Ajvadi v Wicks

Land and Environment Court (NSW)|2023-12-14|Before: Pritchard J

JUDGMENT

By notice of motion filed on 23 November 2023 (the notice of motion), Mr Michael Wicks (the first respondent) seeks: 1 These proceedings be adjourned pursuant to s 9.46(3)(a) of the Environmental Planning and Assessment Act 1979 until either the Second Respondent has determined development application reference number DA2023/1696 / PAN-390658 (DA), or this Honourable Court delivers judgement in respect of any Class 1 proceedings brought in respect of the deemed or actual refusal of the DA. 2 In the alternative to (1) above, these proceedings be stayed pursuant to s 67 of the Civil Procedure Act 2005 until either the Second Respondent has determined the DA, or this Honourable Court delivers judgement in respect of any Class 1 proceedings brought in respect of the deemed or actual refusal of the DA. 3 Costs of this Notice of Motion to be costs in the cause. 4 Such further or other orders as this Honourable Court sees fit to make.
In these Class 4 civil enforcement proceedings, by amended summons filed 3 March 2023, Dr Fayavar Ajvadi and Dr Shohreh Rezai (the applicants) seek declarations that the first respondent has carried out works in breach of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and orders that a retaining wall on the first respondent's property be demolished and land filling removed. Northern Beaches Council, the second respondent (Council) has entered a submitting appearance.
The nature of the relief sought by the first respondent in the notice of motion is that these Class 4 proceedings be adjourned, or alternatively stayed, until Council determines the first respondent's third development application lodged 8 November 2023 "for the construction of dwelling alterations/additions, retaining wall and swimming pool" on the first respondent's property (the third development application). The first respondent has indicated that if the third development application is refused by Council, he will commence Class 1 proceedings appealing the refusal. Accordingly, the notice of motion also seeks that the proceedings be adjourned or alternatively stayed until any Class 1 appeal has been determined in relation to any refusal of the third development application.

Background

The following background is derived from the evidence on the motion.
The applicants are the owners of property at 42 Castle Circuit, Seaforth NSW 2092 (the applicants' property).
The first respondent is the owner of the adjoining property at 40 Castle Circuit, Seaforth NSW 2092 (the first respondent's property).
In or about early 2021, the first respondent commenced works in the rear of the first respondent's property and adjacent to the boundary with the applicants' property (the works) including the construction of a large retaining wall (the retaining wall). The works continued until the stonework to the retaining wall was completed in or about April 2021.
The applicants contended that the backfilling on the first respondent's property behind the retaining wall created a new level surface approximately 1.5 to 2 metres higher than the prior existing ground level, and were unauthorised works. As at the hearing before me yesterday, it was no longer in dispute that the works were and remain unauthorised.
On or about 18 November 2021, the first respondent lodged an application for a Building Information Certificate (BC 2021/0265) with Council (the first BIC application).
On or about 19 November 2021, the first respondent lodged a development application (DA 2021/2196) with Council for works on the first respondent's property (the first development application).
On or about 16 May 2022, Council refused the first BIC application.
On or about 26 August 2022, Council granted development consent to the first development application (the 2022 development consent).
On or about 19 October 2022, the first respondent lodged a further application for a Building Information Certificate (BC2022/0263) with Council (the second BIC application).
On 7 November 2022, the applicants commenced these Class 4 proceedings, seeking: 1. a declaration that the 2022 development consent is invalid and of no effect; 2. an order quashing the 2022 development consent; 3. a declaration that the works were carried out without development consent in breach of the EPA Act; and 4. an order that the works be demolished, and that the first respondent's property be restored to its original form and levels.
On or about 15 December 2022, the first respondent voluntarily surrendered the 2022 development consent. Accordingly, in the amended summons filed 3 March 2023, the applicants no longer seek relief in relation to the 2022 development consent. The Class 4 proceedings now before the Court are civil enforcement proceedings.
On or about 22 February 2023, the first respondent lodged a further development application (DA 2023/0182) for works on the first respondent's property (the second development application).
On 21 March 2023, the first respondent commenced Class 1 proceedings appealing the deemed refusal of the second BIC application.
On 19 May 2023, the first respondent also commenced Class 1 proceedings appealing the deemed refusal of the second development application.
On 30 June 2023, the parties participated in a mediation concerning the issues raised in the present Class 4 proceedings as well as each of the two Class 1 proceedings. The mediation was adjourned, and continued over a number of occasions on 27 July, 17 August, 14 September, and 11 October 2023.
On 11 October 2023, the mediation was terminated.
On 19 October 2023, the first respondent filed notices of discontinuance in each of the Class 1 proceedings. Council's DA tracker appears to record that the second development application has been withdrawn by the first respondent.
On 23 October 2023, the Court (Moore J) ordered that the first respondent lodge any further development application by 10 November 2023.
On 8 November 2023, the first respondent submitted to Council a development application "for the construction of dwelling alterations/additions, retaining wall and swimming pool" on the first respondent's property (DA 2023/1634) (referred to herein as the third development application). As Mr Seymore SC for the applicants submitted, the third development application is for more than works only in relation to the retaining wall.
On 23 November 2023, the first respondent filed and served the notice of motion seeking to adjourn or stay the proceedings pending the outcome of the third development application.

