Pittwater Council v Martoriati

The house owner's initial reluctance to appear in the proceedings 22At each of the attendances before the Court, including when interlocutory orders have been made, Mr Martoriati has declined to appear. From time to time he has communicated with the Council's solicitors and the Court acknowledging that he has received the various court documents and orders but says he has returned them after having stamped them "Unclaimed. Return to sender". The Council has filed and read numerous affidavits of service establishing service on Mr Martoriati of the originating process and pleadings, and the amendments thereto, all affidavits to be relied upon by the Council at interlocutory and final hearings, and the Court's various orders. 23I am satisfied that Mr Martoriati has had knowledge of the proceedings, all documents filed and court orders made in the proceedings, including the interlocutory orders and the order fixing the proceedings for a final hearing on 7 May 2012. Mr Martoriati's non-appearance at the interlocutory hearings has simply been a result of his reluctance to appear. 24Mr Martoriati's reluctance to appear, however, changed at the final hearing.

The course of the final hearing 25Just before the final hearing on 7 May 2012, Mr Martoriati had a change of mind. Mr Martoriati wrote a letter of authority dated 6 May 2012, which he faxed to the Court. Mr Martoriati's letter refers to the proceedings by file number and says: "Due to unforseen private business requiring my immediate and most urgent attention, I apologise for not being able to attend in the above captioned matter and accordingly; I authorise Phillip de Lord to act as my agent in this particular instance on the 7th of May 2012 at the Land and Environment Court of NSW". 26The letter of authority concludes with the name "Marco Martoriati" and a signature above the name. 27At the commencement of the hearing on 7 May 2012, Mr Phillip de Lord announced he was appearing as agent for Mr Martoriati in the proceedings. He handed to the Court a copy of Mr Martoriati's letter of authority, which was tendered in evidence. Mr de Lord then read a statement, a copy of which he handed to the Court and which was also tendered in evidence, seeking in effect a vacation of the hearing and instead the fixing of a settlement conference between the parties on 22 or 23 May 2012. Mr de Lord's statement said, in part: "With leave of the court, I am here to advise you that Mr Martoriati has given me authority to speak today due to being unexpectedly called out of the State on private business. He is also presently organising expert assistance and counsel and wishes to settle this matter privately and without the need for unnecessary or further litigation. I understand Mr Martoriati has had a change of mind and wishes to resolve all outstanding matters with any genuine claimant and all costs will be settled at 100 cents in the dollar. If necessary he and his expert counsel will be available on either 22nd or 23rd May 2012 for a settlement conference or status hearing with all the parties present." 28After giving Mr de Lord a further opportunity to put any further evidence before the Court and make further submissions on his application, I refused Mr de Lord's oral application to vacate the hearing and instead adjourn the proceedings to a settlement conference or status hearing on 22 or 23 May 2012. The immediacy of the instability, structural and safety risks to Mr Martoriati's land and house and its occupants demanded that the hearing proceed on the day fixed for trial. 29Accordingly, the hearing did proceed on the day. The Council read its affidavit evidence and tendered the Pittwater Local Environmental Plan 1993 ("LEP") and the relevant extract from the LEP map. The Council's affidavit evidence which was read was of: (a)Mr Colenbrander, the geotechnical engineer, who provided the reports of 6 March and 28 March 2012, describing the geotechnical instability of the slope, excavation and filling; (b)Mr Berriman, the structural engineer, who provided the report of 2 April 2012, describing the structural inadequacy of the house and risk to the safety of its occupants; (c)Mr Greenow, a development compliance officer with the Council, describing his visits to Mr Martoriati's property and his conversations with Mr Martoriati; his observations that Mr Martoriati had not carried out the remedial works required by the Court order or emergency order; and the absence of any development application or development consent for the excavation and filling works undertaken at Mr Martoriati's or Ms Phillips' property; (d)Mr Bowtell, a ranger with the Council, describing a visit to Mr Martoriati's property and a conversation with Mr Martoriati; (e)Ms Phillips, describing the fill Mr Martoriati had placed on her property and its effects in burying the trees; Mr Martoriati's cutting down of trees on his property and the construction of a retaining wall with the recently cut down trees on Ms Phillips' property and the placing of fill behind that wall; and conversations with Mr Martoriati; (f)Ms Townsend, a partner with the Council's solicitors, describing the background to the proceedings and attaching various documents; (g)Ms Dean, an employed solicitor with the Council's solicitors, describing the service of documents on Mr Martoriati and his returning of them and attaching the documents sent and returned; (h)Mr Davis, a valuer, opining that, by reason of Mr Martoriati's actions that have affected the structural adequacy, stability and safety of the house, the house as an improvement only adds $7,000 value to the property; and (i)Mr Hill and Mr Slater describing the service of various court documents on Mr Martoriati from time to time. 30Mr de Lord, the authorised agent of Mr Martoriati, remained present during the reading of these affidavits and was given an opportunity to object to the evidence and to cross-examine each of the Council's witnesses. Mr de Lord made some objections, on which I ruled. Mr de Lord said that he did not wish to cross-examine any of the Council's witnesses. 31However, at 2.00pm on the recommencement of the hearing after lunch, Mr de Lord said he did not wish to remain at the hearing. He said he thought the time would be better spent speaking to Mr Martoriati about matters that had arisen at the hearing. I explained to Mr de Lord that the hearing would continue in his absence. He said that he understood that. I explained what would occur, including the Council concluding its evidence and making submissions. I explained that if he was not present he would not have the opportunity to hear the balance of the Council's evidence or their oral submissions (Mr de Lord had earlier been given a copy of the Council's written submissions). I said he would miss the opportunity to call evidence and to make submissions on behalf of Mr Martoriati. I explained that the Court would benefit from hearing what Mr Martoriati's case was regarding both the claimed breaches of the Acts and the court orders that should be made to remedy those breaches. I explained also that, if the Council succeeded in establishing the breaches of the Acts and obtained orders remedying the breaches, the Council would, no doubt, seek that Mr Martoriati pay the Council's costs. 