Blak v Port Macquarie Hastings Council

[2007] NSWLEC 499

Land and Environment Court

of New South Wales

CITATION:

Blak v Port Macquarie Hastings Council [2007] NSWLEC 499

PARTIES:

Applicant:
Blak Investments Pty Ltd

Respondent:
Port Macquarie Hastings Council

FILE NUMBER(S):

10182 of 2007

CORAM:

Roseth SC

KEY ISSUES:

:- Fire Safety Order

DATES OF HEARING:

06/08/2007

EX TEMPORE JUDGMENT DATE:

6 August 2007

LEGAL REPRESENTATIVES:

Applicant:
Mr M Lindeman, solicitor of Priest McCarron

Respondent:
Mr S Miles, solicitor of Donovan Oates Hannaford

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

6 August 2007

10182 of 2007 Blak Investments Pty Ltd v Port Macquarie Hastings Council

EXTEMPORE JUDGMENT

1 Senior Commissioner: This is an appeal against an Order made on 6 February 2007 by Port Macquarie Hastings Council (the council) under s121B of the Environmental Planning and Assessment Act 1979 to carry out works at the Coolibah Motel, 167 Gordon Street Port Macquarie, in order to achieve better fire safety.

2 The applicant’s expert on fire safety, Mr Sean O’Brien, a building surveyor, prepared a report in response to the Order. The report suggested alternative, and cheaper, ways of achieving the aim of the Order, which is fire safety of the building. The council’s expert, Mr Tim Mechin, agreed with Mr O’Brien’s recommendations. Thus, there was no dispute between the parties that the Order should be modified. There was also agreement on the contents of the modified Order. The only dispute that remained was the period of compliance specified in the Order. The existing Order specifies 60 days.

3 The Court heard the evidence of the motel’s owner and manager, Mr Martin Blak. Mr Blak said that his motel catered for the poorest people in society. His clients were usually referred by government departments and were usually on welfare. Mr Blak tendered latest bank statement of his business, which showed a balance of $3,600. He said that compliance would cause him great financial hardship. A longer compliance period would at least allow him to arrange his finances to cope with the demands of the Order. He did not think that he could comply in less than twelve months.

4 Mr Mechin said that he inspected the motel in April 2006. He agreed that Mr Blak’s circumstances might justify an extension of the compliance period to six months. Mr Blak remained adamant that he could not comply with the Order in under twelve months.

5 In deciding a period for compliance, the Court took into account:

· The need to achieve fire safety as soon as possible in order to reduce the chances of the risk of injury and damage;

· The fact that the motel caters for the poorest section of society and its closure is likely to cause hardship to many.

· The fact that Mr Blak has little financial reserves.

· The fact that it took the council ten months after Mr Mechin’s inspection to issue the Order. This does not indicate urgent concern about the lack of fire safety.

· The fact that the motel has been unsafe for a long period before the 2006 inspection.

· The difficulties that will arise if, as is likely, Mr Blak fails to comply with an Order of which the compliance period is too short.

6 Given the above considerations, in my opinion the appropriate decision is to accept Mr Blak’s evidence and allow a compliance period of twelve months. The order is modified accordingly.

Orders

1. The appeal is upheld.

2. The Order made on 6 February 2007 by Port Macquarie Hastings Council under s121B of the Environmental Planning and Assessment Act 1979 to carry out works at the Coolibah Motel 167 Gordon Street Port Macquarie is modified to the extent shown below.

3. Paragraphs 1 and 2 under Compliance with Order are deleted and the following is substituted:

“Provide a residential sprinkler system to the building in accordance with Australian Standard 2118.4 (Automatic fire sprinkler system), 1995.”

4. Paragraph 4 under Compliance with Order is deleted and the following is substituted:

“Provide an occupant warning system to the building in accordance with Australian Standard 1670.4 (Sound systems and intercom systems), 2004, which is to be activated by the residential sprinkler system.”

5. New paragraph 3a is inserted as follows:

“Line the underside of the stairs that provide access to the two northern first floor units over the garage and office with fire-grade plasterboard materials that achieve a fire resistance of 60/60/60.”

6. New paragraph 3b is inserted as follows:

“The western window and western external door of Unit 19 are to be protected in the following way to allow access past this unit to a single exit:
a. Entry door – a 35mm solidcore self-closing and tight-fitting door to be fitted to the existing door opening; and
b. Window opening – a stainless steel wire mesh heat-attenuating screen is to be provided across the window opening.

7. Paragraph 5 under Compliance with Order is deleted.

8. The Period of Compliance is modified from 60 days to “On or before 6 August 2008”.

9. The exhibits are retained except Exhibit A.

______________________
Dr John Roseth
Senior Commissioner