Yes, No, Maybe – The mutually exclusive views of the same issue
The Blue Mountains City Council (BMCC) has three avenues that the records of your property can be identified, The first is a simple over the counter discussion with a planning officer at the local Council chambers,. The second is a General Information – Open Access (GIPA) application. The third, a formal request for a Land Use Advice report.
Most GIPA application are free, take four weeks to process and then you will receive copies of all approved developments on the property inclusive of plans of any the approved developments. It is the bare bones of development information and is not all inclusive, for instances in process construction inspections will not be included nor any discretionary amendments that the council may have taken in the course of performing it’s role as the planning authority.
The Land Use advice involves a site visit and a written report of any approved developments on the property as well as any records of issues that may affect the property and will claimed to be completed within four weeks of application. I would always recommend paying the cost for a site inspection and written report as a standard part of any property purchase due diligence.
When purchasing an industrial block of land in Katoomba in 2015 I was concerned with the soil levels on the site. A verbal discussion with the Council at their front desk revealed that the property had never been developed although a development application in the mid 1980’s was approved but lapsed 2 years later as it had not proceeded. This was also later reconfirmed in a in a 2017 Land Use Advice and a 2023 GIPA application for approved developments on the site. The soil that was deposited was mainly in the middle and towards the norther end of the land and was also banked on its western boundary to abut the neighbouring property. The quantity was the equivalent volume of roughly 20 large tip truck loads or 200 cubic meters. Along this western boundary which is the common boundary between 9 and 11 Mistral Street a small section of land was unretained, two seperate sections of concrete sleeper retaining wall and a section of besser block retaining wall were visible on this boundary along with this banked soil. I submitted a Land Use Advice application with the BMCC the day after exchange along with a Cadastral/level survey with a registered surveyor. A level survey provides a topographical map of the property in addition to boundary locations and any encroachments. This can be compared to Council topographical records to compare changes to the existing soil levels. A site visit occurred two weeks later with the report being finalised within the following two weeks. The planning officer stated at the site visit that the land had never been developed and although he could see the soil I was concerned about he did not know why the soil was on the site.
The report was not completed within the two weeks that was indicated at the site meetingbut took a 4 and a half weeks resulting in a planned 4 week settlement period being postponed and causing a second postponement. A number of calls were made to the planning officer who undertook the site visit to obtain the report but to little avail. Eventually I got a verbal statement that said the soil was deposited on the site in 1999 and was noted as illegal fill as a development application had never been lodged for the fill. No mention of soil contamination was raised. The verbal acknowledgment was sufficient information for settlement to proceed as it was clear the soil was not approved as a retaining wall for the neighbours fill, which was my primary concern. The written report was received just after settlement and the verbal acknowledgment was consistent with the Land Use Advice written report. For details regarding the condition of the property prior to purchase.
In July 2018 I commenced initial site investigations and preparations for the lodgement of a development application. An exploratory excavation on the common boundary with my neighbour revealed that there was no continuous retaining wall on the neighbours boundary. A crudely drawn representation shows the sections that I mentioned in a preceding paragraph.
This information was discussed with the BMCC planning officers and I was told that this would need to be resolved if the land was going to be developed. I was asked to lodge the information with the council as a customer service request. which was sent in August 2018
I was initially contacted verbally by the BMCC and informed that a lack of a retaining wall was a private matter and not an issue that concerned the BMCC. Additionally the officer stated that he had checked their records and there was no retaining wall on the neighbours approved development. The cadastral survey had indicated that the finished level of the hardstand on 11 Mistral Street at the boundary was on average 2 meters above existing soil level when compared to the topographical maps and this fill would have to be retained by a retaining wall or else the Council would not approve such a development. A GIPA application was made for developments on 11 Mistral Street that afternoon.
The records of the development on the neighbours property revealed plans of a 2.2 – 2.4m high retaining wall that was 37m long on its eastern boundary. The retaining wall formed an integral part of the neighbours development as it was required to retain fill that was to be used to raise the site to a consistent single level. This height and length is consistent with the changes to soil levels indicated on the BMCC topographical maps when compared to the cadastral survey, When I informed the council of the GIPA information another site visit occurred and they responded with the statement that although there was an approved wall on the plans of the neighbouring property that the development had been completed to the satisfaction of the council. It also appeared that some of the fill required for the development was retained by a batter wall. If I wanted this varied I would need to submit a development application and may be subject to Dividing Fences Act or the Conveyancing Act.
