Fardous and Saab Pty Ltd v Georges River Council - [2023] NSWLEC 1404

Land and Environment Court

New South Wales

Medium Neutral Citation: Fardous and Saab Pty Ltd v Georges River Council [2023] NSWLEC 1404
Hearing dates: 3 July 2023
Date of orders: 27 July 2023
Decision date: 27 July 2023
Jurisdiction: Class 1
Before: Peatman AC
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control (Fire Safety) Order made under Div 9.3 and Sch 5, Pt 2 (Order 1) of the Environmental Planning and Assessment Act 1979 dated 5 September 2022 in respect of the property contained in Lot 77 in Deposited Plan 2022 and Lot 76 in Deposited Plan 3875 known as 36-38 Waterview Street, Carlton, NSW 2118 is modified in accordance with Annexure A.
(3) The exhibits are retained.

Catchwords:
FIRE SAFETY ORDERS – standard of work - compliance

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, 9.35, Div 9.3, Sch 5, Pt 2
Land and Environment Court Act 1979, ss 17, 39

Texts Cited:
Australian Uniform Building Regulations Co-ordinating Council, Building Code of Australia, 1988

Category: Principal judgment
Parties: Fardous and Saab Pty Ltd (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
J Reid (Applicant)
J Fan (Solicitor) (Respondent)
Solicitors:
One Group Legal (Applicant)
Georges River Council (Respondent)

File Number(s): 2022/295282
Publication restriction: No

Judgment

COMMISSIONER: The Applicant appealed against a Development Control (Fire Safety) Order (FSO) (Ex 2) issued by the Respondent on 5 September 2022 in relation to premises contained in Lot 75 Deposited Plan 2022 and Lot 76 Deposited Plan 3875 known as 36-38 Waterview Street, Carlton (the Premises).
The Applicant is the registered proprietor of the Premises, but not the occupier or operator of the business on the Premises.
The Respondent issued the FSO to ensure the provision for fire safety at the Premises relating to the approved use (Development Consent for DA No. 86/93) for the manufacture of aluminium windows, as the fire safety provisions were:

“(1) Inadequate to:

(a) Suppress fire; or

(b) Prevent the spread of fire; and

(2) Required works to be undertaken to ensure or promote the safety of persons in the event of fire.”

(Ex 2, p 1)

In its Statement of Facts and Contentions filed 22 November 2022 (SOFAC) by the Respondent (Ex 3, p 3) the following facts are noted:

The Notice of Intention to issue the FSO was given to the Applicant on 29 July 2021;

An officer of the Respondent inspected the premises on 16 December 2021 and noted the reasons warranting the issue of the Notice of Intention remained;

The Premises were vacant for a period of time. The Respondent became aware in early November 2022 that the Premises were being used for ‘vehicle sales or hire’.

A Notice of Intention to issue the FSO was issued to the owner and lessee of the Premises on 17 November 2022.

The FSO was issued by the Respondent pursuant to s 9.34(1)(b) and Sch 5, Pt 2 of the Environmental Planning and Assessment Act 1979 (EPA Act).

9.34 Orders that may be given (cf previous s 121B)

(1) The development control orders that may be given under this Act are as follows—

(a) general orders in accordance with the table to Part 1 of Schedule 5,
(b) fire safety orders in accordance with the table to Part 2 of Schedule 5,
(c) brothel closure orders in accordance with the table to Part 3 of Schedule 5.

(2) The regulations may amend those tables.

(3) A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate).

Note—

See also Part 4 of the Building Products (Safety) Act 2017.

Schedule 5 Development control orders

Part 2 Fire safety orders

Column 1

Column 2

Column 3

To do what?

In what circumstances?

To whom?

1

To do or stop doing things for the purposes of ensuring or promoting adequate fire safety or fire safety awareness

When provision for fire safety or fire safety awareness is inadequate to –

• Prevent fire, or

• Suppress fire, or

• Prevent the spread of fire

To ensure or promote the safety of persons in the event of fire. When lack of maintenance of the premises or the use of the premises constitutes a significant fire hazard

The owner of the premises or, in the case of a place of shared accommodation, the owner or manager

The Respondent is nominated as a relevant enforcement authority that may give the FSO pursuant to s 9.35(1)(b) of the EPA Act.
The FSO was given by the Respondent in accordance with Pt 4 of Sch 5 cll (1) and (5) as the FSO specified the standard of work and the works which would satisfy those standards, and gave reasons why the FSO was necessary.
These proceedings were properly commenced by the owner of the Premises pursuant to s 8.18(1) of the EPA Act, and within 28 days of the FSO being given to the Applicant pursuant to s 8.18(3)(b) of the EPA Act.
The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
The Court’s powers on appeal are set out in s 8.18(4) of the EPA Act which provides that the Court may:

(4) On hearing an appeal, the Court may—

(a)  revoke the development control order, or
(b)  modify the development control order, or
(c)  substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or
(d)  find that the development control order is sufficiently complied with, or
(e)  make such order with respect to compliance with the development control order as the Court thinks fit, or
(f)  make such other order with respect to the development control order as the Court thinks fit.

