Mailey v Sutherland Shire Council [2017] NSWLEC 145 | Case summary

Mailey v Sutherland Shire Council [2017] NSWLEC 145 | Case summary | Zoe

[2]

Validity of emergency order

The three Applicants have commenced a judicial review challenge to an emergency order (the Order) issued to them by Sutherland Shire Council (the Council) pursuant to ss 124 and 129 of the Local Government Act 1993 (LG Act). The terms of the order are set out below and concern retaining walls on or close to the boundary of the Applicants' land in Marlo Road Cronulla. Much of the wall is located very close to the boundary on adjoining land owned by the Council pursuant to s 145 of the Roads Act 1993, being Mitchell Road Cronulla. The proceedings were expedited on 11 August 2017.
The amended summons dated 14 August 2017 seeks: 1 A declaration that the Emergency Order issued on 13 April 2017 pursuant to sections 124 and 129 of the Local Government Act 1993 in respect of Lot 1 in DP 1230066 at 2-4 Marlo Road, Cronulla, is void and of no effect. 2 Damages being the expenditure incurred by the Applicants in complying with the purported Emergency Order. 3 An order that the Respondent pay the Applicant's costs of the proceedings. 4 Any other Order this Honourable Court deems appropriate.
The Applicants claim $76,123.86 as damages being the costs incurred in attempting to comply with the Order. This judgment does not consider the claim for damages and no evidence related to that issue is included. There was insufficient time to consider all issues relevant to that issue in the expedited hearing, which took longer than the two days allocated in any event. At issue in this judgment is whether the Order is lawful.
The Applicants collectively own the property known as 2 Marlo Road Cronulla. The land was formerly two separate lots, Lots 180 and 179 of DP 8483, being 2 and 4 Marlo Road. The lots were amalgamated by the registration of a Plan of Consolidation DP 1230066 on 4 April 2017. The Applicants' land borders Mitchell Road along its eastern boundary. Mitchell Road lies more than 2 m above the level of Marlo Road. Retaining walls ranging from about 1.65 to 2.4 m in height are located along or very close to this common boundary.
2 Marlo Road is presently a construction site. Most of the structures on the land have been demolished or are in the process of being demolished pursuant to a development consent granted on 15 November 2016. Prior to demolition the structures on the Applicants' land included a two storey main building, a garage in the north-eastern corner, a two storey outbuilding in the south-eastern corner and a concrete ramp providing access to the upper level of the main building from Mitchell Road.

[3]

The retaining walls

According to the survey of Mr de Nett surveyor the walls in their entirety are 45.425 m in length. Five distinct but contiguous sections run approximately north/south along or very close to the common boundary between the Applicants' land and the road reserve (nature strip, footpath and road) of Mitchell Road.
Wall A begins at the cul-de-sac at the end of Marlo Road. It is described as a concrete block retaining wall 190 mm wide. It is located entirely on Mitchell Road. There is no dispute that Wall A was constructed by the Council and it is not the subject of the Order.
Wall B is a concrete wall between 160 and 230 mm wide. Wall B is mainly located on Mitchell Road. The base of the northern end of Wall B sits on the common boundary. Three hobs or footings protrude from the base of the wall onto the Applicants' land in various locations in the northern portion of Wall B. The base of the southern end of Wall B is 90 mm from the common boundary within Mitchell Road.
Wall C is a rendered block wall 200 mm wide. The base of the wall is in Mitchell Road set back from the common boundary by between 40 and 120 mm. The top of the wall is within Mitchell Road by between 10 and 110 mm.
Wall D is a concrete wall between 150 and 160 mm wide. It follows an irregular path along the common boundary. The base of Wall D at its northern end sits approximately 10 mm within Mitchell Road. The base of the wall otherwise lies up to 130 mm on the Applicants' land. The top of the wall leans towards and over the Applicants' land by between 130 and 270 mm. Four steel support beams have been driven into the ground along Wall D on the Applicants' land.
Wall E is a concrete wall 190 mm wide. The base of the northern end of Wall E is 30 mm within the Mitchell Road side of the common boundary while the top aligns with the boundary. Two hobs or footings protrude onto the Applicants' land at the northern end of Wall E. The majority of Wall E straddles the common boundary and is 100 mm into the Applicants' land at the top of the wall.
Walls B and E were connected to structures on the Applicants' land. Photographs of the site prior to demolition included in the exhibit to the affidavit of Mr Pepper structural engineer (Exhibit 2) showed Wall B connected to a brick garage and concrete stairs. The stairs abut the southern portion of Wall B and provide access from the surface level of the Applicants' land up to Mitchell Road. According to the survey of Mr de Nett they are predominantly on the Applicants' land and also sit partially on Mitchell Road. As shown in the photographs in Exhibit 2 a concrete ramp above the stairs at Wall C provided access from the western nature strip of Mitchell Road to the rear entrance of the second storey of the main building on the Applicants' land. Wall E was connected to a two storey outbuilding in the south-eastern corner of the Applicants' land.
The parties do not agree who built Walls B, C, D or E.

