unreasonable, irrational, arbitrary, not a valid exercise of the statutory power and beyond their jurisdiction;

1. In support of the contention that the modification of the Stage 2 Consent was unlawful, the further amended points of claim make the following assertions:

• on 23 March 2011, an application to modify the Stage 2 Consent was made pursuant to s 96(1A) of the Planning Act;
• on 27 June 2011, the Council determined to consent to the application to modify the Stage 2 Consent pursuant to s 96 of the Planning Act and notified its decision on 28 June 2011;
• the Stage 2 Consent as modified purported to permit the Development on the Living Choice Land by the erection of 97 villa units with ancillary facilities, car parking and infrastructure;
• the determination of the application to modify the Stage 2 Consent is liable to be declared in invalid and, if so declared, is of no force or effect.

1. In support of the contention that the amended notification of the Stage 2 Consent was unlawful, the further amended points of claim make the following assertions:

• on 6 June 2012, the Council issued a notification of the Stage 2 Consent by letter of that date;
• the notification was in different terms from the notification given on 12 October 2010 in that it deleted the general conditions, including general condition C(3);
• the notification of 6 June 2012 is liable to be declared invalid and of no force or effect insofar as the Council had already issued a notification of the Stage 2 Consent on 12 October 2010 and had no further function or jurisdiction to issue another notification under s 81(1) of the Planning Act.

1. In support of the contention that Living Choice carried out development on the Rossi Land without development consent and without Mr Rossi's permission, the further amended points of claim make the following assertions:

• between July 2011 and May 2012, Living Choice entered upon the Rossi Land and carried out development without development consent granted under the Planning Act and without the consent of Mr Rossi, in so far as Living Choice: 1. removed two lines of small pines growing parallel to the Rossi Boundary and on the Rossi Boundary, 2. erected a temporary fence, 3. excavated a trench for the length of the Rossi Boundary, 4. placed crushed aggregate in the trench, 5. erected a wall of variable height between 550 millimetres and 700 millimetres along the Rossi Boundary, and 6. backfilled the trench with gravel and soil.

1. Both Living Choice and the Council filed points of defence to Mr Rossi's further amended points of claim. Living Choice effectively admitted that a large part of the curtain walls under villas 206 to 210 were constructed without development consent between February and June 2012. [67] For the most part, however, the points of defence put in issue many of the assertions made by the further amended points of claim.
2. In the alternative, Living Choice asserted that, if the Court should determine that the Stage 2 Consent and the modification thereof are void and of no effect, the Court would exercise its discretion and not grant the relief claimed by Mr Rossi. Living Choice referred specifically to s 25B of the L & E Court Act, and sought to justify such an exercise of discretion on the basis of, inter alia:

• Mr Rossi's special knowledge of the Development;
• Mr Rossi's delay in bringing the proceedings;
• the absence of prejudice to Mr Rossi; and
• the prejudice to Living Choice, in that work has already commenced on the Living Choice land.

1. The Council's points of defence similarly asserted that, in the circumstances, the Court would not, in the exercise of its discretion, grant the relief sought or alternatively would make an order pursuant to s 25B of the L & E Court Act. It sought to justify such an exercise of discretion on the basis that, inter alia:

• Living Choice has commenced construction of the Development;
• Living Choice lodged the Retaining Walls Development Application, which was the subject of a s 82A review application;
• Mr Rossi was notified of the s 82A application and made detailed written and oral submissions in respect of it, and it was considered by the Council and consented to (subject to conditions); and
• the assessment of the Retaining Walls Development Application resolves Mr Rossi's claims in that the matters that he says that the Council and the Panel did not consider (or deferred) have been considered and been the subject of environmental assessment under the Planning Act. However, no form of order was formulated and no specific claim for an order under s 25B was made by either Living Choice or the Council in their respective points of defence.

The Decisions and Reasons of the Primary Judge

1. The proceedings in the L & E Court were heard by the primary judge over a number of days. Her Honour made final orders on 25 November 2013, which were amended on 13 December 2013. The principal reasons for her Honour's conclusions were published on 12 April 2013 (Judgment No. 3). [68] Supplementary reasons were published on 16 August 2013 (Judgment No. 4) [69] and 18 November 2013 (Judgment No. 5). [70] On 20 August 2014, her Honour made orders as to costs for reasons published on 6 August 2014 (Judgment No. 6). [71] Previously, on 16 May 2012, Pepper J, another judge of the L & E Court, had published reasons for interlocutory orders as to expert evidence (Judgment No. 1) [72] and on 26 June 2012 had published orders granting leave to Mr Rossi to amend his summons and points of claim (Judgment No. 2). [73]
2. The orders made on 25 November 2013 were: 1 A declaration that [the Retaining Walls Consent] is invalid and of no effect. 2 [Living Choice] shall remove the keystone concrete block wall on [the Rossi Boundary], including all gravel footing and backfill placed on the Rossi Land by Living Choice, and: 2.1 Remediate [the Rossi Land] by the following method: ● cultivate the disturbed soil to 300 mm in depth, ● infill resultant depressions with [a garden soil of a specified quality], and ● [grass the area with a pasture seed mix of a specified quality] 2.2 Landscape [the Rossi Land] along [the Rossi Boundary] in accordance with […] landscape plans prepared by Narelle Sonter [of] Botanica […] dated 25 November 2013 […] and 1 November 2013, the Work Method Statement (revised) dated 25 November 2013 and the Program of Works dated 1 November 2013 … 2.3 The landscaping shall be irrigated by an automatic irrigation system installed by a licensed contractor and maintained for the life of the current development on [the Living Choice Land]. 3 In the carrying out [of] the ameliorative order, [Living Choice] shall comply with the following conditions: Prior to the commencement of Work 3.1 Serve on [Mr Rossi] appropriate workers compensation and public liability insurance documents […] for the carrying out of the works by [Living Choice] on [the Rossi Land]. 3.2 Erect a temporary safety fence upon [the Rossi Land] a maximum of 5 metres from [the Rossi Boundary]. 3.3 Serve on [Mr Rossi] a scope of works identifying when access will be required to the area of [the Rossi Land] inside the temporary safety fence and a timetable detailing when the works are to be undertaken on [the Rossi Land]. Prior to completion of the work 3.4 Remove the safety fence within 7 days of the completion of the erection of the boundary fence.
3. In Judgment No. 3, the primary judge dealt with five distinct topics. Two of the topics have sub-topics as well: 1. Validity of the Stage 2 Consent: in dealing with that topic, her Honour dealt with Mr Rossi's contentions that 1. the Council failed to notify him of the Stage 2 Consent, and 2. there was failure to comply with the Planning Act and the Planning Regulation in the assessment by the Council, and in the determination by the Panel, of the Stage 2 Development Application. 1. Whether the Stage 2 Consent was inoperative: that topic dealt with Mr Rossi's contentions that 1. the notification of 12 October 2010 was invalid because it was not in accordance with the Planning Regulation and s 81 of the Planning Act, and 2. the purported further notice of determination of 6 June 2012 was invalid. 1. Whether the work done by Living Choice on the Rossi Land was in contravention of s 76A of the Planning Act: Living Choice denied that development consent was needed for any of the work referred to by Mr Rossi [74] but admitted that it had done most of that work. [75] 2. Whether the Retaining Walls Consent was invalid: the purported consent related to work that had been completed before the Retaining Walls Consent was granted. 3. Relief claimed by Mr Rossi: the primary judge canvassed various issues relating to the exercise of discretion. Later, in Judgment No. 4, the primary judge concluded by: 1. declining to make a declaration as to the invalidity of the Stage 2 Consent; [76] 2. deciding to order the carrying out of remediation work in consequence of the contravention of s 76A of the Planning Act; [77] and 3. deciding to make a declaration of invalidity in respect of the Retaining Walls Consent. [78]
4. The above relief was ordered after the primary judge had reached the following legal conclusions: [79] 1. there had been a failure to consider mandatory relevant considerations under s 79C of the Planning Act and cl 32 of the Seniors Policy, in relation to the retention of fill on the Rossi Boundary, in the Council's assessment, and in the Panel's determination, of the Stage 2 Development Application; 2. there had been a breach of s 76A of the Planning Act in that the removal of pine trees on the Rossi Land and the Living Choice Land and the work relating to the keystone concrete block wall had been carried out without development consent; and 3. the Retaining Walls Consent was invalid.
5. As I have said, the primary judge did not finally determine the question of relief in Judgment No. 3 and, after further submissions, published Judgment No. 4 dealing with the exercise of the discretion to grant declarations of invalidity in relation to the Stage 2 Consent and the Retaining Walls Consent. After further directions in relation to the question of remediation in respect of the contravention of s 76A of the Planning Act, her Honour published Judgment No. 5 dealing with the removal of the keystone concrete wall and remediation.
6. Finally, after further hearings, the primary judge published Judgment No. 6 dealing with the costs of the proceedings. Those reasons led to the making of orders on 20 August 2014. As I have indicated, the question of costs of the proceedings before the primary judge will depend upon the outcome of the substantive matters raised in the appeal.
7. I shall deal separately with the primary judge's findings, reasons and conclusions on the various topics just identified. Of necessity, there is some overlap.

(a) Failure to Notify Mr Rossi of the Stage 2 Consent

1. The first basis upon which the validity of the Stage 2 Consent was impugned was that Mr Rossi was not notified of the consent in circumstances where it was agreed that s 79A(2) of the Planning Act, read with the relevant development control plan, required the Council to notify all adjoining land owners. Mr Rossi did not receive any notice before the Panel's determination of the Stage 2 Development Application. However, the primary judge found that the Council had discharged the onus of proof of posting under s 153(1), and the presumption of posting and receipt of the letter of notification under s 153(2) arose. [80] There is no ground of appeal relating to that conclusion.

(b) Failure to Comply with the Planning Act and Planning Regulation

1. The principal basis upon which Mr Rossi sought to impugn the validity of the Stage 2 Consent was that the Council's assessment of the Stage 2 Development Application did not satisfy the requirements of s 79C(1) of the Planning Act and, specifically, did not satisfy certain requirements of the Seniors Policy. In the further amended points of claim, Mr Rossi alleged a series of failures by the Council as are summarised in [185] above.
2. The Council was joined as a party to the proceedings, although no specific relief was claimed against the Council by Mr Rossi. Mr Rossi says that the Council was joined because he sought to impugn its conduct in the carrying out of the assessment of the Stage 2 Development Application. The Council put in issue whether it was properly joined as a party.
3. There was no dispute that the Panel was required to comply with s 79C of the Planning Act when it determines a development application. Mr Rossi asserted that the Council also had an obligation to comply with s 79C when it undertook the assessment of the Stage 2 Development Application. Both the Council and Living Choice asserted that no separate function that was subject to judicial review was carried out by the Council, with the consequence that the Council should not have been joined as a party.
4. The primary judge considered that the evidence made clear that the Council did undertake the function of assessment of the Stage 2 Development Application. Her Honour held that, under the scheme of the Planning Act and the Major Development Policy, an obligation was imposed on the Council to assess the Stage 2 Development Application and that that obligation included the assessment of matters in s 79C of the Planning Act. Her Honour considered that the Council's assessment was a critical function leading up to the determination by the Panel and that the Council remained the consent authority for the Development, since cl 13F(3) of the Major Development Policy provides that the Council remains the consent authority for development to which Pt 3 of the Major Development Policy applies, subject to the exercise by the Panel of functions conferred by cl 13F.
5. The primary judge concluded that, given that Mr Rossi had challenged the adequacy of the Council's assessment of the Stage 2 Development Application, it was open to her to make findings of failure by the Council to carry out that function. Her Honour considered that s 20(2)(b) of the L & E Court Act applied in conferring jurisdiction to review the exercise of the functions conferred or imposed on the Council by an environmental planning law, such as the Major Development Policy and the Seniors Policy. Her Honour considered that that suggested that the Council was properly a party to the proceedings, even though no specific relief was sought against it. Her Honour observed, however, that while the Council could have filed a submitting appearance in relation to Mr Rossi's complaint concerning the Stage 2 Consent, as the consent authority that determined the Retaining Walls Development Application, the Council was a proper party in relation to that aspect of the proceedings in any event. [81]
6. Dealing next with the substantive basis for the challenge of validity of the Stage 2 Consent, the primary judge referred to the fact that Mr Buckham, the principal assessing officer within the Council, stated, in a letter of 12 October 2011, that the Stage 2 Development Application did not properly identify the intended retention of fill on the Rossi Boundary. Her Honour considered that the statements made by Mr Buckham in the letter, although made after the event, were relevant to illustrate the state of Mr Buckham's mind, as the relevant assessment officer in the Council, at the time when he was undertaking the assessment of the Stage 2 Development Application. Her Honour considered that that suggested that Mr Buckham, as the assessment officer, did not appreciate that retaining walls were intended on or near the Rossi Boundary but understood that the villa units would be "slab on ground". Her Honour concluded that (as Living Choice itself conceded in its letter to the Council on 23 November 2011 [82] ) retaining walls were not identified for the entirety of the Development. [83]
7. Her Honour also rejected criticism by counsel for Living Choice and the Council of the failure of counsel for Mr Rossi to cross-examine Mr Buckham about his assessment of the Stage 2 Development Application. Her Honour concluded that the rule in Browne v Dunn, [84] which requires that any adverse imputation to be attributed to a witness should be put to the witness in order to provide an opportunity for a response, did not apply in circumstances where Mr Buckham's abilities as an assessing officer were not being impugned by Mr Rossi. Rather, Mr Buckham's written statements were being "embraced" in Mr Rossi's case. [85]
8. The primary judge accepted the contention advanced on behalf of Mr Rossi that the plans lodged with the Stage 2 Development Application showed retaining walls and batter on the southern boundary, but, by contrast, no plans alerted Mr Buckham to the retention of fill apparently intended for the western end of the Rossi Boundary. Her Honour found that there was no express reference to the retention of fill on the Rossi Boundary in the relevant documents and that it could not be inferred that the retention of fill in that location had been assessed by someone within the Council. Accordingly, it could not be inferred that the retention of fill on the Rossi Boundary had been considered by the Panel in its determination of the Stage 2 Development Application. [86]
9. The primary judge referred to evidence by Mr Leigh Buckton, the national construction manager of Living Choice, that the filling of the dam area in the north-western corner of the Living Choice Land, near the Rossi Boundary, and cut and fill to varying degrees along the Rossi Boundary, were required. Mr Buckton said that retention walls were thought to be necessary to achieve that result. Her Honour found that, at all times, it was the intention of Living Choice to employ retaining walls of some description on the Rossi Boundary. Her Honour considered that that conclusion was confirmed by the suggested options for the treatment of the Rossi Boundary presented by Mr Buckton to Mr Rossi on 8 July 2011. The first option, which was described as being consistent with the Stage 2 Consent, showed a 600 millimetre landscaping wall on the Rossi Boundary, a batter between walls for a short distance, and a retaining wall of variable length up to slab height with a privacy screen on top. Her Honour found that the Council did not accept that that option was consistent with the Stage 2 Consent, which did not authorise such structures on the Rossi Boundary. Hence, the Council refused the Retaining Wall Development Application in its original form. [87]
10. The primary judge concluded that the method of retention of fill, being (in this case) retaining walls, and the impact of those retaining walls on the Rossi Land, were not considered in the assessment process. However, her Honour found that, in relation to the actual location and volume of fill (as opposed to the method of retention of fill), the Council had plans before it that showed the proposed finished floor levels and the height of the land at spots along the Rossi Boundary, including on the western end of the Rossi Boundary. Her Honour referred to the fact that additional details of the intended fill were sought by the Council's engineer and that the earthworks plan provided by Living Choice in response showed fill across the whole of the seven hectares of the site of the Development. [88] Her Honour considered that it was difficult to conclude that there had been no assessment by the Council of the fill intended to be placed in order to locate villas 204 to 210 at certain levels. The Panel was told that the Council had requested further information about earthworks, but no issue was identified by the Council to the Panel in relation to the proposed finished floor levels for the villas, suggesting that they were considered to be satisfactory. [89]
11. The primary judge considered that, while she could infer that the Panel had read all of the documents provided to it by the Council, there was no reference in the documents that would alert the Panel to the issues concerning fill retention and overlooking impacts. The additional earthworks plan requested by the Council's engineering department was not sent to the Panel and did not refer to retention measures on the Rossi Boundary. Her Honour did not consider that there was a basis for inferring that the expertise of the members of the Panel would have allowed them to have otherwise assessed the issue of fill retention and overlooking impacts, since it was not drawn to their attention and was not apparent from the documents. [90]
12. The primary judge concluded that there was a failure, in the Council's assessment of the Stage 2 Development Application, to consider the impact of the Development on the Rossi Boundary. Her Honour considered that that matter was a mandatory relevant consideration, given the requirement to take into account the likely impact of a development on the natural and built environment, as required by s 79C(1)(b), and the suitability of the site, as required by s 79C(1)(c). [91]
13. The primary judge accepted that, in the material provided by Living Choice to the Council and by the Council to the Panel, there was no reference to fill retention on the Rossi Boundary. Consequently, her Honour considered that the impact of the Development on the Rossi Land did not arise. To the extent that there was some assessment by the Council's engineering department, that assessment did not apparently inform the understanding of Mr Buckham, the Council's assessment officer, in relation to the intended retention of fill on the Rossi Boundary. Her Honour held that, since Mr Buckham bore much of the responsibility for briefing the Panel, it was appropriate to conclude that there was no assessment of that matter by the Council. As there was no advertence to a fundamental matter in the assessment by the Council, and therefore no advertence to that fundamental matter in the reports by the Council to the Panel, and because the Panel chose to rely on the Council's assessment, as it was entitled to do, her Honour concluded that the Panel, in its determination, failed to consider a mandatory relevant matter required under s 79C(1)(b) and s 79C(1)(c). [92]
14. In relation to the alleged failure to consider cll 30, 32, 33, 34 and 36 of the Seniors Policy, the primary judge concluded that cl 30, which deals with the requirements of a site analysis, had been addressed to the Council's satisfaction and that the Panel was so advised and was able to consider the large amount of material filed in support of the Stage 2 Development Application. [93]
15. The primary judge concluded that, to the extent that cl 32 of the Seniors Policy required the Panel to be satisfied that certain matters were taken into account by Living Choice, there was a failure in the consideration of the management of the development form along the Rossi Boundary, particularly at the western end. Her Honour considered that that followed from the failure to consider the need for retention fill, and the impact of that on the Rossi Land, a failure that arose because of the absence of any proposal for retention walls on or near the Rossi Boundary in the documents lodged by Living Choice. Therefore, her Honour held, the Panel could not be satisfied of consideration by Living Choice of the design principles in cl 33(c)(i) and cl 33(c)(ii), which required 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 landform. Her Honour therefore concluded that the Panel could not have been satisfied, as cl 32 required it to be, that adequate regard had been given by Living choice to the design principles identified in cll 33(a), 33(c) and 34(a). [94]
16. In relation to cl 36 of the Seniors Policy, the primary judge referred to evidence given by Mr Buckton that stormwater runoff from the Living Choice Land to the Rossi Land had been improved in circumstances where the villas and roads drained stormwater into a system that discharges into the Council's stormwater system. In the absence of specific criticisms of documents filed in support of the Stage 2 Development Application in relation to stormwater, her Honour did not consider that any failure was established in that regard. [95]
17. The primary judge concluded that there was a material failure in the exercise of statutory power by the Council, in its assessment of the Stage 2 Development Application, and by the Panel, in its determination of the Stage 2 Development Application by granting consent. [96] However, while her Honour subsequently canvassed whether that conclusion should lead to a declaration of invalidity, her Honour did not finally determine that matter in Judgment No. 3.

