Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136

Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136

The stage 2 consent should not be declared void because the disputed area was a relatively small part of a large development, the unassessed substance concerned retention of fill near the Rossi boundary and was dealt with by the retaining walls consent, and no utility would be served by invalidating the stage 2 consent. The retaining walls consent should be declared void and of no effect in part to the extent it relates to the Rossi boundary because it authorised prohibited development in a rural zone and the breach was more than technical. A s 25B order was inappropriate because the assessment would need to be redone in a fundamental way and because unauthorised clearing, the keystone...

Jurisdiction
Australia
Judgment Date
16 August 2013
Procedural Posture
Class 4 Judicial Review and Civil Enforcement Proceedings Concerning Development Consents / Consequential Declarations and Orders Following Rossi V Living Choice Australia (no 3) [2013] NSWLEC 46
Outcome
Draft declarations and orders were provided to the parties for comment before finalisation; the parties were also to advise what steps they wished the Court to take in relation to a costs order.
Legal Topics
['development Consent Validity' 'mandatory Relevant Considerations Under S 79 C of the Environmental Planning and Assessment Act 1979' 'development Carried Out Without Consent' 'conditional Validity Orders Under S 25 B of the Land and Environment Court Act 1979' 'declaratory Relief' 'ameliorative Orders']
['environmental Planning Law' 'administrative Law' 'land and Environment Court Procedure'] ['development Consent Validity' 'mandatory Relevant Considerations Under S 79 C of the Environmental Planning and Assessment Act 1979' 'development Carried Out Without Consent' 'conditional Validity Orders Under S 25 B of the Land and Environment Court Act 1979' 'declaratory Relief' 'ameliorative Orders']

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Procedural Posture

Class 4 Judicial Review and Civil Enforcement Proceedings Concerning Development Consents / Consequential Declarations and Orders Following Rossi V Living Choice Australia (no 3) [2013] NSWLEC 46

Legal Issues

  1. 1 ['Whether final declarations should be made that the stage 2 consent and retaining walls consent were void and of no effect.' 'Whether an order under s 25B of the Land and Environment Court Act 1979 should be made instead of declaring the retaining walls consent invalid.' 'Whether consequential restraint, demolition, removal of fill, restoration and landscaping orders should be made.' 'What ameliorative orders should address work carried out without development consent on or near the Rossi boundary.']

Ratio Decidendi

The stage 2 consent should not be declared void because the disputed area was a relatively small part of a large development, the unassessed substance concerned retention of fill near the Rossi boundary and was dealt with by the retaining walls consent, and no utility would be served by invalidating the stage 2 consent. The retaining walls consent should be declared void and of no effect in part to the extent it relates to the Rossi boundary because it authorised prohibited development in a rural zone and the breach was more than technical. A s 25B order was inappropriate because the assessment would need to be redone in a fundamental way and because unauthorised clearing, the keystone...

Court Disposition

Draft declarations and orders were provided to the parties for comment before finalisation; the parties were also to advise what steps they wished the Court to take in relation to a costs order.

Orders

  • ['Draft declarations and orders are provided to the parties for their comment before finalisation.' 'The parties are also to advise what steps they wish the Court to take in relation to a costs order.']