Linney v Mosman Municipal Council

[2006] NSWLEC 525

Land and Environment Court

of New South Wales

CITATION:

Linney v Mosman Municipal Council [2006] NSWLEC 525

PARTIES:

APPLICANT
John and Sue Linney

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

11577 of 2005

CORAM:

Hussey C

KEY ISSUES:

Appeal :- Emergency Order, demolition and replacement of a retaining wall, drainage, safety

LEGISLATION CITED:

Environment Planning and Assessment Act 1979

DATES OF HEARING:

14/08/2006

EX TEMPORE JUDGMENT DATE:

08/14/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Prodromou, solicitor
SOLICITORS
Eakin McCaffery Cox

RESPONDENT
Mr S Griffiths, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

14 August 2006

11577 of 2005 John and Sue Linney v Mosman Municipal Council

JUDGMENT

This decision was given extemporaneously.

It has been revised and edited prior to publication.

1 This appeal was lodged against an Emergency Order issued under s 121D of the Environment Planning and Assessment Act, which required the demolition and replacement of a retaining wall at 8 Beauty Point Road, Mosman. The location of the retaining wall is along the common boundary with 8 Delecta Avenue, Mosman and the details of the property, the planning controls and actions of council are contained in the Statement of Basic Facts, on which I rely.

2 I understand that over a period of years approval was granted to certain works within the subject property and as a consequence of these works, then the emergency order was issued to ensure that the existing stone retaining wall be demolished and replaced.

3 Accordingly, a development application was lodged for a block retaining wall and that was approved in November 2003 and then subsequently s 96 modifications were made. However council has approved the form and extent of the retaining wall and a Construction Certificate issued, which confirms the specification for the wall.

4 Apparently there have been some difficulties experienced with access to the properties to enable the wall to be constructed but those difficulties have been overcome. So the parties now agree on the specification to the wall and as access is available, it is also agreed that the work should be completed within a reasonable period, that is the works be completed by 19 November, 2006.

5 In hearing this appeal this morning I have had the opportunity of considering the concerns of the neighbour, Mr Leahman of 8 Delecta Avenue. He raised a number of points that are relevant to his property, particularly the drainage provisions and safety fencing for the replacement wall, which I have considered. The drainage concerns relate to the agricultural line at the toe of the wall and also the surface drain at the top of the wall. Considering the site slopes that exist on the subject block of land, it seems quite important that the associated drainage works for any newly constructed retaining walls is structurally adequate, so that it performs its design function over a reasonable period.

6 Therefore, the clarification of the detailing (on the approved engineering plans) for these drainage provisions concerning the agricultural drainage line and top surface drain outlets can be reasonably covered in a modified order, which requires a structural engineer or an appropriate engineer to certify, before the construction of the wall component, that this drainage is adequate.

7 Also, following Mr McFadyn’s comments, it seems appropriate that the other safety fencing aspect of the wall should be complied with as part of the works. That involves the construction of at the least, a barrier across the top of the wall that complies with the minimum provisions of the BCA. I consider it reasonable for the construction of such a safety barrier.

8 On that basis then, the Court orders are:

1. The appeal is upheld.

2. The Emergency order dated 28 November 2005 is modified in accordance with Annexure ‘A’

3. The exhibits be returned except for Exhibits 1, 4 and D.

___________________

R Hussey
Commissioner of the Court
rjs