Pittwater Council v Martoriati (No 3) [2013] NSWLEC 214

Land and Environment Court New South Wales

Medium Neutral Citation: Pittwater Council v Martoriati (No 3) [2013] NSWLEC 214 Hearing dates: 3 & 24 October and 25 November 2013 Decision date: 25 November 2013 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as at [19] and [25] Catchwords: CIVIL ENFORCEMENT - motion by respondent to vary court orders to extend time for compliance - orders relate to preparation and certification of design for remedial works to land and house - appropriate for orders to be varied to allow further time for respondent to comply with those orders - orders varied and consolidated - respondent to pay the Council's costs of the motion Legislation Cited: Environmental Planning and Assessment Act 1979 Local Government Act 1993 Cases Cited: Pittwater Council v Martoriati [2012] NSWLEC 131 Category: Consequential orders Parties: Pittwater Council (Applicant) Marco Martoriati (Respondent) Representation: Ms J K Taylor (Barrister) (Applicant) Mr M Martoriati (Respondent in person) with Mr P de Lord (McKenzie friend) King & Wood Mallesons (Applicant) Mr M Martoriati (Respondent in person) File Number(s): 40251 of 2012 Publication restriction: No

Judgment 1Mr Martoriati, the owner of residential land at 76 Wallumatta Road, Newport, has been ordered by the Court to undertake various remedial works on the land. By notice of motion dated 23 September 2013, Mr Martoriati has sought certain variations of the court orders, mostly involving an extension of the time within which to comply with the orders. 2Mr Martoriati's motion has been heard on three occasions, 3 and 24 October 2013 and 25 November 2013. I am satisfied that the time for compliance with certain orders should be extended provided that Mr Martoriati undertakes certain actions and completes certain works by new dates. 3The court orders in question were made on 23 May 2012 to remedy and restrain breaches of the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993 caused by Mr Martoriati excavating behind, beside and under his house, constructing a steel frame to support the house, and dumping spoil without development consent. Such work endangered the home, its occupants and neighbours: see Pittwater Council v Martoriati [2012] NSWLEC 131. Amongst the orders I made were for Mr Martoriati to: (a)vacate the property and not return until specified temporary remedial works were undertaken (order 3); (b)undertake the temporary remedial works (order 4); (c)undertake final remedial works on the land around the house (order 5); and (d)undertake final remedial works on the house (order 6). 4Mr Martoriati has now complied with orders 3 and 4 but is still completing the works required by orders 5 and 6. An essential preliminary to complying with orders 5 and 6 is the preparation and certification of the design of the final remedial works to be undertaken on the land and the house. 5On 4 July 2013, I extended the times for compliance for various works required under orders 5 and 6. Unfortunately, these extended times have still proved to be insufficient. Hence, Mr Martoriati has applied for a further extension. The first extension concerns the preparation and certification of the design for the remedial works as to, first, the land and, secondly, the house. I will start with the design for the remedial works to the land. 6Mr Martoriati's geotechnical engineer (Mr Bartel) and structural engineer (Mr Pincevic) have only recently provided their design documents (Asset Geotechnical Figures 5 and 6) for the remedial works to the land and their certification that the design will comply with order 5(b) to (f) if the works are constructed in accordance with the design documents: see the letters of Asset Geotechnical Engineering Pty Ltd dated 6 September 2013 (including attached drawings) and 18 October 2013. This design and certification are intended to satisfy the essential preliminary in order 5(b) and (c) so that the works required by order 5(d) to (f) can now be carried out. 7The Council contested the adequacy of the design documents for the remedial works to the land. The Council's consulting geotechnical engineer (Mr Colenbrander) and consulting structural engineer (Mr Pilz) each deposed in affidavits sworn 23 October 2013 that: (a)the details in the design documents (Asset Geotechnical figures 5 and 6) comprise only a concept or "in principle" design for the retaining walls for the property; (b)the design documents lack the detail and information required to ensure geotechnical stability of the site and to permit certification that the design will comply with the Building Code of Australia, relevant Australian Standards, and Pittwater Council's geotechnical risk management policy; (c)undertaking the geotechnical works proposed in the design documents may impact on the outer row of house supports that were installed to provide temporary support to the house and require their relocation; and (d)placing a gravel layer over the timber planks on which the temporary props and scaffolding supporting the house rest may cause the planks to deteriorate. 