[4]

Points of Claim

The points of claim filed by the Applicants on 14 August 2017 state: The Site and Background to the Order 5 The Applicants are the registered proprietors of 2-4 Marlo Road, Cronulla (Land). 6 Mitchell Road and the road reserve (Mitchell Road) is vested in fee simple Council as the roads authority. Particulars s 145 of the Roads Act 1993. 7 Development Application DA16/0345 for the demolition of two dwellings and construction of a residential flat building containing 10 apartments was approved on 15 November 2016 (DA) by the Respondent (Council). 8 Erected within Mitchell Road is a wall (the Wall) which runs adjacent to eastern boundary of the Land. 9 The Wall retains fill and sand (the Fill) in Mitchell Road. 10 In 2017 and probably well before that year the Fill exerted pressure on the eastern side of the Wall causing it to move into, rotate and lean over the Land. 11 The Wall by April 2017 was in imminent danger of collapse into the Land. 12 On 13 April 2017, Council purported to exercise its power under s 124 of the Local Government Act 1993 and purported to issue an Emergency Order No. 21 (Order). Particulars The Applicants rely on the terms of the Order as if the terms of it were fully set out in this pleading. 13 The Order can only be issued against the owner or occupier to do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition where the land or premises are not in a safe or healthy condition. 14 The Council only has power to issue an order in the nature of the Order in these proceedings upon the owner or occupier of the land which is in an unsafe condition. 15 The Wall: a. Is in an unsafe condition; and b. Is in imminent danger of collapse; but c. Is erected on Mitchell Road. Further Particulars A small section of the Wall encroaches on the Land but only where Mitchell Road is forcing the wall onto the Land. 16 The Order is Ultra Vires. In the circumstances, the Council had no power under the Local Government Act 1993 to issue the Order and it was void. 17 The Order is void for Uncertainty Particulars The Order does not specify what the Applicants are to do or refrain from doing to ensure that Land is placed or kept in a safe or healthy condition. 18 The Order is void, in any event, as the power to give the Order was exercised for an improper purpose.

[8]

