Nasip v Central Coast Council

[2024] NSWLEC 1807

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nasip v Central Coast Council [2024] NSWLEC 1807

Hearing dates:

2 December 2024

Date of orders:

17 December 2024

Decision date:

17 December 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) The exhibits are returned with the exception of Exhibit A, B, and 1

Catchwords:

APPEAL – Development control order for demolition – unauthorised retaining walls constructed – appeal dismissed.

Legislation Cited:

Environmental Planning and Assessment Act 1979, Pt 1, Sch 5, Div 9.3, ss 1.4, 8.18, 8.20, 9.34

Land and Environment Court Act 1979, ss 34, 38

Central Coast Local Environmental Plan 2022

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl 2.30

Wyong Local Environmental Plan 2013

Cases Cited:

Chhabra v Ku ring gai Council [2021] NSW 1009

Texts Cited:

Australian Standard AS 2601-2001 - The Demolition of Structures

Category:

Principal judgment

Parties:

Salih Nasip (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
S Nasip (Self-Represented) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Local Government Legal (Respondent)

File Number(s):

2024/162709

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: The Applicant, Mr Nasip appeals pursuant under s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) the issue of a development control order (DCO) by Central Coast Council. That DCO was an order made pursuant to Div 9.3 of the EPA Act served on Salih Nasip, Lauren Maree Froude and Gulumser Nasip as owners of the land at 17 Cobbs Road Mardi, NSW (Lot 13 in DP 785788).

2. As permitted by s 38 of Sch 5 to the EPA Act, the DCO is in two parts. The first order is a Demolish Works Order relating to three retaining walls on the land. It requires the demolition of four retaining walls on the land which are identified and numbered one through three on an aerial photo of the land annexed to the order. The second order is a Compliance Order in relation to Retaining Wall 4. It requires the reduction in height of a fourth retaining wall to a maximum height of 600mm above ground level by the removal of the uppermost level of the concrete retaining wall blocks.

3. In the course of the proceedings the parties both made submissions that the requirements of the DCO in relation to retaining wall 4 are agreed. Namely, Mr Nasip accepts that the DCO should remain in place to the extent that it requires the height of the fourth retaining wall to be reduced to a maximum height of 600mm above ground level. The parties accept this requirement of the DCO can be achieved by the removal of the uppermost level of the concrete retaining wall blocks that from the structure of Retaining Wall 4.

4. The disputed DCO is in the form of an Order 3 “Demolish Works”, issued under s 9.34(1)(b) of the EPA Act. The ‘Demolish Works’ order was issued as the identified retaining walls had been erected without development consent. The terms of the DCO are as follows (emphasis original). The disputed portion is Item 1:

“Pursuant to Division 9.3 Development control orders of the Environmental Planning and Assessment Act 1979 (the Act) Central Coast Council ORDERS Salih Nasip and Lauren Marie Froude and Gulumser Nasip to do each of the following:

1. Demolish the retaining walls identified as Retaining Wall 1, Retaining Wall 2 and Retaining Wall 3 in Figure 1 of attached annexure to the Order.
2. Reduce the height of Retaining Wall 4 identified in Figure 1 of the attached annexure to 600mm above ground level by removing the fourth row of concrete sleepers where applicable.

…

Reasons

For the purposes of Division 9.3 Development control orders of the Act, the above orders are given for the reasons set out below:

1. The retaining walls have been built in excess of the maximum height allowable under the NSW State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 and therefore required development consent.

2. The retaining walls were constructed without Development Consent, a Construction Certificate and the appropriate engineering certification as being structurally adequate.

3. The height of the retaining walls is such that it is considered that they pose a potential hazard without appropriate certification,

4. Similarly constructed retaining walls along the driveway access have collapsed.”

5. Further, the DCO requires that:

• All demolition work is to be undertaken in accordance with Australian Standard AS 2601-2001: The Demolition of Structures;

• All demolition waste is to be removed to an approved waste management facility; and

• Receipts from this facility are to be kept and produced to a Council officer on request.

6. The timeframe for compliance with the DCO was within 90 days of it being served. This timeframe has expired. The terms of the DCO have not been complied with. The effect of s 8.20 of the EPA Act is that the DCO continues to have effect, and is not stayed, by the commencement of an appeal.

7. The appeal was subject to mandatory conciliation under s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4) of the LEC Act and the proceedings were listed for hearing.

Background

8. The respective statements of facts and contentions filed by both parties in the proceedings detail a long history of interactions between the Respondent and the Applicant. The following are facts that are those noted by both parties and that are relevant to the determination of the appeal:

• In September 2020 staff from the Respondent attended the land after receipt of a complaint in regard to illegal earthworks occurring. The documented recollection of the Council officer, and Mr Nasip, is that he was advised three relevant matters. Firstly, that the works he had completed at that time already exceeded the extent of earthworks permitted as exempt development. Secondly, that he should cease work and thirdly that development consent should be sought.