The first respondent

In support of its motion, the first respondent relied on the following evidence: 1. paragraphs [4] and [5] of an affidavit of Mr Peter Geoffrey Clarke, solicitor employed by the solicitor for the first respondent, affirmed 24 March 2023, and exhibiting a "certification of adequacy retaining wall" of Mario Benitez prepared for the first respondent and dated 29 July 2021 (the Benitez assessment); 2. an affidavit of Mr Clarke affirmed 23 November 2023 exhibiting documents, including the third development application, plans for "proposed alterations and additions" to the first respondent's property and a statement of environmental effects in relation to the third development application; 3. an affidavit of Mr Clarke affirmed 30 November 2023; 4. an affidavit of Mr Marek Blaszczakiewicz, structural engineer, affirmed 30 November 2023 and annexing an expert report assessing the stability of the retaining wall and supported fill on the first respondent's property (the Blaszczakiewicz report); and 5. an affidavit of Mr Benjamin White, chartered engineering geologist, affirmed 1 December 2023 and annexing an expert report assessing the stability of the retaining wall and supported fill on the first respondent's property (the White report).
In his affidavit of 30 November 2023, Mr Clarke deposes that he has been informed by Council that the third development application is expected to be determined in February 2024. Mr Clarke says that if the third development application is refused, the first respondent will commence Class 1 appeal proceedings "as a matter of urgency". Accordingly, Mr Clarke says that in his view, the third development application will be determined, or "all review/appeal rights exhausted" (in relation to any future Class 1 proceedings), within approximately 12 months of the date of the third development application having been lodged (that is, 8 November 2023).
In his affidavit of 23 November 2023, Mr Clarke deposes that he is informed by the first respondent's structural and geotechnical engineers that the retaining wall is at no immediate risk of collapse, and is safe to remain in situ and undisturbed for the anticipated assessment period of the third development application. The Blaszczakiewicz report concludes: 4.7 Based on the above, I conclude that the Wall does not display any signs of distress or ongoing displacement associated with the lateral pressure of the soil. Whilst vertical differential settlement of the Wall indeed took place, as demonstrated by the present cracks, no further settlement can be observed in the period of the last six months and the Wall appears stable. ... 4.10 Notwithstanding the above, the Wall should be monitored on a regular basis for any possible signs of distress. The monitoring should include measurements of the existing cracks to determine if the condition of the Wall changes. If any signs of distress or changes in condition are observed, then further temporary remedial actions can be implemented. And the White report concludes: Apart from the two vertical cracks that have occurred due differential settlement, the wall shows no further significant signs of movement or distress since its construction 3.5 years ago. Additionally, it has stood through the record rainfall events of 2022. As such temporary support is not considered it [sic] necessary in the period until the wall is dismantled and replaced. To be prudent, we recommend the owner inspect the cracking and the general condition of the wall on a monthly basis or after heavy rainfall events, whichever occurs first. Should the existing two vertical cracks be observed to be propagating or any new cracking or movement be observed, the wall is to be reassessed by a Geotechnical Consultant. A photographic record of these inspections is to be kept by the owner. We can carry out these inspections upon request.
Mr Clarke deposes that it would be in the interests of the just, quick and cheap dispensation of the proceedings if the stay were granted, as there would not need to be any further costs incurred in these Class 4 proceedings while the third development application is determined and the impacts of the retaining wall are assessed.

