Jacobs v Hurstville City Council

[2007] NSWLEC 470

Land and Environment Court

of New South Wales

CITATION:

Jacobs v Hurstville City Council [2007] NSWLEC 470

PARTIES:

Applicant
Kevin Roy Jacobs

Respondent
Hurstville City Council

FILE NUMBER(S):

10061 of 2007 and 10062 of 2007

CORAM:

Murrell C

KEY ISSUES:

Appeal :- Order for demolition of retaining wall

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

4/06/2007, 29/06/2007 and 16/07/2007

 
DATE OF JUDGMENT: 

16 July 2007

LEGAL REPRESENTATIVES:

Applicant
Mr. K. R. Jacobs, litigant in person

Respondent
Ms. J. Hewitt, solicitor
with Mr Melino, solicitor
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

16 July 2007

10061 of 2007 Kevin Roy Jacobs v Hurstville
10062 of 2007 Council

JUDGMENT

1 This is an extempore judgment for an appeal under s 121 of the Environmental Planning and Assessment Act against Hurstville City Council’s issuing of an order to the owner of the property being Lot 169 known as No 75 Clark Street Peakhurst. The owner of the property is Mr Jacobs and Mr Jacobs is a litigant in person in these proceedings.

2 The Court first met on site on 4 June and inspected the property and the environs of the retaining wall/concrete wall at the rear on the boundary of Mr Jacobs’ property with No 73 Clark Street. The Court issued directions that Mr Jacobs seek advice from a structural engineer about the structural soundness of the wall near the boundary and impacts on surrounding lands and if structurally not sound what necessary works would be required.

3 The Court resumed on 29 June. However, at that point in time there had been considerable rain and an unusual large amount of rainfall, and a significant number of rain days. As such the Court allowed an adjournment until today to allow Mr Jacobs further time to obtain the necessary advice.

4 The Court today has the benefit of the experts, Ms Jane Nicol, the council officer, manager of environmental health and building, and also has the benefit of the evidence of Mr Bruce Jamieson, a structural engineer, and his credentials have also been provided to the Court. The two experts assisted the Court by conferencing to identify the necessary staging of works that would be required to ensure that the wall is structurally sound and to overcome unreasonable drainage to the adjoining neighbour at the rear, that is the Georges River National Park. As such, the experts agreed on a scope of works to be undertaken or caused to be undertaken by Mr Jacobs and the position now is that the parties have agreed on the staging of the works in terms of a time frame attached to those staged works and those staged works would require three inspections at various points.

5 The Court through this process has sought to resolve to the satisfaction of both parties the assurance for the wall to be made structurally sound and to alleviate the concerns in that regard and also to have regard to Mr Jacobs’ needs.

6 Earlier in these proceedings I indicated that without further works the appeal would have been dismissed.

7 It is now proposed that there be some stone steps provided next to the retaining wall which will also have the effect of shoring up the retaining wall and there are also other works that have been identified in Mr Jamieson’s report.

8 The parties have now agreed to consent orders being issued by the Court and the Court sees no reason as to why these consent orders should not be issued.

9 Accordingly the formal orders of the Court are:

1. The appeals in respect of the property being Lot 169 in DP 11124, known as 75 Clarke Street Peakhurst, are upheld in part.
2. The Orders dated 29 November 2006 issued by Hurstville City Council under s121B of the Environmental Planning and Assessment Act 1979 are replaced by the following order set out in (a) to (d) below:
a. The applicant is to carry out or cause to be carried out works in accordance with the following documents that are attached:
i. Drawing 59480-1 amended by hand on 16/7/2007 – Annexure 1
ii. scope of works prepared by J. Nicol and B. Jamieson on 16/7/2007 – Annexure 2.
b. All works set out in the attached scope of works are to be completed by 30 September 2007.
c. All works are to be completed at the direction and under the supervision of Bruce W. Jamieson, Engineer of Kneebone and Bernetta Engineers, including but not limited to, the inspections required under the attached scope of works .
d. Upon completion of the works, certification from Bruce Jamieson of all works carried out is to be provided to the respondent within ten working days.

3. The exhibits except G and 6 are returned to the parties.

___________________

J Murrell
Commissioner of the Court

A.K/ljr

Appeal No: 10061 of 2007 and 10062 of 2007

Annexure `2'

SCOPE OF WORKS

Stage
July 16-10 August 1 Construct lower Ag. pipe between footing and stone, base clean trench constructed and gravel

Inspection 1
5-14 August 2
Construct steps using stone blocks and cement mortar

8-20 August 3 Building upper grated pit

15-31 August 4 Provide stilling bed at boundary below stonework enclose in galvanised mesh box

Inspection 2
1-10 September 5
Build in second grated pit

10-30 September 6 Construct absorption trench along rear boundary with Ag. pipe and sock

Inspection 3
7
Works shall not encroach on reserve
Note: The various stages of the scope of works as generally described above are a guide to the applicant and it is recognized that some tasks may be undertaken concurrently. The essence of the timetable is to ensure work progresses in a timely manner under the supervision of Bruce Jamieson and to allow inspections at identified times and stages.