Issue 2: Whether the Stage 2 Consent Was Inoperative

(a) Validity of the Notification of 12 October 2010

1. In accordance with cl 13F(2)(d) of the Major Development Policy, the Council retained the function of notification of a determination of a development application. Mr Rossi asserted that the notification of 12 October 2010 sent by the Council was invalid because it was not in accordance with cl 100 of the Planning Regulation and s 81(1) of the Planning Act, in that it did not contain the conditions imposed by the Panel, but included general conditions, including condition C(3), which were not conditions imposed by the Panel. Further, Mr Rossi contended, the notification incorrectly identified the Council as having "determin[ed]" the Stage 2 Development Application and it did not contain the date on which the determination was made.
2. The primary judge observed that the function of the Council under cl 13F(2)(f) of the Major Development Policy was to issue a notice confirming a determination that had been made. Her Honour did not consider that the publication of a notice that incorrectly identified, in one location, the Council as the determining authority had the effect that the Council had exercised the determination power. Her Honour observed that the notice issued under s 81(1) does not itself constitute development consent. Accordingly, her Honour held, the additional conditions added by the Council could have no legal effect, since there was no power in the Council to issue conditions beyond those imposed by the Panel. The conditions lawfully imposed were those imposed by the Panel. Her Honour did not consider that the issuing of an inaccurate notice by the Council altered the legal position in relation to the conditions imposed on the development consent. [97]
3. The primary judge concluded that the Stage 2 Consent became operative because the notice satisfied the requirements of s 81(1) of the Planning Act and cl 100 of the Planning Regulation. The notice identified that the application had been granted, it contained the terms of the conditions on which the consent was granted, identified the date on which the determination was made, specified the date on which the development consent became operative, 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 Panel and conditions prescribed under s 80A(11) of the Planning Act. Her Honour did not consider that the fact that the notice identified the Council as the consent authority was of any moment because there was no statutory requirement to identify the entity that determined the development application. Further, her Honour considered that the words adverted to by Mr Rossi as indicating that the Council was the consent authority could equally be construed as advising that the Council was, pursuant to s 81 of the Planning Act, giving Mr Rossi notice of the determination. Her Honour concluded that the notice of 12 October 2010 was valid. [98]

(b) Validity of the Notification of 6 June 2012

1. The primary judge concluded that the second purported notice sent on 6 June 2012 was irrelevant, in the light of the conclusion that the first notice was valid. Her Honour therefore concluded that the Stage 2 Consent had commenced in accordance with the requirements of the Planning Act. [99]

Issue 3: Whether the Work Done by Living Choice on the Rossi Land Contravened s 76A of the Planning Act

1. Living Choice admitted that it had removed ten or so small pines from the Rossi Land. It asserted that Mr Rossi had consented to a temporary fence and, in any event, the temporary fence was removed promptly when he raised objection. Living Choice also admitted excavating a trench approximately 1,200 millimetres wide and 300 millimetres deep along the length of the Rossi Boundary, placing crushed aggregate in the trench and backfilling the trench on the Rossi Land with gravel and soil. The keystone concrete block wall is not on the Rossi Land, but it was constructed without development consent in circumstances where development consent was required, as Mr Rossi contended. Living Choice asserted that development consent was not needed for any of those works.
2. The primary judge found that the pine trees were in place when Mr Rossi purchased the Rossi Land in February 2009 and provided a screen of the Living Choice Land. It was common ground that pine trees on both sides of the Rossi Boundary had been removed by Living Choice in July 2011. The question was whether the removal of the pine trees required development consent and whether removal along the Rossi Boundary was authorised by the Stage 2 Consent. The primary judge concluded that the larger pines on the western end of the Rossi Boundary were removed without the necessary development consent. Her Honour did not consider that the evidence established that the smaller pines towards the eastern end of the Rossi Boundary were covered by the definition of "tree" in the relevant local environmental plan and, accordingly, their removal did not require development consent. [100]
3. The primary judge held that, in order to resolve whether the excavation and backfilling of the trench along the Rossi Boundary required development consent, it was necessary to determine whether the keystone concrete block wall was exempt development and therefore did not require development consent. Her Honour considered that, since the keystone block wall had been erected from late February 2012, it could not have been granted development consent, as the Retaining Walls Development Application had been refused at that stage. [101] Her Honour concluded that the keystone block wall was not exempt development and was built without the necessary development consent. [102]
4. The primary judge did not consider that the excavation and backfilling of the trench along the whole of the Rossi Boundary could be characterised as being de minimis, given the length of the Rossi Boundary and the extent of the work involved. Further, her Honour did not consider that that work could be regarded as ancillary to lawful development, given her conclusion that the keystone concrete block wall required development consent. [103]

Issue 4: The Validity of the Retaining Walls Consent

1. The primary judge observed that a major preliminary dispute between the parties concerned the subject matter of the Retaining Walls Consent. Her Honour said that the Retaining Walls Consent does not specify with great precision what was approved. The Council and Living Choice asserted that the curtain walls for villas 206 to 210 and landscaping on the battered slope between the curtain walls and the keystone concrete block wall on the Rossi Boundary were the subject of the consent. They accepted that the keystone concrete block wall was not the subject of the Retaining Walls Consent.
2. Mr Rossi contended that, in addition to the areas just mentioned, the Retaining Walls Consent related to the large amount of fill behind and in front of the curtain walls on which the slabs of the villa units and the villa units sit. Living Choice and the Council, on the other hand, did not accept that any fill was the subject of the Retaining Walls Consent.
3. The primary judge observed that neither Living Choice nor the Council considered that Living Choice was seeking consent for the fill behind and in front of the curtain walls. Accordingly, her Honour considered that there was no basis to infer that the Stage 2 Development Application and subsequent Stage 2 Consent applied to the areas of fill. [104]
4. The primary judge then observed that the curtain walls were already built by the time the Retaining Walls Consent was granted and the keystone concrete block wall on the Rossi Boundary was not the subject of any consent. Accordingly, the Retaining Walls Consent could only authorise the landscaping between the two. [105]
5. The primary judge concluded that, since the Major Development Policy did not apply to the Retaining Walls Development Application, the Council could determine it and had jurisdiction to grant consent, if the development was permissible. Her Honour observed that no mention was made of the Seniors Policy in the Council reports in the course of the assessment of the Retaining Walls Development Application and there was no explicit or implicit reference to the Seniors Policy by the Council in its consideration of the Retaining Walls Development Application. She said that there was no evidence of consideration by the Council of any of the matters identified in the Seniors Policy, such as cll 30 and 32, in relation to the Retaining Walls Consent. Ultimately, her Honour concluded that the Council purported to grant development consent to a development prohibited under the relevant local environmental plan and, therefore, the Retaining Walls Consent was invalid. [106] There is no challenge to that conclusion.

Declarations of Invalidity

1. After summarising her legal conclusions, [107] the primary judge considered competing discretionary considerations as to what relief should be granted in relation to those conclusions. Her Honour observed that the Court has power to make declarations of invalidity in respect of administrative decisions, but whether it does so is a discretionary matter. [108] Her Honour said, however, that she did not intend to make any declarations or orders before further consultation with the parties as to whether declarations and orders should be made and, if so, in what terms they should be made. Her Honour was mindful that only part of the Living Choice Land that is the subject of the Stage 2 Consent was relevant in the proceedings. Her Honour also adverted to the requirements of s 25E of the L & E Court Act that she consider making an order s 25B instead of declaring or determining that a development consent is invalid.
2. The primary judge considered that, having heard extensive evidence and submissions on matters relevant to the exercise of her discretion, she should make some findings relevant to the exercise of discretion against the possibility that she determined finally to make declarations. Her Honour accepted that close to the Rossi Boundary, with villas 206 to 210 located at an increasing elevation above the Rossi Land, the Development had a substantial impact on the amenity of the Rossi Land. Her Honour found that there was a substantial change from the previously rural outlook that the Development did not reflect. Her Honour considered that, because of the failure to consider matters that impacted on the Rossi Boundary in the Stage 2 Development Application assessment and determination process, there was considerable prejudice to Mr Rossi, which would be ongoing, if the Development remains as it is. Her Honour considered that that suggested that, in the absence of disentitling conduct, some relief should be granted to Mr Rossi. [109]
3. The primary judge then gave consideration to the question of whether demolition of the curtain walls and villa units was appropriate. After considering the question of delay in commencement of proceedings by Mr Rossi and the fact that no interlocutory relief had been sought by him, her Honour concluded that she would not exercise the discretion to require demolition of the curtain walls and villa units 206 to 210. [110] That left open the question of whether or not there should be declarations of invalidity in respect of the Stage 2 Consent. That question was dealt with in Judgment No. 4.
4. In Judgment No. 4, the primary judge recited that she had found that the Stage 2 Consent had been granted beyond power because of the failure to assess a mandatory relevant matter under s 79C of the Planning Act. Her Honour had also found that the Retaining Walls Consent was invalidly granted as the work proposed was prohibited in the rural zone and was not approved as ancillary to the Development, which was the subject of the Stage 2 Consent. [111] Her Honour observed that the making of a declaration in proceedings such as those before her was discretionary and must serve a practical purpose and accord with public policy. Her Honour said that a court should weigh the usefulness of the declaration for the claimant as against the inconvenience and embarrassment it may cause to a respondent, and whether the declaration is in the public interest. Her Honour found that the declaration that the Stage 2 Consent is void and of no effect would be likely to have most practical and financial inconvenience for Living Choice. Her Honour considered that a similar observation would apply to the Retaining Walls Consent, which must be weighed up with the importance of the enforcement of the integrity of the planning system in the Planning Act. [112]
5. The primary judge's conclusion on whether or not to make a declaration of invalidity in respect of the Stage 2 Consent was in the following terms: [113] Due to the link between the two consents it is appropriate to consider them together in assessing whether one or both should be declared void. […] The area in dispute in these proceedings is a relatively small part of the large area over which the development consent extends and is being constructed. I held there was a failure to consider at the time this development consent was granted by [the Panel] the retention of fill on or near the [Rossi Boundary]. I did not find, contrary to Mr Rossi's contentions, that the placement of fill close to the [Rossi Boundary] which results in the villas along that boundary, especially numbers 206-210, being elevated, was not assessed. The retention of this fill by high retaining walls on or close to the [Rossi Boundary] was the subject of the [Retaining Walls Consent] in its original form, which application was refused by the Council. The method of retention for that fill approved by the Council under a s 82A review by the time of the substantive hearing was by curtain walls under the proposed villas. The villas were constructed at the height identified in the plans submitted in support of [the Stage 2 Development Application] and approved by [the Panel]. I do not consider I should declare void [the Stage 2 Consent] as the substance of what was not assessed or approved by [the Panel] was the subject of [the Retaining Walls Consent], which ultimately dealt with landscaping on the [Rossi Boundary], inter alia. There is no utility served by declaring [the Stage 2 Consent] void.
6. The primary judge then turned her attention to the Retaining Walls Consent, which related to the Rossi Boundary and to work to be done on or near the Anderson Boundary. Her Honour observed that no issue had been raised about the validity of the Retaining Walls Consent in relation to the Anderson Boundary and that the basis for the finding of invalidity of the Retaining Walls Consent was that it gave consent to prohibited development in a rural zone, not as development ancillary to the Development. Her Honour concluded that there was utility in declaring that the Retaining Walls Consent was void and of no effect, to the extent that it relates to the Rossi Boundary. Her Honour held that the breach of the Planning Act established by Mr Rossi was more than technical and, in the circumstances, the treatment of the Rossi Boundary had to be revisited. [114]
7. The primary judge observed that Living Choice built most of the curtain walls under villa units 206 to 210 before the Retaining Walls Consent was granted. They therefore did not have development consent, regardless of her Honour's findings in relation to the Stage 2 Consent or the Retaining Walls Consent. Carrying out development without the required development consent is not lawful, and demolition orders would generally be a remedy available in such circumstances. However, her Honour had to consider whether an order should be made under s 25B of the L & E Court Act.
8. Her Honour referred to the Council's submission (adopted by Living Choice) that, if the Court concluded that any one of the challenges to validity were upheld, then the Court should exercise its discretion to suspend the operation of the Retaining Walls Consent and specify terms the compliance with which will validate the consent. Her Honour considered that a failure to consider a mandatory relevant matter under s 79C of the Planning Act presented practical problems in formulating an appropriate regime under s 25B of the L & E Court Act, since the failure went to the heart of the assessment process. Although the Retaining Walls Consent was not held to be invalid because of such a failure under s 79C, the assessment by the Council would have to be done in a similarly fundamental way because her Honour had held that it was invalidly granted under the relevant local environmental plan and was not approved as ancillary to the Stage 2 Development. Her Honour considered that the difficulty of framing effective orders was a reason not to make an order under s 25B. [115]
9. The primary judge then referred to her finding that the clearing of a large number of trees had occurred on the Rossi Boundary without development consent and that those trees should be replaced. Her Honour accepted that the Rossi Land suffers adverse amenity impacts as a result of what had been built close to the Rossi Boundary. Her Honour considered that the planting of established large trees along the entire Rossi Boundary was warranted and that that was likely to prevent the present boundary landscaping treatment approved under the Retaining Walls Consent remaining untouched. Her Honour also referred to the fact that the low keystone concrete block wall, together with the open powder-coated metal post fence on top, had been built without development consent. Her Honour concluded that the landscaping treatment on the Living Choice Land adjacent to the Rossi Boundary needed to be fundamentally reconsidered. Her Honour said that, as the parties chose not to bring any further landscaping plans before the Court, it was difficult to be more prescriptive on what should occur, such as, for example, the species of tree to be planted. [116] In those circumstances, her Honour did not consider that it was appropriate to make a s 25B order in relation to the Retaining Walls Consent.
10. However, her Honour concluded that it was appropriate to declare that the Retaining Walls Consent is void and of no effect in part, namely, in relation to the Rossi Boundary. Her Honour considered that the remainder of the consent could continue to authorise the balance of the work elsewhere on the Living Choice Land. [117] Her Honour provided draft orders to the parties to give effect to those conclusions.