32Mr de Lord thanked me for my explanations, said he was aware of the matters I had raised, but still wished to leave the hearing in order to discuss matters with Mr Martoriati. Mr de Lord then left the hearing. 33The hearing thereafter continued in the absence of Mr Martoriati and his agent, Mr de Lord. The Council read and tendered the balance of its evidence and then made submissions. I raised with the Council during its submissions whether an actual breach of the Local Government Act had yet occurred. The emergency order issued by the Council on 5 April 2012 required Mr Martoriati to undertake the actions specified in the emergency order by 11 May 2012. The hearing was on 7 May 2012. Hence, Mr Martoriati still had a few days left within which he could undertake the actions specified in the emergency order, except for that order which required Mr Martoriati and other occupants to vacate the property immediately. 34The Council, therefore, agreed to the hearing of the proceedings being adjourned until after 11 May 2012 to ascertain whether Mr Martoriati had complied or had failed to comply with the terms of the emergency order. As Mr de Lord had informed the Court that Mr Martoriati, and his expert counsel, would be available on 22 or 23 May 2012, I adjourned the hearing until 23 May 2012. I made an order allowing the Council's experts and officers to inspect Mr Martoriati's land and house, after 11 May 2012, to ascertain whether Mr Martoriati had complied with the emergency order. The Council undertook to serve Mr Martoriati with a copy of my orders and explain what had occurred at the hearing on 7 May 2012 and would occur at the resumption of the hearing on 23 May 2012. 35On 23 May 2012, Mr Pierre Freeman, an engineer, appeared as agent for Mr Martoriati. Mr Freeman handed to the Court a handwritten letter from Mr Martoriati authorising Mr Freeman to represent him at the resumed hearing today. I admitted the letter into evidence. Mr Martoriati also was present in court and provided instructions to Mr Freeman. I note that Mr de Lord was present in court with Mr Martoriati. 36On the resumption of the hearing, the Council read two affidavits of Mr Hill, the first establishing that Mr Martoriati had been served with the court orders of 29 March and 7 May 2012 and a letter dated 10 May 2012 from the Council's solicitors and the second describing what Mr Hill had seen, or not seen, on his visits to the site. The Council also read an affidavit of Ms Dean, a solicitor with the Council's solicitors, describing the letters and documents she had sent Mr Martoriati; enquiries she had made about whether the documents had been collected by Mr Martoriati; and a text message on a mobile phone she had received from Mr Martoriati. Finally, the Council read an affidavit of Mr Greenow describing attempts to communicate with Mr Martoriati and a visit to the site on 21 May 2012. Mr Greenow observed that Mr Martoriati had not complied with either the court orders made by Pain J on 29 March 2012 or the emergency order issued by the Council on 5 April 2012, by undertaking the remedial works by the dates required by those orders or at all. 37After the Council had read its further affidavit evidence, I summarised for the benefit of Mr Freeman, and Mr Martoriati who was in court, what had occurred at the hearing on 7 May 2012 and reasons for the adjournment to today. I explained the Council's case against Mr Martoriati as to the breaches of the EPA Act and Local Government Act and the orders the Council was seeking in the second further amended summons to restrain and remedy those breaches. I explained that Mr de Lord had not put any evidence before the Court or made submissions. I invited Mr Freeman to put any evidence he wished before the Court, either oral evidence, such as by calling Mr Martoriati or even Mr Freeman himself to give oral evidence, or documentary evidence, such as letters, documents or expert reports. Mr Freeman did tender a letter Mr Martoriati sent in 2008 to the Council complaining about stormwater runoff from the driveway on the easement upslope of Mr Martoriati's land. Otherwise, Mr Freeman did not call any witnesses or tender any other documents. 38Mr Freeman made some submissions. He did not address the question of breach of the statutes, other than to extend to the Court Mr Martoriati's apology if he had breached the law. He did make submissions saying Mr Martoriati wanted to settle the matter with the Council privately and agree on the remedial works that need to be undertaken. 39I adjourned the hearing for a short time to allow Mr Freeman to discuss with Mr Martoriati the Council's proposed orders in the second further amended summons (a copy of which was provided by the Court to Mr Freeman). I also provided a draft of orders I was contemplating (although stressing that I had reached no firm view on these orders) for their consideration and making of submissions to the Court. The adjournment was also to provide Mr Freeman and Mr Martoriati the opportunity to discuss with the Council's representatives who were in Court any proposals for remedial works. 40After the short adjournment the Council made some brief submissions addressing the draft orders I had provided, making suggestions for changes and further orders. 41Mr Freeman then addressed. He supported generally the draft orders I had provided. He requested that further time (up to 28 days) be allowed for Mr Martoriati to vacate the property and to undertake the urgent temporary works required by the court orders of 29 March 2012 and the Council's emergency order of 5 April 2012. He did not oppose the Council's suggested variations to the orders regarding the permanent works, although he made suggestions as to wording. He submitted that the spoil and other materials removed from Ms Phillips' land should be able to be used as backfill behind permanent structural retaining walls, in accordance with the design of the engineer engaged to design and construct those walls. Mr Freeman did not contest that the Council should be entitled to a costs order in its favour but requested that the quantum be reasonable. Finally, Mr Freeman reiterated Mr Martoriati's apology if he breached the law and his commitment to undertake the necessary remedial works.

