City of Botany Bay Council v Zhou
[2011] NSWLEC 32
•02 March 2011
Land and Environment Court
New South Wales
Case Title: City of Botany Bay Council v Zhou Medium Neutral Citation: [2011] NSWLEC 32 Hearing Date(s): 2 March 2011 Decision Date: 02 March 2011 Jurisdiction: Before: Craig J
Decision: 1. From 2 May 2011 the first respondent and the second respondent must cease to use the development located at 20 Rolfe Street Rosebery NSW as a boarding house, guest house, hostel, place of shared accommodation and the like, unless and until the first respondent and the second respondent install throughout the development an automatic smoke detection and alarm system to a standard expressed under Australian Standard 1670.1 and ensure the said smoke detection system activates a building occupant warning system to satisfy the provisions of Clause 6(b) - Specification E2.2a BCA Volume 1 2009 Edition.
2. Within 7 days of installing the automatic smoke detection and alarm system referred to at 1 above, the first respondent and the second respondent must inform the applicant of the installation and provide to the applicant evidence that the said automatic smoke detection and alarm system complies with a standard expressed under Australian Standard 1670.1 and satisfies the provisions of Clause 6(b) - Specification E2.2a Building Code of Australia Volume 1, 2009 edition.
3. The first and the second respondents must on or before 2 May 2011 submit to the applicant an annual Fire Safety Statement for the 2011 annual period.
4. The first respondent and the second respondent to pay 50 percent of the applicant's costs as agreed or assessed.
5. Exhibits may be returned.Catchwords: CIVIL ENFORCEMENT:- order under s 121B of the Environmental Planning and Assessment Act 1979 - failure of proprietors to install a smoke detection and fire alarm system - potential hazard presented to occupants - no necessity to go behind s 121B notice - mandatory injunction granted - extension of time given to comply with order
Legislation Cited: Environmental Planning and Assessment Act 1979
Cases Cited: South Sydney City Council v Hexiva Pty Ltd [2001] NSWLEC 172; (2001) 120 LGERA 146
Texts Cited: Category: Principal judgment Parties: City of Botany Bay Council (Applicant)
Weisen Zhou (First Respondent)
Nicola Finamore (Second Respondent)Representation - Counsel: Counsel:
S Sneider (Solicitor) (Applicant)
No appearance (First Respondent)
No appearance (Second Respondent)- Solicitors: Solicitors:
Houston Dearn O'Connor (Applicant)
N/A (First Respondent)
N/A (Second Respondent)File number(s): 40652 of 2010 Publication Restriction:
EX TEMPORE Judgment
By summons filed on 18 August 2010, Botany Bay Council ( the Council ) seeks an order, the effect of which is to enforce by mandatory injunction an order given to the respondents in accordance with the provisions of s 121B of the Environmental Planning and Assessment Act 1979 ( the Act ). In fact, the Council has given two such orders. The first was an order given in accordance with Item 6 in the Table to s 121B which required the installation at the defendant's premises of an automatic smoke detection and alarm system. The order also sought a smoke detection system that activated a building occupant warning system in accordance with the nominated Australian Standard. That order was issued on 7 December 2009 and its requirements have not, to this date, been met.
As a consequence of the giving of that order and the fact that compliance was not achieved within the required time, a further order under the same section was given to the respondents on 10 February 2010. The latter order was given in accordance with Item 10 in the Table to s 121B. It required that the respondents cease the use of their premises.
The premises that are owned and occupied by the respondents and which are the subject of these proceedings are located at 20 Rolfe Street, Rosebery, New South Wales. Those premises are presently used and have for some time past been used as a boarding house. Prior to the giving of the notices to which I have earlier referred, the premises had been inspected both by Council officers and by officers of the New South Wales Fire Brigade. Following their inspection, it was considered that the premises presented as a fire risk, having regard to the nature of the materials with which they were constructed. That risk having been identified, the need for protective action to be taken arose by reason of the occupancy of the building as a boarding house.
