Land and Environment Court New South Wales Medium Neutral Citation: Pittwater Council v Martoriati (No 4) [2014] NSWLEC 47 Hearing dates: 28 April 2014 Decision date: 28 April 2014 Jurisdiction: Class 4 Before: Craig J Decision: Directions as set out at [8] Catchwords: PRACTICE AND PROCEDURE - motion requesting extension of time to comply with orders - short notice received by Council - absence of material relevant to determination - directions for preparation and service of further evidence - motion stood over for hearing Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Local Government Act 1993 (NSw) Cases Cited: Pittwater Council v Martoriati (No 3) [2013] NSWLEC 214 Category: Procedural and other rulings Parties: Pittwater Council (Applicant) Marco Martoriati (Respondent) Representation: D J Townsend (solicitor) (Applicant) Self represented with P de Lord (McKenzie friend) (Respondent) King & Wood Mallesons (Applicant) Self represented (Respondent) File Number(s): 40251 of 2012 EX TEMPORE Judgment 1On 23 May 2012 this Court made orders to remedy and restrain breaches of the Environmental Planning and Assessment Act 1979 (NSW) and the Local Government Act 1993 (NSW) caused by Marco Martoriati when he excavated behind, beside and under his house on land known as 76 Wallumatta Road, Newport. 2Since that time the matter has been before the Court on several occasions, most recently on 25 November 2013 when the detailed orders made on 23 May 2012 were amended and time for compliance with a number of those orders extended. 3Relevantly, at that time, Orders numbered (5) and (6) were the subject of consideration by the Chief Judge and the time for compliance with those orders extended (Pittwater Council v Martoriati (No 3) [2013] NSWLEC 214). Order (5) of the orders then made required compliance by today, 28 April 2014. Compliance was meant to be achieved by the taking of two steps. First, the preparation by suitably qualified engineers of design documents for permanent site stabilisation works in accordance with requirements that were set out in that order, particularly in paragraph (b). The design documents were to be provided to the Council. Secondly, the order required that permanent site stabilisation work then be undertaken in accordance with the design documents. 4Although design documents were submitted to the Council or its solicitors in January of this year in purported compliance with paragraph (b) of Order (5), the Council expressed concern that the documents then provided did not meet the design requirements specified in that Order. Details of matters not addressed in the documents were provided to Mr Martoriati in a letter dated 17 February 2014 from the Council's solicitor. Since that time, there seems to have been little, if anything, done, at least so far as the Council is aware, to give effect to Order (5). 5By notice of motion filed on 24 April 2014, Mr Martoriati seeks an extension of time to comply both with Order (5) and Order (6). At the present time the Council does not agree in the extension of time that is sought. The notice of motion was served only on Thursday afternoon last, prior to a public holiday on Friday, and was returnable before me this morning on an urgent basis. 6Given the Council's understandable inability to deal properly with the motion on the short notice given to it and, more particularly given the absence of evidence relevant to the determination sought, the hearing before me this morning has been directed to the formulation of appropriate orders or directions necessary to ensure that when the motion is finally heard, there is evidence upon which the Court can make an informed decision. This evidence includes an assessment of the present stability of the site, given that works to date have only been directed to temporary stabilisation, together with evidence as to the likelihood that Mr Martoriarti is able to meet the extended times that he now seeks, should the time for compliance with Orders (5) and (6) be extended as he seeks to do. 7I make clear that by identifying the directions that have been the subject of discussion, I should not be taken as giving any indication of the possible outcome of Mr Martoriati's motion to extend the time for compliance with Orders (5) and (6). The extensions of time that he seeks, or any period of extension, remains to be determined on the final hearing of his motion. 8In order to prepare that motion for hearing or otherwise to enable the parties to reach an appropriate accommodation, I make the following directions: (1)Direct that by 5.00pm on Thursday 1 May 2014 the Respondent serve upon the Applicant's solicitors a report of Mark Bartel, geotechnical engineer, responding to the letter of King & Wood Mallesons Solicitors dated 17 February 2014 concerning the design documents required to comply with Order (5) of the consolidated orders made by this Court on 25 November 2013. (2)Direct that by 5.00pm on 14 May 2014 the Applicant serve its response, if any, to the report provided by Mr Bartel in accordance with Direction 1. (3)Direct that by 5.00pm on 9 May 2013 the Respondent file and serve a report signed jointly by his structural engineer, Anthony Pincevic, and his geotechnical engineer, Mark Bartel, certifying that the site at 76 Wallumatta Road, Newport is presently stable and unlikely to result in any land slip or other instability if permanent stabilisation works are not carried out and completed until 26 September 2014. (4)Direct that by 5.00pm on 8 May 2014 the engineers identified in Direction 3 jointly provide a detailed schedule of works and their estimated timing for each stage of work necessary to complete the works that must be undertaken in accordance with Order (5) of the consolidated orders made on 25 November 2013. (5)Direct that by 5.00pm on 8 May 2014 the Respondent file and serve any evidence upon which he proposes to rely in support of his application to extend time for compliance with Order (6) of the consolidated orders made on 25 November 2013. (6)Stand over the Respondent's notice of motion filed on 24 April 2014 for hearing on Tuesday 20 May 2014. ********** 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: 30 April 2014