Breaches of law established 42I am satisfied on the evidence before the Court that Mr Martoriati has acted contrary to law in the three ways claimed by the Council:

• first, Mr Martoriati has carried out development which required development consent without obtaining such consent, in breach of s 76A(1) of the EPA Act;
• secondly, Mr Martoriati has failed, by the time specified of 11 May 2012, to do the things required by the emergency order issued on 5 April 2012 under s 124 of the Local Government Act, in breach of s 672 of the Local Government Act; and
• thirdly, Mr Martoriati has failed, by the time specified of 11 April 2012, to do the things required by the court orders made on 29 March 2012.

Breach of EPA Act 43Both Mr Martoriati's land and Ms Phillips' land are zoned Residential 2(a) under the LEP. In that zone, there are no purposes for which development may be carried out without consent. There are numerous purposes for which development is prohibited, none of which are relevant to the works carried out or the structures erected by Mr Martoriati. Any purpose other than a purpose for which development may be carried out without development consent or a purpose for which development is prohibited, may only be carried out with development consent. This includes development for the purpose of a dwelling house. 44The works carried out by Mr Martoriati included, on his land, the excavation of the land behind, beside and underneath his dwelling house; construction of a log retaining wall upslope of the excavation and the placing of fill behind that wall; and, on his neighbour's land, the construction of a cut timber retaining wall and placing of fill behind it and an existing sandstone wall. The carrying out of these works involved development within the meaning of that word in s 4(1) of the EPA Act. 45Mr Martoriati has also erected a steel support system to support his house, necessitated as a result of his excavation underneath and around his house. Erection of that structure involves the erection of a building (which includes a structure), which is also development within the meaning of that word in s 4(1) of the EPA Act. 46Mr Martoriati's carrying out of the works and the erection of the structure were for the purpose of his dwelling house. 47The carrying out of such development for the purpose of a dwelling house required development consent under the LEP. Mr Martoriati did not apply for, or obtain, development consent before carrying out the development. 48The development undertaken by Mr Martoriati is not exempt from the requirement for development consent under the LEP by reason of being exempt development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. The works carried out by Mr Martoriati and the structure erected by him are not exempt development that are specified in the Exempt Development Code in Pt 2 of that Policy or that meet the standards specified for that development. The earthworks carried out and the retaining walls constructed by Mr Martoriati on his land and Ms Phillips' land do not meet the development standards in cl 2.30 of the Policy. The steel structure supporting the house is neither the specified development of minor external, non-structural building alteration in cl 2.53 of the Policy, nor compliant with the development standards for that development in cl 2.54 of the Policy. 49Mr Martoriati, therefore, required development consent to carry out the works and erect the steel support structure, but he failed to obtain such consent. Section 76A(1) of the EPA Act provides that a person must not carry out development which requires development consent under an environmental planning instrument, unless such consent has been obtained and is in force, and the development is carried out in accordance with the consent. Mr Martoriati failed to comply with this provision. He thereby breached the EPA Act.

Breach of Local Government Act 50The Council issued to Mr Martoriati an order under s 124 of the Local Government Act, being the emergency order issued on 5 April 2012. It is referred to as an emergency order because it was issued without complying with the procedures, including the giving of notice of the proposed order, in Div 2 of Pt 2 of Ch 7 of the Local Government Act, because the order was given, and expressed to be given, in an emergency, as permitted under s 129(2)(b) of the Local Government Act. 51The emergency order issued by the Council required Mr Martoriati to complete the works required by order 9 of the court orders made by Pain J on 29 March 2012 as well as other works and actions specified in the order, by 11 May 2012. 52Mr Martoriati did not complete any of these works and actions by 11 May 2012. 53Furthermore, the order required Mr Martoriati to vacate his property immediately after the date of issue of the order on 5 April 2012 and not to return until the works described in the order had been completed. Mr Martoriati did not vacate the property after 5 April 2012 and still has not vacated the property as at the date of the hearing today. 54In all of these respects, Mr Martoriati has failed to comply with the emergency order. A failure to comply with an order under s 124 of the Local Government Act is a breach of the Local Government Act (see s 672).

Breach of court orders 55Order 9 of the court orders made by Pain J on 29 March 2012 required Mr Martoriati to carry out specified remedial works by 11 April 2012. The Council's emergency order adopted and reissued order 9 of the court orders and required Mr Martoriati to complete the works required by order 9 by 11 May 2012. As noted, Mr Martoriati did not complete the works by 11 May 2012, and hence did not complete the works by the earlier date set by order 9 of the Court order of 11 April 2012. Mr Martoriati is therefore in breach of the Court's order as well.