• That from the end of 2020 through to March 2021 a series of complaints were received by the Respondent of sediment run off from the site. Mr Nasip argues this occurred due to persistent and unusually high rainfall experienced on the Central Coast at this time.

• On 23 March 2021 the Respondent issued a show cause letter regarding the alleged water pollution and direction to take Preventative Action requiring installation of sediment controls and to stop earthworks.

• On 30 June 2021, the Respondent issued the owners of the land a show cause letter regarding earthworks and construction of retaining walls on the land.

• A Notice of Intention to issue a Stop Works DCO was issued to the Mr Nasip on 5 August 2021. The Stop Works DCO was issued to 18 August 2021. These orders were in relation to earthworks and retaining walls.

• On 19 October 2023 staff from the Respondent attended the site and observed the construction of Retaining Wall 1, Retaining Wall 2, and Retaining Wall 3. The affidavit of Mr Lovelock and its annexures include photographs and his estimates of the height of Retaining Wall 1 as 1900mm, Retaining Wall 2 at 1900mm at that time. Mr Lovelock further notes that Retaining Wall 3 was in the early stages of construction at that time. Mr Nasip notes in his affidavit that he was advised during this inspection that retaining walls over 600mm and earthworks involving cut and fill of more than 600mm required development consent.

• A Stop Works DCO was issued to the Applicant on 3 November 2023. Various penalty infringement notices in relation to development without development consent were issued on 16 November 2023.

• A Notice of a Proposed order requiring the demolition of the four retaining walls was issued to the Applicant on 19 December 2023.

• The DCO that is the subject of these proceedings was served on the Applicant on 8 April 2024.

• The Class 1 application appealing the DCO was filed with the Court on 2 May 2024. The Applicant seeks for the DCO to be revoked.

The legislative basis of the order

9. A Demolish Works Order is an order to demolish or remove a building. Section 1.4 of the EPA Act defines a building to also include a structure or a part of a structure. I am satisfied a retaining wall falls within the definition of a building for the purposes of a Demolish Works Order.

The order was served on the owner of the building.

10. The Applicant, Mr Nassip is the owner of the land with Lauren Maree Froude and Gulumser Nasip. The order was validly issued to the owner of the land on which the four retaining walls are erected: Sch 5, Pt 1 Demolish Works Order column 3 of the EPA Act.

The retaining walls are structures that required a planning approval prior to erection.

11. The site is zoned R5 Large Lot residential pursuant to Central Coast Local Environmental Plan 2022 (LEP 2022) which was the LEP in force at the time of the issue of the DCO (8 April 2024). The land was zoned R5 Large Lot residential under the former Wyong Local Environmental Plan 2013.

12. Pursuant to LEP 2022 only development for the purposes of home occupations is permitted without consent in the R5 Large Lot residential zone. Development for the following purposes is permitted with consent:

Animal boarding or training establishments; Bed and breakfast accommodation; Boat launching ramps; Boat sheds; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Emergency services facilities; Environmental facilities; Environmental protection works; Flood mitigation works; Group homes; Home-based child care; Home businesses; Home industries; Home occupations (sex services); Information and education facilities; Jetties; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Research stations; Respite day care centres; Roads; Secondary dwellings; Sewage reticulation systems; Tank-based aquaculture; Veterinary hospitals; Water recreation structures; Water recycling facilities; Water reticulation systems; Water storage facilities

13. Any development not specified as either permitted without consent, or permitted with consent is prohibited.

14. It is an agreed submission of the parties that no development consent was issued for the construction of the four retaining walls the subject of the DCO. Mr Nasip does not argue that the four retaining walls are approved structures or that they did not require consent under the applicable local environmental plan.

15. Before concluding that the four retaining walls are structures requiring a planning approval that were erected without approval, the state required for a demolish works DCO under Sch 5, Pt 1 of the EPA Act, it is necessary to determine whether the retaining walls are exempt development for the purposes of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP).