The applicants

The applicants relied on the following evidence: 1. an affidavit of Ms Penelope Louise Murray, solicitor on the record for the applicants, affirmed 8 December 2023 (the Murray affidavit); and 2. an affidavit of Mr Daniel Phillips, structural engineer, affirmed 8 December 2023 and annexing an expert report written jointly with Mr Terence Huang, geotechnical engineer, assessing the structural stability of the retaining wall and supported fill on the first respondent's property (the Phillips/Huang report).
In her affidavit, Ms Murray deposes that the remaining issues in the proceedings concern the status of the works and what orders, if any, should be made if a breach of the EPA Act is established. Ms Murray's view is if proceedings are directed for a hearing, only the following steps remain to be completed: 1. the parties to prepare an agreed statement of facts and bundle of documents because the unlawfulness of the works is not contested; 2. the parties to serve expert structural and geotechnical evidence, which has largely been done for the purpose of the first respondent's stay application; 3. any expert planning reports as to ongoing amenity and privacy impacts arising from the works to be prepared; and 4. the proceedings to be set down for hearing.
Ms Murray refers to the expert report of Mr Phillips and Mr Huang in which they opine (emphasis added): In our opinion, there is a 'high' and very real risk of failure to the wall. The wall's Southern end corner return (south-facing and west-facing walls) has been identified as 'critical', with immediate failure most likely originating from this point. Any structural failure of the wall is likely to result in the wall and the fill behind it collapsing into No. 42 Castle Circuit, with the potential of further landslip to downslope towards the Castle Circuit Road below. The timeframe until wall failure shall be dependant on weather events and total rainfall. In the event of a prolonged storm with high rainfall, the likelihood of failure will be 'high'. In our opinion, the existing retaining wall and balustrade are structurally and geotechnically inadequate for their intended purposes. We recommend that the wall be immediately demolished and a silt/sediment fence be constructed along the lengths of the western and southern boundaries of the rear yard to No. 40 Castle Circuit to assist in erosion control and in accordance with the Northern Beaches Council. In the interim, it is appropriate that some form of interim stabilisation be provided to the wall, which is likely to require propping to extend from No. 42 and No. 34 Castle Circuit across the common boundaries to the wall. Exclusion zones should be provided to No. 's 34, 40 and 42 to ensure that there is no risk to life or property arising out of the sudden collapse of the wall.
Ms Murray deposes that a hearing date of the remaining issues would likely occupy 1 to 2 days, and would be "the most efficient outcome for a resolution of what might need to be done for the [u]nauthorised [w]orks to be removed or stabilised in both the shortterm and the long term". Further, the [t]hird [d]evelopment [a]pplication cannot resolve what can or must be done with the [u]nauthorised [w]orks in the short term".
Ms Murray also says that the applicants apprehend that "if the proceedings are stayed, or there are further delays in proceeding to a hearing over what should be done with the [u]nauthorised [w]orks, the safety of occupants in their backyard is at risk and there are other substantial risks concerning the potential for damage to their property".

Relevant legal principles

Section 9.46(3) of the EPA Act relevantly provides as follows: 9.46 Orders of the Court … (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may - (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent…
The relevant sections of the Civil Procedure Act 2005 (NSW) (CPA) provide as follows: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. … 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. … 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. … 67 Stay of proceedings Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.

Submissions in relation to the granting of an adjournment or stay of the proceedings

The parties' submissions in relation to the first respondent's motion seeking an adjournment of the Class 4 proceedings, or alternatively a stay are as follows.

