Rossi v Living Choice Australia Ltd [2015] NSWCA 244

Rossi v Living Choice Australia Ltd [2015] NSWCA 244

The validity of a development consent granted by a regional planning panel is not vitiated by errors or omissions in the council’s assessment function unless those errors infect the panel’s actual determination. Both the council and the panel failed to consider mandatory relevant impacts under s 79C of the Environmental Planning and Assessment Act 1979 (NSW), specifically regarding elevation differences and amenity to adjoining land. However, rather than declaring the consent invalid, the appropriate relief is an ameliorative order requiring landscaping to mitigate adverse effects. Additionally, a declaration was made that the first notification of consent was invalid, but this did not...

Jurisdiction
Australia
Judgment Date
21 August 2015
Procedural Posture
Appeal / Final Appellate Judgment With Directions and Orders After Appeal of Land and Environment Court (class 4 Jurisdiction) Decision
Outcome
Appeal allowed in part; cross-appeals dismissed; orders set aside and remade in accordance with appellate court’s directions.
Legal Topics
['development Applications' 'judicial Review of Planning Determinations' 'statutory Interpretation' 'local Councils and Regional Planning Panels' 'planning Instruments and Policies' 'landscaping Orders as Relief' 'declarations and Orders of Invalidity' 'costs Orders in Environmental Proceedings']
['environment and Planning Law' 'administrative Law'] ['development Applications' 'judicial Review of Planning Determinations' 'statutory Interpretation' 'local Councils and Regional Planning Panels' 'planning Instruments and Policies' 'landscaping Orders as Relief' 'declarations and Orders of Invalidity' 'costs Orders in Environmental Proceedings']

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Procedural Posture

Appeal / Final Appellate Judgment With Directions and Orders After Appeal of Land and Environment Court (class 4 Jurisdiction) Decision

Legal Issues

  1. 1 ["Whether errors or omissions in council's 'assessment' function can vitiate a development consent granted by a regional panel" 'Whether the panel and council failed to consider mandatory relevant matters (such as impacts arising from fill and retaining structures) under s 79C of the Environmental Planning and Assessment Act 1979 (NSW) and the Seniors Policy' 'Validity and effect of notifications of determination of development applications under s 81 and the Regulations' 'Appropriate scope of discretionary relief, including ameliorative orders under s 25B of the Land and Environment Court Act 1979 (NSW) as alternative to declarations of invalidity' 'Entitlement and apportionment of costs']

Ratio Decidendi

The validity of a development consent granted by a regional planning panel is not vitiated by errors or omissions in the council’s assessment function unless those errors infect the panel’s actual determination. Both the council and the panel failed to consider mandatory relevant impacts under s 79C of the Environmental Planning and Assessment Act 1979 (NSW), specifically regarding elevation differences and amenity to adjoining land. However, rather than declaring the consent invalid, the appropriate relief is an ameliorative order requiring landscaping to mitigate adverse effects. Additionally, a declaration was made that the first notification of consent was invalid, but this did not...

Court Disposition

Appeal allowed in part; cross-appeals dismissed; orders set aside and remade in accordance with appellate court’s directions.

Orders

  • ['Orders that parties consult and reach agreement on ameliorative landscaping to provide necessary screening, to be filed within 14 days, with process for determining on the papers if agreement is not reached.' 'Set aside costs orders below except as to Joint Regional Planning Panel; leave for parties to make...