Emergency Order

The Order is set out to a large extent as follows: EMERGENCY ORDER pursuant to s 129 & s 124 of the Local Government Act, 1993 (NSW) PREMISES: Lot 1 DP 1230066 at 2 Marlo Road CRONULLA NSW 2230 ("the subject premises") A recent inspection of the subject premises by Council's Executive Engineer Mario SHERRIE has revealed there are four (4) different types of construction methods of retaining walls along the eastern boundary. Mr SHERRIE has indicated that one (1) of the retaining walls in the rear yard of the subject premises is showing signs of a large amount of rotation and may collapse without further warning. Furthermore, Council's in receipt of a dilapidation report dated 22 February 2017, Ref: 20160464.04A prepared by Mr Daniel COUPE of Jones Nicholson Consulting Engineers. Mr COUPE has listed in his report the four (4) retaining walls as A, B, C and D. He has indicated that one (1) of the walls "D" has failed and appears to be unstable. With no significant foundations encountered during investigation and severely deteriorated soldier piles, therefore, the wall is at risk of failure. Council now believes the area around wall "D" Is unsafe and as such, there is risk to person(s) and/or property should partial or complete failure occur. Sutherland Shire Council, being the responsible authority for such matters, considers that in view of the circumstances a sufficiently reasonable basis exists for the issue of an EMERGENCY ORDER, Order No. 21 TO WHOM: Geoffrey Arthur Mailey, Cresley Investments Pty Ltd & Gnk Developments Pty Ltd TO DO WHAT: Carry out the following works in order to ensure the area around retaining wall "D" is made safe. 1. Erect and maintain fencing so as to isolate the area above and below retaining wall "D" to prevent unauthorised entry to the area. The fence to the lower area (rear yard) of the subject premises will need to have exclusion zone distances of (2) times the height of the retaining wall as recommended in the Jones Nicholson dilapidation report. The fencing must comprise metal type fencing (or similar) with a minimum height of 1.8m above the natural ground levels and be erected in such a manner so as to adequately isolate and restrict access into the area. A chain wire & post system (such as "Cyclone" type fencing), and/or a combination of prefabricated site fencing (such as "ATF" construction fencing) would be suitable. Furthermore, such fencing is to be rigidly founded so that it cannot be easily pushed over. 2. As recommended in the Jones Nicholson dilapidation report. Engage the services of a suitably qualified and registered professional such as a Geotechnical Engineer to provide a full assessment and detailed report on retaining wall "D" and the risk of collapse to any Council assets. The report is to make recommendations and give details so that the Structural Engineer can prepare a report (as outlined in item three (3] below) in conjunction with the geotechnical report. A copy of this report should be forwarded to Adrian Walker at SSC PO Box 17, SUTHERLAND NSW 1499. 3. Engage the services of a suitably qualified and registered professional such as a Structural Engineer to provide a full assessment, detailed report and recommendation for the construction of a new retaining wall to replace wall "D"'. The Jones Nicholson dilapidation report makes no mention of the two (2) storey structure at the very most south-eastern boundary of the subject premises. This structure also appears to form a retaining wall extension to wall "D". The Jones Nicholson report also makes mention of wall "B" and the stability of this section of wall will be weakened by removing the garage and staircase structures. As such, the stability of walls "'B", "C" and the extension part to wall "D" are likely to be compromised by the proposed demolition of all structures and therefore, this needs to be investigated further. Council require certification from the Engineer to the effect that walls "B", "C" and the extension to wall "D" will be stable and fit for purpose following demolition of the garage, staircase and the two (2) storey structure at the subject premises. Supply Council with a copy of the Engineers detailed report, including design plans for all proposed work(s). The design plans will need to show the location of all new retaining wall(s). A copy of this report and plans should be forwarded to Adrian Walker at SSC PO Box 17, SUTHERLAND NSW 1499. Note: No works shall commence until Mr SHERRIE has provided confirmation the report and plan is acceptable. 4. Provide temporary support to retaining wall "D"' as recommended by the Engineer and under the supervision of the Engineer. A certificate from an Engineer is to be provided to Council following completion of the work. This Certificate must state that the temporary support is adequate for its purpose. A copy of this report should be forwarded to Adrian Walker at SSC PO Box 17, SUTHERLAND NSW 1499. 5. Engage the services of a suitably qualified surveyor. The surveyor is to supply key survey points prior to the retaining wall(s) being constructed. All retaining wall(s) are to be constructed wholly within the subject premises. At the completion of the works the Surveyor to provide a detailed survey report showing the location of the newly constructed retaining wall(s). A copy of this report and plans should be forwarded to Adrian Walker at SSC PO Box 17, SUTHERLAND NSW 1499. 6. Carry out all necessary works as recommended by the Engineers detailed reports as referred to in point two (2) and three (3) above. All works to be carried out under the direct supervision of a suitably qualified and experienced Engineer. 7. On completion of the works being carried out, provide Council with certification from the Engineers, confirming that the proposed works are structurally adequate, have been constructed in accordance with their detailed design plans as referred to in point two (2) and three (3) above including an updated survey showing the location of the newly constructed retaining wall. A copy of the certification report and survey report should be forwarded to Adrian Walker at SSC PO Box 17, SUTHERLAND NSW 1499. ... REASONS FOR ORDER: 1. The rotation and further vertical movement of retaining wall "D" is evident, which demonstrates the retaining wall may not be in a stable condition. 2. The severely deteriorated soldier piles and the unknown stability of retaining wall "D" needs to be investigated further to adequately assess and determine if the wall requires removal and/or further works upon it. 3. There is a potential risk to life and property should the retaining wall collapse. 4. Council considers the premises are not being kept in a safe or healthy condition as the retaining wall is prejudicial to person(s) and/or property. As such, may pose a potential risk to personal and/or public health & safety and not promote the safety of person(s). PERIOD FOR COMPLIANCE: Work required in 1) within seven (7) days from the date of the Order. Work required in 2) within fourteen (14) days from the date of the Order. Work required in 3) within twenty eight (28) days from the date of the Order. Work required in 4) within seven (7) days from the date of the Order. Work required in 5) prior to the retaining wall(s) being constructed and at the completion of the work(s). Work required in 6) within sixty (60) days from the date Council confirms the reports and plans, referred to in 2) and 3) are acceptable. Work required in 7) within seven (7) days from completion of the work(s). ...
The Council accepts Orders 1, 2 and 4 have been substantially complied with.

[22]

Cross-examination of engineers

The engineers Mr Adler, Mr Molloy, Mr Zenon and Mr Pepper were cross-examined concurrently about issues arising from their affidavit evidence. Much of their cross-examination focused on the fill behind the retaining walls. Mr Molloy and Mr Adler maintained their opinions that fill had been placed behind the walls to facilitate the widening of Mitchell Road. In Mr Molloy's opinion the 1.3 or 1.4 m of fill apparent from Mr Zenon's borehole nearest to Wall D could have put pressure on Wall D and caused it to fail. This was the most relevant borehole for the purposes of calculating influence on Wall D despite being located 3 or 4 m from the wall. Mr Molloy estimated that there is approximately 100 cubic metres of fill behind Wall D. Mr Zenon did not believe that there were enough boreholes dug to provide sufficient evidence to support any conclusion about the volume of fill behind Wall D.
Mr Molloy agreed with Mr Pepper that the concrete stairs and Wall B were likely constructed at the same time. He accepted that it was unlikely that the Council would have built this section of Wall B. An extension above Wall B was likely added later, possibly to retain fill added in connection with works on Mitchell Road. Mr Molloy did not believe that the garage roof and beams were built integrally with Wall B as these structures came away easily and without any reinforced connection to the wall during demolition. Mr Molloy's opinion was that Wall C was designed as a retaining wall whereas Wall D was not. Mr Zenon said that there must have been a reason to construct Walls B and E differently to the three other walls of the garage and outbuilding. The concrete walls were likely constructed to support fill.
In Mr Adler's opinion the Council could have built the retaining walls notwithstanding the absence of any records and different design and construction methods. The clay found in the borehole tests was consistent with road construction practices in Sydney.