Remedial Orders

1. Thereafter, the primary judge was presented with alternative and conflicting orders in the course of lengthy directions hearings. In Judgment No. 5, her Honour adverted to the difficulty in finalising orders in the absence of properly adduced evidence and the difficulty in assessing material relied on by the parties. [118] Her Honour observed that the parties agreed that orders should be made requiring Living Choice to remove the keystone concrete block wall on the Rossi Boundary.
2. Living Choice proposed a landscaping scheme, prepared by a landscape architect, which was to take place on its land along the Rossi Boundary at its expense. The proposal included a detailed landscape plan and work method statement that set out the work to be done over a three and a half month period. Her Honour considered that the level of certainty and clarity contained in those materials was highly desirable. Her Honour therefore made the orders of 25 November 2013.

Issues in the Appeal

1. Mr Rossi appeals as of right under s 58 of the L & E Court Act, having filed a notice of intention to appeal, which was served on Living Choice and the Council on 5 December 2013. Mr Rossi's amended notice of appeal filed on 24 November 2014 relies on eight grounds, two of which relate to the costs orders made on 20 August 2014. Living Choice filed a notice of contention on 4 March 2015 and also seeks leave to file a cross-appeal. The cross-appeal raises the same grounds as those raised in the notice of contention and contains two grounds relating to costs. The Council also seeks leave to file a cross-appeal. Its amended notice of cross-appeal of 12 February 2015 relies on three substantive grounds and a ground relating to costs.
2. The grounds relating to costs could fall away depending upon the outcome of the substantive grounds in Mr Rossi's appeal, the notice of contention and the two cross-appeals. It is therefore desirable to deal with the substantive grounds first. It may be that further submissions as to costs will be required depending upon the conclusions reached in relation to the substantive grounds.
3. Senior counsel for Living Choice formulated issues for determination by this Court. The other parties were invited to comment on that formulation but no comment has been received. Accordingly, the Court has proceeded on the basis that the formulation is accepted by all parties. The issues raised by the substantive grounds of appeal may therefore be summarised as follows: 1. Whether the primary judge erred in finding that the Council's assessment function was amenable to judicial review, such that an error made by the Council in the assessment process could invalidate consent granted by the Panel (Council cross-appeal, ground 1); 2. Whether the primary judge's factual finding that the Council had assessed the fill intended to be placed in order to locate villas 204 to 210 at certain levels was not open, wrong or contrary to the evidence (Rossi appeal, ground 3); 3. Whether the primary judge erred in finding that the development approved by the Stage 2 Consent included the retention of fill by retaining walls on or near the Rossi Boundary (Living Choice contention and cross-appeal, ground 1; Council cross-appeal, ground 2); 4. Whether the primary judge erred in finding that the assessment of the impacts of the retention of fill on the Rossi Boundary was a mandatory relevant consideration under s 79C for the purposes of the Council's assessment and the Panel's determination (Living Choice contention and cross-appeal ground 2(a); Council cross-appeal, ground 2(a)); 5. Whether the primary judge erred in finding that s 79C(1)(b) and s 79C(1)(c) had been breached by the Council in its assessment and the Panel in its determination, in failing to consider the retention of fill and the impacts of the retention of fill along the Rossi Boundary (Living Choice contention and cross-appeal, ground 2(b); Council cross-appeal, ground 2(b)); 6. Whether the primary judge erred in finding a breach of s 79C by the Panel in its determination on the basis that the Panel could not have been satisfied in accordance with cll 33, 34 and 36 of the Seniors Policy as required by cl 32 of the Seniors Policy (Living Choice contention and cross-appeal, grounds 2(c), 2(d) and 2(e)); 7. Whether the primary judge erred in failing to find that the rule in Browne v Dunn precluded Mr Rossi from making any submissions that the Council had breached s 79C in its assessment of the Stage 2 Development Application (Council appeal, ground 3); 8. Whether the primary judge erred in the factual finding that stormwater had been assessed by the Council and the Panel (Rossi appeal, ground 4); 9. Whether the primary judge erred in law in failing to make a declaration that the Stage 2 Consent was invalid and of no effect (Rossi appeal, ground 1); 10. Whether the primary judge erred in law in failing to find that the notices of determination dated 12 October 2010 and 6 June 2012 relating to the Stage 2 Consent were invalid (Rossi appeal, ground 2); 11. Whether the primary judge erred in the exercise of her discretion under s 124 in failing to make orders requiring Living Choice to pay compensation to Mr Rossi or carry out landscaping on the Rossi Land (Rossi appeal, ground 5); 12. Whether the primary judge erred in adopting Living Choice's landscaping scheme and making a finding based on that scheme, which was not in evidence before her Honour (Rossi appeal, ground 6).
4. It is convenient to deal with most of those issues separately. However, there is considerable overlap in issues (4), (5) and (6) and in issues (11) and (12). Those groups of issues will be addressed together.

Issue 1: The Council's Assessment Function and Judicial Review

Submissions

1. Several questions concerning the effect of the statutory framework arise in the present proceedings. Thus, the bifurcation of functions involved in the grant of development consent, which is created by the Major Development Policy, raises questions as to the respective parts played by the Council and the Panel in the assessment of the Stage 2 Development Application.
2. Where, as in the present case, a regional panel is the consent authority, the officers of the relevant council would be involved in the preparation of reports for the regional panel and briefings to the regional panel with recommendations as to whether a development application should be the subject of a grant of consent or refusal of consent, or the grant of consent on conditions. The process of assessment, as it appears to be contemplated by the Major Development Policy, would include the preparation of reports for the regional panel, as well as the making of a recommendation to the regional panel. That process of assessment is to be carried out by the relevant council. Assessment involves the examination of a development application and the materials lodged in support of it in order to ascertain whether the application is complete and contains all of the information required by the Planning Act, the Planning Regulation and any relevant planning instrument.
3. In the present case, different planning officers of the Council with expertise in engineering, arboriculture, fire and waste management were involved in the assessment of the Stage 2 Development Application. The assessment process took in excess of a year and significant numbers of documents were considered. The final assessment report prepared for the Panel was not the only document that constituted assessment by the Council of the Stage 2 Development Application. In the course of the process, large numbers of plans, including site plans, cross-sections, contour plans, architectural plans, earthworks plans and the like, were considered by the Council's officers, including those briefly described above.
4. The Council contends, however, that the mere reference in cl 13F of the Major Development Policy to the "assessment" of development applications is not sufficient to impose a freestanding statutory duty on a council, in the absence of such a duty being imposed by the Planning Act or the Planning Regulation. The Council says that the terms of cl 13F(1) make it clear that the Council had no statutory role in relation to the determination of the Stage 2 Development Application and that the consideration of relevant matters under s 79C of the Planning Act was exclusively within the province of the Panel. Thus, s 79C requires the consent authority to take into consideration certain matters in determining a development application and the function to be performed under s 79C is reserved to the Panel exclusively, under cl 13F(1).
5. The Council does not accept that assessment by it of the Stage 2 Development Application was a precondition to the validity of the determination by the Panel. The Council emphasises that the sole basis upon which the primary judge found against the Council was the breach of s 79C(1)(b) and s 79C(1)(c) of the Planning Act, by failing to assess the retention of fill on the Rossi Boundary, the visual impact of retention methods and the overlooking impacts of the Development. It points out that the L & E Court's jurisdiction was confined to proceedings for orders to remedy or restrain a breach of the Planning Act and the only provision found to have been breached was s 79C. By its terms, s 79C required the consent authority, namely, the Panel, to take into consideration certain matters "in determining" a development application. The Council says that it could not have breached s 79C, as it did not determine the Stage 2 Development Application. Rather, that function was expressly reserved to the Panel. Hence, the Council says, no relief could be granted by the L & E Court in relation to any alleged failure in the assessment process by the Council.
6. The Council contends that, under the statutory scheme, it was the Panel, not it, that had the statutory duty to determine the Stage 2 Development Application, as well as to perform all of its functions under Div 2 of Pt 4 of the Planning Act, including under s 79C and s 80. The Panel was the sole repository of those functions to the exclusion of the Council and the Council's only relevant role was in relation to the "assessment" of the Stage 2 Development Application. The statutory scheme allocates steps separately to a regional panel and a council. Thus, under s 23G(2)(a) of the Planning Act, the Panel had, relevantly, such of the Council's consent authority functions as are conferred on it by the Major Development Policy and the Seniors Policy. Under s 23G(5A), the Panel, in the exercise of functions so conferred, is taken to be the Council and, under s 23G(5B), the Panel was to exercise those functions "to the exclusion of" the Council. Therefore, the Council contends, the primary judge erred in finding that its "assessment" function in relation to the Stage 2 Development Application was amenable to judicial review and in concluding that an error made by the Council in the "assessment" process could invalidate a consent granted by the Panel.
7. The Council contends that it follows from the provisions of cl 123E(1) of the Planning Regulation and cl 13F of the Major Development Policy [119] that the Panel need not accept its assessment and, ultimately, may base its determination on its own evaluation, having regard to the provisions of cl 123E(1) of the Planning Regulation. In those circumstances, the Council contends, an assessment by the Council that complies with s 79C could not be said to be a condition precedent to the valid determination of a development application by the Panel. It contends that, even if the Council made legal errors in its assessment of the Stage 2 Development Application, but the Panel did not make any such error in its determination, then the L & E Court could not, as a matter of law, declare that the Stage 2 Consent was invalid, since any error that might have been made by the Council could not ultimately have been material to the determination by the Panel.
8. Accordingly, the Council says, whether or not it took into consideration mandatory relevant considerations in the formulation of its assessment report or otherwise was irrelevant and, in the absence of any specific relief being sought against the Council, the proceedings should have been dismissed as against the Council. That would have consequences in terms of the costs orders made by the primary judge.
9. Living Choice says that, while the decision maker was the Panel, not the Council, before the determination of a development application can lawfully be made by the Panel, the Council must first undertake the assessment of the development application. That is so even though the nature of a council's "assessment" is undefined in the Planning Act, and no such function is located in the Planning Act. However, it says, although the process of determination is bifurcated, the process is intended to be seamless. Thus, it contends, a failure to advert to a mandatory matter at an earlier stage can be cured by later advertence to that matter. Accordingly, even if assessment of the Stage 2 Development Application by the Council was a condition precedent to a lawful determination by the Panel, it does not necessarily follow that an omission by the Council cannot be cured by the Panel. Living Choice says that the bifurcation does no more than allocate the exercise of an existing power to different bodies and did not alter the nature of the power itself.
10. The statutory scheme does not affect the decision making function, but simply locates the function in different bodies according to the progress of the development application. Living Choice accepts that assessment by the Council was a precondition to the Panel's determination. However, it says, the precondition did not require consideration by the Council of each mandatory relevant matter that must be considered by the consent authority when determining a development application. It says that the Council's function was only to "assess" the Stage 2 Development Application, not to second-guess the Panel's determination of it. So long as the Council performed an assessment, its function was performed.
11. While Living Choice accepts that there must be a real attempt by the Council to undertake the function of assessment, it says that a defect in the assessment has no legal consequences if the assessment is not adopted by the Panel, as decision maker, or the defect is later cured by the Panel, decision maker. Thus, Living Choice says, no legal consequences follow if the Panel remedied an omission on the part of the Council in carrying out the assessment function. It contends that her Honour erred in finding that s 79C bound the Council to assess each and every factor that the Panel must take into account in determining a development application and that invalidity was the consequence of an assessment that failed to do so. The question for judicial review, it says, is whether the Panel, as the consent authority by reason of cl 13F(3) of the Major Development Policy, failed to take into consideration mandatory relevant matters and, if the power to grant consent was conditioned on satisfaction of a matter, such as cl 32 of the Seniors Policy, whether there was a failure to be satisfied as to that matter.
12. Living Choice contends that, in the absence of any statutory indication as to the content of the assessment obligation, it is a matter for the relevant council to determine what it assesses and the intensity of that assessment. It says that, where the statutory scheme gives no indication as to what constitutes "assessment" (as is the case here), an evaluative judgment is required as to the content and extent of any assessment, such that the conduct of the assessment was a matter for the subjective judgment of the relevant council. It says that, whether the Council's opinion was correct or incorrect, its opinion is irrelevant. It is a matter for the Council to determine how it should carry out its assessment and, once it was satisfied that the Stage 2 Development Application was compliant, that duty had been discharged. Under cl 123E of the Planning Regulation, a regional panel could reject the assessment, request the relevant council to complete it, undertake a different assessment or obtain its own assessment. The existence of the power for a regional panel to obtain its own assessment, Living Choice says, indicates that invalidity was not the direct consequence of an inadequate assessment by the relevant council. Rather, it was for the regional panel to obtain an additional assessment or other technical advice. Living Choice contends that a regional panel would be in a better position to evaluate a council's assessment, to identify its deficiencies and determine whether it was necessary to obtain a better assessment, than would the L & E Court on judicial review.
13. Living Choice contends that the Council was a necessary party to the proceedings. That has consequences in relation to the orders for costs that are the subject of the cross-appeals. It says that, in circumstances where (in its submission) the bifurcation of the consent process did not alter the nature of the power of consent, but merely the identity of the repositories of the power at various stages in the exercise of the power, the Council was a proper party even if no allegation of breach was made directly against it.
14. Mr Rossi contends that, since Living Choice was a proper contradictor, the Council ought to have filed a submitting appearance. It chose not to do so and participated fully in the proceedings, save as to leading evidence with regard to the exercise of discretion by the L & E Court, once error was established.
15. Mr Rossi contends that the function of assessment is properly characterised as a statutory function or duty, the performance of which is a precondition to the determination of a development application. Clause 13F of the Major Development Policy removes the function of determination from the relevant council and gives that function to a regional panel, to the exclusion of the relevant council. However, it does not remove the statutory function of assessment from the relevant council. Under the statutory scheme, the assessment and the determination are separate functions, performed by different bodies. Accordingly, where an error in the assessment process can be shown to have a material effect on the decision, both the assessment and the ultimate determination are reviewable.
16. Mr Rossi contends that the fact that a regional panel could, in exercising its determination function, decide not to follow a council's assessment does not render the council's assessment function inoperative. The legal consequence of a challenge to an assessment by a council that was immaterial to a regional panel's determination may sound in the ultimate relief awarded, assuming a breach of s 79C of the Planning Act were established, but it would not remove the obligation to perform the function, and thus the entitlement to challenge the relevant council's function of assessment.
17. Mr Rossi contends that, in the present circumstances, the Council remained the public body exercising the public power expressly allocated to it under the statutory scheme and that its obligation, in conducting its assessment, was to comply with s 79C of the Planning Act. He says that failure to do so was a jurisdictional error by virtue of the express language of s 79C and, in circumstances where the bifurcated decision making process is set out in the statutory scheme, the Council's assessment function was therefore amenable to judicial review.
18. Mr Rossi asserts that the Panel both accepted and relied upon the Council's assessment report: it did not obtain any other assessment report. Even if the Panel had obtained another assessment report, Mr Rossi observes that cl 123E of the Planning Regulation describes such a report as being "in addition to", not "in substitution for", the Council's assessment report. Therefore, he says, the Council's assessment was material to the Panel's decision and the fact that the Panel may hypothetically have been able to conduct its own assessment and disregard the entirety of the contents of the Council's assessment is not to the point.
19. The primary judge found that there was no basis to infer that the expertise of the members of the Panel would have allowed them to assess the matters about which Mr Rossi complains (that is, the absence of consideration of fill retention and overlooking impacts, being amenity impacts at the Rossi Boundary), since it was not drawn to their attention and it was not apparent from the documentation. [120] Mr Rossi says that the Panel knew only the facts to which attention was drawn in the Council's assessment report. That report, he says, was vitiated by jurisdictional error and, because the Panel's determination relied on that assessment, which failed to draw the Panel's attention to the matters about which Mr Rossi complains (which s 79C of the Planning Act required it to consider), therefore the Panel's decision was also vitiated by jurisdictional error.

