Council requested not to take compliance action
Central Coast Council have received a request not to take compliance action for unauthorised work carried out at 20 Kahibah Rd, Umina Beach.
The unauthorised work involves the construction of sandstone retaining walls and large amounts of fill on "riparian lands" adjoining Ettalong Creek at the rear of the property.
The details are contained in a Buiding Information Certificate (BC/154/2025) currently on exhibition for public comment on the Council's portal.
According to the NSW Dept of Planning and Environment, "A Building Information Certificate does not approve or legitimise unauthorised building works, instead a BIC provides assurance that a council will not take certain compliance actions relating to those unauthorised works."
The "actions" may result in the unauthorised work having to be demolished and restored to a previous state.
NSW Planning states that "It (a BIC) is usually requested by buyers or sellers of property before settlement to make sure that the building being bought or sold is not going to be the subject of compliance action by council."
The only documents included in the public exhibition for BC/154/2025 are two sheets of drawings purporting to show the extent of the unauthorised work.
It is now up to the council to decide, as stated by NSW Planning; "whether development consent would have been granted had consent been sought for the building".
The fact that the work is unauthorised will not be considered as part of the assessment.
NSW Planning states: "The proper approach to be taken is to leave to the criminal law the punishment of the unlawful conduct and to determine the BIC application on its merits".
If the BIC application is refused by council, the applicant may appeal to the Lands and Environment Court.
The percentage of successful appeals against BIC refusal is about 75 per cent.
However the actual number of such cases over the last two years is very low so this statistic may be misleading.
In the case of 20 Kahibah Rd, there was an approved development application, DA/1122/2024, "For the construction of a new dwelling, swimming pool, driveway and associated landscaping on a vacant lot."
The drawings and documentation for DA/1122/2024 do not mention or show any retaining walls or fill.
In fact the Statement of Environmental Effects prepared by Vaughan Milligan Development Consulting Pty Ltd for that applications makes the unequivocal statement: "The proposal will not require any cut or fill to accommodate the new works."
A submission from the public at the time suggested that it was most important that sediment be prevented from entering the flood storage area and creek reserve.
This was answered in the council assessment with the statement: "The consent will be conditioned to prevent any environmental impacts from the development.
"An erosion and sediment control condi-tion is included in the consent."
The original site plan supplied with DA/1122/2024 in the vicinity of the new walls show relative levels at existing ground level of 3.4m to 3.8m in the vicinity of the new retaining walls.
The "as built" drawings show the top of the retaining walls at relative level 4.9m, indicating that large amounts of fill may have been added.
In February 2025, the private certifier for the application was alerted by a member of the public that tree protection measures had not been complied with, retaining walls had been built and large amounts of fill placed on the lot, the 1:100 flood zone and the public reserve.
The certifier issued a notice to the owners to fix all non compliant issues within two weeks and when this was not done notified the council.
The owners have now applied for BC/154/2025, which is currently on public exhibition and open for written submissions from the public until June 7.
SOURCE:
DA Tracker, 29 Jun 2025
BC/154/2025, Central Coast Council