Land and Environment Court New South Wales Medium Neutral Citation: Pittwater Council v Martoriati (No 4) [2014] NSWLEC 111 Hearing dates: 27 June 2014 Decision date: 27 June 2014 Jurisdiction: Class 4 Before: Preston CJ Decision: (1) Extend the time to carry out the remedial works specified in order 5 from 28 April 2014 to 16 February 2015. (2) Extend the time to provide the design specified in order 6(c) from 30 June 2014 to 15 April 2015. (3) Extend the time to carry out the work specified in order 6 from 31 October 2014 to 15 July 2014. (4) Order Mr Martoriati to pay Pittwater Council's costs of the hearings on 5 and 27 June 2014. Catchwords: CIVIL ENFORCEMENT - orders to prepare and certify design for, and to carry out, remedial works to land and house - motion by respondent to extend time to comply with orders - orders varied - respondent to pay certain of Council's costs of motion Legislation Cited: Environmental Planning and Assessment Act 1979 Local Government Act 1993 Cases Cited: Pittwater Council v Martoriati [2012] NSWLEC 131 Pittwater Council v Martoriati (No 3) [2013] NSWLEC 214 Category: Consequential orders Parties: Pittwater Council (Applicant) Marco Martoriati (Respondent) Representation: Ms M Carpenter (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 1By notice of motion dated 22 April 2014, which was later amended, Mr Martoriati seeks to extend the time by which he is required, by orders of the Court, to undertake remedial works in relation to the land and the house on the land at 76 Wallumatta Road, Newport. 2The current orders of the Court were made on 25 November 2013, varying and consolidating orders made on earlier occasions to remedy and restrain breaches committed by Mr Martoriati of the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993. 3I explained the breaches and the orders in my judgment of 23 May 2012: see Pittwater Council v Martoriati [2012] NSWLEC 131. I set out the history of and reasons for the delay by Mr Martoriati in complying with the orders, and my reasons for allowing him longer time to comply, in my judgment of 25 November 2013: see Pittwater Council v Martoriati (No 3) [2013] NSWLEC 214. 4Unfortunately, Mr Martoriati has not been able to comply with the extended timetable made on 25 November 2013. He has made some progress in relation to engaging engineers and preparing a design for remedial works to the land around the house, essentially a retaining wall system, but not enough to comply fully with what was required by order 5 by the due date of 28 April 2014. 5Mr Martoriati has not undertaken any of the work required by order 6 in relation to the house. This work is not required to be completed until 31 October 2014. However, the work to the house is dependent on the remedial work to the land around the house being completed first. 6Because the work to the land has not been completed by the due date, and is estimated to take about 28 weeks to complete after commencement, Mr Martoriati will not be able to complete the work to the house by the due date of 31 October 2014. Mr Martoriati therefore seeks an extension of time to carry out the work required by orders 5 and 6. 7Mr Martoriati's notice of motion was first listed for hearing on 20 May 2014. Pittwater Council opposed Mr Martoriati's application for an extension of time. Its primary argument at that time was that Mr Martoriati had already been given sufficient time, and extensions of time, since the original orders were made on 23 May 2012 to complete the works required by orders 5 and 6, and he should not be given any further indulgence. 8However, such a view does not encourage, or result in, the remedial works required by the Court orders being carried out. The statutory breaches would remain unremedied. The Council's alternative argument was that time should not be extended until the design for the remedial works to the land had been prepared in accordance with orders 5(a)(d). The Council contended that the design documents provided by Mr Martoriati to date did not comply with all of the requirements of orders 5(a)(d). 9At the hearing on 20 May 2014, it became obvious that the design documents thus far provided by Mr Martoriati were insufficient to describe clearly and in detail the remedial works to be carried out, as required by orders 5(a)(d). Mr Martoriati sought further time to do so. Pragmatically, there was little point in extending the time to carry out the remedial works required by order 5 if Mr Martoriati had not yet finalised the design of the remedial works he was going to carry out. 10I therefore adjourned the further hearing of the motion to 5 June 2014 and directed Mr Martoriati to file and serve the design documents in accordance with orders 5(a)(d) by 30 May 2014. 