Pittwater Council v Martoriati (No 2)
[2013] NSWLEC 120
•04 July 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Pittwater Council v Martoriati (No 2) [2013] NSWLEC 120 Hearing dates: 4 July 2013 Decision date: 04 July 2013 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [6]
Catchwords: CIVIL ENFORCEMENT - notice of motion by respondent to extend time for compliance with and to amend court orders concerning the carrying out of certain permanent works - parties agree on orders by consent - Council seeks order that respondent pay the Council's costs on the notice of motion - orders made Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Consequential orders Parties: Pittwater Council (Applicant)
Mr Marco Martoriati (Respondent)Representation: Ms J K Taylor (Barrister) (Applicant)
Mr M Martoriati (Respondent)
King & Wood Mallesons (Applicant)
Mr P Freeman (McKenzie friend) (Respondent)
File Number(s): 40251 of 2012 Publication restriction: No
Judgment
On 23 May 2012, I made orders in civil enforcement proceedings that Mr Martoriati carry out works on his land and his neighbour's land to address aspects of instability of the land and/or inadequacy of his house and property. Certain of those works, which were to be the permanent works, were to be done within twelve months of the making of the orders, that is to say, by 23 May 2013.
Mr Martoriati was not able to complete the permanent works in accordance with the court orders by that date. He has applied to the Court by notice of motion filed 23 June 2013, but foreshadowed at an earlier occasion, to amend the Court's orders concerning the permanent works, firstly, to extend the time by which the permanent works are to be done and, secondly, to amend certain aspects of the orders so as to permit him to implement the designs proposed by his geotechnical and civil engineers.
The motion was listed for hearing today. Mr Martoriati and the Council have agreed on orders which would achieve both of these goals of Mr Martoriati, that is to say, to extend the time by which Mr Martoriati should implement the works required by the court orders of 23 May 2012 and to vary the orders so as to allow Mr Martoriati to submit designs and implement works in accordance with the designs of his geotechnical and civil engineers. The agreed orders set out in the short minutes of order are appropriate and I will make those orders.
The Council has also sought an order that Mr Martoriati pay the Council's costs of the notice of motion that has been heard today. The Council's case is simply that it has incurred costs by reason of Mr Martoriati not being able to complete the works in accordance with the court orders by the date ordered by the Court and that it should be compensated for those costs. Mr Martoriati, through his McKenzie friend, Mr Freeman, agrees that it is reasonable to order Mr Martoriati to pay the costs of his motion in the circumstances. He submitted that they should be reasonable costs. The proper course is that the Council would submit a bill for the amount of costs. That would be on a party/party basis. Mr Martoriati can determine whether he agrees with those costs. If he wishes to contest them then there is the usual process by way of taxation or assessment of the costs.
For these reasons, I make the orders in terms of the short minutes of order which I have initialled and dated today, including an additional order that Mr Martoriati pay the Council's costs of his notice of motion filed 21 June 2013.
The orders of the Court are:
(1) The contempt charges for failure to comply with orders 4(a)(ii), (iii), (iv), 4(b)(i), (iii) and 4(d) of the Court Orders dated 23 May 2012 are purged as the Applicant has complied with the specified orders and has remedied the breaches.
(2) The imposition of the ongoing fine of $2,000 per month comprised in order 2 of the Court Orders dated 22 May 2013 is discharged.
(3) Order 5 of the Court Orders dated 23 May 2012 is varied as follows:
(a) Order 5(b) is varied by inserting the following order 5(b)(xiii):
"that all works are carried out in accordance with paragraph 6 of the Preliminary Landslide Risk Assessment (2162-B) prepared by Asset Geotechnical and dated 20 June 2013".
(b) Order 5(c) is replaced with the following:
"providing to the Council a copy of the design of the engineer, certified by both of the Applicant's geotechnical and structural engineers that the design complies with the Building Code of Australia, the relevant Australian Standards and the Pittwater Council Geotechnical Risk Management Policy for Pittwater - 2009, 14 days before commencing the works required by (d) to (f), and no later than 30 August 2013".
(c) Order 5(g) is replaced with the following:
"providing to the Council a certificate from the Respondent's geotechnical and structural engineers that the works required by (d) to (f) above have been carried out in accordance with the design, the relevant Australian Standards and the Pittwater Council Geotechnical Risk Management Policy for Pittwater - 2009 and the batter slopes on the northern and eastern sides of the upper terrace and all other excavated faces on the Property are supported and stable".
(4) The time for compliance with order 5 of the Court Orders dated 23 May 2012 (as varied) is extended until 29 November 2013.
(5) Order 6 of the Court Orders dated 23 May 2012 is varied as follows:
(a) Order 6(c) is replaced with the following:
"providing to the Council a copy of the design of the engineer, certified by both of the Respondent's geotechnical and structural engineers that the design complies with the Building Code of Australia, the relevant Australian Standards and the Pittwater Council Geotechnical Risk Management Policy for Pittwater - 2009, 14 days before commencing the works required by (d) to (h), and no later than 30 August 2013".
(b) Order 6(i) is replaced with the following:
"providing to the Council a certificate from the Respondent's geotechnical and structural engineers that the works required by (d) to (h) above have been carried out in accordance with the design, the Australian Standards and the Pittwater Council Geotechnical Risk Management Policy for Pittwater - 2009, that the house is structurally adequate and stable and that all excavated faces on the are supported and stable".
(6) The time for compliance with order 6 of the Court Orders dated 23 May 2012 (as varied) is extended until 29 November 2013.
(7) The time for compliance with order 7 of the Court Orders dated 23 May 2012 is extended until 15 August 2013.
(8) The Court Orders dated 23 May 2012 are varied by inserting the following order 9:
"In relation to orders 5 and 6, the Court permits the Council, with its qualified advisers, to inspect the property, the earlier of 14 days after the Council receives the engineers certificate referred to in order 5(g) and order 6(i) or 2 December 2013."
(9) The Court notes that if the Respondent wishes to do works outside of the scope of orders 5 and 6 of the Court's Orders dated 23 May 2013, that such works are governed by the approval process detailed in the Environmental Planning and Assessment Act 1979 and associated instruments.
(10) The Respondent is to pay the Applicant's costs of Mr Martoriati's motion which was filed on 21 June 2013 in the proceedings.
**********
Decision last updated: 01 August 2013
0
0
1