Consideration

1. Clearly enough, the statutory scheme lays down a single process. Where a council is the consent authority, and an officer of the council carries out an assessment of a development application before a determination is made by the council, there is but one process. In such a case, where an officer of a council assesses an application and the council then determines it, an omission by an officer to consider a mandatory matter will be relevant only if the assessment is adopted by the council. In such a case, the omission by the officer may be evidence from which an inference can be drawn that the council did not take that omitted matter into account. In such a case, the officer of the council would not be performing a separate statutory function. Rather, the officer would simply be the agent or means by which the council exercised the function of assessment. Where the Major Development Policy applies, however, different statutory functions are being exercised by the council and the regional panel.
2. In a sense, it is correct to say that the function of assessing a development application is not a matter that is open to judicial review because it has no juridical consequences of its own. However, if a proper assessment has not been carried out in connection with a development application, then there will be a defect in the process of determining that development application, whether the determination is made by a council or by a regional panel.
3. If the determination by the Panel of the Stage 2 Development Application relied upon the assessment by the Council, albeit that the Panel could have called for a further assessment or further information, then there will be a defect in the determination by the Panel. The real question is whether or not, in the present case, there is any basis for concluding that the Panel did not rely on the assessment carried out by the Council, through its officer, Mr Buckham.
4. Mr Rossi did not seek any relief in relation to the assessment by the Council of the Stage 2 Development Application. He sought relief in relation to the determination of the Stage 2 Development Application. In the ordinary case where a council remained the consent authority and the process of determination was impugned in some way, it would not be necessary for a council officer who conducted the assessment to be joined as a party to proceedings seeking to impugn the determination. Notwithstanding the statutory bifurcation of the approval process, the present position cannot be distinguished from the ordinary position. Where a council performs a statutory function in the assessment of a development application, a defect in the performance of that function may vitiate the ultimate determination by a regional panel. However, that does not render the assessment process subject to judicial review where the assessment process, of itself, has no juridical consequence.
5. That is to say, at the point of completion of assessment of a development application by a council, no relevant consequence flows, just as no relevant consequence would flow where officers of a council assessed a development application for a council that remained the consent authority. While the primary judge found that the Panel chose not to exercise its power to require further steps to be taken in the assessment process, it could have done so. No consequence flowed from the making of the recommendation by the officers of the Council until the Panel determined the Stage 2 Development Application by granting the Stage 2 Consent.
6. Living Choice was a committed contradictor of the allegations made by Mr Rossi. In so far as Mr Rossi sought to impugn the determination by the Panel to grant the Stage 2 Consent, by reason of defective performance of the function of assessment of the Stage 2 Development Application by the Council, the Panel, as the consent authority that made the impugned determination, was a necessary party to the proceedings. However, the Panel quite properly submitted and played no part in the proceedings. To the extent that the Council had an interest in, and was affected by, the declarations sought by Mr Rossi that the notices of determination relating to the Stage 2 Consent were invalid, [121] the Council was also a necessary party to the proceedings. Nevertheless, having regard to the position taken by Living Choice, there is good reason to conclude that, while properly joined, the Council should have submitted to such order as the L & E Court was minded to make in relation to the impugning of the Stage 2 Consent and should have played no substantive part in that aspect of the proceedings. That conclusion will have consequences in relation to the dispute about costs of the proceedings in the L & E Court.

Submissions

1. The primary judge concluded that the method of retention of fill, being retaining walls, and the impact of the retaining walls on the Rossi Land, were not considered by the Council in the process of assessment. However, in relation to the actual location and volume of fill, her Honour referred to plans that were before the Council, which showed the proposed final floor levels and the height of the Living Choice Land at points along the Rossi Boundary, including at the western end of the Rossi Boundary. Her Honour referred to the fact that additional details of the intended fill were sought by the Council's engineer and found that the earthworks plan provided by Living Choice to the Council showed fill across the whole of the seven hectares of the Living Choice Land. Her Honour said that it was difficult to conclude, in those circumstances, that there was no assessment by the Council of the fill intended to be placed in order to locate villa units 204 to 210 at certain levels. Her Honour observed that no issue was identified by the Council to the Panel in relation to the proposed finished floor levels, thereby suggesting that they were considered satisfactory. [122]
2. Mr Rossi contends that the finding that the Council had assessed the fill intended to be placed was not open on the evidence, was contrary to the evidence and was therefore wrong. He says that there was no basis for an inference to be drawn, from the fact that no issue had been identified by the Council to the Panel, that the finished floor levels were considered satisfactory. Rather, he says, such an inference was contrary to the evidence and the logical inference that ought to have been drawn, from the lack of any issue identified by the Council to the Panel, was that the Council was not aware of, and therefore had not considered, the fact that the height of the villa units along the Rossi Boundary was significantly above the natural ground level of the Rossi Land.
3. Mr Rossi contends that the 2009 SEE did not disclose that Living Choice was proposing to fill or use retaining walls to support the villa units along the Rossi Boundary. The 2009 SEE contained no mention of the word "fill". Rather, it stated that the Development would have "minimal impact on the visual and acoustic privacy of surrounding residences" and that the proposed buildings were afforded "generous setback to boundaries, mitigating visual and acoustic privacy constraints".
4. Mr Rossi points out that the plans supplied with the Stage 2 Development Application showed extensive retaining walls along other boundaries of the Living Choice Land, such as Holland Road and Glenhaven Road, but did not show retaining walls on the Rossi Boundary. He says that the natural inference to be drawn was that there would be retention of land along the Holland Road and Glenhaven Road boundaries, but that there was no need for retention along the Rossi Boundary.
5. Further, Mr Rossi says, the plans included an elevation cross-section that ran through the Rossi Boundary, showing the development at grade with the Living Choice Land along the Rossi Boundary. The contour site plan similarly did not carry the contours across into the Rossi Land so as to give any adequate indication that the Development was anything other than at grade along the Rossi Boundary. Further, the earthworks plan showed the finished floor levels of the villa units along the Rossi Boundary, but was not accompanied by transect plans and omitted levels of the Rossi Land. Accordingly, no indication was given that Living Choice proposed that there would be a major change in height between the Rossi Land and the villa units near the Rossi Boundary.
6. Mr Rossi places great store on the letters from Mr Buckham, of October and November 2011, when he said that the original approval had been supported by the staff of the Council on the basis that the impact on neighbours was minimised and that the Development's finished ground level was graded to finish at natural ground level on the Rossi Boundary. Mr Buckham said that the plans submitted did not convey Living Choice's intended outcome along the Rossi Boundary and were therefore "considered misleading". Mr Rossi contends that that is clear evidence that the Council was not aware of, and therefore did not assess, Living Choice's intention to construct villa units close to the Rossi Boundary at a height significantly above the level of the Rossi Land. He says that, in the light of that evidence, no inference could be drawn from the silence of the Council's assessment officer on that question in his report to the Panel that the Council had assessed the impact of the villa units on the Rossi Boundary being elevated above the level of the Rossi Land.
7. Mr Rossi asserts that there was no evidence that Mr Buckham ever engaged in the requisite active intellectual process. Rather, he says, the evidence was to the effect that Mr Buckham misunderstood or was misled as to what was intended concerning height along the Rossi Boundary. Therefore, he says, Mr Buckham failed to consider a mandatory relevant consideration in preparing his assessment report.
8. The Council emphasises that the onus of establishing that the Council and the Panel did not assess the location and the volume of fill to be placed on the Living Choice Land lay with Mr Rossi. Mr Rossi did not request a statement of reasons from the Panel and did not cross-examine Mr Buckham, notwithstanding that he was called to give evidence. The Council contends that the documents in evidence identified the placement and volume of fill along the Rossi Boundary and the environmental impact of the placement of fill. Both Living Choice and the Council provided the primary judge with tables identifying where, in the evidence, the assessment of the environmental impact of the placement of fill had taken place. Most of the materials identified by the Council are dealt with above.
9. Living Choice also emphasises that the onus of showing that the Council and the Panel failed to consider a particular matter is on Mr Rossi. Living Choice emphasises that Mr Rossi took no forensic steps to establish the considerations that were taken into account, or not as the case may be, by the Council and the Panel. Living Choice says that the question is whether Mr Rossi had discharged the onus of proving that the relevant matter had not been assessed.
10. The Council asserts that the evidence showed that, contrary to Mr Rossi's focus on Mr Buckham, there were in fact several officers of the Council who had participated in the assessment of the Stage 2 Development Application, including officers in the Council's engineering department who identified "excessive earthworks … particularly along the site boundaries". That resulted in the Council's engineering department requesting a further earthworks plan from Living Choice, which was provided and which identified the fill that was intended to be placed across the whole of the Living Choice Land. The Council contends that the primary judge correctly found that the statements relied on by Mr Rossi related to retaining walls and not to the placement and volume of fill. It says that there was ample evidence from the primary judge to conclude that the Council had assessed the placement and volume of fill and the environmental impacts of the placement and volume of fill.
11. Living Choice contends that Mr Buckham's correspondence of October and November 2011 [123] is premised on there being a height transition, which was modulated by high retaining walls, rather than battering to grade. In his letter, Mr Buckham said that the original approval had been supported by the Council's staff "on the basis that impact on neighbours was minimised and the [Development's] finished ground level was graded to finish at natural ground level on the [Rossi Boundary]". Living Choice says that the reference to "finished ground" level should be understood as a reference to the finished floor levels, which were disclosed on numerous plans that were assessed by the Council and were before the Panel. It says that the need to grade to existing ground level on the Rossi Boundary arose because the finished floor level of certain of the villa units was at a higher level, supported at least partly on fill. Some villa units were in cut and others had foundations on piers.
12. Mr Rossi responds that the Council cannot rely on participation by "a number of Council officers" to establish that active consideration of the placement and volume of fill had been drawn to the attention of the Panel in circumstances where Mr Buckham, who had signed off on the assessment, wrote letters to Living Choice stating the opposite. He contends that the Council's assessment report was the best evidence of what was assessed and that Living Choice had failed to make available adequate material to enable the Council's officers to conduct the assessment, with the consequent lack of any reference to the relevant matter in the assessment report. He says that not only did the assessment report fail to record any assessment on the relevant matter, but Mr Buckham expressly said that he did not consider the matter. Therefore, he says, the primary judge correctly held that there was no other evidence from which it could be inferred that the matter of the volume and placement of fill came to the Panel's attention. However, the holding to which Mr Rossi referred [124] was concerned with "fill retention" and not the volume and placement of fill.

Consideration

1. The question of whether the primary judge erred in concluding that the Council had assessed the question of fill really turns on the determination of the next issue, namely, whether the Stage 2 Consent actually included retention of fill along the Rossi Boundary. As will become apparent, there was very little fill placed along the Rossi Boundary. To the extent that fill was placed, I do not consider that Mr Rossi has demonstrated that the Council failed to assess the impact of any fill that was actually placed. While Mr Buckham may have misunderstood what was proposed and therefore did not assess the impact of the height of the villa units above the natural ground level along the Rossi Boundary, there was no error on the part of the primary judge in concluding that, to the extent that there was fill, its impact had been assessed.