The Court has further power on appeal pursuant to s 39(2) of the LEC Act:

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

The circumstances raised by the Respondent for the FSO fall within the ‘first’ set of circumstances which enliven the power to issue an order, and not the second set of circumstances identified in Column 2 of Pt 2 of Sch 5 of the EPA Act.
The FSO required a number of works (as specified in part 3 of the FSO) to be completed. The Court observed on site that a number of the items have been completed. The works in the FSO were identified as being part of a ‘stage’. The compliance in Pt 5 of the FSO required that the works and information be completed/provided within time frames of either 30, 60 or 90 days from the date of the FSO,
The hearing commenced with an onsite inspection of the Premises and then returned to Court.
During the onsite inspection of the Premises, I noted the use of the premises as a showroom for luxury motor vehicles.
The Building Code of Australia experts (BCA Experts), Mardiros Tatian for the Applicant and Allan Harriman for the Respondent, conferred and produced a Joint Report by BCA Experts (Ex 1). The BCA experts’ Summary of Findings is set out below (Ex 1 p 4):

All items of the Fire Order were discussed, and agreement has been reached on all items. Table 1 below sets out the agreement and a scope of works required to complete each item, where applicable.
As a result of the scope of works agreed, there is a need to update the Fire Safety Schedule (FSS) attached to the Fire Order. The wording for the agreed FSS is below in Table 2.
The Tables below also reference the previous Fire and Life Safety Report prepared by AH [Allan Harriman] dated 22 January 2023 and filed in Court on 23 March 2023.”
1. The BCA Experts further set out the FSO requirements, and the result of their joint conclave in Table 1 of Ex 1 pp 4-16 as follows:

Table 1 – Fire Order Requirements.

Ref

Order requirement

Joint Conclave Comment

1.01

Installation of fire hose reel system

Provide a fire hose reel system throughout the building in accordance with E1.4 of the BCA and AS2441-2005.

(Work to be completed as part of Stage 2)

Fire Hose Reels were installed at the time of the S34 inspection.

1.02

Certification of fire hose reel system

Certification from a properly qualified person shall be submitted to Council confirming that a fire hose reel system was designed and installed in accordance with E1.4 of the BCA and AS2441-2005.

(Work to be completed as part of Stage 3)

The status of whether a certificate was submitted was not known by either expert.

It was agreed during the conclave that a certificate is required to be submitted as per the terms of the Fire Order.

1.03

Installation of portable fire extinguishers

Provide portable fire extinguishers throughout the building in accordance with E1.6 of the BCA and AS2444-2001

(Work to be completed as part of Stage 2)

Portable Fire Extinguishers were installed at the time of the S34 inspection

1.04

Certification of portable fire extinguishers

Certification from a properly qualified person shall be submitted to Council confirming that all portable fire extinguishers were selected, located and installed in accordance with E1.6 of the BCA and AS2444-2001.

(Work to be completed as part of Stage 3)

The status of whether a certificate was submitted was not known by either expert.

It was agreed during the conclave that a certificate is required to be submitted as per the terms of the Fire

Order.

1.05

Fire hydrant System

Confirmation must be provided to Council that the flow and pressure enquiry from Sydney Water and the existing street hydrants located in Waterview Street and Woids Ave provide fire hydrant hose coverage to the most disadvantaged point within the building and are in accordance with E1.3 of the BCA and AS2419.1-2005. Suitably scaled plans and specifications prepared by a suitability qualified hydraulic engineer are to be provided demonstrating method of design compliance with the BCA and Australian Standard.

(Work to be completed as part of Stage 2)

It was agreed that:

• Adequate coverage was provided by the existing street hydrant when considered in accordance with the NSW Fire and Rescue Policy outlined in the AH Report;

• That the street main had adequate flow and pressure as outlined in the Sydney Water flow and pressure enquiry attached in the AH Report.

It was further agreed that the following scope of works is required to satisfy the requirements of the NSWFR policy:

• Provide a sign indicating that a hydrant in the path (HP) is available 28m to the right and ‘ADDITIONAL HOSE LENGHTS MAY BE REQUIRED’ in letters not less than 20m high

• The sign is to be placed on the retaining wall Facing Waterview St, at the front of the property, no more than 1m from the right-hand side of the main driveway.

1.06

Certification of fire hydrant system

Certification must be prepared by a suitably qualified hydraulic engineer in fire systems design (FSD) detailing compliance with E1.3 of the BCA and AS2419.1-2005 has been achieved. This certification must be provided to Council.

(Work to be completed as part of Stage 3)

It was agreed that as the building is served by a street hydrant, and no additional hydrants are required to be installed, that this item should be removed from the Fire Order.

2.01

External walls within 3 metres of the boundary

The building must be provided with external walls which are designed and constructed in accordance with C1.1, Specification C1.1 Clause 5.1 (fire - resistance of building elements) and Table 5 for Type C Construction of the BCA which achieve the required fire resistance level (FRL) for the proximity of the external walls to the boundary lines.

Suitably scaled plans and specifications prepared by a design practitioner and checked by a Building Surveyor - Unrestricted (A1 registered certifier - unrestricted) shall be provided to Council detailing the method of design and compliance with the BCA.

(Work to be completed as part of Stage 2)

It was agreed that only limited upgrading of the external walls was required as a result of the reasoning provided in the AH report.

The following scope of works was agreed:

• Fire rate the external wall adjacent 34 Waterview St for a minimum length of 3m past the rear of the dwelling using a plasterboard system with an FRL of 90/90/90 measured from the outside only. Weatherproofing is to be carried out in accordance with the manufacturers details. (an example system is CSR 5046).

• The FSS is to be updated to include a requirement that a certificate is to be submitted (each yearly AFSS) indicating whether any buildings on adjoining neighbouring properties have been constructed or modified (i.e. change of use, alterations or additions, or the like).

• A site survey is to be undertaken as part of this scope of works to determine the current status of buildings on the adjoining neighbouring properties.

• Should any buildings on adjoining neighbouring properties be constructed or modified, this will trigger the requirement for a reassessment of the external walls of this subject building required to be fire-rated in accordance with the BCA.

