Rossi v Living Choice Australia Ltd (No 2) [2015] NSWCA 301

Rossi v Living Choice Australia Ltd (No 2) [2015] NSWCA 301

Appropriate ameliorative relief for unauthorised development works remains unresolved due to lack of joint expert evidence; costs of trial and appeal should be apportioned globally, not by issue, reflecting the partial success of Mr Rossi and active opposition by respondents. The operation of the impugned planning consent should be suspended in part under s 25B until substantial compliance with remitted orders, with liability for costs jointly and severally apportioned in stated proportions and interest to be paid on the allowed percentage of actual costs paid.

Jurisdiction
Australia
Judgment Date
30 September 2015
Procedural Posture
Appeal / Final Judgment on Costs and Remittal Orders
Outcome
Appeal allowed in part; orders made for suspension of development consent, remittal, apportionment of costs, and interest on costs.
Legal Topics
['development Consent' 'ameliorative Relief' 'apportionment of Costs' 'suspension of Consent' 'jurisdiction of Land and Environment Court']
['administrative Law' 'planning Law' 'civil Procedure'] ['development Consent' 'ameliorative Relief' 'apportionment of Costs' 'suspension of Consent' 'jurisdiction of Land and Environment Court']

Case Brief

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Procedural Posture

Appeal / Final Judgment on Costs and Remittal Orders

Legal Issues

  1. 1 ["What are the appropriate ameliorative orders concerning the unauthorised works affecting the appellant's land?" 'How should costs be apportioned for both the proceedings at first instance and on appeal?' 'Should the operation of the development consent be suspended, and in what terms?' 'What is the appropriate formula for interest on costs and how should joint and several liability be apportioned?']

Ratio Decidendi

Appropriate ameliorative relief for unauthorised development works remains unresolved due to lack of joint expert evidence; costs of trial and appeal should be apportioned globally, not by issue, reflecting the partial success of Mr Rossi and active opposition by respondents. The operation of the impugned planning consent should be suspended in part under s 25B until substantial compliance with remitted orders, with liability for costs jointly and severally apportioned in stated proportions and interest to be paid on the allowed percentage of actual costs paid.

Court Disposition

Appeal allowed in part; orders made for suspension of development consent, remittal, apportionment of costs, and interest on costs.

Orders

  • ["Mr Rossi's appeal is allowed in part." 'Pursuant to s 25B of the Land and Environment Court Act 1979, suspend development consent number 280/2010/JP issued by the third respondent insofar as it relates to the construction of villa units 206-210 until substantial compliance with any orders made on remittal or...