Part A

FIGURE 2.1: AN OVERVIEW OF MCCRAE INCLUDING THE SELWYN FAULT LINE AND WATER COURSES. INSET MAP SHOWS THE LANDSLIDE-AFFECTED AREA AT VIEW POINT ROAD AND PENNY LANE.⁷

Chapter 2 Endnotes

• 1 Australian Bureau of Statistics, McCrae 2021 Census All persons QuickStats (Web Page, 2021) <https://abs.gov.au/census/find-census-data/quickstats/2011/SSC20857>; Australian Bureau of Statistics, McCrae 2016 Census All persons Quickstats (Web Page, 2016) <https://abs.gov.au/census/find-census-data/quickstats/2016/SSC21614>.
• 2 Australian Bureau of Statistics, McCrae 2011 Census All persons QuickStats (Web Page, 2011) <https://abs.gov.au/census/find-census-data/quickstats/2011/SSC20857McCrae>; Australian Bureau of Statistics, McCrae 2016 Census All persons Quickstats (Web Page, 2016) <https://abs.gov.au/census/find-census-data/quickstats/2016/SSC21614>; Australian Bureau of Statistics, McCrae 2021 Census All persons QuickStats (Web Page, 2021) <https://abs.gov.au/census/find-census-data/quickstats/2021/SAL21625>.
• 3 PropTrack by REA Group, McCrae House Price Guide (Web Page, 2024-2025) <https://www.realestate.com.au/vic/mccrae-3938/>.
• 4 Australian Bureau of Statistics, McCrae 2021 Census All persons QuickStats (Web Page, 2021) <https://abs.gov.au/census/find-census-data/quickstats/2021/SAL21625>.
• 5 Mike Hast, ‘Peninsula Link finally up and running’, Mornington Peninsula News (online, 22 January 2013) <https://www.mpnews.com.au/2013/01/22/peninsula-link-finally-up-and-running/>.
• 6 Public Hearing Transcript, Darren Paul, 7 May 2025, 42–44.
• 7 Exhibit CA-67, McCrae Landslide Causation Report prepared by WSP, 21 July 2025, [DPA.0004.0001.0001 at _0032, _0037].
• 8 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0008].
• 9 Public Hearing Transcript, Darren Paul, 7 May 2025, 39.
• 10 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4459].
• 11 Paul Somerville, ‘Perspective on the Melbourne Earthquakes of Late May and Early June 2023’, Risk Frontiers: Insights (Briefing Note, 7 June 2023) <https://riskfrontiers.com/insights/perspective-melbourne-earthquakes-la…;.
• 12 Exhibit CA-77, Revised McCrae Landslide Risk Assessment for Evacuation Area prepared by PSM, 28 May 2025, [MSC.5056.0001.0003 at .0010].
• 13 Exhibit CA-1(1), Opening Presentation of Senior Counsel Assisting, 7 May 2025, [INQ.0005.0001.0001 at _0004].
• 14 These averages draw on 30-year averages from 1961 to 1990. See Department of Justice and Community Safety: Victorian Government, Environmental Scan Report – Southern Metro Region (Report, 14 September 2020) 11.
• 15 Department of Justice and Community Safety: Victorian Government, Environmental Scan Report – Southern Metro Region (Report, 14 September 2020) 16.
• 16 Bureau of Meteorology, State of the Climate 2024: Australia’s changing climate (Web Page, 2024) <http://www.bom.gov.au/state-of-the-climate/australias-changing-climate.shtml>.
• 17 Bureau of Meteorology, State of the Climate 2024: Australia’s changing climate (Web Page, 2024) <http://www.bom.gov.au/state-of-the-climate/australias-changing-climate.shtml>.
• 18 Building Regulations 2018 (Vic) reg 153.
• 19 Department of Transport and Planning: Victorian Government, VicPlan (Web Page, 2025) <https://mapshare.vic.gov.au/vicplan/>.
• 20 Mornington Peninsula Shire Council, Designated Flood Prone Areas (October 2017) (Web Page, 12 October 2017) <https://www.mornpen.vic.gov.au/files/assets/public/v/3/new-website-documents/building-amp-planning/building/docs/a2-building-flood-prone_13.pdf>.

3.1 Previous landslide events in McCrae

1. The McCrae Landslide is not the first time that a landslide in McCrae has destroyed a home.
2. More than several decades earlier, a significant landslide on the McCrae escarpment near Anthony’s Nose impacted multiple homes. However, since then and up to the landslides in November 2022, the escarpment has experienced only relatively minor landslides and like events.
3. This history is explored below.

The 1952 landslide near Anthony’s Nose, Point Nepean Road

4. The first known significant landslide to have occurred along the McCrae escarpment was near Anthony’s Nose in 1952. Anthony’s Nose is a rocky area between McCrae and Dromana, where the granite hill of Arthurs Seat meets Port Phillip Bay. It is not far from the site of the McCrae Landslide.
5. The landslide occurred on 14 July 1952 and reportedly destroyed many homes and a milk bar, swept away three bridges and blocked streets. A local resident and owner of an antique shop, Bill Caldwell, described “terrifying rumblings” prior to the landslide and then “the whole cliff-face” suddenly giving way.¹ Mr Caldwell described the incident as “the most horrifying experience of [his] life”.²
6. The landslide coincided with a significant rainfall event of between 113 millimetres and 160 millimetres over 13 and 14 July 1952.³ One report of the landslide also described Coburn Avenue, which sits at the top of the McCrae escarpment above Anthony’s Nose, being “covered to a depth of 10ft by flood waters and a burst water main”.⁴
7. The following photographs capture the magnitude of the landslide and some of the damage it caused:

FIGURE 3.1: VIEW LOOKING WEST AT 565 POINT NEPEAN ROAD SHOWING DAMAGE TO DWELLINGS FROM LANDSLIDE DEBRIS.⁵

FIGURE 3.2: VIEW LOOKING SOUTHEAST AT 563 POINT NEPEAN ROAD WITH THE LANDSLIDE HEADSCARP ON THE SLOPE TO THE REAR.⁶

FIGURE 3.3: CLEAN-UP OF A CUTTING FAILURE ON POINT NEPEAN ROAD NEAR ANTHONY’S NOSE.⁷

8. In the decades that followed the July 1952 landslide, several smaller landslide events reportedly occurred along or in the vicinity of the McCrae escarpment. These included:
   1. a landslide that occurred at “The Rocks, near McCrae” on 27 November 1952. The Age reported that this landslide occurred during a significant storm event which saw more than four inches of rain falling within three hours. The landslide “partly blocked the highway” until the debris was cleared;⁸
   2. two landslides that occurred in the mid-1990s. One occurred on the McCrae escarpment to the east of 611–613 Point Nepean Road and prompted the evacuation of the property directly below the landslide site.⁹ The other occurred at Anthony’s Nose in 1996, around 500 metres from the location of the landslide to the east of 611–613 Point Nepean Road;¹⁰
   3. a further landslide that reportedly occurred at or around the location of the July 1952 landslide, on 8 October 2020, following heavy rain. It left rocks and soil on Point Nepean Road;¹¹ and
   4. a minor landslide that occurred along the McCrae escarpment directly above 599–601 Point Nepean Road, in 2021, following earthworks for the construction of the dwelling on that site.¹²
9. In addition to the above:
   1. it is thought that a minor landslide may have occurred at 10–12 View Point Road at some point between 1975 and 1977. This is based on aerial photographs showing a change in vegetation cover at that site between those years;¹³
   2. the Board of Inquiry was informed about retaining walls that had failed or tilted on View Point Road and neighbouring streets from the 1990s onwards, as a result of the downslope movement of fill and saturated soils;¹⁴ and
   3. as recently as February 2017, the owner of 4 View Point Road is said to have observed several tonnes of surficial soils being transported down slope by flood waters during heavy rainfall.¹⁵
10. The record of incidents above tells a clear but also unsurprising story: the McCrae escarpment is a steep slope vulnerable to landslide.

3.2 Lead up to the November 2022 landslides

The 2000s

11. During the 2000s, the Shire became increasingly aware of the McCrae escarpment’s vulnerability to landslides.

The development of 611–613 Point Nepean Road

12. In 2003, concerns about the vulnerability of the escarpment above Point Nepean Road came into focus. A development was proposed at 611–613 Point Nepean Road, involving the construction of seven dwellings. Accordingly, planning permit and planning amendment applications were made.¹⁶
13. The Shire placed those applications on public exhibition and received 24 submissions raising a range of different issues.¹⁷ Of the submissions received, 16 people opposed the planning permit and planning amendment applications.¹⁸ Many of the submissions questioned the suitability of the land for the proposed development. Several people stated that the escarpment above the site was unstable and prone to landslides.¹⁹ Len Wharfe, a local resident, pointed to several landslides in the general area and emphatically submitted:

14. Jenny Wharfe told the Shire, in a submission made on behalf of the Mornington Peninsula Ratepayers’ & Residents’ Association, that she was aware of extensive land slippage on a property just above and to the east of 611–613 Point Nepean Road in the mid-1990s which impacted the dwelling below, causing it to be evacuated.²¹
15. A local resident, Eunice Cain, stated in her submission to the Shire that the topographic features of the site imposed “real physical constraints to land capacity and safe habitation in the area”.²²
16. The Shire did not request any information (such as an expert opinion) in relation to the landslide risk raised in the submissions by residents. The Shire also did not obtain its own opinion.
17. The Shire resolved to refer the planning permit and planning amendment applications to Planning Panels Victoria.²³
18. The Shire’s submission to the Planning Panel indicated that, while it supported the aims of the amendment application, the Shire was seeking advice on the best statutory mechanism to achieve the desired outcome.²⁴
19. At the hearing before the Planning Panel, the issue of landslide risk was raised in the context of consideration of the suitability of the site for the proposed development. The owner of the land told the Planning Panel that he had no knowledge of any landslides in the immediate area.²⁵ His legal representative submitted that a landslide at Anthony’s Nose was not relevant (due to its nature) and that there was no evidence in relation to the risk of a landslide on the cliff above the site.²⁶ The owner’s planning consultant told the Planning Panel that land slippage was not an issue because the site was almost flat and Penny Lane provided an appropriate separation from the base of the escarpment. He said that no site works were required at or around the base.²⁷
20. The residents who had raised landslide risk in their written submissions, attended the hearing. John d’Helin, a local resident, told the Planning Panel at the hearing that he was aware of a landslide on the property immediately behind the building at 611 Point Nepean Road.²⁸
21. Anthony Matthews, who appeared on behalf of the Shire, told the Planning Panel that he would seek the advice of the Shire’s engineering department concerning their knowledge of landslide risk in the area.²⁹ Following the hearing, Mr Matthews sent a letter to the Planning Panel stating that “a preliminary search of the Council’s records had not revealed any relevant information [about landslide risk] and a further search was being undertaken”.³⁰ The Planning Panel was not notified of the results from this search following Mr Matthews’ email.³¹
22. In the absence of any Shire records or other documentation recording instability in the area, or of any expert testimony concerning the matter, the Planning Panel concluded that it was not in a position to make any finding on landslide risk to the site.³² However, the Planning Panel noted that:

23. After considering the many different issues raised, the Planning Panel concluded that the land at 611–613 Point Nepean Road was suitable for development for medium density housing.³⁴ However, the Planning Panel concluded that the proposed amendment to the Mornington Peninsula Planning Scheme would not necessarily result in development on the site of the type the Shire was seeking to facilitate. The Planning Panel therefore recommended that the Shire prepare and adopt a specific Development Plan Overlay for the site.³⁵ The Planning Panel also concluded that the development proposed in the planning application should not be approved without modification.³⁶ The Planning Panel provided recommendations in relation to the modifications and the content of a Development Plan Overlay.³⁷
24. Around 18 months after the Planning Panel provided its report, the Shire issued a planning permit for the subdivision of 611–613 Point Nepean Road (P05/0607).³⁸ The permit required the applicant to “substantially complete the construction of the dwellings in general accordance with the development plan endorsed as part of permit P04/1497 to the satisfaction of the Shire”.³⁹
25. Planning Permit P04/1497 had been issued earlier, on 3 September 2004, and permitted the development of five dwellings in accordance with the endorsed plans.⁴⁰
26. Despite the residents’ concerns and the Planning Panel’s inability to determine the landslide risk for the site, there is no evidence that, before issuing the planning permits, the Shire requested or obtained from the developer an assessment of the landslide risk for the site. There is also no evidence that the Shire undertook or commissioned its own assessment.
27. Further, there is no evidence of the Shire taking any steps to manage stormwater drainage or other water infiltration on the properties above the development site in connection with the issuing of the planning permits.
28. Between 15 April 2005 and 3 February 2006, the properties at 2 Penny Lane and 3/613 Point Nepean Road were constructed on the lots resulting from the subdivision.⁴¹
29. Those properties are no longer occupied due to the landslides that occurred on the escarpment above them (at 10–12 View Point Road) on 14 and 15 November 2022, following water infiltration. Both properties remain subject to Emergency Orders due to the ongoing risk. They were also impacted by the McCrae Landslide.

Lane Piper investigation in 2007

30. In 2007, the Shire commissioned Lane Piper Pty Ltd (Lane Piper) to undertake a geotechnical investigation into the stability of the gully located between The Eyrie and Point Nepean Road (see Figure 3.4 below).⁴² The gully is located approximately 150 metres away from the site of the McCrae Landslide.
31. The investigation was prompted by signs of destabilisation of the gully banks. It was thought that increased runoff in recent years had resulted in erosion of the gully bed. The Shire was concerned to stabilise the gully.⁴³

FIGURE 3.4: ANNOTATED MAP DEPICTING THE LOCATION OF THE GULLY SUBJECT TO LANE PIPER’S INVESTIGATIONS.⁴⁴

32. In September 2007, after conducting geotechnical investigations and fieldwork, Lane Piper observed that the deepening of the valley and increased erosion of the escarpment were driven by two key factors:
    1. first, the increased urbanisation of the area around the gully. Namely, through the construction of houses, roads and paving and the removal of vegetation in the vicinity of the gully; and
    2. second, the sandy terrain of the area which was easily erodible.⁴⁵
33. Lane Piper concluded that most of the slopes of the gully examined were only marginally stable.⁴⁶
34. To address this, Lane Piper made several recommendations to the Shire to stabilise the gully.⁴⁷ The principal recommendation was to “partially pipe the gully to resist further erosion combined with the placement of fill around and above the pipeline to improve the stability of the gully banks”.⁴⁸ The associated recommendations included using “sandy clay or impermeable backfill” and concrete cut-off collars to prevent high velocity water flow through the backfill.⁴⁹
35. The report made it abundantly clear that the Shire needed to take measures to prevent further erosion, including through the effective management of water runoff. The stabilisation works were not completed until 2014,⁵⁰ some seven years after the Shire received the report.

The 2010s

2012 Cardno Lane Piper Landslide Susceptibility Assessment and the Shire’s response

36. On or around 1 February 2012, Cardno Lane Piper Pty Ltd (Cardno) provided a draft report to the Shire entitled Draft for Comment Landslide Susceptibility Assessment, Stage 2.⁵¹
37. The report was the culmination of a study the Shire had commissioned over a decade earlier, in 2000. Cardno had been tasked with assessing “landslide hazards” across the entire Mornington Peninsula Shire area.⁵² The assessment was prompted by several landslides in the Mornington Peninsula in the 1980s and 1990s, which had resulted “in considerable damage to dwellings, in some cases resulting in their demolition”.⁵³ There was a demonstrable need to understand landslide susceptibility across the Mornington Peninsula.
38. Over several years, Cardno used various techniques to map the contours and characteristics of the entire Mornington Peninsula to build a slope stability model.⁵⁴ By applying the resultant model, the report, in effect, classified areas of the Mornington Peninsula into subjective zones of “high”, “medium” and “low” landslide susceptibility. The zones were explained as follows:

FIGURE 3.5: LANDSLIDE SUSCEPTIBILITY ZONATION FRAMEWORK.⁵⁵

39. Cardno stressed that the classification of the Mornington Peninsula into these three zones was not intended to represent the likelihood of landslides occurring nor the severity of such landslides. Rather, the zones were intended to identify and rank the relative susceptibility of areas within the Mornington Peninsula to landslides.⁵⁶
40. In undertaking the zoning, Cardno considered multiple factors including the existing EMOs in place within the Mornington Peninsula and the geology of the area. Each of these factors warrants explanation, especially as they relate to the McCrae escarpment.
41. To establish a baseline understanding of landslide susceptibility in the Mornington Peninsula, Cardno began by examining the Shire’s EMO schedules.
42. An EMO is a planning tool. Its purpose is to protect areas prone to erosion, landslip and other land degradation or coastal processes by minimising land disturbance and inappropriate development.⁵⁷ If an EMO applies to land, it may trigger the need for a planning permit for building and works, including for types of developments that are ordinarily exempt from planning permits under statewide planning controls.⁵⁸
43. At the time of the 2012 Cardno Report, five EMO schedules were in place in the Mornington Peninsula:
    1. EMO1 – Erosion Prone Slopes;
    2. EMO2 – Unstable Slopes;
    3. EMO3 – Ballar Creek;
    4. EMO4 – Medium Landslide Susceptibility for Flinders and Tanti Creek; and
    5. EMO5 – High Landslip Susceptibility for Flinders and Tanti Creek.
44. EMO1 and EMO2 were developed and introduced in the 1970s.⁵⁹ To Cardno’s knowledge, these EMOs had not been used by the Shire in recent decades.⁶⁰ The limited utility of these EMOs was accepted by the Shire’s current Acting Director Planning and Environment, David Simon. He told the Board of Inquiry:

45. EMO3 was introduced in December 2000 as a result of “[l]and degradation problems along Ballar Creek includ[ing] clearly visible erosion of the banks and bed and less visible landslips of much larger areas”.⁶²
46. EMO4 and EMO5 were introduced in January 2011 to land in the vicinity of Tanti Creek and the Flinders township.⁶³ Those overlays reflected several geotechnical studies concerning those locations, including a Geotechnical Investigation of Stability of Creek Banks, Tanti Creek by Piper and Associates in 2006 and a Geotechnical Assessment for Landslip Risk, Flinders Foreshore by Piper and Associates in 2007.⁶⁴ Notably, EMO4 and EMO5 required (and still require) any planning permit applications to be accompanied by a “site specific geotechnical hazard and risk assessment report prepared by a suitably qualified geotechnical engineer or engineering geologist with experience in landslide risk assessment”.⁶⁵
47. None of the EMOs applied to the McCrae escarpment at the time the 2012 Cardno report was prepared.
48. After reviewing the existing EMOs, Cardno turned its attention to the geology of the Mornington Peninsula. It noted that the relationship between the Mornington Peninsula’s geology and slope stability is complex.⁶⁶ Several distinct geological materials were identified across the region, each exhibiting varying levels of susceptibility to slope failure.⁶⁷
49. Cardno observed that Dromana Granite – a hard medium-grained rock – extends from the McCrae coastline and rises steeply towards Arthurs Seat.⁶⁸ Critically, Cardno stated in its report:

50. The report went on to say that “[t]he cliffs at McCrae have been shown to be unstable in the past due to both natural and man-made causes”.⁷⁰
51. In the final analysis, Cardno zoned the escarpment on which the McCrae Landslide (and the earlier landslides on 5 January 2025 and 14 and 15 November 2022) occurred as having high susceptibility to landslides, as depicted in the red shading below.

FIGURE 3.6: ZONING OF THE MCCRAE ESCARPMENT IN 2012 CARDNO REPORT.⁷¹

FIGURE 3.7: ZONING OF MCCRAE AREA GENERALLY AND THE SITE OF THE NOVEMBER 2022 LANDSLIDES AND THE JANUARY 2025 LANDSLIDES AT 10–12 VIEW POINT ROAD.⁷²

52. The Shire used the mapping generated by Cardno to implement a geographical information system (GIS), which overlaid low (in green), medium (in yellow) and high (in red) landslide susceptibility areas over all land in the Mornington Peninsula.⁷³
53. In the concluding remarks of its report, Cardno made two relevant recommendations. First, for areas identified as having “high landslide susceptibility”, it recommended that “a landslip risk assessment is essential to consider risk to property and life [to any] proposed development and also [to] consider the impacts on nearby properties”.⁷⁴ Second, it advised that the Shire update the data, the subject of the study, every five to 10 years to incorporate new geotechnical studies or literature, and that the GIS be re-run to include that updated information.⁷⁵
54. Neither of those recommendations were properly implemented by the Shire. Specifically, the Shire did not update its EMOs to cover all land that fell within the red zone of high landslide susceptibility. It also did not update its landslide susceptibility data and modelling.⁷⁶
55. Instead, at some point after receiving Cardno’s report but prior to 2019, the Shire adopted a process whereby:

56. Those additional requirements were, and are currently, as follows:
    1. first, any planning permit applications in respect of land clearly in high landslide susceptibility (red) areas must be accompanied by a peer-reviewed geotechnical report which complies with the Australian Geomechanics Society’s Practice Note Guidelines for Landslide Risk Management 2007 (AGS Guidelines 2007);⁷⁸
    2. second, prior to the commencement of any works for a development, a Form B Structural/Civil/Geotechnical Engineering Declaration must be completed in compliance with the AGS Guidelines 2007 by both a registered structural or civil engineer (endorsed by the Victorian Business Licencing Authority) and a specialist geotechnical engineer or a specialist engineering geologist as defined by the AGS;⁷⁹ and
    3. finally, upon completion of any works, but prior to occupation of a site, a Final Geotechnical Certificate must be completed by a specialist geotechnical engineer or a specialist engineering geologist as defined by the AGS.⁸⁰
57. The Board of Inquiry was told that these requirements are not prescribed by any legislation. The Shire chose to adopt these requirements “as [a] matter of practice as an additional precautionary measure”.⁸¹ It was said that planners within the Shire knew, and know of, this practice through internal documents and systems, as well as through training by more experienced planners.⁸²
58. The Shire accepted, however, that it could not be entirely confident that the process was applied across all planning permit applications relating to high landslide susceptibility areas.⁸³ Still, the Shire took no formal steps to mandate geotechnical hazard and risk assessments in respect of those areas.

Mornington Peninsula Planning Scheme Review No. 4

59. In 2018, pursuant to s 12B of the Planning and Environment Act 1987 (Vic) (Planning and Environment Act), the Shire reviewed the provisions of the Mornington Peninsula Planning Scheme.⁸⁴ The review, amongst other things, considered the (then) five EMOs.
60. The Shire acknowledged the landslide susceptibility modelling undertaken by Cardno but noted that there was “significant work still required to translate the outcomes into [EMO] mapping”.⁸⁵ Two relevant recommendations emerged from the review:
    1. Recommendation 210: Merge the application requirements of EMO3 into EMO1, delete the schedules for EMO2 and EMO3, and renumber mapping of EMO2 and EMO3 to EMO1; and
    2. Recommendation 211: Complete the comprehensive review and update of the Shire’s landslip susceptibility data and modelling and update the ordinance and mapping of the Shire’s EMOs.⁸⁶
61. The Shire anticipated that such strategic work would be completed within two to three years of the review.⁸⁷ As it turned out, neither of those recommendations were ever implemented.⁸⁸
62. The McCrae escarpment, despite being in an area of high landslide susceptibility, remained outside of the Shire’s EMOs. This meant that strict planning controls were not automatically triggered for building works on the escarpment, including for works at 10–12 View Point Road.

2020 to November 2022

Works conducted at 10–12 View Point Road

63. In December 2020, after living in the United States for approximately two decades, Gerrard (Gerry) and Bronwyn Borghesi began permanently residing at 10–12 View Point Road. Upon their return to Australia, the Borghesis undertook general maintenance of the gardens on the property. Before describing those works, it is convenient at this stage to refer to some earlier works completed on the property.
64. Prior to moving in, and while the Borghesis were residing overseas, they arranged for works to be carried out on the property between 2015 and 2017. Such works included:
    1. the construction of a new courtyard and garage at the eastern flank of the property, which necessitated the removal of approximately six trees;⁸⁹
    2. the addition of a new balcony;⁹⁰ and
    3. the construction of a new courtyard on the western flank of the dwelling.⁹¹
65. Those works were undertaken in accordance with a planning permit issued by the Shire in April 2015.⁹²
66. In early 2018, the Borghesis carried out further works, including the erection of fencing and construction of retaining walls.⁹³ These works were undertaken in accordance with a planning permit issued by the Shire on 15 December 2015.⁹⁴
67. Upon the Borghesis’ permanent return to Australia in December 2020, they then undertook further works which included:
    1. the removal of dead vegetation and invasive weeds on the hillside;
    2. the trimming of large trees at the request of their immediate neighbours;
    3. the planting of 20–30 native plants and shrubs along the hillside as well as installing a new water tap and hose to water those plants;
    4. the installation of a one-metre-high retaining wall directly upslope of the site of the McCrae Landslide, to create a level area for a vegetable patch; and
    5. the installation of six garden beds.⁹⁵

FIGURE 3.8: CONSTRUCTION OF ORIGINAL RETAINING WALL INSTALLED BY THE BORGHESIS.⁹⁶

1. In addition to the above works, Mr Borghesi told the Board of Inquiry that, due to increased saturation of the hillside towards the western boundary of the property,⁹⁷ he installed agricultural (agi) drains in July 2021 in an effort “to control erosion and make the pathway down to Penny Lane trafficable”.⁹⁸

FIGURE 3.9: COMPARISON BETWEEN THE HILLSIDE PATH PRE AND POST INSTALLATION OF THE AGRICULTURAL DRAINS.⁹⁹

The constant presence of water in the vicinity of the McCrae Landslide site

69. The Borghesis were not alone in their observations of water on the hillside. Several local residents observed water in the vicinity of the McCrae Landslide site in the years prior to the landslides in November 2022.
70. A local resident told the Board of Inquiry that, between 2016 and 2022, they had noticed the kerbs:

71. Two residents of View Point Road made similar observations. The first resident, whose family has lived on that street for over 20 years, reported observing “a significant and persistent water flow down View Point Road” throughout that time. They told the Board of Inquiry that despite raising the issue with the Shire and SEW on multiple occasions, no action was taken.¹⁰¹
72. The second resident observed multiple water issues with the stormwater infrastructure along View Point Road and Prospect Hill Road, particularly following significant rain events in 2017 and on 12 July 2022. In particular, they observed the stormwater pits along Prospect Hill Road becoming overwhelmed with water, which led to flooding.¹⁰²

FIGURE 3.10: FLOODING IN FRONT OF 11 PROSPECT HILL ROAD.¹⁰³

73. The resident also reported an increase in water along the kerbs near 5 and 7 Prospect Hill Road during the construction of both dwellings in 2020 and 2021.¹⁰⁴ This observation was also made by a longtime resident of McCrae, whose family has owned a property on Prospect Hill Road for over 50 years.¹⁰⁵ The resident added that the “lower ... northern end, of [7 Prospect Hill Road], including the nature strip, resembled a sodden marsh up until ... [the] new house was built replacing the old one”.¹⁰⁶

FIGURE 3.11: PHOTOS OF THE KERBS DURING THE DEVELOPMENT OF 7 PROSPECT HILL ROAD BETWEEN 5 MAY 2021 AND 11 NOVEMBER 2021.¹⁰⁷

74. The issue of excess water on Prospect Hill Road was only to be made worse by the bursting of a water main on 14 November 2022.

2022 burst water main at Coburn Avenue

75. At about 5.40am on 14 November 2022, a water main at the corner of Prospect Hill Road and Coburn Avenue failed,¹⁰⁸ suffering two circumferential breaks along the length of the asbestos cement pipe.¹⁰⁹
76. The Shire received multiple complaints concerning water issues at the site of the burst, namely:
    1. at 10.18am, a resident at 23 Coburn Avenue reported that a large sinkhole had appeared in the nature strip between Coburn Avenue and Prospect Hill Road. The resident was concerned that the hole could be related to flooding at a neighbouring property;¹¹⁰
    2. at 10.46am, a resident at 22 Prospect Hill Road (next door to 23 Coburn Avenue) reported that the street stormwater pit was blocked, and that water was overflowing and flooding their house;¹¹¹ and
    3. at 11.46am, a resident at 17 Burton Street reported “[w]ater spurting out of Coburn Ave just near Prospect Hill Road intersection”, and that the road surface was “broken and the road [was] in danger of washing away”.¹¹²
77. After receiving these complaints, at some stage in the morning of 14 November 2022, employees of the Shire’s contractor, DM Roads, attended the area near 23 Coburn Avenue. The contractor determined that the issue was due to SEW’s assets.¹¹³ The contractor took a photo of the road surface (Figure 3.12 below) and made the site safe.¹¹⁴ The photo was subsequently emailed to Michelle Twaites, Customer Service Officer at DM Roads, at 11.58am.¹¹⁵
78. SEW was first notified of the burst at 1.41pm, when Ms Twaites reported it via email.¹¹⁶ Ms Twaites attached a copy of the photograph that she received earlier that day:

FIGURE 3.12: PHOTO OF DEFECT IN TARMAC AND WATER FLOW ON COBURN AVENUE.¹¹⁷

79. Minutes later, SEW created a job in its Montage system and allocated it to Service Stream Ltd (Service Stream).¹¹⁸ Service Stream was and remains contracted by SEW to provide water and sewer repair and maintenance services.¹¹⁹
80. Service Stream attended the site at around 3.20pm.¹²⁰ They remained there for several hours, until around 8.05pm.¹²¹ During that timeframe, extensive works were undertaken to repair the pipe.¹²² Those works involved drilling several holes to locate the burst, cutting and removing concrete to expose the water main, shutting off the supply of water, removing and replacing the broken pipe, filling the area around the pipe with sand/rock embedding material and repairing areas of the road that had been undermined by the water.¹²³

FIGURE 3.13: IMAGES OF THE CUT TO THE ROAD SURFACE AT COBURN AVENUE.¹²⁴

FIGURE 3.14: IMAGES OF THE BREAKS ALONG THE PIPE.¹²⁵

FIGURE 3.15: PHOTO OF THE PIPE POST REPLACEMENT.¹²⁶

81. As is evident from the photographs, the burst was not small. SEW estimates that approximately 900,000 litres of water escaped from the burst pipe, with a peak flow rate of approximately 2.3 megalitres per day just prior to the main being turned off at 6.50pm.¹²⁷

3.3 The November 2022 landslides

82. The same day as the burst water main on 14 November 2022, a landslide occurred on the escarpment at the north-west end of 10–12 View Point Road.¹²⁸ The impact of this landslide was small, but a more destructive landslide was coming.
83. Paul and Denise Willigenburg, who lived at the bottom of the escarpment at 3/613 Point Nepean Road, were home on the morning of 14 November 2022. They were packing for a 10-day holiday to Tasmania when they heard a loud cracking noise coming from the rear of their property.¹²⁹ In Mr Willigenburg’s words: “[i]t sounded like a tree, [like] a large branch from a tree had snapped off”.¹³⁰
84. The Willigenburgs went downstairs and out to their back garden to locate the source of the noise but could not see anything unusual.¹³¹ They resumed packing and departed for Tasmania later that morning.¹³²
85. The following morning, on 15 November 2022, a destructive landslide occurred in the same location on the escarpment.
86. At around 11.00am, the Willigenburgs’ son, Christopher, telephoned Mr Willigenburg in Tasmania to tell him that a major landslide had occurred earlier that morning.¹³³ Soil and debris had smashed through the back fence of the home.¹³⁴
87. Mr Willigenburg was shocked and confused. He gave evidence to the Board of Inquiry that Christopher told him:

88. Christopher sent his father a video recording of the steady flow of water coming down the slope, and photographs of the soil, debris and damage at the rear of their home.¹³⁶

FIGURE 3.16: THE IMPACT OF THE 15 NOVEMBER 2022 LANDSLIDE ON 3/613 POINT NEPEAN ROAD.¹³⁷

89. The Willigenburgs’ property was not the only property damaged by the landslide on 15 November 2022.
90. Damage was also caused to the property at 2 Penny Lane.¹³⁸ Soil and debris from the landslide similarly crashed through the rear fence of 2 Penny Lane, stopping just short of the back door.¹³⁹ One side of the property was left covered in mud and debris which had flowed off the escarpment.