A second GIPA application was submitted for all “in construction” approvals that were required in Clause 1 of the conditions of development consent. I had wrongly assumed these documents would have been covered in the first GIPA application. Clause 5 of the consent conditions deals with the retaining of fill on the development and had to be completed for the development to be completed and the premises occupied.
An opinion was sought from a barrister on the legal application of the Dividing Fences Act or the Conveyancing Act. The barrister in the written reply clearly stated that neither the Dividing Fences Act nor the Conveyancing Act held any relief to assist in the resolution of the of the issue of illegal fill on my property or the lack of a retaining wall on the neighbouring property.
Approaches, initially informally and then later formally through an Environmental Law firm, with the neighbour resulted only in a number of complaints by the neighbour to the Council about myself or my property. The neighbour was of the opinion that if the retaining was to be built it would need to be ordered by the courts. He had no intention of acting on the information that had been supplied to him by myself. I on the other hand did not feel that I should spend my money to rectify his properties breach of the Development Consent Conditions. I did however offer half the cost of the erection of the originally approved retaining wall but this was rejected also.
I responded to the BMCC correspondence with the details that I had been able to ascertain from the two GIPA applications that I had applied for. This was based upon the information that BMCC documents revealed. The documents did not show the development had been completed to the satisfaction of the Council nor indicate a modification for a variation to the development to approve a batter wall. A batter wall on my property could only occur if there was an approved development application on my property as it is a non complying development. At this juncture it should be noted that the BMCC cannot simply approve a batter wall on another persons property without a development application being approved in addition to a modification to the to the existing approved development application on 11 Mistral Street. I had already been advised by the BMCC that I had no approved developments on my property and as such no batter wall has been approved that was situated on my property. The soil that was deposited was illegal fill and not approved fill. The BMCC had advised of this in its 2015 Land Use Advice Report;
3.4 Unauthorized Filling – Council records show that unaurthorized fill was placed on the land in 1999. Any development application must contain a preliminary investigation report identifying the composition of the fill, any contaminants present, and any recommendations for the remediation of contaminants to the meet the provisions of State Environmental Planning Policy No. 55 – Remediation of Land.
BMCC Land Use Advice Report 2015
The situation with the BMCC was becoming increasingly obscure with claims of fill being illegal and requiring environmental testing due to a claim that it may be contaminated. On the other hand that the fill may be a batter wall that meets BMCC standards and is an approved batter wall. These two views of the same soil are mutually exclusive as the soil cannot be both illegal and approved fill.
The BMCC responded to my email of 27 August 2018 with correspondence dated 30 August 2018. This letter indicated that the soil on my property was an approved batter wall and that the Council considered the issue to be a civil matter. There has been no mention by the Council of their written correspondence in 2015 stating that the soil was illegal fill.
I wrote to the BMCC ward councillors seeking their assistance with this matter and detailing the background to my concerns. Paramount of these concerns was that I had undertaken very through due diligence prior to purchasing this property and yet the BMCC was now prevaricating between a view that fill on my property was illegal and the fill on my property was an approved batter wall. I was not able to develop the property until this matter was resolved and I was not able to get the matter resolved.
The BMCC responded to this approach with a letter from the BMCC Manager of Building and Compliance Services. This letter repeated the previous claims of an approved batter wall and the issue being a civil matter. However the BMCC went further on this occasion by stating that the Council neither approves or disapproves the batter in place of a retaining wall. The summary position appears to be now that Yes the soil in question is illegal fill, No the soil in question is an approved batter wall and Maybe it might be either Yes or No.
