Daily Construction: Tuesday, 25 August 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Construction

Executive Summary (One Minute Read)
Rossi v Living Choice Australia Ltd (NSWCA) - environment and planning - consents for development - breaches of Environmental Planning and Assessment Act 1979 (NSW) - first notification of determination of consent invalid - relief - appeal allowed in part
Fabfloor and Danfoss v BNY Trust Company (VSC) - joinder - insufficient evidence to sustain claims against proposed added defendants - applications refused
Summaries With Link (Five Minute Read)
Rossi v Living Choice Australia Ltd [2015] NSWCA 244
Court of Appeal of New South Wales
Basten, Ward & Emmett JJA
Environment and planning - first respondent obtained development approval (Stage 2 consent) for development - first respondent also obtained another consent (Retaining Walls consent) in relation to development - appellant commenced proceedings against first respondent, second respondent Council and third respondent Planning Panel seeking declarations consents void and of no effect - appellant also claimed orders for demolition of units and remedial orders - primary judge made declaration of invalidity in relation to Retaining Walls consent and made remedial orders - primary judge refused to make an order of invalidity in respect of Stage 2 consent - appellant appealed - second respondent Council cross-appealed - first respondent filed notice of contention supporting orders made by the primary judge and has also sought leave to file a cross-appeal - principal questions concerned relief to be ordered when development consent granted under Environmental Planning and Assessment Act 1979 (NSW) found invalid and development is carried out without required development consent - held: Council’s assessment function was not amenable to judicial review - only determination of Panel was amenable to judicial review - Council and Panel breached s79C - declaration of invalidity in respect of first notification of determination of Stage 2 consent - Stage 2 consent not declared invalid - work to be carried out to obviate adverse consequences for appellant’s land from removal of vegetation without appellant’s consent and without development consent - appeal allowed in part.
Fabfloor and Danfoss v BNY Trust Company [2015] VSC 434
Supreme Court of Victoria
Derham AsJ
Joinder - second defendant in two proceedings concerning fire at warehouse sought to add same proposed defendants in each of the proceedings as concurrent wrongdoers pursuant to s24AL(1) Wrongs Act 1958 (Vic) - proportionate liability regime - r9.06(b)(ii) Supreme Court (General Civil Procedure) Rules 2005 (Vic) - held: affidavits in support of applications did not provide sufficient evidence to sustain arguably viable claims against proposed defendants to be added - there was no evidence to support claim against three of the proposed defendants and evidence to support claims of the other defendants was insufficient - applications refused.