FIGURE 3.17: THE IMPACT OF THE 15 NOVEMBER 2022 LANDSLIDE ON 2 PENNY LANE.¹⁴⁰

FIGURE 3.18: AERIAL IMAGE DEPICTING THE LOCATION OF THE 15 NOVEMBER 2022 LANDSLIDE RELATIVE TO 10–12 VIEW POINT ROAD (P1), 3/613 POINT NEPEAN ROAD (P2) AND 2 PENNY LANE (P3).¹⁴¹

91. The landslide on 15 November 2022 involved at least 20 tonnes of soil and debris flowing to the bottom of the escarpment.¹⁴²
92. Water was observed seeping out of several locations on the escarpment throughout the landslide area,¹⁴³ including from a displaced irrigation system at 10–12 View Point Road.¹⁴⁴
93. In response to water being observed flowing down the site of the landslide, SEW was contacted by a local resident, Ben Wells. Mr Wells, who was the owner of 3 Penny Lane at the time, placed a call to SEW at around 6.40am.¹⁴⁵ Mr Wells was distraught and reported that “the mountain [in] front of his house [meaning the escarpment above his home] was shifting due to a lot of water running” and he was “not sure if it [was] rain/stormwater or [the] burst main further up”.¹⁴⁶
94. In responding to Mr Wells’ call, SEW itself recognised that there may have been a connection between the water running down the site of the landslide and the burst. SEW’s records state: “[the water] may be associated with job in Coburn just up the hill”.¹⁴⁷
95. Soon after the landslide, officers from the VicSES attended the site.¹⁴⁸ They arrived at 6.47am.¹⁴⁹ VicSES officers were in contact with the Shire, and engineers engaged by the Shire, who were on-site at 7.20am. They liaised regarding the evacuation of residents.¹⁵⁰ VicSES officers advised Christopher Willigenburg to evacuate his parents’ home as soon as possible.¹⁵¹
96. Victoria Police also attended.¹⁵²
97. At around 7.28am, a contractor from Service Stream (on behalf of SEW) attended 10–12 View Point Road and observed “water cascading down the hill”.¹⁵³ He sounded the water meter at the property and discovered a “good noise”.¹⁵⁴ He also observed the water meter was “spinning”,¹⁵⁵ which he thought indicated a water leak. The contractor then attempted to shut off the water at the property but found that the stop tap was letting water through.¹⁵⁶ He replaced the defective stop tap and then shut off the water.¹⁵⁷
98. At 10.29am, the contractor made an entry into SEW’s Montage system stating that the VicSES had informed him that the water had stopped flowing down the escarpment. He then issued a Red Notice to the owners of 10–12 View Point Road, which stated that there was a leak in an internal service pipe and that “water has been turned off because of a burst pipe on [the] property causing landslip”.¹⁵⁸
99. Significant rain had fallen on McCrae immediately prior to the landslide on 15 November 2022. Around 80 millimetres of rainfall was recorded in nearby Rosebud the day prior, on 14 November 2022. This far exceeded the historical November monthly average (dating back to 1927) of 60.5 millimetres.¹⁵⁹ The rainfall event was the highest daily rainfall event of 2022, and the highest daily rainfall event recorded in Rosebud for the previous 17 years.¹⁶⁰ The monthly precipitation for November 2022 was recorded at almost three times the historical average.¹⁶¹
100. Later in the morning, Benjamin Essing, a delegate of the Shire’s Municipal Building Surveyor (MBS), issued Christopher Willigenburg with an Emergency Order pursuant to s 102 of the Building Act 1993 (Vic) (Building Act), prohibiting occupation of his parents’ home.¹⁶² The Emergency Order also stated that evidence of soil stabilisation on the land was to be provided to the satisfaction of the MBS.¹⁶³ When Mr Willigenburg was told about the Emergency Order, he was confused by that aspect of it. He told the Board of Inquiry that he was not aware of any unstable soil on his land (his property was at the bottom of the escarpment and was struck by landslide debris from above) and that he had “no idea” whether he was required to take any action.¹⁶⁴
101. Emergency Orders requiring evacuation were also issued in respect of the following properties:
     1. 10–12 View Point Road;
     2. 14–16 View Point Road;
     3. 2 Penny Lane;
     4. 3 Penny Lane;
     5. 1/613 Point Nepean Road;
     6. 2/613 Point Nepean Road; and
     7. 4/613 Point Nepean Road.¹⁶⁵
102. At 1.38pm on 15 November 2022, Davin Slade, a geotechnical engineer from Stantec Australia Pty Ltd (Stantec) (formerly Cardno) arrived to inspect the landslide site.¹⁶⁶ Mr Slade was engaged by the Shire. The purpose of the inspection was to identify the extent of the landslide and the zone of influence around the landslide that might be impacted by further ground movement.¹⁶⁷ Mr Slade walked around the perimeter of the landslide and observed the characteristics of the upper slope, noting water seepage and tension cracks on the eastern side of the landslide area.¹⁶⁸ His observations of the lower slope included the build-up of the upper slope’s vegetation and soil debris and additional water seepage on the eastern side of the landslide area. Mr Slade was concerned that the tension cracks, water seepage and accumulation of debris had the potential to cause a further landslide.¹⁶⁹
103. At 4.45pm, VicSES and Shire personnel attended a meeting during which the Shire informed the VicSES that it had determined it was safe for some residents to return home.¹⁷⁰ It appears that the Shire relied on geotechnical advice from Stantec to make this determination. It is, however, unclear from the records whether Mr Slade or another representative from Stantec was at this meeting.
104. At around 5.45pm, the VicSES handed the site over to the Shire, seemingly for recovery coordination.¹⁷¹
105. At 6.20pm, a Shire staff member emailed Mr Slade confirming that, following his site investigation, the Shire proposed to change the Emergency Orders issued by the MBS to allow residents from the following properties to return to their homes immediately and without restriction:
     1. 14–16 View Point Road;
     2. 1/613 Point Nepean Road; and
     3. 2/613 Point Nepean Road.¹⁷²
106. The Shire sought confirmation of Mr Slade’s agreement with the proposed changes.
107. At 8.08pm, Mr Slade advised the Shire that, based on the site inspection, he agreed with the proposed changes. He noted that the area around the remaining houses, which had been evacuated, should be inspected the next morning and afternoon to assess the status of those properties.¹⁷³
108. At the time of the landslide, Mr and Mrs Borghesi were in Melbourne for a short overnight trip for medical reasons.¹⁷⁴ The Borghesis returned to McCrae the following morning,¹⁷⁵ but were not permitted to enter their property pursuant to the Emergency Order issued by the MBS. That Emergency Order was cancelled three days later.¹⁷⁶
109. The Willigenburgs spent their Tasmanian holiday trying to arrange alternative accommodation in McCrae.¹⁷⁷ At that time they did not know, and could not have known, that they would be displaced from their home for at least another two and a half years.

3.4 The intervening period – what happened between 2022 and 2025?

Immediate aftermath

110. In the days following the 15 November 2022 landslide, the Shire and residents came together to discuss the next steps.
111. On 16 November 2022, the Shire held a meeting in the driveway of 2 Penny Lane for residents affected by the landslide.¹⁷⁸ Andrew Joseph, Resilience and Recovery Coordinator, attended on behalf of the Shire. Representatives from the VicSES and Victoria Police were also present and updated residents.¹⁷⁹ During the meeting, the Shire told residents that it had engaged geotechnical specialists to determine the works that would be required to ensure the safety of the landslide site and the affected properties.¹⁸⁰ No explanation was provided as to the cause of the landslide.
112. The significant amount of rainfall in the area in the days preceding 15 November 2022 was raised during the meeting.¹⁸¹ There was also discussion regarding the smaller landslide that had occurred on 14 November 2022. That smaller landslide was understood to have displaced an irrigation system located underneath a set of stairs at the rear of 10–12 View Point Road, causing water to flow into the escarpment for approximately 24 hours before it was stopped by SEW.¹⁸² It was thought that this may have contributed to the larger landslide the following day.¹⁸³
113. Some residents also voiced concerns at the meeting about drainage issues at the top of the escarpment on Prospect Hill Road and on View Point Road.¹⁸⁴
114. On the same day, Mr Slade inspected the landslide site for the second time in two days. He subsequently advised that 2 Penny Lane and 3/613 Point Nepean Road, the Willigenburgs’ property, were the only properties that remained at risk of being affected by a further landslide.¹⁸⁵ This was detailed in an email from Mr Slade dated 17 November 2022, which stated that:

115. The properties referred to in Mr Slade’s email, that he considered were no longer at risk, were:
     1. 10–12 View Point Road;
     2. 14–16 View Point Road;
     3. 3 Penny Lane;
     4. 1/613 Point Nepean Road;
     5. 2/613 Point Nepean Road; and
     6. 4/613 Point Nepean Road.¹⁸⁷
116. On 17 November 2022, Mr Joseph emailed the residents who had attended the driveway meeting the previous day, identifying himself as the point of contact at the Shire.¹⁸⁸ Mr Joseph stressed the importance of returning residents being “vigilant in monitoring their surrounding environment” and noted the Shire would circulate information for residents to consider “from a monitoring perspective”.¹⁸⁹ Mr Joseph also noted the drainage issues and condition of View Point Road, which had been raised at the meeting, and requested that residents send through any historical correspondence with the Shire so that it could investigate the issue.¹⁹⁰
117. The following day, on 18 November 2022, Mr Essing and Claudio Flores, Senior Building Surveyor at the Shire, had an online meeting with Mr Slade to discuss his advice. Mr Flores told the Board of Inquiry that during this meeting, Mr Slade recommended the area near and around the landslide be avoided, and that 2 Penny Lane and the Willigenburgs’ property remain evacuated.¹⁹¹
118. Mr Flores gave evidence that he and Mr Essing considered Mr Slade’s advice and decided, with Mr Slade, that there was a danger to the life and safety of the occupants of 2 Penny Lane and to the Willigenburgs if they remained in their properties.¹⁹² Consequently, they decided that the Emergency Orders to vacate should remain in place.¹⁹³ They also decided there was a danger to the life and safety of the occupants of 14–16 View Point Road and to the Borghesis near the area of the landslide and that orders should be issued “restricting access to areas within 3m of areas deemed a possible risk”.¹⁹⁴
119. That same day, Mr Flores attended the landslide site.¹⁹⁵ Following the inspection, Mr Essing issued a series of notices cancelling the Emergency Orders pursuant to s 105B of the Building Act, including with respect to 3 Penny Lane, 10–12 View Point Road and 14–16 View Point Road.¹⁹⁶ In the notices, the owners were directed to follow hillside practices and to continue monitoring for changing site conditions in accordance with advice from a suitably qualified geotechnical engineer.¹⁹⁷
120. Later in the day, Mr Flores then issued a new Emergency Order pursuant to s 102 of the Building Act to the Borghesis prohibiting “entry and use of the land within 3m of the embankment”.¹⁹⁸
121. No further Emergency Order was issued to 14–16 View Point Road despite the discussions between Mr Flores, Mr Essing and Mr Slade that there was a danger to the life and safety of the occupants of that property.¹⁹⁹ Mr Flores gave evidence to the Board of Inquiry that he did not recall why no further Emergency Order was issued, however, he “believe[d] it may have been because [he] formed the view that there were accessibility issues near the landslide from 14–16 View Point Road”.²⁰⁰
122. On 21 November 2022, the Willigenburgs returned home from Tasmania and moved into their rental property at 607–609 Point Nepean Road, McCrae.²⁰¹
123. On 28 November 2022, the Borghesis received a further Emergency Order pursuant to s 102 of the Building Act requiring them to engage a suitably qualified geotechnical engineer to “undertake an assessment of the site” and “provide a report containing recommendations and work methodology for the undertaking of make safe work to stabilise the land that has been impacted by the landslip” by 5 December 2022.²⁰² The Emergency Order also stipulated that, following approval of the work methodology by the Shire’s MBS, the Borghesis were required to engage a suitably qualified and professional engineer to undertake the make safe works by 19 December 2022.²⁰³
124. The Borghesis promptly engaged CivilTest Pty Ltd (CivilTest), a consultancy specialising in geotechnical engineering, to “determine the nature and extent of the landslide, and the residual risk associated with the moved earth” in order to “provide recommendations for immediate make-safe measures”.²⁰⁴ CivilTest attended the property on 29 November 2022 and 2 December 2022, including to conduct a drone topographical survey of the landslide area.²⁰⁵

December 2022 – the CivilTest and Stantec reports

125. Throughout November and December 2022, Mr Willigenburg liaised with Mr Essing and Mr Flores, who had since been appointed as the Shire’s Acting MBS, in relation to the timing of the Stantec and CivilTest reports and recommendations arising from them.²⁰⁶ Mr Willigenburg told the Board of Inquiry that he wanted to understand “what the next steps were going to be, what was going to happen, [and] when it was going to happen”.²⁰⁷ Mr Willigenburg understood consideration was being given to “some sort of temporary measure that might allow us to return back to our property”.²⁰⁸

5 December 2022 CivilTest report

126. Mr Borghesi received a report from CivilTest on 5 December 2022 and provided it to the Shire shortly thereafter.
127. The report concluded that the main cause of the 15 November 2022 landslide was the excessive amount of precipitation on 14 November 2022.²⁰⁹ It explained that the excessive precipitation on that single day, and in November 2022 generally, added weight to the soil on the escarpment, which led to a “higher driving force and lower resisting force”.²¹⁰
128. It also noted that, on 29 October 2022 and 2 November 2022, both of which were sunny days, water was continuously flowing along the kerb drain on View Point Road.²¹¹ The point of discharge was located at the end of View Point Road, not far from the subject landslide area.²¹² CivilTest observed “[t]here were signs of cracks and bitumen patching along the kerb [of] View Point Road” and that “[a] hump was built to divert water from one side of the kerb on View Point Road to the other side”.²¹³ CivilTest concluded that if there was water seeping into the nature strip of View Point Road and the surrounding areas towards the north, this could have contributed to the landslide as “the road drain collects surface runoff from a much larger catchment area, and the continuous flow would have some influence if there was any leaking along the kerb drain”.²¹⁴

FIGURE 3.19: WATER RUNNING ALONG THE KERB ON VIEW POINT ROAD.²¹⁵

FIGURE 3.20: CRACKS AND PATCHING ALONG THE KERB OF VIEW POINT ROAD.²¹⁶

129. With respect to the displaced irrigation system at 10–12 View Point Road, CivilTest noted that there had been no report of leakage prior to the landslide, and so it was:

130. The report concluded that “a leakage of this type is highly unlikely to trigger a landslide of this magnitude”.²¹⁸
131. CivilTest recommended the following measures be implemented “immediately” to make the area in the vicinity of the landslide site safe:

FIGURE 3.21: RECOMMENDATIONS FOR MAKING SAFE.²²⁰

132. CivilTest also stated that the affected “Penny Lane reserve area” should remain closed until it was stabilised, and that the area should be monitored for any signs of movement, including “tension cracks, fallen trees, and water seepage from the uncovered scarp, etc”.²²¹
133. With respect to long term stability, CivilTest recommended, amongst other things, that:
     1. “the road drainage along View Point Road should be improved, including checking for possible leaks and repairing”;²²² and
     2. the “uncovered headscarp should be revegetated using native trees and shrubs with aggressive root systems”.²²³

7 December 2022 Stantec report

134. The Shire obtained a report from Stantec on 7 December 2022.²²⁴ Stantec identified the existence of a series of “tension cracks” on the upper slope and “water seeps” on the lower slope of the escarpment.²²⁵ It also identified a number of landslide hazards for the site, including the risk of further translational landslides on the upper and lower slope and new debris flow similar to that which occurred on 15 November 2022.²²⁶
135. Stantec did not make recommendations for make safe works. Rather, it specifically stated that it was “limited to a discussion of the immediate risk to the properties in the vicinity of the landslides”.²²⁷ It concluded:
     1. the risk to life for 3 Penny Lane and 14–16 View Point Road was “Tolerable” and the occupiers of those properties should be allowed access to their properties;
     2. the risk to life for the Borghesis’ property was “Not Tolerable” but this only applied to the “steep section of the site and the area within 5m of the crest of the slope”. Provided that area was barricaded off and the occupiers of the property did not enter the barricaded area, the risk to life would be reduced to “Tolerable” and its occupants could return; and
     3. the risk to life for the Willigenburgs’ property and 2 Penny Lane was “Not Tolerable” and barricading off those properties from the landslide site was not considered sufficient to allow the occupiers of those properties to return. It was recommended that the occupants not be allowed to return to their homes until “appropriate rectification works are undertaken”.²²⁸
136. Notably, Stantec also stated that the properties along the McCrae escarpment on the southern side of Point Nepean Road fell within an area of “known landslide susceptibility” and that it was important for residents to be aware of the risks associated with living in “the vicinity of steep slopes”, including the need for appropriate hillside practices.²²⁹ Stantec recommended that the occupiers of the affected properties be provided with a copy of the AGS’s Australian Geoguides for Slope Management and Maintenance (2007e) for further reference.²³⁰
137. On 7 December 2022, Mr Essing advised Mr Willigenburg that the Shire had received both the Stantec and CivilTest reports. He told Mr Willigenburg that the reports could not be released to the residents at that time because they were being peer reviewed. Mr Essing assured Mr Willigenburg that he would update him as to when the reports could be provided to residents.²³¹

Maw Civil methodology and 16 December 2022 CivilTest report

138. Following the landslides, Mr Borghesi engaged Maw Civil Marine Pty Ltd (Maw Civil), a civil construction and earthmoving company, to prepare a work methodology for the safe restoration and stabilisation of the impacted land, as directed by the Emergency Order issued to him on 28 November 2022.
139. On 15 December 2022, Mr Borghesi received a work methodology from Maw Civil for “[p]re-Xmas site works”. It proposed the removal of approximately “60+m3 of [slip] material” located at the base of the slip and the construction of a temporary barrier made of “4Tonne granite rocks”.²³² Mr Borghesi provided the Maw Civil work methodology to the Shire that same day.²³³
140. On 16 December 2022, following an on-site meeting between CivilTest and Maw Civil to discuss the work methodology, site preparation and make safe measures, Mr Borghesi received a further report from CivilTest in respect of the proposed work methodology.²³⁴
141. That report summarised the proposed remediation works in the following three stages (3-Stage Plan):

142. The report also provided a risk analysis for two scenarios:
     1. if no works were undertaken between 16 December and Christmas 2022, and prolonged wet conditions occurred during the Christmas and New Year period, a further residual earth flow was possible, such that a “Medium” consequence and a “Moderate” risk rating would be applied to the two properties downslope, being the Willigenburgs’ property and 2 Penny Lane;²³⁶ and
     2. if the proposed Stage 1 works were implemented before Christmas, this would reduce the consequence of a further residual earth flow to “Medium to Minor”, however the risk rating would remain “Moderate”.²³⁷ CivilTest noted “[t]he AGS guidelines suggest areas with a moderate risk level ‘may be tolerated in certain circumstances…’ but require investigation, planning and implementation of treatment options to reduce the risk to Low”.²³⁸
143. That same day, on 16 December 2022, Mr Flores informed Mr Borghesi that the 3-Stage Plan would need to form part of a review process, including a review by Stantec and Shire engineers.²³⁹ Mr Flores noted that “given the time of year, this will not be able to take place until early in the new year” and that he had “spoken to the affected neighbours” and advised them of the peer review and expected timeframes.²⁴⁰
144. This is contrary to evidence given by Mr Willigenburg, who told the Board of Inquiry that, as at 20 December 2022, he had not received copies of any reports, nor any updates from the Shire as to any proposed works or the timing of those works.²⁴¹ In fact, on 20 December 2022, Mr Willigenburg wrote to Mr Essing seeking an update.²⁴² Mr Essing responded on the same date, stating that “the Shire’s review remains pending in the context of stage 1 works to Penny Lane in the first instance and further feedback to the other two stages proposed”.²⁴³
145. On 21 December 2022, Mr Wells forwarded to Mr Willigenburg an email that he had received from Mr Essing setting out the 3-Stage Plan.²⁴⁴
146. On 22 December 2022, Mr Willigenburg sent a further email to Mr Essing stating, “No plans; no detail; no timings; just some proposals”.²⁴⁵ Mr Essing told Mr Willigenburg the following day that the Shire was doing everything it could to enable residents to return to their properties.²⁴⁶
147. Two and a half years on, the works proposed in the 3-Stage Plan have not been undertaken, nor have any other works been undertaken.²⁴⁷ The Willigenburgs are still displaced from their home.

January to June 2023

Communications with the Shire

148. By late January 2023, Mr Willigenburg had not received any further communication from the Shire as to whether the 3-Stage Plan had been approved or not, and no works had commenced in the area. On 27 January 2023, Mr Willigenburg sent an email to Mr Essing stating:

149. Mr Essing did not respond to that email, nor did Mr Willigenburg receive any other contact from Shire representatives in January 2023.²⁴⁹
150. In early to mid-February 2023, Mr Willigenburg noticed a large wet patch forming underneath a platform located around 75% of the way up the escarpment toward 10–12 View Point Road. The remaining area had started to dry out after the landslides, but that particular patch of land remained very wet. He was concerned it was related to the drainage issues other residents had identified in late 2022.²⁵⁰ On 13 February 2023, he sent photographs of the wet patch to Mr Flores by email and told Mr Flores the wet patch had “been there for a while now”.²⁵¹

FIGURE 3.22: WET PATCH UNDER STAIRCASE ON 10–12 VIEW POINT ROAD.²⁵²

151. Mr Flores responded to Mr Willigenburg’s email the following day, stating that he would make enquiries about the wet patch and have the area inspected.²⁵³ Mr Borghesi separately gave evidence to the Board of Inquiry that, in the months following the landslides, he attended several on-site meetings with Mr Flores, during which he pointed out to Mr Flores the location of the water emanating from the hillside, specifically the water seepage on either side of the timber staircase.²⁵⁴
152. Mr Flores otherwise confirmed in his email to Mr Willigenburg that the peer review of the CivilTest recommendations had been completed and the 3-Stage Plan was considered appropriate.²⁵⁵ Mr Flores confirmed that the next step was for Mr and Mrs Borghesi to commence design documentation, which would also be peer reviewed by the Shire, and that they were “working hard to get the relevant documentation as soon as possible”.²⁵⁶
153. Several days later, on 17 February 2023, Mr Wells sent an email to Mr Essing and Mr Flores stating that there was a “considerable” amount of water travelling from View Point Road onto Penny Lane and being collected in the drainage system at the rear of 3 Penny Lane. He noted the water had been running continuously since November 2022, and there were signs it was running underneath the soil in the area where the landslides had occurred. He asked if it would be possible for the Shire to review the drainage system and make any necessary improvements to it.²⁵⁷
154. Mr Borghesi similarly told the Board of Inquiry that from the time he purchased his property in May 2014, and particularly in the period between December 2020 and May 2023, he observed a flow of water that appeared to emanate from two properties located at 1 and 5 Prospect Hill Road, directly uphill from his property.²⁵⁸ That flow of water was intercepted and diverted down a stormwater drain on Prospect Hill Road and into a culvert at the top of View Point Road. The culvert was constantly overflowing, causing water to flow down the fractured and cracked kerb on View Point Road.²⁵⁹ Mr Borghesi told the Board of Inquiry that he “never saw it dry” and that the flow of water was such that it caused moss and algae to build up from time to time.²⁶⁰

FIGURE 3.23: MOSS AND ALGAE ON VIEW POINT ROAD.²⁶¹

155. On 21 February 2023, having not received a response from the Shire to his concerns about water flow, Mr Wells lodged a complaint with the Shire online.²⁶²
156. That same day, Kendrick Koa, Senior Loss Adjuster at CHU Insurance (CHU), the insurer for the Body Corporate of 611–615 Point Nepean Road, provided the Shire with a report from Logocon.²⁶³ Logocon, a structural engineering company, had been engaged by CHU in the aftermath of the landslides to determine the cause of the slope failure and conduct an assessment of the “claimed building distress” for 611–615 Point Nepean Road.²⁶⁴
157. Logocon’s report concluded that the slope failure had been caused by a reduction in the shear strength of the sand soils, resulting in slope instability and subsequent failure of a wedge, due to the following factors:

158. Logocon’s report noted, however, that had the slope been “constructed at a safe and compliant angle, failure would not have occurred under the imposed conditions”.²⁶⁶ Logocon therefore concluded that:

159. On 1 March 2023, Mr Wells received an email from Brandon Treblico, Civil Engineer - Drainage at the Shire, stating that “drainage works, including installation of new pits and pipes and renewal of the kerb” would commence very shortly and that “[t]he landslip issue is definitely a complicated one but the drainage works should definitely help resolve some of the overland flow issues off the infrastructure”.²⁶⁸ Mr Wells forwarded the email to Mr Willigenburg stating “I have a sense from reading below that [the Shire] feel it has certainly contributed to the slide and hence the immediate response”.²⁶⁹

Purchase of 3 Penny Lane by Kellie and Nick Moran

160. It was around this same time that 3 Penny Lane went on the market.
161. The history of 3 Penny Lane can be shortly stated. From 1978 to the mid-1990s, the house that stood on that land was occupied by the Radcliffe family. Whilst living there, the Radcliffes observed, towards the lower left room of the house, “a stream [of water] running down the hill underneath the extension which ran between the stumps and drained into a pond on the flat”.²⁷⁰ The water course was damp with a green slime.²⁷¹ Decades later, consistent with the Radcliffes’ and Mr Wells’ observations, signs of water erosion were seen beneath the house at 3 Penny Lane in the days following the 5 January 2025 landslide (as explained later in the Report).
162. On 3 March 2023, Kellie and Nick Moran attended an inspection of 3 Penny Lane.²⁷² During the inspection, when Mr and Mrs Moran stepped out onto the balcony of the second floor of the property, Mrs Moran noticed temporary fencing opposite the driveway to the garage.
163. Mrs Moran asked the real estate agent, who was showing them through the property, why there was temporary fencing near the garage. The agent told Mrs Moran that one of the neighbours was conducting works on the property. Mrs Moran had some concerns.²⁷³
164. While Mr and Mrs Moran travelled back to Melbourne, Mrs Moran entered “Penny Lane, McCrae” into Google and found several articles that referred to the 15 November 2022 landslide. Mrs Moran’s understanding of these articles was that there had been a period of significant rain which had caused a landslide. Mrs Moran relayed this information to Mr Moran, who told her he would contact the real estate agency to find out more.²⁷⁴
165. Shortly after, Mr Moran contacted the agency seeking information about whether 3 Penny Lane had been impacted by the landslide. He was told that they would speak to the vendor, Mr Wells, to find out what impact (if any) it had had on the property. Mr Moran said that he and Mrs Moran would not purchase the property unless they received information that gave them confidence that any issues with the property had been rectified.²⁷⁵
166. On 5 March 2023, Mr Moran received an email from an agent forwarding an email from Mr Wells. Mr Wells’ details and the date and time of the email were not included in the copy provided to Mr Moran.²⁷⁶ The email stated that:
     1. the landslide in 2022 had occurred at 10–12 View Point Road, following heavy rainfall;
     2. investigations indicated that it had most likely been caused by a combination of problems with the Shire’s drainage on View Point Road and a burst water pipe on the property at 10–12 View Point Road; and
     3. the burst water pipe had been repaired, and Mr Wells’ understanding was that the Shire was to commence works on the drainage system shortly.²⁷⁷
167. Mr Wells stated in his email:

168. Mr Wells had also forwarded to the agent a copy of the email he had received from Mr Treblico on 1 March 2023 about the planned drainage works.²⁷⁹
169. The Morans then decided to move forward with the purchase of 3 Penny Lane in May 2023.²⁸⁰

10–12 View Point Road remediation works

170. On 28 March 2023, following correspondence between Mr Borghesi and the Shire regarding the ongoing appropriateness of the Emergency Order issued on 28 November 2022,²⁸¹ the Shire issued Mr Borghesi with a Building Order for Minor Works pursuant to s 113 of the Building Act.²⁸² The Shire informed Mr Borghesi that the Building Order was to replace the Emergency Order.²⁸³
171. The Building Order directed them to “[e]ngage a suitably qualified and insured professional to construct suitable retaining walls or other site stabilisation walls in accordance with an approved design and work methodology and remove the landslip debris from Penny Lane McCrae” by 27 May 2023.²⁸⁴ It also directed them, prior to undertaking any work, to submit documentation to the Shire for peer review and approval including design documentation.²⁸⁵
172. On 28 April 2023, Mr Borghesi provided the Shire with a land stability assessment conducted by CivilTest.²⁸⁶ Mr Borghesi had engaged CivilTest to assess the proposed installation of a retaining wall to remediate the landslide site and to “address the potential for further land instability on the site and to determine the depth and specification required for the retention system to protect the site”.²⁸⁷
173. CivilTest concluded that “sleeper retaining walls with deep foundations” were a suitable remediation option.²⁸⁸ It noted that a gabion wall could be used at the toe of the slope and recommended that “deep piling [be] used there for long-term permanent stability”.²⁸⁹ It did note, however, that the remediation of the local slope failure would “not help stabilise the surrounding areas”.²⁹⁰
174. CivilTest recommended that:

175. Melissa Burrage, Manager - Climate Change and Sustainability at the Shire, was seemingly unaware of this recommendation in CivilTest’s report. She gave evidence to the Board of Inquiry that the Shire was not provided with any expert opinion that either the Shire or individual property owners should install inclinometers in the vicinity of the November 2022 landslides.²⁹²
176. In his covering email to the Shire, Mr Borghesi noted that soil borings undertaken by CivilTest had “identified a pre-existing risk with regard to slope stability due to the underlying Aeolian sand beneath the more stable Colluvium sand”.²⁹³ Mr Borghesi queried why properties below his property were granted permits “when the hillside stability risk already existed, and was not identified by the building permitting due diligence?” (error in original).²⁹⁴
177. Mr Borghesi also sought “guidance from Council regarding what is necessary to stabli[s]e the hillside to an acceptable level” in circumstances where the required Factor of Safety rating yields “an extremely complex and expensive solution”.²⁹⁵
178. On 9 May 2023, Mr Flores responded to Mr Borghesi confirming the Shire had held a meeting on 5 May 2023, with officers from the Shire’s Planning, Infrastructure and Engineering sections in attendance.²⁹⁶ Mr Flores confirmed that “a Factor of Safety of at least 1.5 is [C]ouncil’s standard practice, and what is required to be achieved in this situation”.²⁹⁷

Stormwater drainage works on View Point Road

179. By May 2023, the drainage works foreshadowed in the email from Mr Treblico to Mr Wells on 1 March 2023 had commenced. Mr Borghesi gave evidence to the Board of Inquiry that the works took about 14 weeks and included the installation of an underground stormwater drain about 300 millimetres in diameter, along with new kerbs in View Point Road.²⁹⁸

FIGURE 3.24: SHIRE’S STORM WATER UPGRADE ON VIEW POINT ROAD.²⁹⁹

180. Mr Borghesi told the Board of Inquiry that, during the excavation process for the installation of the stormwater drain, a void was discovered directly above the location of the November 2022 landslides.³⁰⁰

FIGURE 3.25: VOID LOCATED DURING THE SHIRE’S STORMWATER UPGRADE ON VIEW POINT ROAD.³⁰¹

181. On 11 May 2023, Mr Borghesi emailed Mr Flores alerting the Shire to the existence of the void.³⁰² Mr Borghesi expressed and sought the Shire’s response to the following:

182. Mr Borghesi told the Board of Inquiry that once the drainage works were completed, the continuous flow of water down the northern kerb of View Point Road appeared to stop, with water successfully captured and diverted into the new stormwater drain. As a result, the area of the escarpment where the landslides had occurred began to dry out progressively.³⁰⁴

June to December 2023

183. Between June and August 2023, Mr Borghesi continued to correspond with the Shire about the expert reports, including about a further land stability assessment by CivilTest obtained in June 2023.³⁰⁵ The June report largely mirrored CivilTest’s earlier report save for the inclusion of an updated analysis regarding the slope stabilisation system, including specifications for the piles required to support the proposed retaining walls.³⁰⁶ The June report reiterated that Mr Borghesi had “nominated the proposed remediation area” and that “the slopes outside this area would remain susceptible to slide in the future and this may undermine the anchors and piles installed on the subject site”.³⁰⁷
184. Mr Borghesi also provided the Shire with structural drawings prepared by Rexicon Consulting Engineers (Rexicon) outlining the proposed land stability design for his property and 14–16 View Point Road.³⁰⁸
185. During this same period, Mr Willigenburg instructed solicitors, McGuinness Legal, to send correspondence to the Shire requesting, amongst other things, copies of the geotechnical reports the Shire had obtained in respect of the affected area. The letters noted that as impacted parties, it was appropriate for the Willigenburgs to have access to the information they were seeking.³⁰⁹ Letters were also sent to Mr and Mrs Borghesi and their insurer seeking copies of the geotechnical reports they had obtained.³¹⁰
186. Around the same time, the Willigenburgs also decided to engage a geotechnical engineering firm, A.S.James Pty Ltd (AS James), to prepare a report on the impact of the landslide on their property and works that would be required to make the area safe enough for them to move back home.³¹¹
187. The Shire refused to provide the information sought and suggested that the Willigenburgs seek the information via freedom of information processes.³¹²
188. Nine months after the landslides, on 21 August 2023, following the peer review of CivilTest’s June report by Stantec,³¹³ and an updated land stability assessment by CivilTest addressing the substance of the peer review,³¹⁴ the Shire finally confirmed with Mr Borghesi that he could proceed with finalising the retaining wall design.³¹⁵ On 24 August 2023, the Shire’s Legal team also sent an email to the Willigenburgs’ solicitors, stating:

189. Those works did not commence in September 2023.
190. In respect of that period, Mr Willigenburg had the following exchange with Counsel Assisting the Board of Inquiry:

191. On 7 September 2023, after having received no further correspondence from the Shire in response to requests for information, McGuinness Legal sent a letter to the Shire stating that the Willigenburgs were moving back into their home.³¹⁸
192. Mr and Mrs Willigenburg then returned to their home on 17 October 2023. Mr Willigenburg told the Board of Inquiry it was only then that they “finally got some traction”.³¹⁹ That is, the Shire agreed to attend a meeting with them.³²⁰ Counsel Assisting asked Mr Willigenburg:

193. On 13 September 2023, Mr Borghesi sent an email to the Shire confirming that all documentation for the proposed remediation works had been completed, including independent certification of the design.³²² Mr Borghesi reiterated that he considered the Shire were responsible for the landslides “due to the inadequate maintenance of the View Point Road drainage and the cracked kerb”, and requested the Shire accept responsibility for the proposed remediation works.³²³ Mr Borghesi noted in his email:

194. On 18 October 2023, Mr Borghesi sent an email to Maw Civil seeking a quote for the construction of a “[v]eggie patch retaining wall”, including the cost of bored piers, steel columns and concrete sleepers required for the job.³²⁵ Mr Borghesi noted that he was hosting a wedding at his house in March 2024 and “[i]f Council has not accepted responsibility soon, we’d like to get that job done, on our nickel, pretty soon!”.³²⁶
195. On 1 November 2023, Mr Willigenburg attended a meeting with representatives from the Shire including Mr Flores, Mathew Hopwood-Glover (Glover), who had taken over from Mr Flores as the Shire’s MBS, and various legal representatives. The Shire’s representatives raised concerns about the Willigenburgs re-occupying their home and told Mr Willigenburg they were continuing to work to develop a plan for the affected area.³²⁷
196. Mr Willigenburg left the meeting with the understanding that the Shire was still working towards implementing the 3-Stage Plan.³²⁸ He told the Board of Inquiry:

197. On 3 November 2023, Harwood Andrews, the Shire’s legal representatives, received a report from Dane Pope of PSM, Geotechnical & Engineering Services (PSM), providing a risk assessment for 10–12 View Point Road. The report concluded that there continued to be an “unacceptable” risk to life for the Willigenburgs at 3/613 Point Nepean Road and 2 Penny Lane and to pedestrians on and below the escarpment slope on 10–12 View Point Road and the Willigenburgs’ property.³³⁰
198. On 15 December 2023, Mr Borghesi provided Maw Civil with a design for the vegetable patch retaining wall.³³¹ Mr Borghesi noted in his email to Maw Civil that:

199. On 21 December 2023, Mr Borghesi received a further technical report from CivilTest.³³³
200. This latest report, amongst other things, confirmed that CivilTest had engaged Safety Scan Pty Ltd to conduct a ground penetrating radar (GPR) scan of the landslide site to check for the existence of voids. This occurred on 12 December 2023, and the report provided the following summary of the scan results:

201. The report concluded that:

2024

Reinforcement wall at 10–12 View Point Road

202. Mr Borghesi gave evidence to the Board of Inquiry that in January 2024, he arranged for the installation of a “geotechnical and structurally engineered wall” at his property, located at the top of the headscarp, 30 centimetres in front of the existing retaining wall and almost directly upslope of 3 Penny Lane.³³⁶ He said that the purpose of the reinforcement wall was to strengthen the old retaining wall that had shown signs of settlement.³³⁷ Mr Borghesi decided to expedite the construction of the reinforcement wall due to the wedding taking place at his home in March 2024.³³⁸
203. The construction of the reinforcement wall was undertaken by Maw Civil in January 2024.³³⁹

FIGURE 3.26: CONSTRUCTION OF THE REINFORCEMENT WALL AT 10–12 VIEW POINT ROAD.³⁴⁰

FIGURE 3.27: COMPLETED REINFORCEMENT WALL AT 10–12 VIEW POINT ROAD.³⁴¹

204. Mr Borghesi described the reinforcement wall as being just under two metres at its highest point if measured from the base to the top.³⁴² He did not seek a building permit to construct the reinforcement wall.³⁴³ Consequently, the Shire was not made aware of its proposed construction.³⁴⁴

Further Emergency and Building Orders issued to the Willigenburgs and Borghesis

205. On 30 January 2024, the Borghesis’ solicitors, Rotman & Morris Solicitors, provided a copy of CivilTest’s December report to the Shire’s solicitors.³⁴⁵ Rotman & Morris emphasised the report’s conclusions regarding the “inadequate management of the drainage on View Point Road” and the “presence of a cracked road kerb and the flow of water into the voids” as causal factors of the landslides, which by this stage had occurred more than 12 months earlier.³⁴⁶ The letter also stated that, by reason of s 16 of the Water Act 1989 (Vic) (Water Act), the Shire was strictly liable to compensate the Borghesis for the loss and damage suffered as a result.³⁴⁷
206. The letter sought, amongst other things, compensation from the Shire for the approximate cost of the 3-Stage Plan, being in the amount of $1.25 million.³⁴⁸
207. The Borghesis did not receive a response to that letter.
208. On 1 February 2024, Mr Flores, having returned to his role as Senior Building Surveyor at the Shire, gave Mr Willigenburg a letter requesting an inspection of his property.³⁴⁹ The letter stated:

209. Mr Willigenburg was not aware of any site visit having taken place at his property.³⁵¹
210. In any case, Mr Willigenburg consented to Mr Flores inspecting the property, and an inspection took place on 6 February 2024.³⁵² Following the inspection, Mr Flores issued Mr Willigenburg with a further Emergency Order pursuant to s 102 of the Building Act, requiring the Willigenburgs to vacate the property on the basis of “immediate safety concerns”.³⁵³
211. Between 6 February and 12 March 2024, the Shire issued a further six Emergency Orders (pursuant to s 102 of the Building Act) to the Willigenburgs.³⁵⁴ As a result, the Willigenburgs left their home again and moved back into the rental property at 607–609 Point Nepean Road on 23 February 2024.³⁵⁵
212. On 7 February 2024, Mr Flores issued a Building Notice pursuant to s 106 of the Building Act to the Borghesis.³⁵⁶ The notice required them to show cause as to why they should not be required to carry out “stabilisation work to the landslide affected land in accordance with the geotechnical recommendations and structurally engineered design after obtaining the relevant building and planning permit approvals”.³⁵⁷
213. On 12 March 2024, the Borghesis’ solicitors responded to Mr Flores stating that the Building Notice was invalid on jurisdictional grounds.³⁵⁸ They stated that, even if the Building Notice was valid, it was “inequitable” for the Shire to require them to undertake the work at their own cost in circumstances where legal responsibility for the landslides lay with the Shire.³⁵⁹
214. On 14 March 2024, Mr Flores issued a Building Order pursuant to s 111 of the Building Act, prohibiting occupation of the Willigenburgs’ property at 3/613 Point Nepean Road until such time as 10–12 View Point Road had been made safe to the satisfaction of the MBS.³⁶⁰
215. On 4 April 2024, Mr Flores issued a Building Order pursuant to s 111 of the Building Act to the Borghesis.³⁶¹ The Building Order largely mirrored the earlier Building Notice and required the Borghesis to undertake stabilisation works to the landslide affected land in accordance with geotechnical recommendations and a structurally engineered design.³⁶²
216. The next day, on 5 April 2024, the Shire informed the Borghesis’ solicitors that the MBS did not intend to withdraw the Building Notice or the Emergency Order issued on 18 November 2022.³⁶³

Building Appeals Board proceedings

217. In April 2024, the Willigenburgs commenced proceedings in the Building Appeals Board to appeal the Building Order served on them.³⁶⁴
218. By that time, the Willigenburgs had obtained a report from AS James which recommended, amongst other things, that a debris flow barrier be installed at the base of the escarpment or as a substitute to the rear fence of their property and other properties on Point Nepean Road.³⁶⁵ The debris flow barrier was intended to temporarily ensure that their property would be safe enough for occupation, while the 3-Stage Plan was implemented.³⁶⁶
219. The Willigenburgs sought an order that the Shire and/or the Borghesis cover the costs associated with the work in erecting the debris flow barrier.³⁶⁷
220. In May 2024, the Borghesis also commenced proceedings in the Building Appeals Board to challenge, amongst other things, the validity of the Building Order served on them and the Shire’s decision to refuse to cancel the Emergency Order.³⁶⁸
221. Mr Borghesi gave evidence to the Board of Inquiry that the AS James debris flow barrier proposal was later dismissed as it would have required cables to be installed across Penny Lane, thereby restricting access to Penny Lane.³⁶⁹

Victorian Civil and Administrative Tribunal proceedings

222. The Borghesis also issued proceedings against the Shire in the Victorian Civil and Administrative Tribunal (VCAT) with respect to losses sustained by them as a result of the November 2022 landslides.³⁷⁰
223. In June 2024, in the context of the VCAT proceedings, the Shire received a further report from Mr Pope of PSM providing his opinion as to the causes of the landslides.³⁷¹ The report had been commissioned about six months earlier in November 2023.
224. The report concluded that:
     1. it was most likely that the initial landslide on 14 November 2022 occurred primarily as a result of “natural geomorphological processes in combination with the [r]ain [e]vent”;³⁷² and
     2. the subsequent landslide on 15 November 2022 was a conditional event dependent on the initial landslide occurring. The initial landslide “damaged the irrigation system which has then contributed a large amount of water into the landslide area. This additional inflow in combination with [the] natural geomorphological processes and the [r]ain [e]vent has created the conditions necessary for the subsequent landslide ... to occur”.³⁷³
225. Mr Flores gave evidence to the Board of Inquiry that the Shire specifically sought Mr Pope’s opinion as to whether voids in and under the kerb in View Point Road could have been a potential cause of the landslides.³⁷⁴ Mr Flores confirmed that, while he did not recall considering the report at the relevant time, Mr Pope had concluded that the contribution of damaged infrastructure to the landslides was “minor to negligible”.³⁷⁵ The report found that the landslides would have occurred regardless of the water flow on View Point Road.³⁷⁶

Mornington Peninsula Planning Scheme Review No. 5

226. The Shire gave evidence to the Board of Inquiry that, in line with its obligations under the Planning and Environment Act and following its review of the Mornington Peninsula Planning Scheme in November 2018, it conducted a further review of the Mornington Peninsula Planning Scheme in 2023. That review was adopted by the Shire on 30 April 2024.³⁷⁷
227. The review noted that outstanding items from the earlier review in 2018 included Recommendation 211, being the completion of a comprehensive review and update of the Shire’s landslip susceptibility data and modelling to inform and update the ordinance and mapping of the EMOs.³⁷⁸ At the time of the review, this work was “yet to be funded, resourced and programmed”.³⁷⁹ The review recommended that the Shire complete this work and assigned it a “Medium” priority.³⁸⁰
228. More than 12 months have now passed, and the work has not been completed.

3.5 Lead up to the January 2025 landslides: November – December 2024

229. In the months leading up to the 5 January 2025 landslide, residents observed unexplained water throughout the McCrae area.
230. The water was on the streets uphill of Penny Lane – particularly, Waller Place, Charlesworth Street, and Coburn Avenue. The water roared in the stormwater drainage system. It bubbled up through the roads. It pushed up and cracked the bitumen. It created potholes. It flowed down the streets. It saturated and seeped from the nature strips.

FIGURE 3.28: MAP OF MCCRAE AREA HIGHLIGHTED TO SHOW VARIOUS LOCATIONS OF WATER ISSUES.³⁸¹

231. From at least November 2024, residents of McCrae raised their concerns about the water to both the Shire and SEW. The complaints were numerous. The residents knew something was wrong, especially given the lack of rainfall in that period.
232. As the chronology of complaints below illustrates, throughout November to the end of December 2024, the water was thought to be related to potential issues with stormwater drainage, road drainage or SEW’s water mains. The water issues were treated with varying degrees of priority by the Shire and SEW.
233. During that period, no one knew the source of the water – not the residents, the Shire nor SEW. An answer to the problem eluded them for several weeks.
234. A potential explanation for the water – a burst water main near the intersection of Bayview Road and Outlook Road – was discovered just before New Year’s Eve.

Escalation of complaints in the lead up to the 5 January 2025 landslide

Early to mid-November 2024, eight weeks before the landslide

235. On multiple occasions throughout November 2024, a McCrae Resident who had recently moved into a property in McCrae heard “torrents of water rushing through the under[-]road drains on Coburn Ave[nue]”. She told the Board of Inquiry that the sound of rushing water persisted for around two weeks, and that she was “shocked [by] the amount of water (so loud [that] I could hear it through my ear buds)”.³⁸²
236. At around the same time, Brett Cooper, the owner of 5 Waller Place, also began to notice issues with the road surface at the intersection of Charlesworth Street and Waller Place. He told the Board of Inquiry that he ordinarily drives through that intersection several times per day, and that, in early November 2024, he saw the road begin to rise and swell. Cracks started to appear in the road surface and water was leaking from them. As each day passed, the cracks grew wider and the volume of water leaking from them increased.³⁸³

Late November 2024, six weeks before the landslide

237. On 24 November 2024, Philip Johnson reported to SEW via their Snap, Send and Solve application that water was surfacing in the middle of the road outside 3 Charlesworth Street. Worryingly, the impacted area had become “progressively larger” despite the fact that “it had been quite dry”.³⁸⁴ This is a photograph he took of the issue:

FIGURE 3.29: WATER SURFACING OUTSIDE 3 CHARLESWORTH STREET.³⁸⁵

238. SEW responded to Mr Johnson’s report on the same day, requesting further information on the basis that SEW had no assets in that location. Mr Johnson did not respond, but other residents subsequently contacted both SEW and the Shire to provide additional information.³⁸⁶
239. On 28 November 2024, at around 2.46pm, a resident called SEW to report a water leak in the vicinity of 1 Charlesworth Street, near the intersection of Charlesworth Street and Waller Place. They reported that the water was flowing into the gutter at a rate of “approx [a] hose on half”.³⁸⁷
240. Just over an hour later, the Shire was informed of the same issue. At around 4.06pm, the Shire submitted a road maintenance request to Fulton Hogan, a construction company contracted by the Shire, concerning the road surface outside of 3 Charlesworth Street, recording:

241. The request was given an urgent priority rating.³⁸⁹
242. Fulton Hogan attended the site and erected traffic hazard signs and cones around the affected area, while waiting for representatives of SEW to arrive.³⁹⁰
243. By 6.41pm, Service Stream personnel (on behalf of SEW) arrived on-site and found water seeping from the middle of the road outside of 3 Charlesworth Street. They recorded:

244. On 29 November 2024, SEW characterised the Charlesworth Street pothole that was inspected the day before as a “non-urgent fault” and assigned it a priority rating of 5. This rating meant that it had to be addressed within 24 hours.³⁹²
245. At some point during that day, Fulton Hogan returned to repair the pothole with hot mix, emulsion and dust.³⁹³ The repair was short lived.

Early December 2024, five weeks before the landslide

246. On 1 December 2024, at around midday, a resident called SEW to report water bubbling up through the road at the intersection of Charlesworth Street and Waller Place. A few hours later, by 3.58pm, Service Stream personnel arrived on-site and noted that this was the same issue raised days earlier. They noted that the Shire had “patched the road from where the water was seeping out”. They tested the water, observed that the electrical conductivity reading was “over 3700” and concluded that this was “a council issue”.³⁹⁴
247. On 2 December 2024, SEW again allocated a priority rating of 5 to this issue.³⁹⁵
248. On 4 December 2024, a Shire representative contacted SEW to report a “sinkhole” in the same location as was reported on 1 December 2024. The SEW representative advised the Shire of SEW’s previous findings and referred the issue back to the Shire’s Roads Corridor and Drainage team.³⁹⁶

Early to mid-December 2024, three to four weeks before the landslide

249. In early to mid-December 2024, Mr Willigenburg observed the spoon drains on Penny Lane filling with water, and that the ground on either side of the drains was saturated and spongy.³⁹⁷ He described the sound of the water moving through those drains as ranging between a “whooshing sound” and a “low trickling” sound.³⁹⁸
250. Water continued to emerge elsewhere within a 50 to 100 metre radius of the Charlesworth Street and Waller Place intersection. In the 10 days following 11 December 2024, Mr Cooper observed water leaking from the nature strip in front of 34 Coburn Avenue. The nature strip was so saturated that he thought someone had left a hose running.³⁹⁹ Similarly, he saw water leaking from the nature strip in front of 1 Waller Place. The nature strip was so saturated that a vehicle became bogged there in the lead up to Christmas. So significant was the water flow that it travelled across the road into a stormwater drain in front of 4 Waller Place.⁴⁰⁰
251. In the same period, Mr Cooper heard a significant amount of water gushing through a large stormwater pipe that runs alongside his property on Waller Place. He described the flow of water as “unusually loud and uncharacteristic for that time period”. He told the Board of Inquiry he had never heard water flow through the stormwater pipe to that extent, when there had been no rain.⁴⁰¹
252. In the meantime, on 14 December 2024, a customer reported to the Shire that the leaks outside 3 Charlesworth Street had not abated. The customer said that while there was some evidence of work being done, sludgy water was still “oozing out of [the] roadway … [and] getting worse by the day”. The customer implored the Shire to act.⁴⁰² The Shire categorised the request as a stormwater drainage concern and gave it an urgent priority rating.⁴⁰³
253. Two days later, on 16 December 2024, the Shire noted that the “[r]elevant department” had inspected the site and deemed that all Shire assets were operating as intended, and that the issue could be related to a damaged SEW asset.⁴⁰⁴ It is unclear from the records which Shire department conducted the inspection.
254. That same day, at around 1.45pm, SEW received a complaint that water was leaking out of the nature strip and trickling into the gutter near 4 Waller Place.⁴⁰⁵ Five minutes later, SEW received a report that water was leaking at 34 Coburn Avenue.⁴⁰⁶
255. At 5.45pm, Mr Willigenburg reported to the Shire that the spoon drains at the end of Penny Lane were once again full even though there had been little rain. The report was categorised as a stormwater drainage concern and prioritised as urgent.⁴⁰⁷
256. On 17 December 2024, a resident of 4 Waller Place reported to SEW that there was water bubbling up from the ground around 1 Charlesworth Street. SEW advised the resident that its representatives had already attended the site earlier that day. Acoustic leak detection and an electrical conductivity test of the water indicated that there was no leak from the nearby water main. SEW arranged for Service Stream to attend the site again to assess whether any further action was required.⁴⁰⁸
257. On the same day, a resident sent a follow-up request to the Shire about the continuing water issues at the corner of Charlesworth Street and Waller Place. The resident explained the “road is still lifting and now water is rising and sitting just outside ... 3 Waller Place”. The issue was categorised as having medium priority.⁴⁰⁹
258. The Shire’s Customer Service team contacted the Roads Corridor and Drainage team seeking an update on the request as it was “bouncing from SE[W] [to] us”.⁴¹⁰ On an unknown date, the Shire contacted the customer providing an update regarding “proposed works” on Coburn Avenue.⁴¹¹ Additional details concerning those works are not set out in the Shire’s records.
259. Three days later, on 20 December 2024, a resident reported to the Shire that were was “a large amount of groundwater streaming out of the road” at 1 Charlesworth Street. The resident stated that SEW had attended the site and confirmed that the water was not from a burst water main. They thought the issue was a danger to residents and the public as the ground could be unstable. The Shire categorised the report as a stormwater drainage concern and marked it as urgent.⁴¹²
260. A resident called SEW again about the leak outside 3 Charlesworth Street, which had been previously reported on 1 and 4 December 2024. SEW responded as follows:

261. Later that afternoon, the same resident contacted SEW to report that the hole on Charlesworth Street was getting worse. The resident wanted an update on what steps were being taken to address the issue.⁴¹⁴
262. The Shire’s Roads Corridor and Drainage team attended the site that day and placed bollards and tape up around the area where water was “streaming out of the road”.⁴¹⁵ Fulton Hogan also noted that a “make safe for [the] pothole with water ingress [had been] installed”.⁴¹⁶
263. The Shire otherwise recorded that there were no Shire assets in the location and that SEW had been contacted to re-inspect its pipes.⁴¹⁷

Mid to late December 2024, two weeks before the landslide

264. On 21 December 2024, Fulton Hogan contacted SEW to report that the volume of pressurised water flowing near Charlesworth Street was leading them to believe that it was not stormwater. They had inspected all the stormwater assets in the area on the Shire’s behalf and found no faults. They also noted that the condition of the road was “getting bad”, so bad that a road closure might soon be necessary.⁴¹⁸
265. Later in the day, Service Stream personnel attended the site and saw water emerging from two locations. First, from the middle of the road opposite 3 Charlesworth Street. Second, from the nature strip in front of 1 Waller Place and travelling across the road to 4 Waller Place. The water was dirty.⁴¹⁹
266. Service Stream tested the water in both locations, and the results indicated that the water was “well above mains range”, with electrical conductivity readings between 440 and 540.⁴²⁰
267. Water was also observed “pouring in a deep grated drain in the gutter” at 4 Waller Place, appearing to originate from the other side of the Mornington Peninsula Freeway. This prompted the Service Stream personnel to cross the freeway to conduct acoustic leak detection on valves and services along The Boulevard and Bayview Road. No signs of leakage were detected. They concluded that the running water may have been the result of a drainage issue but recommended that specialised leak detection personnel be engaged to confirm the source.⁴²¹
268. In the meantime, a resident of 3 Charlesworth Street reported to the Shire that there was “[b]ad water in middle of the narrow road, plastic bollards around leak making it difficult to pass. Been like this for weeks.” The Shire categorised the report as a road maintenance issue of medium priority.⁴²²
269. On the same day, a local resident posted the following photograph and video of the Charlesworth Street pothole to the McCrae Village Community Group page on Facebook:

FIGURE 3.30: PHOTOGRAPH AND VIDEO FOOTAGE OF WATER ON CHARLESWORTH STREET.⁴²³

270. The post stated “Charlesworth Street water leak. Just posting this to see how long it takes to get repaired. Water coming out of the road for about 3 weeks now, waiting for the massive washout”.⁴²⁴
271. Two days later, on 23 December 2024, a resident of 4 Waller Place expressed concern to the Shire about the condition of the road along Charlesworth Street and Waller Place. A new sinkhole had appeared on Waller Place. The report was categorised as a road maintenance issue of medium priority.⁴²⁵
272. The same morning, a resident of 1 Charlesworth Street telephoned SEW to request an update on the pothole on Charlesworth Street that had been reported almost a month earlier, on 28 November 2024. SEW recorded that the resident told them:

273. This issue remained at a priority rating of 5.⁴²⁷
274. At 4.52pm on 23 December 2024, the Shire recorded that the water leak at 3 Charlesworth Street was being “maintained by SEW”.⁴²⁸ The same note was recorded in respect of the leak at 4 Waller Place.⁴²⁹
275. Notably, Shire records indicate that the 3 Charlesworth Street request was not resolved until 20 January 2025, at which time, the Shire’s Road Maintenance Request Summary simply noted that work had been “successfully completed”.⁴³⁰

Christmas Eve, 24 December 2024

276. By Christmas Eve, about a month had passed since water issues near the corner of Charlesworth Street and Waller Place had been reported. Service Stream’s multiple investigations had not located the source of the water.⁴³¹
277. SEW escalated the issue to Jason Marsh, Leak Detection Technician from SEW, and a representative from Detection Services Pty Ltd (Detection Services). Detection Services, was and remains, contracted by SEW to provide leak detection services.⁴³² They attended the site in the vicinity of 4 Waller Place to investigate.⁴³³
278. It was a terrible day for leak detection, given the constant and heavy rain.⁴³⁴
279. Upon arriving, Mr Marsh noticed that water was bubbling up from the road at about 10 litres per minute,⁴³⁵ the stormwater drain at 4 Waller Place was “raging”, and that there were extremely saturated nature strips.⁴³⁶ This was most concerning. The volume and forceful movement of water through the road and stormwater drain led Mr Marsh to suspect it was possibly emanating from a burst water main.⁴³⁷
280. Mr Marsh and the Detection Services representative sounded all of SEW’s water main assets in the vicinity of 4 Waller Place – no leaks were detected.⁴³⁸ While they were conducting their investigations, they met Mr Cooper who allowed them to access a water main pit at the back of his property for acoustic leak detection.⁴³⁹ The water main was quiet – it was ruled out as the source of the water.⁴⁴⁰
281. Mr Cooper subsequently directed Mr Marsh and the Detection Services representative to The Boulevard Reserve on the southern side of the Mornington Peninsula Freeway, knowing that both the water main and stormwater pipe travelled across the freeway.⁴⁴¹
282. Mr Marsh and the Detection Services representative proceeded there and sounded the valves and hydrants near Bayview Road. Again, no leak noises were detected.⁴⁴² Mr Marsh did not otherwise observe any signs, such as wet ground, to indicate the presence of a potential leak.⁴⁴³
283. At 6.37pm that evening, Mr Marsh sent an email to Charles Swain, Water Maintenance Manager at SEW, and others stating, “I believe that this may become a bigger problem”.⁴⁴⁴ Counsel Assisting asked Mr Marsh what he meant by “this”, he replied “I was ... concerned about the water raging” in the stormwater system.⁴⁴⁵
284. Mr Marsh told his colleagues that he would return when the weather had improved to take water samples. He asked if an “operation tech” with personal knowledge of the area was available to assist him with its layout.⁴⁴⁶
285. Later that evening, Hayden Phillips, Water Network and Leakage Technician at SEW, replied to Mr Marsh’s email. He stated that there had been no indication of a significant leak from trends at the Waller Place Pressure Reducing Valve/Pump station and Parkes Street tanks. He suggested that the water could be emanating from smaller leaks tracking downhill through stormwater drains.⁴⁴⁷

Christmas Day, 25 December 2024

286. On Christmas Day, Mr Cooper walked over to The Boulevard Reserve to check his suspicions about the origin of the water. He walked towards a patch of land located behind The Boulevard Reserve at the intersection of Bayview Road and Outlook Road, where he knew there were two pits for the stormwater pipe. He was unable to locate the first pit due to overgrown vegetation. However, as he neared the second pit, he could hear running water. He did not find the pit, but he did notice that the ground was completely saturated, to the point that his shoes were sinking into it.⁴⁴⁸
287. Mr Cooper then walked down to the beach via a set of stairs on View Point Road that led down to Margaret Street, where he knew there to be an outfall for the stormwater pipe. When he arrived, he saw that the volume of water coming from the outfall was washing a deep trench into that section of the beach. He told the Board of Inquiry:

Late December 2024, one week before the landslide

288. On 27 December 2024, Mr Marsh returned to Waller Place to conduct further leak detection investigations. He observed water was still raging through the stormwater drain at 4 Waller Place.⁴⁵⁰ He again crossed the Mornington Peninsula Freeway and sounded the valves and hydrant near Bayview Road but was unable to detect any leak.⁴⁵¹ Little did he know that he was about 30 metres away from the site of a significant burst water main. In Mr Marsh’s words, he “regrettably” did not detect the burst that day.⁴⁵² It would take another three days before the burst would be uncovered.
289. On 29 December 2024, a resident reported to SEW that water was leaking from the nature strip near the corner of Coburn Avenue and Charlesworth Street. SEW recorded that the issues were likely to be linked to those on Waller Place.⁴⁵³
290. Service Stream personnel attended the site the next day. The following observations were recorded:

291. The issue was given a priority rating of 5.⁴⁵⁵

Discovery of the burst water main – six days before the landslide

292. On 30 December 2024, Mr Marsh returned to Waller Place for the third time in a week. This time, he was accompanied by a Service Stream supervisor.⁴⁵⁶ Still, they could not locate the leak.⁴⁵⁷
293. Mr Marsh telephoned Gary Loudon within SEW’s Network Operations team, and asked for his view on the situation, noting that the Network Operations team typically has a better understanding of water sources and how water moves through SEW’s systems.⁴⁵⁸ Mr Marsh told the Board of Inquiry that, at this point, he was calling “anyone that would listen”.⁴⁵⁹
294. Mr Loudon attended Waller Place at around 10.00am.⁴⁶⁰ He noticed water bubbling up from the road. However, like Mr Marsh, it was the amount of water running through the stormwater drain that caused Mr Loudon to consider there was a potential burst.⁴⁶¹ Mr Loudon knew that the Parkes Street tanks supplied the zone in question and reviewed the tank outflow data to compare the differences between outflow in December 2023 and December 2024. He noted an increase in the flow rate.⁴⁶²
295. In an email Mr Loudon sent to Mr Swain later that day, he recalled:

296. The burst water main was located approximately 50 metres west of Outlook Road, between Bayview Road and the Mornington Peninsula Freeway.⁴⁶⁴
297. At around 1.58pm on 30 December 2024, Service Stream personnel arrived on-site to find a burst 150 millimetre UPVC water main.⁴⁶⁵ A repair was not attempted due to difficulties the personnel faced in accessing the leak location with machinery, as well as staffing constraints.⁴⁶⁶

Repair of the burst water main – four to five days before the landslide

298. At 9.08am on 31 December 2024, a Service Stream crew arrived at the site of the burst water main.⁴⁶⁷
299. By 12.47pm, the crew had located the defective section of the water main and commenced pumping water out of it. The water main was 1.7 metres below the ground. They noted the area was “undermined” and “close to a couple of large trees”, one of which was hanging over the trench. They explained to Mr Loudon that the area was unsafe and that at least one of the trees would need to be removed to make it safe. They also suggested inserting a valve near Outlook Road to “isolate the main and program the repair”. Mr Loudon agreed with that proposal.⁴⁶⁸
300. At around 3.50pm, SEW employees and Service Stream personnel attempted to locate the main, approximately 100 metres from the burst site, to insert the valve. They dug 2.5 metres into the ground but were unable to locate it.⁴⁶⁹

FIGURE 3.31: PHOTOGRAPHS OF BURST WATER MAIN SITE ON 31 DECEMBER 2024.⁴⁷⁰

301. In the meantime, a representative from the Shire had contacted SEW to report flooding at 1 Waller Place. The resident from that address had advised the Shire that the “house foundations and fence [were] under water”, the road was “crumbling” and three sink holes had appeared.⁴⁷¹ A SEW representative contacted the Shire at around 4.26pm to advise that works were being undertaken to isolate a burst water main.⁴⁷² He recorded:

302. Service Stream resumed working on the site between 1.20am and 3.02am on 1 January 2025.⁴⁷⁴ During that period, it obtained approvals to cut down two unstable trees and remove cyclone fencing to make the site safe enough for the burst main to be repaired. Once the site was safe, the Service Stream personnel then excavated around the main, located the split on the 150 millimetre PVC water main, cut out the damaged section and replaced it with a new section of pipe.⁴⁷⁵

FIGURE 3.32: PHOTOGRAPH OF REPAIRED SECTION OF THE BURST WATER MAIN.⁴⁷⁶

303. At around 9.15am on 1 January 2025, Service Stream personnel inspected Charlesworth Street and Waller Place and observed that water was still coming out of the road opposite 3 Charlesworth Street and the nature strip along Waller Place.⁴⁷⁷ Water was also still running in the grated drain opposite 5 Waller Place.⁴⁷⁸
304. That afternoon, at approximately 3.25pm, Service Stream personnel returned to inspect Charlesworth Street and Waller Place. The water running in the drain opposite 5 Waller Place had slowed but there was still water flowing outside 3 Charlesworth Street.⁴⁷⁹ Water was also observed pooling along the fence line of 1 Waller Place and flowing back toward the house. Water testing indicated the water was outside of “mains range”.⁴⁸⁰ The owner of 1 Waller Place was told they would need to speak with the Shire about the issue.⁴⁸¹
305. The next morning, at 11.29am, Fulton Hogan informed the Shire that the water issues on Charlesworth Street, Waller Place, and Coburn Avenue were under the management of SEW. They advised the Shire that they:

306. Mr Cooper told the Board of Inquiry that throughout the first two weeks of January 2025, he observed that water leaking from the road and nature strips on Waller Place had begun to dry. Although water continued to leak at the intersection of Charlesworth Street and Waller Place, the volume appeared to be decreasing. He attributed this reduction to the repair of the burst water main.⁴⁸³
307. The site of the burst water main is located approximately 450 metres south of 3 Penny Lane. The burst water main had leaked for an extensive period prior to its repair, releasing many millions of litres of water over that period.⁴⁸⁴
308. Four days after the water main was repaired, on 5 January 2025, a landslide occurred above 3 Penny Lane. It was triggered by water.