Issue 3: Whether the Stage 2 Consent Included the Retention of Fill by Retaining Walls on the Rossi Boundary

Submissions

1. The primary judge accepted that the statements made by Mr Buckham, in his letter of 12 October 2011 and in his assessment report relating to the first version of the Retaining Walls Development Application, were relevant to illustrate his state of mind at the time he was undertaking the assessment of the Stage 2 Development Application, notwithstanding that they were made some time after the assessment process had been completed. Those statements, her Honour found, suggested that Mr Buckham, as the assessment officer, did not appreciate that retaining walls were intended on or near the Rossi Boundary but understood that the villa units would be "slab on ground". [125]
2. Living Choice contends that the Stage 2 Development Application did not relate to, and therefore the Stage 2 Consent did not approve, high retaining walls on the Rossi Boundary or the retention of fill on the Rossi Boundary. Rather, it says, since no application was made for retaining walls, it was not necessary to consider the potential impact of retaining walls on the Rossi Land. Secondly, in anticipation of an argument that there was an obligation to consider those matters even in the absence of an application to provide them (since the Development could not be constructed without the retention of fill or high retaining walls), Living Choice says that the Development was in fact constructed without retention of fill by high retaining walls on or near the Rossi Boundary. Therefore, it says, there was no need to consider whether the Stage 2 Development Application was deficient in failing to disclose or describe either of those matters.
3. The primary judge held that there was a breach of s 79C(1)(b) and s 79C(1)(c) of the Planning Act in so far as both the Council and the Panel failed to take into consideration the retention of fill on the Rossi Boundary. [126] Her Honour also held that, in breach of s 79C(1)(a), the Panel failed to be satisfied that adequate regard had been paid to the design principles in the Seniors Policy concerning neighbourhood amenity, spatial arrangements and visual and acoustic privacy, as required by cll 32, 33(c)(i), 33(c)(ii) and 34. [127] Her Honour concluded that, as a consequence, there had been a material failure in the exercise of the statutory power by both the Council and the Panel. [128]
4. Living Choice characterises Mr Rossi's case at the trial as being that there had been a failure to consider the Seniors Policy in breach of s 79C(1)(a), not whether the Panel had complied with its obligations under the Seniors Policy. It contends that Mr Rossi had to establish that the Panel had failed to consider the Seniors Policy. Living Choice says that the issue is whether Mr Rossi had proved that the Panel did not comply with its obligations under cl 32 of the Seniors Policy not to grant consent unless it was satisfied that the proposed development demonstrated that adequate regard had been given to the principles set out in cll 33, 34 and 36 of the Seniors Policy.
5. Living Choice contends that the Seniors Policy simply imposed an obligation on an applicant for development consent to design its proposed development in accordance with the design principles stated in cll 33-39 of the Seniors Policy. The role of the consent authority, it said, was to ensure that "adequate regard" had been given to those principles by the applicant (per cl 32). It says that no obligation is imposed on a developer to actually apply the principles. It contends that no obligation is imposed on the consent authority to apply the design principles in determining a development application and that a departure from any of them in the design of a development cannot, in and of itself, amount to a contravention of the Planning Act by the consent authority.
6. Living Choice contends that each finding of a breach of s 79C of the Planning Act depended upon the premise that there had been a failure to consider the retention of fill on the Rossi Boundary and, in turn, on the further premise that, under the Development, fill would be retained on the Rossi Boundary at the western end by retaining walls in excess of three metres high. Living Choice asserts that both premises are false.
7. The primary judge held that the Panel, as the consent authority performing the function of determination for the Stage 2 Development Application, must not consent unless satisfied that the proposed development demonstrated that adequate regard had been given to the design principles in Div 2 of the Seniors Policy. Those design principles are not freestanding mandatory considerations for the consent authority under s 79C. Rather, the Panel simply had to be satisfied that Living Choice had given "adequate regard" to the design principles. There was no requirement that the Panel itself had to consider the design principles as mandatory relevant considerations in its own determination. [129]
8. The final report of the Council to the Panel referred to satisfaction of cl 32 and the design principles. The primary judge found that the lengthy assessment process demonstrated that the particular design principles had been addressed and that much of the material before the Council, and ultimately before the Panel, properly addressed the design guidelines in the Seniors Policy. However, her Honour considered that there was difficulty in marrying the specific assessment requirements that underpinned Mr Rossi's case with the broader obligations for assessment identified in cl 32 of the Seniors Policy. Her Honour observed that the Rossi Boundary was only part of a much larger development site that was the subject of the Stage 2 Development Application. Her Honour then referred to the finding that she had made that there was a failure to consider the need for retention of fill and its impact on the Rossi Land, which were mandatory relevant considerations, a failure that arose because of the absence of any proposal for retention walls on or near the Rossi Boundary in the documents lodged by Living Choice in support of the Stage 2 Development Application. [130]
9. The primary judge concluded that, to the extent that cl 32 of the Seniors Policy required the Panel to be satisfied that certain matters had been taken into account by Living Choice, there was a failure to consider the management of the Development along the Rossi Boundary, particularly at the western end. Therefore, the Panel could not have been satisfied that Living Choice had considered the design principles in cl 33(c)(i) and cl 33(c)(ii) in relation to that area. Her Honour therefore concluded that there was a demonstrated failure in relation to the consideration by Living Choice of the impact on the Rossi Boundary in the context of the design principles. [131]
10. Living Choice contends, however, that the reason why the retention of fill on the western part of the Rossi Boundary was not considered by the Council or the Panel was because no retention of fill at that point was proposed. It says that, if no fill was proposed, then there was no occasion for the decision maker to consider it. It says that the primary judge confused the objective characteristics of the Stage 2 Development Application and the Stage 2 Consent, which did not seek and did not authorise the construction of retaining walls on the Rossi Boundary, with the subjective intention of Living Choice, at one time, to construct high retaining walls. Living Choice contends that, while that may have been its subjective intention in 2011 and the early part of 2012, that intention could not have affected the proper construction of the Stage 2 Development Application, lodged in 2009, or the Stage 2 Consent, granted in 2010.
11. A development consent is, in a sense, a right in rem, in that it has an enduring function and is required and intended to operate in accordance with its own terms. It is not personal to the applicant, but inures for the benefit of subsequent owners and occupiers of the land to which it relates. Therefore, a development consent must be construed objectively, without regard to any subjective intention, and its meaning must be determined objectively, having regard to matters that do not focus on the circumstances in which the consent was granted. [132]
12. Living Choice contends that the findings of the primary judge are consistent with retaining walls not having been proposed in the supporting documents submitted with the Stage 2 Development Application. Mr Buckham was, in fact, correct in thinking that there had been no assessment of high retaining walls on the Rossi Boundary. However, he was wrong in thinking that any such walls had been proposed or were necessary. Therefore, Living Choice contends, Mr Buckham's failure to consider the retention of fill does not support Mr Rossi's case. Rather, when placed in context, it demonstrates that proper consideration was given to the treatment of the Rossi Boundary that was actually proposed in the Stage 2 Development Application, which was embodied in the Stage 2 Consent. It says that, where it intended to construct retaining walls, the site plans said so, and the failure to show retaining walls on the Rossi Boundary was intentional, in the objective sense, because no such walls were then proposed there.
13. Living Choice contends that no case was ever mounted by Mr Rossi that there was a failure to consider the necessity for retaining walls and it is now too late to reconstruct such a case. In any event, it says, such a case would fail because evidence elicited in cross-examination of Living Choice's construction personnel demonstrated that no high wall to retain fill was in fact necessary and that none had been constructed.
14. Further, Living Choice contends, the statement by the primary judge that "the curtain walls supporting the villa units were not the subject of [the Stage 2 Consent], and were built without development consent", [133] is incorrect. Living Choice asserts that the walls do not support the villa units because they were not structural and the villas are constructed on their own foundations. It says that the curtain walls were the subject of consent because they were constructed in accordance with the construction certificate plans, which formed part of the Consent. Mr Rossi did not ask for the construction certificate to be set aside and such an order could not have been made unless the Stage 2 Consent itself had been set aside, which it was not..
15. Mr Buckton, Living Choice's national construction manager, gave evidence that villa units 204 to 210, on the Rossi Boundary, were built on pile-driven foundations and only shallow compacted fill of about half a metre deep was required for the bases. He said that the cut and fill for those villa units was consistent with the approved development and the construction certificate plans and that the villa units were not built on retaining walls, but were constructed on slabs with down-turned beam ends. He said that both the footings and the curtain walls, which were part of the brick work of some of the villa units, were consistent with the construction certificate plans and the Stage 2 Consent. Mr Buckton asserted that none of the villa units on the Rossi Boundary was constructed on fill.
16. Living Choice also contended that the keystone concrete block wall had been constructed on the Rossi Boundary, to retain the soil for landscaping between the villa units and the Rossi Boundary, on the mistaken assumption that the keystone block wall was exempt development, and therefore did not require development consent. It contended that the keystone block wall could not possibly have caused the kind of visual, privacy and overlooking impacts that the primary judge found would have been caused by a 3 metre-high wall. Thus, the keystone block wall was not the "retaining walls" referred to by her Honour.
17. Mr Buckton denied that the keystone concrete block wall was the retaining wall proposed by Living Choice in 2011. He explained that, while, in 2011, the preference of Living Choice had been to build a retaining wall much higher than what was currently there, the retaining wall proposed in 2011 was not actually being constructed. He explained that the keystone concrete block wall merely retained the soil for landscaping, and not the fill. Therefore, he said, it was not a retaining wall.
18. Mr Buckton said that, in 2011, Living Choice believed that it needed to build retaining walls, but that, as it worked out, such walls were not actually necessary. Rather, Living Choice was able to batter, which was a solution that it could live with. When asked in cross-examination whether it was necessary to retain the fill in order to make it structurally competent to support the villa units, Mr Buckton said that that was what they thought at the time, but "as it play[ed] out, they could batter it".
19. In the course of cross-examination, Mr Buckton denied that the keystone block wall was a retaining wall because there is no fill to the full height of the wall. He said that, since it does not retain earth, it could not be a retaining wall. When asked whether Living Choice had to retain the earth between the Rossi Boundary and villa units 204 to 210, he said that the solution was to batter and that that was what they managed to do, without the need for a retaining wall.
20. Living Choice contends that that evidence supports the conclusion that no high retaining walls were in fact constructed on the Rossi Boundary, because it was unnecessary to do so, since the original proposal in the Stage 2 Development Application for battering was able to be achieved. The 600 mm keystone block wall was constructed to retain the soil for landscaping. The foundations for the villa units in question were not engineered fill and the curtain walls do not retain fill and were not structural. The villa units in question were not constructed on any retaining wall, but were constructed on piles, which are on a competent foundation.
21. Thus, Living Choice says, the only element of the Development as constructed that was not assessed by the Council was the 600 mm keystone block wall, which was not shown in the plans. However, its only function is to retain soil for landscaping. As part of the Stage 2 Development Application, a landscaping plan was submitted, provided to the Panel and assessed by the Council. The Panel imposed a condition on the Stage 2 Consent requiring a detailed landscape plan to be submitted prior to the issuing of the construction certificate. Living Choice says that the 2009 SEE specifically showed photographs of retaining walls and landscaping on the Stage 1 Land and points to a caption underneath a photograph of the Stage 1 Development that reads: "Examples of Existing Definition of Spaces within Stage One (Note Proposed Development to use consistent fencing/retaining/landscape elements)". The plans showed that the villa units in question would be offset from the Rossi Boundary by three metres and that was said to minimise overshadowing, overlooking, primary impacts and bulk and to provide a transition between zones.
22. Living Choice asserts that the documents showed that buffer plantings were proposed between the Rossi Boundary and the edge of the villa units in question. The nature of those buffer plantings was shown on a further plan ("Statement of Landscape Intent") annexed to the 2009 SEE, which described the nature of the planting as "dense planting of Australian natives in three-metre (av) wide bed. Mix of trees, shrubs and ground covers". The plan described its objectives as "the preservation of environmental and visual character, reference to existing and past cultural landscapes … for creation of landscapes which are easily maintained, functional and innovative". However, they are simply the objectives stated in the Baulkham Hills Development Control Plan.
23. Living Choice contends that careful attention was given, in the design of the Development, to the transition between the villa units in question, in a landscaped setting, and the adjoining rural residential land, such as the Rossi Land. It contends that it is difficult to understand how it could be said that the "neighbouring amenity" design principles in the Seniors Policy had not been considered in the design of the Development.
24. Living Choice submits that there was no suggestion that Council failed to assess, or that the Panel failed to consider, the landscaping treatments, which were designed to meet the very matters that the primary judge found that the Panel had disregarded in considering whether the Development was designed in accordance with the principles in the Seniors Policy. It says that the findings by her Honour might have been understandable, had the Panel approved 3 metre-high retaining walls on the Rossi Boundary, in lieu of a landscaping solution. However, it did not do so and no such retaining walls were required to be constructed in order to implement the Development in accordance with the Stage 2 Consent.
25. Living Choice contends that the 600 mm keystone block wall was de minimis in the scheme of things. Mr Rossi did not assert that it was that wall that caused the determination of the Stage 2 Consent to miscarry. The primary judge did not make a finding to that effect. Living Choice asserts that it would be absurd to suggest that such a wall could possibly have had the kind of impacts described by her Honour and Mr Buckham on the Rossi Land that would require mandatory consideration by the Council and the Panel.
26. Living Choice points out that s 79C(1) requires only consideration of such of the matters specified as are of relevance to the development that is the subject of the relevant development application. The Stage 2 Development Application did not include 3 metre-high boundary retaining walls on the Rossi Boundary. Therefore, Living Choice says, it was not relevant to consider the likely impacts on the Rossi Land of, or the suitability of the Living Choice Land for, a development involving the retention of fill or retaining walls on the Rossi Boundary. It says that the primary judge's proposition that high retaining walls were required on the Rossi Boundary, which proposition arose from her Honour's interpretation of Mr Buckham's letter of 12 October 2011, [134] was a false hypothesis.
27. That letter of Mr Buckham's was a response to the Retaining Walls Development Application, which did include the construction of retaining walls up to 3.1 metres high. However, materials lodged in support of the Stage 2 Development Application did not show any such walls on the Rossi Boundary. None were proposed at the time of lodgement and, accordingly, none were assessed by the Council or considered by the Panel. The fact that Living Choice subsequently thought that it needed high retaining walls in order to implement the Stage 2 Consent is, it says, irrelevant to the question of whether the Stage 2 Development Application sought consent for such walls and whether the Stage 2 Consent authorised them.
28. Living Choice refers to four instances of failure to have adequate regard to the design principles in the Seniors Policy that were found by the primary judge. The first was that a proposed development should maintain reasonable neighbourhood amenity by providing building setbacks to reduce bulk and overshadowing (cl 33(c)(i)). The second was that a proposed development should maintain reasonable neighbourhood amenity using building form and siting that relates to the relevant site's landform (cl 33(c)(ii)). Her Honour also found a disregard of cll 33(a) and 33(c) concerning what her Honour described as "spatial arrangement". Living Choice contends that there was no basis upon which her Honour could have found failure to have regard to those principles. In dealing with cl 34(a), which required consideration of the visual and acoustic privacy of neighbours, the primary judge considered that the construction of high retaining walls on the Rossi Boundary involved privacy breaches. Living Choice says that that conclusion is unclear since high walls will usually increase, not decrease, the visual and acoustic privacy of neighbours. However, that would be so only if the walls constitute a barrier between properties. High walls could not increase privacy where the proposed development is above the top of the walls.
29. Living Choice contends that the only basis for finding a breach of cl 32 was the primary judge's assumption that a high retaining wall was to be constructed on the Rossi Boundary. Once that assumption is removed, it says, there is no longer any basis for any finding of breach in relation to the Seniors Policy. Therefore, Living Choice contends, there was no basis for the grant of relief and her Honour's decision should be upheld on that ground.
30. The Council contends that, before there could be a breach of s 79C of the Planning Act, the relevant statutory provision must expressly or impliedly oblige the decision maker to enquire and consider the subject matter at the level of particularity involved. It contends that there is nothing in the statutory scheme to suggest that the level of particularity to which Mr Rossi's case descended was required as part of the Council's assessment or the Panel's determination.
31. The Council contends that cll 30, 32, 33 and 34 of the Seniors Policy direct attention to the consideration of matters at a higher level of generality than Mr Rossi suggested. Thus, cl 30 requires the consent authority to be satisfied that the applicant has taken into account a site analysis prepared by the applicant in accordance with cl 30. Clause 32 requires the consent authority to be satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Div 2, which consists of cll 33 to 39.
32. The Council reiterates the proposition that the Stage 2 Development Application did not propose retaining walls along the Rossi Boundary. A significant aspect of Mr Rossi's contentions to the primary judge was that the Council had been misled by Living Choice, suggesting that, although the Stage 2 Development Application did not propose retaining walls, Living Choice had intended that there would be retaining walls. The principal contention before the primary judge was not that the Council had failed in its assessment of the Stage 2 Development Application by reason of omission on its part.
33. The Council contends that for the primary judge to have concluded, as she appears to have done, that the Council failed to consider the retention of fill, her Honour must have concluded that the retention of fill was, as a matter of fact, necessary. Her Honour accepted that there was an assessment by the Council of the fill intended to be placed in order to locate villas 204 to 210 at certain levels. The Stage 2 Development Application was assessed on the basis that the finished ground level would be graded to finish at natural ground level at the Rossi Boundary and her Honour did not find that retaining walls were, as a matter of fact, necessary. The Council contends that it was reasonable for the Council's officers to assess the impact along the Rossi Boundary on the basis that the fill would be graded to natural ground level, without the need for retaining walls. There was no evidence before her Honour that indicated that fill needed to be retained.
34. The Council asserts that the Stage 2 Development Application was assessed on the basis that there would be dense planting at the boundary and that there would be a setback distance between the Living Choice Land and the residents on the Rossi Land. The Council contends that, in those circumstances, the finding by the primary judge that the Council did not assess overlooking impacts was without foundation.
35. Living Choice's notice of contention was filed out of time. Mr Rossi contends that Living Choice should not, in any event, be permitted to rely on the grounds in the notice of contention because the argument raised was not put to the primary judge. He says that the case advanced by Living Choice before her Honour was that the Stage 2 Consent authorised the placement of fill and the manner in which the proposed finished floor levels would be achieved was neither overlooked nor deferred. Mr Rossi says that, had Living Choice advanced the argument that there was no retention of fill, further evidence could have been adduced in relation to the question of whether, for example, it was necessary to construct retaining walls to retain the fill and the Council's officers could have been cross-examined on whether the Stage 2 Development Application required assessment of the retention of fill. Finally, Mr Rossi says, Living Choice's assertion of fact is wrong and the Development was in fact constructed on fill and necessarily proceeded with the building of "significant structures" to retain the fill along the Rossi Boundary.
36. He relies on photographs of work as it progressed. The photographs identified are quite equivocal in that regard. The most that they appear to show is the keystone concrete block wall.
37. In response to the proposition advanced by Living Choice that no case was ever mounted by Mr Rossi that there was a failure to consider the necessity for retaining walls where none were proposed, Mr Rossi submits that that is because Living Choice did not contend that retaining walls were not proposed. He says that, if Living Choice intended to advance that argument, it was incumbent upon it to plead the matter expressly in its defence.
38. Paragraph 22 of Mr Rossi's further amended points of claim asserted that, at the Rossi Boundary, the Stage 2 Consent permitted the placement of a substantial quantity and depth of fill on the Living Choice Land. In its amended points of defence, Living Choice admitted that the Stage 2 Consent "authorised the placement of fill on the Living Choice Land", but relied on the "full terms of the [Stage 2 Consent] for its effect and purport and otherwise does not admit paragraph 22". Mr Rossi says that an applicant cannot submit a development application that has buildings sitting four metres above the natural ground level in some places without telling the consent authority how the buildings will be supported in the intervening space.
39. Mr Rossi says that, at the heart of his argument in that part of his further amended points of claim, was the failure of the Council and the Panel to consider the raised levels of the villa units, as high as four metres in some places, above the natural ground level and how those villa units impacted on his privacy and amenity in relation to the Rossi Land, a rural property. He says that those matters fall squarely within the language of s 79C(1)(b) and s 79C(1)(c) of the Planning Act, which refer to "the impact of the development" and "the suitability of the site". He contends that consideration of both of those matters was mandatory and that there was a failure to take the matters into consideration if the decision maker had inadequate personal acquaintance with the facts and issues. In order to discharge the obligation to take relevant matters into consideration, there must be an understanding of the relevant matters and their significance to the decision required to be made.
40. Mr Rossi contends that in the present case, the assessment process miscarried because Mr Buckham did not have the necessary acquaintance with the facts or the significance of those facts to the decision that was to be made by the Panel. Mr Rossi points to Mr Buckham's letters of 12 October 2011 and 15 November 2011 [135] as clearly demonstrating that the matters in question were material to the assessment and were not considered.
41. Living Choice's notice of contention and proposed cross-appeal were filed out of time. However, they were filed in adequate time to enable Mr Rossi to prepare for the arguments advanced. Accordingly, I would, to the extent necessary, grant leave to Living Choice to rely on the notice of contention and to raise the matters relied on in its proposed cross-appeal. There is no suggestion that there has been any prejudice to Mr Rossi by reason of the failure to file in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). However, the more significant question is whether Living Choice should be permitted to rely on the matters in the notice of contention and cross-appeal if, as Mr Rossi asserts, those matters were not ventilated before the primary judge.
42. The contention advanced on behalf of Living Choice in this Court is that villa units on the western end of the Rossi Boundary were constructed at the level of the top of the walls of the old dam. It says that no additional fill was placed on the Living Choice Land and there was no need for retaining walls in respect of the dam walls, which had been in place for years before Mr Rossi acquired the Rossi Land. While there are significant brick walls facing the Rossi Boundary, and observable from the Rossi Land once the trees on the Rossi Boundary had been removed, the evidence indicates that those walls are not structural and are not retaining walls. Rather, they are described as "curtain walls" having a purely aesthetic purpose and not a functional purpose.
43. Whether they are properly characterised as retaining walls or not, however, is not to the point. The question is whether the Council, in assessing the Stage 2 Development Application, and the Panel, in determining to grant the Stage 2 Consent for the Development, had regard to the consequences for the Rossi Land of having villa units constructed at a height considerably above the natural level of the Rossi Land. The statements made by Mr Buckham, albeit some considerable time after the assessment process was completed and the Stage 2 Consent had been granted, demonstrate that regard was not had to those effects. Even if the grounds relied on in the notice of contention and the proposed cross-appeal were allowed, they would not succeed.
44. That is to say, there was a failure by the Council to take into consideration the likely impacts of the Development on the Rossi Land and the suitability for the Development of the part of the Living Choice Land along the Rossi Boundary. The villa units at the western end of the Rossi Boundary were built on the walls of the dam. Whether the walls below the finished floor levels of those villa units are properly characterised as retaining walls or curtain walls does not matter. The important fact is that the villa units were built in such a way as to have a significant impact overlooking the Rossi Land. That matter was not considered by the Council in the course of the assessment. It was not considered by the Panel in determining to grant the Stage 2 Consent.
45. Living Choice contends that Mr Rossi's complaint about its reliance on the notice of contention and cross-appeal should be rejected for several reasons. It says that the only success achieved by Mr Rossi was to establish that both the Council failed to assess and consider the retention of fill, by a high retaining wall, on the Rossi Boundary and the potential amenity impacts of such retention measures. It says that that allegation was pleaded repetitively. However, Living Choice says, Mr Rossi's principal argument, as it emerged at the end of the hearing before the primary judge, was that no retaining wall had been shown in the materials accompanying the Stage 2 Development Application and none was approved, despite it being necessary to do so. Living Choice says that was a different point, on which Mr Rossi did not succeed. Living Choice points out that the Council denied each of the allegations and that Living Choice did not admit them, thereby putting Mr Rossi to proof of the allegations.
46. Living Choice also contends that it and the Council argued before the primary judge that the Stage 2 Development Application did not seek consent for high retaining walls on the Rossi Boundary and that the fill on which the villa units on the Rossi Boundary were to be constructed on Living Choice Land was graded to the Rossi Boundary, thereby obviating the need for a high retaining wall. The first part of that argument was also part of Mr Rossi's case. Thus, Living Choice says, it was effectively common ground that the Stage 2 Development Application did not seek consent for high retaining walls on the Rossi Boundary.
47. Thirdly, Living Choice says, Mr Rossi accepted before the primary judge that no high retaining wall on the Rossi Boundary was proposed in the Stage 2 Development Application. He asserted that a retaining wall on the Rossi Boundary was essential and that, either by inadvertence or deliberate omission, the plans that were the subject of the Stage 2 Consent were in error. Living Choice says that Mr Rossi's real complaint was not, as the primary judge found, that a high retaining wall was proposed on the Rossi Boundary and that its impacts had not been assessed, but that Living Choice's proposal omitted the wall and therefore misled the Council and the Panel, because there was no other way of constructing the Development. It says that those contentions were at the forefront of Mr Rossi's closing submissions to the primary judge.
48. Fourthly, Living Choice asserts that Mr Rossi attempted to support his contention that Living Choice had misled the Council by omitting a retaining wall from the plans, by calling expert evidence about the necessity for a retaining wall. His application to do so was rejected by a different judge of the L & E Court in Judgment No. 1. In the first judgment, Pepper J considered that recitation of the claims made by Mr Rossi against the Council and the Panel demonstrated that the proposed expert evidence could not assist. Her Honour said that the matters pleaded required an objective assessment as to whether or not the alleged breaches had occurred. [136]
49. Importantly, Pepper J observed that it was conceivable that, once defences had been filed and the material of the Council and Living Choice had been examined by Mr Rossi, it may become apparent that expert evidence was necessary to prosecute his claim. Her Honour said that there was nothing to preclude him from making a further application to adduce expert evidence at a later stage, should it be necessary. [137] Living Choice says that, despite the position taken by it and the Council before the primary judge, that no retaining structure on the Rossi Boundary was approved or necessary, Mr Rossi did not renew his application to call expert evidence. In any event, Living Choice says, such evidence would have been inadmissible since the subjective views of experts were irrelevant in proceedings in the nature of judicial review and not merits review.
50. Fifthly, Living Choice asserts that Mr Rossi devoted a substantial portion of his reply to rebutting Living Choice's contention that no retaining wall was required, because the Living Choice Land was to be graded to the Rossi Boundary, and accordingly, no retaining wall was required to be assessed. Mr Rossi attached considerable significance to the so-called "admission" by Mr Buckham that proved, it was said, that the Council had been misled by Living Choice's deliberate omission of reference to a high retaining wall on the Rossi Boundary. Living Choice asserts that further evidence and cross-examination were devoted to the point.
51. Living Choice asserts that the submissions made by Mr Rossi to the primary judge made it clear that his case was that retaining walls should have been proposed in the Stage 2 Development Application, but were not. It says that the legal error on the part of the primary judge was not to have picked up the argument that retention of fill at the boundary by high retaining walls was unnecessary. Living Choice says that, to some extent, Mr Rossi's position slides between what was approved and what, at particular times, Living Choice or the Council might have thought was necessary.