Summary of the parties' submissions

At the hearing yesterday, the first respondent properly conceded that the works in relation to the retaining wall are unauthorised, and that the issue for determination in the Class 4 proceedings would be in relation to the appropriate relief to remedy the first respondent's breach of the EPA Act.
Mr Astill for the first respondent also conceded that the present case does not fall "strictly" within s 9.46(3) of the EPA Act as the third development application also addresses works on the first respondent's property other than the unauthorised works, such as the construction of a swimming pool and alterations to the dwelling on the first respondent's property. However, Mr Astill submitted that the "policy and philosophy" behind s 9.46(3) is apparent, and that the present case falls "within the policy intent" of the provision, namely that if a process can be regularised by way of development consent, such process ought precede Class 4 proceedings remedying a breach of the EPA Act.
The first respondent submits in his written submissions that "if the [a]pplicants' proposed way forward were adopted and they achieved the orders they seek in the short to medium term, this fill material would need to be taken away and then, assuming the [third development application] is approved, brought back. That is inconsistent with the orderly and economic use of land and is simply not sensible."
In opposition of the notice of motion, the applicants submit that the first respondent seeks to "extend, rather than eliminate, the time between commencement and final determination" of the Class 4 proceedings. The question is therefore, having regard to s 59 of the CPA, whether that extension is something "reasonably required" for any activity "necessary" for the "fair and just determination of issues in dispute between the parties and the preparation of the case for trial".
The applicants submit that neither exception identified in s 59 of the CPA in relation to the elimination of delay is invoked (that is, the interlocutory activities necessary of the fair and just determination of the issues in dispute between the parties and the preparation for the case for trial). The first respondent does not seek time to have an opportunity to undertake "interlocutory activities" or to do anything necessary for preparation of the case for trial. Rather, the first respondent seeks an indulgence of the Court to extend, rather than eliminate, time for the final resolution of the proceedings so that a separate activity can occur independent of the preparation of his case.
Further, though s 9.46(3)(a) of the EPA Act provides that the Court may adjourn proceedings "to enable a development application to be made", assessment of whether the Court should make that order must be consistent with ss 56 to 59 of the CPA. Additionally, the applicants submit, no position is advanced by the first respondent as to anything the Court might order to "restrain the continuance of the commission of the [admitted] breach while the proceedings are adjourned" under s 9.46(3)(b). The applicants submit that the development application seeks development consent for the partial demolition of the works, the construction of a new tiered retaining wall, and "otherwise irrelevant alterations and additions to the existing dwelling" on the first respondent's property "unconnected with issues arising from the [works]" the subject of the Class 4 proceedings.
Mr Seymour for the applicants submitted at the hearing yesterday that the Court in these Class 4 proceedings could operate "harmoniously" with Council's assessment of the third development application. In circumstances where there has been "multiple attempts at regularisation" and the first respondent has now accepted that the works are unauthorised, Mr Seymour said that an appropriate form of orders can be made in the Class 4 proceedings for remedial works to be carried out, and any such works sought in the third development application can be "removed" from that application. Accordingly, there is "no prejudice from dismissing this motion and proceeding to hearing". Mr Seymour also submitted that it would be expected that the notice of motion for an adjournment or stay be accompanied by "convincing evidence about the prospects of success of the development application." However, the only evidence before the Court is "adverse" to the first respondent, as the present position of Council is that the third development application is not supported. This was expressed in Council's "engineering referral response" of 24 November 2023 which stated as follows: Officer comments The submission has not addressed Council's on-site detention requirements. Please refer to Part 4.3.2.2 (pg 92) of the Water Management for Development Policy Version 2, 26 February 2021. The proposal is therefore unsupported.