[26]

Other documentary evidence

The Applicants tendered the surveyors' joint expert report dated 15 September 2017 which became Exhibit A. The surveyors agreed the location of the common boundary between the Applicants' property and Mitchell Road, being that which was defined in the Plan of Consolidation DP 1230066 prepared by Mr Medway and registered on 4 April 2017. The joint report also noted that the affidavit of Mr de Nett locates additional structures after demolition of the site had occurred which were not accessible to Mr Medway when he prepared his affidavit.
The engineers' joint expert report dated 11 September 2017 became Exhibit B. The engineers agreed that Wall D was constructed between 1961 and 1970 based on aerial photographs of the site. Wall D is now unsafe. Walls B and E would potentially become unsafe if the garage and outbuilding were demolished as these structures were providing lateral support to these walls. The engineers agreed the locations of the retaining walls. Wall A is located entirely on Mitchell Road, Wall B is located on Mitchell Road with footings and adjoining concrete stairs located on the Applicants' land, Wall C is entirely on Mitchell Road, Wall D has failed and moved partially onto the Applicants' land and Wall E straddles the common boundary. The Applicants' engineers are of the opinion that Wall D was originally constructed on Mitchell Road whereas the Council's engineers do not agree with this conclusion due to insufficient information.
The engineers agreed that the five retaining walls were constructed differently, probably at different times. They agreed that there is insufficient information to conclude who built Walls C and D. The Council's engineers are of the opinion that Walls B and E were built integral with the structures on the Applicants' land and for the benefit of that property. The Applicants' engineers stated that they have insufficient information to support an opinion on this issue.
A hand-drawn section of Wall D indicating its "top" and "toe" was Exhibit C. Exhibit D was a hand drawing prepared by Mr Molloy illustrating the calculations he undertook to estimate the volume of the fill behind Wall D. A hand drawing in the Applicants' counsel described as "Zenon - Zone of Influence" concerning the angle of impact of fill located behind a retaining wall became Exhibit E.
The Council tendered Exhibit 2 which contained documents exhibited to Mr Pepper's affidavit. These included Council plans for the construction of Wall A, photographs of Walls B and C including the adjoining garage and stairs, and a photograph of the nature strip between the footpath on Mitchell Road and the retaining walls prior to the demolition of structures on the Applicants' land. Historical aerial photographs sourced from the Council's records, similar to those that were attached to Mr Mailey's affidavit dated 14 August 2017, were also included in Exhibit 2. The Council's plans for works on Mitchell Road in 1963 and 2007 formed part of this exhibit as well as the approved plans for development of the Applicants' land and the Applicants' response to the Order dated 11 May 2017.
An agreed bundle of documents was tendered as Exhibit 3. It contained Council records of 2 Marlo Road such as a building application dated 1949, correspondence with previous owners of the property and historical records of works done on Mitchell Road. Exhibit 3 included a memorandum of Mr Sherrie Council engineer dated 30 March 2017 concerning the retaining walls, the current safety risks posed and rationale for the opinion that the Applicants are responsible for replacing Wall D. Correspondence between the Council and Applicants concerning the Order was also included in Exhibit 3. One email from Mr Sherrie dated 26 May 2017 attached diagrams depicting surface levels of the Applicants' land and Mitchell Road in 1943 and 2014. The results, derived from stereoscopic photography, showed the Applicants' land having been cut into at the common boundary by 2014, the road reserve remaining at a consistent height and filling of the road reserve adjacent to Wall E and the outbuilding. Mr Sherrie stated in his email that this supported his earlier view that the nature strip had been raised locally to match the entry level of the second storey of the outbuilding.
Exhibit 5 was also a hand drawing of the zone of influence of fill prepared by Mr Zenon.
The Council filed a statement of reasons dated 6 September 2017 in the course of these proceedings. Findings on Material Questions of Fact 1. The applicants owned the Property. 2. The Property was not in a safe condition. 3. The Order required the Applicants to do things which would ensure the Property was kept or placed in a safe condition. The evidence or other material on which those findings were based: 1. Customer Request Management System record 17-175612 2. Memorandum of Mario Sherrie dated 30 March 2017 with summary of observations 3. Dilapidation report of Jones Nicholson Consulting Engineers dated 22 February 2017 4. Council's electronic land ownership records (TechnologyOne Property) Why the decision was made 1. The reasons for the decision were set out in the Order. Relevantly: a) A recent inspection of the Property by Council's Engineer Mario Sherrie had revealed there were four different types of construction methods of retaining walls along the eastern boundary of the Property. b) Mr Sherrie had indicated that one of the retaining walls in the rear yard of the Property was showing signs of a large amount of rotation and might collapse without further warning. c) Council had received a dilapidation report dated 22 February 2017 prepared by Daniel Coupe of Jones Nicholson Consulting. The report listed 4 retaining walls-A, B, C and D. Mr Coupe listed in his report that (i) one of the walls D had failed and appeared unstable; and (ii) with no significant foundations encountered during investigation and severely deteriorated soldier piles, the wall was at risk of failure. d) Mr Pracy believed the area around Wall D was unsafe, and as such, there was a risk to person(s) and/or property should partial or complete failure occur. e) Mr Pracy believed that a sufficiently reasonable basis existed for the issue of the Order, namely that the Property was in an unsafe condition, that the recipients of the order owned the Property, and that the order would require them to do things which would ensure that the Property was placed and kept in a safe condition. f) The Dilapidation Report made no mention of a two storey structure at the south-eastern boundary of the Property ("the Outbuilding"). This structure also appeared to form a retaining wall extension to wall D. g) The Dilapidation report had mentioned that the stability of wall B would be weakened by removing the garage and staircase structures. h) As such, the stability of walls B, C and the extension to wall D were likely to be compromised by the proposed demolition of structures and therefore this needed to be investigated further, i) The rotation and further vertical movement of Wall D demonstrated the wall may not be in a stable condition, j) The severely deteriorated soldier piles and the unknown stability of Wall D needed to be investigated further to adequately assess and determine if the Wall required removal and/or further works upon it. k) There was a potential risk to life and property should the retaining wall collapse. I) The land was not in a safe condition as the retaining wall was a risk to the safety of persons and property.
The Applicants advanced three reasons for why the Order should be declared invalid.