Consideration

1. Clearly enough, in the Retaining Walls Development Application, which was lodged in 2011, Living Choice proposed retaining walls. That was because Living Choice believed in 2011 that such a structure was to be preferred, in circumstances where retaining walls had not been proposed in the Stage 2 Development Application or approved by the Stage 2 Consent. However, by 2012, the relevant villa units had been built without the need for fill or retaining walls. Therefore, Mr Rossi's contention that it was necessary for retaining walls to have been included in the Stage 2 Development Application must be rejected. Clearly, the Stage 2 Consent did not extend to fill and retaining walls. That, however, is not the point. The point is that the Council and the Panel appear not to have had regard to the fact that the villa units at the western end of the Rossi Boundary were to be constructed at significantly elevated levels as compared with the natural level of the Rossi Land. That is the essence of Mr Rossi's complaint. That is addressed in dealing with the next issue.

Issues 4, 5 and 6: Contravention of s 79C of the Planning Act

Submissions

1. Living Choice contends that the primary judge erred in finding that an assessment of the impacts of the retention of fill was a mandatory consideration under s 79C and that the Council had not assessed, and the Panel had failed to consider, that matter. It says that her Honour therefore erred in finding that there was a breach of s 79C of the Planning Act by both the Council in assessing the Stage 2 Development Application and the Panel in determining to grant the Stage 2 Consent. The Council contends that the primary judge erred in concluding that the retention of fill on the Rossi Boundary, the visual impact of retention methods and overlooking impacts were mandatory relevant considerations under s 79C and that the Council breached the relevant provisions of s 79C by failing to assess the retention of fill on the Rossi Boundary, the visual impact of retention methods and overlooking impacts.
2. Living Choice further contends that the primary judge erred in finding that, because it did not propose retaining walls on or near the Rossi Boundary, it had failed, in designing the Development, to consider the need for retention of fill and the impact of doing so on the Rossi Land, and in finding that, by reason of that failure, the Panel could not have been satisfied that Living Choice had considered the design principles referred to in cll 33 and 36 of the Seniors Policy and there was therefore a breach of s 79C of the Planning Act in assessing the Stage 2 Development Application and determining to grant the Stage 2 Consent.

Consideration

1. However, the real question is not whether the Council and the Panel had regard to a proposal for the villa units close to the Rossi Boundary to be built on fill with high retaining walls. The complaint that Mr Rossi makes is that the villa units as built impair the amenity of the Rossi Land because they overlook it and interfere with the privacy that it had previously enjoyed. That results from the fact that the villa units at the western end of the Rossi Boundary are constructed on levels significantly higher than the natural levels of the Living Choice Land and the Rossi Land, because they are built at the level of the top of the walls of the old dam. The question is whether the Council assessed, and whether the Panel considered, the effect of the Development on the Rossi Land, having regard to that circumstance.
2. The evidence inevitably leads to the conclusion that neither the Council nor the Panel had regard to the fact that the finished floor levels of the villa units at the western end of the Rossi Boundary were significantly higher than the natural levels of the Rossi Land. Thus, the finished floor level of villa unit 210 was to be 135.9 m, as against the natural level of the Rossi Land of 132 m, an elevation of close on 4 metres. Similar observations can be made in relation to villa units 206 to 209, although not to the same degree. That constituted a failure to take into consideration the provisions of an environmental planning instrument, namely, the Seniors Policy, in contravention of s 79C(1)(a)(i); a failure to take into consideration the likely impacts of the Development, including environmental impacts on the natural and built environments, being the Rossi Land, in contravention of s 79C(1)(b); and a failure to take into consideration the suitability of that part of the Living Choice Land located on the Rossi Boundary for such part of the Development as consisted of the construction of villa units 206 to 210, in contravention of s 79C(1)(c).
3. For those reasons, issues 4, 5 and 6 are not made out.

Submissions

1. Mr Buckham was called by the Council as a witness in the proceedings. His evidence in chief covered the notification of the Stage 2 Development Application, which had been impugned by Mr Rossi. He was the author of the September 2010 planning report provided to the Panel [138] and was the principal officer of the Council involved in the carrying out of the assessment of the Stage 2 Development Application. However, he was not cross-examined on behalf of Mr Rossi on the topic of the assessment of the Stage 2 Development Application. The Council contended to the primary judge that, in the absence of such cross-examination, Mr Rossi was precluded from making any submission that the Council had breached s 79C of the Planning Act in its assessment of the Stage 2 Development Application, since that was not fairly put to Mr Buckham in the course of cross-examination. The Council contends that her Honour erred in rejecting that contention.
2. The Council contends that, where Mr Rossi proposed to submit that Mr Buckham made serious errors in the assessment process, it was incumbent upon his counsel to put those matters squarely to Mr Buckham. It says that Mr Buckham's written statements (in the October and November 2011 correspondence), to the effect that the Stage 2 Development Application did not properly identify the intended retention of fill along the Rossi Boundary, did not cover all of the matters that the Council was alleged to have failed to assess. Mr Rossi's case against the Council was that it failed to take into account particular matters, none of which was put to Mr Buckham in cross-examination. The Council says that, in those circumstances, the primary judge should not have permitted Mr Rossi to maintain any submission that there were such failures by Mr Buckham (and therefore by the Council) in the assessment process.

