Pittwater Council v Martoriati (No 3) [2013] NSWLEC 214

Pittwater Council v Martoriati (No 3) [2013] NSWLEC 214

The Court extended and varied the compliance dates because further expert work, survey information, design documentation, certification, and inspections were required before the respondent could complete the ordered remedial works, and because the temporary propping system could continue if inspected and maintained in accordance with the joint experts' requirements. The respondent was ordered to pay the Council's costs because his inability to comply with the existing orders necessitated the motion and there was no relevant conduct by the Council disentitling it to costs.

Jurisdiction
Australia
Judgment Date
25 November 2013
Procedural Posture
Class 4 Civil Enforcement Proceedings / Respondent's Notice of Motion Filed 23 September 2013 to Vary Court Orders and Extend Time for Compliance; Consequential Orders
Outcome
Orders varied to extend time for compliance on specified terms; respondent ordered to pay the Council's costs of the motion as agreed or assessed.
Legal Topics
['variation of Court Orders' 'extension of Time for Compliance' 'remedial Works to Land and House' 'geotechnical and Structural Certification' 'costs of Motion']
['environmental Planning and Assessment' 'local Government' 'civil Enforcement' 'costs'] ['variation of Court Orders' 'extension of Time for Compliance' 'remedial Works to Land and House' 'geotechnical and Structural Certification' 'costs of Motion']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Respondent's Notice of Motion Filed 23 September 2013 to Vary Court Orders and Extend Time for Compliance; Consequential Orders

Legal Issues

  1. 1 ['Whether the time for compliance with orders requiring final remedial works to the land and house should be extended.' 'Whether the design documents and certification for the remedial works to the land should be further prepared in accordance with agreed expert requirements.' 'Whether further time should be allowed for the respondent to consider whether to undertake final remedial works to the existing house or seek development consent to demolish and replace it.' "Whether the respondent should pay the Council's costs of the notice of motion."]

Ratio Decidendi

The Court extended and varied the compliance dates because further expert work, survey information, design documentation, certification, and inspections were required before the respondent could complete the ordered remedial works, and because the temporary propping system could continue if inspected and maintained in accordance with the joint experts' requirements. The respondent was ordered to pay the Council's costs because his inability to comply with the existing orders necessitated the motion and there was no relevant conduct by the Council disentitling it to costs.

Court Disposition

Orders varied to extend time for compliance on specified terms; respondent ordered to pay the Council's costs of the motion as agreed or assessed.

Orders

  • ['The respondent must file and serve by 9 December 2013 a survey of the property prepared by a registered surveyor in accordance with paragraph 4(1) of the joint engineering experts report dated 15 November 2013.' 'Order 5 was varied so that the respondent must comply by 28 April 2014 instead of 29 November 2013.'...