16. Under cl 2.30 of Codes SEPP, development relating to earthworks and the construction or installation of a retaining wall or other form of structural support is exempt if it complies with the following development standards:

2.30   Development standards

The standards specified for that development are that the development must—

(a)  not be a cut or fill of more than 600mm below or above ground level (existing), and

(b)  be located at least 1m from each lot boundary, and

(c)  if it is carried out, constructed or installed in a heritage conservation area or a draft heritage conservation area—be located in the rear yard, and

(d)  be located at least 40m from a waterbody (natural), and

(e)  not redirect the flow of any surface water or ground water or cause sediment to be transported onto an adjoining property, and

(f)  if it is a retaining wall or structural support for excavation or fill, or a combination of both—

(i)  be not be more than 600mm high, measured vertically from the base of the development to its uppermost portion, and

(ii)  be separated from any retaining wall or other structural support on the site by at least 2m, measured horizontally, and

(iii)  be located at least 1m from any registered easement, sewer main or water main, and

(iv)  have adequate drainage lines connected to the existing stormwater drainage system for the site, and

(g)  if the fill is more than 150mm deep—not occupy more than 25% of the area of the lot, and

(h) if the fill is imported to the site—be free of building and other demolition waste, and only contain virgin excavated natural material (VENM) as defined in Part 3 of Schedule 1 to the Protection of the Environment Operations Act 1997, and

(i)  if the land is in a rural or conservation zone—not be fill of more than 100 cubic metres on each lot.

17. The Respondent relies on an affidavit of Mr Paul Lovelock, who is a Development Control Officer at Central Coast Council and the Statement of Facts and Contentions to establish that each of the retaining walls exceed the development standard at s 2.30 ((f)(i) of the Codes SEPP of 600mm.

18. Further, Mr Nasip tendered structural drawings for each of the retaining walls. These structural drawings indicate the maximum height of the retaining walls 1 and 2 as being designed to a maximum height of 2200mm. Mr Nasip does not submit that the walls are not of a height that exceeds the development standard at s 2.30 ((f)(i) of the Codes SEPP of 600mm. It was self evident on the site inspection undertaken at the commencement of the hearing that retaining walls 1-3 exceed 600mm measured in accordance with cl 2.30(f)(i) of Codes SEPP: s 38(2) of the LEC Act.

19. I find that each of the retaining walls the subject of the DCO are not exempt development under the Codes SEPP.

20. Further, I find that the retaining walls that are the subject of the DCO are structures that required a planning approval and were erected without that approval.

21. Given the findings in the preceding the circumstances for the issue of a Demolish Works Order, Order 3 under Sch 5, Pt 1 of the EPA Act existed at the time of the order, and remain in existence.

Discretion to revoke or modify the order

22. The relevant power that the Respondent had in respect of the matter the subject of the appeal is the power to issue an order pursuant to s 9.34(1) of the EPA Act, which provides as follows:

9.34   Orders that may be given (cf previous s 121B)

(1)  The development control orders that may be given under this Act are as follows—

(a) general orders in accordance with the table to Part 1 of Schedule 5,

…

23. In addition, s 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order. Those powers are:

(4)  On hearing an appeal, the Court may—

(a)  revoke the development control order, or

(b)  modify the development control order, or

(c)  substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d)  find that the development control order is sufficiently complied with, or

(e)  make such order with respect to compliance with the development control order as the Court thinks fit, or

(f)  make such other order with respect to the development control order as the Court thinks fit.

24. I accept the submission of Mr Cottom that I should follow the reasoning and approach of Gray C in Chhabra v Ku ring gai Council [2021] NSW 1009, in particular her findings at [68] that even if the statutory requirements for the making of the DCO in Sch 5, Pt 1 of the EPA are met, the language of ss 8.18(4) and 9.34(1) confers discretion on the Court. That discretion is to consider whether to revoke the order (as sought by the Applicant), issue an order, and to consider the appropriate orders on the appeal.

25. It is Mr Nasip’s application to revoke the DCO. Further, I accept the submission of Mr Cottom that Mr Nasip bears the burden of persuading the Court that the DCO should be modified or revoked. It follows that, as the Respondent has identified four reasons for the giving of the order, he has the burden of establishing that those reasons are either insufficient to warrant the DCO, are incorrect, or are satisfied. I consider he has failed to discharge that burden for the reasons that follow.

26. Mr Nasip relies on three principal arguments to persuade the Court that the DCO should be revoked. Firstly, that the walls were constructed to engineering details and by a licensed contractor. Secondly that the walls do not pose a hazard and that the wall the Council argues collapsed he, in fact demolished. Thirdly, that the walls were constructed in an emergency situation. His explanation for this third reason is extracted below:

“These walls have been built in an emergency situation, Ground was collapsing from no retaining and excess rain and climate conditions, water from the neighbouring property was causing flooding in [the] house and the shed. Also causing mudslides onto the road, then having Council visit us and warning us to clean up the mud. All walls are retaining ground and will cause a potential land slide and collapse of ground if removed. One wall is retaining ground that our shed is siting on, removing it will underline the ground causing the ground to collapse. Removing any of these walls will cause immediate danger to my family and myself.”