Consideration

1. Where an imputation is to be made against a witness or an adverse inference is to be drawn against a witness, the precise nature of the imputation or inference should be made clear to the witness so that the witness has an opportunity to answer it. Not only allegations of fraud or impropriety, but also so much of the opposing party's case as concerns a particular witness, should also be put to the witness. Thus, if a witness in examination-in-chief gives evidence that is to be contradicted by, or is inconsistent with, evidence to be given on behalf of the opposite party, that opposite party must, when cross-examining the witness, put so much of the contradictory or inconsistent evidence as the witness can fairly be expected to deal with. [139]
2. The essential element of the rule in Browne v Dunn is that where there is a contradiction, an issue or an adverse inference in relation to a particular witness, there will be an obligation to give that witness the opportunity to deal with the contradiction, issue or adverse inference. Mr Rossi says that Mr Buckham's evidence in chief did not contradict any of the evidence relied on by Mr Rossi, since the letters and reports written by Mr Buckham spoke for themselves. Further, Mr Rossi did not seek to impugn Mr Buckham's credit. He says that, since the alleged failures in the assessment process were pleaded, and the Council should have been well aware of the case he was mounting, the rule in Browne v Dunn was not enlivened.
3. The primary judge made no error in rejecting the contention based on the rule in Browne v Dunn. The rule in Browne v Dunn is one of fairness. Mr Rossi's case was made clear in his further amended points of claim. The Council could have been under no misapprehension as to the nature of the case that it had to meet. It was open to counsel for the Council to adduce evidence from Mr Buckham, if it chose to, to explain the material in his letters and report relied on by Mr Rossi and to explain any other matters that were the subject of allegations in the further amended points of claim. The Council did not do so.
4. In any event, it is difficult to see any basis upon which the Council should be permitted to complain about the conduct of this aspect of the hearing, in circumstances where no relief was sought against the Council. The Council ought to have submitted at first instance. Thus, it is difficult to see why the Council has an interest in the appeal except as to the costs orders made by the primary judge.

Submissions

1. The assessment of drainage was a mandatory requirement by the operation of s 79C(1)(a)(i) of the Planning Act and cl 36 of the Seniors Policy. The primary judge dealt with a submission on behalf of Mr Rossi that there was a failure in the assessment by the Council and the Panel of how water would drain from the fill placed near the Rossi Boundary, to prevent impact on the Rossi Land. Mr Rossi relied on the collapse of part of the keystone block wall in March 2012 and the placement of an agricultural pipe behind the wall, which drained towards the western end of the Rossi Boundary onto or near the Anderson Land. Her Honour referred to evidence by Mr Buckham that stormwater runoff from the Living Choice Land to the Rossi Land had been improved, since the villa units and roads on the Living Choice Land drained into a local stormwater system that discharges into the Council's stormwater system. Her Honour concluded that, in the absence of specific criticism of any of the documents in relation to stormwater filed in support of the Stage 2 Development Application, no failure had been established by Mr Rossi.
2. In his amended notice of appeal, Mr Rossi contends that the primary judge erred in finding that stormwater had been assessed by the Council and the Panel. He says that the finding by the primary judge that stormwater drainage had been considered, by reason of the fact that plans prepared in June 2009 dealt with stormwater and those plans were not criticised, was not supported by the evidence and was contrary to the evidence. Mr Rossi claims that the plans did not identify the intention to fill along the Rossi Boundary and that the road and drainage plan did not show a drainage line along the Rossi Boundary.
3. Mr Rossi asserts that the assessment of stormwater drainage along the Rossi Boundary could only have been considered in the context of assessing the gradient of the transition to the Rossi Land and the retaining walls, since both of those matters alter the flow of water. He contends that, since the primary judge found that there was no assessment of the retention of fill on the Rossi Boundary, it was axiomatic that the effect on stormwater draining over or from that fill retention had also not been assessed.
4. Mr Rossi also contends that the fact that part of the keystone block wall fell down in heavy rain, that is, stormwater, suggests that no one had directed attention to the impact on stormwater of fill along the Rossi Boundary. Mr Rossi asserts that the evidence demonstrated that a drainage line had been placed behind the retaining wall, but that it terminated and discharged onto the Rossi Land and the Anderson Land in an uncontrolled way.

Consideration

1. The onus of establishing a failure to assess stormwater lay with Mr Rossi. The primary judge found that neither the keystone concrete block wall, nor the agricultural pipe, was part of the Stage 2 Development Application and, therefore, neither constituted evidence that the Council had failed in its assessment of stormwater when assessing the Stage 2 Development Application. The evidence before the primary judge included an erosion and sediment control plan with details prepared by Cardno in 2010, and a concept civil design report prepared by Cardno in June 2009. As indicated above, the Stage 2 Development Application did not entail fill or retaining walls. In addition, an internal memorandum of the Council demonstrated that one of the Council's engineering officers had considered site drainage and runoff generated by the Development. [140] In the light of that evidence, there was no error on the part of the primary judge in concluding that the Council had assessed how water would drain near the Rossi Boundary.

Submissions

1. The Council and Living Choice do not dispute the jurisdiction of the L & E Court to make declarations under s 20 of the L & E Court Act. The jurisdiction to grant declaratory relief is broad and the discretion whether to grant declaratory relief or not is not subject to close fetters. Accordingly, the L & E Court may decline to grant declaratory relief where there is no utility in doing so.
2. The primary judge considered that a declaration should not be made that the Stage 2 Consent was void or invalid, since she concluded that there would be no utility in doing so because no useful purpose would be served by such a declaration. Her Honour said that the reason was that the substance of what had not been assessed or approved by the Panel was the subject of the Retaining Walls Consent, which, as her Honour said, ultimately dealt with landscaping on the Rossi Boundary. [141]
3. Mr Rossi contends that the primary judge erred in failing to declare the Stage 2 Consent void or invalid, in circumstances where her Honour found that both the Council and the Panel had failed to consider mandatory relevant matters under s 79C of the Planning Act. He says that, in circumstances where her Honour had found that the Stage 2 Consent was infected with jurisdictional error, the Retaining Walls Consent was declared to be invalid and her Honour expressly declined to make orders under s 25B of the L & E Court Act in respect of the Retaining Walls Consent, there was utility in declaring the Stage 2 Consent void or invalid.
4. Mr Rossi says that the requirement that a declaration must serve some useful purpose does not mean that the party seeking the declaration must be in a position to demonstrate that that party will benefit in a material or tangible way as a result of the declaration. He says that a declaration may be made as to the existence of an obligation to comply with statutory requirements and that the public interest in having a contravention of a statutory provision determined is an appropriate reason for declaratory relief. Mr Rossi contends that a declaration would be an appropriate means by which to record disapproval of conduct engaged in in contravention of a statute. He contends that the making of a declaration of invalidity would serve important law enforcement purposes, in that it would serve to warn others of the dangers of contravening conduct and would operate as a deterrent.
5. More particularly, Mr Rossi points to the fact that development consent runs with the land. Accordingly, the question of whether consent has been given lawfully and validly would be a matter of ongoing significance for future dealings with the Living Choice Land and the Rossi Land. Future owners of villa units in the Development may need to know whether the Stage 2 Consent was validly granted. That matter could also have ongoing consequences for the Rossi Land. A future owner of the Rossi Land may need to know whether the Development was carried out lawfully. Mr Rossi says that, in circumstances where there was a real and not a theoretical question involved, he had a real interest in raising the question of validity and there was a proper contradictor in Living Choice, it was appropriate to make a declaration of invalidity.
6. Development consent granted under the Planning Act is considered to be valid unless and until it is declared to be invalid by a court. [142] The Council contends that the making of a declaration in the present circumstances was a matter for the exercise of discretion by the L & E Court. It says that Mr Rossi must demonstrate an error of the kind referred to in House v The King [143] and that he has failed to grapple with the limitations on appellate review of the exercise of such a judicial discretion.
7. Mr Rossi points out that one of the circumstances that would justify appellate intervention in the exercise of discretion by a judge at first instance is that the judge has acted upon a wrong principle, including making legal error. [144] Mr Rossi contends that the primary judge misunderstood the "utility principle" and that her Honour's application of the principle to the facts in the present case was illogical, in so far as it relies upon the Retaining Walls Consent, which her Honour declared to be invalid. There is no challenge to that declaration. Mr Rossi says that his challenge to the refusal of a declaration of invalidity does not go beyond established categories of error.
8. The Council says that the trial judge identified at least three bases for her Honour's refusal of declaratory relief. The first was the practical and financial inconvenience for Living Choice, on whose application the Stage 2 Consent was granted, and the owners of villa units, that would be incurred by a declaration of invalidity. The second was that the area in dispute in the proceedings was a relatively small part of the whole of the Living Choice Land to which the Stage 2 Consent extended. The third was that there was no utility in making a declaration of invalidity.
9. Mr Rossi says that the likely practical and financial inconvenience to Living Choice and the fact that the area in dispute was only a small part of the total area that was the subject of the Stage 2 Consent were not reasons of the primary judge for declining to make a declaration. The only reason advanced by her Honour, he says, was that there was no utility served by declaring the Stage 2 Consent void in circumstances where the substance of what was not assessed in the course of the granting of the Stage 2 Consent, which led to jurisdictional error, was the subject of the subsequent Retaining Walls Consent.

Consideration

1. The primary judge's reasoning on this issue is extracted above. [145] It is difficult to follow her Honour's reasoning for declining to make a declaration of invalidity in respect of the Stage 2 Consent in so far as it is based on the fact that the substance of what was not assessed by the Council, or considered by the Panel, was the subject of the Retaining Walls Development Application. It may be that the relief granted in respect of landscaping on the Rossi Boundary would ameliorate any adverse consequences for Mr Rossi in relation to the Rossi Land as a consequence of any failure on the part of the Council and the Panel to have had regard to the impact of the Development on the Rossi Land by reason of the construction of villa units along the Rossi Boundary.
2. The purpose of declaring development consent invalid is not to punish conduct on the part of the applicant for development consent. The fact that Living Choice had misled the Council and the Panel, if that be the fact, would affect only the question of the extent to which the consequences for Living Choice might be relevant to the exercise of discretion. Thus, if it were the fact that a declaration of invalidity would have significant commercial and financial consequences for Living Choice and that that was a consideration in deciding whether to exercise the discretion to decline to make a declaration of invalidity, then misleading conduct on the part of Living Choice may have some part to play. However, that was not a reason advanced by the primary judge for declining to make a declaration of invalidity.
3. Where a regulatory authority seeks declarations that a party has contravened provisions of a statute for which that regulatory authority has responsibility, the making of the declaration can be an important tool of law enforcement. It serves to identify contravening conduct for the benefit of the community. It also serves as a means of sheeting home to the contravener the fact of the contravention. Mr Rossi, of course, is not a regulatory authority, although s 123 of the Planning Act grants standing to any person to seek orders for the enforcement of the Planning Act. Where the actions of a consent authority constitute a contumelious disregard of the provisions of the Planning Act, there may well be a justification for declaring development consent invalid. However, it is relevant that the Development is now virtually complete. It is significant that no interlocutory relief was sought by Mr Rossi. There has been no finding by the primary judge that, if the Council and the Panel were misled, that was deliberate on the part of Living Choice.
4. At least since the proceedings reached this Court, Mr Rossi has no longer pressed for an order requiring demolition of the works carried out along the Rossi Boundary. It appears that he accepts that, so long as adequate landscaping is carried out at that point, the adverse consequences of construction of villa units along the Rossi Boundary would be removed. In those circumstances, so long as adequate relief is granted in respect of the adverse impacts on the Rossi Land of that part of the Development, there would appear to be little utility in declaring the Stage 2 Consent invalid.
5. In the circumstances, notwithstanding that there was a contravention of s 79C on the part of the Panel, as a consequence of a defect in the assessment function on the part of the Council, I would not declare the Stage 2 Consent void or invalid. Rather, I would make an order under s 25B of the L & E Court Act suspending the Stage 2 Consent in so far as it relates to the construction of villa units 206 to 210 and specifying that landscaping work be carried out to mask the Development along the Rossi Boundary.
6. Because of the history of these proceedings, particularly their complexity and length, it is highly desirable that they be brought to conclusion as expeditiously as possible, with as little further cost as possible. One means of doing so would be to order that Living Choice carry out the landscaping work proposed by Mr Rossi before the primary judge (as identified in landscape plan No. 111.13(12)/219 dated October 2013 prepared by Mr Ian Jackson of iScape Landscape Architecture) as a term of validating the Stage 2 Consent. However, because there has not been full argument on that landscape plan, and in order to allow the parties an opportunity to agree on the work to be undertaken, it would be preferable, in the circumstances, for directions to be given to the parties to consult with that end in view. While this Court may not be well placed to evaluate competing submissions (assuming that disputation continues) as to the merits of particular proposals for landscaping and planting, the alternative course of remitting any aspect of the matter to the L & E Court should be avoided if possible.
7. In the circumstances, the orders made by the primary judge should be varied to give effect to plantings of screen trees on the Rossi Land and on the Living Choice land. The parties should have an opportunity to reach agreement as to the proposed plantings, the timetable within which they are to occur and the steps to be taken in undertaking the work. Directions to that end should be given.

Submissions

1. Mr Rossi contends that the two notices of determination dated 12 October 2010, one of which was not brought into existence until 6 June 2012, were invalid because the Stage 2 Consent of which they purported to give notice was invalid by reason of a jurisdictional error in the exercise of the power conferred on the Council. That contention is irrelevant if the Stage 2 Consent is found to be valid.
2. The Council asserts that the argument now sought to be advanced on behalf of Mr Rossi, namely that the notifications were invalid because the determination of which notice was given was invalid, was not pleaded or argued before the primary judge. Further, the Council says, there is no purpose to be served by ventilating the issue on appeal. In addition, if the first notice was valid, the fact that a second purported notification in differing terms was given is of no significance. [146] Mr Rossi's answer is that the issue was raised to ensure that the register of documents (including notifications of development consents) kept under cl 266 of the Planning Regulation, and made public by cl 268, is correct and not misleading.

Consideration

1. As I have indicated, I would not interfere with the decision of the primary judge to decline to make a declaration of invalidity in respect of the Stage 2 Consent but would make an order under s 25B. Further, Mr Rossi has not pointed to any detriment that flows to him from the defects in the first notification. Although defects such as those raised by Mr Rossi may have consequences of significance in other factual situations, the basis on which Mr Rossi contended in this Court that the notifications should be declared invalid was that the Stage 2 Consent was itself invalid. For the foregoing reasons, that contention cannot succeed. However, it is desirable that the register kept under cl 266 of the Planning Regulation (which register is, importantly, available for public inspection pursuant to cl 268) be accurate. In those circumstances, notwithstanding the absence of any other demonstrated significance of the defects in the notifications, I consider that a declaration of invalidity should be made in relation to the first notification of the Stage 2 Consent. The second notification is of no significance, and on the basis of the submissions made to this Court, there does not appear to be any reason to make a declaration of invalidity in respect of that notification.