The parties' positions as to relief 56In the second further amended summons, the Council seeks a declaration that works carried out by Mr Martoriati were without development consent and in contravention of s 76A of the EPA Act, as well as a variety of orders requiring Mr Martoriati to take action to remedy the breaches of the EPA Act and Local Government Act. 57The orders sought by the Council fall into three categories: mandatory orders that Mr Martoriati take specified action, such as carrying out remedial works; prohibitory orders restraining Mr Martoriati from continuing to breach the law; and orders granting liberty to apply for further orders or to vary orders made. 58The mandatory orders sought would require Mr Martoriati, in general terms, to undertake a sequence of measures and works, being to: (a)forthwith after the making of the Court's orders, vacate the property and not return until the works required by paragraphs 1 to 5 of Schedule 1 of the emergency order had been completed; (b)within 14 days of the Court's orders, carry out the works required by paragraphs 1 to 5 in Schedule 1 of the emergency order; (c)within 6 months of the Court's orders, carry out the measures recommended by Mr Colenbrander in his report of 6 March 2012; (d)within 12 months of the Court's orders, carry out the works required by Mr Colenbrander in paragraph 3.1.2 of his report of 28 March 2012; (e)within 18 months of the Court's orders, provide replacement footings or foundations for the house and construct permanent support measures for all unsupported excavated faces on the property; (f)in the alternative to carrying out the measures and works in (c) to (e) above, within 18 months of the Court's orders, apply for and obtain a development consent and construction certificate to carry out, and to complete the carrying out of, alternative works to rectify and remediate the unauthorised works and to return the property to the maximum extent possible to the condition it was in prior to the unauthorised works being undertaken; (g)within 6 months of the Court's orders, remove spoil and other materials Mr Martoriati placed on Ms Phillips' land, to a site approved to receive the spoil and other materials; (h)within 18 months of the Court's orders, provide evidence to the Council that Mr Martoriati has complied with the orders; and (i)if Mr Martoriati fails to comply with the orders (c) to (f) above within 18 months of the Court's orders, demolish or remove the house on Mr Martoriati's property, within 8 weeks thereafter. 59The prohibitory order sought by the Council is to restrain Mr Martoriati from carrying out any further unlawful works on the property. 60Finally, the Council seeks orders granting liberty to apply to seek further orders or to vary the orders made. 61As I have recounted in my summary of the course of the final hearing, the agents who represented Mr Martoriati did not contest the substance of the relief sought by the Council, although Mr Freeman today made some submissions as to the form of the orders.

Declarations should be made 62First, I agree that a declaration of breach should be made. I would extend the declaration to cover the breaches of both the EPA Act and the Local Government Act.

Prohibitory injunction should be issued 63Secondly, I consider that the ongoing disobeyance of the law to date by Mr Martoriati, in undertaking the works originally without development consent and in failing to comply with the emergency order and interlocutory court orders to date, gives rise to a threatened or apprehended breach of both the EPA Act and Local Government Act. The threatened or apprehended breaches justify the Court making the prohibitory injunctive order sought by the Council.

Mandatory injunctions should be issued 64Thirdly, I consider that mandatory orders need to be made to rectify and remedy the breaches of the EPA Act and Local Government Act. I agree that the orders should compel Mr Martoriati to undertake the remedial measures and works in a sequential fashion. 65The most immediate concern is to safeguard the health and safety of Mr Martoriati and any other occupants of the house. The unchallenged expert evidence of Mr Colenbrander and Mr Berriman is that there is a clear and present danger to the house and its occupants. The land and house are not in a safe or healthy condition and need immediate action. The emergency order sought to rectify the unsafe and unhealthy condition of the land and house. 66In temporal order, the emergency order first required Mr Martoriati to vacate the house immediately and not return until the urgent remedial measures and works required by the emergency order have been completed. 67This order for vacation of the premises still stands. It needs to be complied with for the health and safety of Mr Martoriati and any other occupant. 68I consider the Court should re-enforce the emergency order by ordering Mr Martoriati to vacate the house. However, Mr Martoriati needs to be given some limited period of time to arrange satisfactory alternative accommodation in the locality until he completes the urgent remedial works required by the emergency order and the court order. This may not be a long period as the works might be able to be done reasonably quickly. Nevertheless, I need to allow some time for him to prepare to move. Mr Martoriati's agent today, Mr Freeman, requested a period of 28 days from the date of the Court's order. I am prepared to allow this time. 69Next, the emergency order required Mr Martoriati to engage an appropriately experienced contractor to undertake four categories of measures or works. The first category comprised the works required by order 9 of the court orders made by Pain J on 29 March 2012. These were based on the urgent temporary works recommended by Mr Colenbrander in paragraphs 4.1, 4.5 and 4.7 of his report of 28 March 2012. I consider these urgent works should be undertaken. Mr Martoriati was originally required by the court orders made by Pain J on 29 March 2012 to have completed these actions by 11 April 2012. The emergency order, in effect, extended the time for compliance until 11 May 2012. Practicality dictates that some further period of time be given to take the action, but it should not be long. Mr Freeman requested a period of 28 days. I am prepared to allow this period. However, the works will need to commence after Mr Martoriati vacates the premises, which would be four weeks after the Court's order. This results in a period of eight weeks from the date of the Court's order. I will insert a qualification in the orders made that the works not be commenced until after Mr Martoriati vacates the property. 