3.6 The January 2025 landslides

The 5 January 2025 landslide

309. Barely two years had passed since the November 2022 landslides when another landslide occurred, again, at the back of 10–12 View Point Road. This time, the landslide impacted 3 Penny Lane.
310. At around 7.30pm on 5 January 2025, Mrs Moran heard a rumbling sound that she thought was the beginning of a thunderstorm. She had just returned to her house with her daughter, Isabella, after having dinner with Mr Moran and their other children. She stepped out onto the balcony of the second floor of the house to collect washing that had been left there to dry, when the rumbling sound got louder and the house began to vibrate.⁴⁸⁵ Within moments, Mrs Moran heard her daughter yell “mum”, closely followed by the sound of what she now knows to have been dirt and debris smashing into the rear of the house.⁴⁸⁶ She told the Board of Inquiry “there was a lot of banging, like bang and rumbling and the house was moving, you could feel it”.⁴⁸⁷
311. When the movement stopped, Mrs Moran went to check on Isabella. They looked around and saw that the living room window was entirely obscured by a fallen tree and vegetation. To their left, the laundry door and cupboards had been pushed into the hallway, completely blocking access to part of the house.⁴⁸⁸
312. Mrs Moran was in shock. She told the Board of Inquiry that her daughter had been standing in the part of the hallway that the laundry door and cupboards had protruded into, only seconds before.⁴⁸⁹ Counsel Assisting asked Mrs Moran if Isabella “would have been in trouble” had she not moved from the hallway.⁴⁹⁰ She would have been. Mrs Moran said, “it’s just lucky that [Isabella] walked back” from where she had initially been standing.⁴⁹¹

FIGURE 3.33: PHOTOGRAPH TAKEN BY MR MORAN DEPICTING THE LAUNDRY DOOR AND CUPBOARDS ON THE SECOND FLOOR OF 3 PENNY LANE PROTRUDING INTO THE HALLWAY ON THE EVENING OF 5 JANUARY 2025.⁴⁹²

313. What Mrs Moran and her daughter had experienced was a landslide that brought between 20–25 tonnes of debris crashing into their house.⁴⁹³ It had a sub-vertical headscarp of up to 1.5 metres high and had evacuated materials, down to natural granitic soils, to its base.⁴⁹⁴
314. Mr Paul told the Board of Inquiry that:

315. The landslide occurred on a different part of the escarpment at 10–12 View Point Road to the November 2022 landslides.⁴⁹⁶ The depletion zone of the upper part of the earlier landslides was to the west of the location of the landslide that occurred on 5 January 2025.⁴⁹⁷
316. Unlike the earlier landslides, the 5 January 2025 landslide did not occur following heavy rain. Notwithstanding that, a significant portion of the headscarp was saturated and there was a measurable flow of water moving down the escarpment in the days that followed the landslide.⁴⁹⁸ In the immediate aftermath of the landslide, Mrs Moran saw water and mud on the ground near the laundry. She told Isabella, “we need to get out”, and they immediately left the house to contact emergency services.⁴⁹⁹
317. Mrs Moran dialled 000 and told the operator “I think there has been a landslide at my house”.⁵⁰⁰ She was transferred to the VicSES, and, by 7.50pm, a VicSES unit was en route to the house.⁵⁰¹
318. After speaking with the VicSES, Mrs Moran and Isabella climbed the external stairs to the right hand side of the house to see what had occurred.⁵⁰² Mrs Moran told the Board of Inquiry that it was very clear to her that land and vegetation had come down the escarpment, and that she could see water beginning to pool inside the house.⁵⁰³ Counsel Assisting asked Mrs Moran if she was concerned about the presence of water. She responded:

319. At 7.57pm, the VicSES recorded a second phone call with Mrs Moran, during which she reported that water was “rushing into the premises” and “running into the middle level of the 3 stories”.⁵⁰⁵ Mrs Moran was unable to turn off the power to the house and wanted advice as to whether she needed to take any action before the VicSES arrived. The call was marked “critical”.⁵⁰⁶
320. Mrs Moran then telephoned Mr Moran, who was driving back to Melbourne from McCrae. She told him there had been a landslide and that he needed to return.⁵⁰⁷ He immediately turned around to drive back to the house.⁵⁰⁸

Arrival of emergency services

321. The first VicSES unit arrived at 8.05pm, and it was quickly determined that there had been a “considerable land slip from property up above”.⁵⁰⁹ VicSES responders turned off power to the house and then began moving furniture away from the water running through the house.⁵¹⁰ They were also trying to determine whether the landslide had been caused by a burst pipe.⁵¹¹
322. Mr Moran arrived at the house shortly after and had a conversation with Mark Daw, VicSES Unit Controller (Sorrento), and several conversations with other VicSES responders. Mr Moran understood from those conversations that there had been “some sort of landslide or slip towards the back of the house” and that it had been assumed the water flowing through the house was coming from a burst pipe in or around the laundry. The VicSES were making arrangements with the various service providers, including SEW, to try to shut off the water.⁵¹²
323. Mr Daw mentioned to Mr Moran that the owner of 10–12 View Point Road, Mr Borghesi, was open to speaking to him about what had happened.⁵¹³ Mr Borghesi had learned of the landslide earlier that evening. He recorded in his diary that, between 6.30pm and 8.30pm, he observed: “mudslide and water flow north of veggie patch retaining wall and # 3 Penny Lane” which had “[taken] out # 3’s south laundry wall”.⁵¹⁴
324. At 8.20pm, Mr Daw telephoned the Shire’s Emergency Management Coordinator, Brett Fletcher, to inform the Shire about the landslide.⁵¹⁵ Mr Fletcher was delegated the role of the Shire’s Municipal Emergency Management Officer at the time.⁵¹⁶ He immediately contacted Dale Gilliatte, the Shire’s Manager of Community Safety, Health and Compliance, to relay what he had been told.⁵¹⁷ The Board of Inquiry has not received any documents evidencing Mr Gilliatte’s response to that phone call. However, Mr Simon told the Board of Inquiry:

325. At around 9.09pm, Mr Daw made a second telephone call to Mr Fletcher and asked that the Shire’s MBS contact him and attend the landslide site. At 9.15pm, Mr Fletcher telephoned Mr Glover to relay that request. Mr Glover made his way to the landslide site.⁵¹⁹
326. By 9.20pm, the VicSES had also informed SEW of the situation and recorded that SEW representatives were on their way to the landslide site.⁵²⁰ SEW recorded in its Montage system:

327. At 9.36pm, SEW assigned the issue the highest priority rating of 1,⁵²² which is typically reserved for safety-related tasks.⁵²³ SEW’s contractors were required to arrive on-site within one hour,⁵²⁴ and it appears they were in transit within that time.⁵²⁵
328. At around 10.11pm, David Goldfinch, the Regional Commander of the VicSES, arrived at the landslide site.⁵²⁶ Mr Goldfinch spoke to Mr Moran and suggested that he contact his insurance provider as soon as possible.⁵²⁷ Mr Moran then contacted RACV Insurance.⁵²⁸

Arrival of Shire and SEW representatives

329. VicSES’ records indicate that the first SEW representative arrived at the site at around 10.07pm. The SEW representative told the VicSES that they believed there was “a burst water main up top”, but they were unsure where it was located.⁵²⁹ SEW records indicate that Service Stream personnel conducted an “inspection” of the site at around 9.08pm to scope the works required and were actively working on-site by 11.25pm.⁵³⁰ The Board of Inquiry has not received any records clarifying the discrepancy in the timing or detailing the ‘inspection’ that was undertaken.
330. The first Shire representatives, Mr Glover and James (Jimmy) Jones, Building Inspector, arrived at the site at around 11.30pm.⁵³¹ Mr Glover told the Board of Inquiry that he spoke with Mr Daw, who told him that the VicSES had checked water meters in the area and found no signs of water loss. Mr Glover also recalled Mr Daw telling him that SEW had “informed the SES that there were no water leaks from the water main and water tests [had] been taken”.⁵³²
331. At 12.33am, the VicSES recorded:

332. Mr Moran told the Board of Inquiry that when he left the site late on 5 January 2025, the VicSES and SEW were still trying to locate the source of water running through the house.⁵³⁴ Whilst Mr Moran had no intention of staying in the house given the extent of the damage, he was not issued with an Emergency Order.⁵³⁵
333. Mr and Mrs Borghesi had been given “permission” to remain in their house overnight.⁵³⁶
334. From that night, the Morans’ property became a hub of activity. Representatives from the VicSES, the Shire, SEW, RACV, and geotechnical firms all converged on the landslide site.
335. Amidst the activity in the nine days following the landslide, two truths became clear: there was water inexplicably flowing out of the escarpment above the Morans’ house and the threat of another landslide was growing as the water continued to flow.

The next day, 6 January 2025

336. At around 7.00am the following morning, on 6 January 2025, VicSES responders returned to the site.⁵³⁷ They were joined shortly after by Mr Marsh from SEW,⁵³⁸ and noted that SEW was trying to confirm whether there were “any issues up the hill”.⁵³⁹ Mr Marsh inspected the landslide site from the rear of the Morans’ property, before speaking with Mr and Mrs Borghesi at their house and climbing down the embankment to take a water sample.⁵⁴⁰
337. Later in the morning, Mr Marsh sent an email to Mr Swain and others stating that water was “running down the washed away embankment” and that the Borghesis were “having issues with retaining walls leaning, etc”.⁵⁴¹ Mr Marsh confirmed that he had arranged for Detection Services to survey the area and that he would take the samples he had obtained that morning to ALS, a company that carries out water testing. In respect of the landslide, he commented:

338. Counsel Assisting asked Mr Marsh what he meant by that statement. Mr Marsh responded:

339. Counsel Assisting asked Mr Marsh whether, to his mind, there may have been a link between the burst water main, the water surfacing around Waller Place, and the landslide that had occurred on 5 January 2025. Mr Marsh replied:

340. Mr Marsh told the Board of Inquiry that although he found some “minor” leaks in the vicinity of the landslide, he did not find “anything substantial anywhere”.⁵⁴⁵
341. In the meantime, at 8.02am, Mr Glover contacted Renae Littlejohn, the Shire’s Director - Planning and Environment at the time, and Rory MacDonald, Manager - Development Services, stating:

342. Mr Glover gave them a photograph of the damage to the rear of the Morans’ property.⁵⁴⁷

FIGURE 3.34: PHOTOGRAPH OF THE REAR OF 3 PENNY LANE FOLLOWING THE 5 JANUARY 2025 LANDSLIDE.⁵⁴⁸

343. Around the same time, Mr Glover contacted Mr Pope of PSM for assistance. Mr Glover told the Board of Inquiry that he was concerned about controlling the water flowing under the Morans’ property, and that he knew Mr Pope had experience dealing with the earlier landslides in 2022.⁵⁴⁹
344. At 10.09am, Zelie Foley, Coordinator, Office of the MBS, sent Mr Glover and Mr Flores documents relating to the most recent building permit issued for 3 Penny Lane and noted that she was trying to track down the original permits for the property. Mr Glover forwarded Ms Foley’s email to Mr Pope.⁵⁵⁰
345. During the morning, Mr Borghesi also contacted the Shire about the landslide. He told Mr Flores by text message:

346. Mr Borghesi contacted Maw Civil to inform them of the landslide and to arrange for a representative to attend his property to inspect the retaining wall.⁵⁵² At 10.45am, a Maw Civil representative attended the property and confirmed he had no concerns about the integrity of the retaining wall “unless undermining occurs”.⁵⁵³
347. At around midday, Mr Moran returned to the house. He told the Board of Inquiry that the sandbags the VicSES responders had installed were preventing water from entering the house, but that the flow of water had not ceased, or even decreased, from the previous night.⁵⁵⁴
348. Mr Glover and Mr Jones arrived at the Morans’ property shortly after and carried out a further inspection.⁵⁵⁵ Mr Glover told the Board of Inquiry:

FIGURE 3.35: PHOTOGRAPH OF SCOUR LINES UNDERNEATH 3 PENNY LANE.⁵⁵⁷

349. At around 1.00pm, it was recorded in SEW’s Montage records that various tests had been carried out at and around 10–12 View Point Road, including:
     1. “checked FP at #10 View Point Rd no noise”;
     2. “Tested water running down SW [(stormwater)] pit is not in mains range 286SL”;
     3. “Checked the 25mm meter at #10 no noise is not ticking over”; and
     4. “Valve for view point id #362909 was buried located with yellow wand marked and painted. Shut valve no noise opened valve no noise”.⁵⁵⁸
350. A SEW representative also inspected the Morans’ property and reported:

351. At 1.02pm, the same SEW representative recorded:

352. By 2.00pm, Mr Pope had arrived at the Morans’ property and carried out an inspection. He then accompanied Mr Glover, Mr Jones and Mr Daw to 10–12 View Point Road to inspect the escarpment.⁵⁶¹ Following those inspections, Mr Glover asked Mr Pope to prepare a preliminary assessment of the situation.⁵⁶²
353. At around 2.00pm, the VicSES handed over control of the site to the Shire.⁵⁶³
354. Mr Glover told the Board of Inquiry there was no “formal transfer of control” of the site from the VicSES to the Shire; the VicSES simply deactivated its role and function as the Incident Controller of the site.⁵⁶⁴ Mr Glover did not provide any further detail as to why the VicSES deactivated its services. He personally thought the VicSES should have remained as the Incident Controller after 6 January 2025.⁵⁶⁵
355. At 3.51pm, the VicSES recorded that Mr Glover was “TAKING ONUS” of the landslide site, and by 5.30pm, Mr Daw told Mr Borghesi that control of the site was with the Shire.⁵⁶⁶ Mr Borghesi recorded the following view in his diary: “right people involved, council appearing to take responsibility”.⁵⁶⁷
356. At some point in the afternoon, Mr and Mrs Willigenburg met Mr and Mrs Moran for the first time. Mr Willigenburg told the Morans that he had noticed the drains at the bottom of Penny Lane filling with water in December 2024 and had reported this to the Shire on 16 December 2024. He said that he considered the drains filling to be unusual in circumstances where there had been no rain.⁵⁶⁸ Mr Moran relayed that information to Mr Glover, but Mr Glover was not aware of Mr Willigenburg’s report.⁵⁶⁹

The second day after the landslide, 7 January 2025

357. On the morning of 7 January 2025, Mark Finningham of Midcity Group, an assessor appointed by RACV, met Mr Moran at his house to conduct an inspection.⁵⁷⁰ Mr Finningham recorded in a document that he heard movement at the property and decided it was safer to leave. He reportedly advised Mr Moran not to re-enter the house until it was deemed safe to do so.⁵⁷¹
358. Mr Finningham prepared a preliminary report deeming the Morans’ property to be “extremely unsafe and unstable”.⁵⁷² He stated: “Due to the amount of debris, I believe there is a chance that further movement could occur, and more damage to the property would be immediate.”⁵⁷³
359. Mr Finningham also escalated the matter to David Jones, Construction Manager at Midcity, who requested that a Technical Assessor be appointed to manage the matter “due to the immediate risk of complete structural failure” at the property.⁵⁷⁴ Sue Scoble was appointed to that role by the RACV, and made arrangements to meet with Mr Moran at his house on 9 January 2025.⁵⁷⁵
360. A note in the RACV’s internal system on 7 January 2025 stated that the landslide:

361. Whilst Mr Finningham was inspecting the Morans’ property, a representative from Maw Civil attended the Borghesis’ property.⁵⁷⁷
362. Mr Borghesi recorded that Maw Civil had “no concerns” about the retaining wall on View Point Road but was concerned about the amount of water flowing down the escarpment. Mr Borghesi noted:

363. The same day, Mr Glover prepared a Significant Incident Notification for Ms Littlejohn and Mr MacDonald regarding the landslide in which he notified them that:
     1. around 20–25 tonnes of material had been dislodged during the landslide, and there were “another 10-15 tonnes of material, a concern that will be let go at any time”;
     2. there was structural damage to the rear of the Morans’ property “including movement of piers in a concentrated area”. The rear external wall of the centre of the dwelling was “unsafe and unstable”, and an underfloor inspection of the house indicated that “the water problem has been an ongoing matter for some time”; and
     3. the water flow rate from the headscarp at 10–12 View Point Road was around 200 millilitres per second based on “a very rough water bottle test”. SEW had taken water samples for testing and although the results of those tests were pending, SEW had confirmed there were no leaks in the water mains.⁵⁷⁹
364. The Significant Incident Notification stated that the Office of the MBS was undertaking water tracing and other investigations, and that PSM (Mr Pope) had been engaged to assist the MBS. It stated:

365. Separately, Ms Littlejohn sent an email to Mayor Anthony Marsh and the Shire’s Acting CEO, Bulent Oz, stating that the MBS had been dealing with the landslide since the VicSES handed over control of the site to the Shire the previous day. She stated that “appropriate action” was being taken to “manage the site”, but she did not elaborate on what that action entailed.⁵⁸¹ While Mayor Marsh and Mr Oz both responded to Ms Littlejohn’s email the next day, they did not seek further information concerning the actions being taken to manage the site.⁵⁸²
366. Mr Glover otherwise spent the morning of 7 January 2025 reviewing the Shire’s customer complaint system to identify any reports relating to Prospect Hill Road and/or View Point Road. He told the Board of Inquiry:

367. Those searches revealed that several reports had been made in relation to the Shire’s stormwater drainage network in the vicinity of Prospect Hill Road and View Point Road between 1997 and 2023.⁵⁸⁴
368. Mr Glover also exchanged correspondence with Mr Pope in respect of building permits for both 3 Penny Lane and 10–12 View Point Road. This appears to have been prompted by an email from Mr Pope at 10.02am, requesting structural drawings of the “Borghesi retaining wall” and any feature surveys associated with it. Mr Pope stated in that email: “It seems they placed a fair amount of fill onto the escarpment to build it. They also had to remove a bunch of trees to build that section of landscaping”.⁵⁸⁵
369. That afternoon, Mr Glover sent Mr Pope and Mr Flores various permits and planning approvals for the Morans’ property, dating back to the 1970s.⁵⁸⁶ Mr Pope commented that it was “very interesting to see the 1987 complaint regarding seepage”.⁵⁸⁷ In the emails that followed, Mr Glover noted, “[t]he old septic trench was interesting in location??? The first land slip side. The contour line has changed a lot over time. Including the veg and the once live gum tree”.⁵⁸⁸ Mr Pope responded, “[l]ess than ideal location”.⁵⁸⁹
370. At 3.50pm on 7 January 2025, Mr Flores confirmed, via email to Mr Pope and Mr Glover, that he had inspected the landslide site that day and had sent photographs and videos to Mr Pope. He told Mr Pope and Mr Glover that he and Mr Jones had placed plumber’s dye into the stormwater pits upstream of 10–12 View Point Road but could not see any traces of the dye in the area of the landslide. He also commented that “the amount of water flow has possibly increased at the base”.⁵⁹⁰
371. Mr Flores told the Board of Inquiry that the water he observed caused him concern.⁵⁹¹ Mr Flores explained that he had not considered whether measures should be taken to divert the water, nor did he raise those issues with anyone at the time, because the investigation was being led by Mr Glover. He noted he would generally seek advice from someone “suitably qualified” to advise on those matters, such as a geotechnical engineer.⁵⁹²
372. Mr Borghesi recalled Mr Flores and Mr Jones carrying out dye testing on 7 January 2025. He had sent a text message to Mr Flores at around 1.15pm that afternoon, stating:

373. At 4.41pm, Mr Flores responded to Mr Borghesi’s text message to confirm the Shire was awaiting advice from Mr Pope and that he would pass on the borehole recommendation.⁵⁹⁴
374. Mr Borghesi told the Board of Inquiry that he and Mr Flores had:

375. When Counsel Assisting asked Mr Flores if anyone had raised with him the concept of inserting spear pumps to divert water, Mr Flores responded “Mr Borghesi may have raised that at some point in time”. When asked whether he would have passed that suggestion on to someone else, he stated:

376. The Shire has confirmed it has not located correspondence from Mr Flores to anyone passing on Mr Borghesi’s suggestion.⁵⁹⁷ Irrespective of whether Mr Borghesi’s suggestion was passed on, the fact remains that it was not actioned by the Shire.
377. At some point between 10.00am and 2.30pm, Mr Swain and Mr Marsh of SEW attended 10–12 View Point Road and saw water still trickling down the escarpment. Mr and Mrs Borghesi told them there had not previously been water flowing from that point on the escarpment.⁵⁹⁸ Mr Swain made notes in relation to the visit, recording:

378. Mr Swain and Mr Marsh walked further up onto Prospect Hill Road, accompanied by Mr Borghesi, and saw a significant flow of water inside a stormwater drain located on Prospect Hill Road. Mr Borghesi told them the water was from properties along Prospect Hill Road that had groundwater pumps. They later met with the owners of 5 Prospect Hill Road, who told them that the sump pump in their basement had started to pump more frequently around a month earlier.⁶⁰⁰ Mr Swain recorded that the “pump discharges [water] into the [k]erb and channel”, which in turn is connected to a “closed stormwater drain that connects to the drain in View Point Road”.⁶⁰¹
379. Mr Swain also noted that he had observed a significant wet area in front of 6 View Point Road, but that this had been surveyed multiple times by leak detection, and no leak had been found.⁶⁰²
380. At 5.30pm on 7 January 2025, Mr Pope provided Mr Glover with his preliminary risk assessment and risk to life assessment in relation to the landslide.⁶⁰³ He stated that he had observed unstable zones near the headscarp in the order of three to six cubic metres, on the southwestern flank of the landslide. He also stated:

381. Mr Pope expressed the view that it was not necessary for the Willigenburgs to take any actions with respect to their rental property at 607–609 Point Nepean Road. However, while the causes of the landslide were being investigated, he advised that the Borghesis and the Morans should take certain steps to mitigate the risk of any further landslide activity at 10–12 View Point Road and 3 Penny Lane. Specifically, he recommended that:
     1. the Borghesis monitor the slope immediately behind the failure for any signs of change or deterioration, and cease watering the garden in the vicinity of the landslide. Mr Pope also recommended that the Borghesis place surficial cut off bunds with coir logs or sandbags behind the retaining wall to direct surface water away from the headscarp, and seek advice from their engaged geotechnical engineer to “make safe as best as is practical”;⁶⁰⁵ and
     2. the Morans monitor the slope immediately behind the house for signs of change and/or deterioration, and take steps to:
        1. remove the mud from between the house and the rear of the retaining wall. Mr Pope noted that the mud upslope of the retaining wall should not be disturbed, but recommended that the Morans proceed with caution in “areas of potentially unstable walls of the dwelling”. He suggested they seek further advice if the retaining wall had collapsed;
        2. divert surface water around the dwelling using hand cut off drains, coir logs or sand bags, and install a secondary cut off drain under the deck. This would involve digging by hand and installing weep holes in the northern most retaining wall; and
        3. install one or two ballasted shipping containers in the northern most section of lawn. He stated that further advice should be obtained to detail the design.⁶⁰⁶
382. Mr Pope noted that each property owner should take the recommended steps with “the support of Geotechnical Engineers who are experienced in mitigation of landslide hazards”.⁶⁰⁷ Mr Pope included the following image showing his recommendations:

FIGURE 3.36: AERIAL PHOTOGRAPH ON WHICH MR POPE MARKED WHERE CERTAIN ACTIONS WERE TO BE TAKEN BY THE BORGHESIS AND THE MORANS.⁶⁰⁸

383. Later that evening, Mr Glover forwarded Mr Pope’s preliminary risk assessment to Ms Littlejohn and Mr MacDonald, noting he would review it in more detail the following day, before approaching the Borghesis and the Morans. He wanted to understand “the bigger picture, including where the water [was] coming from”.⁶⁰⁹ Ms Littlejohn confirmed:

384. The Board of Inquiry does not have any evidence of a response by the Mayor.
385. Mr Simon of the Shire told the Board of Inquiry:

The third day after the landslide, 8 January 2025

386. In the morning of 8 January 2025, Mr Glover sent a further email to Ms Littlejohn, Mr MacDonald and Mr Flores, copying several others. He adopted the action items that Mr Pope had formulated for 10–12 View Point Road and 3 Penny Lane (described above) and stated that he considered those actions to be reasonable to protect the life and safety of the surrounding property.⁶¹² He said he would discuss the action items with both affected parties.⁶¹³
387. Mr Glover went on to explain that the MBS was also required to issue “the necessary enforcement/s” on the Borghesis for having constructed a retaining wall exceeding 1 metre in height, without a building permit, and to notify the planning compliance area to investigate the works undertaken at the Borghesis’ property, including the placement of fill. Further, he would need to issue enforcement action on the Morans to undertake the preliminary works required to protect life at both their property and the Willigenburgs’ rental property at 607–609 Point Nepean Road.⁶¹⁴
388. He otherwise reported that the trace-dye testing undertaken on 7 January 2025 indicated that the water source was not the Shire’s drainage assets and that no further action was required in that regard.⁶¹⁵
389. The Shire has not located a response from Ms Littlejohn, Mr MacDonald, or Mr Flores to this email.⁶¹⁶
390. Mr Glover subsequently prepared an ‘Actions Items’ document, recording the information and action items set out in Mr Pope’s preliminary risk assessment, for provision to the Morans, the Borghesis and the Willigenburgs.⁶¹⁷
391. In the meantime, the Moran family had arrived at their property at around 9.30am. The Morans, with the assistance of some friends, spent the day removing some of their belongings from the house because they had been notified that their contents were not insured and water continued to enter the house.⁶¹⁸ They had not received an Emergency Order prohibiting them from entering the house, nor were they aware of Mr Pope’s assessment that being at the house presented an unacceptable risk to life.
392. On the same day, Mr Flores and Mr Jones were again on-site conducting trace-dye testing of the Shire’s stormwater drainage and road kerb collectors. Mr Glover explained that the purpose of the testing was to ascertain whether the Shire’s stormwater drainage had been compromised, as part of the efforts to locate the source of the water.⁶¹⁹ Mr Flores and Mr Jones reported to Mr Glover that they had not seen any trace-dye flowing from the kerb collector at 2 View Point Road (facing Prospect Hill Road) to the stormwater pit on the corner of View Point Road and Prospect Hill Road.⁶²⁰
393. At around lunchtime, Mrs Moran looked on the McCrae Village Community Group page on Facebook and saw several posts from residents made in December 2024 about a large pothole on Charlesworth Street that had been filling with water. Given the water issues at the Morans’ property, this piqued Mrs Moran’s interest and Mr Moran forwarded screenshots of the posts to Mr Glover.⁶²¹
394. Shortly thereafter, Mr Glover sent those screenshots to Mr Pope, stating “[m]aybe cause. Not sure on this street location as I need to look”.⁶²² Minutes later, Mr Glover then sent an email to Mr Pope, Mr Flores and Mr Jones, providing the screenshots. Mr Glover also embedded in the email a map of McCrae, on which he appears to have drawn a black line showing the location of the Charlesworth Street pothole vis-a-vis the landslide. He stated, “[i]nteresting. Water leak from Charlesworth St. pre-xmas leave”.⁶²³
395. In the early afternoon, Mr Flores responded to Mr Glover’s email without copying Mr Pope. He stated:

396. Mr Glover replied suggesting that they test the water coming from the landslide area and the leak on Charlesworth Street. Mr Flores then sent an email to Peter O’Brien, Team Leader of Environmental Health at the Shire, explaining that the Shire was trying to establish the source of the water flowing from the escarpment. Mr Flores noted they had ruled out that the water was from a Shire drainage asset and that they “suspect[ed]” it could be from a leaking water source, such as the leak on Charlesworth Street. He requested that a water sample be collected and tested to determine if it was drinking water.⁶²⁵
397. Later in the day, Mr Glover sent a further email to Mr Pope, suggesting that there could also be a “hydrant ground-ball leak”. He included a map with two hydrant sites highlighted and confirmed he would take tools to the site with him the following day to inspect it.⁶²⁶
398. Mr Borghesi had continued to monitor the flow of water on the escarpment over the course of 8 January 2025 and sent Mr Flores a text message at 1.49pm that day, stating:

399. Mr Borghesi told the Board of Inquiry that the water was “fluctuating a little bit. It would sometimes abate and then it would increase”.⁶²⁸

The fourth day after the landslide, 9 January 2025

400. Four days on from the landslide and unexplained water was still running out of the unstable headscarp. No work was undertaken by anyone on or around the headscarp to reduce the risk of a further landslide.
401. The Shire did not re-engage with the VicSES to seek an emergency response to the threat of a further landslide caused by water continuing to infiltrate the unstable headscarp. The Shire did not otherwise set up an emergency response.
402. Instead, SEW and the Shire (through its MBS, Mr Glover) continued to separately investigate whether the water infiltrating the headscarp was emanating from their own respective assets. Mr Glover also continued to perform his separate MBS duties, namely suggesting to the Morans and the Borghesis that they act on Mr Pope’s recommendations to mitigate the risk of a further landslide (as described below).

The search for the water source continues

403. At 7.42am, Mr Marsh sent an email to Mr Swain and others at SEW reporting that he had spent the previous two days checking stormwater drains and services around Waller Place and Bayview Road, including the WR174 water tank site, air valves and hydrants. He had also taken a sample from a stormwater pit located outside 6 Waller Place and delivered it to ALS for testing. He noted that Detection Services were on-site, surveying the zone “from Bayview Road up”.⁶²⁹
404. At 8.41am, Mr Pope responded to Mr Glover’s emails of the previous day stating that he was “[f]ully supportive of running to ground any man-made sources of water”. He stated:

405. At around 9.00am, Ms Scoble of RACV met the Morans at their property, together with an engineer from Clear Engineering.⁶³¹ Ms Scoble saw a “steady stream of water coming from the property” and noted that “water running down the hill” was visible from the rear of the property. She recorded:

406. Ms Scoble took this photograph of the running water:

FIGURE 3.37: PHOTOGRAPH TAKEN OF THE WATER FLOWING FROM 3 PENNY LANE DOWN PENNY LANE BY MS SCOBLE ON 9 JANUARY 2025.⁶³³

407. Derek Rotter, Manager – Infrastructure Projects at the Shire, had also driven past the landslide site on his way to work and noticed water flowing down Penny Lane. He sent an email to Acting CEO Mr Oz, Ms Littlejohn, Mr MacDonald and others stating:

408. He included the following photograph of the flow of water and silt travelling out of the driveway of the Morans’ property and onto Penny Lane:

FIGURE 3.38: PHOTOGRAPH TAKEN BY MR ROTTER OF THE WATER FLOWING FROM THE DRIVEWAY OF 3 PENNY LANE DOWN PENNY LANE ON 9 JANUARY 2025.⁶³⁵

409. Mr Rotter suggested that residents in the area be asked to turn off their water supplies one by one, to try to eliminate sources of water, and that this be overseen by the Shire “to reduce our risk and identify where the source is coming from”.⁶³⁶ Later that day, Mr Oz asked Ms Littlejohn if she could arrange this. Ms Littlejohn responded that Mr Glover and his team were monitoring the situation carefully and that she would take advice from them.⁶³⁷

Reponses to the unexplained water

410. Notwithstanding Mr Rotter’s concerns that the significant water flow indicated that “the land has a significant high-risk of slipping again”, the Shire did not change its approach. None of the Shire’s responses to Mr Rotter’s email engaged with the question of whether the situation now warranted an emergency response.
411. Instead, Mr Glover attended the Morans’ house and gave Mr Moran the Action Items list that he had prepared the day before.⁶³⁸ Mr Glover, Ms Scoble, and the Morans stood in the living room on the second floor to discuss the actions required.⁶³⁹ This was in circumstances where the Shire had Mr Pope’s opinion that being on the property presented an unacceptable risk to life.
412. Mr Glover told the Board of Inquiry that he told the Morans the recommended actions were for the purpose of “mitigat[ing] the risk of a further landslide”.⁶⁴⁰ The Morans told the Board of Inquiry that they understood the Shire’s primary concerns to be dealing with the flow of water through their property and removing the buildup of debris from behind their property.⁶⁴¹
413. Mrs Moran recalled Mr Glover explaining that the weight of the dirt and rubble behind their home could become too heavy for their house to bear.⁶⁴² She also told the Board of Inquiry:

414. Similarly, Mr Moran remembered Mr Glover saying words to the effect that he was concerned the dirt would have nowhere to go if there was another landslide.⁶⁴⁴ He told the Board of Inquiry that in any event, he and Mrs Moran “just didn’t have the expertise to fully understand exactly what they [the Shire] were trying to achieve … And Sue, the assessor, certainly took over”.⁶⁴⁵
415. Following the meeting, Ms Scoble recorded that the Shire wanted the soil and debris to be removed from behind the Morans’ property within the week, and a water diversion system put in place. In addition, shipping containers and traffic bollards filled with water were to be installed on a 100-degree angle against the front retaining wall early the following week.⁶⁴⁶
416. Over the course of the morning, Mr Borghesi also continued to update Mr Flores about the continued flow of water at the site. He sent a text message to him at 10.51am as follows:

417. Mr Borghesi did not receive a response to his text message. The Shire has informed the Board of Inquiry that Mr Flores went on annual leave on 9 January 2025, and did not return until 14 January 2025.⁶⁴⁸ It is apparent that Mr Borghesi was unaware that Mr Flores was on leave, and so continued to update Mr Flores as he had been asked to by the Shire.
418. Shortly before lunch, Mr Glover met with the Borghesis at their house and provided them with a copy of the Action Items list.⁶⁴⁹ Mr Borghesi understood from that meeting that the Shire was focused on ensuring resident safety and identifying the source of the water flowing from the escarpment. He recorded in his diary that the “plan” was to take water samples, estimate flow rates, and check fire hydrants.⁶⁵⁰
419. In relation to him giving the Action Items to the Morans and Borghesis, Mr Glover told the Board of Inquiry:

420. Mr Glover did not explain why the Shire’s response was limited to directing residents to take actions, rather than also seeking an emergency response from the VicSES – even though water was continuing to infiltrate the unstable headscarp and there was the threat of a further landslide, which Mr Rotter of the Shire had assessed as “a significant high-risk”.⁶⁵²
421. After giving the residents responsibility to take actions (including diverting surface water away from the headscarp), Mr Glover and Mr Jones then went about taking further water samples for chemical analysis.⁶⁵³
422. Mr Glover spoke with the resident of 1 Waller Place, located on the corner of Charlesworth Street, who told him that residents had been reporting the water leak in that vicinity to the Shire and SEW from as early as September 2024 and throughout December 2024.⁶⁵⁴ Mr Glover said to Mr Jones at that point, “this could be the cause, to 10–12 View Point”.⁶⁵⁵ They continued to track the flow of water by walking the streets down Coburn Avenue. They “lost the water” at the intersection of Coburn Avenue and Prospect Hill Road.⁶⁵⁶
423. Mr Glover told the Board of Inquiry that after seeing the leak in Charlesworth Street, he thought it may have been causing “the extent of water in the slope”. However, the Shire’s testing remained inconclusive: the trace-dye the Shire had used was not emerging in the stormwater drainage from around 2 View Point Road to the corner drainage pit. Accordingly, Mr Flores asked the Shire’s Environmental Health team to assist with arranging sample bottles of water to be tested.⁶⁵⁷
424. After lunch, Mr Glover sent an email to Ms Littlejohn and Mr MacDonald to relay the steps he had taken that day.⁶⁵⁸
425. None of the Shire’s trace-dye, water sampling tests or inspections had identified the cause of the water discharge on the escarpment, leading Mr Glover to comment that “the water source could just be a natural spring”. He noted that if that were the case, the State Government would need to be contacted.⁶⁵⁹ He told the Board of Inquiry that he was not certain there was a natural spring, and that he relied on his direct report and Director to communicate his update to the necessary parties.⁶⁶⁰
426. Mr Glover otherwise confirmed that the Office of the MBS would continue to inspect the site conditions daily during the working week. He stated:

427. In the early afternoon, Mr Borghesi contacted Dan Tolan, Geotechnical Engineer at CivilTest, to discuss the Action Items list. He was told to seek Maw Civil’s advice as to what works could be safely actioned to stabilise the headscarp. Mr Borghesi then contacted Maw Civil and a representative attended the property later in the afternoon.⁶⁶²
428. Around this same time, Mr Borghesi observed that the water flow from the escarpment had increased. He was concerned the water flow was continuing to erode the headscarp and compromising the stability of a gum tree. He recorded in his diary: “small landslip at head of scarp and crack appearing south of gum tree”, and sent Mr Flores a text message stating, “Claude, a small amount of soil (0.5m3) collapse from near the gum tree, the tree is at risk”.⁶⁶³

FIGURE 3.39: PHOTOGRAPH TAKEN BY MR BORGHESI SHOWING THE COMPROMISED TREE ON 9 JANUARY 2025.⁶⁶⁴

429. Mr Borghesi also notified Mr Glover of these concerns at around 3.30pm. He made a further record in his diary regarding this communication, noting: “apparently they have ruled out leaking hydrants and did water testing – should have results back next week”.⁶⁶⁵
430. By early evening, Ms Scoble had arranged for a builder to attend the Morans’ property the following day to carry out the water diversion works set out in the Action Items list, “under strict supervision due to site hazards”.⁶⁶⁶ She had also arranged for a plumber to attend the property to try to ascertain where the water was coming from, noting “the flow of water is constant, which is more than there would be if it was coming from a natural spring”.⁶⁶⁷ She recorded:

The fifth day after the landslide, 10 January 2025

431. Five days on and the unexplained water was continuing to flow from the headscarp (albeit at a reduced rate of 5 litres per minute),⁶⁶⁹ increasing the already significant risk of a further landslide.
432. The Shire did not change its approach to the heightened threat.
433. First thing in the morning, Mr Glover met Mr Moran at his house. They were joined by contractors, Mr Jones from Midcity and Ms Scoble, who wanted to ensure that all parties “were on the same page” as to what works were to be undertaken.⁶⁷⁰ Mr Glover told the contractors what the Shire was expecting in respect of the water diversion plan, namely, the removal of decking and the installation of a pipe underneath the house.⁶⁷¹
434. The plumbers who had been engaged by Ms Scoble the previous day also attended the property to investigate the source of the continuous flow of water.⁶⁷² They told Ms Scoble that they had located a pipe underneath a retaining wall at 10–12 View Point Road, and they believed the water flowing down the escarpment to be emanating from that pipe. It is said that they gave photographs to Ms Scoble,⁶⁷³ but no such photographs have been produced to the Board of Inquiry.
435. The contractors, Midcity, made this note of the discussions on-site:

436. Throughout the afternoon, the contractors installed pipes under the house to divert the water.⁶⁷⁵ The solution was short-lived. By the next day, it would fail.
437. In the meantime, while the contractors worked, Mr Glover conducted a further inspection of road kerb collectors and stormwater pits, and carried out further trace-dye testing, to determine whether the Shire’s stormwater drainage had been compromised.⁶⁷⁶ Mr Glover told the Board of Inquiry:

438. He then sent Mr Pope the following text message:

439. Around lunchtime, Mr Glover sent photographs of the landslide site to Mr Pope.⁶⁷⁹ The flow of water down the escarpment was clearly visible.

