Land and Environment Court New South Wales Medium Neutral Citation: Pittwater Council v Martoriati [2013] NSWLEC 84 Hearing dates: 22 May 2013 Decision date: 22 May 2013 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [27] Catchwords: CIVIL ENFORCEMENT - contempt of court - failure of respondent to comply with orders of the Court to vacate property, carry out remedial works on property and retaining wall, and to remove soil fill from neighbour's property - respondent pleads guilty to contempt - determination of the appropriate orders to be made by way of punishment - whether a fine or sequestration the appropriate form of sanction - agreement on the imposition of a fine as penalty - lump sum fine and monthly fine - monthly fine discharged if court orders complied with - orders to remedy ongoing breaches to purge contempt - respondent guilty of contempt as charged - fine imposed - remedial orders made Legislation Cited: Environmental Planning and Assessment Act 1979 s 76A Local Government Act 1993 ss 124, 672 Category: Principal judgment Parties: Pittwater Council (Applicant) Marco Martoriati (Defendant) Representation: Ms J K Taylor (Barrister) (Applicant) Mr S B Nash (Barrister) (Respondent) King & Wood Mallesons (Applicant) Spencer Whitby Lawyers (Respondent) File Number(s): 40251 of 2012 Publication restriction: No Judgment 1On 23 May 2012, I found that Mr Martoriati had carried out development on land known as 76 Wallumatta Road, Newport in breach of s 76A of the Environmental Planning and Assessment Act 1979 and had also failed to comply with the order issued by Pittwater Council ('the Council') to Mr Martoriati under s 124 of the Local Government Act 1993 dated 5 April 2012 in breach of s 672 of that Act. I made declarations to that effect (orders 1 and 2). 2I made four types of orders: an order that Mr Martoriati vacate the premises (order 3); an order that Mr Martoriati undertake interlocutory remedial works (order 4); orders that Mr Martoriati undertake final remedial works (orders 5 and 6); and an order to remove spoil which Mr Martoriati had placed on the neighbour's property (order 7). 3The Council, by notice of motion, charged Mr Martoriati with contempt of court in that he has failed to comply with specified orders that I made on 23 May 2012. The Council, with leave of the Court, amended its notice of motion on 10 April 2013 to add other orders with which Mr Martoriati had not complied. In its amended form, the statement of charge charged Mr Martoriati with eight charges of contempt of court by failing to comply with orders 4(a)(ii), (iii), (iv), 4(b)(i), (iii), 4(d) and 7(a) and (b) made on 23 May 2012. 4The hearing commenced on 10 April 2013. Mr Martoriati appeared for himself, assisted by Mr Freeman as a McKenzie friend. The Council read evidence of a council officer, Mr Greenow, Council's solicitors (Ms Townsend and Ms Dean) and Council's contract engineers (Messrs Colenbrander, Pilz and Mortimer). The Council tendered documentary evidence. 5Mr Martoriati gave evidence orally and tendered documentary evidence. Mr Martoriati sought an adjournment of the hearing to allow him to call evidence from an engineer who was unavailable to give evidence on 10 April 2013. I upheld Mr Martoriati's application to adjourn the hearing for that purpose. I adjourned the further hearing to 21 May 2013, which was subsequently altered by the Court to 22 May 2013, and I made directions for Mr Martoriati and the Council to file and serve further evidence by specified dates. 6Mr Martoriati subsequently instructed a solicitor to act for him, who in turn briefed counsel to appear for Mr Martoriati. 7On the further hearing on 22 May 2013, Mr Nash of counsel appeared for Mr Martoriati. Mr Martoriati, by his counsel, pleaded guilty to each of the eight contempt charges as set out in the statement of charge in the amended notice of motion. 8Both parties read further affidavit evidence. The Council read further affidavits of its engineers, Messrs Colenbrander and Pilz, and of its solicitor, Ms Townsend, and tendered the correspondence exhibited to Ms Townsend's affidavit. The Council also read an affidavit of the neighbour of Mr Martoriati, Ms Phillips. 9Mr Martoriati read affidavits of Mr Martoriati, Mr Maharaj and Mr Pincevic. Mr Pincevic is Mr Martoriati's engineer. Mr Maharaj was a friend who has assisted Mr Martoriati. 10Throughout the course of the day, Mr Nash on behalf of Mr Martoriati, and Ms Taylor, counsel for the Council, had discussions as to the appropriate orders to be made by way of punishment for the contempt and purging the contempt and the costs of the contempt proceedings. 11As to punishment, the Council and Mr Martoriati agreed in submitting that the appropriate sanction was a fine and not sequestration of Mr Martoriati's property (as the Council had sought in the amended notice of motion). The parties submitted that a fine in the sum of $10,000 was an appropriate total penalty for the eight charges of contempt in the circumstances. The sum should be paid within 28 days. In addition, the parties submitted that there should be a fine of $2,000 per calendar month for so long as the orders of 23 May 2012 are not complied with. However, this order should be discharged if Mr Martoriati purges his contempt by complying with specified orders to remedy the breaches. 