Rossi v Living Choice Australia Ltd (No 5) [2013] NSWLEC 197

Procedural Posture

Class 4 Proceedings for Consequential Orders Following an Established Breach of the Environmental Planning and Assessment Act 1979 / Making of Final Orders After Earlier Judgments

Legal Issues

1. 1 ['What final orders should be made following the earlier judgments, including orders for landscaping along the Rossi boundary.' 'Whether Living Choice should be ordered to remove the keystone concrete block wall, gravel footings and backfill placed on the Rossi land.' 'Whether fill on Living Choice land within the 3m strip next to the Rossi boundary should be removed.' "Whether orders could require Mr Rossi to carry out landscaping work at Living Choice's expense." 'What form of boundary fencing should be erected.']

Ratio Decidendi

Because Living Choice was the party found to have breached the Environmental Planning and Assessment Act 1979, the appropriate consequential orders were orthodox remedial orders requiring Living Choice to undertake works on its own land at its expense. The Court declined to order Mr Rossi, who was not found to be in breach, to carry out landscaping work funded by Living Choice, and declined to order removal of fill in the 3m strip where the Living Choice landscaping scheme would be implemented.

Court Disposition

Subject to the final matter of the fence, the Court indicated it would make the orders proposed by Living Choice; costs remained outstanding.

Orders

• ['Living Choice is to remove the keystone concrete block wall on the Rossi boundary, including all gravel footings and backfill placed on the Rossi land by Living Choice.' 'The Court will not order removal of all drainage behind the keystone concrete wall.' 'The Court will not order removal of the fill in the 3m...