FIGURE 3.40: PHOTOGRAPH TAKEN BY MR GLOVER SHOWING THE FLOW OF WATER ON THE ESCARPMENT ON 10 JANUARY 2025.⁶⁸⁰

440. In the afternoon, Mr Borghesi sent an email to Mr Glover, attaching a document prepared by Maw Civil outlining a proposed “methodology and stabilisation scope of works”.⁶⁸¹ Maw Civil stated that while the proposed works involving the installation of rock bags would not resolve the issue, it was hopeful that the works would prevent the earth from further slippage.⁶⁸²
441. Mr Borghesi asked Mr Glover to provide any comments on the proposal as the work was intended to commence the following week.⁶⁸³ Mr Tolan, from CivilTest, was to review the proposed scope of works concurrently.
442. Mr Borghesi also asked the Shire to provide continued updates on the identification of the source of the water flow and actions being taken to redirect or manage the water flow on the Borghesis’ property.⁶⁸⁴
443. Later that evening, Mr Borghesi made an emergency call to the Shire, the nature of which was recorded by the Shire as a “slide at the property”. Records indicate that the call was with Mr Glover.⁶⁸⁵ Mr Borghesi told the Board of Inquiry that he made a phone call to Mr Flores at around 7.35pm and to Mr Glover at around 9.00pm on 10 January 2025.⁶⁸⁶ He could not recall details of what was discussed.

The sixth day after the landslide, 11 January 2025

444. The unexplained water was continuing to run six days after the landslide.
445. Mr Moran visited his property on 11 January 2025 and observed that the flow of water had not decreased or altered since the landslide,⁶⁸⁷ and that there was water breaching the retaining wall at the front of his property.⁶⁸⁸
446. He sent photographs to Ms Scoble.⁶⁸⁹ Ms Scoble sent a text message to Mr Jones of Midcity to advise him that the “make-safe around the front retaining wall to prevent runoff to the front neighbouring property” was no longer effective. She told him that water and silt were washing down the cliff face and back over the retaining wall, such that it required attention. She asked him to address the issue.⁶⁹⁰
447. Ms Scoble sent a further text message to Mr Jones later in the day to follow up on her request, but she received no response.⁶⁹¹
448. In the meantime, Mr Borghesi noticed further movement on the escarpment. He told the Board of Inquiry:

449. Counsel Assisting asked Mr Borghesi if it was fair to say that he was “actively concerned” there might be a further failure of the slope. Mr Borghesi replied, “Absolutely, categorically”.⁶⁹³ When asked if he considered the source of the water to be the most significant issue to be dealt with at that time, he stated:

The seventh day after the landslide, 12 January 2025

450. One week after the landslide, on 12 January 2025, John Bolch, a local resident and licensed and registered commercial plumber, observed a constant stream of water flowing along the west side of the Morans’ property, down Penny Lane and towards the spoon drain on Point Nepean Road. He described the water as being “bordered by a fine silty sand, which appeared to have been brought down the slope by the water”, and noted that he saw a significant amount of water flowing from underneath the Morans’ house and over the lower retaining wall in front of their house.⁶⁹⁵ He told the Board of Inquiry:

451. Mr Bolch was surprised by the volume of water because it had been a “particularly dry summer”.⁶⁹⁷ He considered the presence of water to be related to the landslide on 5 January 2025, because he knew that landslides typically need a lot of moisture for the soil or other material to become heavy enough to slide.⁶⁹⁸
452. Mr Bolch was curious to understand the source of the water and spent the afternoon driving around the local area with his wife.⁶⁹⁹ He saw water running down the kerbs along both sides of Charlesworth Street and saw that the road surface at the intersection of Coburn Avenue and Charlesworth Street was cracking and spongy with water. He was not able to locate the source of the water.⁷⁰⁰
453. In the afternoon, at around 2.36pm, Ms Scoble sent an email to Mr Jones of Midcity, attaching the text messages she had sent him the previous day.⁷⁰¹ She wanted to ensure he would arrange for someone to attend to deal with the water diversion at the Morans’ property, particularly given the wet weather. She stated:

454. Mr Jones arranged a meeting at the site for the following morning.⁷⁰³
455. Mr Borghesi also recorded in his diary that there had been rain and lightning and:

456. He took this photograph:

FIGURE 3.41: PHOTOGRAPH TAKEN BY MR BORGHESI OF THE RETAINING WALL FAILING ON 12 JANUARY 2025.⁷⁰⁵

The eighth day after the landslide, 13 January 2025

457. By the second week after the landslide, the water was still flowing and the headscarp was, unsurprisingly, even more unstable.
458. In the morning of 13 January 2025, Mr Glover sent several photographs of the headscarp to Mr Pope, which appear to have been taken from 6 View Point Road. They exchanged the following text messages:

459. Again, the Shire did not re-engage with the VicSES to seek an emergency response to the imminent landslide.
460. The Shire did not take the steps suggested by Mr Borghesi, namely, to dig a trench or put spears in View Point Road to try and intercept the water before it emanated from the headscarp, nor did SEW take those steps.
461. The water continued to infiltrate the headscarp.
462. At 9.50am, Mr Moran telephoned Ms Scoble to ask for an update on what was being done to repair the water diversion issue at his house. Ms Scoble confirmed that a builder would be attending that day. She noted she was otherwise still awaiting an engineer’s report and would update Mr Moran once she received it.⁷⁰⁷
463. Shortly after, Mr Moran sent a text message to Mr Glover to enquire as to whether the rainfall the previous night had affected the water flow through his property. Mr Moran recalls receiving a telephone call from Mr Glover, during which they discussed the overnight rain and whether arrangements had been made for shipping containers to be brought onto his property.⁷⁰⁸
464. About an hour later, Mrs Moran contacted Ms Scoble to tell her that Mr Glover had foreshadowed issuing a Building Order if work to remove the soil on their property was not undertaken. Ms Scoble recorded:

465. Ms Scoble telephoned Mr Glover to tell him that she was waiting on quotes for the removal of the soil and debris. She also told Mr Glover that the water leakage needed to be stopped first. She said that the longer it went on, the more likely further soil would “drop” which could “take out the props as well and cause the roof to collapse”. Ms Scoble noted that Mr Glover was surprised by that comment.⁷¹⁰
466. In the same conversation, Mr Glover told Ms Scoble that he understood from Mr Moran that the plumbers who had attended the site had located a cracked pipe. Mr Glover requested drawings to determine the location of the pipe, and Ms Scoble subsequently contacted Mr Jones of Midcity to ask for those drawings.⁷¹¹
467. Mr Jones had, in the meantime, arrived at the Morans’ house with several tradesman and a civil contractor to review the failed water diversion. A secondary make-safe was completed, diverting water away from the lower house.⁷¹² The following observations were also made:

468. Mr Jones provided those updates to Ms Scoble during their conversation. She told Mr Jones that the Shire was “putting enormous pressure” on Mr Moran to have the soil and debris urgently removed from the rear of his property, and that she required a quote as soon as possible.⁷¹⁴
469. At around lunchtime, Ms Scoble told the Morans that she believed the water to be emanating from the damaged pipe underneath the retaining wall on 10–12 View Point Road. She said that if the water was coming from a natural spring, as had been suggested, the flow would be inconsistent, varying with the ebb and flow of the spring. She thought the flow of water at the Morans’ property was not behaving in that way; to her, it had not altered in volume or pace since the landslide.⁷¹⁵
470. Later that afternoon, Mr Glover contacted Ms Scoble to advise that he would be attending the Morans’ property the following day and would be “up on the hill”. Following a call from Mr Moran, Ms Scoble placed a further call to Mr Glover to discuss the use of shipping containers. Specifically, Ms Scoble asked Mr Glover how he proposed to have shipping containers taken up to the site. He responded that cranes would be used. Ms Scoble recorded, “I asked how given the access and he couldn’t answer me”.⁷¹⁶
471. Ms Scoble later sent to Mr Glover the following aerial shot of the Morans’ property and the rear of the Borghesis’ property:

FIGURE 3.42: AERIAL IMAGE OF 3 PENNY LANE AND 10–12 VIEW POINT ROAD WITH ANNOTATIONS SHOWING LOCATION OF THE BROKEN PIPE UNDERNEATH THE RETAINING WALL AT 10–12 VIEW POINT ROAD.⁷¹⁷

472. She described it as “a map with the location of the pipe that is broken from our builder”. She otherwise noted that she would update Mr Glover on the proposed use of shipping containers once she had gathered more information “in the next couple of days”.⁷¹⁸ Mr Glover responded, “I can see where the broken pipe is on the plan”.⁷¹⁹ He forwarded the email to Mr Pope later that afternoon and asked for Mr Pope’s thoughts.⁷²⁰
473. Mr Glover was also communicating with various people in relation to works on 10–12 View Point Road. He sent an email to Mr Tolan from CivilTest, Mr Borghesi and Mr Pope, asking Mr Tolan to liaise with Mr Pope in respect of the proposed use of rock bags.⁷²¹
474. In response, Mr Tolan sent an email to Mr Pope only, stating:

475. A few hours later, Mr Pope sent an email to Mr Tolan, copying Mr Glover, disagreeing with the proposed use of the rock bags.⁷²³ Mr Pope stated:

476. Mr Borghesi recorded in his diary the following:

477. Mr Glover provided an email update to David (Davey) Smith, Director Assets and Infrastructure at the Shire, and Tom Haines-Sutherland, Manager Infrastructure Services at the Shire, copying Ms Littlejohn and Mr MacDonald. He noted that water was still discharging from 10–12 View Point Road at around 15 litres per minute, and that the Office of the MBS had undertaken a preliminary assessment for leaks and flows, including kerb pit inspections, water sampling from the landslide site, using trace-dye, and checking surrounding water metres and ground ball hydrants.⁷²⁶ He stated:

478. He included the following diagram:

FIGURE 3.43: DIAGRAM PREPARED BY MR GLOVER ON 10 JANUARY 2025.⁷²⁸

479. Mr Glover told the Board of Inquiry that he asked Mr Smith and Mr Haines-Sutherland to investigate the flow of water as he felt he had exhausted the investigations available to him, and it appeared to him that a potential cause of the constant flow of water could be the “council’s drainage system failure”.⁷²⁹

The McCrae Landslide, 14 January 2025

480. Nine days after the 5 January 2025 landslide, and with unexplained water still infiltrating the headscarp, the McCrae Landslide struck, destroying 3 Penny Lane.
481. At around 8.45am on 14 January 2025, Mr Willigenburg heard a deep rumbling sound coming from the rear of his rental property. Within seconds, he heard a massive crash and Mrs Willigenburg yelling, “the house has come down”. Panicked, they ran out of the house and onto Point Nepean Road.⁷³⁰
482. Mr Willigenburg told the Board of Inquiry:

483. Mr Willigenburg noticed a person lying near the front gate of the Morans’ property. He ran up to the person and realised it was Mr Glover.⁷³² He told Counsel Assisting:

484. Mr Glover had arrived at the Morans’ property earlier that morning to inspect the water diversion system that had been repaired the previous day.⁷³⁴ Mr Willigenburg understood from Mr Glover that he had jumped from the deck on the second floor of the Morans’ property when he heard the same loud rumble that Mr Willigenburg had heard.⁷³⁵
485. Mr Borghesi had also heard the same sound. He had been sitting in his living room, typing an email to the Shire about further degradation of the escarpment, when he heard what he described as a “loud thunderstorm” that sounded like a “rumbling train”.⁷³⁶ He told the Board of Inquiry that he and Mrs Borghesi:

486. Mrs Borghesi took several video recordings of the landslide in those initial moments. The videos clearly showed what Mr Borghesi described as “deeply saturated soil collapsing from underneath number 6 View Point Road” and “topsoil falling from behind the retaining wall”. He described the soil as “more liquified” than what flowed from the escarpment following the landslide that had occurred nine days earlier, noting it was “water just flowing out of the hillside”.⁷³⁸
487. Mr Cooper, who was driving through McCrae that morning, turned onto Point Nepean Road and saw “a pile of rubble” with dust emanating from the area where the Morans’ property had stood. Mr Cooper’s mother rang him at the same time and told him she could see a fire. He told his mother, “that’s not a fire. A house has fallen down the hill”.⁷³⁹

FIGURE 3.44: AERIAL PHOTOGRAPH OF 3 PENNY LANE TAKEN FOR THE VICSES ON 14 JANUARY 2025.⁷⁴⁰

488. Within moments of the landslide, people had begun to gather and local residents, Mike O’Neill and John D’Helin approached Mr Willigenburg and Mr Glover.⁷⁴¹ A bystander called “000” and handed the phone to Mr Willigenburg who was closest to Mr Glover.⁷⁴² Mr Willigenburg recalls the operator asking what had occurred and whether Mr Glover was conscious.⁷⁴³ As he responded to those questions, Mr O’Neill told him “Paul, you need to tell the d[i]spatcher the house is moving. We’ve got to get Matt away from here”. Mr Willigenburg told the Board of Inquiry:

FIGURE 3.45: PHOTOGRAPH OF 3 PENNY LANE FOLLOWING LANDSLIDE ON 14 JANUARY 2025.⁷⁴⁵

489. The VicSES recorded its first notification of the incident at 8.48am. It had received a report that a whole house had rolled down a hill and that there was an injured man lying at the bottom of the hill. The VicSES did not know, at that point in time, whether there were any other persons inside the Morans’ house or who the injured person was.⁷⁴⁶ VicSES units were immediately dispatched to the scene.⁷⁴⁷
490. The VicSES received several further notifications over the minutes that followed and recorded comments including:

491. The first VicSES unit arrived on scene at 8.59am.⁷⁴⁹
492. In the meantime, Maharlia Pakoti, Assistant Building Surveyor at the Shire, arrived at the scene. She had been due to meet Mr Glover at the Morans’ property to assist him with an inspection of it. Mr Glover told Ms Pakoti that he had been standing on the balcony when he heard a loud rumble and felt the house start to move. He had tried to jump onto the nearby retaining wall but missed the wall and landed in the driveway.⁷⁵⁰
493. Ambulance Victoria and Shire representatives also attended the scene.⁷⁵¹
494. By 9.13am, Mr Daw of the VicSES, who had assumed the role of Incident Controller of the scene, reported that the Morans’ property had been “compromised by landslip and completely destructed”. He noted there were VicSES responders assessing the area above the landslide and evacuating people from it.⁷⁵²
495. At around 9.15am, Mr Moran received a text message from a friend stating, “I heard there was a landslide on Penny Lane, hope that’s not your house”.⁷⁵³ Mr Moran, who had not received any notification of the landslide, responded to his friend’s message to explain that the landslide had occurred the previous week. His friend replied stating, “no, this morning”.⁷⁵⁴
496. Mr Moran made a series of panicked telephone calls to try to find out what had occurred. He telephoned Mr Willigenburg, followed by Ms Scoble, and Mr Glover, but was unable to reach any of them. Mr Willigenburg returned his call. He told Mr Moran what had happened.⁷⁵⁵ The Morans then started driving to McCrae, listening to radio news reports about the landslide. They were both, understandably, in shock.⁷⁵⁶
497. In the meantime, the VicSES had observed “lots of water coming down one of the main driveways”, and had agreed with Victoria Police to close Point Nepean Road, due to the “potential of house flipping further”.⁷⁵⁷ By 9.50am, it was determined that there would be an evacuation warning issued to residents within a 500 metre hexagon around Penny Lane and Point Nepean Road, and an exclusion zone was established shortly after.⁷⁵⁸
498. Mr and Mrs Willigenburg had been permitted to enter their rental property for a few minutes, to collect any medication they required, but were told they needed to evacuate immediately after that.⁷⁵⁹
499. At 10.00am, representatives from several agencies met and determined that the VicSES would continue to manage the incident.⁷⁶⁰ At 10.15am, the VicSES recorded: “source of underground water likely to be underground spring causing movement of soil”.⁷⁶¹
500. At around the same time, Mr Swain sent an email to Tim Lloyd, General Manager for Service Delivery at SEW, and other SEW personnel, stating:

501. Mr Swain noted that two leaks had been identified “across the highway” but explained that the overflowing water from those leaks had moved into the stormwater drain rather than into the ground, and that the leaks had since been repaired. He confirmed he would prepare a summary report of SEW’s activities and findings.⁷⁶³
502. Mr and Mrs Moran arrived in McCrae at around 10.19am but were prevented from entering the area by Victoria Police officers who were monitoring the road closure that had been set up. They were later allowed into the restricted area.⁷⁶⁴
503. Counsel Assisting asked Mr Moran what he saw when he and Mrs Moran entered the restricted area. Mr Moran responded:

504. Mrs Moran told the Board of Inquiry, “I don’t know how to describe it, it was shocking”.⁷⁶⁶ She had been concerned for the safety of the Willigenburgs and was asking where they were.⁷⁶⁷ She stated:

505. Mrs Moran told Counsel Assisting that it was obvious there had been a second landslide. She explained:

506. Mr Bolch and Kevin Hutchings, son-in-law of a local resident and a former Managing Director of SEW, also arrived in McCrae by around 10.30am.⁷⁷⁰
507. Mr Bolch had received a voicemail from a friend earlier that morning, to ask if he had been affected by the landslide.⁷⁷¹ He had immediately telephoned his wife and they agreed to meet at Mr Bolch’s property. By the time Mr Bolch arrived, his wife and daughter had already been inside and were evacuated from it by the VicSES.⁷⁷²
508. Mr Hutchings had received a telephone call from his brother-in-law earlier that morning, to advise him that there had been a landslide.⁷⁷³ Mr Hutchings had immediately set off for his mother-in-law’s house (6 View Point Road) and was eventually permitted to enter the restricted area.⁷⁷⁴ Mr Hutchings told the Board of Inquiry that as he waited in the restricted area, he overheard a bystander say words to the effect of “do you reckon it … has anything to do with the water up the road”.⁷⁷⁵
509. At around 10.39am, Andrew Brick, Team Leader of the Shire’s Emergency Management team, held a brief team meeting, during which it was determined that the Shire’s two key responsibilities at that time were to contact affected residents and confirm they had somewhere to go, and to establish a relief hub for them.⁷⁷⁶ Mr Brick then travelled to the site and spent the morning liaising with Mr Daw, VicSES responders and Victoria Police, in relation to road closures, traffic control, and other logistical matters.⁷⁷⁷
510. At around 11.23am, Mr Moran received a telephone call from a Shire representative, who notified him that his property was in the area impacted by the landslide and that a relief centre had been established for residents who required assistance. He told the Board of Inquiry “the person I spoke with did not know that I was one of the owners of the property that had collapsed”.⁷⁷⁸
511. At 12.12pm, Mr Swain sent a further email to Mr Lloyd and others to confirm that SEW had shut down its water supply to View Point Road, and that “all the houses on the landslide side of the street [had] been evacuated”. He noted that Mr Marsh, “Ethan (Water Ops) and Bec Mcindoe (Customer liaison)” were on-site.⁷⁷⁹ He sent a further email to Mr Lloyd at 12.43pm, providing the following schematic of the water network he had prepared, together with notes of his observations from the site.⁷⁸⁰

FIGURE 3.46: SCHEMATIC OF THE WATER NETWORK IN THE MCCRAE AREA ANNOTATED BY MR SWAIN. ⁷⁸¹

512. Mr Swain stated:

513. Mr Lloyd responded to that email, stating “The burst info is interesting”.⁷⁸³ He told the Board of Inquiry that he understood the red symbols on the schematic to indicate burst pipes, and that in circumstances where there had been a landslide, water was emerging from the face of the landslide, and there was evidence of water surfacing, his genuine concern was “have we got an issue with one of our pipes in that vicinity”. He confirmed he had not yet connected the burst which had been repaired some two to three weeks earlier, with the landslide.⁷⁸⁴
514. Mr Rotter and other Shire representatives arrived on-site at 2.26pm.⁷⁸⁵ At 3.48pm, Mr Rotter sent an email to Mr Smith and Mr Haines-Sutherland, copying Luke Jackson from the Shire’s Roads Corridor and Drainage team.⁷⁸⁶ He stated:

515. At 4.12pm, the VicSES recorded that the “job” should remain open as there would be numerous crews attending the site over the next 24 to 48 hours.⁷⁸⁸ Mr Jackson also sent an email to Mr Smith, Mr Flores, Mr Rotter and Mr Haines-Sutherland to confirm that:

516. Mr Jackson noted that Mr Rotter had strongly recommended a directive be given to residents in the area to cease all irrigation of their properties until the source of the water had been identified, and that SEW was continuing investigations into its assets in the area as well. He was hoping to receive a full report on SEW’s investigations in the coming days, including in respect of a burst water main they had identified and repaired “on the opposite side of the freeway”.⁷⁹⁰
517. At 6.00pm, Jackson Evans, Road Rescue Capabilities Assessor at the VicSES, prepared a situation report, stating:

3.7 The effect of the November 2022 landslides and January 2025 landslides on the McCrae community

518. The landslides have had a profound impact on the McCrae community.
519. The landslides marked the sudden destruction of normality for those living in the vicinity of the landslide sites. They caused stress, fear and uncertainty for many residents and they continue to do so. They not only destroyed the house which once stood at 3 Penny Lane, but they also claimed the homes of multiple residents who were evacuated and have since been displaced.
520. While the Board of Inquiry cannot inquire into actions taken since the McCrae Landslide on 14 January 2025,⁷⁹² nor the related emergency response, relief and recovery activities,⁷⁹³ it is important to acknowledge the impact that the landslides have had on the community.
521. The residents’ stories bring into sharp focus that the toll of the landslides extends well beyond property damage. The psychological and emotional toll for members of the McCrae community has been, and continues to be, immense.

Evacuations

The Emergency Orders

522. The McCrae Landslide on 14 January 2025 led to Emergency Orders being issued to multiple residents, causing the temporary and, in some cases, ongoing displacement from their homes.
523. On 17 January 2025, the Shire’s MBS issued Emergency Orders to 17 properties in the vicinity of the McCrae Landslide site,⁷⁹⁴ pursuant to s 102 of the Building Act. As a result, each affected resident was prohibited from entering their house and land.⁷⁹⁵
524. The Emergency Orders stated:

525. Residents were required to vacate their homes promptly, with little notice and in the hours approaching midnight.⁷⁹⁷ Residents, some of whom were vulnerable and elderly, had to find their own alternative accommodation.⁷⁹⁸
526. At the time the Emergency Orders were issued, two properties were already, and remained, subject to Emergency Orders that were issued following the 15 November 2022 landslide.⁷⁹⁹ Residents of those properties were similarly prohibited from entering their house and land.⁸⁰⁰
527. All told, in the aftermath of the McCrae Landslide, 19 properties fell within an area known as the exclusion zone established by the VicSES and the Shire.⁸⁰¹
528. By 14 February 2025, the Emergency Orders in respect of eight of the properties were lifted.⁸⁰²
529. By 21 February 2025, the Emergency Orders in respect of another three properties were lifted.⁸⁰³
530. The cancellation notices issued to the residents pursuant to ss 105B and 110 of the Building Act were brief. These decisions were communicated in terms such as “the directions within the [Emergency] Order have been completed and the Order is subsequently cancelled” and “this [Building Notice] is no longer warranted and is subsequently cancelled”.⁸⁰⁴ The residents did not know how it had been determined that it was safe for them to return to their homes.
531. In the weeks following the McCrae Landslide, despite the establishment of the exclusion zone, the homes of multiple residents within that zone were ransacked by looters.⁸⁰⁵ This compounded the residents’ distress.
532. One resident explained that there have been:

533. By early August 2025, the Emergency Orders in respect of another two properties were lifted.
534. Today, six properties remain subject to Emergency Orders. Those affected residents have been unable to return to their homes, and they have been living with the uncertainty of not knowing if, and when, they will be able to return. The Board of Inquiry has heard that the hardship flowing from this uncertainty is significant and relentless.

FIGURE 3.47: MCCRAE LANDSLIDE: EVACUATION ORDER AREA AS AT 22 MAY 2025.⁸⁰⁷

MERG

535. In the weeks following the McCrae Landslide, the evacuated residents came together as a closeknit community to share information, express their concerns, and provide comfort to one another.⁸⁰⁸ United by the need to find answers, the residents formed a group known as the MERG.
536. On 28 January 2025, MERG had its first group meeting at the McCrae Yacht Club.⁸⁰⁹
537. Days later, on 31 January 2025, MERG met again.⁸¹⁰ At that meeting, it became clear through the residents’ discussions that the task of obtaining answers about the cause of the McCrae Landslide was too immense for just one person. The residents collectively decided that particular individuals should be appointed to progress the interests of MERG, including to locate the source of the water flowing near the Morans’ property.⁸¹¹
538. The formation of MERG is a powerful demonstration of community strength in the face of adversity. The work of MERG is both commendable and impressive. MERG has provided a cohesive voice for evacuated residents. MERG has also enabled resident-led investigations into the cause of the McCrae Landslide to be advanced.
539. The Board of Inquiry has benefited greatly from the valuable information that MERG has shared.

The lived experiences of McCrae community members

540. Many members of the McCrae community have generously and poignantly shared their experiences with the Board of Inquiry.
541. The adverse impacts of the landslides on the community are undeniable. As one resident, who has been displaced from their home, told the Board of Inquiry:

542. This sentiment is not unique. It has been echoed in the experiences shared by many other displaced residents. It is a profound reason why events like the McCrae Landslide must be prevented in the future.
543. The following stories provide some insight into the impact of the landslides on certain members of the McCrae community. These stories illustrate the range of challenges faced by those who have homes in the immediate vicinity of the landslides. They do not represent the full breadth of difficulties faced by those affected by the landslides. The absence of others’ stories in no way diminishes their importance.

Kellie and Nick Moran – 3 Penny Lane, McCrae

544. The McCrae Landslide destroyed Kellie and Nick Moran’s house.
545. The home — once a testament to years of hard work and a place of happy memories — was reduced to rubble within moments. The landslide has not only robbed the Morans of their home, it has taken away their sense of safety and security.⁸¹³ Mr Moran told the Board of Inquiry:

546. The Morans purchased the house in May 2023.⁸¹⁵ It was their pride and joy. It was purchased using funds from the sale of a business that Mr Moran had established at the age of 18 and operated for 29 years. The house was intended to be a holiday home for the Morans to enjoy with their three children and, potentially, to live in once they had retired.⁸¹⁶
547. Shortly after settlement, the Morans began to use the house regularly with their children. In the weeks leading up to 5 January 2025, the house was rarely vacant. The Morans and their children stayed there frequently, along with members of their extended family and friends.⁸¹⁷ This period of enjoyment at their summer sanctuary was, however, abruptly cut short.
548. Two landslides were to upend their home and their lives. The first landslide struck their home on 5 January 2025. Nine days later, the second landslide on 14 January 2025 demolished their home.
549. It warrants repeating that at around 9.30am on the morning of 14 January 2025, Mr Moran received a phone call from his neighbour, Mr Willigenburg, who delivered the devastating news: “The whole thing’s come down”.⁸¹⁸ The Morans’ house had slid down the hill and splintered in half.⁸¹⁹
550. Shocked, Mr Moran telephoned Mrs Moran to tell her what had happened.⁸²⁰ At around 10.30am, after a “horrible drive”,⁸²¹ the Morans arrived to see rubble where their home once stood.
551. In Mr Moran’s words:

552. The Moran family will not be able to return to their home or their land in the short term. The Moran family lives with emotional and financial stress to this day.⁸²³

Paul and Denise Willigenburg – 3/613 Point Nepean Road, McCrae

553. The McCrae Landslide struck the rear of 607–609 Point Nepean Road, the rental property occupied by two retirees and pensioners, Paul and Denise Willigenburg.⁸²⁴
554. The backyard of the rental property was, prior to the McCrae Landslide, directly in front of the house at 3 Penny Lane.⁸²⁵
555. The McCrae Landslide was not the first time Mr and Mrs Willigenburg had suffered the consequences of a landslide. As described above, they were also impacted by the 15 November 2022 landslide, which destroyed the back fence of their home at 3/613 Point Nepean Road,⁸²⁶ located just a few doors down from the Morans’ house.
556. Since the 15 November 2022 landslide, the Willigenburgs have been displaced from their home, apart from a brief period between 17 October 2023 and 23 February 2024.⁸²⁷ This period of displacement has been marked by stress, worry and frustration.⁸²⁸
557. Ongoing delays in remediation works on the slope above their home have repeatedly forced the Willigenburgs to seek alternative accommodation.⁸²⁹ They managed to secure a rental property within metres of their home — only for that property, too, to suffer the misfortune of landslide damage.
558. On 14 January 2025, debris from the McCrae Landslide damaged the retaining walls, house and the garage of the Willigenburgs’ rental property.⁸³⁰
559. The Willigenburgs narrowly escaped injury by running out of the rental property as soon as they heard the deep rumbling sound that preceded the McCrae Landslide.⁸³¹ Shortly after their escape, a VicSES responder told the Willigenburgs:

560. Mrs Willigenburg retrieved some medication and vacated the rental property as ordered. That was the last minute either of the Willigenburgs were to have in the rental property until mid-April 2025.⁸³³
561. The Willigenburgs left with basically nothing; all their possessions were in the rental property. Mr Willigenburg told the Board of Inquiry:

562. In the weeks following the McCrae Landslide, both the Willigenburgs’ home and rental property were broken into. A laptop, watches and jewellery were taken, along with memorabilia that Mr Willigenburg had kept for many years and which held sentimental value to him.⁸³⁵
563. It has now been more than two and a half years since the Willigenburgs were displaced from their home following the 15 November 2022 landslide. They have not been told when they will be able to return to their home or the rental property.⁸³⁶
564. The remediation works required to render the Willigenburgs’ home safe for reoccupation remain to be done. The Willigenburgs sought an order from the Building Appeals Board that the Shire and/or the Borghesis cover the costs associated with such works.⁸³⁷ However, judgment in that proceeding has been delayed because of, amongst other matters, the McCrae Landslide.⁸³⁸
565. The Willigenburgs continue to live with uncertainty. The stress they are feeling is understandably immense.

Gerry and Bronwyn Borghesi – 10–12 View Point Road, McCrae

566. As described above, the McCrae Landslide occurred on the escarpment located within the property owned by Gerry and Bronwyn Borghesi.⁸³⁹
567. Like the Willigenburgs, the McCrae Landslide was not the Borghesis’ first encounter with a landslide. The 14 and 15 November 2022 landslides also occurred on their property.⁸⁴⁰
568. Since those landslides, the Shire has sought to compel the Borghesis to undertake stabilisation works to the landslide affected land.⁸⁴¹ This led to the Borghesis commencing proceedings in the Building Appeals Board in May 2024 to challenge the validity of the Shire’s actions. Those proceedings were successful.
569. On 30 April 2025, the Building Appeals Board determined, amongst other things, that the Shire’s MBS did not have the power to compel such works.⁸⁴²
570. The Borghesis have also issued proceedings against the Shire in the Victorian Civil and Administrative Tribunal to recover their loss and damage arising from the November 2022 landslides. ⁸⁴³ Those proceedings are currently on foot.⁸⁴⁴
571. As the consequences of the November 2022 landslides continued to unfold, the Borghesis experienced two further landslides on their property.
572. The 5 January 2025 landslide occurred below the ground level of the Borghesis’ vegetable patch, located at the back of their property.⁸⁴⁵
573. In the nine days that followed, the Borghesis lived in their home and watched “like hawks” as the land beneath their vegetable patch eroded due to the continuous flow of water from an unidentified source.⁸⁴⁶
574. Mr Borghesi told the Board of Inquiry:

575. The Borghesis feared that another landslide was imminent. Their fears were soon realised.
576. At around 3.00am on 14 January 2025, Mrs Borghesi was awake. As she had many nights since the landslide of 5 January, Mrs Borghesi looked at the large gum tree in the gully. She hoped that its roots were still stabilising the soil. They were.⁸⁴⁸ But the gum tree would not hold on for much longer.
577. Around five hours later, when the McCrae Landslide occurred, Mr Borghesi was in his living room writing an email to the Shire about degradation on the slope. He heard a “loud thunderstorm noise”, which lasted for about 10 seconds but felt like two minutes.⁸⁴⁹
578. The Borghesis instantly ran out the backdoor. They knew what had happened. They saw dust rising from below a paved area at the back of their property.⁸⁵⁰ The Morans’ house had been destroyed.⁸⁵¹
579. It warrants repeating that Mr Borghesi observed that:

580. On the day of the McCrae Landslide, the Borghesis were evacuated from their home. They did not return to their property until early August 2025, at which point it was deemed safe to reoccupy by the Shire’s MBS. Understandably, the Borghesis wish this had occurred much sooner.

