Land and Environment Court New South Wales Medium Neutral Citation: Shant Mejloumian v Fairfield City Council [2017] NSWLEC 1642 Hearing dates: 8 November 2017 Date of orders: 14 November 2017 Decision date: 14 November 2017 Jurisdiction: Class 1 Before: Chilcott C Decision: See paragraph [36] below Catchwords: RETAINING WALL: Appeal against an Order to demolish. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Nil Category: Principal judgment Parties: Shant Mejloumian (Applicant) Fairfield City Council (Respondent) Representation: Counsel: S. Mejloumian (in person) J. Thompson (Respondent) Solicitors: Ritchie & Castellan Solicitors (Respondent) File Number(s): 2017/90646 Decision under appeal File Number(s): 2017/90646 Judgment Background 1. COMMISSIONER: Shant Mejloumian (the Applicant) has appealed the issuing of an Order 2(a) issued by Fairfield City Council on 16 March 2017 under s121B(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act). 2. The Order, issued to the Applicant and Mrs Rose Renée Veskanian, sought the demolition of an unauthorised retaining wall constructed in the front of a property at 6 Bernard Place Edensor Park ('Subject Site'), along with the removal of associated fill placed behind the retaining wall by the Applicant. These actions were to be completed within 28 days of the issue of the Order. 3. The appeal is made pursuant to s121ZJ of the EP&A Act. 4. The appeal was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 4 August 29017. An inspection of the Subject Site was undertaken as part of the conciliation conference. 5. The Parties were unable to resolve issues relating to the Order during the s.34 conciliation, and so the conciliation conference was terminated. 6. The parties consented to me disposing of the proceedings under s34(4)(b)(i) of the LEC Act. Statutory considerations Environmental Planning and Assessment Act 1. The Order that is the subject of this appeal was made under the provisions of s121B of the EP&A Act, which empowers Councils to issue Orders in relation to matters including the demolition or removal of a building erected without prior development consent of consent authority in a case where prior development consent is required. 2. Within this section a building includes part of a building, and also includes any structure or part of a structure. A retaining wall is a structure for the purposes of this section. 3. The appeal is made under s121ZK of the EP&A Act, which states that a person on whom an Order is served may appeal against the Order to the Court within 28 days of the Order being made. The appeal has been properly made within this timeframe. 4. Under s121ZK(4), the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. 1. The EP&A Act under s76 provides for development that may be carried out without consent, and states: (1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies. Note : Environmental assessment of the development may nevertheless be required under Part 5. (2) Exempt development An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development. (3) If development is exempt development: (a) the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land: (i) is a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 or declared critical habitat under Part 7A of the Fisheries Management Act 1994, or (ii) is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), and (b) Part 5 does not apply to the development. A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies. 1. The EP&A Act under s76A (Development that needs consent) further provides that: (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. (3), (4) (Repealed) (5) Complying development an environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 1. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP) is an environmental planning instrument that aims to provide streamlined assessment processes for development that complies with specified development standards by: (a) providing exempt and complying development codes that have State-wide application, and (b) identifying, in the exempt development codes, types of development that are of minimal environmental impact that may be carried out without the need for development consent, and (c) identifying, in the complying development codes, types of complying development that may be carried out in accordance with a complying development certificate as defined in the Act, and (d) enabling the progressive extension of the types of development in this Policy, and (e) providing transitional arrangements for the introduction of the State-wide codes, including the amendment of other environmental planning instruments. 1. A retaining wall may be erected on a private property without development consent if it complies with the provisions of the SEPP so as to be considered an exempt development. 2. Part 2 Division 1 of the SEPP provides general exempt development codes. Subdivision 15 of that Division concerns earthworks, retaining walls and structural support, and provides that: Earthworks and the construction or installation of a retaining wall or other form of structural support is development specified for this code if it is not carried out, constructed or installed on or in a heritage item or a draft heritage item, on a flood control lot or in an environmentally sensitive area. 1. The retaining wall that is the subject of this appeal is consistent with this description. 2. The Subdivision 15 provides development standards for retaining wall structures, and requires that in order for such a structure to be exempt development it must, inter alia,: (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, … Does the retaining wall on the Subject Site comply with the provisions for Exempt Development under the SEPP? 1. The retaining wall on the Subject Site is constructed within 100mm of the boundary of the Subject Site adjacent to the following properties: 25 Cuthbert Crescent 27 Cuthbert Crescent 7 Bernard Place 1. Further, the height of the wall varies along the length of these boundaries between approximately 800mm and down to some 200mm. 2. Based on these dimensions, the retaining wall is not consistent with the exempt development requirements of the SEPP, and so is development that requires development consent. This fact was uncontested by the Parties during the hearing. 3. Because the retaining wall and associated fill were constructed without development consent, its construction is in breach of s76A of the EP&A Act. 4. During his opening remarks, the Applicant acknowledged that he had constructed the retaining wall without securing development consent, which he now appreciated was required for those works. He further conceded that if he had sought development consent for the retaining wall this was unlikely to have been granted. 