Mailey v Sutherland Shire Council

The Land and Environment Court of New South Wales heard an appeal in *Mailey v Sutherland Shire Council*. The appellants sought to challenge an order issued by the respondent council requiring them to undertake work to place their land in a safe condition. The dispute centred on a retaining wall that was at imminent risk of collapse and straddled the common boundary between the appellants' land and that of another owner.

The Court was required to determine several legal issues. These included whether the council had the power to issue the order under the relevant legislation, specifically whether the lower land was not in a safe condition. A key question was whether an order could validly require work to be carried out on upper land owned by a person other than the recipient of the order. The Court also considered whether any part of the order was invalid and, if so, whether it was severable, and whether the order was uncertain or issued for an improper purpose. Finally, the Court addressed the appellants' claim for compensation, should the order be found invalid, and the source of power to award such compensation.

The Court reasoned that the council possessed the necessary statutory power to issue the order, finding that the condition of the retaining wall meant the lower land was not in a safe condition. It was held that the order was not invalid simply because it required work on land not owned by the appellants, as the legislation permitted such requirements to address the unsafe condition. The Court found that the order was not uncertain and had not been issued for an improper purpose. Consequently, the challenges to the validity of the order were dismissed.

The appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal.