Background
Alan Hewit owns 81 Ullora Close, Nelson Bay (Lot 393 DP9165). In June 2023 a fire caused significant damage to the dwelling on the property, collapsing the roof structure and severely damaging walls, floors, and ancillary structures. From mid-2023, Port Stephens Council received repeated complaints from neighbours about structural danger, hoarded materials, overgrown vegetation, children entering the site, and suspected asbestos. Despite Council correspondence, a public safety order, and Council’s own installation of temporary fencing after Mr Hewit failed to comply, the site remained materially unchanged into early 2025.
On 1 August 2025, Council issued a Development Control Order (DCO) under Schedule 5, Part 1 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) requiring Mr Hewit to obtain structural and hygienist reports, prepare a demolition management plan, and demolish the fire-damaged works. Mr Hewit filed a Class 1 appeal on 11 August 2025 pursuant to s 8.18 of the EPA Act, seeking revocation of the demolition order and replacement with orders permitting restoration and reconstruction under original consent conditions. He appeared self-represented; Council was represented by a solicitor.
At hearing on 7 April 2026, both parties relied on a joint engineering report prepared by Dr Anthony Hasham OAM and Mr Brendan Nielsen, as well as individual and supplementary contamination reports from Mr Jordan Harley on behalf of Council and asbestos test evidence from Mr Hewit. The parties also agreed that a site view conducted during an earlier conciliation conference could be treated as evidence.
The Court’s Holding
Commissioner Porter found that the fire-damaged dwelling is likely to become a danger to the public, satisfying the trigger for a Demolish Works Order (and equally a Repair Order) under Schedule 5, Part 1 of the EPA Act. The engineering experts agreed in their joint report that the roof had completely collapsed, the structural load path from roof to walls to brick piers to footings had been materially disrupted, and that sections of masonry walls remained standing “due to temporary equilibrium rather than a complete structural load path,” creating a credible risk of further collapse under wind loading or minor disturbance. Internal areas of the dwelling could not safely be entered to assess residual structural capacity, and invasive investigation was required before any elements could be confirmed as reusable.
On the contamination question, Mr Harley’s evidence established that asbestos-containing materials were identified at two locations on site, and that the internal building fabric — particularly areas inaccessible due to structural danger — had not been tested. The Commissioner accepted that the actual and potential presence of friable asbestos, exacerbated by fire damage capable of releasing fibres, heightened the public safety risk. Mr Hewit’s arguments — that trespassers were solely responsible for their own safety, that no evidence demonstrated public use of the adjacent reserve, and that Council’s temporary fencing was non-compliant — were not accepted as grounds to revoke the order.
The Court upheld the appeal under s 8.18(4)(b) of the EPA Act but did not revoke the DCO. Instead, it modified the 1 August 2025 demolition order in accordance with Annexure A to the judgment, consistent with the catchwords indicating substitution of (or modification toward) a repair order rather than outright demolition. The modification reflected the engineering experts’ view that certain masonry elements might be retained subject to invasive investigation, and allowed for a staged assessment process rather than mandating immediate full demolition.
Key Takeaways
- A fire-damaged dwelling with a collapsed roof, compromised structural load path, and unrestrained masonry walls satisfies the “is or is likely to become a danger to the public” test under Schedule 5, Part 1 of the EPA Act, even where footings and foundations appear intact.
- On a s 8.18 appeal the Land and Environment Court re-exercises the Council’s enforcement function afresh and may modify a demolition DCO to a repair or staged-assessment order where expert evidence supports the possibility of retaining structural elements.
- A property owner’s assertion that entrants are trespassers and that the owner bears no responsibility for their safety does not defeat a Council enforcement order where the site is accessible from public land and presents an objectively credible structural or contamination hazard.
- Partial positive asbestos test results, combined with untested internal building fabric and fire damage capable of releasing fibres, are sufficient to sustain a public safety finding even where the majority of samples return negative results.
- Proximity of a fire-damaged structure to publicly accessible land — here a Council reserve used for pedestrian access — is a material factor weighing in favour of enforcement action.
Why It Matters
This decision illustrates the breadth of the Land and Environment Court’s jurisdiction on DCO appeals: the Court is not limited to confirming or revoking an order as issued but may craft a modified order calibrated to the actual risk and the remediation options supported by expert evidence. For property owners facing demolition orders after fire or disaster, the case shows that a well-evidenced appeal can convert a full-demolition mandate into a repair or staged-investigation order — but only where engineering evidence affirmatively identifies salvageable elements and the owner does not simply deny the public safety finding.
For local councils and their lawyers, the judgment reinforces that delayed enforcement against fire-damaged properties does not waive the power to issue a DCO, and that a combination of structural compromise and potential asbestos contamination — even without confirmed friable asbestos throughout — is a sufficient factual foundation for a public safety order. The decision also confirms that a self-represented landowner’s failure to install required fencing and to comply with prior public safety orders is a relevant part of the factual record on appeal.