These proceedings have been brought because failure to comply with the s 121B orders given to the respondents constitutes a breach of the Act: s 122. Thus, proceedings are brought pursuant to s 123 of the Act to remedy the breach that has been committed.
The matter has been before the Court on a number of occasions. When the matter was listed for hearing on 31 January 2011, the applicant and the first respondent, Ms Zhou, appeared before Sheahan J. Shortly prior to the matter being called for hearing there was discussion between the Council's Director of Planning, Mr Roger Dowsett, the Council's solicitor and Ms Zhou. A consequence of that discussion was the formulation of draft orders that were proposed to be entered by consent. Those draft orders, if made, effectively required the respondents to carry out the work that was the subject of the order for installation of fire alarm systems issued under s 121B, but extended the time for compliance with that order to 31 March 2011.
Although his Honour was shown the draft orders on that occasion which were then signed by Ms Zhou, it was indicated by her that she would endeavour to have the draft orders signed by the second respondent, Mr Finamore. Mr Finamore has never entered an appearance in the proceedings nor attended Court in connection with this matter. As a consequence of that indication being given to Sheahan J, the proceedings were stood over for further mention on Friday 11 February 2011. It was anticipated that orders in accordance with the draft short minutes that had been prepared would be made by consent at that time.
When the matter came before his Honour on 11 February, there was no appearance by either of the respondents. The Council's solicitor informed the Court that a further proposal for resolution had been made, but that the draft consent orders previously prepared had not been signed by Mr Finamore. As a consequence, no orders were then made but liberty was given to the Council's solicitor to approach the Registrar in order to fix a date for hearing. On that same day the Registrar fixed the hearing for 2 days commencing today, 2 March 2011, with a direction given to the Council's solicitor that the respondents should be notified of the hearing date.
Once again, there was no appearance by or on behalf of either respondent when the matter came before me this morning. There was tendered to the Court a copy of a letter that had been sent by the Council's solicitors to the respondents on 16 February 2011, advising them of the hearing due to commence today. That letter was sent in compliance with the direction given by the Registrar when the hearing dates were fixed.
Perhaps of greater significance are conversations that have taken place during the past 7 days between Mr Dowsett and Ms Zhou, the evidence of which has been given before me by Mr Dowsett. He has told the Court that on 27 February 2011, he had a conversation with Ms Zhou who was well known to him. The conversation concerned the terms of draft orders that had been the subject of discussion in early February. Ms Zhou indicated that she wished to extend until 2 May 2011 the time by which she was to carry out the work to comply with the Council's requirements. The earlier draft orders had indicated that work was to be carried out by 31 March 2011.
Draft short minutes of orders reflecting the apparent agreement of Ms Zhou to carry out work and providing for that work to be completed by 2 May, were provided to Ms Zhou following the conversation that had taken place on 27 February. She took with her a copy of the draft short minutes, indicating an intention to sign them, have them signed by Mr Finamore and then return them to Mr Dowsett. However, that document had not, by yesterday morning, been returned to the Council and Mr Dowsett had not otherwise been advised of her intentions in relation to the proceedings.
In an endeavour to resolve the matter, Mr Dowsett telephoned Ms Zhou yesterday, enquiring of her as to whether she still proposed to resolve the proceedings by entering consent orders. He informed her that the matter would be proceeding in Court today (2 March) and that it may be in her interest to resolve the matter, if that was possible. She responded by indicating that her only remaining concern was as to the proposed order for costs of these proceedings. The proposed order had contemplated that the respondents would bear the Council's costs of these proceedings, as those costs may be assessed or agreed. Ms Zhou indicated to Mr Dowsett that she was prepared to pay 50 per cent of the Council's costs. In response, Mr Dowsett said that he would seek instructions from the Council's General Manager to determine whether Ms Zhou's proposal for costs could be agreed.
Having spoken to the Council's General Manager, Mr Dowsett telephoned Ms Zhou, indicating that he was instructed to accept her proposal that 50 per cent of the Council's costs be paid by the respondents. He requested that she attend the Council's chambers in order to indicate her consent to the orders then contemplated.