The construction works….were completed to Council’s satisfaction. This was later clarified in a letter to you of 30 august 2018 by stating that “it is reasonable to determine a battered wall was constructed in place of a retaining wall given the common ownership of both allotments at the time” That is not to say that the Council either approves or disapproves the batter in place of the retaining wall. The matter was assessed as not requiring any follow up. The letter of the 30 August 2018 further advises that “in accordance with Council’s Enforcement policy the matter is considered to be a civil matter that is better dealt with under the Dividing Fences Act or Conveyancing Act
Manager Building and Compliance Services – Blue Mountains City Council – March 2019
No ward Councillor responded directly to my request for assistance. I was involved in the Rural Fire Service (RFS) as a volunteer at the time and there were two ward Councillors in the brigade. One of these told me that Councillors are not allowed to be involved in any matter that involves property development. This same viewpoint was later repeated by another two ward councillors of the Blue Mountains City Council. A legal opinion explained the there were restrictions on involvement by Councillors during the Development Application lodgement process and up until the planning officers had made their formal recommendation to the Council. But this was a compliance matter that did not involve a development application on my property but related to a non compliance on another property. The Councillors urban myth of not being able to become involved in any matter that relates to development is a legal fallacy. It does however mean that our elected officals offer no oversight of the actions and behaviours of BMCC council officers. The primary role of our elected councillors is oversight.
One Ward Councillor did request a clarification as to whether the fill was illegal or an approved batter wall. The BMCC did not appear to respond to either the ward councillor nor myself on this request.
The BMCC Manager of Building and Compliance responded to the ward councillors with a different viewpoint than that which was presented to myself. In this reply the BMCC stated that the matter was complex and involved historical matters that would require a legal opinion before a definitive answer could be given to myself in the matter. GIPA records do not indicate if any legal opinion was sought and I have not received any definitive answer to this question.
The position of the BMCC was left without any clarification other than the lack of a retaining wall was a civil matter, was not a concern of the BMCC and the BMCC neither approves or disapproves the fill as a batter wall. The irony in this situation is that the batter wall was claimed as a basis upon which the development on 11 Mistral Street was completed to the satisfaction of the BMCC. If the batter wall was not approved then was the development completed to the satisfaction of the BMCC? Legal opinion on the undefined position of the BMCC was that this left the matter incompletely unresolved and ambiguous. The recommendation was that a Development application should be lodged as the BMCC had stated that the lack of a retaining wall was not their responsibility and as such would not interfere with a development application that involved the levelling of the existing site partially or completely utilising the illegal fill that had been deposited which would entail the relocation of the embankment abutting the neighbours property.
The illegal fill had been tested by a certified organisation, at a cost of $2750. as was the requirement expressed in the 2015 Land Use Report The BMCC had agreed to a phase 2 level test instead of the original phase 1 level test and it revealed no contamination. The test results were submitted to the BMCC in 2018. In reply to this submission a section of the report stated;
Lot 17 DP 22099 was created by the subdivision of Portion 142. registered on 29 November 1949. Development consent 3451 granted on 21 June 1984 for a factory building for light industry. The development did not go ahead and the consent lapsed on 21 June 1986. Uncontrolled filling comprising soil and building rubble of unknown origin was deposited on the land without development consent in 1999. No development consent for the shipping container currently on site.
Land Use Advice- Specialist BMCC 2 November 2018
When the property was being purchased the Conveyancer checked with the Council to confirm if the property was or was not included in the Potentially Contaminated Land Register that the BMCC maintained. The property was not on the BMCC register. The Land Use Advice of 2015 stated that the land was potentially contaminated. However BMCC records show that the property was added to the Potentially contaminated Land register in October 2018 after the formal submission of the environmental testing report. Additionally if the soil was an approved batter wall it was therefore not illegal fill and the BMCC had no grounds to demand soil contamination testing.
The development of 11 Mistral Street Katoomba, the neighbouring property on my western boundary was an approved development with a Development number B144/82 as previously noted. When viewed in light of the available BMCC records the building has not been completed in accordance with the Development Consent and Building Approval No. 144/82 of 22 October 1982. However the BMCC has maintained that it had been completed to the satisfaction of the BMCC. The BMCC records indicate that the majority of the required in construction inspections has not been completed. No documentation that supports the BMCC view that the development was completed to the satisfaction of the BMCC had been discovered in any of the various GIPA applications. The BMCC has not provided any evidence that the development has been completed to the satisfaction of the BMCC. The Blue Mountains City Council was the building certifier for this development and not a private certifier as is more common after 1998. The records indicate a very different story than the one claimed by the council.