70The second category of works was to provide edge protection in the form of handrails and balusters parallel to the entire perimeter of the excavation. This is a safety measure to prevent people slipping or falling into the excavation. The emergency order required this measure to be completed by 11 May 2012. Again, I consider the measure is necessary and the period of four weeks after Mr Martoriati vacates the property is reasonable. 71The third category of works was to remove rubble and other material from the excavated basement under the house to provide appropriate access. This measure is also necessary to be able to undertake the vertical support bracing of the house and work to the footings underneath the house. The emergency order required this work to be done by 11 May 2012. A period of four weeks after Mr Martoriati vacates the property is reasonable. 72The fourth category of works was to install temporary vertical support and bracing in the form of scaffolding to provide an appropriate level of structural stability. The unchallenged evidence of both Mr Colenbrander and Mr Berriman is that the house is structurally unstable and both recommended installation of urgent vertical support and bracing. Mr Berriman said in his report of 2 April 2012 that this temporary scaffolding could be installed relatively quickly, in a period of two to three weeks by an appropriately qualified contractor. The emergency order required this work to be completed by 11 May 2012. The Court order should require this to be done within four weeks of Mr Martoriati vacating the property. 73The completion of these urgent remedial works will alleviate the immediate danger to the land, house and occupants. Works then need to be undertaken to provide a permanent solution. 74In temporal sequence, the Council seeks an order that Mr Martoriati cover the remaining excavated batter faces and spoil areas with appropriate waterproof sheeting, as Mr Colenbrander had recommended in his report of 6 March 2012. Some of the excavated batter faces would be covered if Mr Martoriati complies with the court order implementing order 9 of the Court's orders of 29 March 2012 and paragraph 1 of Schedule 1 of the emergency order. However, there would still be other excavated batter faces and spoil areas which could beneficially be covered. The Council seeks a period of six months to undertake this covering. This appears to be too long. Mr Colenbrander recommended in his 6 March 2012 report that the covering be placed in the immediate short term. I consider it can be done at the same time as the covering is placed on the batter slopes required by the court order implementing order 9 of the court orders and paragraph 1 of Schedule 1 of the emergency order. A time period of four weeks after Mr Martoriati vacates the property is reasonable. 75The Council also sought that Mr Martoriati undertake daily monitoring of the site for evidence of slope movement, as recommended by Mr Colenbrander in his report of 6 March 2012. Mr Colenbrander made this recommendation before he made his report of 28 March 2012 and before Mr Berriman made his report of 2 April 2012 in which he recommended vacation of the property. Mr Colenbrander's recommendation to monitor the site was to provide evidence of movement to trigger evacuation of the property. I consider that if the court orders Mr Martoriati to vacate the property and undertake the urgent remedial works, it is not necessary to order Mr Martoriati to monitor the site daily. 76The next set of works in time, sought by the Council, is to undertake the works recommended by Mr Colenbrander in paragraph 3.1.2 of his report of 28 March 2012. These works are intended to remedy the instability of the exposed batter slopes on the north and the east of the upper terrace. 77For the north face of the batter slope, Mr Colenbrander suggests two, alternative remedial options: first, a new retaining wall structure with appropriate drainage or, secondly, soil nail and shotcrete support to the batter. Mr Colenbrander recommends that Mr Martoriati engage a suitably qualified geotechnical and/or structural engineer to design the appropriate structural retaining system. 78For the east face of the batter slope, Mr Colenbrander recommends that the slope be flattened to a gradient of 2(H):1(V) and then vegetated to improve its stability, without the need for a retaining structure. 79I consider these measures are appropriate. As I have noted, Mr Martoriati has not contested Mr Colenbrander's recommendations or offered any alternative solutions to stabilise the exposed batter slopes behind and beside the upper terrace. The recommendations of Mr Colenbrander should, therefore, be adopted in the Court's orders. I consider the period suggested by the Council of 12 months from the date of the Court's orders to be reasonable. 80The Council also sought an order that Mr Martoriati construct permanent support measures for all unsupported excavated faces on the property, including the driveway, as had been recommended by Mr Colenbrander in paragraph 4.6 of his report of 28 March 2012. These works are additional to the works proposed for the batter slopes on the northern and eastern sides of the upper terrace. I consider it is appropriate to undertake these works. 81The Council also proposed an order in the alternative to the orders requiring implementation of Mr Colenbrander's recommended measures for stabilising the exposed batter slopes behind and beside the upper terrace. This was to allow Mr Martoriati to propose an alternative solution and lodge a development application for consent to undertake that alternative solution. 82I do not consider it is appropriate to expressly allow Mr Martoriati this opportunity, which would leave the remedial works uncertain and open-ended. I do propose, however, to grant liberty to the parties to apply to vary the orders I make. This liberty would allow Mr Martoriati to apply to vary the orders or substitute new orders regarding stabilising the exposed batter slopes behind and beside the upper terrace. However, Mr Martoriati would need to provide cogent evidence in support of any alternative solution. 83The next set of works concerns providing replacement footings or foundations for the house. These measures were initially recommended by Mr Colenbrander in his report of 28 March 2012 but were subsequently recommended by Mr Berriman in his report of 2 April 2012. 84Mr Berriman recommended the following sequence of events concerning footings and foundations: "● Install properly engineered permanent footing under all steel columns and replace Acrow props with steel columns; ● Confirm structural adequacy of existing floor beams and replace beams if adequacy cannot be proven; ● Install a permanent bracing system that provides overall stability. This bracing will include horizontal and additional vertical bracing in the east and south walls; ● Construct appropriately engineered retaining walls (reinforced masonry) along the northern and eastern sides of the basement including an appropriate drainage system that collects and discharges water into the sewer and ● A basement slab which will seal the excavation." 