Wollongong City Council v Matthew Dominic Fikkers

Land and Environment Court (NSW)|2023-04-27|Before: Preston CJ

JUDGMENT

Wollongong City Council (the Council) brings civil enforcement proceedings to remedy and restrain two breaches of the Environment Planning and Assessment Act 1979 (NSW) (EPA Act) by Mr and Mrs Fikkers. Mr and Mrs Fikkers jointly own a residential property at 163 Mount Keira Road, Mount Keira. Formally, the land is identified as Lot 8 in Deposited Plan 31238 and Lot 5 in Deposited Plan 260969.
The property slopes quite steeply from the street to the rear of the property. Along the southern side boundary and along and near the rear western boundary, Mr Fikkers has erected substantial concrete block walls. The side boundary walls include walls later designated on a plan as walls R and M. The rear boundary walls include walls later designated on the plan as walls H, I, J and K. The walls had been constructed for the purpose of providing landscaped areas for the dwelling house on the property. Particularly at the rear, the walls retain sizeable volumes of fill imported to the site on which lawn and landscaping have been installed.
The construction of these walls was in breach of the EPA Act in two respects. First, the construction of the walls was development that required development consent but no development consent was obtained, in breach of s 4.2(1) of the EPA Act. Second, the Council had issued a Demolish Works Order (DWO) requiring the demolition of the walls, but Mr and Mrs Fikkers have not demolished the walls, in breach of s 9.37(1) of the EPA Act.
At the hearing, Mrs Fikkers appeared but Mr Fikkers did not appear. Mr Fikkers was aware of the hearing but advised the Council beforehand that he did not intend to appear. The hearing therefore proceeded in Mrs Fikkers' presence, but Mr Fikkers' absence. Mrs Fikkers did not contest that the construction of the walls on the property was in breach of s 4.2(1) of the EPA Act and the failure to comply with the DWO was in breach of s 9.37(1) of the EPA Act.
Mr Fikkers, in his recent emails to the Council advising of his intention not to appear at the hearing, also did not contest the breaches of the EPA Act, merely saying that he intended to demolish the walls within two to three weeks from 23 April 2023.