11At the further hearing of the motion on 5 June 2014, the parties tendered various evidence concerning the design documents provided by Mr Martoriati. The Council read affidavits of its consultant engineers, Mr Pilz and Mr Colenbrander, identifying aspects in which the design documents provided did not, in their opinion, meet the requirements of orders 5(a)(d). 12Mr Martoriati tendered letters from his consultant engineers, Mr Bartel and Mr Pincevic, responding to these identified aspects. Mr Martoriati also tendered the drawings of the retaining wall system and the specifications for the Concrib reinforced concrete segmental crib retaining wall proposed. This evidence revealed that, although Mr Martoriati had prepared some additional documents required by orders 5(a)(d), there were still other documents required that had not been provided. The further hearing was, therefore, again adjourned to today, 27 June 2014, to allow Mr Martoriati to prepare, and file and serve, a complete set of design documents that met the requirements of orders 5(a)(d). 13Mr Martoriati has compiled in a bundle various documents, comprising various drawings for the retaining wall and stormwater management systems and engineers' letters and certificates, that he says together now satisfy the requirements of orders 5(a)(d). The documents in the bundle include documents tendered on 5 June 2014 as well as new documents including forms for the Geotechnical Risk Management Policy for Pittwater completed by Mr Pincevic and Mr Bartel, a letter dated 19 June 2014 from Mr Pincevic responding further to the affidavits of Mr Pilz and Mr Colenbrander and providing structural details for the handrail and strip footings of the retaining wall, a stormwater drainage design dated 20 June 2014, and a joint statement of Mr Pincevic and Mr Bartel dated 23 June 2014 that the work will be carried out in accordance with the requirements of order 5(c). This bundle of documents has been tendered today on the motion. 14The Council still expressed concerns as to the adequacy of the design as described in this bundle of documents and the design's compliance with the requirements of orders 5(a)(d). The Council tendered a letter to Mr Martoriati sent yesterday outlining its concerns. The Council also tendered an earlier document prepared by Mr Martoriati's geotechnical engineer, Mr Bartel, being a preliminary landslide risk assessment dated 20 June 2013, that the Council submitted should be added to Mr Martoriati's bundle of design documents. 15In an endeavour to address the council's concerns, Mr Martoriati's structural engineer, Mr Pincevic, was called to give oral evidence by telephone. Mr Pincevic orally updated his certification of 6 September 2013 that the concrete crib walls will provide adequate support to the existing excavated faces on the land. The previous certification had been given having regard to an earlier design by Mr Bartel of Asset Geotechnical. Mr Pincevic affirmed that he had seen the latest design and certified that the retaining walls constructed in accordance with this new design will provide adequate support to the cuts to achieve relevant Australian Standards and acceptable risk levels under Pittwater Council's Geotechnical Risk Management Policy. 16Mr Pincevic also explained the process for modifying the temporary propping of the house to complete the works. He confirmed that he will supervise that process, ensure the structural adequacy of the house and land, and provide a certificate of structural adequacy at the conclusion of the works. Mr Pincevic also said he would undertake regular inspections of the temporary propping and check whether timber elements are adequate having regard to the damp or wet environment, and recommend replacement if necessary. 17Mr Pincevic had provided, in his recent letter of 19 June 2014, a hand-drawn engineering drawing of the handrail system at the top of the wall. The Council had queried its adequacy in its letter to Mr Martoriati. Mr Pincevic was crossexamined on these queries. Mr Pincevic asserted that the proposed handrail would be structurally adequate and fit for its purpose and sufficiently durable for the time period required until permanent works are carried out. Mr Pincevic said he would provide an engineering certificate of adequacy for the handrail and strip footing at the completion of the works. 18Mr Pincevic agreed to amend the Pittwater Council Geotechnical Risk Management Policy form he had recently completed to refer to the relevant geotechnical reports. 