Land and Environment Court New South Wales Medium Neutral Citation: Flyak v Hall [2023] NSWLEC 58 Hearing dates: 2 May 2023 Date of orders: 2 May 2023 Decision date: 02 May 2023 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraph 7 Catchwords: CIVIL ENFORCEMENT – s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) – where respondent carried out erection of retaining wall otherwise than in accordance with development consent – declaration made to ensure strict and full compliance with terms of development consent Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Cases Cited: Great Lakes v Lani (2007) 158 LGERA 1 Category: Consequential orders Parties: Yuriy Flyak (Frist Applicant) Larysa Flyak (Second Applicant) Kristy Lee Hall (First Respondent) Richard Jay Hall (Second Respondent) Representation: Counsel: C Ireland (Applicants) B McAuley, solicitor (Respondents) Solicitors: Holding Redlich (Applicants) McAuley Lawyers (Respondents) File Number(s): 2022/182821 Publication restriction: No EX TEMPORE Judgment 1. HER HONOUR: The proceedings are civil enforcement proceedings relating to the construction of a timber retaining wall, along the boundary of the Applicants' land at Box Hill and the adjoining land owned by the Respondents. The parties have, by consent, agreed to the resolution of the substantive proceedings as contained in the consent orders that were signed and dated, 30 March 2023 and as further provided in the longer form in a Short Minutes of Order today. The consent orders propose the making of declarations and orders sought, as in the Applicants' summons, with the exception of a variation to a time period referred to in order 6. The hearing before me relates to whether, in the exercise of the Court's discretion, the declarations that are sought by consent should be made. 2. The factual history of this matter is long but in essence, it is that the Respondents were granted development consent, subject to conditions, for the construction of a dwelling house upon their land. That development consent was subsequently modified. After the grant of the modified consent, the Applicants sought and obtained a separate development consent for the construction of retaining walls upon their land comprising sandstone block walls variously to the front set back, the east boundary and the rear. A timber sleeper retaining wall was proposed on the Respondents' land as it adjoined the boundary of the Applicants' land to the west. 3. The Respondents constructed the timber retaining wall on the Applicants' land. This was not in compliance with the condition nor the consent that they had obtained. As a consequence, the council issued a development control order that required the timber retaining wall to be demolished and reconstructed upon condition, inter alia, that it will be wholly located upon the Respondents' land and that it operate in a manner of a structurally sufficient retaining wall with appropriate associated drainage. The Respondents, thereafter, demolished, in part, the retaining wall, reconstructed it, in part, however, these attempts have produced a retaining wall that remains, at least in part, on the Applicants' land. It does not function as a retaining wall, as is evidenced by the expert report, that was tendered to me, by the structural engineer, Mr Purich, nor does it have the associated necessary drainage to ensure that it does not cause a lack of structural integrity or a nuisance on the Applicants' land. 4. By the resolution proposed by the parties, the timber retaining wall will be reconstructed wholly within the Respondents' land. It will comprise a structurally sound retaining wall with the appropriate drainage to ensure its retained structural integrity and to prevent amenity and other impacts upon the Applicants. In light of the history of the matter, it is appropriate that those orders be made. 5. The parties contend that the declarations should also be made as they are necessary for the order to be understood. Whilst the Applicants accept that in some circumstances the making of declarations are not necessary in circumstances where there is an order, which of itself, would serve to resolve the totality of the matters before the parties and where they do not operate to remedy or restrain future breaches of the legislation. However, the considerations in relation to the making of declarations as set out by Preston CJ of LEC in Great Lakes v Lani (2007) 158 LGERA 1, are not applicable in all circumstances. In the circumstances of this case, it appears from the history of the matter that there have been a number of attempts to comply with the terms of the development consent, as was granted in relation to the retaining wall. Those attempts have not been successful in ensuring strict and full compliance with the terms of the development consent. 6. The dispute between the parties has been long and at times, acrimonious. The dispute has also involved a third party, namely the council. The council is not a party to these proceedings. In light of the history of the matter and in so as to ensure that there is no uncertainty in relation to the scope, nature and intent of the orders as proposed by the parties, I consider it appropriate to make the first of the declarations sought as amended by me, namely a declaration that the First and Second Respondents are in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) by carrying out development at 7 Basilica Street, Box Hill, the land comprising the erection of the timber retaining wall otherwise, that in accordance with the development consent 205/209/MA, granted by the Hills Shire Council on 31 August 2018. By the making of that declaration the terms, the nature and the design of the structure referred to in the orders is capable of being ascertained. 7. The other declaration sought by the Applicants and the Respondents in declarations 2 and 3 are, as both parties conceded not necessary provided that the first declaration is made. Accordingly, I will not make the declaration. For those reasons, I make declaration 1, as amended by me and the orders set out in the Short Minutes of Order that were provided to me by the parties. I have modified and initialled the change to declaration 1, the orders in 4 through 10 are made in the terms provided to me. That order will be uploaded onto the online registry, momentarily. Those orders include an order as to costs. There being nothing further, the proceedings are otherwise dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2023