Late yesterday afternoon, Ms Zhou attended the Council's chambers where she met with Mr Dowsett. In his presence she signed consent orders that have been tendered in the proceedings today (Exhibit A). They reflect, consistently with the discussions that I am told took place, that the installation of smoke alarms and other work at the respondents premises would be undertaken by 2 May 2011 and that the respondents would pay 50 per cent of the Council's costs of these proceedings, as agreed or assessed.
Mr Dowsett told the Court that two copies of the typed consent orders were signed by Ms Zhou, with one being returned to her. She indicated that she would endeavour to have that copy of the document signed by Mr Finamore and if that was achieved she would telephone Mr Dowsett this morning on the mobile telephone number that he had given to her for that purpose. Regrettably, no such telephone call has been received by him to this point in time.
Mr Dowsett candidly admitted having told Ms Zhou that, as she had signed the orders indicating her consent to them, there may be no need for her to attend Court today. She is said to have responded by indicating that she was intending to travel to the city today for her work as a bookkeeper and that she may, if events allowed her to do so, attend Court. As I have earlier recorded, she has not so far appeared. It therefore becomes necessary that the matter proceed on an ex parte basis.
I am satisfied from the evidence before me that the orders given by the Council under s 121B of the Act have been duly served upon the respondents and that they have not complied with them. Significantly, there has been non-compliance with the requirement to install the smoke detection alarm system in the respondents' premises and the failure so to do clearly constitutes a potential hazard to the occupants of those premises. The need for some fire protection system is readily apparent.
Of course, the hearing of proceedings in Class 4 of this Court's jurisdiction that are founded upon non-compliance with a s 121B order is not an occasion to investigate or go behind the order itself. Rather, the function of the Court is to determine whether or not there has been compliance with such order and if not, what orders (if any) in exercise of the Court's discretion should be made ( South Sydney City Council v Hexiva Pty Ltd [2001] NSWLEC 172; (2001) 120 LGERA 146 at [10] - [12]).
Having expressed satisfaction that there has been service and non-compliance with the requisite notice, it is appropriate that the Court makes orders requiring installation of a smoke detection and alarm system.
The orders that the Council now seeks are not the orders that it sought in its summons. Mr Sneider, who appeared as solicitor for the Council, has indicated to the Court that the Council is content to accept orders in terms of the short minutes of orders signed by Ms Zhou yesterday, that is, to have the Court make orders in accordance with Exhibit "A".
On the evidence before me, I consider it to be appropriate to make orders in accordance with Exhibit "A" against both respondents. It is clear that Mr Finamore has been served with all relevant documents. The address given for each of the respondents is the same and I am satisfied that the documents and proposed orders have come to his attention. Whether he has fully understood their import is, of course, another matter. However, in the absence of any evidence from him or on his behalf as to any lack of understanding or other basis upon which I should not make the orders proposed, I intend to proceed so to do.
The orders that I make are therefore as follows:
1. From 2 May 2011 the first respondent and the second respondent must cease to use the development located at 20 Rolfe Street Rosebery NSW as a boarding house, guest house, hostel, place of shared accommodation and the like, unless and until the first respondent and the second respondent install throughout the development an automatic smoke detection and alarm system to a standard expressed under Australian Standard 1670.1 and ensure the said smoke detection system activates a building occupant warning system to satisfy the provisions of Clause 6(b) - Specification E2.2a BCA Volume 1 2009 Edition.
2. Within 7 days of installing the automatic smoke detection and alarm system referred to at 1 above, the first respondent and the second respondent must inform the applicant of the installation and provide to the applicant evidence that the said automatic smoke detection and alarm system complies with a standard expressed under Australian Standard 1670.1 and satisfies the provisions of Clause 6(b) - Specification E2.2a Building Code of Australia Volume 1, 2009 edition.
3. The first and the second respondents must on or before 2 May 2011 submit to the applicant an annual Fire Safety Statement for the 2011 annual period.
4. The first respondent and the second respondent to pay 50 percent of the applicant's costs as agreed or assessed.
5. Exhibits may be returned.
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