In 2019 I was preparing the Development application for the property I had to apply for another GIPA application for all information pertaining to illegal fill on my property. I had previously done this in 2015 just after settlement but the response was a physical document and not electronic. The physical document that was received was in storage as I did not consider the document would be needed.
The depositing of illegal fill on the property is fully detailed in the GIPA information. One of the documents was a letter from the BMCC to the owner of 11 Mistral Street stating that the illegal fill also bought to the attention of the BMCC that the conditionals of approval for the development consent B144/82 were not met and that these outstanding matters had to be addressed within the following 3 months. The breaches of development consent conditions letter is dated 19 March 1999. No action appears to have been taken in either the matter of the illegal fill or the breaches of the development consent conditions other than the meeting in August 1999 mentioned below.
The Blue Mountains City Council (BMCC) held a meeting with the owner of both 9 and 11 Mistral Street on 31 August 1999. The minutes of the meeting are dated 6 months after the formal notification of breaches of consent conditions and the notification of illegal fill. This delay seems to have been due to the councils acknowledgment of heath matters that had impacted the owner. The minutes did state that the soil on 9 Mistral could not be used to support the development on 11 Mistral Street unless the two lots were consolidated. That the breaches of consent conditions as detailed in the 1999 letter must be rectified. A development application must be lodged for the fill that had been deposited on 9 Mistral Street.
In 1999 11 Mistral Street was being occupied and operating as an engineering workshop. The two lots were sold in 2003, as a going concern business inclusive of the two blocks of land.
A legal opinion stated that a Land and Environment Court Class 4 action to force the council to enforce the conditions of development consent was possible. Documents were needed as proof that breaches had occurred. The BMCC could claim that the conditions of consent were actually complied with and that it was incomplete record keeping that failed to show the correct procedures had indeed been followed and as a result there was no breach of the development consent conditions. He stated that the conditions of consent remained in perpetuity with the property. The building application inspections sheet, as previously mentioned, indicates a complete lack of inspection records other than the initial three inspections. The BMCC letter of the 19 March 1999 clearly indicates that the development has not been completed. As no records have been revealed in the many GIPA applications undertaken that actions was taken to complete the development. The statement that the development has been completed to the satisfaction of the Council appears to be self serving and lacking any supporting documents.
The BMCC was aware of breaches of the development consent on the neighbouring property but appears to have failed to ensure that compliance with the breaches was undertaken. The statement by the BMCC that fill on my property supports fill on the neighbouring property has no documentary evidence. Therefore the development on the neighbouring property cannot be approved to the satisfaction of the council as it is reliant on the position of an approved batter wall supporting fill on 11 Mistral Street rather than Koppers Log/Besser Block retaining wall approved in the stamped plans for the development.
In 2021 a development application was lodged for a commercial building to be built on 9 Mistral Street. It entailed the levelling of the site to a single level of approximately 966m above sea level. This would involve a 2m high retaining wall on my Eastern boundary to retain the fill above existing soil level and the western boundary would be bought back to existing soil level. This would expose a lack of a continuous retaining wall on the neighbouring property. The BMCC had now indicated on numerous occasions that this was a civil matter and not of a concern for the BMCC.
A Class 1 Land and Environment action was commenced after the BMCC failed to approve the development application in the required time. The BMCC responded to this action with a Statement of Facts and Contentions that is lodged with the court in response to the action. In Section B4 – Suitability of the site for development subsection (e) on page 10 states
(e) The aritectural Plans show up to approximately 2 meters of excavation on the western boundary. No means of maintaining support to the adjoining property are shown on the submitted plans.