Pugh family – 6 View Point Road, McCrae

581. The McCrae Landslide also occurred on part of the escarpment on the neighbouring property at 6 View Point Road, owned by Pamela Pugh. It encroached, and nearly undermined, the patio of the house.⁸⁵³
582. Mrs Pugh, a 90-year-old grandmother, and her late husband, Charles Pugh, purchased the land in around 2002.⁸⁵⁴ Mr Pugh built the home that stands there today.⁸⁵⁵
583. In the months prior to the McCrae Landslide, the extended Pugh family had been preparing the home for sale.⁸⁵⁶ The family intended for the sale proceeds to fund Mrs Pugh’s transition to permanent aged care.⁸⁵⁷ The McCrae Landslide has put a halt to these plans, causing the Pugh family significant emotional distress.⁸⁵⁸
584. Kevin Hutchings, Mrs Pugh’s son-in-law, told the Board of Inquiry that the McCrae Landslide was, and remains, a huge source of stress for the family.⁸⁵⁹ He explained:

585. Thoughts of the McCrae Landslide were, and have been, all-consuming for the Pugh family.⁸⁶¹ Mr Hutchings and his wife could not sleep at night in the week following the landslide.⁸⁶² This prompted Mr Hutchings, a former Managing Director of SEW, to seek answers as to the source of the unexplained water flowing out of the escarpment at the landslide site and at various locations in McCrae.⁸⁶³
586. On 21 January 2025, Mr Hutchings commenced his investigations.⁸⁶⁴ He and his wife drove to two locations higher up on the Arthurs Seat hillside to investigate the source of the water: a stormwater storage basin and a dam within Seawinds Gardens.⁸⁶⁵ On inspection, both were “bone dry”.⁸⁶⁶ Mr Hutchings concluded that neither the stormwater storage basin nor dam could account for the continuous flow of water observed on Charlesworth St.⁸⁶⁷
587. The Hutchings’ investigations were not, however, wasted. On that day, Mr Hutchings learnt from a local resident that a water main had burst near Bayview Road and Outlook Road. Repairs of the burst water main had commenced on New Year’s Eve.⁸⁶⁸
588. While inspecting the burst site, Mr Hutchings noticed that there was evidence of significant water flow previously occurring at that location. The vegetation had been stripped. There was scoring on the ground, indicating that water had travelled across the surface.⁸⁶⁹ Mr Hutchings was to discover the potential significance of this site in the weeks to follow.
589. By the end of January 2025, MERG appointed Mr Hutchings along with Mr Bolch to find the source of the water seen emanating near 3 Penny Lane prior to and after the McCrae Landslide.⁸⁷⁰
590. For several months, Mr Hutchings has worked independently and, at times with Mr Bolch, to investigate the unexpected flows of water in McCrae. Their work has been extensive. It has ranged from studying the layout of water infrastructure in the area, conducting multiple on-site physical inspections, to marshalling information concerning local residents’ observations in the lead up to, and following, the McCrae Landslide.⁸⁷¹
591. Based on the investigations, Mr Hutchings considered that the accumulation of water – which he believed may have been caused by the burst water main – could have played a central role in putting weight on the escarpment and providing lubricant near the Borghesis’ property, destabilising the ground behind the Morans’ house and triggering the landslides. He thought it was possible that the water had travelled through a combination of pipeline trench flow and significant ground saturation.⁸⁷²
592. Mr Hutchings and Mr Bolch have shared their investigative work with the Shire and the Board of Inquiry.
593. Today, the Pugh family remains excluded from their home at 6 View Point Road. They are concerned as to what the future holds.⁸⁷³

John and Vicki Bolch – 605 Point Nepean Road, McCrae

594. The McCrae Landslide occurred next door to the house that was occupied by John and Vicki Bolch.
595. The Bolch family took possession of the house around Easter of 2024 and had just moved in prior to Christmas of that year.⁸⁷⁴ Unfortunately, in Mr Bolch’s words, “no sooner did we get it than we were out”.⁸⁷⁵
596. On the day of the McCrae Landslide, no one was at the Bolchs’ house.⁸⁷⁶ Mr Bolch, a licensed and registered commercial plumber, was meeting with one of his clients in Cranbourne.⁸⁷⁷
597. At the end of the meeting, Mr Bolch listened to a voicemail from a friend asking whether the Bolchs’ house had been affected by the McCrae Landslide. Mr Bolch contacted his wife to share the shocking news, and they agreed to meet at the house.⁸⁷⁸
598. Mrs Bolch and her daughter, Sasha, who were at a nearby campsite at Capel Sound, got on their push bikes and rode back to their house. Mr Bolch set out from Cranbourne.⁸⁷⁹ The three eventually met on the beach track running along Point Nepean Road.⁸⁸⁰
599. Prior to Mr Bolch’s arrival, Mrs Bolch and Sasha had taken photos and videos of the landslide site.⁸⁸¹ Upon seeing those videos, Mr Bolch told the Board of Inquiry that “the devastation [and] the destruction of [the Morans’ house] was ... a lot to consume”.⁸⁸²
600. Mr Bolch observed in one of the videos that water was flowing down the escarpment from a location somewhere between the Borghesis’ house and the Morans’ house.⁸⁸³ The presence of water piqued Mr Bolch’s interest. Days earlier, he had observed a considerable amount of water flowing from under the Morans’ house, over the lower retaining wall at the front of the house and down Penny Lane.⁸⁸⁴
601. On 15 January 2025, Mr Bolch decided to take a drive around the streets uphill of Penny Lane to look for the possible source of the unusual water he had observed around the Morans’ house.⁸⁸⁵ He observed a pothole at the intersection of Charlesworth Street and Coburn Avenue in a wet spongy area. The surrounding asphalt was visibly cracked from water damage.⁸⁸⁶ Mr Bolch also noticed that the nature strips around the intersection were sodden, so much so that water was leaking from the nature strips into the kerbs.⁸⁸⁷ It was “very boggy and wet”.⁸⁸⁸ Mr Bolch thought that things were not as they should be, especially since it had been a “very dry summer”.⁸⁸⁹
602. Mr Bolch told the Board of Inquiry:

603. Mr Bolch has diligently set out to answer that question since 15 January 2025, drawing on his professional expertise. He has worked independently and, at times with Mr Hutchings, to investigate whether water may have been a contributing factor to causing the landslides.⁸⁹¹ As mentioned above, the investigatory work undertaken by Mr Bolch and Mr Hutchings has been extensive.
604. Based on his investigations, Mr Bolch believes that water saturation of the hillside near the Morans’ property was a significant contributing factor to causing the landslides.
605. Mr Bolch told the Board of Inquiry that water leaking from the burst water main “most certainly” could travel into the sewer trench line.⁸⁹² A trench line could basically become “the highway for the water to travel”.⁸⁹³ He explained:

606. After conducting testing on water infrastructure near the burst site, Mr Bolch estimated that had the leak persisted for 60 days, through a 25 millimetre opening, as much as 84.4 million litres of water may have been released from the burst water main,⁸⁹⁵ the equivalent of about 34 Olympic-sized swimming pools’ worth of water.⁸⁹⁶
607. Given that significant volume of water, and the lay of the land, Mr Bolch was concerned that it was “highly possible that the water has made its way from Point A to Point B”.⁸⁹⁷ Point A being the burst site and Point B being the Morans’ property.⁸⁹⁸
608. Mr Bolch’s demonstrable commitment to determining the cause of the McCrae Landslide is underpinned by his belief that:

609. The Bolch family has not been allowed to occupy their home since 14 January 2025.⁹⁰⁰ They have only been allowed to access their house on two occasions. First, on 14 February 2025, to secure a sliding door that had been left open after the house had been ransacked. Second, on 28 February 2025, to retrieve some personal items and determine what had been stolen from them.⁹⁰¹
610. The stress and uncertainty continues for the Bolch family.

