Blue Mountains City Council v Jeray

Blue Mountains City Council (the Council) sought to enforce a notice issued under section 121 of the *Local Government Act 1993* (NSW) requiring the respondents, Mr and Mrs Jeray, to remove a retaining wall and associated landscaping from their property. The Council contended that the works constituted a development that had not been carried out in accordance with a development consent, and that the retaining wall was unsafe and a danger to the public. The respondents argued that the works were exempt development and did not require consent, and that the notice was invalid. The matter came before Lloyd-Jones J in the Supreme Court of New South Wales.

The primary legal issues before the Court were whether the retaining wall and landscaping constituted development for the purposes of the *Environmental Planning and Assessment Act 1979* (NSW), and if so, whether it was exempt development under the relevant environmental planning instrument. The Court was also required to determine whether the Council had properly exercised its power under section 121 of the *Local Government Act 1993* (NSW) in issuing the notice, particularly in relation to the alleged danger posed by the retaining wall.

Lloyd-Jones J found that the retaining wall, by virtue of its height and construction, constituted development that required development consent. His Honour determined that the works did not fall within the scope of any exemption under the relevant planning instruments. Furthermore, the Court was satisfied that the retaining wall presented a genuine risk of collapse and posed a danger to the public, thereby justifying the Council's action under section 121 of the *Local Government Act 1993* (NSW). The Court concluded that the notice was validly issued and enforceable.

The Court ordered that the respondents remove the retaining wall and associated landscaping within a specified period, and that they pay the Council's costs of the proceedings.