12The parties agreed on most of the specified orders that should be undertaken to purge the contempt but disagreed as to two of the orders. The agreed specified orders were that Mr Martoriati, within seven days, would carry out the works required under orders 4(b)(i) (concerning the installation of handrails and balusters around the perimeter of the excavation) and 4(b)(iii) (concerning temporary vertical support and bracing of the balcony and perimeter of the house); within 14 days carry out works required under orders 4(a)(ii) (concerning removing existing mesh off the slope) and 4(a)(iii) (concerning covering the slope with plastic sheeting in direct contact with the ground); and, within 21 days, permit the Council and its qualified advisers to inspect the property to verify that the works required have been done. 13The disagreement concerned removal of fill Mr Martoriati had placed, firstly, on his property to the north of the retaining wall marked on Sch B of the orders of 23 May 2012 and, secondly, on the neighbouring property at 72 Wallumatta Road, Newport. 14The Council sought for the fill on both properties to be removed within 14 days. Mr Martoriati sought to defer removing the fill from both properties until the final retaining wall is constructed so as to be able to use the fill in the construction of that retaining wall. 15Mr Martoriati relied on his engineer, Mr Pincevic (who is a civil, not geotechnical, engineer), who had reported on 16 July 2012 that it would be more dangerous to remove the log retaining wall than to leave it. Mr Martoriati submitted that the risk the retaining wall and placed fill might pose could be addressed by undertaking a geotechnical risk assessment within three weeks of the Court making the orders. 16The Council submitted that the opinion of Mr Pincevic had been refuted at the original hearing by Mr Mortimer (who is a geotechnical engineer). The Court had accepted the evidence of Mr Mortimer and had ordered that, by reason of the geotechnical risk that the wall and fill posed, the retaining wall and fill on Mr Martoriati's property should be removed within eight weeks of the Court's orders of 23 May 2012. The fill, therefore, could not have been used by Mr Martoriati in the construction of the final retaining wall which, under the orders of 23 May 2012, was not required to be completed for 12 months. The Council further submitted that the evidence of the Council's engineers remains that the retaining wall and placed fill continue to pose a risk and should be removed. 17I agree with the Council. I consider that it is inappropriate to re-open the issue of the risk of the retaining wall and placed fill on Mr Martoriati's property. That was determined by my previous judgment and orders. The retaining wall and placed fill on Mr Martoriati's property should be removed. The timeframe of 14 days is appropriate. 18In relation to the fill on the neighbour's property, the Council read an affidavit of the neighbour who said she had not consented to the placing of the fill or its continued presence on her property. She said she wished to sell her property and the continued presence of the fill was an impediment to sale and was also distressing to her. She wished to have the fill removed. 19Mr Martoriati submitted he wished to use the fill from the neighbour's property in the construction of the final retaining wall, but before this could occur Mr Martoriati would need to prepare a design of the retaining wall, have it approved by the Court, order the parts for the retaining wall (which apparently need to come from China) and construct the retaining wall. On a best case scenario (with no delays), this process would take about three and a half months. Given the history of the matter to date, it is far more likely that there will be delays and the retaining wall would not be constructed until some later time. This means that the neighbour must continue to have unwanted fill on her property, with the concomitant inconveniences, for longer than a further three and a half months. 