• That cars, such as SUV’s which are taller than the brickwork to the exiting external walls (approximately 1.5m) are not to be stored against the walls but can be stored in the second row away from the walls (approx. 6m from the walls).

• That the columns in the external wall on the western side only (adjacent the adjoining industrial building at 40 Waterview St) are to be clad on the western (outside) flange with 16mm grade wet area fire grade plasterboard mechanically fixed to the column. The plasterboard is to extend 100mm each side of the column. The plasterboard is only required between the exiting wall girts and not behind the girts (this results in plasterboard approximately 450mm in width x 1m high).

2.02

Certification of fire resisting external wall construction

Certification from a properly qualified person and the installer shall be submitted to Council confirming that the required works have been carried out as per the design standard of the BCA.

(Work to be completed as part of Stage 3)

It is agreed that the scope of works outlined in 2.01 above should be certified in the terms of the Fire Order.

2.03

Protection of Openings in

external walls within 3 metres of

the boundary

Openings in an external wall that

is required to have an FRL must

be protected in accordance with

C3.2 and C3.4 of the BCA.

Suitably scaled plans and

specifications prepared by an

accredited design practitioner in

(Fire Safety - FSD) shall be

provided to Council detailing the

method of design and

compliance with the BCA

(Work to be completed as part of

Stage 2)

It was agreed that because of the height of the building,

and the current setback of the adjoining residential

premises, that no protection of the openings is currently

required.

See 2.01 above which requires the FSS to require

certification annually of the adjoining premises.

It was agreed that the following scope of works is required

• Louvre windows in the eastern high level vertical

glass roof to be kept in the closed position.

• FSS to be updated to reflect the above

requirement.

2.04

Certification of protection of

openings

Certification from a properly

qualified person and the installer

shall be submitted to Council

confirming that the required

protection of openings works

have been carried out as per the

design standard C3.2 and C3.4

of the BCA and manufacturer's

specification.

(Work to be completed as part of

Stage 3)

See 2.03 above. FSS to require certification of the windows being kept in a closed condition (part of the AFSS).

2.05

Electrical Wiring

Certification from a properly

qualified person who is

appropriately licensed shall be

submitted to Council confirming

that the electrical wiring has

been inspected and works

carried out in accordance with

AS/NZS 3000-2018.

(Work to be completed as part of

Stage 3)

It is agreed that this item should be complied with in the terms that it is written.

3.01

Single hand action on exit doors

(Operation of latch)

A door in a required exit, forming

part of a required exit or in the path of travel to a required exit

must be readily openable

without a key from the side that

faces a person seeking egress

by a single hand downward

action or pushing action on a

single device in accordance with

the requirements of D2.21 of the

Building Code of Australia (BCA).

Barrel bolts, locking nibs and

padlocks are not permitted and

shall be removed.

(Work to be completed as part of

Stage 1)

It is agreed that this item should be complied with in the

terms that it is written

3.02

Handrails to exit stairways

Provide a compliant handrail in

accordance with D2.17 of the

BCA to all stairs throughout the

building.

(Work to be completed as part of

Stage 2)

It is agreed that the handrails as installed are compliant with the provisions of the BCA and that no additional works are required.

This item can be deleted from the Fire Order.

3.03

Barriers to prevent falls

Provide a compliant continuous

barrier in accordance with D2.16

of the BCA to all locations where

the trafficable surface is 1m or

more above the surface beneath

so as to provide a barrier to

prevent potential fall.

(Work to be completed as part of

Stage 2)

It is agreed that a new external barrier (e.g. a pool type fence) is to be provided along the eastern side of the main driveway from a point where the retaining wall is more than 1m above the driveway and it is to return a minimum of 1m across the front of the building at the edge of the existing footpath.

An approximate location is shown below

3.04

Path of travel

Provide a defined unobstructed

width of travel of 1m from the

most disadvantaged point within

the building to the required exits

in accordance with D1.6 of the

BCA.

The defined 1m wide path of

travel without obstructions must

be continued to the fronting

road.

(Work to be completed as part of

Stage 1)

It is agreed that this item should be complied with in the terms that it is written.

A 1m wide concrete pathway across the front of the office portion of the premises is to be provided (see image in

3.03 above)

3.05

Non-slip finish to stair treads

Provide all treads and landings

of the existing stairways and

ramps leading to a required exit

with a non-slip surface or a

durable non-skid strip near the

edge of the nosing

treads/landing in accordance

with D2.13 of the BCA.

(Work to be completed as part of

Stage 2)

It is agreed that this item should be complied with in the terms that it is written.

3.06

Installation in exits and path of

Travel

Provide all electrical

switchboards, services or

equipment installed in a

required exit or path of travel to

required exit with enclosing noncombustible construction or a

fire protective coveting with

doorways or openings suitably sealed against smoke spreading

from the enclosure in

accordance with D2.7 of the

BCA. Storage of non-essential

items are prohibited within these

enclosures.

(Work to be completed as part of

Stage 2)

It is agreed that this item should be complied with in the terms that it is written.

A metal box (with factory fitted smoke seals) is required to be installed to the electrical switchboard at the top of the rear office stair.

3.07

Emergency lighting

Requirements

Provide a system of emergency

lighting throughout the building

to provide sufficient light in an

emergency in accordance with

E4.2 and E4.4 of the BCA and

AS/NZS 2293.1-2018.

(Work to be completed as part of

Stage 2)

It is agreed that this item should be complied with in the terms that it is written.

3.08

Certification of emergency

Lighting system

Certification from a properly

qualified person shall be

submitted confirming that the

emergency lighting system was

designed and installed in

accordance with E4.2 and E4.4

of the BCA and AS/NZS 2293.1-

2018.