85Mr Berriman envisaged it would take three to four weeks to engineer and document these permanent works and several months to construct them. 86The Council's proposed order does not require Mr Martoriati to do these works recommended by Mr Berriman. Rather, the Council proposes a process whereby Mr Martoriati would lodge a development application for development consent to provide replacement footings or foundations, as designed by an appropriately qualified structural engineer, obtain development consent and a construction certificate, and then carry out the approved works. The Council allowed a total period of 18 months for this process. 87I do not consider that it is necessary to require, as a precondition to carrying out the works recommended by Mr Berriman, that Mr Martoriati apply for and obtain a development consent and a construction certificate. The works recommended by Mr Berriman are sufficiently clear to be made the subject of a court order. The Court order can require that they be carried out to meet the performance standard of complying with the Australian Standards AS 3600 Concrete Structures, 3700 Masonry Structures and 4100 Steel Structures, as recommended by Mr Berriman. The Court order can require Mr Martoriati to engage an appropriately qualified structural engineer to design the particular works; to specify conditions and mitigation measures to protect the environment, amenity and adjoining public and private land; and to provide the design and specification to the Council. Furthermore, the court order can require that a certificate from the structural engineer be provided to the Council at the completion of the works, certifying that the works required in the court order have been carried out in accordance with these Australian standards and that the house is structurally adequate and stable. I consider a period of 12 months to be reasonable to complete the process. 88The Council also proposed that Mr Martoriati should be able to elect to pursue an alternative solution to remedy the structural instability and inadequacy of the footings and foundations. Mr Martoriati would need to follow the process of applying for and obtaining a development consent and a construction certificate for the alternative solution and then carry out the approved alternative solution. As I have held earlier, I do not favour making an order giving Mr Martoriati this election as it leaves the remedy uncertain and open-ended. Rather, flexibility can be retained by giving the parties liberty to apply to vary the Court's orders, providing cogent evidence supporting any alternative solution. 89The Council seeks an order that Mr Martoriati remove the fill and other materials that he placed without development consent on the neighbouring property of Ms Phillips. The Council seeks an order that Mr Martoriati dispose of the fill and other materials at a site authorised to receive the fill and other materials. 90I agree with the Council. The unlawful fill and other materials need to be removed from Ms Phillips' land. As the fill and other materials were sourced from Mr Martoriati's land, it might be possible to replace them there. However, I have no evidence as to where they could be placed safely, without affecting the stability of the slope or trees, on Mr Martoriati's land. Mr Martoriati's agent today, Mr Freeman, suggested that the fill and other materials might be able to be used behind the permanent structural retaining walls, in accordance with the engineer's design. The Council did not disagree. I consider that some flexibility should be retained in the Court order to allow the use of the fill and other materials removed from the neighbouring property to be used in accordance with the engineer's design for the carrying out of works required by the court orders. 91The Council seeks an order that Mr Martoriati provide evidence to the Council, at the end of the 18 month period proposed by the Council for completing all of the works, that he has completed all of the works. I agree that Mr Martoriati should be required to provide evidence of completion of the works required by the court orders, however I favour Mr Martoriati providing such evidence sequentially at the end of each of the periods specified for the works required by the court orders. 92The final mandatory order sought by the Council is for the demolition or removal of the house in the event of Mr Martoriati failing to carry out all of the various remedial works ordered by the Court. The justification for this order is that if Mr Martoriati fails to carry out the remedial works ordered to improve the stability of the slope and excavation and the structural stability and adequacy of the house, the hazards to the house and occupants will remain. The only way left to remove those hazards is to remove the house. 93I agree with the Council that this is a solution, but it is one of last resort. I do not consider I should make a self-executing order contingent on any failure by Mr Martoriati to comply with any part of any of the Court's orders. This could lead to injustice if the failure was not significant or did not relate in a material way to the structural stability of the slope and excavation or the structural stability and adequacy of the house. 94I consider the preferable course is to allow the Council to apply to the Court for a further order, and to specifically state that one such further order may be for the demolition or removal of the house, if Mr Martoriati fails to carry out the measures and works ordered by the Court. 95This brings me to the last category of orders sought by the Council, that of liberty to apply for further orders or to vary orders made. The Council seeks two orders granting liberty: (a)an order granting liberty to apply to seek any such orders as may be necessary to bring Mr Martoriati's property into a condition which is safe for the occupants of the property, the occupants of neighbouring properties, and the public, or any such other orders as may be required; and (b)an order granting liberty to apply in the event of circumstances requiring that any of the orders made by the Court be varied, or that other orders be made in order to ensure that Mr Martoriati's breaches are remedied or rectified. 96I consider it is appropriate to grant liberty to apply in both of these ways, for reasons I have given earlier. I would also grant liberty to apply for a further order, including an order for demolition or removal of the house, if Mr Martoriati fails to carry out the measures and works ordered by the Court.