(Exhibit B)

27. Fourthly, Mr Nasip submits that the Court should give weight to the fact that he (and his family) have invested significant resources into constructing the retaining walls. In support of this submission Mr Nassip tendered receipts for the construction works from a licensed bricklaying company.

28. I am not persuaded that the first reason advanced is sufficient to exercise the discretion to revoke the order. I accept that Mr Nasip has tendered for the Court engineering drawings that appear to be structural designs of retaining walls for his land. However, I find this information is insufficient to persuade me of the structural safety of the retaining walls that are the subject of the DCO. I have no expert evidence before me demonstrating that the walls in place on the site were constructed in conformance with these plans and specifications. Despite Mr Nasip’s oral submissions that the walls can be structurally certified if he is able to complete them, I do not have any evidence from a suitably qualified person that this is in fact the case. Mr Nasip has failed to establish that the reason advanced by the Respondent for the DCO, namely that “the height of the retaining walls is such that it is considered that they pose a potential hazard without appropriate certification” is without foundation.

29. The second reason advanced by Mr Nasip has the same shortcomings as the first. In the absence of the development consent and construction certification process the attendant risks of retaining structures (for example the risk of collapse, stormwater management and geotechnical hazard) have not been assessed and mitigated. Mr Nasip has not provided evidence that supports his assertion the retention of the structures (through the revoking of the order) does not pose the hazard advanced by the Respondent as the reason for the DCO.

30. In the context of the factual background advanced by the parties in their evidence, and summarised at [8], I am not persuaded by the third reason advanced by Mr Nasip. It may be the case that at the commencement of the works on the site the Central Coast was experiencing prolonged rain events which caused Mr Nasip to be concerned about the potential for undermining of the existing shed and the movement of ground within the site. I note Mr Nasip tenders’ evidence from The Australian Institute for Disaster Resilience to establish these circumstances were present in March 2021. I accept this evidence, but it only takes the matter so far. The affidavit of Mr Lovelock which was tendered without objection, includes photographs which demonstrate the excavation works (cut and fill) to bench the site and create the need for the retaining structures was in place in September 2020. It is an inference open to the Court on the evidence, that the excavation works undertaken prior to the weather events of March 2021 exacerbated the concerns Mr Nasip was seeking to address. I note Mr Nasip agrees he was informed at that time that those excavation works that they required consent (which was not obtained), and any retaining structures of a height greater than 600mm required consent. Mr Nasip proceeded to construct the retaining walls, the subject of the DCO contrary to this advice and despite ongoing engagement with Council’s compliance officers. Further, the invoices tendered and relied on by Mr Nasip indicate that the construction (bricklaying) works occurred in June and October 2023.

27. Finally, in considering the fourth reason advanced by Mr Nasip, I accept that the decision of the Court not to revoke the DCO will result in additional cost to Mr Nasip, and his family, to give effect to the demolition.

28. None of the reasons advanced by Mr Nasip individually or collectively persuade me that the DCO should be revoked.

29. The above reasons form a sufficient basis upon which I have determined that it is not appropriate to exercise the Court’s discretion to modify the DCO in any way. I am not persuaded on the basis of the material tendered in the proceedings by Mr Nasip, or his submissions from the bar table, that the potential hazard arising from the retaining walls which was identified by the Respondent as a reason for the issue of the order is unfounded.

30. In considering the potential hazard arising from the demolition of the retaining walls, I have given weight to the requirement of the DCO that all demolition works are to be undertaken in a safe and systematic manner in accordance with Australian Standard AS 2601-2001: The Demolition of Structures.

31. I have weighed the risk of demolition against the risk of collapse identified by the Council in the issuing of the DCO. It is common understanding that the interruption of natural surface and subsurface water flows by the construction of a retaining wall can lead to an accumulation of water at the back of the retaining walls, which can create hydrostatic pressure and lead to the failure of the walls: s 38(2) of the LEC Act. In the absence of evidence advanced by Mr Nasip that this risk has been ameliorated by certification, or by other means, by a qualified professional, I accept the retaining walls on site have a risk of failure.

32. Finally, I am not persuaded to provide a further period of time for compliance with the DCO. My reasoning is that it is appropriate to give weight to the potential hazard arising from the incomplete and uncertified walls. Secondly, I have given weight to the period of time that Mr Nasip has been on notice, firstly, of the concerns of the Respondent that the retaining works were works that required consent and secondly that the DCO has been in place.

Orders

37. The orders of the Court are:

1. The appeal is dismissed.

2. The exhibits are returned with the exception of Exhibit A, B, and 1

D M Dickson

Commissioner of the Court

**********

Decision last updated: 17 December 2024