(Work to be completed as part of

Stage 3)

It is agreed that this item should be complied with in the terms that it is written.

3.09

Exit signs

Provide exit signs to all required

exit doors. Exit signs shall be

operational and illuminated at all

times and be of sufficient

number that direction of travel to

all required exits is clearly visible

from any part of the building. Exit

signs shall be designed and

installed in accordance with

E4.5, NSWE4.6 and E4.8 of the

BCA and AS/NZS 2293.1- 2018.

(Work to be completed as part of

Stage 2)

It is agreed that this item should be complied with in the

terms that it is written.

An indicative layout of the exit signs required is attached to this report in Appendix A1.3.

3.10

Certification of exit signs

Certification from a properly

qualified person shall be

submitted confirming that the

exit signs were designed and

installed in accordance with

E4.5, NSWE4.6 and E4.8 of the

BCA and AS/NZS 2293.1-2018.

(Work to be completed as part of

Stage 3)

It is agreed that this item should be complied with in the terms that it is written.

3.11

Provisions for escape

The building must be provided

with the number of exits needed

to serve the building in

accordance with Part D1

(Provision for escape) of the

BCA. The required exit final

doors must swing in the

direction of egress (outwards)

and have a minimum of 750mm

clear opening width.

It was agreed that an additional exit door is required to the western side of the main roller door off the carpark. The scope of works is to include:

• cut the existing brickwork to create a suitable opening of approximately 1m in width;

• cut the wall sheeting above the brickwork to a suitable height and build a frame to support the existing wall girts

• install a prefabricated door frame with a minimum door leaf size of 820mm (to achieve a minimum clear width of 750mm when the door is open)

• Install a solid core door that swings outwards in the direction of egress;

• provide a single hand lever style handle that opens in a downward action

• Provide a flashing to the top of the door that extends behind the wall sheeting

• provide trims and flashings to the sides of the door to the brickwork and wall sheeting

• paint all edges of the door and door frame

• provide an exit sign above the door.

3.12

Structural Provisions

Structural plans and

specifications including a design

structural statement prepared by

a registered Engineer Structural

(C7 structural engineer) shall be

provided to Council in

accordance with Section B of the

BCA. The structural plans and

specifications including design

structural statement shall

consider any structural design

requirements to the building

elements required by the

upgrade works under the fire

order.

(Work to be completed as part of

Stage 2)

It is agreed that this item should be deleted as there are no structural works of significant loads proposed to the building.

3.13

Structural certification of existing

Building

A registered Engineer Structural

(C7 structural engineer) shall provide structural certification

verifying that the existing

structure can adequately

support the proposed new loads

required under the fire order and

that the structural design

complies with the Structural

Provisions of Section B (Vol 1) of

the BCA.

The proposed additional loads

and/or alterations must not

cause a decrease in the existing

structural performance of the

building including its

performance under earthquake

actions (AS1170.4).

(Work to be completed as part of

Stage 2)

t is agreed that this item should be deleted as there are no structural works required.

3.14

Final Fire Safety Certificate

1. The Owner(s) shall cause

the carrying out of an

inspection and audit of

all required fire safety

measures installed

within the building and

contained within the Fire

Safety Schedule

(Schedule 3) attached to

this Order by a properly

qualified person; and

2. The Owner(s) shall

ensure that the properly

qualified person is

satisfied that the

required fire safety

measures contained

within the attached Fire

Safety Schedule

(Schedule 3) are capable

of operating and

performing to at least the

standard required for

that fire measure as

depicting in the current

Fire Safety Schedule (Schedule 3); and

3. A Final Fire Safety

Certificate shall be

submitted to Council to

the effect that each

essential fire safety

measure specified in the

current Fire Safety

Schedule (Schedule 3)

for the building to which

the certificate relates;

(a) has been assessed by a

properly qualified

person, and

(b) was found, when it was

assessed, to be capable

of performing to at least

the standard required by

the current Fire Safety

Schedule (Schedule 3)

for the building for which

the certificate is issued;

(Work to be completed as part of

Stage 3)

It is agreed that this item should be complied with in the terms that it is written.

Table 2 – Fire Safety Schedule
Fire Hose Reels	E1.4 of the BCA and AS 2441-2005
Fire Hydrant (Street Hydrant)	Sign indicating ‘Additional Hose lengths may be required’ is to be inspected to ensure it remains in place and securely fixed, and is legible.
Lightweight construction to the eastern external wall and protection to western columns	BCA Clause C1.8 and Specification C1.8
Portable Fire Extinguishers	E1.6 of the BCA and As 2444-2001.
Fire Separation between properties	Inspect and certify whether the adjoining neighbouring properties have constructed or modified (i.e. change of use, alterations or additions, or the like) any structures.
Fire Spread	Certify that vehicles higher than the brick wall to the external walls are not stored in the row immediately adjacent the external wall.

Using the numbering of the items set out in Table 1 of Ex 1, the parties agreed during the hearing as follows:

1.01: Joint conclave comment agreed.

1.02: A certificate of compliance was prepared by Abate Fire Protection Services dated 1 December 2022 and was provided to the Respondent on 19 January 2023. The Applicant has complied with the requirements of cl 1.02.

1.03: Noted. The Applicant has complied with the requirements of cl 1.03.

1.04: A certificate of compliance was prepared by Abate Fire Protection Services dated 1 December 2022 and was provided to the Respondent on 19 January 2023. The Applicant has complied with the requirements of cl 1.04.

1.05: The Applicant agrees to install the sign.

