A MCCRAE couple has emerged victorious in a legal dispute with the Mornington Peninsula Shire after building notices were served on them mandating clean-up works following a landslip in 2022.
The council had directed the couple, Gerard and Bronwyn Borghesi, to undertake stabilisation works to the area affected by the landslip including removing all debris from Penny Lane, which they appealed.
The Building Appeals Board (BAB) on 30 April ruled that the shire had no power to make its orders under s106 of the Building Act because the Borghesis were not proposing nor carrying out building work relating to their property when the landslide occurred.
The area had been inundated with rain at the time, causing mass flooding and landslides with SES receiving 270 calls for help. As well as coastal erosion, there was damage to kindergartens, community centres and the Balcombe Estuary boardwalk at Mount Martha. The event had also prompted the council to issue an emergency order for the McCrae area in November 2022 prohibiting people from staying in their homes.
The Borghesis, who were among the homes affected, engaged building practitioners and geotechnical engineers between 2022 and 2024 to investigate, believing the shire had overstepped their authority. After this was completed the couple had “formed the view that the landslip was caused by the failure on the part of Mornington Peninsula Shire to adequately maintain the drainage system and kerbs on View Point Road, which in turn lead to an unreasonable seepage of water onto the property,” board chairperson Eric Riegler’s determination stated.
The Borghesis had therefore advised the council that they “would not be undertaking remedial work” after the building notices were issued on 7 February 2024 by the shire’s municipal building surveyor, which required “The Applicants to show cause why they should not undertake stabilisation works to the area affected by the landslip”. But the board’s determination stated, “The applicants (the Borghesis) contend that the Building Notices were jurisdictionally invalid and by extension, a nullity. Consequently, they contend that was no power to make the Building Orders in reliance thereon”.
In handing down his decision, board chairperson Eric Riegler ruled that the building orders the council issued to the Borghesis were not “jurisdictionally valid” while the emergency order “was not made in respect of the type of structures or land prescribed” under the Act. “We consider the content of this Building Notice falls outside of the respondent’s power, as it relates to Penny Lane, which is land beyond the title boundaries of the applicants’ land,” he stated.
Riegler added in his determination that, “We accept the evidence of the Applicants that no building work is currently being carried out or proposed to be carried out on this area of the land or generally”. “We find that there is no overarching or general power under s102 of the Building Act to issue an emergency order for land simpliciter. The power to make an emergency order in relation to land does not crystallise unless there is work being or proposed to be carried out on the land in question.
“As already noted, it is not submitted that work was being conducted on the land or proposed to be carried out on the land. Given this, we find there was no jurisdiction to make the Emergency Order pursuant to s 102(b) of the Building Act. That Emergency Order was premised solely on the condition of the land because of the land slip and not because of the condition or use or proposed use of land where building work is being or is proposed to be carried out.”
However, the board’s determination does not settle who will ultimately be responsible for fixing the damage caused by the landslip. Mornington Peninsula Shire said, “We are currently considering the decision and its implications. Public safety has always been, and remains, council’s highest priority”, but added it would not be making a further comment including whether it would be appealing the board’s determination by 16 May.
The board’s determination comes amid the council dealing with the multi-million costs caused by the 14 January landslide, with the state government making no commitment to help with the landslide recovery. The Borghesi’s home was also impacted by the latest landslide. The council estimated that it would need to spend $8m to deal with the landslide’s aftermath, with an average of ratepayers paying $75 per household. Eight homes in McCrae remain under emergency evacuation orders and are currently not able to be occupied.
First published in the Mornington News – 6 May 2025