[27]

Applicants' submissions

The Applicants submit that the Order is ultra vires as it was issued without the necessary statutory power. The retaining walls are part of Mitchell Road, except where Wall D has been forced onto the Applicants' land. The Applicants' land is safe whereas Mitchell Road is unsafe. The Order requires the Applicants to construct a retaining wall on their land despite not having any obligation to support Mitchell Road. The Council does not have any relevant interest in 2 Marlo Road which would entitle it to use the land to support Mitchell Road.
Under the common law an adjoining owner cannot be required to make council's land safe unless the adjoining owner has created a nuisance, is under a duty of care, has committed a trespass or infringed a common law right which gave the council the power to exercise against that person. None of these circumstances arise here.
The land in its natural state consisted of sand dunes. The aerial photographs in 1955 and 1961 do not contain a boundary wall in the present location. In the 1970 photograph a wall is evident on the eastern boundary of 2 Marlo Road consistent with the construction of a retaining wall. There is also evidence of a footpath on the western side of Mitchell Road and a nature strip between it and the boundary of 2 Marlo Road which is formed, regular, continuous and for the length of the property. It is quite different to the previous dunal form.
The Council's structural engineer Mr Pepper stated that Wall B was integrated with and adjacent to the stairs constructed to give access to the upper level of the main dwelling and which run along the eastern boundary of the Applicants' land. From this he drew the conclusion that previous owners of 2 Marlo Road had excavated their land below the level of the road and removed the natural support for that property. His position in cross-examination was different. That conclusion was undermined by the eyewitness evidence of Mrs Banning who said that the stairs did not adjoin a wall.
Further Mr Molloy stated that behind Wall D alone he estimated some 100 m3 of fill, implying a larger work scale than simply filling with a wheelbarrow. The geotechnical evidence confirms the presence of fill right along the eastern boundary of the Applicants' land and its different nature to the sand underlying the fill. That kind of fill material would be consistent with producing a finished roadscape safe for vehicles to travel along with footpaths, kerbs and guttering.
The Applicants' engineers Mr Adler and Mr Molloy both expressed an opinion about fill and the likelihood of what occurred. The Council's engineers did not express an opinion based on lack of evidence.
The Council does not have the power to order work to be done on land not owned or occupied by the recipient of the Order pursuant to s 124 of the LG Act. The Council as the owner of the land in fee simple which comprises Mitchell Road has responsibilities that all landowners have in respect of their own properties. One such responsibility is to know what structures exist on the land, whether they are safe and where they are not safe to take appropriate action to make them safe. Such appropriate action would not include issuing orders against the neighbour to rectify a safety issue in the road.

[29]