1.06: The Respondent agrees that this requirement has been complied with by the premises being served by a street hydrant. This matter was addressed in the Fire and Life Safety Report by Allan Harriman dated 22 January 2023 (Ex A), which was provided to the Respondent on 31 January 2023.

2.01: The BCA Experts agreed that only limited upgrading of the external walls was required as a result of the reasoning provided in Mr Harriman’s report dated 22 January 2023 (Ex A). At the beginning of the hearing, the Respondent objected to the solution proposed by the BCA Joint Experts, and the expert advice of Mr Harriman as set out in Ex A. The Applicant submitted that:

Modification of an order under s 8.18 does not confer a power that exceeds the authority granted by the EPA Act for the reasons set out below.

Firstly, in Column 1 of Pt 2 Sch 5, the power is not to require the ‘optimal’ or even ‘desired’ fire safety measures, it is to provide ‘adequate’ fire safety or fire safety awareness.

Secondly, the Court must be satisfied the circumstances in Column 2 of Pt 2 of Sch 5 presently exist.

The Council’s FSO focussed on the first ‘circumstance’ in Column 2:

When provision for fire safety or fire safety awareness is inadequate to—
• Prevent fire, or
• Suppress fire, or
• Prevent the spread of fire
…
To ensure or promote the safety of persons in the event of fire.

The language in the Table is in the present tense. The proper construction of the Table is that the Court must form an opinion that the circumstance that arises is that the provision for fire safety is presently inadequate. The Respondent’s position exceeds the authority as it raises a concern that the wall should be upgraded to anticipate a future change to the development of neighbouring properties.

The Applicant has agreed to the recommendations in the Joint Report (Ex 1), notwithstanding the exceedance of power. The process recommended by the BCA Experts will require the Applicant to do a survey of the development on the neighbouring properties on an annual basis and to report that to the Respondent in the annual fire safety statement (FSS). The process should allay the Respondent’s fear, notwithstanding the lack of power.

In relation to par 2.01 I accept the submissions of the Applicant, and note that:

The second ‘circumstance’ in Column 2 of Sch 5, Pt 2 of the EPA Act was not identified by the Respondent in the FSO, and provides:

“When lack of maintenance of the premises or the use of the premise constitutes a significant fire hazard.”

There is no evidence that there is a lack of maintenance or that the use constitutes a significant hazard.

I adjourned the matter for a short period of time to allow both parties to bring their respective BCA Experts to the hearing. During the adjournment the parties, and their experts, agreed to further amend item 2.01 by removing the second and third bullet points previously recommended by the BCA Experts, and insert the following:

“A site survey is to be undertaken as part of this scope of works to determine the current status of buildings on the adjoining neighbouring properties. This survey is to be submitted to the Council and incorporated into the Fire Safety Schedule in Schedule 2 of this Order.
Should any buildings on adjoining neighbouring properties be constructed or modified, this will trigger the requirement for a reassessment of the external walls of this subject building required to be fire-rated in accordance with the BCA.
That the columns in the external wall on the western side only (adjacent the adjoining industrial building at 40 Waterview St) are to be clad on the western (outside) flange with 16mm grade wet area fire grade plasterboard mechanically fixed to the column. The plasterboard is to extend 100mm each side of the column. The plasterboard is only required between the exiting wall girts and not behind the girts. (this results in plasterboard approximately 450mm in width x 1m high)
(Work to be completed as part of Stage 2)”

I am satisfied that the amended item 2.01 is appropriate.

2.02: Certification of fire resisting external wall construction: the parties agreed that the Applicant is to provide the certification when the works are complete (Stage 3 – 90 days).

2.03: Protection of Openings in external walls within 3m of the boundary: requirements noted, and the parties agreed (and noting there is presently compliance) that the louvre windows in the eastern high level vertical glass roof are to be kept in the closed position.    The parties further agreed to delete this item from the FSO.

2.04: Certification of protection of openings: requirements noted and the Applicant agrees to a certificate of compliance of the closed louvres in the annual FSS.

2.05: Electrical wiring certification: a certificate of compliance has been prepared by Ms Fouad Saad dated 21 December 2022, and delivered to the Respondent. The parties agree to delete this item from the FSO.

3.01: Single hand action on exit doors (operation of latch): Item agreed and the Applicant agrees to complete the works within 90 days of the date of the Court’s orders.

3.02:   Handrails to exit stairways: Parties agree that the handrails as installed are compliant with the provision of the BCA, and that this item can be deleted from the FSO.

3.03: Barriers to prevent falls: the new external barrier to be provided along the eastern side of the main driveway has been installed. The parties agree that this item can be deleted from the FSO.

3.04: Path of travel: a defined unobstructed path of travel with a travel width of 1m has been constructed. The parties agree that this item can be deleted from the FSO.

3.05:   Non-slip finish to stair treads: this item has been complied with, and the Respondent was notified on 19 January 2023. The parties agree that this item should be deleted from the FSO.

3.06: Installation of exits and path of travel: this item has been complied with, and the Respondent was notified on 19 January 2023. The parties agree that this item should be deleted from the FSO.

3.07: Emergency lighting Requirements: these works have been completed, and the Respondent was notified on 19 January 2023. The parties agree that this item should be deleted from the FSO.

3.08: Certification of emergency lighting system: a certificate of compliance has been prepared by Mr Fouad Saad dated 21 December 2023 and supplied to the Respondent. The parties agree that this item should be deleted from the FSO.

3.09:    Exit signs: the exit signs have been installed. The parties agree that this item should be deleted from the FSO.

3.10:   Certification of exit signs: a certificate of compliance has been prepared by Mr Fouad Saad dated 21 December 2022. The parties agree that this item should be deleted from the FSO.