8Mr Martoriati sought an opportunity for his engineers, Mr Bartel and Mr Pincevic, to address the concerns raised by the Council's engineers, Mr Colenbrander and Mr Pilz. By consent, the hearing was adjourned to allow the parties' engineers to jointly confer and produce a joint report. The purpose of the experts' conclave was to establish appropriate design requirements that would satisfy orders 5 and 6 of the court orders and would be capable of being certified as being consistent with Australian Standards and the Council's geotechnical risk management policy, as well as being structurally adequate. 9The experts were able to produce a joint report (dated 15 November 2013) in which they agreed on most matters including: (a)the level of site inspection/supervision during construction (item 3); (b)the requirements of the design documents (item 4); (c)that the preparation of the design documents should be based on a council survey of adjoining property boundary conditions as well as a site specific survey of Mr Martoriati's land to be commissioned by Mr Martoriati (item 5); (d)the removal and reuse of spoil material (item 6); (e)preparation of design documents within four working weeks from receipt of the site survey (item 9); and (f)the installation of "Ag" lines beneath gravel surface connected to council stormwater (shown on Asset Geotechnical Figure 6A) is not required as part of the works associated with order 5 (item 10). 10The matter on which the experts did not agree concerned the scope of work to support the driveway (the experts having agreed that some works were required - item 7). Mr Bartel was to advise on potential solutions for support works to the driveway as part of the design (item 8). 11The situation is, therefore, that further time is still required for Mr Martoriati's engineers to prepare the design documents that meet the agreed design requirements. The site survey is expected to be obtained by 9 December 2013. A further four working weeks would be required after receipt of the site survey for Mr Martoriati's engineers to prepare the design documents. This brings us to 24 January 2014 (allowing two weeks for the Christmas to New Year period). 12Assuming the design documents then produced will be adequate and will comply with order 5, another date needs to be fixed for Mr Martoriati to carry out the works required by these design documents and for Mr Martoriati to provide the final certificate from the engineers required by order 5(g) that the works required by order 5(d) to (f) have been carried out in accordance with the Court's orders. Mr Martoriati sought, in his notice of motion filed 23 September 2013, that the time to comply with order 5 be extended to 14 March 2014. However, time has elapsed since the notice of motion was filed. It is prudent to allow more time to carry out the works. I propose to allow three months after preparation of the design documents for Mr Martoriati to carry out the remedial works to the land under order 5 (to 28 April 2014). 13This brings me to order 6 which requires the carrying out of final remedial works to the house. Mr Martoriati says that he is now considering whether he should replace the current house with a new pole house. If he were to do this, he accepts that he would need to apply to the Council for development consent. The Council could consider at the development application stage whether the proposed new house would be structurally safe and comply with the Building Code of Australia and relevant Australian Standards and Pittwater Council's geotechnical risk management policy. If Mr Martoriati were to pursue this course, there would be no need to undertake the final remedial works to the current house proposed by order 6, as the house would be demolished. 14Mr Martoriati says, however, that he has not yet finally decided whether he wishes to pursue this course and he seeks time to consider whether he will pursue this course. 15The Council is not opposed in principle to giving Mr Martoriati this opportunity to consider lodging a development application to demolish the current house and replace it with a new house. However, the Council wished to ensure that the current house is structurally supported and stable without the final remedial works required by order 6 being undertaken. 