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." 1. 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. 1. 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. 2. 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.