When are retaining walls Category 1 development pursuant to clause 2(g) of Schedule 9? Paior sheds some light

LG Leader October 2014

Retaining walls located on sloped sites and associated with residential development which:

• cannot be viewed from neighbouring properties; and/or
• which do not have a significant visual impact; and/or
• are replacing existing retaining walls,

are often determined to be Category 1 development on the basis that they are of “a minor nature only and will not unreasonably impact on the owners or occupiers of land in the locality of the site of the development” in accordance with clause 2(g) of Schedule 9 to the Development Regulations.

Both of the development applications reviewed in the Paior judgment proposed retaining walls.  Each of the retaining walls was determined by the Council to be Category 1 on the basis of clause 2(g) of Schedule 9.  The ERD Court however, determined that each of the walls was a Category 3 form of development.

As discussed in Victoria Shute’s article, the 2011 application proposed a new, concrete sleeper retaining wall to replace an existing moss-rock retaining wall.

The Council determined that the wall was Category 1 on the basis that it was in the same location as the existing wall, was generally lower in height than the existing wall, was adjacent a ‘service yard’ and its highest point was hidden from view and would not be particularly visible from neighbouring properties.

The 2013 application proposed a series of stepped retaining walls, each being one metre or less in height.  The Council determined that if these structures were “development” that they were Category 1.

In determining that the opinions formed by the Council on both retaining walls were unreasonable and that the walls were both Category 3 forms of development, the Court considered the following to be relevant:

• the considerable difference in levels between the development site and neighbouring properties and the visual impact of the dwelling supported by the retaining wall;
• in respect of the 2011 application in particular:
  • the change to the load on the higher portion of the land; and
  • the change in design from an existing moss rock wall against the batter slope to a system of concrete sleeper retaining walls; and
• in respect of the 2013 application, the structural adequacy of those walls and their potential effect on neighbouring properties.

These findings have broad implications.  Wherever a proposed retaining wall:

• may have a structural impact on a neighbouring properties; and/or
• supports development which will be visually prominent when viewed from neighbouring properties,

it is, on the basis of this judgment, unlikely to be able to be considered “minor” and therefore Category 1.