16Mr Martoriati's structural engineer, Mr Pincevic, has sworn an affidavit of 22 October 2013 in which he says, amongst other things, that: (a)he is the structural engineer retained by Mr Martoriati and has attended the land to supervise works on numerous occasions during the previous 16 months; (b)during June 2012, he designed, supervised and certified installation of the temporary support structure for the cottage on the land as required by the court orders dated 23 May 2012; (c)having co-certified the design documents, he can provide assurance that once this design is implemented it would effectively resolve any potential for landslide that may threaten the stability of the cottage support structure; and (d)once the design is implemented the temporary support structure for the cottage is quite capable of supporting the cottage without concern for its adequacy for the medium term, or even several years if necessary. 17The Council's engineers have expressed concern that undertaking the remedial works to the land may impact on the temporary propping system to the existing house, as explained earlier in these reasons for judgment. This issue was discussed by the parties' experts at the recent conclave (items 11, 12 and 13). The experts agreed that: (a) For the current temporary propping system to the existing house to continue in use it should comply with the following: (i) Reinspection of the temporary propping system by the engineer (RAP) [Mr Pincevic], including foundation material underneath founding supports, to confirm ongoing adequacy of the system. To be undertaken before the end of December 2013. (ii) Periodic reinspection of the temporary propping system every six months thereafter, including founding supports, to confirm ongoing adequacy of the system. (iii) Immediate inspection of the temporary propping system to confirm its ongoing adequacy should any unusual occurrence take place such as flooding of the area or slippage of adjacent services. (item 11) (b) Between the timing of the above inspections by the engineer there should be an ongoing routine maintenance and inspection by the property owner to ensure issues such as: (i) Props are still carrying load and have not moved away from the house floor system. (ii) Propping is not deteriorating (such as timber rotting, steel corrosion) with age. (iii) Fixing of props to the existing house floor system (lateral restraint) has not deteriorated. (iv) There are no signs of movement (cracking at wall/ceiling interfaces) in the existing house. (item 12) (c) RAP [Mr Pincevic] advised that the temporary works have been designed to withstand wind loads for a permanent structure and have not been reduced based on "temporary works". This being the case, there is no need to reassess design loads for the longer duration of the temporary propping system (item 13). 18Provided Mr Martoriati complies with these requirements, and the design for the remedial works to the land required by order 5 does not impact on the propping system, a longer time could be permitted for Mr Martoriati to consider whether he wishes to either undertake the final remedial works to the existing house (under order 6) or, instead, demolish and replace the existing house with a new house. Mr Martoriati has sought until the end of October 2014. I consider this would be appropriate on the basis provided above. 19In conclusion, I propose to make orders extending the time for compliance with orders 5 and 6 but on terms that: Mr Martoriati prepare the design documents for the remedial works to the land (under order 5) in accordance with the requirements agreed between the experts for order 5 by a specified date; Mr Martoriati carry out the works in accordance with that design by a specified date; and Mr Martoriati comply with the requirements agreed between the experts for order 6. Accordingly, I will vary the current orders of the Court (as previously varied) as follows: (a)insert before order 5 a new order 5A stating: "Orders the respondent, by 9 December 2013, to file and serve a survey of the property prepared by a registered surveyor in accordance with the requirements specified in paragraph 4(1) of the joint engineering experts report dated 15 November 2013". (b)Vary order 5 to insert after the words "orders the respondent" the following words, "by 28 April 2014", in substitution for the previous date of "by 29 November 2013." (c)Vary order 5(b) to read as follows: "by 24 January 2014, filing and serving the design documents prepared by the suitably qualified engineers in 5(a) above in accordance with the requirements specified in paragraphs 4(2) to (6) inclusive, 6, 7 and 8 of the joint engineering experts report dated 15 November 2013 and 5(c) below. The design documents must also include details of the proposed stormwater management for the site". (d)Vary order 5(d) to add after the words "Pittwater Council Geotechnical Risk Management Policy for Pittwater - 2009," the following words, "and the requirements of the joint engineering experts report dated 15 November 2013, 7 days" then it would run on, "before commencing