By Adam Carey
Mornington Peninsula Shire Council ordered the owners of a clifftop property in McCrae that suffered a landslide in late 2022 to stabilise the cliff at their own expense, at an estimated cost of $1.25 million.
The emergency order, which the home owners have appealed against, has sparked a legal battle that has also snared the people living at the bottom of the cliff, two pensioners who were evacuated from their retirement home after the landslide two years ago and don’t know if it will ever be safe to return.
Denise and Paul Willigenberg are caught in a three-way legal dispute and cannot return to their retirement home in McCrae.Credit: Simon Schluter
The November 2022 landslide was the first of three on the same steep hillside in McCrae.
On January 14, the cliff experienced a major landslide, cleaving tonnes of waterlogged soil and crushing a three-storey house on Penny Lane below.
“It’s just matchsticks now,” said Paul Willigenberg of the house. Willigenberg was first on the scene after the morning landslide, and helped to rescue a municipal surveyor whose leg was broken in the incident. The surveyor was inspecting the house, which had been evacuated following a minor landslip days earlier.
Willigenberg and his wife were renting the house immediately in front of the destroyed Penny Lane property. But their true home is about 50 metres away. They have been ordered by the local council not to stay there ever since the first landslide, in November 2022.
The January 14 landslide resulted in the evacuation of 19 surrounding properties.
They, too, are engaged in legal action against the Mornington Peninsula Shire Council, seeking to lift the emergency order evacuating them from their home.
Both legal disputes will be heard before the Building Appeals Board next month. Willigenberg calls it “a sort of three-way game” between the council, the people at the top of the cliff, and he and his wife at the bottom.
Gerry and Bronwyn Borghesi own the house at the top of the damaged cliff, which is also part of their property, and have been fighting the council over who should pay to repair it.
“It is beyond comprehension to say we are responsible, and no one has been able to explain it,” Gerry Borghesi told The Age in a previous interview.
Like the Borghesis’ battle, the Willigenbergs’ dispute with the council goes to the question of who should pay to stabilise the cliff face. In their case, according to their written submission to the appeals board, they lack the means to pay and would have to sell their home, which is unsellable anyway given the emergency order that hangs over it.
Their submission also contends that “had the shire taken proper steps, the landslip would not have occurred”.
Their home is one of 19 in the neighbourhood that have been indefinitely evacuated since the January 14 landslide.
Given there have been three landslides, a fourth landslide is probable in the near future, according to distinguished geotechnical engineer Tim Holt.
“The probability is that there will be another landslide soon,” Holt says.
Willigenberg said some residents feared they might never be able to safely return.
“There has been a lot of work to try and determine the cause of the 2022 slip,” he said. “But considering where we are now, I think everybody is concerned about whether we’ll ever go home again, in all honesty.”
What caused this month’s landslide remains under investigation.
Legal documents shed more light on the cause of the first landslide in 2022, which has been investigated in several geotechnical reports.
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. One geotechnical report also concluded that cracks in the street kerb directed water towards the escarpment.
The geotechnical report, completed by CivilTest and submitted as evidence in the Borghesis’ appeal, also found “a substantial void” beneath the ground directly above where the 2022 landslip occurred.
The council undertook major drainage works in the area following the 2022 landslide, including installing a large drainpipe under the road.
The Borghesis’ appeal stems from the council’s action three days after the 2022 landslip, when a municipal surveyor deemed the unstable cliff “a danger to life, health and safety” and handed them an emergency building order.
The Borghesis were directed to “undertake stabilisation work to the landslip affected land in accordance with geotechnical recommendations and a structurally engineered design ... to the satisfaction of council”.
They were also ordered to clear the debris from Penny Lane.
Instead, they appealed.
Bronwyn and Gerry Borghesi are appealing a council building order directing them to stabilise the escarpment. Credit: Simon Schluter
They argued through lawyers that the council had no authority under the Building Act to order them to do the works, especially given the couple had not done any building works on their home. They argued that it was “unreasonable in all the circumstances” to order them to fix an unstable cliff face at their own expense.
The rectification works carry an estimated cost of $1.25 million, their appeal states.
Legal documents reveal that Holt proposed an engineering solution to the 2022 landslide, which involved installing a net-like debris flow barrier across the base of the cliff. The Willigenbergs were happy to agree to this solution.
But Holt says the proposal has been “more or less blown out of the water” by this month’s landslide.
The cliff in McCrae has experienced three landslides, making a fourth more likely, one expert says.Credit: Joe Armao
“What probably needs to happen is the whole of the slope needs to be reinforced in a similar way to what you see along the Great Ocean Road, or up in the snowfields,” he said.
The council, and all 19 affected home owners, will have to pitch in to an agreed solution. This could drag out the time it takes for people to be able to safely return home, Holt warns.
”In two years, one house couldn’t get to that point, so I don’t know how 20 houses are going to get to that point … They’re all going to have different views about it. And, of course, then there’s, ‘Who pays?’”
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