• 1 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0120].
• 2 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0120].
• 3 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0043].
• 4 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0040].
• 5 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0042].
• 6 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0041].
• 7 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0042].
• 8 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0132].
• 9 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 10 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 11 Lucy Callander, ‘Landslides Mornington Peninsula: Mt Martha, Anthony’s Nose, Flinders hit’, Herald Sun (online, 19 October 2020) <https://www.heraldsun.com.au/leader/south-east/landslides-mornington-peninsula-mt-martha-anthonys-nose-flinders-hit/news-story/14a73a4d122d5cf9b983afca6b899a79>.
• 12 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0045–.0046]; Public Submission of McCrae Resident, 12 May 2025, [SUB.0040.0001.0008].
• 13 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0059–.0060].
• 14 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0048–.0050].
• 15 Exhibit CA-72, Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0061].
• 16 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 2.1.
• 17 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 2.3.
• 18 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 2.3.
• 19 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 20 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 21 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.1.
• 22 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.1.
• 23 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 2.3.
• 24 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 3.4.
• 25 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 26 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 27 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 28 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 29 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 30 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 31 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 32 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 33 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 4.2.
• 34 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 7.
• 35 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 7.
• 36 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 7.
• 37 Mornington Peninsula C52 (PSA) [2003] PPV 115 at Section 8.
• 38 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(8) [MSC.5014.0001.1302].
• 39 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(8) [MSC.5014.0001.1302].
• 40 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(29) [MSC.5002.0001.6966].
• 41 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, 6 [16].
• 42 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(117) [MSC.5012.0001.0123 at .0127].
• 43 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(117) [MSC.5012.0001.0123 at .0127].
• 44 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(117) [MSC.5012.0001.0123 at .0128].
• 45 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(117) [MSC.5012.0001.0123 at .0134].
• 46 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(117) [MSC.5012.0001.0123 at .0140].
• 47 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(117) [MSC.5012.0001.0123 at .0140–.0144].
• 48 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(117) [MSC.5012.0001.0123 at .0140].
• 49 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(117) [MSC.5012.0001.0123 at .0142].
• 50 Mornington Peninsula Shire Council, Response to first set of potential adverse findings, 21 August 2025, [MSC.5094.0001.0020]. Email from Chloe Patching to Infrastructure Asset Notification at Mornington Peninsula Shire Council about completion of The Eyrie Gully Stabilisation Project, 10 November 2014, [MSC.5092.0001.0001].
• 51 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 34–35 [62]–[63].
• 52 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4442].
• 53 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4442].
• 54 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4475–.4477].
• 55 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4455].
• 56 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4454].
• 57 Exhibit CA-11, Witness Statement of Bulent Oz, 11 April 2025, 6–7 [29].
• 58 Exhibit CA-11, Witness Statement of Bulent Oz, 11 April 2025, 6–7 [29].
• 59 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4458].
• 60 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4458].
• 61 Public Hearing Transcript, David Simon, 9 May 2025, 218.
• 62 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, 18 [43]; Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(62) [MSC.5014.0001.0076 at .0077].
• 63 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, 18 [44]; Public Hearing Transcript, David Simon, 9 May 2025, 218.
• 64 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, 18–19 [44].
• 65 Mornington Peninsula Planning Scheme, Schedules 4 and 5 to Clause 44.01 Erosion Management Overlay (as it stood prior to and after Amendment C279morn gazetted on 21 July 2021).
• 66 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4442].
• 67 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4442–.4443].
• 68 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4462].
• 69 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4462–.4463].
• 70 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4514].
• 71 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4515].
• 72 Exhibit CA-11, Witness Statement of Bulent Oz, 11 April 2025, Exhibit CA-11(3) [MSC.5014.0001.0010], Exhibit CA-11(4) [MSC.5014.0001.0068].
• 73 Exhibit CA-11, Witness Statement of Bulent Oz, 11 April 2025, 8 [42].
• 74 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4532].
• 75 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(110) [MSC.5012.0001.4440 at .4533].
• 76 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, 20 [52]–[53].
• 77 Exhibit CA-11, Witness Statement of Bulent Oz, 11 April 2025, 9 [43]; Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 35 [63].
• 78 Exhibit CA-11, Witness Statement of Bulent Oz, 11 April 2025, 9 [44].
• 79 Exhibit CA-11, Witness Statement of Bulent Oz, 11 April 2025, 9 [45].
• 80 Exhibit CA-11, Witness Statement of Bulent Oz, 11 April 2025, 9 [46].
• 81 Exhibit CA-11, Witness Statement of Bulent Oz, 11 April 2025, 9 [44].
• 82 Public Hearing Transcript, David Simon, 9 May 2025, 243.
• 83 Public Hearing Transcript, David Simon, 9 May 2025, 253.
• 84 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, 19 [48]; Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(65) [MSC.5014.0001.0182].
• 85 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025 19 [48]; Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(65) [MSC.5014.0001.0182 at .0270].
• 86 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025 19 [48]; Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(65) [MSC.5014.0001.0182 at .0387].
• 87 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, 19 [48]; Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(65) [MSC.5014.0001.0182 at .0387].
• 88 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, 20 [52]–[53].
• 89 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 1 [6]; Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 495–496.
• 90 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 1 [6].
• 91 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 1 [6].
• 92 Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 495.
• 93 Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 495–496.
• 94 Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 496.
• 95 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 5 [29].
• 96 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0041].
• 97 Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 485–486.
• 98 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 3 [16].
• 99 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0008–_0009].
• 100 Public Submission of Brett Manders, 30 April 2025, [SUB.0026.0001.0001].
• 101 Public Submission of McCrae Resident, 16 April 2025, [SUB.0016.0001.0001].
• 102 Public Submission of McCrae Resident, 29 April 2025, [SUB.0014.0002.0002].
• 103 Public Submission of McCrae Resident, 17 August 2025, [SUB.0014.0002.0001].
• 104 Public Submission of McCrae Resident, 29 April 2025, [SUB.0014.0002.0002].
• 105 Public Submission of McCrae Resident, 20 April 2025, [SUB.0006.0001.0002].
• 106 Public Submission of McCrae Resident, 20 April 2025, [SUB.0006.0001.0002].
• 107 Public Submissions of McCrae Resident, 10 July 2025, [SUB.0006.0002.0001], [SUB.0006.0002.0002], [SUB.0006.0002.0003].
• 108 Public Hearing Transcript, Julian Tully, 24 June 2025, 987–988.
• 109 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, 3 [18]; Exhibit CA-41, Amended First Witness Statement of Julian Tully, 24 June 2025, Exhibit 1 [SEW.0001.0001.4933 at _0001].
• 110 Exhibit CA-66, Fourth Witness Statement of David Smith, 28 July 2025, Exhibit CA-66(4) [MSC.5081.0001.0317].
• 111 Exhibit CA-66, Fourth Witness Statement of David Smith, 28 July 2025, Exhibit CA-66(6) [MSC.5081.0001.0215].
• 112 Exhibit CA-66, Fourth Witness Statement of David Smith, 28 July 2025, 5 [13]; Exhibit CA-66, Fourth Witness Statement of David Smith, 28 July 2025, Exhibit CA-66(3) [MSC.5081.0001.0313].
• 113 Exhibit CA-66, Fourth Witness Statement of David Smith, 28 July 2025, 6 [16].
• 114 Exhibit CA-66, Fourth Witness Statement of David Smith, 28 July 2025, 6 [16].
• 115 Exhibit CA-66, Fourth Witness Statement of David Smith, 28 July 2025, 6 [16]; Exhibit CA-66, Fourth Witness Statement of David Smith, 28 July 2025, Exhibit CA-66(10) [MSC.5081.0001.0026].
• 116 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, 4 [21].
• 117 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, Exhibit 4 [SEW.0001.0001.4937].
• 118 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, Exhibit 1 [SEW.0001.0001.4933].
• 119 Exhibit CA-25, Witness Statement of Lara Olsen, 16 May 2025, 5 [24(c)].
• 120 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, Exhibit 1 [SEW.0001.0001.4933].
• 121 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, Exhibit 1 [SEW.0001.0001.4933 at _0007–_0008].
• 122 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, Exhibit 1 [SEW.0001.0001.4933].
• 123 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, Exhibit 1 [SEW.0001.0001.4933].
• 124 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, Exhibit 1 [SEW.0001.0001.4933 at _0023–_0024].
• 125 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, Exhibit 1 [SEW.0001.0001.4933 at _0009, _0025].
• 126 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, Exhibit 1 [SEW.0001.0001.4933 at _0010].
• 127 Exhibit CA-41, Amended First Witness Statement of Julian Tully, 19 June 2025, 4 [19].
• 128 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0293].
• 129 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 444; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 2 [11].
• 130 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 444.
• 131 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 2 [12].
• 132 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 2 [12]–[13].
• 133 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 2 [14].
• 134 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 2 [15(a)].
• 135 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 445.
• 136 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 446; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-2 [RES.0010.0001.0002].
• 137 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-4 [RES.0010.0001.0004 at _0002].
• 138 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at _0002].
• 139 Public Submission of McCrae Resident, 30 April 2025, [SUB.0024.0001.0001].
• 140 Public Submission of McCrae Resident, 30 April 2025, [SUB.0024.0001.0003 at _0013].
• 141 Exhibit CA-6, Expert Opinion Report – Landslide Assessment about 10–12 View Point Road prepared by PSM, 11 June 2024, [MSC.5000.0001.0639 at .0643].
• 142 Exhibit CA-5, Landslide Risk Assessment about 10–12 View Point Road prepared by PSM, 3 November 2023, [MSC.5000.0001.1206 at .1215].
• 143 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0295].
• 144 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0017].
• 145 South East Water Montage Record, Task 1101563/001 – 3 Penny Lane, 15 November 2022, [SEW.0001.0001.0117 at _0001].
• 146 South East Water Montage Record, Task 1101563/001 – 3 Penny Lane, 15 November 2022, [SEW.0001.0001.0117 at _0001].
• 147 South East Water Montage Record, Task 1101563/001 – 3 Penny Lane, 15 November 2022, [SEW.0001.0001.0117 at _0001].
• 148 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 3 [15(c)].
• 149 Triple Zero Victoria, Chronology of Response to 2022 Landslide, 15 November 2022, [SES.0001.0002.0001 at .0003].
• 150 Triple Zero Victoria, Chronology of Response to 2022 Landslide, 15 November 2022, [SES.0001.0002.0001 at .0003].
• 151 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 3 [15(c)].
• 152 Triple Zero Victoria, Chronology of Response to 2022 Landslide, 15 November 2022, [SES.0001.0002.0001 at .0003]; South East Water Montage Record, Task 1101563/002 – 3 Penny Lane, 15 November 2022, [SEW.0001.0001.0117 at _0005].
• 153 South East Water Montage Record, Task 1101563/002 – 3 Penny Lane, 15 November 2022, [SEW.0001.0001.0117 at _0005].
• 154 South East Water Montage Record, Task 1101563/002 – 3 Penny Lane, 15 November 2022, [SEW.0001.0001.0117 at _0005].
• 155 South East Water Montage Record, Task 1101563/002 – 3 Penny Lane, 15 November 2022, [SEW.0001.0001.0117 at _0005].
• 156 South East Water Montage Record, Task 1101563/002 – 3 Penny Lane, 15 November 2022, [SEW.0001.0001.0117 at _0005].
• 157 South East Water Montage Record, Task 1101563/002 – 3 Penny Lane, 15 November 2022, [SEW.0001.0001.0117 at _0005, _0019].
• 158 South East Water Montage Record, Task 1101563/002 – 3 Penny Lane, 15 November 2022, [SEW.0001.0001.0117 at _0005, _0019].
• 159 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0014].
• 160 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at _0293].
• 161 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0014].
• 162 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-3 [RES.0010.0001.0003].
• 163 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-3 [RES.0010.0001.0003].
• 164 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 447; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 3 [17].
• 165 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(81) [MSC.5003.0001.0030 at .0034].
• 166 Triple Zero Victoria, Chronology of Response to 2022 Landslide, 15 November 2022, [SES.0001.0002.0001 at .0003].
• 167 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0294].
• 168 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0294–.0297].
• 169 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0294–.0297].
• 170 Triple Zero Victoria, Chronology of Response to 2022 Landslide, 15 November 2022, [SES.0001.0002.0001 at .0003].
• 171 Triple Zero Victoria, Chronology of Response to 2022 Landslide, 15 November 2022, [SES.0001.0002.0001 at .0003].
• 172 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(81) [MSC.5003.0001.0030 at .0033].
• 173 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(81) [MSC.5003.0001.0030 at .0033].
• 174 Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 507–508.
• 175 Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 508.
• 176 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2022, 5 [17].
• 177 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 5 [22].
• 178 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 4 [19]; Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 448–449.
• 179 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 4 [19].
• 180 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 5 [21(b)].
• 181 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 5 [20(c)].
• 182 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 4 [20(a)].
• 183 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 4 [20(a)]; Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 448–449.
• 184 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2023, 5 [21(a)].
• 185 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 3 [9]; Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(81) [MSC.5003.0001.0030 at .0032], Exhibit CA-12(86) [MSC.5005.0003.0120].
• 186 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(81) [MSC.5003.0001.0030 at .0032].
• 187 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 4 [11].
• 188 Email from Andrew Joseph to “undisclosed recipients” about meeting on 16 November 2022, 17 November 2022, [MSC.5005.0003.0764].
• 189 Email from Andrew Joseph to “undisclosed recipients” about meeting on 16 November 2022, 17 November 2022, [MSC.5005.0003.0764].
• 190 Email from Andrew Joseph to “undisclosed recipients” about meeting on 16 November 2022, 17 November 2022, [MSC.5005.0003.0764].
• 191 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 4 [13].
• 192 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 4 [14(a)].
• 193 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 4 [14(a)].
• 194 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 4 [14(b)].
• 195 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 5 [16].
• 196 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 5 [17]; Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(2) [MSC.5007.0003.0515], Exhibit CA-32(3) [MSC.5007.0003.0646], Exhibit CA-32(4) [MSC.5007.0003.0141].
• 197 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 5 [18].
• 198 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 5 [19]; Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(5) [MSC.5007.0003.0858].
• 199 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 5 [20].
• 200 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 5 [20].
• 201 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 6 [24].
• 202 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(6) [MSC.5007.0003.0804].
• 203 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(6) [MSC.5007.0003.0804].
• 204 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741].
• 205 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1741–.1745].
• 206 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 6 [27].
• 207 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 452.
• 208 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 452.
• 209 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1746].
• 210 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1746].
• 211 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1746].
• 212 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1746].
• 213 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1746].
• 214 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1746].
• 215 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1746].
• 216 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1747].
• 217 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1746].
• 218 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1747].
• 219 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1747].
• 220 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1748].
• 221 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1748].
• 222 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1748].
• 223 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 5 December 2022, [MSC.5000.0001.1741 at .1748].
• 224 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292].
• 225 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0297–.0299].
• 226 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0303].
• 227 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0293].
• 228 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0306–.0307].
• 229 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0293].
• 230 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(7) [MSC.5000.0001.0292 at .0306].
• 231 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-7 [RES.0010.0001.0007].
• 232 Maw Civil Marine Pty Ltd, McCrae Land Slip Methodology: Pre Xmas-Site Works, 15 December 2022, [MSC.5002.0001.0655].
• 233 Email from Gerrard Borghesi to Benjamin Essing and Claudio Flores about Maw Civil proposed work methodology, 15 December 2022, [MSC.5005.0004.9139].
• 234 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 16 December 2022, [MSC.5005.0004.9561].
• 235 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 16 December 2022, [MSC.5005.0004.9561].
• 236 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 16 December 2022, [MSC.5005.0004.9561 at .9561–.9562].
• 237 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 16 December 2022, [MSC.5005.0004.9561 at .9562].
• 238 Jinke Yu, CivilTest Pty Ltd, Expert Assessment – 10–12 View Point Road, McCrae, 16 December 2022, [MSC.5005.0004.9561 at .9562].
• 239 Email chain between Gerrard Borghesi, Benjamin Essing, Claudio Flores and Christopher Lyne et al about Maw Civil proposed work methodology, 16 December 2022 [MSC.5005.0004.9619 at .9620].
• 240 Email chain between Gerrard Borghesi, Benjamin Essing, Claudio Flores and Christopher Lyne et al about Maw Civil proposed work methodology, 16 December 2022 [MSC.5005.0004.9619 at .9620].
• 241 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 8 [38].
• 242 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-8 [RES.0010.0001.0008].
• 243 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 8 [39].
• 244 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 8–9 [42]–[43]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-10 [RES.0010.0001.0010].
• 245 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 9 [45]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-11 [RES.0010.0001.0011].
• 246 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 9 [46]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-12 [RES.0010.0001.0012].
• 247 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 457.
• 248 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 9–10 [49].
• 249 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 10 [50].
• 250 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 11 [56].
• 251 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 11 [57]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-14 [RES.0010.0001.0014].
• 252 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-14 [RES.0010.0001.0014 at _0002].
• 253 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 11 [59].
• 254 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 4 [22].
• 255 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 11 [58]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-15 [RES.0010.0001.0017].
• 256 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 11 [58]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-15 [RES.0010.0001.0017].
• 257 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 12 [65]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-16 [RES.0010.0001.0018].
• 258 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 2 [9(a)].
• 259 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 2 [9(b)]; Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 484.
• 260 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 2 [11]; Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 483–484.
• 261 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0006].
• 262 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 13 [66]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-17 [RES.0010.0001.0019].
• 263 Email from Kendrick Koa to Benjamin Essing about Logocon Report, 21 February 2023, [MSC.5005.0007.3284].
• 264 Robert Logozzo, Logocon, Structural Engineering Investigation Report, 16 February 2023, [MSC.5005.0007.3288 at .3290].
• 265 Robert Logozzo, Logocon, Structural Engineering Investigation Report, 16 February 2023, [MSC.5005.0007.3288 at .3294].
• 266 Robert Logozzo, Logocon, Structural Engineering Investigation Report, 16 February 2023, [MSC.5005.0007.3288 at .3294].
• 267 Robert Logozzo, Logocon, Structural Engineering Investigation Report, 16 February 2023, [MSC.5005.0007.3288 at .3294].
• 268 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 13 [71]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-18 [RES.0010.0001.0023].
• 269 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 13 [72]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-18 [RES.0010.0001.0023].
• 270 Public Submission of Dr Joseph Radcliffe, 8 May 2025, [SUB.0036.0001.0001].
• 271 Public Submission of Dr Joseph Radcliffe, 8 May 2025, [SUB.0036.0002.0001].
• 272 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 1 [3]; Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 2 [10].
• 273 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 1 [3]; Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 2 [11].
• 274 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 1 [4]; Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 2 [12].
• 275 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 1 [5]; Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 2 [13].
• 276 Exhibit CA-16 First Witness Statement of Nicholas James Moran, 12 May 2025, 2 [14].
• 277 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 3 [15]; Exhibit CA-16 First Witness Statement of Nicholas James Moran, 12 May 2025, Exhibit NM-3 [RES.0009.0001.0009]; Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 2 [7].
• 278 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 3 [16].
• 279 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 3 [17]; Exhibit CA-16 First Witness Statement of Nicholas James Moran, 12 May 2025, Exhibit NM-3 [RES.0009.0001.0009 at _0002].
• 280 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 3–4 [19]; Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 2 [8].
• 281 Email from Claudio Flores to Gerrard Borghesi about Building Order for 10–12 View Point Road, 28 March 2023, [MSC.5003.0001.0472].
• 282 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(8) [MSC.5007.0003.0564].
• 283 Email from Claudio Flores to Gerrard Borghesi about Building Order for 10–12 View Point Road, 28 March 2023, [MSC.5003.0001.0472].
• 284 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(8) [MSC.5007.0003.0564 at .0565].
• 285 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(8) [MSC.5007.0003.0564 at .0565].
• 286 Email from Gerrard Borghesi to Claudio Flores about Landslide Stability Assessment prepared by CivilTest, 28 April 2023, [MSC.5005.0019.6708]; Daniel Tolan and William She, Civil Test Pty Ltd, Land Stability Assessment at 10–12 View Point Road, 24 March 2023, [MSC.5005.0019.6709].
• 287 Daniel Tolan and William She, Civil Test Pty Ltd, Land Stability Assessment at 10–12 View Point Road, 24 March 2023, [MSC.5005.0019.6709 at .6711].
• 288 Daniel Tolan and William She, Civil Test Pty Ltd, Land Stability Assessment at 10–12 View Point Road, 24 March 2023, [MSC.5005.0019.6709 at .6720].
• 289 Daniel Tolan and William She, Civil Test Pty Ltd, Land Stability Assessment at 10–12 View Point Road, 24 March 2023, [MSC.5005.0019.6709 at .6720].
• 290 Daniel Tolan and William She, Civil Test Pty Ltd, Land Stability Assessment at 10–12 View Point Road, 24 March 2023, [MSC.5005.0019.6709 at .6720].
• 291 Daniel Tolan and William She, Civil Test Pty Ltd, Land Stability Assessment at 10–12 View Point Road, 24 March 2023, [MSC.5005.0019.6709 at .6718].
• 292 Exhibit CA-60, Second Witness Statement of Melissa Burrage, 27 June 2025, 2 [7].
• 293 Email from Gerrard Borghesi to Claudio Flores about Landslide Stability Assessment undertaken by CivilTest, 28 April 2023, [MSC.5005.0019.6708].
• 294 Email from Gerrard Borghesi to Claudio Flores about Landslide Stability Assessment undertaken by CivilTest, 28 April 2023, [MSC.5005.0019.6708].
• 295 Email from Gerrard Borghesi to Claudio Flores about Landslide Stability Assessment undertaken by CivilTest, 28 April 2023, [MSC.5005.0019.6708].
• 296 Email from Claudio Flores to Gerrard Borghesi about Factor of Safety Rating, 9 May 2023, [MSC.5005.0019.6745].
• 297 Email from Claudio Flores to Gerrard Borghesi about Factor of Safety Rating, 9 May 2023, [MSC.5005.0019.6745].
• 298 Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 513.
• 299 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0010].
• 300 Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 515; Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0019].
• 301 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0025].
• 302 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(9) [MSC.5005.0011.4483].
• 303 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(9) [MSC.5005.0011.4483].
• 304 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 3 [18]; Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 520.
• 305 Email chain between Gerrard Borghesi, Claudio Flores and Davin Slade et al about Stantec’s peer review of the Land Stability Assessment undertaken by CivilTest, 18 July 2023, [MSC.5039.0001.0247]; Email chain between Gerrard Borghesi, Claudio Fores and Davin Slade et all about Stantec’s peer review of the Land Stability Assessment undertaken by Civil Test, 21 August 2023 [MSC.5039.0001.0255]; William She and Jinke Yu, Civil Test Pty Ltd, Land Stability Assessment at 10–12 View Point Road, 6 June 2023, [MSC.5000.0001.1131].
• 306 William She and Jinke Yu, Civil Test Pty Ltd, Land Stability Assessment at 10–12 View Point Road, 6 June 2023, [MSC.5000.0001.1131 at .1141–.1142].
• 307 William She and Jinke Yu, Civil Test Pty Ltd, Land Stability Assessment at 10–12 View Point Road, 6 June 2023, [MSC.5000.0001.1131 at .1143].
• 308 Rexicon Consulting Engineers, Proposed Land Stability Design for 10–12 & 14–16 View Point Road, 16 June 2023, [MSC.5003.0001.0805].
• 309 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 15 [83], 15 [85], 16 [88(b)], 16 [91].
• 310 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 16 [88(a)].
• 311 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 16 [89].
• 312 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 16 [86], 17 [92]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-21 [RES.0010.0001.0028], Exhibit PW-22 [RES.0010.0001.0029 at _0004].
• 313 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(87) [MSC.5000.0001.0974].
• 314 William She and Jinke Yu, Civil Test Pty Ltd, Land Stability Assessment at 10–12 View Point Road, 2 August 2023, [MSC.5005.0030.2303].
• 315 Email chain between Gerrard Borghesi, Claudio Fores and David Slade et al about Stantec’s peer review of the Land Stability Assessment undertaken by Civil Test, 21 August 2023, [MSC.5039.0001.0255].
• 316 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 17 [93]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-22 [RES.0010.0001.0029 at .0003].
• 317 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 465–466.
• 318 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 17 [97]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-23 [RES.0010.0001.0038].
• 319 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 466.
• 320 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 17 [99].
• 321 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 466.
• 322 Email chain between Gerrard Borghesi, Bronwyn Borghesi and Claudio Flores about the Shire’s responsibility for remediation works following November 2022 landslides, 13 September 2023, [MSC.5005.0018.0340].
• 323 Email chain between Gerrard Borghesi, Bronwyn Borghesi and Claudio Flores about the Shire’s responsibility for remediation works following November 2022 landslides, 13 September 2023, [MSC.5005.0018.0340].
• 324 Email chain between Gerrard Borghesi, Bronwyn Borghesi and Claudio Flores about the Shire’s responsibility for remediation works following November 2022 landslides, 13 September 2023, [MSC.5005.0018.0340 at .0341].
• 325 Exhibit MPSC-1, Email from Gerrard Borghesi to Maw Civil about veggie patch retaining wall, 18 October 2023, [MSC.5039.0001.0259].
• 326 Exhibit MPSC-1, Email from Gerrard Borghesi to Maw Civil about veggie patch retaining wall, 18 October 2023, [MSC.5039.0001.0259].
• 327 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 18 [100]–[102]; Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 467.
• 328 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 18 [102].
• 329 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 18 [104].
• 330 Exhibit CA-5, Landslide Risk Assessment regarding 10–12 View Point Road prepared by PSM, 3 November 2023, [MSC.5000.0001.1206].
• 331 Email From Gerrard Borghesi to Jane Gleeson and Simon Bulk about design of veggie patch retaining wall, 15 December 2023, [MSC.5039.0001.0265]; Drawing of design of veggie patch retaining wall, 15 December 2023, [MSC.5039.0001.0268].
• 332 Email From Gerrard Borghesi to Jane Gleeson and Simon Bulk about design of veggie patch retaining wall, 15 December 2023, [MSC.5039.0001.0265].
• 333 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0012].
• 334 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0019].
• 335 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0020].
• 336 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 5 [29(f)]; Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 498; Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 538.
• 337 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 5 [29(f)].
• 338 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 539.
• 339 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 540.
• 340 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0044].
• 341 Photograph of completed reinforcement wall at 10–12 View Point Road, [MSC.5039.0001.0315].
• 342 Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 499–500.
• 343 Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 499–500. A building permit is required for any retaining wall that is above one metre in height that is not otherwise part of or related to works already permitted: Building Regulations 2018 (Vic), sch 3, item 5.
• 344 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 539.
• 345 Letter from Rotman & Morris Solicitors to Harwood Andrews about 10–12 View Point Road, 30 January 2024, [BAB.0001.0002.0020 at _0005].
• 346 Letter from Rotman & Morris Solicitors to Harwood Andrews about 10–12 View Point Road, 30 January 2024, [BAB.0001.0002.0020 at _0005].
• 347 Letter from Rotman & Morris Solicitors to Harwood Andrews about 10–12 View Point Road, 30 January 2024, [BAB.0001.0002.0020 at _0005–_0006].
• 348 Letter from Rotman & Morris Solicitors to Harwood Andrews about 10–12 View Point Road, 30 January 2024, [BAB.0001.0002.0020 at _0006].
• 349 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 19 [106].
• 350 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-24 [RES.0010.0001.0039].
• 351 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 19 [107].
• 352 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 19 [107].
• 353 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 19 [107].
• 354 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 19 [111].
• 355 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 19 [110].
• 356 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 6–7 [25]; Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(11) [MSC.5002.0001.0898].
• 357 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 6 [25]; Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, Exhibit CA-32(11) [MSC.5002.0001.0898 at .0900].
• 358 Letter from Rotman & Morris Solicitors to Claudio Flores about Building Notice BN-002/24, 12 March 2024, [BAB.0001.0002.0020 at _0003].
• 359 Letter from Rotman & Morris Solicitors to Claudio Flores about Building Notice BN-002/24, 12 March 2024, [BAB.0001.0002.0020 at _0003].
• 360 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 20 [113]; Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(117) [MSC.5002.0001.7583].
• 361 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2022, 7 [26]; Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2022, Exhibit CA-32(12) [MSC.5002.0001.1567].
• 362 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2022, 7 [26]; Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2022, Exhibit CA-32(12) [MSC.5002.0001.1567].
• 363 Email from Daniel Darling-Filby to David Graj about the withdrawal of EO-152/22, 5 April 2024, [BAB.0001.0002.0018].
• 364 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 20 [115].
• 365 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 20 [116].
• 366 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 20 [116].
• 367 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 20 [117].
• 368 Appeal Application to the Building Appeals Board in respect of 10–12 View Point Rd, 3 May 2024, [BAB.0001.0002.0014]; Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 523.
• 369 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 522.
• 370 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 4 [25].
• 371 Exhibit CA-6, Expert Opinion Report: Landslide Assessment in relation to 10–12 View Point Road prepared by PSM, 11 June 2024, [MSC.5000.0001.0639].
• 372 Exhibit CA-6, Expert Opinion Report: Landslide Assessment in relation to 10–12 View Point Road prepared by PSM, 11 June 2024, [MSC.5000.0001.0639 at .0663].
• 373 Exhibit CA-6, Expert Opinion Report: Landslide Assessment in relation to 10–12 View Point Road prepared by PSM, 11 June 2024, [MSC.5000.0001.0639 at .0663].
• 374 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 6 [24(b)].
• 375 Exhibit CA-32, Witness Statement of Claudio Flores, 22 May 2025, 6 [24(b)].
• 376 Exhibit CA-6, Expert Opinion Report: Landslide Assessment in relation to 10–12 View Point Road prepared by PSM, 11 June 2024, [MSC.5000.0001.0639 at .0667].
• 377 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, 19 [51].
• 378 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(66) [MSC.5014.0001.0532 at .0648].
• 379 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(66) [MSC.5014.0001.0532 at .0627].
• 380 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(66) [MSC.5014.0001.0532 at .0664].
• 381 Nearmap, Image of McCrae Area (Web Page, July 2025) <https://apps.nearmap.com/maps/#/HtmyQ3yxQE6tLWdDNBPuoQ/@-38.3469521,144…;.
• 382 Public Submission of McCrae Resident, 5 May 2025, [SUB.0032.0001.0001].
• 383 Exhibit CA-17, Witness Statement of Brett Phillips Cooper, 12 May 2025, 1 [4]–[5]; Public Hearing Transcript, Brett Phillips Cooper, 12 May 2025, 328–329.
• 384 Public Submission of Philip Johnson, 30 April 2025, [SUB.0004.0010.0001].
• 385 Public Submission of Philip Johnson, 30 April 2025, [SUB.0004.0010.0001].
• 386 Public Submission of Philip Johnson, 30 April 2025, [SUB.0004.0010.0001].
• 387 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0085].
• 388 Exhibit CA-31, Second Witness of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0019], [MSC.5028.0001.0040].
• 389 Exhibit CA-31, Second Witness of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0019], [MSC.5028.0001.0040].
• 390 Exhibit CA-31, First Witness Statement of David Smith, 17 April 2025, Exhibit CA-31(4) [MSC.5016.0001.1915].
• 391 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0085].
• 392 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0085].
• 393 Exhibit CA-31, First Witness Statement of David Smith, 17 April 2025, Exhibit CA-31(13) [MSC.5018.0001.0021 at .0022].
• 394 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0085 at _0013].
• 395 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0085 at _0014].
• 396 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0085 at _0013].
• 397 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 20–21 [119].
• 398 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 469–470.
• 399 Exhibit CA-17, Witness Statement of Brett Phillips Cooper, 12 May 2025, 2 [8(a)]; Public Hearing Transcript, Brett Phillips Cooper, 12 May 2025, 332.
• 400 Exhibit CA-17, Witness Statement of Brett Phillips Cooper, 12 May 2025, 3 [8(b)]; Public Hearing Transcript, Brett Phillips Cooper, 12 May 2025, 330.
• 401 Exhibit CA-17, Witness Statement of Brett Phillips Cooper, 12 May 2025, 3 [9].
• 402 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0020], [MSC.5028.0001.0041].
• 403 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0020], [MSC.5028.0001.0041].
• 404 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0020], [MSC.5028.0001.0041].
• 405 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076].
• 406 South East Water, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0094].
• 407 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0020], [MSC.5028.0001.0042].
• 408 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076].
• 409 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0020], [MSC.5028.0001.0042].
• 410 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0020], [MSC.5028.0001.0042].
• 411 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0020].
• 412 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0021], [MSC.5028.0001.0043].
• 413 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0085 at _0013].
• 414 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0085 at _0013].
• 415 Exhibit CA-31, First Witness Statement of David Smith, 17 April 2025, 9.
• 416 Exhibit CA-31, First Witness Statement of David Smith, 17 April 2025, Exhibit CA-31(13) [MSC.5018.0001.0021 at .0022].
• 417 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0021], [MSC.5028.0001.0043].
• 418 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0016].
• 419 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0015].
• 420 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0015].
• 421 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0015].
• 422 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0021], [MSC.5031.0001.5866].
• 423 Screenshot of Facebook Post on McCrae Village Community Group page, 21 December 2024, [MSC.5035.0001.0025].
• 424 Screenshot of Facebook Post on McCrae Village Community Group page, 21 December 2024, [MSC.5035.0001.0025].
• 425 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0021], [MSC.5032.0001.0002].
• 426 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0085].
• 427 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0085 at _0002].
• 428 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0021], [MSC.5031.0001.5866].
• 429 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0021], [MSC.5032.0001.0002].
• 430 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0019], [MSC.5028.0001.0040].
• 431 Public Hearing Transcript, Jason Marsh, 23 June 2025, 916.
• 432 Exhibit CA-25, Witness Statement of Lara Olsen, 16 May 2025, 4 [24(a)].
• 433 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, Exhibit 1 [SEW.0001.0001.4923]; Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025 [SEW.0001.0001.0076 at _0037].
• 434 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, Exhibit 2 [SEW.0001.0001.4921].
• 435 Public Hearing Transcript, Jason Marsh, 23 June 2025, 916.
• 436 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, Exhibit 2 [SEW.0001.0001.4921].
• 437 Public Hearing Transcript, Jason Marsh, 23 June 2025, 916–918.
• 438 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, 2 [10].
• 439 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, 2 [10].
• 440 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, 2 [10]; Public Hearing Transcript, Jason Marsh, 23 June 2025, 921.
• 441 Exhibit CA-17, Witness Statement of Brett Phillips Cooper, 12 May 2025, 5 [18]; Public Hearing Transcript, Brett Phillips Cooper, 12 May 2025, 338–339.
• 442 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, Exhibit 1 [SEW.0001.0001.4923].
• 443 Public Hearing Transcript, Jason Marsh, 23 June 2025, 926.
• 444 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, Exhibit 2 [SEW.0001.0001.4921].
• 445 Public Hearing Transcript, Jason Marsh, 23 June 2025, 926–927.
• 446 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, Exhibit 2 [SEW.0001.0001.4921].
• 447 Email from Hayden Phillips to Jason Marsh et al about potential source of water observed near 4 Waller Place, 24 December 2024, [SEW.0001.0001.0967].
• 448 Exhibit CA-17, Witness Statement of Brett Phillips Cooper, 12 May 2025, 5–6 [20]–[21].
• 449 Exhibit CA-17, Witness Statement of Brett Phillips Cooper, 12 May 2025 6 [22].
• 450 Public Hearing Transcript, Jason Marsh, 23 June 2025, 928.
• 451 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, 3 [15]–[16].
• 452 Public Hearing Transcript, Jason Marsh, 23 June 2025, 929.
• 453 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0088].
• 454 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0088].
• 455 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0088].
• 456 Public Hearing Transcript, Jason Marsh, 23 June 2025, 930.
• 457 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, 4 [20].
• 458 Exhibit CA-37, Witness Statement of Jason Marsh, 23 June 2025, 1-2 [4]-[5].
• 459 Public Hearing Transcript, Jason Marsh, 23 June 2025, 930.
• 460 Exhibit CA-28, Email chain between Charles Swain, Gary Loudon and Declan McCreesh et al about burst in Bayview Road, 3 February 2025, [SEW.0001.0001.0036 at _0002].
• 461 Exhibit CA-28, Email chain between Charles Swain, Gary Loudon and Declan McCreesh et al about burst in Bayview Road, 3 February 2025, [SEW.0001.0001.0036 at _0002].
• 462 Exhibit CA-28, Email chain between Charles Swain, Gary Loudon and Declan McCreesh et al about burst in Bayview Road, 3 February 2025, [SEW.0001.0001.0036 at _0002].
• 463 Exhibit CA-28, Email chain between Charles Swain, Gary Loudon and Declan McCreesh et al about burst in Bayview Road, 3 February 2025, [SEW.0001.0001.0036 at _0003].
• 464 Exhibit CA-29, South East Water Submission to the Board of Inquiry into McCrae Landslide, April 2025, [SEW.0001.0001.0111 at _0008–_0009].
• 465 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0075].
• 466 Exhibit CA-39, Email chain between Jason Marsh, Charles Swain, Gary Loudon et al about reported leak at 4 Waller Place, 30 December 2024, [SEW.0001.0001.0966].
• 467 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0075].
• 468 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0075].
• 469 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0075].
• 470 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0089, _0092, _0093].
• 471 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0075].
• 472 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0076].
• 473 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0076].
• 474 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0076].
• 475 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0076].
• 476 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0107].
• 477 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0076].
• 478 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0076].
• 479 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0076–_0077].
• 480 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0076–_0077].
• 481 Exhibit SEW-2, South East Water Montage Records, 1 November 2024–31 January 2025, [SEW.0001.0001.0076 at _0076–_0077].
• 482 Exhibit CA-31, Second Witness Statement of David Smith, 30 April 2025, Exhibit CA-31(1) [MSC.9000.0001.0017 at .0032].
• 483 Exhibit CA-17, Witness Statement of Brett Phillips Cooper, 12 May 2025, 7 [26].
• 484 Exhibit CA-67, McCrae Landslide Causation Report prepared by WSP, 21 July 2025, [DPA.0004.0001.0001 at _0011].
• 485 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 3 [13]-[14].
• 486 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 3 [14].
• 487 Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 266.
• 488 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 3 [15].
• 489 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 3 [14]–[15]; Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 267.
• 490 Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 267.
• 491 Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 267.
• 492 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, Exhibit KM-2 [RES.0009.0001.0004].
• 493 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 2 [5(a)], 46 [123]; Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(121) [MSC.5003.0001.7156].
• 494 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 46 [125]; Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(122) [MSC.5003.0001.7180].
• 495 Exhibit CA-67, McCrae Landslide Causation Report prepared by WSP, 21 July 2025, [DPA.0004.0001.0001 at _0107].
• 496 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 47 [128].
• 497 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 47 [128].
• 498 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(122) [MSC.5003.0001.7180].
• 499 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 3 [15]; Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 267.
• 500 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 4 [17].
• 501 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 502 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 4 [19].
• 503 Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 269.
• 504 Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 270.
• 505 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 506 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 507 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 4 [21].
• 508 Public Hearing Transcript, Nicholas James Moran, 12 May 2025, 300.
• 509 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 510 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 4–5 [22], [24].
• 511 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 512 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 5–6 [29(a)], [29(c)]; Public Hearing Transcript, Nicholas James Moran, 12 May 2025, 301.
• 513 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 6 [29(d)].
• 514 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0033].
• 515 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, 3 [6(a)].
• 516 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, 3 [6(a)].
• 517 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, 3 [6(b)].
• 518 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, 3 [7].
• 519 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, 3 [6(c)-(d)], 4 [9(a)]; Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(121) [MSC.5003.0001.7156].
• 520 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009]. Note: document refers to ‘Southwest Water’ in error.
• 521 South East Water, Task Summary of Planned Maintenance Repair at 3 Penny Lane, 5 January 2025, [SEW.0001.0001.0127 at _0002].
• 522 South East Water, Task Summary of Planned Maintenance Repair at 3 Penny Lane, 5 January 2025, [SEW.0001.0001.0127 at _0002].
• 523 Public Hearing Transcript, Tim Lloyd, 23 June 2025, 814.
• 524 Public Hearing Transcript, Tim Lloyd, 23 June 2025, 814.
• 525 South East Water, Task Summary of Planned Maintenance Repair at 3 Penny Lane, 5 January 2025, [SEW.0001.0001.0127 at _0003].
• 526 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 527 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 6 [32].
• 528 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 6–7 [33]; RACV file notes relating to claim of Nicholas Moran at 3 Penny Lane, 5 January 2025–4 March 2025, [IMA.0001.0001.0188].
• 529 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 530 South East Water, Task Summary of Planned Maintenance Repair at 3 Penny Lane, 5 January 2025, [SEW.0001.0001.0127]; Exhibit CA-50, Witness Statement of Declan McCreesh, 4 June 2025, 5 [24(c)-(d)].
• 531 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, 4 [9(b)]; Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 3 [6]; Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(121) [MSC.5003.0001.7156]; State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 532 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 3 [6].
• 533 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 534 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 7 [34]–[35].
• 535 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 7 [34]–[35].
• 536 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0033].
• 537 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 538 Exhibit CA-38, Email from Jason Marsh to Charles Swain about inspection of landslide site and sampling, 6 January 2025, [SEW.0001.0001.0454].
• 539 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009].
• 540 Exhibit CA-38, Email from Jason Marsh to Charles Swain about inspection of landslide site and sampling, 6 January 2025, [SEW.0001.0001.0454].
• 541 Exhibit CA-38, Email from Jason Marsh to Charles Swain about inspection of landslide site and sampling, 6 January 2025, [SEW.0001.0001.0454].
• 542 Exhibit CA-38, Email from Jason Marsh to Charles Swain about inspection of landslide site and sampling, 6 January 2025, [SEW.0001.0001.0454].
• 543 Public Hearing Transcript, Jason Marsh, 23 June 2025, 936.
• 544 Public Hearing Transcript, Jason Marsh, 23 June 2025, 936.
• 545 Public Hearing Transcript, Jason Marsh, 23 June 2025, 937.
• 546 Email from Mathew Hopwood-Glover to Renae Littlejohn and Rory MacDonald about landslip impact at 10–12 View Point Road, 6 January 2025, [MSC.5005.0042.0892].
• 547 Email from Mathew Hopwood-Glover to Renae Littlejohn and Rory MacDonald about landslip impact at 10–12 View Point Road, 6 January 2025, [MSC.5005.0042.0892].
• 548 Email from Mathew Hopwood-Glover to Renae Littlejohn and Rory MacDonald about landslip impact at 10–12 View Point Road, 6 January 2025, [MSC.5005.0042.0892].
• 549 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 3 [8].
• 550 Email chain between Dane Pope and the Mornington Peninsula Shire Council about permits for 3 Penny Lane and retaining wall at 10–12 View Point Road, 6–7 January 2025, [MSC.5003.0001.7175].
• 551 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0040].
• 552 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0032].
• 553 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.001 at _0032].
• 554 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 8 [38].
• 555 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009]; Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 3 [7].
• 556 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 3 [7].
• 557 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(235) [MSC.5016.0001.0863 at .0865].
• 558 South East Water, Task Summary of Planned Maintenance Repair at 3 Penny Lane, 5 January 2025, [SEW.0001.0001.0127].
• 559 South East Water, Task Summary of Planned Maintenance Repair at 3 Penny Lane, 5 January 2025, [SEW.0001.0001.0127].
• 560 South East Water, Task Summary of Planned Maintenance Repair at 3 Penny Lane, 5 January 2025, [SEW.0001.0001.0127].
• 561 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 3 [8]; Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0032].
• 562 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 3 [8].
• 563 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 3 [9].
• 564 Exhibit CA-63, Second Witness Statement of Mathew Hopwood-Glover, 17 July 2025, 2–3 [5].
• 565 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, 15 [55(h)].
• 566 State Emergency Service, Emergency call log in relation to 3 Penny Lane, 5–6 January 2025, [SES.0001.0002.0009]; Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0032].
• 567 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0032].
• 568 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 6 [32]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 21 [122]–[123].
• 569 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 8 [41].
• 570 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 9 [42]–[43].
• 571 Midcity, Summary of works completed by Midcity at 3 Penny Lane, 5–14 January 2025, [IMA.0001.0001.0078].
• 572 Mark Finningham, Midcity, Expert Report regarding damage incurred at 3 Penny Lane, 7 January 2025, [IMA.0001.0001.0320].
• 573 Mark Finningham, Midcity, Expert Report regarding damage incurred at 3 Penny Lane, 7 January 2025, [IMA.0001.0001.0320].
• 574 Midcity, Summary of works completed by Midcity at 3 Penny Lane, 5–14 January 2025, [IMA.0001.0001.0078].
• 575 RACV file notes relating to claim of Nicholas Moran at 3 Penny Lane, 5 January 2025–4 March 2025, [IMA.0001.0001.0188].
• 576 RACV file notes relating to claim of Nicholas Moran at 3 Penny Lane, 5 January 2025–4 March 2025, [IMA.0001.0001.0188].
• 577 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0034].
• 578 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0034].
• 579 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(121) [MSC.5003.0001.7156].
• 580 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(121) [MSC.5003.0001.7156].
• 581 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(3) [MSC.5005.0042.2288 at .2291–.2292].
• 582 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(3) [MSC.5005.0042.2288 at .2291].
• 583 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 3 [10].
• 584 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 3 [11].
• 585 Email chain between Dane Pope and the Mornington Peninsula Shire Council about permits for 3 Penny Lane and retaining wall at 10–12 View Point Road, 6–7 January 2025, [MSC.5003.0001.7175].
• 586 Email chain between Dane Pope and the Mornington Peninsula Shire Council about permits for 3 Penny Lane and retaining wall at 10–12 View Point Road, 6–7 January 2025, [MSC.5003.0001.7175].
• 587 Email chain between Dane Pope and Mornington Peninsula Shire Council about permits for 3 Penny Lane and retaining wall at 10–12 View Point Road, 6–7 January 2025, [MSC.5003.0001.7175].
• 588 Email chain between Dane Pope and the Mornington Peninsula Shire Council about permits for 3 Penny Lane and retaining wall at 10–12 View Point Road, 6–7 January 2025, [MSC.5003.0001.7175].
• 589 Email chain between Dane Pope and the Mornington Peninsula Shire Council about permits for 3 Penny Lane and retaining wall at 10–12 View Point Road, 6–7 January 2025, [MSC.5003.0001.7175].
• 590 Public Hearing Transcript, Claudio Flores, 20 June 2025, 773–774; Email from Claudio Flores to Dane Pope and Mathew Hopwood-Glover about use of plumber’s dye in stormwater pits near 10–12 View Point Road, 7 January 2025, [MSC.5001.0001.1553].
• 591 Public Hearing Transcript, Claudio Flores, 20 June 2025, 774.
• 592 Public Hearing Transcript, Claudio Flores, 20 June 2025, 774.
• 593 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0040].
• 594 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0040].
• 595 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 528–529.
• 596 Public Hearing Transcript, Claudio Flores, 20 June 2025, 774–775.
• 597 Mornington Peninsula Shire Council, Response to potential adverse observations, 25 August 2025, [MSC.5094.0001.0001].
• 598 Comments from Charles Swain of South East Water about site visit to 10–12 View Point Road, 7 January 2025, [SEW.0001.0001.0731].
• 599 Comments from Charles Swain of South East Water about site visit to 10–12 View Point Road, 7 January 2025, [SEW.0001.0001.0731].
• 600 Comments from Charles Swain of South East Water about site visit to 10–12 View Point Road, 7 January 2025, [SEW.0001.0001.0731].
• 601 Comments from Charles Swain of South East Water about site visit to 10–12 View Point Road, 7 January 2025, [SEW.0001.0001.0731].
• 602 Comments from Charles Swain of South East Water about site visit to 10–12 View Point Road, 7 January 2025, [SEW.0001.0001.0731].
• 603 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, Exhibit CA-14(2) [MSC.5003.0001.7180].
• 604 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, Exhibit CA-14(2) [MSC.5003.0001.7180].
• 605 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, Exhibit CA-14(2) [MSC.5003.0001.7180].
• 606 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, Exhibit CA-14(2) [MSC.5003.0001.7180].
• 607 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, Exhibit CA-14(2) [MSC.5003.0001.7180].
• 608 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, Exhibit KM-3 [RES.0009.0001.0005 at _0003].
• 609 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 4 [13]; Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, Exhibit CA-61(5) [MSC.5005.0042.1513].
• 610 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 4 [13]; Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, Exhibit CA-61(5) [MSC.5005.0042.1513].
• 611 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 54 [148].
• 612 Email from Mathew Hopwood-Glover to Renae Littlejohn, Rory MacDonald and Claudio Flores et al about mitigating the risk of further landslide activity, 8 January 2025, [MSC.5003.0001.7185].
• 613 Email from Mathew Hopwood-Glover to Renae Littlejohn, Rory MacDonald and Claudio Flores et al about mitigating the risk of further landslide activity, 8 January 2025, [MSC.5003.0001.7185].
• 614 Email from Mathew Hopwood Glover to Renae Littlejohn, Rory MacDonald and Claudio Flores et al about mitigating the risk of further landslide activity, 8 January 2025, [MSC.5003.0001.7185].
• 615 Email from Mathew Hopwood-Glover to Renae Littlejohn, Rory MacDonald and Claudio Flores et al about mitigating the risk of further landslide activity, 8 January 2025, [MSC.5003.0001.7185].
• 616 Mornington Peninsula Shire Council, Response to potential adverse observations, 25 August 2025, [MSC.5094.0001.0001].
• 617 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, Exhibit KM-3 [RES.0009.0001.0005].
• 618 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 6 [33]; Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 9 [45].
• 619 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 6 [23].
• 620 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 6 [23].
• 621 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 6–7 [34]; Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 9 [46]; Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, Exhibit NM-6 [RES.0009.0001.0012].
• 622 Text message chain between Mathew Hopwood-Glover and Dane Pope about site visit conducted at 10–12 View Point Road, 6–13 January 2025, [MSC.5031.0001.6040].
• 623 Email chain between Mathew Hopwood-Glover, Claudio Flores and Peter O’Brien about water leak at Charlesworth Street, 8 January 2025, [MSC.5003.0001.7213].
• 624 Email chain between Mathew Hopwood-Glover, Claudio Flores and Peter O’Brien about water leak at Charlesworth Street, 8 January 2025, [MSC.5003.0001.7213].
• 625 Email chain between Mathew Hopwood-Glover, Claudio Flores and Peter O’Brien about water leak at Charlesworth Street, 8 January 2025, [MSC.5003.0001.7213].
• 626 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(19) [MSC.5003.0001.7216].
• 627 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0040].
• 628 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 529.
• 629 Email from Jason Marsh to Charles Swain et al about monitoring of storm drains and sounding services around Waller Place and Bayview Road, 9 January 2025, [SEW.0001.0001.0438].
• 630 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(19) [MSC.5003.0001.7216].
• 631 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 7 [38]; Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 10 [49]; RACV file notes relating to claim of Nicholas Moran at 3 Penny Lane, 5 January 2025–4 March 2025, [IMA.0001.0001.0188 at _0015]; Exhibit CA-82, Second Witness Statement of Nicholas James Moran, 1 [3] –[5]; Exhibit CA-83, Second Witness Statement of Kellie Anne Moran, 14 August 2025, 1 [3] –[5].
• 632 RACV, Property Assessment Report in respect of 3 Penny Lane, 9 January 2025, [IMA.0001.0001.0161 at _0001].
• 633 RACV, Property Assessment Report in respect of 3 Penny Lane, 9 January 2025, [IMA.0001.0001.0161 at _0051].
• 634 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(3) [MSC.5005.0042.2288 at .2289–.2290].
• 635 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(3) [MSC.5005.0042.2288 at .2290].
• 636 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(3) [MSC.5005.0042.2288 at .2289–.2290].
• 637 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(3) [MSC.5005.0042.2288 at .2288].
• 638 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 10 [51]; Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 7 [39]; Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, Exhibit KM-3 [RES.0009.0001.0005]; Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 4 [16]; RACV, Property Assessment Report in respect of 3 Penny Lane, 9 January 2025, [IMA.0001.0001.0161 at _0002].
• 639 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 7 [40].
• 640 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 4 [16].
• 641 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 7–8 [41].
• 642 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 8 [41(b)].
• 643 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 8 [41(c)].
• 644 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 10 [53(b)].
• 645 Public Hearing Transcript, Nicholas James Moran, 12 May 2025, 317.
• 646 RACV, Property Assessment Report in respect of 3 Penny Lane, 9 January 2025, [IMA.0001.0001.0161 at _0002].
• 647 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0040].
• 648 Mornington Peninsula Shire Council, Response to potential adverse observations, 25 August 2025, [MSC.5094.0001.0001].
• 649 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 4 [15]–[16]; Public Hearing Transcript, Gerrard Raymond Borghesi, 14 May 2025, 529.
• 650 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0034].
• 651 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 4 [16].
• 652 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(3) [MSC.5005.0042.2288 at .2289 –.2290].
• 653 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 7 [23(d)].
• 654 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 7 [25].
• 655 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 7 [25].
• 656 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 7 [25].
• 657 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 7 [25].
• 658 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 7 [26].
• 659 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(3) [MSC.5005.0042.2288 at .2288].
• 660 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 7 [26].
• 661 Exhibit CA-64, Third Witness Statement of Mathew Hopwood-Glover, 23 July 2025, Exhibit CA-64(3) [MSC.5005.0042.2288 at .2288].
• 662 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0035].
• 663 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0035, _0040].
• 664 Photograph of compromised tree on escarpment beneath 10–12 View Point Road taken by Gerrard Borghesi on 9 January 2025, [RES.0001.0004.0174].
• 665 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0035].
• 666 Midcity, Summary of works completed by Midcity at 3 Penny Lane, 5–14 January 2025, [IMA.0001.0001.0078].
• 667 RACV, Property Assessment Report in respect of 3 Penny Lane, 9 January 2025, [IMA.0001.0001.0161 at _0002].
• 668 RACV, Property Assessment Report in respect of 3 Penny Lane, 9 January 2025, [IMA.0001.0001.0161 at _0003].
• 669 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0035].
• 670 RACV, Property Assessment Report in respect of 3 Penny Lane, 9 January 2025, [IMA.0001.0001.0161 at _0003].
• 671 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 5 [18]; Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 12 [59].
• 672 RACV, Property Assessment Report in respect of 3 Penny Lane, 9 January 2025, [IMA.0001.0001.0161].
• 673 RACV, Property Assessment Report in respect of 3 Penny Lane, 9 January 2025, [IMA.0001.0001.0161 at _0003].
• 674 Midcity, Summary of works completed by Midcity at 3 Penny Lane, 5–14 January 2025, [IMA.0001.0001.0078].
• 675 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 5 [18].
• 676 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 6 [23(c)].
• 677 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 7 [23(c)(ii)].
• 678 Text message chain between Mathew Hopwood-Glover and Dane Pope about site visit conducted at 10–12 View Point Road, 6–13 January 2025, [MSC.5031.0001.6040].
• 679 Email from Mathew Hopwood-Glover to Dane Pope about photos taken at 10–12 View Point Road, 10 January 2025, [MSC.5005.0042.2452].
• 680 Email from Mathew Hopwood-Glover to Dane Pope about photos taken at 10–12 View Point Road, 10 January 2025, [MSC.5005.0042.2452 at .2463].
• 681 Email from Gerrard Borghesi to Mornington Peninsula Shire Building Permits about methodology and stabilisation scope of works for 10–12 View Point Road, 10 January 2025, [MSC.5003.0001.7272].
• 682 Maw Civil Marine Pty Ltd, Expert Report on Methodology at 10–12 View Point Road, 13 January 2025, [MSC.5003.0001.7273].
• 683 Email from Gerrard Borghesi to Mornington Peninsula Shire Building Permits about methodology and stabilisation scope of works for 10–12 View Point Road, 10 January 2025, [MSC.5003.0001.7272].
• 684 Email from Gerrard Borghesi to Mornington Peninsula Shire Building Permits about methodology and stabilisation scope of works for 10–12 View Point Road, 10 January 2025, [MSC.5003.0001.7272].
• 685 Mornington Peninsula Shire Council, Daily Report Spreadsheet, 10–11 January 2025, [MSC.5005.0042.2542].
• 686 Mornington Peninsula Shire Council, Daily Report Spreadsheet, 10–11 January 2025, [MSC.5005.0042.2542].
• 687 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 13 [66].
• 688 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 12 [63].
• 689 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, Exhibit NM-10 [RES.0009.0001.0007].
• 690 Midcity, Summary of works completed by Midcity at 3 Penny Lane, 5–14 January 2025, [IMA.0001.0001.0078]; Text message from Sue Scoble to David Jones of Midcity about failed water diversion at 3 Penny Lane, 11 January 2025, [IMA.0001.0001.0138].
• 691 Text message from Sue Scoble to David Jones of Midcity about failed water diversion at 3 Penny Lane, 11 January 2025, [IMA.0001.0001.0139].
• 692 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 529.
• 693 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 529.
• 694 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 536.
• 695 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 4 [17].
• 696 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 407.
• 697 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 408.
• 698 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 408–409.
• 699 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 4 [18]–[19].
• 700 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 4 [19]; Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 409.
• 701 Email chain between Sue Scoble and David Jones of Midcity Group about water diversion works at 3 Penny Lane, 9–12 January 2025, [IMA.0001.0001.0137].
• 702 Email chain between Sue Scoble and David Jones of Midcity about water diversion works at 3 Penny Lane, 9–12 January 2025, [IMA.0001.0001.0137].
• 703 Midcity, Summary of works completed by Midcity at 3 Penny Lane, 5–14 January 2025, [IMA.0001.0001.0078].
• 704 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0036].
• 705 Photograph of the retaining wall at 10–12 View Point Road failing taken by Gerrard Borghesi on 12 January 2025, [RES.0001.0004.0169].
• 706 Text message chain between Mathew Hopwood-Glover and Dane Pope about site visit conducted at 10–12 View Point Road, 6–13 January 2025, [MSC.5031.0001.6040].
• 707 RACV file notes relating to claim of Nicholas Moran at 3 Penny Lane, 5 January 2025–4 March 2025, [IMA.0001.0001.0188 at _0013].
• 708 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 13 [67].
• 709 RACV file notes relating to claim of Nicholas Moran at 3 Penny Lane, 5 January 2025–4 March 2025, [IMA.0001.0001.0188 at _0013].
• 710 RACV file notes relating to claim of Nicholas Moran at 3 Penny Lane, 5 January 2025–4 March 2025, [IMA.0001.0001.0188 at _0013].
• 711 RACV file notes relating to claim of Nicholas Moran at 3 Penny Lane, 5 January 2025–4 March 2025, [IMA.0001.0001.0188 at _0013].
• 712 Midcity, Summary of works completed by Midcity at 3 Penny Lane, 5–14 January 2025, [IMA.0001.0001.0078].
• 713 Midcity, Summary of works completed by Midcity at 3 Penny Lane, 5–14 January 2025, [IMA.0001.0001.0078].
• 714 Midcity, Summary of works completed by Midcity at 3 Penny Lane, 5–14 January 2025, [IMA.0001.0001.0078].
• 715 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 13 [68]; Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 9 [45].
• 716 RACV file notes relating to claim of Nicholas Moran at 3 Penny Lane, 5 January 2025–4 March 2025, [IMA.0001.0001.0188 at _0013].
• 717 Photograph of 3 Penny Lane and 10–12 View Point Road with annotations showing location of broken pipe underneath retaining wall at 10–12 View Point Road, 13 January 2025, [IMA.0001.0001.0081].
• 718 Email chain between Mathew Hopwood-Glover and Sue Scoble about broken pipe at 3 Penny Lane, 13 January 2025, [IMA.0001.0001.0082].
• 719 Email chain between Mathew Hopwood-Glover and Sue Scoble about broken pipe at 3 Penny Lane, 13 January 2025, [IMA.0001.0001.0082].
• 720 Email chain between Mathew Hopwood-Glover and Dane Pope about broken pipe at 3 Penny Lane, 13 January 2025, [MSC.5005.0042.2868].
• 721 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 6 [21]; Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, Exhibit CA-61(7) [MSC.5003.0001.7277 at .7278].
• 722 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, Exhibit CA-61(7) [MSC.5003.0001.7277 at .7277].
• 723 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 6 [21]; Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, Exhibit CA-61(7) [MSC.5003.0001.7277 at .7277].
• 724 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, Exhibit CA-61(7) [MSC.5003.0001.7277 at .7277].
• 725 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, Exhibit GB-1 [RES.0001.0003.0001 at _0036].
• 726 Email from Mathew Hopwood-Glover to David Smith, Tom Haines-Sutherland, Renae Littlejohn and Rory MacDonald about OMBS preliminary assessment of leak, 13 January 2025, [MSC.5005.0042.2737].
• 727 Email from Mathew Hopwood-Glover to David Smith, Tom Haines-Sutherland, Renae Littlejohn and Rory MacDonald about OMBS preliminary assessment of leak, 13 January 2025, [MSC.5005.0042.2737].
• 728 Email from Mathew Hopwood-Glover to David Smith, Tom Haines-Sutherland, Renae Littlejohn and Rory MacDonald about OMBS preliminary assessment of leak, 13 January 2025, [MSC.5005.0042.2737 at .2738].
• 729 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 7-8 [27].
• 730 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 22 [127]; Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 472.
• 731 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 22 [128].
• 732 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 22 [129].
• 733 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 472–473.
• 734 Exhibit CA-61, First Witness Statement of Mathew Hopwood-Glover, 27 June 2025, 5 [18].
• 735 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 473.
• 736 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 529–530.
• 737 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 530.
• 738 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 531–532; Exhibit CA-24, Video of soil falling down escarpment and 3 Penny Lane debris taken by Gerrard Borghesi on 14 January 2025, [RES.0001.0004.0194].
• 739 Exhibit CA-17, Witness Statement of Brett Phillips Cooper, 12 May 2025, 7 [27].
• 740 State Emergency Service, Situation Report on landslide at 3 Penny Lane, 14 January 2025, [SES.0001.0002.0071 at .0071].
• 741 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 473.
• 742 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 22 [130].
• 743 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 473.
• 744 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 473.
• 745 Photograph of 3 Penny Lane following 14 January 2025 landslide, [MSC.5058.0001.0259].
• 746 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012].
• 747 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012].
• 748 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012 at .0013].
• 749 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012 at .0016].
• 750 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, Exhibit CA-14(3) [MSC.5003.0001.7421].
• 751 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, Exhibit CA-14(3) [MSC.5003.0001.7421].
• 752 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012 at .0017].
• 753 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 13 [71].
• 754 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 14 [71].
• 755 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 14 [72].
• 756 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 14 [73].
• 757 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012 at .0018].
• 758 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012 at .0019].
• 759 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 22–23 [132].
• 760 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012 at .0019].
• 761 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012 at .0020].
• 762 Exhibit CA-35, First Witness Statement of Tim Lloyd, 4 June 2025, Exhibit 4 [SEW.0001.0001.4907].
• 763 Exhibit CA-35, First Witness Statement of Tim Lloyd, 4 June 2025, Exhibit 4 [SEW.0001.0001.4907].
• 764 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 14 [74]; Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 9 [49]–[50].
• 765 Public Hearing Transcript, Nicholas James Moran, 12 May 2025, 324–325.
• 766 Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 285.
• 767 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 9 [51].
• 768 Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 286.
• 769 Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 286–287.
• 770 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 4 [21]; Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 4 [22].
• 771 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 4 [20].
• 772 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 4–5 [21]–[23].
• 773 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 4 [21].
• 774 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 4 [22].
• 775 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 4 [24].
• 776 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, Exhibit CA-14(4) [MSC.5019.0001.3389].
• 777 Exhibit CA-14, Third Witness Statement of David Simon, 7 May 2025, Exhibit CA-14(4) [MSC.5019.0001.3389].
• 778 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 14 [75].
• 779 Exhibit CA-36, Email chain between Tim Lloyd, Charles Swain and Prerna Ramamurthy about water leaks in McCrae, 14 January 2025, [SEW.0001.0001.0518].
• 780 Exhibit CA-36, Email chain between Tim Lloyd, Charles Swain and Prerna Ramamurthy about water leaks in McCrae, 14 January 2025, [SEW.0001.0001.0518].
• 781 Exhibit CA-36, Schematic of the water network in the McCrae area annotated by Charles Swain, 14 January 2025, [SEW.0001.0001.0027].
• 782 Exhibit CA-36, Email chain between Tim Lloyd, Charles Swain and Prerna Ramamurthy about water leaks in McCrae, 14 January 2025, [SEW.0001.0001.0518].
• 783 Exhibit CA-36, Email chain between Tim Lloyd, Charles Swain and Prerna Ramamurthy about water leaks in McCrae, 14 January 2025, [SEW.0001.0001.0518].
• 784 Public Hearing Transcript, Tim Lloyd, Lloyd, 23 June 2025, 865–866.
• 785 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012 at .0022].
• 786 Email from Derek Rotter to David Smith, Tom Haines-Sutherland and Luke Jackson about information on efforts to locate water source, 14 January 2025, [MSC.5005.0042.3308].
• 787 Email from Claudio Flores to Jack Divers and Rory MacDonald about information on efforts to locate water source, 14 January 2025, [MSC.5005.0042.3308 at .3309].
• 788 State Emergency Service, Emergency call log in relation to 3 Penny Lane and Point Nepean Road, 14–20 January 2025, [SES.0001.0002.0012 at .0023].
• 789 Email from Luke Jackson to David Smith, Claudio Flores, Derek Rotter and Tom Haines-Sutherland about information on efforts to locate water source, 14 January 2025, [MSC.5005.0042.3308 at .3308].
• 790 Email from Luke Jackson to David Smith, Claudio Flores, Derek Rotter and Tom Haines-Sutherland about information on efforts to locate water source, 14 January 2025, [MSC.5005.0042.3308 at .3308].
• 791 State Emergency Service, Situation Report on landslide at 3 Penny Lane, 14 January 2025, [SES.0001.0002.0071].
• 792 Terms of Reference, paragraph 3.4(j).
• 793 Terms of Reference, paragraph 3.4(l).
• 794 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 50-51 [138].
• 795 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 50–51 [138].
• 796 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(5) [MSC.5003.0002.3366].
• 797 Public Submission of Merryl and Bob Officer, 20 April 2025, [SUB.0005.0001.0002].
• 798 McCrae Community Session held on 9 April 2025.
• 799 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 51 [140].
• 800 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(111) [MSC.5002.0001.0883], Exhibit CA-12 (116) [MSC.5005.0027.0228].
• 801 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 4 [9].
• 802 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 85.
• 803 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, 85.
• 804 Exhibit CA-13, Second Witness Statement of David Simon, 17 April 2025, Exhibit CA-13(286) [MSC.5017.0001.0122].
• 805 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 5 [24]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 23 [134].
• 806 Public Submission of McCrae Resident, 1 May 2025, [SUB.0029.0001.0003].
• 807 Exhibit CA-72, McCrae Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0091].
• 808 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 10 [48]; Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 9 [42].
• 809 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 9 [42].
• 810 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 9 [43].
• 811 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 10 [49].
• 812 Public Submission of McCrae Resident, 30 April 2025, [SUB.0024.0001.0001].
• 813 Letter from Nicholas and Kellie Moran to the Board of Inquiry, 28 April 2025.
• 814 Public Hearing Transcript, Nicholas James Moran, 12 May 2025, 325.
• 815 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 2 [9].
• 816 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 1–2 [8].
• 817 Exhibit CA-15, First Witness Statement of Kellie Anne Moran, 12 May 2025, 2 [11].
• 818 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 14 [72]; Public Hearing Transcript, Nicholas James Moran, 12 May 2025, 324.
• 819 Public Hearing Transcript, Kellie Anne Moran, 12 May 2025, 286–287.
• 820 Exhibit CA-16, First Witness Statement of Nicholas James Moran, 12 May 2025, 14 [73].
• 821 Public Hearing Transcript, Nicholas James Moran, 12 May 2025, 324.
• 822 Public Hearing Transcript, Nicholas James Moran, 12 May 2025, 325.
• 823 Letter from Nicholas and Kellie Moran to the Board of Inquiry, 28 April 2025.
• 824 Exhibit CA-72, McCrae Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0058]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 1 [3].
• 825 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 2 [9].
• 826 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 2 [15(a)]; Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, Exhibit PW-4 [RES.0010.0001.0004].
• 827 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 6 [24], 17 [99], 19 [110].
• 828 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 18 [104].
• 829 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 19 [110].
• 830 Exhibit CA-72, McCrae Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0058].
• 831 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 22 [127].
• 832 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 474.
• 833 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 474.
• 834 Public Hearing Transcript, Paul Willigenburg, 14 May 2025, 474.
• 835 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 23 [134].
• 836 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 23 [135].
• 837 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 20 [117].
• 838 Exhibit CA-21, Witness Statement of Paul Willigenburg, 14 May 2025, 20 [118].
• 839 Exhibit CA-72, McCrae Landslide Risk Assessment for Evacuation Area prepared by PSM, 22 May 2025, [MSC.5047.0001.0001 at .0058].
• 840 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 2 [9(c)]; Public Submission of Gerrard Raymond Borghesi, 23 February 2025, [RES.0001.0001.0004].
• 841 Exhibit CA-12, First Witness Statement of David Simon, 11 April 2025, Exhibit CA-12(90) [MSC.5002.0001.1567].
• 842 Borghesi v Municipal Building Surveyor for the Shire of Mornington Peninsula [2025] VBAB 60.
• 843 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 4 [25].
• 844 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 4 [25]; Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 523.
• 845 Exhibit CA-22, Witness Statement of Gerrard Raymond Borghesi, 14 May 2025, 6 [31].
• 846 Interview with Gerrard Raymond Borghesi and Bronwyn Borghesi, 11 April 2025.
• 847 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 525.
• 848 Interview with Gerrard Raymond Borghesi and Bronwyn Borghesi, 11 April 2025.
• 849 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 530.
• 850 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 530.
• 851 Exhibit CA-24, Video of escarpment and dust emanating from 3 Penny Lane taken by Gerrard Borghesi on 14 January 2025, [RES.0001.0004.0142].
• 852 Public Hearing Transcript, Gerrard Raymond Borghesi, 15 May 2025, 531.
• 853 Exhibit CA-67, McCrae Landslide Causation Report prepared by WSP, 21 July 2025, [DPA.0004.0001.0001 at _0113].
• 854 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 1 [1], 2 [8]; Public Hearing Transcript, Kevin Barry Hutchings, 12 May 2025, 359.
• 855 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 2 [9]; Public Hearing Transcript, Kevin Barry Hutchings, 12 May 2025, 360.
• 856 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 2–3 [11].
• 857 Public Hearing Transcript, Kevin Barry Hutchings, 12 May 2025, 361; Public Submission of McCrae Resident, 16 April 2025, [SUB.0016.0001.0001].
• 858 Public Submission of McCrae Resident, 16 April 2025, [SUB.0016.0001.0001].
• 859 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 6 [34]; Public Hearing Transcript, Kevin Barry Hutchings, 12 May 2025, 375.
• 860 Public Hearing Transcript, Kevin Barry Hutchings, 12 May 2025, 375–376.
• 861 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 6 [34]; Public Hearing Transcript, Kevin Barry Hutchings, 12 May 2025, 376.
• 862 Public Hearing Transcript, Kevin Barry Hutchings, 12 May 2025, 376.
• 863 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 6–7 [34]; Public Hearing Transcript, Kevin Barry Hutchings, 12 May 2025, 376.
• 864 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 7–8 [35]–[41].
• 865 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 6–7 [34]–[36].
• 866 Public Hearing Transcript, Kevin Barry Hutchings, 12 May 2025, 378.
• 867 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 7 [35]–[36].
• 868 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 7 [37].
• 869 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 8 [39].
• 870 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 10 [49].
• 871 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 10 [50].
• 872 Exhibit CA-18, Witness Statement of Kevin Barry Hutchings, 12 May 2025, 13–14 [64].
• 873 Public Submission of McCrae Resident, 16 April 2025, [SUB.0016.0001.0001].
• 874 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 2 [7].
• 875 Interview with John Nicholas Bolch, 8 April 2025.
• 876 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 4 [20].
• 877 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 1 [4], 4 [20]; Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 409.
• 878 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 4 [20]; Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 409–410.
• 879 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 410.
• 880 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 4–5 [21].
• 881 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 5 [22].
• 882 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 411.
• 883 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 411–412.
• 884 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 4 [17].
• 885 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 6 [27].
• 886 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 6 [28].
• 887 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 6 [29].
• 888 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 413.
• 889 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 6 [30]; Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 414.
• 890 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 413.
• 891 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 5 [25].
• 892 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 425.
• 893 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 437.
• 894 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 425.
• 895 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 16 [72], 17 [74.2].
• 896 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 17 [74.2].
• 897 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 434.
• 898 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 435.
• 899 Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 440.
• 900 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 5 [24]; Public Hearing Transcript, John Nicholas Bolch, 14 May 2025, 412.
• 901 Exhibit CA-19, Witness Statement of John Nicholas Bolch, 14 May 2025, 5 [24].