3.11:   Provisions for escape: this item required the provision of an additional exit door to the western side of the main roller door off the carpark. The works have been completed. The parties agree that this item should be deleted from the FSO.

3.12:   Structural provisions: the parties agreed that this item should be deleted from the FSO as there are no structural works of significant loads proposed to the building.

3.13:   Structural certification of existing building: as there are no structural works required for the existing building, the parties agree that this item should be deleted from the FSO.

3.14:   Final Fire Safety Certificate: the parties agree that this item should be complied with in the terms it is written, and the Applicant agrees to provide the Final Fire Safety Certificate.

The items which are listed in Part 3 of the FSO require a Final Fire Safety Certificate which is to be provided to the Respondent (Item 3.14) confirming that an audit of the required safety measures identified in the Fire Safety Schedule at Sch 3 of the FSO, and that the required fire safety measures are capable of operating and performing to at least the standard identified in the schedule.

The parties agreed the Applicant taking 60 days to complete the Stage 2 works, and 90 days to complete the Stage 3 works, and further agreed that the nominated Stage 1 works have been completed.

I am satisfied that the items listed in Table 2 of Ex 1 do not require modification.
I am satisfied that the FSO should be modified as agreed by the parties, and as set out above. I shall modify the FSO in accordance with s 8.18(4)(b) of the EPA Act and s 39(2) of the LEC Act.
The Court notes that the FSO as modified is as set out in tracking in Annexure B.

Orders / Directions

The Court orders:

The appeal is upheld.

Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control (Fire Safety) Order made under Div 9.3 and Sch 5, Pt 2 (Item 1) of the Environmental Planning and Assessment Act 1979 dated 5 September 2022 in respect of the property contained in Lot 77 in Deposited Plan 2022 and Lot 76 in Deposited Plan 3875 known as 36-38 Waterview Street, Carlton, NSW 2118 is modified in accordance with Annexure A.

The exhibits are retained.

M Peatman

Acting Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 27 July 2023

Medium Neutral Citation:	Fardous and Saab Pty Ltd v Georges River Council [2023] NSWLEC 1404
Hearing dates:	3 July 2023
Date of orders:	27 July 2023
Decision date:	27 July 2023
Jurisdiction:	Class 1
Before:	Peatman AC
Decision:	The Court orders: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control (Fire Safety) Order made under Div 9.3 and Sch 5, Pt 2 (Order 1) of the Environmental Planning and Assessment Act 1979 dated 5 September 2022 in respect of the property contained in Lot 77 in Deposited Plan 2022 and Lot 76 in Deposited Plan 3875 known as 36-38 Waterview Street, Carlton, NSW 2118 is modified in accordance with Annexure A. (3) The exhibits are retained.
Catchwords:	FIRE SAFETY ORDERS – standard of work - compliance
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, 9.35, Div 9.3, Sch 5, Pt 2 Land and Environment Court Act 1979, ss 17, 39
Texts Cited:	Australian Uniform Building Regulations Co-ordinating Council, Building Code of Australia, 1988
Category:	Principal judgment
Parties:	Fardous and Saab Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: J Reid (Applicant) J Fan (Solicitor) (Respondent) Solicitors: One Group Legal (Applicant) Georges River Council (Respondent)
File Number(s):	2022/295282
Publication restriction:	No