Breach of s 4.2(1) of the EPA Act

The construction of the walls was development that required development consent under Wollongong Local Environmental Plan 2009 (WLEP) and the EPA Act. The construction of the walls was development, as defined in s 1.5(1) of the EPA Act, as it involved the erection of a building, where building is defined in s 1.4(1) of the EPA Act to include any structure or part of a structure. The walls are sizeable structures. They are constructed of large concrete blocks, in which concrete has been poured. The height of the walls varies from 600 millimetres to 3.2 metres in height. Their length varies depending on the wall, but the longest is around 52 metres in length.
The property on which the walls have been constructed is zoned R2 Low Density Residential under WLEP. In that zone, the construction of the walls is development that requires development consent as it is ancillary to, and for the purpose of, the dwelling house that has been erected on the property. The Land Use Table for the R2 zone specifies that development of dwelling houses is permitted only with consent: see cl 2.3(1) and the Land Use Table of WLEP.
Section 4.2(1) of the EPA Act provides that, if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry out the development on the land unless development consent has been obtained and is in force, and the development is carried out in accordance with the consent. Mr and Mrs Fikkers did not obtain development consent to construct the walls as required by WLEP and s 4.2(1) of the EPA Act, and thereby breached s 4.2(1) of the EPA Act.
Mr and Mrs Fikkers would not have needed to have obtained development consent to construct the walls if that development was exempt development: see s 1.6(1) of the EPA Act. However, no environmental planning instrument specifies that that development is exempt development.
The development was not prescribed as exempt development by cl 3.1 and sch 2 of WLEP or by State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP).
As to the former instrument, cl 3.1(2) of WLEP prescribes as exempt development, development specified in sch 2 that meets the standards for the development contained in that schedule, and that complies with the requirement of pt 3 of WLEP. The development specified in sch 2 of WLEP concerns various forms of advertisements and outdoor dining associated with food and drink premises. The walls constructed on the property are not any of these forms of development specified in sch 2 of WLEP, and hence are not exempt development for the purpose of WLEP.
As to the latter instrument, to be exempt development, the development must comply with the requirements in cl 1.15 of the Codes SEPP. Pursuant to cl 1.15(1), in order to be exempt development, the development must be specified in an exempt development code and meet the standards specified for that development in the exempt development code, and also comply with the requirements of div 2 of pt 1 of the Codes SEPP for exempt development.
Subdivision 15 of div 1 of pt 2 of the Codes SEPP specifies earthworks, retaining walls and structural support as exempt development. Clause 2.29 provides that earthworks and the construction or installation of a retaining wall or other form of structural support is development specified for the exempt development code, provided it is not carried out, constructed or installed on or in a heritage item or a draft heritage item, on a flood control lot or in an environmentally sensitive area. The property does not answer any of these exceptions. The walls constructed on the property are therefore development specified in the exempt development code.
The walls do not, however, meet the standards for the development specified in the exempt development code. Clause 2.30 of the Codes SEPP specifies the standards with which the development must comply in order to be exempt development. The walls constructed on the property do not comply with the standards specified in cl 2.30(b), (e), (f)(i) and (f)(iv).
The standard in (b) is that the development be located at least one metre from each lot boundary. Walls I and J are constructed along the rear boundary of the property. Wall K is constructed within 1 metre of the rear boundary. Wall H at its western end is within 1 metre of the rear boundary but it moves to be more than 1 metre from the rear boundary at its eastern end.
The standard in (e) is that the development not redirect the flow of any surface water or ground water or cause sediment to be transported onto an adjoining property. The walls constructed on the property do not meet this standard. Neighbours of the adjoining properties, particularly those downhill of the subject property, such as those owned by Mr Parker at 6 Immarna Avenue, Mr Doyle at 8 Immarna Avenue, and Ms Potter at 10 Immarna Avenue, have given evidence of the material impact of the walls on surface water and ground water flows and the transportation of sediment and other debris onto their properties.
The standard in (f)(i) is that, if the development is a retaining wall or structural support for excavation or fill or a combination of both, it must not be more than 600 millimetres high, measured vertically from the base of the development to its uppermost portion. Walls H, I, J and K are retaining walls or provide structural support for excavation or fill imported onto the property. The walls are all more than 600 millimetres high. Indeed, the highest is 3.2 metres high.
The standard in (f)(iv) is that if the development is a retaining wall or structural support for excavation or fill or a combination of both, it must have adequate drainage lines connected to the existing storm water drainage system for the site. Before the walls were constructed on the property, the storm water drainage system for the property involved surface water and ground water flowing downhill into a dish drain running parallel to the rear boundary of the property but within the neighbours' properties to the west. This was explained in words and photographs by the neighbours, including by Mr Parker and Mr Doyle.
The walls that have been constructed on the subject property do not have any drainage lines, let alone adequate drainage lines, and are not connected to the dish drain. Indeed, the walls have redirected surface water flows around the top end of the dish drain so that water flows over the neighbours' properties to Immarna Avenue.
Accordingly, the walls constructed on the property do not meet the standards specified for the development of retaining walls and structural support, and therefore are not exempt development under the Codes SEPP.
The upshot is that the construction of the walls on the property was development that required development consent, but development consent was not obtained, resulting in a breach of s 4.2(1) of the EPA Act.

Breach of s 9.37(1) of the EPA Act

The second breach of the EPA Act results from Mr and Mrs Fikkers' failure to comply with a particular form of development control order, a Demolish Works Order, in breach of s 9.37 of the EPA Act.
The Council issued on 7 August 2018 a DWO to Mr and Mrs Fikkers under s 9.34(1)(a) and item 3 of pt 1 of sch 5 of the EPA Act. Each of the walls was a building, which required development consent, but in respect of which development consent was not obtained. Mr and Mrs Fikkers are the owners of the building, as the walls are constructed on the property which they jointly own. The circumstances for issuing a DWO therefore existed.
The DWO required all of the walls that had been constructed on the property to be demolished. Of importance, the order the Council now seeks in the amended summons includes the demolition of the walls that para 1 of the DWO required be demolished, being walls H, I, J and K. The DWO required the walls to be demolished within 90 days of the date of service of the order on Mr and Mrs Fikkers, which was shortly after the date of the order of 7 August 2018.
Section 9.37(1) of the EPA Act provides that a person to whom a development control order is given must comply with the terms of the order. To date, Mr and Mrs Fikkers have not demolished the walls required by the DWO to be demolished, including walls H, I, J and K. Mr and Mrs Fikkers have thereby breached s 9.37(1) of the EPA Act.