Costs of the proceedings 97The Council seeks an order that Mr Martoriati pay its costs of the proceedings. These are civil enforcement proceedings in Class 4 of the Court's jurisdiction where the usual order is that the unsuccessful party pay the successful party's costs. The Council has been successful in establishing breaches of the EPA Act and Local Government Act and in obtaining declaratory and injunctive relief substantially in the terms or to the effect sought in its amended originating process. There are no circumstances and there is no conduct of the Council which would justify the Court departing from the usual rule. 98Mr Martoriati did not put before the Court any reason for the Court not to make a costs order against him. I note that his agent, Mr de Lord, had said on the first day of the hearing that Mr Martoriati wished "to resolve all outstanding matters with any genuine claimant and all costs will be settled at 100 cents in the dollar." Mr Martoriati's agent today, Mr Freeman, said likewise and did not contest a costs order in favour of the Council. 99I consider it is appropriate to order Mr Martoriati to pay the Council's costs of the proceedings.

Orders 100The Court: (1)Declares that the respondent has carried out development on the land, being Lot 34 in DP 24915, known as 76 Wallumatta Road, Newport ("the Property"), without development consent, in breach of s 76A of the Environmental Planning and Assessment Act 1979. (2)Declares that the respondent has failed to comply with the order issued by the applicant to the respondent under s 124 of the Local Government Act 1993 dated 5 April 2012 ("the Emergency Order"), in breach of s 672 of the Local Government Act. (3)Orders the respondent, within 4 weeks of the date of these orders, to vacate the Property, and not to return to the Property, except to carry out the works and undertake the measures required by order 4 of these orders, until he has complied with order 4. (4)Orders the respondent, after vacating the property and within 8 weeks of the date of these orders: (a)to carry out the works required by order 9 of the orders made by the Land and Environment Court on 29 March 2012, being: (i)within the zone marked in pink on the document annexed to these orders and marked Schedule A, being the area from the residence to the western boundary and a 2 metre wide strip on the north and eastern side of the residence (being the crest of all ground floor excavated faces), remove all materials currently placed or stockpiled so that only tarpaulins and light frames to support them remain; (ii)remove existing mesh, strip drains and iron sheeting on the area marked in yellow on Schedule A (being the batter behind the area labelled "Upper Terrace" on the document annexed to these orders and marked Schedule B); (iii)cover slopes on the area shaded yellow on Schedule A with waterproof sheeting until a permanent retaining structure is approved and constructed; and (iv)remove the log retaining wall shaded green on Schedule A and remove the placed fill to the north of the retaining wall marked on Schedule B; (b)to undertake the measures required by paragraphs 2, 3 and 4 of Schedule 1 of the Emergency Order, being: (i)provide edge protection in the form of handrails and balusters parallel to the entire perimeter of the excavation. These handrails could be temporary or permanent structures. If temporary handrails and balusters are provided they are to be replaced by permanent structures at a later date; (ii)remove all rubble and other material from the basement to provide appropriate access; (iii)install temporary vertical support and bracing in the form of scaffolding to provide an appropriate level of structural stability. The positions of temporary props are to be determined by a structural engineer so that existing unrestrained props can be easily removed; (c)to cover all other excavated batter faces and spoil areas on the Property (not already covered pursuant to (a) above) with appropriate waterproof sheeting (which is to be appropriately maintained) to minimise the impact of saturation by rainfall and also to minimise erosion and shrink/swell movement due to alternate drying and wetting; and (d)after carrying out the works and undertaking the measures described in (a) to (c) above, to provide evidence to the Council to demonstrate compliance with this order. (5)Orders the respondent, within 12 months of the date of these orders, to carry out the remedial works specified by Mr Colenbrander in paragraphs 3.1.2 and 4.6 of his report of 28 March 2012 by: (a)engaging a suitably qualified geotechnical and/or structural engineer to design, oversee the implementation of, and certify at the completion of, a positive structural retaining system for the exposed batter slope on the northern side of the area referred to as the upper terrace (being the area which has been excavated or widened along the northern and eastern sides of the house, at the elevation of the upper floor), the flattening and stabilisation of the batter slope on the eastern side of the upper terrace, and the permanent support measures for all other unsupported excavated faces on the Property, including the driveway; (b)ensuring the design, specifications, plans and report (collectively referred to as "the design") of the geotechnical and/or structural engineer engaged by the respondent includes conditions and measures to prevent, mitigate or alleviate impacts on the environment, amenity and neighbouring public and private land, including: (i)that a geotechnical risk assessment is undertaken in accordance with the Geotechnical Risk Management Policy for Pittwater; (ii)that the hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday to Friday and 7.00am and 1.00pm on Saturday. No works are to be carried out on Sunday or Public Holidays; (iii)that temporary fencing is provided to prevent any unauthorised entry to the work site; (iv)that all works are to be carried out in accordance with the requirements of the Building Code of Australia; (v)in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract is in force; (vi)that prior to any works commencing confirmation is obtained from Sydney Water that the proposed works do not impact on Sydney Water infrastructure; (vii)that Section 139 Consent for Works on a Public Road Reserve is issued by the Council under the provisions of Section 138 of the Roads Act 1993 for the design and construction of any works located on the road reserve; (viii)that there are