The structural and geotechnical stability of the unauthorised works

The first respondent submits that there are differences of opinion between the parties' experts in relation to the structural and geotechnical stability of the unauthorised works that the Court could not be expected to resolve in this application. The experts have not had any opportunity to jointly confer or report and or be cross-examined. The first respondent also submits that whilst the applicants' experts were asked to consider the White report and the Blaszczakiewicz report, there is no reference to this in the Phillips/Huang report.
Although the first respondent submits that the Court need not resolve the differences in the parties' expert opinions, it submits that the works on the first respondent's property have been in place for almost three years and whilst some "cracking" is evident, there has been no "failure of the works". Further, in that period, the retaining wall on the first respondent's property has survived "record rainfall events of 2022".
The first respondent submits that his structural and geotechnical evidence, being the Benitez assessment, the Blaszczakiewicz report and the White report, demonstrates the following: 1. The "load analysis with combination/strength/serviceability factors" resulted in a conclusion that the hazard factor was acceptable and a finding that the condition of the retaining wall was satisfactory as of July 2021. 2. The retaining wall is partially founded on medium strength rock. 3. The crack showing on the western face of the retaining wall is consistent with "settlement cracking", with "no significant deflection" occurring anywhere along the retaining wall. 4. The crack in the retaining wall has not widened over a six month period between May and November 2023. 5. The apparent "bowing" of the retaining wall arose as a result of a curve to the retaining wall as erected to follow the foundation of a prior block wall and other underlying rock strata. 6. There is no utility in de-loading the retaining wall by removing the fill behind the retaining wall (or removing the balustrade) until the remedial works described in the third development application are able to be carried out following the granting of development consent. 7. There is no evidence of imminent instability of the retaining wall "although the potential instability identified in the course of recent inspections suggests that for the sake of abundant caution it will need to be replaced in the long term". 8. The drainage solution behind the retaining wall, while not constructed to current standards, was adequate to drain the limited subsurface flows behind the retaining all and to handle the various extreme rainfall events in February and March 2022. 9. In conclusion, the risk of the retaining wall moving any further and/or potentially becoming unstable in the next six months is low. No urgent demolition of the retaining wall is required or warranted in the circumstances where remedial works are expected to be approved and subsequently carried out in the next six to 12 months.
The first respondent submits that the Benitez assessment, as well as the Blaszczakiewicz report and the White report do not consider that the retaining wall is unstable, and so its immediate removal is unnecessary. However, the Blaszczakiewicz report and the White report do recommend the retaining wall be inspected on a monthly basis or after heavy rainfall events, whichever occurs first.
The applicants submit that the evidence of the applicants' structural engineer Mr Phillips, and their geotechnical engineer Mr Huang is as follows: 1. Based on a number of site inspections and invasive investigations, the unauthorised works are structurally unsound and unsafe, and should be "completely demolished immediately". 2. The works have been constructed on top of a combination of three differing foundations, an existing low level retaining wall, large natural sandstone outcrop, and natural silty sand ground. This is structurally and geotechnically inadequate. 3. Inadequate drainage has been provided for the works, along with uncontrolled Ag and PVC pipes discharging near the base of the works. 4. The sandstone balustrade is structurally unsafe and there are no mechanical fixings noted, such that the balustrade does not comply with Australian Standard AS 1170.1:2002 'Structural design actions'. 5. The ground in front of the southern end of the woks is steep with an angle of 25 to 40 degrees. Two separate vertical cracks have been observed, ranging from 0.1 to 17mm in width. These cracks indicate both a bearing and overturning failure. 6. The works do not comply with Australian Standard AS4678-2002 'Earth-retaining Structures', as the wall is retaining too much soil and is too high. The maximum height of the retaining wall should be 600 to 900mm (excluding the balustrade). 7. The likelihood of landslip is "high" due to inadequate footings, particularly at the southern end of the works. 8. The works are structurally and geotechnically unsuitable and give rise to a significant prospect of failure in the retaining wall, with a high risk of future instability and landslide if no remediation work is undertaken, potentially impacting the applicants' property and the property below at Castle Circuit Road. 9. The timeframe for failure of the retaining wall depends on weather events and rainfall.
The applicants accept that as a matter arising on an interlocutory basis, the Court does "not have to determine which of the expert opinions to accept or reject". Rather, the expression of reasonable opinions held by experts is sufficient to demonstrate that there is a range of views open as to the risk of failure associated with the works.
The applicants submit that as the notice of motion seeks an indulgence from the Court, the onus is on the first respondent to establish that there is no real or immediate risk if an adjournment or stay is granted. However, as that risk cannot be "ruled out", the Court should not permit an adjournment or stay that may manifest that risk, particularly when the consequences of failure will be "significant damage to property or even persons".
The applicants submit that if the Court were to prefer the opinion of one expert, it should be the conclusions of Mr Phillips because the White report includes an opinion based upon a fact that has not been proven. That is, a significant basis of the White report's conclusions is that "[t]he owner informs us the cracking occurred shortly after the wall was complete ~3.5 years ago. This is consistent with the occurrence of settlement cracking". No separate evidence is provided to validate this assumption. Further, the Blaszczakiewicz report relies partly on the assumptions of the White report, it acknowledges the absence of drainage or weepholes, and also acknowledges that, after intensive excavation investigations, the works are "potentially unstable and in the long term need to be replaced by a suitably designed and constructed new retaining wall or a series of terraced retaining walls."
The applicants submit that neither the White report nor the Blaszczakiewicz report provides an analysis of the opinions therein expressed against a standard such as Australian Standard AS4678-2002 'Earth-retaining Structures' or Australian Standard 1170.1:2002 'Structural design actions'. The Phillips/Huang report provides the Court with a transparent opinion that identifies those standards and the failures of the works to comply with them.
At the hearing yesterday, Mr Seymour SC submitted that the Court should not accept that the evidence in the Blaszczakiewicz report is that drainage is "adequate" as contended by the first respondent in its written submissions. Rather, the Blaszczakiewicz report says at [2.10]: The excavations were carried out in the vicinity of the South end of the Wall, where the retaining height of the Wall was previously measured to be at its maximum at 1.9 metres. The excavations confirmed that the soil behind the Wall was garden soil mixed with loose sand. A layer of "blue metal" was also discovered to be in contact with the back face of the wall, which I understand was provided for drainage purposes. "Blue metal" was not protected by geofabric and was not continuous, however considering sandy soils surrounding "blue metal", I do not consider that its draining capability is greatly limited or compromised by the above.
That is, Mr Seymour submitted, far from opining that the drainage is "adequate" as contended for by the respondent in its written submissions.