Finding on issue 1

The Applicants have commenced judicial review proceedings alleging that the Council had no power to issue the Order. The Applicants had a right of appeal pursuant to s 180 of the LG Act which was not exercised. Section 124 provides broad powers to a council to issue orders requiring that work be done by an owner or occupier of land or premises which are not in a safe (or healthy) condition. The application of the section in the context of the subject of retaining walls located on both sides or very near a property boundary generated a lot of evidence and argument over three days of hearing. Mitchell Road and the Applicants' land benefit from the walls as Mitchell Road is higher than 2 Marlo Road. The Order concerns failing Wall D and the structural stability of other sections of the retaining walls when supporting structures on 2 Marlo Road are removed as part of development of that site. There is no evidence that the Council has imposed obligations on itself to address the failing Wall D.
The principles of statutory construction must be applied so that the ordinary meaning of words viewed in their context are construed, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. Provided the prerequisites of item 21 are met, the circumstances in which orders can be issued under item 21 of s 124 are unspecified and therefore wide.
There is no dispute that the Applicants are the owners of 2 Marlo Road. At issue inter alia is whether the Applicants' land is unsafe, a prerequisite to the issue of an order, and the scope of work the Order requires in relation to requiring the Applicants to cordon off Wall D on Mitchell Road as well as on 2 Marlo Road and the replacement of Wall D. I do not understand that the Applicants argue in relation to this ground that obtaining engineering reports about the structural integrity of the other retaining walls are beyond power. Related to the scope of work argument is the location of the retaining walls. The Applicants accept that if the walls in particular Wall D were wholly located on their property the Order would be valid. The Applicants submit however that Wall D and other sections of the retaining walls are (or were originally) on Mitchell Road. The Order is premised on the basis that Wall D is on the Applicants' land, as stated in the preamble set out in par 17 above.

[34]

Rationale for the order

Although strictly unnecessary for the purpose of deciding if the Order is within power, and in light of the allegation of improper purpose, the Council's rationale for issuing the Order is usefully considered. The Council engineer Mr Sherrie referred to s 177 of the Conveyancing Act in the memorandum considered by Mr Pracy when he determined to issue the emergency Order. Section 177 of the Conveyancing Act, extracted at par 16 above, states that a duty of care exists in relation to the right of support for land for the purposes of the law of negligence. An owner of supporting land must not do anything to remove the support provided to any other land. That requirement in relation to public roads is confirmed in s 91 of the Roads Act. While that section can have no direct relevance to the construction of s 124 in the absence of any explicit or implied statutory indicator that it should, the discussion identifies the circumstances informing the Council's actions in issuing the Order to the Applicants and on what terms. Mr Sherrie formed the view that Mitchell Road was entitled to support because an owner of 2 Marlo Road had at some point caused the land to be levelled to provide a building platform which altered the relative depth of the adjoining parcels of land.
The engineering evidence adduced was voluminous and directed in large part to trying to prove who built Walls B, C and D and whose fill lay behind these on the Mitchell Road side. The engineers gave evidence describing the development of the two properties along their common boundary based on the available aerial photographs taken in 1943, 1955 and 1970. In addition borehole testing of the material on the Mitchell Road side was undertaken. The engineers agreed in their joint report there was insufficient information to determine who built Walls C and D. The Applicants' engineers believed the same level of ambiguity applied to Walls B and E whereas the Council's engineers thought they had been constructed integral with the connected structures on the Applicants' land.
The lay evidence of Mrs Banning who lived at 2 Marlo Road as a child until 1958 was said to conflict with Mr Pepper's evidence of when the stairs and Wall B were built. He considered they were built at the same time. Her evidence was that when she lived there no wall existed next to the stairs. Mr Adler said in cross-examination that it is possible the retaining walls were constructed by the Council during a road widening project notwithstanding the absence of any records about development in this area. His experience working with local councils is that records can sometimes be difficult to locate. He has also seen evidence of poorly constructed walls owned by local councils. Mr Molloy said that the fill in the road reserve apparent from the borehole results and visual inspection of pits dug by Mr Mailey could have been placed there during upgrades to Mitchell Road.
The evidence that favours the Council's position that the retaining walls (except Wall A) were built by and for the benefit of previous owners of the Applicants' land is more persuasive than that which supports the Applicants' opposite contention outlined in the previous paragraph. The only records of the Council relate to Wall A which are detailed and include footings. Mr Anderson engineer who has worked on construction projects at the Council for over 45 years did not believe any of the other walls would have been constructed by the Council. Wall D is constructed poorly and all walls are of different heights and involved different construction methods. This suggests they were not built as part of a single road construction project as the Applicants opine. The Council's plans for upgrading Mitchell Road in 1963 and 2007 do not indicate the construction of any retaining walls or placement of fill in the western nature strip.
I do not consider Mrs Banning's evidence undermines Mr Pepper's evidence to any degree. There is no doubt that Wall B was built at some time, apparently after Mrs Banning left 2 Marlo Road in 1958. That Mr Pepper's opinion of when Wall B was built was not correct is immaterial in relation to who built the wall.
Mr Casaceli managing agent for the Applicants' land for over 30 years did not recall the Council constructing or doing any work on the retaining walls with the exception of Wall A. He saw a previous owner of the property in 1977 or 1978 install steel girders intended to support Wall D which was subsiding. This suggests a former owner was responsible for the building of Wall D.
In the opinion of the Council's engineers Walls B and E were built integral with the structures on the Applicants' land using concrete. The remaining three walls of the garage and outbuilding are brick. This suggests Walls B and E were constructed to retain fill. The walls also lack windows which might be expected if they were designed as a fence and were not intended to retain land. Neither Mr Zenon or Mr Pepper thought that the borehole evidence conclusively showed whether fill had been placed during Council works on Mitchell Road. Given the difference of opinion between the engineers it is difficult to arrive at a final conclusion on whose fill is behind the retaining walls but there is no certainty that the Council placed it there.
Mr Sherrie's email dated 26 May 2017 attaching diagrams which depict changes in the surface levels of the Applicants' land and Mitchell Road between 1943 and 2014 (see par 59 above) supports the Council's position that any fill placed in the road reserve was done so locally to align the road with structures on the Applicants' land, namely the walkway from the nature strip on Mitchell Road to the rear entrance of the two storey main building and the second storey of the outbuilding. The diagrams also showed the natural (1943) surface level as having been cut into at the common boundary on the Applicants' side. Mr Pepper's evidence that the Applicants' land was excavated at some stage was not undermined by cross-examination about the aerial photographs.
The evidence is somewhat inconclusive given the lack of detail about the provenance of Walls B, C, D and E. Considering the evidence on the balance of probability favours a finding that a previous owner of the Applicants' land built these walls given the height needed for access to the two storey buildings on that land from Mitchell Road and the absence of any Council records beyond Wall A inter alia. Ultimately that circumstance was not relied on by the Applicants who submitted in closing submissions it did not matter who built the retaining walls, the principal issue was where it was located. My conclusion does support the analysis of the Council engineer Mr Sherrie, whose advice that Mitchell Road required support was relied on by Mr Pracy when issuing the Order.
None of the cases referred to such as Levet v Dalla (2012) 6 ACTLR 190; [2012] ACTSC 23 and Yared v Glenhurst Gardens Pty Ltd (2002) 10 BPR 19, 485; [2002] NSWSC 11 were of much assistance as the causes of action and/or facts were different from this matter. Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381 was a tort claim concerning liability for falling rocks on a neighbour's property and also cannot assist in this matter. Possibly closest factually was The Owners - Strata Plan No 20226 v North Sydney Council (2012) 191 LGERA 72; [2012] NSWLEC 148 a costs judgment following an appeal to this Court under s 180 of the LG Act against an emergency order requiring the reinstatement of a failing retaining wall on a common boundary. The council in that matter originally issued two emergency orders one to each neighbour requiring them both to do work.
The Council has established that the prerequisites to the issuing of the Order under item 21 of s 124 have been satisfied. This ground of appeal fails.

