Wollongong City Council v Matthew Dominic Fikkers [2023] NSWLEC 52

Land and Environment Court New South Wales

Medium Neutral Citation: Wollongong City Council v Matthew Dominic Fikkers [2023] NSWLEC 52 Hearing dates: 26 and 27 April 2023 Date of orders: 27 April 2023 Decision date: 27 April 2023 Jurisdiction: Class 4 Before: Preston CJ Decision: At [32] Catchwords: CIVIL ENFORCEMENT – unlawful erection of concrete walls without development consent – demolish works order not complied with – development consent granted for partial demolition of walls – development consent not complied with – breach of EPA Act and demolish works order found – appropriate remedy for breach – demolish walls in accordance with development consent. Legislation Cited: Environment Planning and Assessment Act 1979 (NSW) ss 1.4(1), 1.5(1), 1.6(1), 4.2(1), 9.34(1), 9.37(1) Wollongong Local Environmental Plan 2009 cll 2.3(1), 3.1, Sch 2 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.15, 2.29, 2.30 Category: Principal judgment Parties: Wollongong City Council (Applicant) Matthew Dominic Fikkers (First Respondent) Rachel Fikkers (Second Respondent) Representation: Solicitors: Mr A P Guy (Applicant) No appearance by or on behalf of the First Respondent Second Respondent in person File Number(s): 2021/227914

JUDGMENT 1. Wollongong City Council (the Council) brings civil enforcement proceedings to remedy and restrain two breaches of the Environment Planning and Assessment Act 1979 (NSW) (EPA Act) by Mr and Mrs Fikkers. Mr and Mrs Fikkers jointly own a residential property at 163 Mount Keira Road, Mount Keira. Formally, the land is identified as Lot 8 in Deposited Plan 31238 and Lot 5 in Deposited Plan 260969. 2. The property slopes quite steeply from the street to the rear of the property. Along the southern side boundary and along and near the rear western boundary, Mr Fikkers has erected substantial concrete block walls. The side boundary walls include walls later designated on a plan as walls R and M. The rear boundary walls include walls later designated on the plan as walls H, I, J and K. The walls had been constructed for the purpose of providing landscaped areas for the dwelling house on the property. Particularly at the rear, the walls retain sizeable volumes of fill imported to the site on which lawn and landscaping have been installed. 3. The construction of these walls was in breach of the EPA Act in two respects. First, the construction of the walls was development that required development consent but no development consent was obtained, in breach of s 4.2(1) of the EPA Act. Second, the Council had issued a Demolish Works Order (DWO) requiring the demolition of the walls, but Mr and Mrs Fikkers have not demolished the walls, in breach of s 9.37(1) of the EPA Act. 4. At the hearing, Mrs Fikkers appeared but Mr Fikkers did not appear. Mr Fikkers was aware of the hearing but advised the Council beforehand that he did not intend to appear. The hearing therefore proceeded in Mrs Fikkers' presence, but Mr Fikkers' absence. Mrs Fikkers did not contest that the construction of the walls on the property was in breach of s 4.2(1) of the EPA Act and the failure to comply with the DWO was in breach of s 9.37(1) of the EPA Act. 5. Mr Fikkers, in his recent emails to the Council advising of his intention not to appear at the hearing, also did not contest the breaches of the EPA Act, merely saying that he intended to demolish the walls within two to three weeks from 23 April 2023.