Table 1 – Fire Order Requirements.
Ref	Order requirement	Joint Conclave Comment
1.01	Installation of fire hose reel system Provide a fire hose reel system throughout the building in accordance with E1.4 of the BCA and AS2441-2005. (Work to be completed as part of Stage 2)	Fire Hose Reels were installed at the time of the S34 inspection.
1.02	Certification of fire hose reel system Certification from a properly qualified person shall be submitted to Council confirming that a fire hose reel system was designed and installed in accordance with E1.4 of the BCA and AS2441-2005. (Work to be completed as part of Stage 3)	The status of whether a certificate was submitted was not known by either expert. It was agreed during the conclave that a certificate is required to be submitted as per the terms of the Fire Order.
1.03	Installation of portable fire extinguishers Provide portable fire extinguishers throughout the building in accordance with E1.6 of the BCA and AS2444-2001 (Work to be completed as part of Stage 2)	Portable Fire Extinguishers were installed at the time of the S34 inspection
1.04	Certification of portable fire extinguishers Certification from a properly qualified person shall be submitted to Council confirming that all portable fire extinguishers were selected, located and installed in accordance with E1.6 of the BCA and AS2444-2001. (Work to be completed as part of Stage 3)	The status of whether a certificate was submitted was not known by either expert. It was agreed during the conclave that a certificate is required to be submitted as per the terms of the Fire Order.
1.05	Fire hydrant System Confirmation must be provided to Council that the flow and pressure enquiry from Sydney Water and the existing street hydrants located in Waterview Street and Woids Ave provide fire hydrant hose coverage to the most disadvantaged point within the building and are in accordance with E1.3 of the BCA and AS2419.1-2005. Suitably scaled plans and specifications prepared by a suitability qualified hydraulic engineer are to be provided demonstrating method of design compliance with the BCA and Australian Standard. (Work to be completed as part of Stage 2)	It was agreed that: • Adequate coverage was provided by the existing street hydrant when considered in accordance with the NSW Fire and Rescue Policy outlined in the AH Report; • That the street main had adequate flow and pressure as outlined in the Sydney Water flow and pressure enquiry attached in the AH Report. It was further agreed that the following scope of works is required to satisfy the requirements of the NSWFR policy: • Provide a sign indicating that a hydrant in the path (HP) is available 28m to the right and ‘ADDITIONAL HOSE LENGHTS MAY BE REQUIRED’ in letters not less than 20m high • The sign is to be placed on the retaining wall Facing Waterview St, at the front of the property, no more than 1m from the right-hand side of the main driveway.
1.06	Certification of fire hydrant system Certification must be prepared by a suitably qualified hydraulic engineer in fire systems design (FSD) detailing compliance with E1.3 of the BCA and AS2419.1-2005 has been achieved. This certification must be provided to Council. (Work to be completed as part of Stage 3)	It was agreed that as the building is served by a street hydrant, and no additional hydrants are required to be installed, that this item should be removed from the Fire Order.
2.01	External walls within 3 metres of the boundary The building must be provided with external walls which are designed and constructed in accordance with C1.1, Specification C1.1 Clause 5.1 (fire - resistance of building elements) and Table 5 for Type C Construction of the BCA which achieve the required fire resistance level (FRL) for the proximity of the external walls to the boundary lines. Suitably scaled plans and specifications prepared by a design practitioner and checked by a Building Surveyor - Unrestricted (A1 registered certifier - unrestricted) shall be provided to Council detailing the method of design and compliance with the BCA. (Work to be completed as part of Stage 2)	It was agreed that only limited upgrading of the external walls was required as a result of the reasoning provided in the AH report. The following scope of works was agreed: • Fire rate the external wall adjacent 34 Waterview St for a minimum length of 3m past the rear of the dwelling using a plasterboard system with an FRL of 90/90/90 measured from the outside only. Weatherproofing is to be carried out in accordance with the manufacturers details. (an example system is CSR 5046). • The FSS is to be updated to include a requirement that a certificate is to be submitted (each yearly AFSS) indicating whether any buildings on adjoining neighbouring properties have been constructed or modified (i.e. change of use, alterations or additions, or the like). • A site survey is to be undertaken as part of this scope of works to determine the current status of buildings on the adjoining neighbouring properties. • Should any buildings on adjoining neighbouring properties be constructed or modified, this will trigger the requirement for a reassessment of the external walls of this subject building required to be fire-rated in accordance with the BCA. • That cars, such as SUV’s which are taller than the brickwork to the exiting external walls (approximately 1.5m) are not to be stored against the walls but can be stored in the second row away from the walls (approx. 6m from the walls). • That the columns in the external wall on the western side only (adjacent the adjoining industrial building at 40 Waterview St) are to be clad on the western (outside) flange with 16mm grade wet area fire grade plasterboard mechanically fixed to the column. The plasterboard is to extend 100mm each side of the column. The plasterboard is only required between the exiting wall girts and not behind the girts (this results in plasterboard approximately 450mm in width x 1m high).
2.02	Certification of fire resisting external wall construction Certification from a properly qualified person and the installer shall be submitted to Council confirming that the required works have been carried out as per the design standard of the BCA. (Work to be completed as part of Stage 3)	It is agreed that the scope of works outlined in 2.01 above should be certified in the terms of the Fire Order.
2.03	Protection of Openings in external walls within 3 metres of the boundary Openings in an external wall that is required to have an FRL must be protected in accordance with C3.2 and C3.4 of the BCA. Suitably scaled plans and specifications prepared by an accredited design practitioner in (Fire Safety - FSD) shall be provided to Council detailing the method of design and compliance with the BCA (Work to be completed as part of Stage 2)	It was agreed that because of the height of the building, and the current setback of the adjoining residential premises, that no protection of the openings is currently required. See 2.01 above which requires the FSS to require certification annually of the adjoining premises. It was agreed that the following scope of works is required • Louvre windows in the eastern high level vertical glass roof to be kept in the closed position. • FSS to be updated to reflect the above requirement.
2.04	Certification of protection of openings Certification from a properly qualified person and the installer shall be submitted to Council confirming that the required protection of openings works have been carried out as per the design standard C3.2 and C3.4 of the BCA and manufacturer's specification. (Work to be completed as part of Stage 3)	See 2.03 above. FSS to require certification of the windows being kept in a closed condition (part of the AFSS).
2.05	Electrical Wiring Certification from a properly qualified person who is appropriately licensed shall be submitted to Council confirming that the electrical wiring has been inspected and works carried out in accordance with AS/NZS 3000-2018. (Work to be completed as part of Stage 3)	It is agreed that this item should be complied with in the terms that it is written.