Attempts to regularise the state of the works to date

The applicants submit that there have been multiple attempts to regularise the state of the works, including: 1. a building information certificate application made on 18 November 2021, which was refused on 16 May 2022; 2. a second building information certificate application made on 19 October 2022 and development application made on 22 February 2023, each appealed to this Court in mid 2023 and discontinued in October 2023; and 3. a mediation between the parties stretching between June and October 2023, and that "given that all these steps have been taken", a hearing "is now appropriate".

The first respondent's proposed undertaking

In his written submissions, the first respondent says that he will undertake to the Court, in the event of it making orders in accordance with the notice of motion, to: 1. put in place an exclusion zone above the retaining wall extending 2m from the current edge of the retaining wall, 2. install a crack monitor across the crack on the western face of the retaining wall, and 3. inspect the retaining wall on a monthly basis or after heavy rainfall (whichever occurs first) and take photographic records of the retaining wall following significant rain events of more than 100mm over a 24 hour period, should the Court consider these measures necessary or appropriate in light of the parties' expert evidence.
The first respondent's counsel accepted at the hearing yesterday that the first respondent's proposed undertaking might not contain sufficient detail as to the "monitoring" processes to be followed in inspecting the status of the retaining wall, and what action would be taken if the retaining wall were to require emergency remedial works. Mr Astill conceded that the process for monitoring "could be done in a far better way".