[35]

Applicant's submissions

The Order is void for uncertainty. Certain parts of the Order were highlighted by the Applicants as uncertain in effect. The works required by the lengthy six page Order are unclear and the basis for the Applicants' liability is not explained. Compliance with the Order is contingent on several steps which could produce a range of outcomes. Emergency orders must be formulated precisely as failure to comply with these gives rise to criminal sanctions. Proprietors of Strata Plan 159 v Parramatta City Council (1977) 37 LGRA 74 at 85, Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 49 and Barclay v Wollongong City Council (2005) 139 LGERA 167; [2005] NSWLEC 160 at [36]-[37] were relied upon. The validity of an order depends on strict compliance with the statutory conditions governing its issue and it cannot be enforced unless it is expressed in clear and unambiguous language, see authorities cited in Manly Council v Leech [2015] NSWLEC 149 at [22].
Applying D'Anastasi v Environment, Climate Change & Water NSW (2011) 81 NSWLR 82; [2011] NSWCA 374 an order cannot require an investigation by a recipient. The authority proposing to issue an order should investigate to identify what is required and then order the requirements to be done if the circumstances in the section are satisfied.
Order 1 requires the Applicants to isolate an "area... to prevent unauthorised entry". The precise area and which persons should be excluded from it are uncertain. Orders 2 and 3 refer to a "suitably qualified and registered professional" requiring the Applicants to make a subjective judgment about the expertise of an individual. The "professional[s]" in Orders 2 and 3 are to provide "a full assessment and detailed report" which is uncertain. The words "this needs to be investigated further" do not tell the Applicants what to do with the certainty required by law. The Council cannot order the Applicants to require a third party to certify a state of future affairs about the stability of the retaining walls following demolition, which must be done according to Order 3. The requirement to "[s]upply Council with a copy of the Engineers detailed report, including design plans for all proposed work(s)" is uncertain as it does not identify the works required or the content of the design plans. The rationale for requiring the design plans to "show the location of all new retaining wall(s)" is unclear as the engineers may conclude that the existing walls are fit for purpose and do not need to be replaced.
The "engineer" referred to in Order 4 is unknown. It could be a geotechnical engineer suggested in Order 2, a structural engineer suggested in Order 3 or some other person. In Order 5 the words "suitably qualified surveyor" and "key survey points" are uncertain. The reference to "retaining wall(s) being constructed" is irrelevant if the engineers conclude the existing walls are fit for purpose. Yet the Order impliedly requires the demolition of all retaining walls and their rebuilding on the Applicants' land. The "necessary works" required to be carried out in Order 6 are not specified and the standard of "direct supervision of a suitably qualified and experienced Engineer" is unclear.