Remedy for breaches

At the hearing, the Council sought and was granted leave to amend the summons to seek an order that only walls H, I, J and K be demolished, rather than all of the walls that had been constructed on the property, as the DWO had required. The reason for the Council seeking a more confined order was that on 25 January 2021, this Court granted development consent requiring the demolition in whole or part of walls H, I, J and K, and the carrying out of other works on the property.
Mr and Mrs Fikkers had applied for development consent to regularise the walls that had been constructed unlawfully on the property, in response to the DWO. The Council and Mr and Mrs Fikkers reached agreement at a s 34 conciliation conference that development consent should be granted, requiring the demolition of walls H, I, J and K, and the carrying out of other works. The walls to be demolished, and the extent to which these walls are to be demolished, are shown on the approved plans. These are the plans that designate the relevant walls as walls H, I, J and K.
The Council's amended relief therefore accords with the demolition and construction work that would be required by this development consent. This is appropriate. This work is intended to remedy the harm caused and continuing to be caused by the unauthorised walls constructed on the property, in particular, the adverse impacts on water flows and amenity of the neighbouring properties.
As I indicated at the outset, Mrs Fikkers did not contest that the Court should make an order in the terms claimed in the amended summons. Mr Fikkers had advised the Council that he was intending to "fully comply with the demolition orders made by the Court" (in his email of 20 April 2023). By this reference, I take it Mr Fikkers was saying that he would demolish the walls in accordance with the development consent that had been granted by the Court. Thus, both Mr and Mrs Fikkers have agreed to the Court ordering that the walls, which are required to be demolished by the development consent, be demolished. These are walls H, I, J and K. I consider this is appropriate.
The Council sought an order for costs in its favour. These are civil enforcement proceedings, where the usual order for costs is that costs follow the event. The Council has been successful in establishing that Mr and Mrs Fikkers have breached the EPA Act and in obtaining orders remedying these breaches. They are entitled to an award of costs.
Ordinarily, both Mr and Mrs Fikkers, as the persons who breached the EPA Act, would be ordered to pay the Council's costs. However, in circumstances where Mrs Fikkers was not the person who actually constructed the wall (Mr Fikkers was), has not sought to defend the Council's claims of breaches of the EPA Act or the relief sought, has cooperated with the Council and has participated at the hearing, and by reason of her being separated from her husband is not living at the property and is not in a position to arrange for the demolition work to be carried out, I consider it would not be just to order Mrs Fikkers to pay the Council's costs. The cost order should be made against Mr Fikkers alone.

Orders

The Court: 1. Grants leave to the Applicant to file an amended summons in these proceedings in the form of the Amended Summons handed up in Court on 27 April 2023. 2. Declares that, in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), the Respondents have carried out unauthorised works, including the erection of: 1. Concrete block walls and 1.2 metre high fence located adjacent to the northern, southern and western boundaries varying in height between 600 millimetres and 3.2 metres; 2. Concrete block wall adjacent to the southern boundary measuring 1.2 metres in height with an overall approximate length of 52 metres; 3. Concrete block wall adjacent to the northern elevation of the existing dwelling measuring 2 metres in height; 4. Concrete block wall located east of the existing swimming pool towards the Mount Keira Road street frontage varying in height between 600 millimetres to 2.2 metres, on land being Lot 8 in Deposited Plan 31238 and Lot 5 in Deposited Plan 260969, otherwise known as 163 Mount Keira Road, Mount Keira NSW 2500 (Property). 1. Declares that, in breach of s 9.37 of the EPA Act, the Respondents have failed to comply with the terms of an Order issued by the Applicant on 7 August 2018 pursuant to s 9.34 of the EPA Act, being a Demolish Works Order in the terms of an order number 3 under pt 1 of sch 5 of the EPA Act relating to the concrete block walls referred to in Order 2 at the property. 2. Orders that the First Respondent by himself, his servants, tenants and/or agents carry out the following demolition works pursuant to the plans prepared by SF Plan&Design dated 17 December 2020, sheets 05/09 and 06/09, approved by development consent number DA 2018/1412 granted by the Land and Environment Court of NSW in proceedings number 2020/00023457 on 25 January 2021 (Approved Plans): 1. Demolition of wall 'H', including demolition of the existing exposed concrete footings, in accordance with sheet 05/09 of the Approved Plans; 2. Demolition of wall 'I', including demolition of the existing exposed concrete footings, in accordance with sheet 05/09 of the Approved Plans; 3. Demolition of wall 'J' to the height identified in, and in accordance with, sheet 05/09 of the Approved Plans; 4. Demolition of wall 'J' to the height identified in, and in accordance with, sheet 05/09 of the Approved Plans, within 60 days of the date of these orders, or such later time as the Court may allow. 1. Orders that the First Respondent pay the Applicant's costs of these proceedings, as agreed or assessed. 2. Grants the parties liberty to apply on three days' notice for any further or other orders, including orders for revoking, varying, supplementing or replacing these orders in whole or in part upon sufficient cause being shown.

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: 12 May 2023

Environment Planning and Assessment Act 1979(NSW)ss 1.4(1), 1.5(1), 1.6(1), 4.2(1), 9.34(1), 9.37(1)

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