By Adam Carey
A McCrae couple told they would have to pay to stabilise a steep hill under their home after the first of three landslides has won a court battle with the local council.
Mornington Peninsula Council has been trying to force Gerry and Bronwyn Borghesi to pick up an estimated $1.25 million bill for earthworks on the cliff face since 2022. But the Building Appeals Board ruled on Wednesday the council had made its orders without authority.
Gerry and Bronwyn Borghesi at the bottom of the hill where a landslide destroyed the home below theirs.Credit: Simon Schluter
Their home at the top of the hill has experienced three landslides in two years, with the council issuing an emergency works order to stablise the area after the first.
Eight homes in McCrae remain under emergency evacuation orders and off-limits to their occupants, four months after the third landslip in the coastal suburb destroyed a three-storey house at the base of the hill. The council has said that it must spend about $8 million reckoning with the January 14 landslide, at an average cost to ratepayers of about $75 per household.
The council has no authority to compel the Borghesis to stabilise the damaged escarpment on their property because the couple were not undertaking any building work when the first landslide happened in November 2022, the board found.
Eighty millimetres of rain – well above the November average – fell on the peninsula on the day before the 2022 slip, priming the escarpment for collapse. A geotechnical report submitted to the board in evidence also concluded that cracks in the street kerb directed water towards the escarpment.
The cliff in McCrae has experienced three landslides since November 2022.Credit: Joe Armao
The council ordered the Borghesis to stabilise the landslip in accordance with a structurally engineered design that satisfied the council, and to remove all the landslip debris at the bottom of the cliff. The works had an estimated cost of $1.25 million.
Board chairperson Eric Riegler ruled in his determination that an emergency order and a building order the council issued the Borghesis were not “jurisdictionally valid”.
“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,” Riegler’s determination states.
“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.”
Gerry Borghesi said the board’s determination vindicated the couple’s conviction that the council could not order them to stabilise a part of the property they were not building on.
“We’ve always felt the council has been overreaching in exercising its powers to force ratepayers to fix problems they are not responsible for,” he told The Age.
The board’s determination does not resolve the question of who is responsible for fixing the damaged escarpment.
Part of the Borghesis’ property was hit by the third landslide on January 14 this year, in which tonnes of waterlogged soil collapsed onto a house in Penny Lane at the base of the hill.
The council’s emergency building orders related to the first landslide in November 2022, and were issued because the municipal building surveyor judged that the unstable cliff was a danger to life and property.
Nineteen properties were evacuated after the landslide in January this year; 11 properties have since had their evacuation orders lifted, while eight, including the Borghesis’, remain under indefinite evacuation orders. Multiple homes have been looted, including the Borghesis’, who say they have had thousands of dollars worth of possessions stolen.
The Allan government has appointed a commission of inquiry into the causes of the landslides in McCrae and to identify how to prevent future landslides there. The commission is currently accepting submissions.
Richard Bendel, a spokesperson for residents temporarily displaced by January’s landslip, said the commission was taking a thorough approach and had spoken with all affected people individually.
“That was the first public understanding and empathy shown to all the people in four months, so we’re confident we will get a fair hearing,” he said.
Bendel said uncertainty about when people could return to their homes was causing “quite significant psychological issues”. Many of the displaced residents are aged in their 70s and 80s, he said.
The council has been critical of the Victorian government for failing to contribute to the cost of dealing with the landslide.
“The state government has contributed zero to the actual response and $3.14 million into the autopsy,” Mayor Anthony Marsh said at a council meeting last month, at which a maximum allowable 3 per cent rate rise was approved, in part to cover the cost of the landslide.
The council has until May 16 to appeal the board’s determination.
Mornington Peninsula Shire Council said: “We are currently considering the decision and its implications. Public safety has always been, and remains, council’s highest priority.“.
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