Statement of Facts and Contentions BMCC 30 June 2022
In the mediation sessions all issues raised by the BMCC other than a means of maintaining support to the neighbouring property were resolved. A number of the BMCC statement of facts and contentions (SOFC) were simply factually incorrect assertions, The Land Use advice report of 2015 stated the fill that was being excavated was illegal fill and had been tested for contamination. The removal of the fill does not require a development application under SEPP 55. The lack of a retaining wall on 11 Mistral Street was a Civil matter and not a concern of the BMCC yet now the BMCC has once again changed its opinion.
The only indication that fill on my property supported fill on 11 Mistral Street is in 2018/2019 when the BMCC stated that it was reasonable to determine that a batter wall was constructed in place of a retaining wall. No evidence was submitted for this statement. A letter was emailed to the BMCC in November 2021 requesting a review of this assertion and presenting all the GIPA information that had been received from the Council. It included a request that if there was no supporting documents that would enable a the view that is was reasonable to assume a batter replaced a retaining wall then they needed to withdraw this assertion from the Class 1 Deemed Refusal. The BMCC did not respond to this email.
The Class 1 Deemed refusal was withdrawn in December 2021. The legal advice was that the Court would not approve a development application if that development impacted on another property, until such time as the matter is resolved. The matter was a Class 4 Land and Environment action which is a seperate action to a class 1 deemed refusal action, a quirk of the Land and Environment Court system.
Prior to withdrawing the action the BMCC via their legal representative was advised of the reason for the withdrawal.
2022 and 2023 were spent in an attempt to gain the overview on this matter either from the NSW ombudsman or the NSW Department of Local Government. The Ombudsman eventually claimed that because the matter has been to court they cannot be involved because the matter may be appealed in the court. The Department of Local Government has persisted with its stance that they have complete confidence with the BMCC. That the BMCC has the systems in place to review any oversight and any matters should therefore be presented to the BMCC for a review.
- The only options now are to forgo the use of my land that covers the area of the fill that is alleged is used to support the neighbours fill. This is 46m long x 2m height x 3m intrusion or approximately 20% of my land with an unimproved value of $60,000.
- Build a retaining wall to support the neighbours fill at a 2024 price of $80,000-100,000.
- Commence a Class 4 Land and Environment action against the BMCC so that the BMCC must enforce the Conditions of the original Development Consent.
One Barrister that I have dealt with over this matter has been the most consistent and straight forward of all the legal advice that has been received over the time.Other legal advice had been inconsistent and on occasions contradictory. This is that a Class 4 action is the only course of action, other than forgoing the land or paying for the cost of a retaining wall, and I must be able to prove that breaches of the Development Consent have occurred. I believe that all the documents received via GIPA support the argument that breaches in the conditions exist. The BMCC in their own reports have stated that fill on my property is illegal fill and not an approved batter wall. GIPA applications have revealed that no development application have been approved for the site, other than the 1986 application that lapsed as it did not proceed.
After the withdrawal of the development application an email was forwarded to the BMCC indicating that the Council in it’s various reports has stated that my site had never been developed and the fill on the site was illegal fill. If the BMCC is now of the view that the fill on the site is an approved batter wall and as a consequence any removal of this fill must be replaced by another structure that supports the neighbouring properties fill, then the Council was negligent in the preparation of its reports in 2015/2017/2018 that did not state this as a legal encumbrance on the land.
The response from the BMCC which claimed the 2015 Land Use Advice report could not have been relied upon prior to purchase as the formal full report was only delivered after the purchase settlement. The report has a disclaimer that the information cannot be relied upon for development application purposes. Their reply paraphrased my view that I am not liable for retaining the neighbouring properties fill and stated that the BMCC held a different view on this matter.
The purchasing of property becomes a very risk prone investment in NSW if it is allowed to be ruled by the whims of a council irrespective of all the relevant planning laws, development controls and the requirement of the Council for record keeping. The seeking of development information on land prior to purchase under these conditions is worthless and does not shield the purchaser from Council actions that may or may not be based on fact. One of the disturbing scenarios to arise from the BMCC actions is the view that a neighbouring property can be held liable for the completion of a development on that neighbouring property, even though no evidence exists to support this view. It is akin to one neighbour not completing their development, for whatever reason, and then the local council demanding that a neighbouring property is therefore responsible for its completion.