3.01	Single hand action on exit doors (Operation of latch) A door in a required exit, forming part of a required exit or in the path of travel to a required exit must be readily openable without a key from the side that faces a person seeking egress by a single hand downward action or pushing action on a single device in accordance with the requirements of D2.21 of the Building Code of Australia (BCA). Barrel bolts, locking nibs and padlocks are not permitted and shall be removed. (Work to be completed as part of Stage 1)	It is agreed that this item should be complied with in the terms that it is written
3.02	Handrails to exit stairways Provide a compliant handrail in accordance with D2.17 of the BCA to all stairs throughout the building. (Work to be completed as part of Stage 2)	It is agreed that the handrails as installed are compliant with the provisions of the BCA and that no additional works are required. This item can be deleted from the Fire Order.
3.03	Barriers to prevent falls Provide a compliant continuous barrier in accordance with D2.16 of the BCA to all locations where the trafficable surface is 1m or more above the surface beneath so as to provide a barrier to prevent potential fall. (Work to be completed as part of Stage 2)	It is agreed that a new external barrier (e.g. a pool type fence) is to be provided along the eastern side of the main driveway from a point where the retaining wall is more than 1m above the driveway and it is to return a minimum of 1m across the front of the building at the edge of the existing footpath. An approximate location is shown below
3.04	Path of travel Provide a defined unobstructed width of travel of 1m from the most disadvantaged point within the building to the required exits in accordance with D1.6 of the BCA. The defined 1m wide path of travel without obstructions must be continued to the fronting road. (Work to be completed as part of Stage 1)	It is agreed that this item should be complied with in the terms that it is written. A 1m wide concrete pathway across the front of the office portion of the premises is to be provided (see image in 3.03 above)
3.05	Non-slip finish to stair treads Provide all treads and landings of the existing stairways and ramps leading to a required exit with a non-slip surface or a durable non-skid strip near the edge of the nosing treads/landing in accordance with D2.13 of the BCA. (Work to be completed as part of Stage 2)	It is agreed that this item should be complied with in the terms that it is written.
3.06	Installation in exits and path of Travel Provide all electrical switchboards, services or equipment installed in a required exit or path of travel to required exit with enclosing noncombustible construction or a fire protective coveting with doorways or openings suitably sealed against smoke spreading from the enclosure in accordance with D2.7 of the BCA. Storage of non-essential items are prohibited within these enclosures. (Work to be completed as part of Stage 2)	It is agreed that this item should be complied with in the terms that it is written. A metal box (with factory fitted smoke seals) is required to be installed to the electrical switchboard at the top of the rear office stair.
3.07	Emergency lighting Requirements Provide a system of emergency lighting throughout the building to provide sufficient light in an emergency in accordance with E4.2 and E4.4 of the BCA and AS/NZS 2293.1-2018. (Work to be completed as part of Stage 2)	It is agreed that this item should be complied with in the terms that it is written.
3.08	Certification of emergency Lighting system Certification from a properly qualified person shall be submitted confirming that the emergency lighting system was designed and installed in accordance with E4.2 and E4.4 of the BCA and AS/NZS 2293.1- 2018. (Work to be completed as part of Stage 3)	It is agreed that this item should be complied with in the terms that it is written.
3.09	Exit signs Provide exit signs to all required exit doors. Exit signs shall be operational and illuminated at all times and be of sufficient number that direction of travel to all required exits is clearly visible from any part of the building. Exit signs shall be designed and installed in accordance with E4.5, NSWE4.6 and E4.8 of the BCA and AS/NZS 2293.1- 2018. (Work to be completed as part of Stage 2)	It is agreed that this item should be complied with in the terms that it is written. An indicative layout of the exit signs required is attached to this report in Appendix A1.3.
3.10	Certification of exit signs Certification from a properly qualified person shall be submitted confirming that the exit signs were designed and installed in accordance with E4.5, NSWE4.6 and E4.8 of the BCA and AS/NZS 2293.1-2018. (Work to be completed as part of Stage 3)	It is agreed that this item should be complied with in the terms that it is written.
3.11	Provisions for escape The building must be provided with the number of exits needed to serve the building in accordance with Part D1 (Provision for escape) of the BCA. The required exit final doors must swing in the direction of egress (outwards) and have a minimum of 750mm clear opening width.	It was agreed that an additional exit door is required to the western side of the main roller door off the carpark. The scope of works is to include: • cut the existing brickwork to create a suitable opening of approximately 1m in width; • cut the wall sheeting above the brickwork to a suitable height and build a frame to support the existing wall girts • install a prefabricated door frame with a minimum door leaf size of 820mm (to achieve a minimum clear width of 750mm when the door is open) • Install a solid core door that swings outwards in the direction of egress; • provide a single hand lever style handle that opens in a downward action • Provide a flashing to the top of the door that extends behind the wall sheeting • provide trims and flashings to the sides of the door to the brickwork and wall sheeting • paint all edges of the door and door frame • provide an exit sign above the door.
3.12	Structural Provisions Structural plans and specifications including a design structural statement prepared by a registered Engineer Structural (C7 structural engineer) shall be provided to Council in accordance with Section B of the BCA. The structural plans and specifications including design structural statement shall consider any structural design requirements to the building elements required by the upgrade works under the fire order. (Work to be completed as part of Stage 2)	It is agreed that this item should be deleted as there are no structural works of significant loads proposed to the building.
3.13	Structural certification of existing Building A registered Engineer Structural (C7 structural engineer) shall provide structural certification verifying that the existing structure can adequately support the proposed new loads required under the fire order and that the structural design complies with the Structural Provisions of Section B (Vol 1) of the BCA. The proposed additional loads and/or alterations must not cause a decrease in the existing structural performance of the building including its performance under earthquake actions (AS1170.4). (Work to be completed as part of Stage 2)	t is agreed that this item should be deleted as there are no structural works required.
3.14	Final Fire Safety Certificate 1. The Owner(s) shall cause the carrying out of an inspection and audit of all required fire safety measures installed within the building and contained within the Fire Safety Schedule (Schedule 3) attached to this Order by a properly qualified person; and 2. The Owner(s) shall ensure that the properly qualified person is satisfied that the required fire safety measures contained within the attached Fire Safety Schedule (Schedule 3) are capable of operating and performing to at least the standard required for that fire measure as depicting in the current Fire Safety Schedule (Schedule 3); and 3. A Final Fire Safety Certificate shall be submitted to Council to the effect that each essential fire safety measure specified in the current Fire Safety Schedule (Schedule 3) for the building to which the certificate relates; (a) has been assessed by a properly qualified person, and (b) was found, when it was assessed, to be capable of performing to at least the standard required by the current Fire Safety Schedule (Schedule 3) for the building for which the certificate is issued; (Work to be completed as part of Stage 3)	It is agreed that this item should be complied with in the terms that it is written.