19I should note that in determining Mr Martoriati's motion, it is not necessary for me to determine whether the design documents now tendered by Mr Martoriati, and explained by Mr Pincevic, do, in fact, comply fully with orders 5(a)(d). Mr Martoriati's motion to extend time for compliance with orders 5 and 6 does not directly require that I determine this issue. 20My concern to see the design for the remedial works finalised before determining Mr Martoriati's motion was a pragmatic one. Mr Martoriati needs to know what remedial works he is to carry out and that those remedial works, when completed, will be able to be certified by the engineers as having been carried out in accordance with the design, relevant Australian Standards, and Pittwater Council's Geotechnical Risk Management Policy and that the batter slopes on the northern and eastern sides of the upper terrace of the land and all other excavated faces on the land are supported and stable (see order 5(i)). Any extension of time to comply with orders in 5 and 6 does not constitute an acceptance that the design documents satisfy orders 5(a)(d). 21Moreover, it should be noted that Pittwater Council has not brought proceedings charging Mr Martoriati with contempt of court for failing to comply with orders 5(a)(d) by not preparing a design that complies with all of the requirements of orders 5(a)(d) and hence there is no necessity to rule on whether the design documents do so comply (and I should not be seen, by noting this fact, to be inviting the Council to do so). 22I am satisfied that the bundle of documents tendered by Mr Martoriati, together with the earlier preliminary landslide risk assessment, and Mr Pincevic's oral evidence, now sufficiently articulate the remedial works, including the retaining wall system and the stormwater management system, to be carried out on the land that I can deal with Mr Martoriati's application for extension of time to comply with orders 5 and 6. 23Mr Martoriati submitted that he needs 28 weeks from the time he starts the remedial works on the land to complete those works. This is the time period given by Mr Martoriati's geotechnical engineer, Mr Bartel: see letter dated 6 May 2014. Assuming work could commence in a couple of weeks from today (say, 14 July 2014), and allowing for the usual suspension of work during the ChristmasNew Year period, the remedial works should be able to be completed by around 16 February 2015. 24Mr Bartel opined that, in this period, the risk to the property from landslide would be acceptable during the construction phase, and even more so after the retaining walls are constructed. In these circumstances, Mr Bartel opined that it is not reasonable to force an earlier completion date. 25Mr Martoriati also sought an extension of time to comply with certain requirements of order 6. Order 6(c) required Mr Martoriati to provide to the Council a design for the permanent works to the house (specified in orders 6(d)(h)) no later than 30 June 2014 and order 6 generally required the completion of these permanent works by 31 October 2014. Mr Martoriati submitted that he cannot carry out these works until he completes the remedial works to the land required by order 5. 26Mr Martoriati also wishes to consider his options as to what to do with the house. As I noted in my judgment of 25 November 2013 (at paras 13 and 14), Mr Martoriati is undecided as to whether he wants to keep the current house or replace it with a new house. Carrying out the permanent works to the house required by order 6 only makes sense if he wishes to keep the current house. Mr Martoriati, therefore, seeks to defer carrying out the permanent works required by order 6 for a longer period of time to allow him to consider which option he wishes to pursue. 27As I noted in my previous judgment, allowing further time is acceptable provided the current house is currently, and will remain for the extended period of time, structurally supported and stable without the permanent works required by order 6 being undertaken. 28Mr Martoriati's structural engineer, Mr Pincevic, has provided a certificate of structural adequacy dated 2 May 2014 that the structural elements of the existing dwelling and all back propping placed to support the dwelling are structurally adequate and comply with the relevant Australian Standards codes and that the extension of time sought (at that time, to 15 May 2015) to complete the permanent bracing of the existing dwelling will not affect the structural integrity of the temporary propping in place, provided periodic (six monthly) inspections are undertaken to check that all structural elements are in good working order. Because of the two month delay in commencing the remedial works to the land required by order 5, Mr Martoriati sought a similar two month extension to the times he had sought in his amended notice of motion to comply with order 6. This brought the date for the design of the permanent works for the house to 15 April 2015 and the date for completion of those works to 15 July 2015. 