20I consider the appropriate course to follow in relation to the timing of removal of the fill from the neighbour's property is to link that decision to the timing for carrying out of all of the permanent works, including the retaining wall. 21The parties agreed that the time for compliance with orders 5 and 6 of the orders of 23 May 2012, which concern the permanent works, be extended from 23 May 2013 to the date of the hearing of Mr Martoriati's application to vary the orders which, on the timetable to be made, would be 4 July 2013. On that day I will hear Mr Martoriati's application to vary orders 5 and 6, and the time by which the works required by those orders would need to be done. Under the agreed timetable, Mr Martoriati would be required by 21 June 2013 to file and serve geotechnical risk assessments and detailed designs, specifications, plans and reports for the proposed final works. The Court will determine on 4 July 2013 whether such works are appropriate and the timing for completion of the works. The timing of removal of the fill from the neighbour's property can then be fixed at the same time. 22Hence, I will follow the same course for extending the date for removal of the fill from the neighbour's property as I propose for extending the date for compliance with orders 5 and 6, namely fix 4 July 2013 as the date, but recognising that this date may be extended if Mr Martoriati's application to vary the orders of 23 May 2013 is upheld. 23In relation to costs, the parties agree that Mr Martoriati should pay the Council's costs of the contempt proceedings on an indemnity basis. 24I consider that the parties' agreed orders are appropriate in the circumstances. In particular, Mr Martoriati is in breach of the Court's orders in the respects charged in the amended notice of motion and such breach was wilful in many instances. Mr Martoriati was aware of the Court's orders but chose not to comply. In respect of some of the instances, he relied on the advice of Mr Pincevic, however that advice was also in variance to the Court's orders. 25A penalty of a fine is appropriate and the amount submitted by the parties is appropriate as a total for each of the eight charges. The imposition of an ongoing fine of $2,000 per month is appropriate in order to secure compliance with the Court orders but, as the parties agree, it should be discharged if Mr Martoriati purges his contempt by complying with the further orders I will make. The specified orders for the doing of the works and the timing for those works should be as I have found above. 26In the circumstances of this case, it is appropriate that the Council be compensated for bringing the contempt proceedings by an order for costs on an indemnity basis. 27For these reasons, I make the following orders. (1)The defendant is found guilty of contempt of court as charged in the Amended Notice of Motion filed 10 April 2012. (2)The defendant is fined a sum of $10,000, payable to the Registrar of the Court, within 28 days. (3)The defendant is fined a sum of $2,000 per calendar month, payable to the Registrar of the Court, the first payment to be made on 5 July 2013 and monthly thereafter so long as the Orders of the Court made 23 May 2012 (Orders) are not complied with or otherwise varied. (4)Order 3 is discharged if the defendant purges his contempt by complying with the following: (a)In relation to order 4(b)(i) of the Orders, within 7 days of the making of this order the defendant installs edge protection in the form of handrails and balusters parallel to the entire perimeter of the excavation in the locations marked on the survey attached to these orders; (b)In relation to order 4(b)(iii) of the Orders, within 7 days of the making of this order the defendant installs temporary vertical support and bracing underneath the balcony and around the perimeter of the house by extending the same kind of framing that has been installed under the centre of the house to support the balcony and the perimeter of the house; (c)In relation to order 4(a)(ii) of the Orders, within 14 days of the making of this order, the defendant remove the existing mesh, strip drains and iron sheeting on the area marked in yellow on Schedule A of the Orders; (d)In relation to order 4(a)(iii), within 14 days of the making of this order, and after removing the existing mesh, strip drains and iron sheeting referred to above, the defendant cover the slopes on the area shaded yellow in Schedule A of the Orders and the plastic sheeting is to be in direct contact with the ground; (e)In relation to order 4(a)(iv), within 14 days of the making of this order, the defendant remove the placed fill to the north of the retaining wall marked on Schedule B of the Orders; (f)In relation to order 4(d), within 21 days of the making of this order, to permit Council, with its qualified advisers, to inspect the property. (5)Extend the time for compliance with orders 5, 6 and 7 of the Orders until 4 July 2013, and: (a)Order that the defendant provide to the Council the engineering designs and assessments referred to in orders 5(b)(i) and 5(c) and 6(b)(i) and 6(c) of the Orders by 21 June 2013; (b)Order that the defendant file and serve and application to vary orders 5, 6 and 7 of the Orders, with any evidence in support, including the design specifications, plans and reports, by 21 June 2013; and (c)The application to vary the Orders be made returnable, and listed for hearing before the Chief Judge, on 4 July 2013. (6)The defendant is ordered to pay the Council's costs of the contempt proceedings on an indemnity basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2013