[37]

Order not uncertain

As the Applicants submitted the failure to comply with an emergency order can give rise to a criminal offence under the LG Act by virtue of s 628. It is therefore important that such orders are clear and certain about their requirements as identified in Genkem at 49 in the context of pollution control licence conditions. In Foster v Sutherland Shire Council (2001) 115 LGERA 130; [2001] NSWLEC 89 an order which prohibited the use of premises for "short term" accommodation was held to be invalid in the absence of a definition of that term. Cowdroy J identified at [8]-[10] the necessity for an order to be drafted in precise terms to avoid uncertainty and the potential for continual breaches. Barclay v Wollongong City Council at [35]-[36] applied Foster. The Court found that the order requiring the recipient to "implement all action necessary to bring about compliance of your subdivision" was uncertain as it failed to identify any steps required to satisfy the order in circumstances where there were a number of options that could be undertaken by the recipient, at [38]. The Court considered the notice was unenforceable and therefore invalid.
In Bobolas v Waverley Council (2012) 187 LGERA 63; [2012] NSWCA 126 at [41]-[50] which the Applicants relied on, the Court of Appeal held (McColl JA, Macfarlane JA and Tobias AJA agreeing) the order issued under the LG Act failed to make clear that the obligation was imposed immediately, a different issue to that before me in the present case. A similar issue arose in Manly Council v Leech. That difficulty does not arise in relation to this order.
The Applicants relied on Tweed Shire Council v Gennacker Pty Ltd [2015] NSWLEC 3 at [87]-[89] where the order did not state the basis for the recipient's legal liability to comply with it. The LG Act does not require a specific form of order but requires in s 136 that reasons be provided. In the present case the reasons for the Order are stated in it and additional background is provided in the preamble, as extracted at par 17 above. The Order states that the retaining walls were along the eastern (common) boundary, which is correct when the masonry walls and connecting structures on the Applicants' land are considered, as I have found above. Wall D and the deteriorating soldier piles which are located on the Applicants' land are referred to in the reasons. The Applicants own the land. A sufficient legal basis for the Applicants' liability is identified in the Order.
The precise terms of the Order in question must be examined in order to determine if its effect is uncertain. Other cases which have considered orders can provide some overall assistance but each matter must be determined on its own facts. The Applicants' very detailed complaints are identified above and I consider are unwarranted, for example "direct supervision" and "key survey points", are readily understood phrases in the context of the Order. The Order must be read as a whole and mindful of the context it seeks to address. When read appropriately the meaning is clear. That it is lengthy is not indicative of uncertainty.
I agree with and adopt the Council's submissions that this Order provides a scheme whereby the Applicants are required to obtain expert engineering advice about Wall D and how it should be replaced, including survey advice and options for replacement, as identified in Orders 2, 3 and 5. The Council engineer is to approve the work implementing any such option before it commences (Order 3). Certification from an engineer of the structural integrity of Walls B, C and D after all the connected structures such as the garage, two storey outbuilding and stairs are removed is also required. The Order does not leave the Applicants in the position of not knowing if they are in breach. There is no potential for continuing breaches under the terms of the Order as the Council must approve any work before it proceeds.
The Applicants directed particular attention to Order 3. When read in conjunction with the words "to be constructed wholly within the subject premises" in Order 5, they asserted the Order impliedly requires the demolition of all retaining walls and their replacement on the Applicants' land. The Order does not require replacement of Walls B, C and E explicitly or implicitly. If those walls are not certified to be structurally sound after demolition of the connecting structures on the Applicants' land as Order 3 requires it may be that another order under the LG Act will be necessary. The only wall required to be demolished and replaced under this Order is Wall D.
I agree with the Council that a distinction should be drawn between an order which allows flexibility to the recipient in achieving an outcome and an order which presents an unacceptable risk of continuing breaches by the recipient. This Order is not open-ended in its requirements. It specifies steps which the Applicants must take in order to be in a position to implement a specific engineered scheme which the Council must approve. These orders are unlike those found to be invalid in Lake Macquarie City Council v Gordon [2016] NSWLEC 49 because the scheme required under the order in that case, which included drawings provided by way of advice rather than instruction, was too uncertain. The scheme in the order ultimately made by the Court was flexible in setting parameters to be met but left up to the respondent how these were to be met.
The Order does have some additional arguably superfluous wording such as stating that the Applicants must "engage the services of a suitably qualified and registered professional such as a Geotechnical Engineer" (Order 2, see similar wording in relation to a structural engineer in Order 3). These words can be easily ignored and the meaning of the Order is not compromised. It is certain in my view.
D'Anastasi is not authority for the proposition that such an order cannot require any investigative work to be undertaken, namely obtaining expert advice on the appropriate course to take in dealing with a failing retaining wall. The notice in that case concerned powers of investigating officers to request information and records under s 193 of the Protection of the Environment Operations Act 1997. The Court of Appeal considered the extent to which such a notice could require the recipient to make inquiries. The statutory context is entirely different to the Order under the LG Act I am considering.
The Order is not void because of uncertainty. This ground of appeal fails.

Mailey v Sutherland Shire Council

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (43 paragraphs)

Parties

Cases Cited (22)

Cited By (1)