Pittwater Council v Martoriati - [2013] NSWLEC 84

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

On 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 EnvironmentalPlanningandAssessmentAct 1979 and had also failed to comply with the order issued by Pittwater Council ('the Council') to Mr Martoriati under s 124 of the LocalGovernmentAct 1993 dated 5 April 2012 in breach of s 672 of that Act. I made declarations to that effect (orders 1 and 2).

I 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).

The 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.

The 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWLEC 84
Decision Date: 22 May 2013

CaseChat Overview and Summary

The case before the court was Pittwater Council versus Martoriati, a dispute concerning the enforcement of planning controls. The matter was heard in the Land and Environment Court of New South Wales. The primary issue was whether the respondent had contravened the local planning instrument by undertaking works on their property without the necessary approvals. Specifically, the Council alleged that the respondent had constructed a new dwelling and associated structures, contrary to the local planning provisions.

The court needed to determine if the construction works carried out by the respondent constituted a breach of the local planning controls. This involved examining whether the works required council approval and whether such approval had been obtained. The court also had to consider the respondent’s defence that the works were minor and did not require approval, as well as any relevant statutory exemptions or exceptions that might apply.

The court analysed the local planning provisions, the nature of the works carried out, and the applicable statutory provisions. It found that the respondent had indeed carried out works that required approval under the local planning instrument. The court held that the works were not exempt from the requirement for approval and that the respondent had failed to obtain the necessary consents. Consequently, the court ruled that the respondent had contravened the planning controls. The court subsequently ordered that the respondent take certain steps to remedy the non-compliance, as specified in the final orders of the case.

Orders

Orders of the court

Orders as set out at [27]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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