the works required by (e) to (h)", and then substituting for the date "30 August 2013" the date "24 January 2014." (e)Substitute for order 5(f) the following: "ensuring that site inspections and supervision of the construction of the positive structural retaining system are carried out by the engineer(s) referred to in 5(a) above in accordance with the requirements specified in paragraph 3 of the joint engineering experts report dated 15 November 2013 and a report detailing each inspection is provided to the Council within 7 days of each inspection". (f)Before order 6, insert a new order 6A which will read as follows: "Orders the respondent to ensure that the engineer(s) referred to in 5(a) above undertake ongoing inspections of the current temporary propping system to the existing house of the Property in accordance with the requirements specified in paragraph 11 of the joint engineering experts report dated 15 November 2013 and that: (a) the reinspection of the current temporary propping system required under paragraph 11(1) of the joint engineering experts report occurs by 31 December 2013 with a report on the inspection to be provided to the Council within 14 days of the inspection; (b) the periodic inspections required under paragraph 11(2) of the joint engineering experts report occur by no later than 6 monthly intervals with a report on each inspection to be provided to the Council within 7 days of each inspection; (c) the respondent is to immediately notify the engineers of any of the occurrences and/or issues referred to in paragraphs 11(3) and 12 of the joint engineering experts report and the inspection by the engineer(s) is to take place within 24 hours of the notification; (d) in the event of 6A(c) above, within 24 hours of any inspection the respondent must provide to the Council a written report from the engineer(s) which details the occurrence and/or issue and any actions recommended by the engineer to be taken in response to the occurrence and/or issue; and (e) in the event of 6A(c) above, the respondent must carry out any actions recommended by the engineer(s) within the time frame recommended by the engineer(s). Following such actions, the respondent must obtain written certification from the engineer(s) that the action taken was satisfactory and provide that certification to the Council and the Court within 48 hours of completion of the action. (g)insert a new paragraph 6B which reads as follows: "Orders that the respondent is to carry out ongoing routine maintenance and inspections in accordance with the requirements specified in paragraph 12 of the joint engineering experts report dated 15 November 2013". (h)in order 6, substitute for the date "29 November 2013" in the first line the date "31 October 2014". (i)in order 6(c), substitute for the date "30 August 2013" the date "30 June 2014". (j)order 7 remains. (k)change order 10 by deleting the words "the earlier of" and substitute instead the word "within", and further deleting after the words "order 5(i) and order 6(i)" the words "or December 2013", so that the full stop will finish after "order 6(i)". 20The orders as now varied will be issued by the Court to the parties. 21The Council applies for an order for costs of Mr Martoriati's motion filed 23 September 2013. 22Mr Martoriati opposes paying the Council's costs. Mr Martoriati's motion is to extend the time for him to comply with the Court orders made against him. A significant reason for the extension is that Mr Martoriati has not been able to comply with the requirements for preparing the design of the remedial works to the land and the house in accordance with the Court orders. It has taken the three occasions on which Mr Martoriati's notice of motion has been heard for him be in a position where he can propose a timeline to comply with the requirements of the Court orders. 23I consider that the Council should be compensated for the cost to which it has been put in reaching this belated position. Mr Martoriati has sought the leave of the Court to extend the time for him to comply with the Court orders made against him. It is fair and reasonable that he pay the Council's costs of his seeking and obtaining this leave. 24There is nothing about the Council's conduct in dealing with Mr Martoriati's motion seeking leave to extend the time for him to comply with the Court orders that would disentitle the Council to an order for costs. Mr Martoriati has referred to other action that the Council has taken outside of these proceedings and this motion for leave to extend time to comply with the Court orders. That action is not relevant to the question of the Council's conduct in dealing with this notice of motion. 25I therefore make an order that Mr Martoriati pay the Council's costs of Mr Martoriati's notice of motion filed 23 September 2013 as agreed or assessed.