appropriate tree protection measures in place with respect to works within 5 metres of a tree; (ix)that all excavations associated with the erection or demolition of a building are properly guarded and protected to prevent them from being dangerous to life or property; (x)that temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate as far as reasonably practicable the discharge of sediment from the site; (xi)that sedimentation and erosion controls are to be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised; and (xii)that all damaged public infrastructure caused as a result of the development is restored to Council's satisfaction; (c)providing to the Council a copy of the design of the engineer, 14 days before commencing the works required by (d) to (f) below in accordance with the design of the engineer; (d)constructing the positive structural retaining system in accordance with the design of the engineer; (e)flattening the slope of the batter on the eastern side of the upper terrace to a gradient of 2(H):1(V) and then vegetating it to improve its stability in accordance with the design of the engineer; (f)constructing the permanent support measures for all other unsupported excavated faces on the Property, including the driveway, in accordance with the design of the engineer; and (g)providing to the Council a certificate from the engineer that the works required by (d) to (f) above have been carried out in accordance with the design 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. (6)Orders the respondent, within 12 months of the date of these orders, to: (a)engage a suitably qualified structural engineer to design, oversee the implementation of, and certify at the completion of, the works required by (d) to (h) below, in accordance with the requirements of Australian Standards AS 3600 Concrete Structures, 3700 Masonry Structures and 4100 Steel Structures ("the Australian Standards"); (b)ensure the design, specifications, plans and report (collectively referred to as "the design") of the structural engineer engaged by the respondent includes conditions and measures to prevent, mitigate or alleviate impacts on the environment, amenity and neighbouring public and private land, including: (i)that a geotechnical risk assessment is undertaken in accordance with the Geotechnical Risk Management Policy for Pittwater; (ii)that the hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday to Friday and 7.00am and 1.00pm on Saturday. No works are to be carried out on Sunday or Public Holidays; (iii)that temporary fencing is provided to prevent any unauthorised entry to the work site; (iv)that all works are to be carried out in accordance with the requirements of the Building Code of Australia; (v)in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract is in force; (vi)that prior to any works commencing confirmation is obtained from Sydney Water that the proposed works do not impact on Sydney Water infrastructure; (vii)that Section 139 Consent for Works on a Public Road Reserve is issued by the Council under the provisions of Section 138 of the Roads Act 1993 for the design and construction of any works located on the road reserve; (viii)that there are appropriate tree protection measures in place with respect to works within 5 metres of a tree; (ix)that all excavations associated with the erection or demolition of a building are properly guarded and protected to prevent them from being dangerous to life or property; (x)that temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate as far as reasonably practicable the discharge of sediment from the site; (xi)that sedimentation and erosion controls are to be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised; and (xii)that all damaged public infrastructure caused as a result of the development is restored to Council's satisfaction; (c)provide to the Council a copy of the design of the engineer, 14 days before commencing the works required by (d) to (h) below in accordance with the design of the engineer; (d)install properly engineered permanent footings under all steel columns and replace the temporary vertical support and bracing referred to in order 4(b)(iii) with steel columns; (e)confirm structural adequacy of existing floor beams and replace beams if adequacy cannot be proven; (f)install a permanent bracing system that provides overall stability. This bracing will include horizontal and additional vertical bracing in the east and south walls; (g)construct appropriately engineered retaining walls, (reinforced masonry) along the northern and eastern sides of the basement including an appropriate drainage system that collects and discharges water into the stormwater drain; (h)construct a basement slab which will seal the excavation; and (i)provide to the Council a certificate from the structural engineer certifying that the works required by (d) to (h) above have been carried out in accordance with the design and the Australian Standards and that the house is structurally adequate and stable. (7)Orders the respondent, within 6 months of the date of these orders: (a)to remove any spoil and other materials which the respondent (or any servant or agent of the respondent) has placed on Lot 4 in DP 236797 known as 72 Wallumatta Road, Newport, and dispose of the spoil and other materials at a site approved to receive the spoil and other materials, except to the extent that the spoil and other materials form part of the design of the engineer for the works required by orders 5 or 6 above; and (b)after removing and disposing of the spoil and other materials, to provide to the applicant evidence that he has complied with the order in (a) above. (8)Grants liberty to the parties to apply: (a)to seek any such orders that may be necessary to bring Mr Martoriati's property into a condition which is safe for the occupants of the property, the occupants of neighbouring properties, and the public, or any such other orders as may be required; (b)in the event of circumstances so requiring, to vary any of the orders made by the Court or to seek other orders to ensure that Mr Martoriati's breaches are remedied or rectified; and (c)for any further order, including an order for demolition or removal of the house, if Mr Martoriati fails to carry out the measures and works required by orders 3 to 7 above. (9)Orders the respondent to pay the applicant's costs of the proceedings.

Schedule A and B (PDF) 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: 06 June 2012