Relevant authority

The first respondent refers to the following cases which he submits have "somewhat similar situations": 1. Diab v Cavasinni (Diab), [1] where Preston CJ said at [12]: 12. In this case, the breach alleged by Mrs Diab is not that Mr and Mrs Cavasinni and Cavcorp Australia Pty Limited failed to obtain a development consent, but rather that they carried out development otherwise than in accordance with that consent. Furthermore, the respondents do not seek to make a development application to obtain development consent, but rather have made application to modify the current consent. As a consequence s 9.46(3) does not strictly apply. 1. Byron Shire Council v Master Alchemy Pty Ltd (Master Alchemy), [2] where Pepper J observed at [41]: 41. Each application to stay the final hearing of proceedings pending the resolution of related matters turns on its own facts and circumstances.
However, the first respondent accepts that in neither case were the facts "particularly similar" to those here.
The first respondent submits that in all the circumstances, it would be appropriate to grant the relief sought in his motion. It was submitted to be in the interests of justice to do so: 1. Firstly, it is incontrovertible that the first respondent has made an application (the third development application) to obtain development consent in respect of the retaining wall which, due to incorrect advice given to him by the contractors who erected the retaining wall, he did not do prior to the erection of the retaining wall. It is not fatal to the first respondent's stay application that the proposed remedial works to the retaining wall will result in a physically different retaining wall along the shared boundary between the active parties' respective properties. It is in the interests of justice that time be allowed for this to be done. The granting of development consent to the third development application will not regularise the precise form of the retaining wall, but it will regularise the retention of the fill by a new wall that has the same functional characteristics. 2. Secondly, and alternatively, if the Court finds that due to this difference in form, s 9.46 of the EPA Act is not "strictly available" or if the Court adopts the "no presumption" approach to a s 9.46(3) stay, there is a general power to adjourn proceedings under s 66 of the CPA. 3. Thirdly, the hearing of these Class 4 proceedings first would have an air of unreality. The Murray affidavit (at [31] above) sets out the remaining steps for a hearing, but those steps miss the substantive question of ultimate relief. Specifically, the first respondent does not contend that the retaining wall should be left in its current condition for any longer than is necessary. Rather, he wants to do the work in the third development application and is actively pursuing approval to it. Thus, at any hearing of these proceedings he would argue for an order for the works in the third development application to be undertaken. This would raise discretionary issues, including amenity and privacy impacts, as the Murray affidavit suggests. However, the "far more appropriate framework for consideration of these is in the Council's assessment of the [third development application] and in any Class 1 appeal in the event of Council refusal". 4. Fourthly, notwithstanding the recommendation of demolition in the Phillips/Huang report, the applicants have never sought urgent interlocutory relief in respect of the claimed instability of the retaining wall, nor any order for expedition of the hearing for final relief. No application for immediate demolition is before the Court.
The applicants submit instead that the Court should order the motion be dismissed with costs and that the parties obtain hearing dates and prepare for hearing. A hearing would facilitate the just, quick and cheap resolution of the final remaining issue in dispute without affecting the capacity of the first respondent to seek and obtain development consent. The applicants submit that a hearing in these Class 4 proceedings, and any orders made by the Court in the exercise of its discretion, would not foreclose to the first respondent the ability to seek and obtain development consent for a structure in the nature of a retaining wall and the future use and enjoyment of the first respondent's property. The Court retains a wide and beneficial discretion over the formation of any order which can be made subject to any development consent that is granted.
The applicants submit that by comparison, the grant of an adjournment or stay would cause prejudice in that it would: 1. put property and persons at risk; 2. do nothing to improve any short or medium term risks arising from the works; 3. allow the occupants of the first respondent's property to be advantaged from the use and enjoyment of the works to the prejudice of the amenity of the occupants of the applicants' property; 4. on the first respondent's own evidence, necessarily require a program of continuous monitoring and reporting to either the Court or the parties which: 1. would greatly exacerbate costs in the proceedings; and 2. not promote or maintain the status quo. Rather, if further settlement or cracking arises, the risks presented by the works will have manifested. Any regime for monitoring would need to be at regular intervals or after particular weather events and is likely to involve repeated or regular disputes and repeated applications for rulings on compliance. This suggests against such a regime being useful.
The applicants submit as follows in relation to the matters identified in s 58(2)(b) of the CPA concerning the dictates of justice: 1. The remaining issue in dispute concerns the scope of relief to be ordered. This is "not a particularly difficult or complex matter". There is no dispute as to the status of the works as unauthorised (s 58(2)(b)(i)). 2. The parties have taken steps to pursue other means of resolving the dispute. A hearing is appropriate (s 58(2)(b)(ii)). 3. The application to adjourn or stay the proceedings has arisen late and is in aid of the third attempt of the first respondent to regularise the works. The development application does not involve demolition of the works and so assumes that some parts of the structures will remain (despite that no proper drainage was installed at its construction). A development consent in relation to the development application would not ensure the works approved by it are carried out, either at all or with any promptness. The development application includes proposed works other than involving the works which adds complexity in the assessment unrelated to the issues now before the Court (s 58(2)(b)(iii)). 4. The remaining question of what should be done in relation to the works now lends itself to determination by the Court. The applicants seek to do that in circumstances that are just, quick and cheap (s 58(2)(b)(iv)). 5. The parties have taken advantage of procedures including mediation. A final hearing is appropriate and an adjournment is not (s 58(2)(b)(v)). 6. The degree of injustice that would be suffered by the respective parties has been addressed at [62] to [63] above (s 58(2)(b)(vi)).

