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