29The Council, by the conclusion of the hearing, accepted that the dates for compliance with orders 5 and 6 needed to be extended, and that the revised dates sought by Mr Martoriati were, in the circumstances, reasonable. The Council still expressed concern as to the state and the adequacy of the design documents. Amongst other points, Mr Bartel had not been able to update his earlier geotechnical certificates that the retaining wall required by order 5 would provide adequate support for the excavated faces. His certificates, like Mr Pincevic's certificate, had been based on the earlier design drawings. 30However, the latest design drawings for the retaining wall system had been drawn by Mr Bartel. It is inconceivable that he would revise his design so as to cause it to no longer provide adequate support for the excavated faces. I consider, therefore, the lack of a further certificate from Mr Bartel confirming that his revised design still provides adequate support for the excavated faces is a defect of form not substance. 31The Council also pointed out that the forms completed by Mr Pincevic omitted to refer to earlier documents (which Mr Pincevic said he would remedy) and by Mr Bartel failing to circle that he was a geotechnical engineer (which he is). Again, these are matters of form that can be remedied. 32The Council also submitted that the design did not address what work would be done on the Council's verge downhill of Mr Martoriati's land. It submitted that the Court orders required the undertaking of works to excavated faces uphill of the driveway on the Council's verge. I am not presently inclined to read the Court orders as requiring Mr Martoriati to undertake work on the Council's land as contrasted to his own land. However, I do not need to rule finally on this question as it is not necessary to determine it in order to decide whether or not to extend the time to carry out the works required by order 5 (whatever those works might be). 33For the foregoing reasons, I will extend the time for Mr Martoriati to undertake the works required by orders 5 and 6 to the dates now sought by Mr Martoriati. 34The Council sought an order that Mr Martoriati pay its costs of two of the days of the hearing of Mr Martoriati's motion, namely today and 5 June 2014. The Council submitted that Mr Martoriati sought an indulgence from the Court to extend, yet again, the time for him to comply with the Court orders. The hearing of the motion has been extended over three days because of Mr Martoriati not having complied with the requirement of the Court order that he have prepared and submitted by January 2014 the design for the remedial works. The adjournments were necessary to enable Mr Martoriati to comply with this requirement. It has taken until today before Mr Martoriati has been able to put together all of the documents necessary to meet the requirements of orders 5(a)(d) and even then some of the evidence had to be adduced orally from Mr Pincevic. The Council submitted that it has been put to unnecessary cost by this extended process. The Council, therefore, sought to be compensated for the cost of two of the three days of the hearing of the motion. Mr Martoriati submitted that the Council's insistence on further documentation was the cause that led to the extra hearing days. 35I consider, in the circumstances, that it is fair and reasonable for Mr Martoriati to pay the Council's costs of two of the three days of the hearing of his motion, essentially for the reasons advanced by the Council. Mr Martoriati could have avoided the number of hearings and the length of the hearing if he had fully complied with the requirements of order 5 to prepare and submit to the Council for approval the design of the remedial works required by order 5 before he applied for an extension of time to carry out those works in accordance with the design. The extra cost is a consequence of his failure to do so. The costs of two of the three days of hearing are not all of the costs that the Council would have incurred in responding to Mr Martoriati's motion. 36I make the following orders: (1)Extend the time to carry out the remedial works specified in order 5 from 28 April 2014 to 16 February 2015. (2)Extend the time to provide the design specified in order 6(c) from 30 June 2014 to 15 April 2015. (3)Extend the time to carry out the work specified in order 6 from 31 October 2014 to 15 July 2014. (4)Order Mr Martoriati to pay Pittwater Council's costs of the hearings on 5 and 27 June 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: 25 July 2014