4.1 Introduction

1. A central task of the Board of Inquiry has been to inquire into, and report on, what caused the McCrae Landslide. In the course of undertaking that inquiry, however, it became apparent that understanding the cause of the McCrae Landslide required consideration of the causes of the November 2022 landslides and, in particular, the 5 January 2025 landslide, all of which predominantly occurred on the escarpment at 10–12 View Point Road. This Chapter therefore examines and identifies the causes of those landslides in turn.
2. Shortly stated, the November 2022 landslides, 5 January 2025 landslide and McCrae Landslide share a common causal factor: water. The experts are unanimous in that opinion.
3. What divides the experts is the source of that water. This is addressed in detail below.
4. As will become apparent from the analysis that follows, there are complexities in determining the causes of landslides. The question does not typically lend itself to a straightforward answer. Landslides are caused by the interaction of multiple factors – some of which are natural, some of which are anthropogenic (that is, caused by human activity). Complexities reside in disentangling these causal factors and weighing their relative contributions. Notwithstanding these complexities, a simple point emerged from the evidence: excess water in an area susceptible to landslides is inherently dangerous.

4.2 The experts

5. The Board of Inquiry was assisted in its task of determining the causes of the landslides by several expert witnesses.
6. Expert evidence on the causes of the landslides was principally given by three geotechnical engineers specialising in landslides:
   1. Darren Paul of WSP, who was engaged by the Board of Inquiry;
   2. Dane Pope of PSM, who was engaged by the Shire; and
   3. David Hartley of SMEC, who was engaged by SEW.
7. Mr Pope and Mr Paul gave opinions about the causes of the November 2022 landslides. All three experts gave opinions about the causes of the 5 January 2025 landslide and the McCrae Landslide.
8. In the course of answering the question of what caused the 5 January 2025 landslide and the McCrae Landslide, it emerged that resolution of that question turned on two subsidiary questions. The first was whether water from another location could travel through the ground to the landslide site. The second was whether the chemical composition of the water emanating from the headscarp could identify its source. In seeking to answer those subsidiary questions, evidence was also provided by the following experts:
   1. a geochemist/geochemical modeller, Hong Vu of WSP; and
   2. four hydrogeologists: Stephen Makin of WSP, Hugo Bolton of SMEC, Christopher Jewell of CM Jewell & Associates (engaged by SEW), and Phillip Hitchcock of Australian Environmental Auditors Pty Ltd (engaged by the Shire).
9. A list of all of the expert reports received by the Board of Inquiry in relation to the cause of the 5 January 2025 landslide and the McCrae Landslide is contained in Appendix E.

FIGURE 4.1: THE KEY EXPERTS

10. An expert conclave was held on questions of causation on 28 and 29 July 2025. It was attended by Mr Paul, Mr Makin (on 28 July 2025 only), Mr Pope, Mr Hitchcock, Mr Hartley and Mr Bolton. On 1 August 2025, a further expert conclave was held specifically concerning geochemistry. It was attended by Mr Paul, Mr Hitchcock, Mr Hartley, Mr Bolton, Dr Vu and Mr Jewell.
11. The participants in the conclave concerning causation produced a joint report on 31 July 2025.¹ The report included a table which recorded the comments of each of Mr Paul, Mr Pope, Mr Hitchcock and Mr Hartley about the factors that the experts agreed on and the factors in dispute. Similarly, the participants in the geochemistry conclave produced a joint report on 1 August 2025, containing a minute of the conclave.²
12. Further details about the expert evidence process can be found in Appendix E.

4.3 Some basics in the causes of landslides, geology and hydrogeology

13. It is not possible to understand and analyse the causes of landslides without first understanding some basic principles.
14. The most convenient starting point is understanding the factors that contribute to causing landslides.

Factors that contribute to causing landslides

15. The factors that contribute to causing landslides can be grouped into two broad categories: (1) preparatory factors; and (2) triggering factors.³
16. Preparatory factors make the landscape susceptible or prone to landslides. Identifying and assessing preparatory factors can allow suitably trained professionals to identify where landslides might occur and what might happen if they do occur. An understanding of preparatory factors is key to the development of landslide susceptibility maps and associated planning controls such as an EMO.⁴
17. The preparatory factors addressed in this Report are as follows and warrant brief explanation:

18. Triggering factors are those that trigger landslides. They determine when a landslide might occur. Amongst other things, landslide risk mitigation might focus on reducing the potential for causal factors to trigger a landslide.¹³
19. The triggering factors addressed in this Report are:

20. Each of those triggering factors will be considered in greater detail below.
21. In the joint causation report, the experts evaluated the relative contribution of each preparatory and triggering factor on a scale from insignificant to significant. They expressed their assessments by reference to a confidence scale ranging from very low to very high. The scales are captured in the following table:¹⁴

McCrae engineering geological model

22. In order to understand the preparatory and triggering factors that may have contributed to causing the 5 January 2025 landslide and the McCrae Landslide, each geotechnical expert developed what is known as an “engineering geological model” for the McCrae escarpment and its surrounds.
23. In broad terms, the purpose of the model is twofold: (1) to comprehensively identify the “geological units”, essentially soils and rocks at a site; and (2) to identify and describe how those units interact with one another within the ground.¹⁵ Critically, the model assists in answering the first subsidiary question identified above: whether water from another location could travel through the ground to the landslide site.
24. The models developed by the geotechnical experts were largely consistent; any differences were at the margins.¹⁶ Four geological units were identified and analysed as part of the model for McCrae:
    1. fill;
    2. transported soils (colluvium and aeolian soils);
    3. residual granitic soils; and
    4. extremely weathered granite.¹⁷
25. Each geological unit has distinct properties – this has two significant implications. First, those properties determine how permeable that geological unit is to water, which in turn influences the “linear velocity” – the rate at which water can move through that medium.¹⁸ Second, the geological unit’s properties also influence the chemical composition of water as it passes through that medium.¹⁹ As will be seen, both linear velocity and the changes in the chemical composition of water are important to understanding the causes of the 5 January 2025 landslide and the McCrae Landslide.
26. Set out below is a table prepared by Mr Paul which summarises the properties of the four geological units:

FIGURE 4.2: GEOLOGICAL UNITS IDENTIFIED AND INCLUDED IN THE ENGINEERING GEOLOGICAL MODEL.²⁰

27. In building the model, the relative positions of the geological units are inferred. This enables approximate subsurface material cross-sectional profiles to be constructed for different geographical spans.
28. Two cross sections of McCrae produced by WSP are of particular interest and are reproduced below. A regional one, extending from the foot of Arthurs Seat around The Boulevard to 3 Penny Lane and a local one, extending from approximately 23 Coburn Avenue to 3 Penny Lane. The cross sections show the relative positions of the residual granite (labelled “Granite: RS”), extremely weathered granite (labelled “Granite: XW or better”), transported soils (colluvium) and fill.
29. The geotechnical experts produced effectively identical regional cross sections.²¹ However, the local cross sections gave rise to one area of dispute: the volume of fill on the slope above 3 Penny Lane.²² This dispute will be returned to later in this Chapter.

FIGURE 4.3: REGIONAL CROSS SECTION OF PSM’S CONCEPTUAL ENGINEERING GEOLOGICAL MODEL – THE BOULEVARD TO 3 PENNY LANE.²³

FIGURE 4.4: LOCAL CROSS SECTION OF PSM’S CONCEPTUAL ENGINEERING GEOLOGICAL MODEL – 23 COBURN AVENUE TO 3 PENNY LANE.²⁴

Water definitions and characteristics

30. To properly address the second subsidiary question identified above – whether the chemical composition of water emanating from the headscarp can be used to identify its source – it is necessary to say something about groundwater and its characteristics.
31. Generally speaking, the term “groundwater” can be used to describe any water that is held or travels underground.²⁵
32. Strictly speaking, however, groundwater has a particular meaning in hydrogeology, the scientific discipline concerning how water moves through subsurface pathways and interacts with the surrounding soil and rock.
33. In its technical sense, groundwater refers to water that resides in an aquifer, being water-bearing layers beneath the ground surface. Aquifers vary in both their depth and their continuity of water supply. A permanent aquifer lies deeper underground and provides a constant supply of water, ²⁶ whereas a shallow aquifer is closer to the surface and provides a more variable, often intermittent, supply.²⁷
34. “Regional groundwater” resides in the permanent aquifer for long periods. Its chemistry is therefore influenced by the aquifer material with which it comes in contact.²⁸
35. Contrastingly, “perched groundwater” is water in the shallow soils, which has infiltrated from the surface (typically from rainfall) or from a leaking water bearing service. Three points can be made about the characteristics of perched groundwater:
    1. it is transient in nature and can travel through shallow aquifers;²⁹
    2. it is not a continuous water source and is usually present for short periods;³⁰ and
    3. its chemistry is more heavily influenced by its source, whether rainfall, stormwater, mains water or sewage.³¹
36. The distinct locations of regional groundwater and perched groundwater in McCrae can be seen in the regional cross section prepared by SMEC (reproduced below). The regional groundwater is deeper underground, sitting just above the weathered granite “basement”. The perched groundwater is in the “perched water table” (or shallow aquifer) that sits closer to the surface.

FIGURE 4.5: INTERPRETATIVE HYDROGEOLOGICAL CROSS SECTION.³²

37. Increases in the volume of regional groundwater and perched groundwater (that is, “recharge”) occur in different ways:
    1. as to regional groundwater recharge, water enters at a recharge point (for example, a rock outcrop or ground surface) and then migrates vertically to the water table level in the permanent aquifer;³³ and
    2. as to perched groundwater recharge, water volume increases through:
       1. infiltration of rainfall; and/or
       2. leakage of water bearing service infrastructure in the area, including stormwater, mains supply and sewage.³⁴
38. Both regional groundwater and perched groundwater can discharge through the surface at exit or exfiltration points called “springs”.³⁵
39. Having laid the foundation with these basic principles, it is now appropriate to turn to considering the causes of the landslides, starting with the November 2022 landslides.

4.4 What caused the November 2022 landslides?

40. The November 2022 landslides occurred on the escarpment at the north-west end of 10–12 View Point Road on 14 and 15 November 2022.³⁶ The more destructive of the two landslides occurred on the morning of 15 November 2022. It brought down at least 20 tonnes of soil and debris to the base of the escarpment.³⁷ Two properties at the toe of the slope were damaged: 2 Penny Lane and 3/613 Point Nepean Road.³⁸
41. Both Mr Pope and Mr Paul agree that water triggered the November 2022 landslides.³⁹ The key question is, therefore, what was the source of the water?
42. Before turning to that question, three points should be made at the outset:
    1. first, the experts did not view the November 2022 landslides as having a causal relationship with the McCrae Landslide;
    2. second, the Shire’s submission in relation to the cause of the landslides only briefly touches on the cause of the November 2022 landslides;⁴⁰ and
    3. third, the Board of Inquiry has not sought to determine the causes of the November 2022 landslides as an independent chain of inquiry in and of itself – that is beyond its Terms of Reference. Rather, the causes of the November 2022 landslides have formed the backdrop against which some of the experts have analysed the causes of the 5 January 2025 landslide and the McCrae Landslide. To that extent, the Board of Inquiry has had regard to, and considers it appropriate to address, the causes of the November 2022 landslides.

What was the source of the water that triggered the November 2022 landslides?

43. The experts considered four potential sources of water:
    1. rainfall;
    2. groundwater from a shallow aquifer;
    3. a burst water main near 23 Coburn Avenue; and
    4. domestic water usage.
44. Little needs to be said about two of those sources – groundwater from a shallow aquifer and domestic water usage – beyond noting their relative insignificance. Mr Pope and Mr Paul agreed, with a high level of confidence, that groundwater from a shallow aquifer was an insignificant trigger for the November 2022 landslides.⁴¹ Mr Paul did not assess whether domestic water usage was a trigger, and Mr Pope considered its effect to be insignificant to minor with low confidence.⁴²
45. More does need to be said about rainfall and the burst water main near 23 Coburn Avenue as potential sources, each of which will now be addressed in turn.

The water was the result of rainfall

46. A significant rain event occurred in McCrae the day before the 15 November 2022 landslide. Approximately 80 millimetres of rain was recorded at the Rosebud weather station, the closest rain gauge to McCrae, much of which fell within an eight hour period.⁴³
47. This was the fourth largest rain event on record.⁴⁴ Mr Pope described the event as having a 1 in 100 year to 1 in 200 year probability of occurring within an eight hour window.⁴⁵ Mr Paul described it as “anomalously high rainfall”.⁴⁶
48. The intense nature of the rainfall on 14 November 2022 is shown in the following graph:

FIGURE 4.6: DAILY RAINFALL TOTALS FOR THE PERIOD BETWEEN OCTOBER 2022 AND NOVEMBER 2022 FOR ROSEBUD (BUREAU OF METEOROLOGY) AND ARTHURS SEAT (MELBOURNE WATER).⁴⁷

49. It is no coincidence that the November 2022 landslides occurred shortly after this significant rain event. It is well-established that rainfall can trigger a landslide.
50. Intense rainfall can cause water to infiltrate the ground and change the pressure between soil particles.⁴⁸ If the space between soil particles (also referred to as pores) is filled with water, the increase in pressure exerted by the water can effectively “push” the soil particles apart.⁴⁹ The increase in pore pressure can lead to a “tipping point at which soil strength is lost to the extent that a landslide is triggered”.⁵⁰
51. That tipping point was reached on the escarpment at 10–12 View Point Road.
52. Mr Pope and Mr Paul gave evidence that the rainfall event was a major or significant triggering factor for the November 2022 landslides.⁵¹ The experts only differed in their level of confidence: Mr Pope expressed his opinion with high confidence,⁵² while Mr Paul expressed his opinion with moderate confidence.⁵³
53. Mr Pope stated:

54. Mr Paul stated:

55. The Board of Inquiry accepts that water triggered the November 2022 landslides and that rainfall was a significant contributor to that volume of water. That much is obvious.

    Finding Water triggered the November 2022 landslides.

56. What is less obvious is whether the rain alone or in combination with another water source – namely, the burst water main at 23 Coburn Avenue – triggered the landslides.

It cannot be determined whether some of the water originated from the burst near 23 Coburn Avenue

57. At about 5.40am on 14 November 2022, a water main failed at the corner of Prospect Hill Road and Coburn Avenue,⁵⁶ at approximately 23 Coburn Avenue.
58. The asbestos cement pipe suffered two circumferential breaks along its length,⁵⁷ allowing approximately 900,000 litres of water to be released prior to the main being turned off at 6.50pm.⁵⁸ The water from the burst water main significantly compromised the road surface and nature strip. A large sinkhole appeared on Coburn Avenue to the great concern of multiple residents.⁵⁹
59. The failure occurred upslope of the site of the November 2022 landslides, as can be seen in the diagrams below.

FIGURE 4.7: LOCATION OF WATER MAIN BURST RELATIVE TO THE NOVEMBER 2022 LANDSLIDES.⁶⁰

FIGURE 4.8: LOCATION OF WATER MAIN BURST AND OTHER OBSERVATIONS IN ITS VICINITY.⁶¹

60. The distance between the burst water main and the landslide site was greater than 120 metres.⁶² Could water from the burst have travelled downslope and triggered the landslides?
61. Only Mr Paul gave an expert opinion on this issue. Mr Pope said he was unable to comment.⁶³ Mr Paul expressed, with low confidence, the view that water from the burst water main was a medium contributor to the November 2022 landslides.⁶⁴ He explained:

62. SEW did not adduce any contrary expert opinion in response to Mr Paul’s evidence. However, it submitted that the expert evidence does not permit a finding that the burst water main triggered the November 2022 landslides.⁶⁶ SEW pointed to a temporal issue and the paucity of evidence.
63. As to the temporal issue, SEW highlighted that the burst occurred at approximately 5.40am on 14 November 2022 and was fixed at around 6.45pm on the same day. SEW submitted that there was insufficient time for any infiltrated water from the burst to reach the landslide site by subterranean means, assuming that the landslide on 14 November 2022 occurred at around 6.30am.⁶⁷
64. The difficulty with this submission is that it hinges on the loud cracking noise that Mr Willigenburg heard at 6.30am on 14 November 2022 as being conclusive evidence of when the landslide occurred. That is open to doubt. There is no other evidence corroborating that the noise signalled the occurrence of the landslide. Mr Willigenburg himself gave evidence that, upon inspecting the back of his property after hearing the loud cracking noise, he did not observe anything unusual.⁶⁸
65. In any event, the repair of the burst water main on the evening of 14 November 2022 does not preclude the possibility that part of the 900,000 litres of escaped water flowed to the landslide site and contributed to causing the more significant landslide on 15 November 2022.
66. The Board of Inquiry, therefore, does not accept that the temporal issue is determinative.
67. As to the paucity of evidence, SEW submitted that there is no evidence of the:
    1. volume of water that entered the stormwater drain, save for some photographs taken on 14 November 2022 of water flowing downhill of Coburn Avenue, away from Prospect Hill Road, into a stormwater drain in the kerb;
    2. volume of water that infiltrated the ground;
    3. flow path of any subterranean water; and
    4. precise location of the leak.⁶⁹
68. In the course of cross-examination by SEW’s Counsel, Mr Paul acknowledged that in forming his opinion, he had not personally undertaken tests to identify the underground channels from Coburn Avenue to View Point Road.⁷⁰ He acknowledged that the connectivity between the burst water main and the landslide site was a “main [area of] uncertainty”.⁷¹ He also said that he had not seen evidence of how much water went down the stormwater drain.⁷²
69. There is no direct evidence before the Board of Inquiry concerning the volume of water that diverted down Coburn Avenue and into the stormwater drain as opposed to the volume that travelled through a subsurface flow path towards the landslide site. That does not, however, eliminate the possibility that a proportion of the water may have infiltrated the escarpment at 10–12 View Point Road.
70. There is some evidence that the water did not entirely flow into the stormwater drain and, in fact, progressed down Prospect Hill Road. For example, as outlined in Chapter 3, at 10.36am on 14 November 2022, a resident at 22 Prospect Hill Road (next door to 23 Coburn Avenue) reported that the street stormwater pit was blocked, and that water was overflowing and flooding their house.⁷³
71. Nevertheless, the point remains that the experts and the Board of Inquiry are in no position to conclude with any degree of certainty the proportion of water from the burst water main that flowed towards the landslide site. As Mr Paul said, properly, there are too many “unknowns” considering the current evidentiary base.⁷⁴ A more wide-ranging and in-depth investigation would have been necessary in order for the Board of Inquiry to be satisfied of the relevant facts; however, that was outside the Terms of Reference.
72. The Board of Inquiry, therefore, draws no conclusions as to the extent to which the burst water main near 23 Coburn Avenue may have contributed to triggering the November 2022 landslides.

What were the preparatory factors that may have contributed to causing the November 2022 landslides?

73. It will be recalled that preparatory factors are those which make the landscape more susceptible to landslide, even before a triggering event – like the intense rainfall of 14 November 2022 – occurs.
74. The experts addressed five preparatory factors in relation to the November 2022 landslides, each of which can be dealt with relatively briefly.

Erosion of the escarpment

75. The site of the November 2022 landslides was located on the prominent escarpment at 10–12 View Point Road. The escarpment is approximately 25 metres high, with an overall slope angle of 35 degrees.⁷⁵
76. To contextualise the steepness of the slope, Mr Borghesi gave evidence that one could “scramble down the entire area of the 2022 landslide” but that it was still “quite a steep slope, so you would tend to traverse it rather than use it”.⁷⁶
77. Both Mr Pope and Mr Paul agreed, with very high confidence, that erosion of the escarpment was a major or significant preparatory factor for the November 2022 landslides.⁷⁷

78. Mr Pope explained that erosion had led to “marginally stable slope conditions, for which landsliding may occur”. He added that in the upper zone of the slope, the soil slope angle exceeded the effective friction angle of the soils, rendering the slope susceptible to landslides upon a change in soil moisture.⁷⁸

    Finding Erosion was a significant preparatory factor for the November 2022 landslides.

Subsurface voids/piping channels

79. As outlined in Chapter 3, in May 2023, the Shire commenced a major stormwater drainage improvement project along View Point Road. During the excavation process, a “substantial void” was revealed directly upslope of the location of the November 2022 landslides.⁷⁹
80. It was common ground between the experts that a void existed. Ground penetrating radar testing conducted in December 2023 along View Point Road confirmed the existence of a void “approximately 550mm below ground surface and 450mm deep (1.0m below ground surface)”.⁸⁰ The full extent of the void was unable to be mapped, but it minimally extended from the kerb line to the sewer line along 10–12 View Point Road.⁸¹ Mr Paul assumed the correctness of, and relied on, this evidence.⁸² Mr Pope agreed that the presence of the identified “void in a recently excavated stormwater trench is consistent with natural voids observed in the escarpment”.⁸³
81. What divided the experts was whether the void had acted as a preferential channel for water, leading to the saturation of the escarpment prior to the November 2022 landslides. On the one hand, CivilTest, geotechnical engineers engaged by the Borghesis in November 2022, concluded that the void had provided a pathway for water towards the headscarp area.⁸⁴ It was also CivilTest’s opinion that the cracked kerbs along View Point Road allowed for water from the rain event to accumulate and build up below ground.⁸⁵ Mr Paul and Mr Pope were not able to express a confident view about that matter. They expressed, with a low level of confidence (less than 40%), that the void was a significant (for Mr Paul) or minor (for Mr Pope) preparatory factor for the November 2022 landslides.⁸⁶
82. Both Mr Paul and Mr Pope were constrained by the evidence available. Mr Paul identified two key gaps in the evidence: he did not know to where the void led, nor did he know whether there were other voids in the area.⁸⁷ It is, however, important to note that the effect of Mr Paul’s evidence is that the subsurface voids may have been a “significant” preparatory factor. It is also important to recognise that Mr Pope has only low confidence that the voids were a minor preparatory factor. As to his low level of confidence on the issue, Mr Pope said that the “orientation of the void is unknown”, but he expected it to be consistent with groundwater flow directions and perpendicular to the escarpment or parallel with the sewer trench.⁸⁸ Moreover, he noted that he had not observed any direct evidence of “connectivity” between the void and the landslide site.⁸⁹
83. Without the benefit of a more comprehensive evidence base, the Board of Inquiry draws no conclusions as to whether subsurface voids were a preparatory factor for the November 2022 landslides. The Terms of Reference constrained a deeper inquiry into the issue.