Council of the City of Sydney v The Spanish Club Ltd

[2008] NSWLEC 335

Land and Environment Court

of New South Wales

CITATION:

Council of the City of Sydney v The Spanish Club Ltd [2008] NSWLEC 335

PARTIES:

APPLICANT
Council of the City of Sydney

RESPONDENT
The Spanish Club Ltd

FILE NUMBER(S):

41049 of 2008

CORAM:

Preston CJ

KEY ISSUES:

Section 121B Order :- non-compliance with fire safety order - administrator appointed for respondent - regime addressing fire safety risk agreed by parties, involving vacation of premises and fire safety upgrades - no order as to costs

DATES OF HEARING:

24 December 2008

EX TEMPORE JUDGMENT DATE:

24 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Arch (solicitor)
SOLICITORS
Council of the City of Sydney

RESPONDENT
Dr J Smith (solicitor)
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

WEDNESDAY 24 DECEMBER 2008

41049 OF 2008

COUNCIL OF THE CITY OF SYDNEY v THE SPANISH CLUB LTD

JUDGMENT

1. HIS HONOUR: These are class 4 proceedings brought by the Council of the City of Sydney seeking relief in relation to the failure of the respondent to comply with a fire safety order issued by the applicant on 16 May 2008. The respondent is The Spanish Club Ltd. An administrator has been appointed to The Spanish Club. The Council has sought leave and the administrator has consented to the proceedings continuing against it. The administrator has also consented to the hearing of these proceedings being expedited and being heard today.

2. The concern of the Council that led to the issue of the fire safety order and that has led to the bringing of these proceedings is that the building at 86 Liverpool Street Sydney is in a state whereby the building poses a serious fire safety risk and works need to be carried out to the building to rectify this risk. The Council has proposed, and the administrator has not opposed, a regime to address the fire safety risk. In essence this involves the vacation of occupation of the first floor and then, shortly afterwards, the second and third floors of the building and then the prevention of access to the first, second and third floors together with the erection of signage until such time as fire safety works are undertaken.

3. This process would involve the current tenants of the first, second and third floors vacating the premises. The administrator of the respondent advises that a notice has been given to the tenants of the first floor to vacate the premises and vacation will occur by 7 January 2009. The administrator also advises that appropriate notice can be given to the tenants of the second and third floors in time for those floors to be vacated by 29 January 2009. In relation to the ground floor, there is a tenant which uses those premises as a café. That use can continue, however, fire safety upgrades will need to be carried out. Those fire safety upgrades can apparently be undertaken without the tenant vacating the premises. They are discrete matters that can be done relatively easily.

4. The proposal is that, prior to 30 January 2009, specified fire safety upgrades will be undertaken in the ground floor of the building.

5. Upon taking these steps for the vacation of the premises on the first, second and third floors and the prevention of occupation until such times as fire safety works have been undertaken on those floors, together with the undertaking of the fire safety upgrades on the ground floor, the Council states that the current fire safety risk can be mitigated to an acceptable level.

6. In the circumstances, I am satisfied that it is appropriate that the orders be made as proposed by the Council and as not opposed by the administrator for the respondent.

7. The Council has said that, in the circumstances that the administrator of the respondent finds itself, it is appropriate that there be no order as to costs of the proceedings. The administrator concurs.

8. For these reasons, I make orders in terms of the short minutes of order which I will initial and date with today’s date with the amendments that I have inserted in paragraph 9 of the short minutes of order that I have initialled, including the amendment to order 17 which deletes that previously stated and inserts the order that there be no order as to costs.