5. Notwithstanding this, the Applicant said that his intent in constructing the retaining wall was to mitigate the impacts of stormwater flows from the Subject Site on neighbouring properties in Cuthbert Crescent. He noted that, prior to the construction of the retaining wall, stormwater containing sediment had flowed onto those properties, and into a pool located in the rear yard of 27 Cuthbert Crescent. He said that the owners of 25 and 27 Cuthbert Crescent had expressed support for his construction of the retaining wall as it had mitigated stormwater related problems they had experienced prior to its installation. Should the Order be revoked or modified? 1. The Respondent said that, because the retaining wall was not exempt development, and because it was built without consent, the Applicant should be required to rectify the works, and that Council's Order should not be revoked. 2. Council's Order required the Applicant to demolish the retaining wall and remove the fill material that had been place behind the wall, and which subsequently provided a flat yard area in front of the dwelling on the Subject Site. 3. During the hearing, the Respondent proposed that, as an alternative to those actions required by the Order, it would agree a modification of the Order requiring the Applicant to reconfigure that portion of the retaining wall adjacent to the Subject Site's boundaries with the three adjoining properties identified at [18], such that the retaining wall would meet the requirements of the SEPP for an exempt development. 4. The Respondent said that this would require that the front edge of the retaining wall be set back 1m from the boundary of the adjoining properties, and that the height of wall not exceed 600mm at any point along its length. 5. In support of this, the Respondent tendered an expert report from Mr Peter Waugh, a civil and structural engineer. Mr Waugh's report confirmed the conclusion of a separate expert report tendered by the Applicant from Mr Bishoy Mekhael that had concluded that the retaining wall constructed by the Applicant was in good condition and had a low risk of failure. 6. Mr Waugh's report provided two options for rectification of the retaining wall such that it would satisfy the provisions of the SEPP for an exempt development. During his expert testimony, Mr Waugh noted that his proposed Option 1, was consistent with the alternative proposed by the Respondent at [27], and was preferred as it would minimise the potential for run-off impacts on adjacent properties. This option proposed that: 1. all retaining walls on the boundary of the Subject Site be removed; 2. replacement retaining walls should constructed such that they were 1m clear of the boundary of the Subject Site; 3. the existing pine wood elements of the retaining walls could be reused; 4. new 'vertical soldier supports' should be installed;. 5. A 4:1 batter should be introduced along the length of the new retaining wall to the required height and not exceeding 600mm. 1. Mr Waugh noted that, the repositioned retaining wall should be complemented with landscaping to ensure that any run-off to adjoining properties would not contain significant sediment. 2. The Respondent said that rectification of the works was required so as to ensure that the retaining wall did not: 1. provide a precedent for breach of the SEPP by others within the area covered by Fairfield City Council; and 2. create the potential for complications in respect of any future sale of the Subject Site or its adjoining properties. 1. In reply, the Applicant proposed that the section of the retaining wall adjacent to the properties at 25 and 27 Cuthbert Crescent be retained, and that the portion of the retaining wall adjacent to 7 Bernard Pace be removed and restored to natural ground level. 2. The Respondent's expert Mr Waugh, in response to a question on the Applicant's alternative, noted that the Applicant's proposed treatment of the boundary with the adjoining property at 7 Bernard Place would not differ in performance concerning run-off as compared with his proposed Option 1, and would be consistent with the provisions of the SEPP for exempt development. Conclusion 1. Based on my consideration of the above, I am satisfied that the retaining wall constructed by the Applicant is not exempt development for the purposes of the SEPP, has been constructed without the required development consent, and is in breach of s76A of the EP&A Act. 2. I conclude that the Order issued by the Respondent should not be revoked but should be modified so that the Applicant is required to rectify the retaining wall structure such that it satisfies the provisions of the SEPP with respect to an exempt development. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Order 2(a) within Schedule 1 of the Order issued by Fairfield City Council under Part 6 Division 2A s121B of the EP&A Act, attached hereto as 'Annexure A', is modified so as to read: 1. within a period of twenty eight (28) days, after the date of this judgement, the Applicant is required to: 1. Reconstruct the retaining wall, constructed without development consent, and located within the front yard of 6 Bernard Place, Edensor Park, and adjacent to the north-east allotment boundary of the Subject Site, so that it satisfies the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 with respect to being an exempt development. To achieve this outcome, the front edge of the reconstructed retaining wall will be set back at least 1m from the boundary of any adjoining properties, and the height of wall will not exceed 600mm at any point along its length; 2. Remove any surplus fill associated with the reconstruction of the retaining wall and dispose of it in a lawful manner. Upon completion of the above works the Applicant is to provide to Fairfield City Council a site survey and report prepared by a registered land surveyor showing the location of the reconfigured retaining wall and the land contour levels to Australian height datum at 1 m intervals; 1. all other parts of the Order issued by Fairfield City Council to the Applicant and Miss Rose Renee Voskanian, dated 16 March 2017, including the two Notes following the previous orders, which required the Applicant to demolish the retaining wall and to remove soil fill within the front yard, remain unchanged; 2. The exhibits are returned, with the exception of Exhibits A and 6. …………………………. Michael Chilcott Commissioner 90646.17 Chilcott - Annexure A (592 KB, pdf) ********** Amendments 14 November 2017 - Correction made to paragraph 36 (3) - 'yard' instead of 'year' 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: 14 November 2017