Conclusions

It was apparent at the hearing yesterday, and accepted by the parties, that the parties are seeking to arrive at the same "endpoint"; that is, the remediation of the retaining wall.
In all the circumstances, I do not consider that an adjournment or stay of the Class 4 civil enforcement proceedings will better achieve that endpoint. Observing the overriding purpose in s 56 of the CPA and the dictates of justice in s 58 of the CPA, I decline the first respondent's motion for an adjournment or stay.
As submitted by the applicants, it is not clear whether the issues in relation to the retaining wall will be resolved by the determination of the third development application which extends beyond the retaining wall, and seeks consent in relation to "the construction of dwelling alterations/additions…and swimming pool."
Further, whilst I do not need to determine for the purposes of the application the differences between the experts in relation to the stability and security of the retaining wall, on the balance of convenience, I attach weight to the opinion of the applicants' experts Mr Phillips and Mr Huang that there is a high and very real risk of immediate failure to the wall, and that in the event of a prolonged storm with high rainfall, the likelihood of failure will be high.
In accordance with s 59 of the CPA, the practice and procedure of the Court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination. The proceedings were commenced by Council on 7 November 2022. The approach proposed by the first respondent could see the proceedings stayed for perhaps twelve months beyond February 2024.
I accept the applicants' submission that neither of the exceptions in s 59 of the CPA has been demonstrated to be engaged.
I also accept the applicants' submission that the first respondent's proposed undertakings to the Court lack appropriate specificity in relation to the monitoring program. There are questions at large in relation to who would undertake the monitoring, at what periodicity, to whom they would report, and any emergency measures which would follow. The Court has not been provided with any, let alone sufficient, evidence in relation to the monitoring program proposed in the first respondent's submissions.
In circumstances in which the first respondent accepts that the works are unauthorised and the applicants have invoked the Court's Class 4 jurisdiction with an expectation that the matter proceed to hearing, and I find that the applicants have sought practical solutions to the issue concerning the retaining wall, including through participation in extensive mediation, I dismiss the first respondent's motion.
It is presently unclear when Council will determine the third development application, and it if is refused, when the first respondent's foreshadowed appeal from a refusal would be determined by the Court. It may well be that if Council refuses the third development application, any Class 1 appeal could be joined with these Class 4 proceedings, as occurred in Master Alchemy. These are presently matters (perhaps informed) of speculation. It is also unclear whether, if the third development application is determined favourably to the first respondent, all the issues in the Class 4 proceedings will go away.
I do not consider it appropriate in all the circumstances to make an order pursuant to s 9.46(3)(a) of the EPA Act that the proceedings be adjourned to enable a development application to be made to obtain consent. It is not apparent to me that an adjournment of proceedings which commenced on 7 November 2022 for a period likely to be up to 12 months from the date of these reasons would facilitate the just, quick and cheap resolution of the real issues in these Class 4 proceedings, within the meaning of s 56 of the CPA.
Likewise, I am not satisfied that the dictates of justice, within the meaning of s 58 of the CPA, would have the Court find that it is appropriate to exercise its discretion to adjourn the proceedings. There is nothing in the evidence relied upon by the first respondent in support of its motion that satisfies me that delay, in the circumstances specified in s 59 of the CPA is warranted.
The Class 4 proceedings can proceed to hearing. In these proceedings, the Court will determine appropriate relief to remedy the works that have been accepted by the first respondent to be unauthorised. As submitted by the applicants, the Court could, for example, make orders that the works proceed "subject to development consent being obtained." Any remaining works sought to be carried out by the first respondent in the third development application will remain to be determined by Council and, if refused, by the Court in Class 1 proceedings. I do not accept that such a course will prejudice the first respondent. I propose to have the matter relisted on Friday, 9 February 2024 in order for the parties to provide an update to the Court on the progress of the matter. In the meantime, I will direct the parties to confer and seek to agree short minutes of order for the preparation of the hearing on dates to be obtained from the Registrar.

Orders and directions

The Court makes the following orders and directions: 1. The first respondent's notice of motion is dismissed. 2. The parties to approach the Registrar no later than by 4:00pm on Monday, 18 December 2023 with a view of seeking hearing dates to be fixed no earlier than April 2024 for a duration of two days. 3. The parties to confer and seek to agree short minutes of order for the preparation of the hearing on the dates obtained from the Registrar, and to seek those short minutes of order via Online Court by 12:00pm on Wednesday, 20 December 2023. 4. The matter is listed for directions for the purpose of providing an update to the Court on the progress of the matter on Friday, 9 February 2024. 5. Liberty to apply on three days' notice. 6. Costs in the cause.

Endnotes

[2019] NSWLEC 204 (Preston CJ).
[2020] NSWLEC 12 (Pepper J). 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: 15 December 2023

Civil Procedure Act 2005(NSW)ss 58, 59, 67

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