Submissions

1. Sections 122 to 124 of the Planning Act are concerned with breaches of the Planning Act and authorise the L & E Court to make orders against persons who are in breach of, or have breached, the Planning Act, the Planning Regulation or an environmental planning instrument (such as the Seniors Policy and the Major Development Policy). Where a breach is established, the L & E Court's jurisdiction is enlivened and it can make orders that restrain a breach and orders requiring remedy of a breach. However, there may be a question as to whether orders can be made against a person who has not breached or is not in breach of the Planning Act. The primary judge was concerned that, in so far as Mr Rossi sought orders that he carry out landscaping work at the cost of Living Choice, the orders sought by him were not within the Court's power. [147]
2. The primary judge refused Mr Rossi's application for an order that the villas on the Rossi Boundary be demolished. Nevertheless, her Honour contemplated ameliorative relief, which included the planting of trees on the Rossi Boundary. However, Mr Rossi was reluctant to agree to have Living Choice enter on the Rossi Land and therefore sought compensation in the form of a lump sum to enable him to carry out the necessary landscaping and the restoration of privacy with minimal dealings with Living Choice. He proffered an undertaking to carry out the work on his land in accordance with a specified landscaping plan, at the expense of Living Choice.
3. The primary judge considered that the alternative that Mr Rossi give an undertaking to the Court to carry out the work was "problematic" in so far as there would be a possibility of contempt if he failed to comply with the undertaking. Her Honour was concerned as to who would commence contempt proceedings in such circumstances. The orders sought by Mr Rossi involved payment by Living Choice of a large one-off sum and her Honour was concerned that that raised the spectre that Living Choice could take contempt proceedings if Mr Rossi did not carry out all of the work. Her Honour considered the uncertainty that would attend such an approach was a reason not to adopt it. [148]
4. The primary judge considered that the landscaping scheme proposed by Living Choice reflected a more orthodox and usual approach, in so far as it required expenditure by Living Choice in doing work on the Living Choice Land, with minimal work on the Rossi Land. Her Honour considered that that scheme was in accordance with orders that her Honour would expect to make in circumstances where a breach of the Planning Act had been established. [149]
5. Mr Rossi contends that the primary judge erred in the exercise of her discretion under s 124 in failing to make orders requiring Living Choice to pay compensation to him or to carry out landscaping on the Rossi Land. He says that her Honour erred in finding that it was necessary for an order to be made against him, since he would be bound by an order directed to Living Choice. [150] He says that, in circumstances where a finding had been made that trees on the Rossi Land had been unlawfully removed, the correct approach was for the Court to order compensation in an amount that was sufficient to restore privacy along the Rossi Boundary. Alternatively, he contends, the Court had power to order landscaping to be carried out on the Rossi Land by Living Choice.
6. Mr Rossi also contends that the primary judge erred in adopting the landscaping scheme propounded by Living Choice that was not in evidence. He says that the procedure adopted by her Honour resulted in a denial of procedural fairness. He asserts that, on 17 July 2013, when the parties agreed to have the L & E Court make final orders on the evidence already before it, there was no suggestion that the Court might ultimately grant relief by reference to a landscaping plan that was expressly not tendered by Living Choice when the opportunity was afforded at that time. He complains that the approach adopted by the primary judge was unorthodox and could not have been anticipated by him.
7. Living Choice responds that no order for compensation was sought in the summons or the points of claim. The primary judge observed that the claim for compensation was first made on 5 November 2013 when proposed orders were formulated on behalf of Mr Rossi. Mr Rossi had amended the summons during the course of the hearing to seek specific orders that did not include compensation. No notice of a claim for compensation was made until the proceedings were almost complete.
8. On 16 August 2013, Mr Rossi was invited to provide the Court with the ameliorative orders that he sought within the scope of the further amended summons. Living Choice says that the orders proposed by him went well beyond that invitation. Living Choice contends that, properly understood, the primary judge rejected Mr Rossi's proposed orders because her Honour favoured the orders proposed on behalf of Living Choice, since they were more likely to bring protracted litigation to a clearly defined end. It says that, in adopting that approach, there was no error of principle to the exercise of discretion.
9. Living Choice says that, even if the L & E Court had power to make the order proposed by Mr Rossi, the primary judge clearly thought that the making of such an order was undesirable, for the reasons that her Honour explained. It contends that, in any event, even if both parties consented, that would not confer power on the L & E Court to make orders that it otherwise lacked power to make. It says that, once it is accepted that an order cannot be made against a party who is not in breach, the Court cannot accept an undertaking from that party to do work that the Court has no power to order.
10. Living Choice contends that there was no error on the part of the primary judge in making the orders that she made, since the proposal for compensation and the giving of undertakings by, or the making of orders against, Mr Rossi was raised without notice and did not fall within the relief claimed. Further, the ground on which her Honour rejected the proposal is not the subject of a ground of appeal. It says that the orders were dependent upon the L & E Court's accepting an undertaking by Mr Rossi to do work that the L & E Court had no power to order him to do.
11. Mr Rossi responds that the absence of a claim for compensation in the amended summons did not prevent the L & E Court from crafting the relief that it considers appropriate. He says that the L & E Court had power to award compensation, including as part of the ancillary relief available to enforce Mr Rossi's rights. He says that the claim for compensation did not constitute a separate cause of action, as suggested by Living Choice. He contends that the order he sought was simply one requiring the restoration of the Rossi Boundary to its state before the unlawful removal of trees. That submission was made in light of the absence of any expert landscaping evidence. The primary judge rejected the submission and requested more detail and asked that the parties prepare a plan.

Consideration

1. The primary judge erred in refusing relief simply because it was not open to her to accept an undertaking from Mr Rossi. There is no reason why an order could not have been formulated that required Living Choice to pay a sum of compensation upon Mr Rossi's carrying out specified work within a fixed period. That is to say, it could have been a term of the order that the work be carried out. There would be no need for an order that Mr Rossi carry it out or for the L & E Court to accept an undertaking that he carry it out.
2. In any event, where compensation is ordered by reason of harm caused by the person ordered to pay the compensation, there is no rule requiring that the compensation must be applied in making good the harm or damage. The discretionary power conferred on the L & E Court by s 124 of the Planning Act is wide, [151] and s 16(1A) of the L & E Court Act confers on the L & E Court jurisdiction to hear and dispose of any matter not falling within its jurisdiction, if that matter is ancillary to a matter that does fall within its jurisdiction. Damages are plainly ancillary to the matters that do fall within the L & E Court's jurisdiction, being the existence of the right and its enforcement by injunctive orders or declaratory relief. [152] The difficulty with such an approach in the present case, of course, may be that there was no evidence before the primary judge as to the loss or damage occasioned to Mr Rossi by reason of the matters about which he complains. There was material before the primary judge as to the cost of landscaping that Mr Rossi wished to have carried out in order to obviate the consequences of the matters about which he complains. However, there was no evidence that the impacts of the Development along the Rossi Boundary resulted in any diminution in the value of the Rossi Land, by reason of loss of amenity, privacy and the like, or the quantum of such diminution.
3. In all the circumstances, I consider that the appropriate relief would be to order that work be carried out to obviate the adverse consequences for the Rossi Land that flows from the removal of vegetation on the Rossi Boundary without the consent of Mr Rossi and without development consent. The work should be done at the cost of Living Choice. While he was originally loathe to permit Living Choice or its contractors to have access to the Rossi Land, Mr Rossi's ultimate position before this Court is that he will permit it to occur. As I have concluded above, however, the parties should be afforded the opportunity to agree on the precise terms of such ameliorative orders. Failing agreement within the time provided for in the orders, the parties should file short written submissions as to their respective proposals, and the Court should determine the outcome on the papers.

Conclusion

1. The appeal should be allowed in part. There should be orders under s 25B as foreshadowed above. Orders 2.1-2.3 and 3.2-3.4 made by the primary judge on 25 November 2013 should be varied in the light of the agreement or submissions of the parties, as foreshadowed above, rather than the work identified in those orders. The parties should be directed to bring in short minutes of orders to give effect to those conclusions.
2. It is desirable to reach finality in these proceedings as quickly as possible, including on all questions as to costs. However, in circumstances where the ameliorative orders are yet to be determined, I consider that it would be preferable to receive submissions from the parties on the question of the costs of the proceedings both before the primary judge and in this Court after they have had the opportunity of considering these reasons. The parties should be directed to make such further written submissions as they are advised in relation to the costs of both proceedings, in the light of the above conclusions. In so far as the costs orders made by the primary judge need to be revisited following the consideration of such further submissions, the orders made on 20 August 2014 may be varied accordingly.
3. I agree with the orders proposed by Basten JA.

Endnotes

1. Major Development Policy, regional panel.
2. EP&A Act, s 4(1), joint regional planning panel.
3. EP&A Act, s 4(1), environmental planning instrument.
4. Clause 13F was repealed by the State Environmental Planning Policy (State and Regional Development) 2011, Sch 6.12[19].
5. Major Development Policy, cl 13F(2)(d) and (f).
6. EP&A Act, s 123(1).
7. EP&A Act, s 4(1), consent authority.
8. EP&A Act, s 4(1), functions.
9. (1998) 193 CLR 72; [1998] HCA 11 at [46] (Gaudron and Gummow JJ) and [141] (Kirby J).
10. EP&A Act, s 79C(1)(b) and (c).
11. Specifically at [322] and [338]-[339].
12. Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46 at [175].
13. [2012] NSWLEC 138; 191 LGERA 51 (Biscoe J).
14. Amalgamated Holdings at [22].
15. [2012] NSWLEC 49.
16. Pselletes v Randwick City Council (2009) 77 NSWLR 287; [2009] NSWCA 262 at [44].
17. EP&A Act, s 101.
18. Rossi (No 3) at [136].
19. Rossi (No 3) at [253].
20. Rossi (No 3) at [254].
21. Regulation, cl 100(1)(a) and (b).
22. Rossi (No 3) at [273].
23. (2011) 81 NSWLR 638; [2011] NSWCA 349 at [17] and [25]-[29].
24. Court Act, s 25A(1).
25. (1987) 10 NSWLR 335 at 339-341.
26. (1987) 11 NSWLR 67.
27. ACR at 82D.
28. (1985) 66 LGRA 306 at 327.
29. (1998) 194 CLR 355; [1998] HCA 28.
30. See ss 123 and 124 of the EP&A Act and ss 20 and 71 of the Court Act.
31. 4th ed (1980) at 152.
32. [2012] NSWLEC 43; 190 LGERA 119 at [37] referring to Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; 150 LGERA 333.
33. Rossi (No 3) at [408] and [409].
34. Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136.
35. Rossi v Living Choice Australia Ltd (No 5) [2013] NSWLEC 197.
36. Rossi (No 5) at [6].
37. Rossi (No 3).
38. Written submissions in this Court, par 61.
39. Supreme Court Act, s 75A(6).
40. Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 at [77].
41. Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 51.53(1)-(4).
42. [2014] NSWLEC 116.
43. Written submissions on appeal, par 90.
44. Rossi (No 6) at [20]-[30]; the point of departure is at [31].
45. Rossi (No 6) at [89].
46. Rossi (No 6) at [90]-[92].
47. (1980) 144 CLR 13 at 35-36.
48. Council's written submissions at par 66.
49. See, for example, Emory University v Biochem Pharma Inc (1998) 86 FCR 1 at 15 (Lindgren J).
50. [2006] NSWLEC 463; 147 LGERA 330 at [50].
51. Section 4 of the Planning Act.
52. Clause 106(d).
53. See, eg, cll 107-110.
54. Until its repeal by the State Environmental Planning Policy (State and Regional Development) 2011, which commenced on 1 October 2011.
55. See Judgment No. 3 at [4].
56. However, s 79C(3A) was introduced in 2012 and commenced operation in March 2013.
57. Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138; 191 LGERA 51 at [28].
58. Clause 14.
59. Clause 15.
60. Section 20(1)(c).
61. Section 25A(1)(b).
62. Section 25A(2).
63. See above at [111]-[112].
64. See above [134], first quoted paragraph.
65. See above at [141]-142].
66. C.f. the original notice of determination: see above at [146].
67. Judgment No. 3 at [335].
68. Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46.
69. Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136.
70. Rossi v Living Choice Australia Ltd (No 5) [2013] NSWLEC 197.
71. Rossi v Living Choice Australia Ltd (No 6) [2014] NSWLEC 116.
72. Rossi v Living Choice Australia Ltd t/as Living Choice [2012] NSWLEC 112.
73. Rossi v Living Choice Australia Ltd t/as Living Choice (No 2) [2012] NSWLEC 144.
74. See above at 188-(f).
75. See Judgment No. 3 at [279].
76. Judgment No. 4 at [12].
77. Judgment No. 4 at [26]ff.
78. Judgment No. 4 at [21].
79. Judgment No. 3 at [353].
80. Judgment No. 3 at [136].
81. Judgment No. 3 at [157].
82. See above at [160]-[161].
83. Judgment No. 3 at [222].
84. (1893) 6 R 67.
85. Judgment No. 3 at [223].
86. Judgment No. 3 at [224].
87. Judgment No. 3 at [225].
88. See above at [127]-[130].
89. Judgment No. 3 at [226].
90. Judgment No. 3 at [227].
91. Judgment No. 3 at [228].
92. Judgment No. 3 at [229].
93. Judgment No. 3 at [242].
94. Judgment No. 3 at [245]-[246].
95. Judgment No. 3 at [250].
96. Judgment No. 3 at [252].
97. Judgment No. 3 at [271]-[272].
98. Judgment No. 3 at [273]-[274].
99. Judgment No. 3 at [275]-[277].
100. Judgment No. 3 at [305]-[309].
101. Judgment No. 3 at [313].
102. Judgment No. 3 at [328].
103. Judgment No. 3 at [330].
104. Judgment No. 3 at [338].
105. Judgment No. 3 at [340].
106. Judgment No. 3 at [349]-[351].
107. Summarised above at [195].
108. Judgment No. 3 at [389].
109. Judgment No. 3 at [394].
110. Judgment No. 3 at [408].
111. Judgment No. 4 at [9].
112. Judgment No. 4 at [11].
113. Judgment No. 4 at [12].
114. Judgment No. 4 at [13].
115. Judgment No. 4 at [19].
116. Judgment No. 4 at [20].
117. Judgment No. 4 at [21].
118. Judgment No. 5 at [1].
119. Both summarised above at [95] and [96]-[97] respectively.
120. Judgment No. 3 at [227].
121. Issue 10 below, dealt with at [368]-[370].
122. Judgment No. 3 at [226].
123. Extracted above at [157]-[159].
124. Judgment No. 3 at [227].
125. Judgment No. 3 at [221]-[222].
126. Judgment No. 3 at [229].
127. Judgment No. 3 at [245]-[246].
128. Judgment No. 3 at [253].
129. Judgment No. 3 at [244].
130. Judgment No. 3 at [245].
131. Judgment No. 3 at [245].
132. Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 at [42].
133. Judgment No. 3 at [396].
134. See above at [157]-[158].
135. See above at [157]-[159].
136. Judgment No. 1 at [57].
137. Judgment No. 1 at [63].
138. See above at [140]-[144].
139. See, eg, Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 23.
140. See above, [124].
141. Judgment No. 4 at [12].
142. See, eg, Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 436.
143. (1936) 55 CLR 499.
144. See House v The King at 505.
145. At [234].
146. See Judgment No. 3 at [276].
147. Judgment No. 5 at [7].
148. Judgment No. 5 at [8].
149. Judgment No. 5 at [9].
150. Citing Ross v Lane Cove Council [2014] NSWCA 50 at [42].
151. Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339.
152. Scharer v State of New South Wales [2001] NSWCA 360; 116 LGERA 217 at [49].

Amendments 24 August 2015 - added decision date 20 August 2014 to the coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2015