Georges River Council v Tyre Nation Pty Ltd - [2020] NSWLEC 172

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Georges River Council v Tyre Nation Pty Ltd [2020] NSWLEC 172
Hearing dates: 24 and 29 July; 5, 13 and 14 August; 2, 3, 17, 18 and 29 September; 8 October; 13 and 19 November; supplementary written submissions on 27 November 2020
Date of orders: 24 December 2020
Decision date: 24 December 2020
Jurisdiction: Class 4
Before: Moore J
Decision:
See declarations and orders at [407] and [408]

Catchwords:
EXEMPT DEVELOPMENT - change of use of premises - change in mix of building classes pursuant to Building Code of Australia (BCA) - consideration of provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP) as the tests for whether change of use constituted exempt development - necessity for new use to satisfy requirements of the SEPP not only when the change of use occurred but on a continuing basis - changes in building classification not a barrier to change of use being exempt development - SEPP set fire safety requirements that must be satisfied - fire safety requirements not satisfied at the time of change of use and continue to remain unsatisfied - new use was not and is not exempt development - requirement that new use be compliant with hours of operation condition in any development consent for earlier use - consideration of whether a statement by an employee of the present operator constituted an adducible admission demonstrating that the hours of operation breached the condition of the earlier development consent - statement satisfies requirements of s 87 of the Evidence Act 1995 (NSW) so as to constitute an admission - changed use operating in breach of hours of operation condition of prior development consent - second basis for concluding that the change of use was not exempt development at the time of the hearing - new use requires development consent to be permitted to continue - declarations and orders appropriate
DISCRETION - tenanted premises used as tyre storage facility - consideration of whether tenant’s tyre storage activities should be permitted to continue in order to permit lodgement of a development application to regularise this use of the premises- appropriate to provide an opportunity to seek development consent to permit continuation of present use - necessity for interim and ongoing fire safety improvements - orders provide for implementation of remedial works agreed to by fire safety experts - orders also provide for additional interim fire safety measures pending determination of development application - appropriate to suspend order requiring cessation of present use pending determination of development application to regularise the present use
FIRE SAFETY ORDER - Fire Safety Order served on the owner of the premises - remedial fire safety works proposed by the order differ from those agreed as necessary by the fire safety experts in the proceedings - appropriate to make a declaration that the owner of the premises had not complied with the terms of the Fire Safety Order - because fire safety upgrade works and interim fire safety operational arrangements to be imposed by orders in these proceedings, appropriate to direct that the Council discharge the Fire Safety Order with which the owner has not complied
COSTS - Council successful in seeking declaration that the change of use was not exempt development - Council successful in obtaining orders for a range of agreed remedial fire safety works and interim fire safety operational conditions pending determination of a development application to continue the use - costs to follow the event - costs to be ordered jointly and severally against the tenant and the owner of the premises

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.2, 9.45, 9.46
Evidence Act 1995 (ACT), s 87
Evidence Act 1995 (NSW), s 87
Kogarah Local Environmental Plan 2012
Land and Environment Court Act 1979, s 20
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Cases Cited:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16
Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180
Refina Pty Ltd v Binnie [2009] NSWSC 311
Ross v Lane Cove Council (2014) 199 LGERA 298; [2014] NSWCA 50
Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289
Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Texts Cited:
COVID-19 Pandemic Arrangements Policy
“Guideline for bulk storage of rubber tyres” (version 03 dated 5 December 2014) in a series of Fire Safety Guidelines published by NSW Fire and Rescue

Category: Principal judgment
Parties: Georges River Council (Applicant)
Tyre Nation Pty Ltd (First Respondent)
Fardous and Saab Pty Ltd (Second Respondent)
Representation:
Counsel:
Mr S Goodman SC/Mr M Astill, barrister (Applicant)
Mr T Hale SC/Mr I Leong, barrister (First Respondent)
Ms J Reid, barrister (Second Respondent)
Solicitors:
HWL Ebsworth (Applicant)
SHL & Associates Lawyers (First Respondent)
One Group Legal (Second Respondent)

File Number(s): 170606 of 2020
Publication restriction: No

TABLE OF CONTENTS

Introduction
Summary of outcomes and orders
Background to the proceedings

The interlocutory stages of the proceedings
Representation
The Council’s summons
The hearings
Introduction
The mention on 13 November 2020

The evidence
Introduction
Critical lay evidence
The expert evidence
Introduction
The experts’ oral evidence
The reliability of Mr Harriman's evidence

Objections to Council’s evidence

Mr Harriman's Medal of the Order of Australia
The agreed facts
The proximity of residential development
The relevant statutory provisions
Introduction
The LEP
The SEPP
Introduction
Relevant SEPP provisions

The Evidence Act 1995 (NSW)

Matters requiring determination
Introduction
Timing and consideration of the issues in dispute
Introduction

The state of the premises as at February 2018
Matters of contest with the Company
Matters of contest with the Owner
Introduction
The Owner’s position
The Council's position
Consideration

Removal of the southern mezzanine floor
Introduction
The state of the mezzanine on 18 September 2020
The state of the mezzanine on 29 September 2020
The evidence
Consideration

The state of the mezzanine on 8 October 2020
The evidence
The outcome concerning the southern mezzanine

Request for contingent information on discretion
Council’s contentions why the change of use is not exempt development
The exempt development claim - the building classification contention
Introduction
Multi-classification buildings
Consideration

The exempt development claim - the fire safety contentions
Introduction
The absence of a current fire safety certificate or fire safety statement
The Council’s position
The Company's position
Consideration

The meaning of “required”
Introduction
The Council’s position
The Company’s position
Consideration

The necessity for a sprinkler system
Introduction
The Council’s expert’s position
The Company’s expert’s position
Consideration of the necessity for a sprinkler system

Other mandatory fire safety measures
Other necessary fire safety measures
The Fire Safety Order

The exempt development claim - the conditions of consent contention
Introduction
The Council's position
The Company’s position
The Council's submissions in reply
The Company’s supplementary submission
Consideration

The Fire Safety Order issues
Introduction

Exercising of discretion
Introduction
General
The NSW Fire and Rescue Guideline

Mr Tatian’s position on compliance with the Guideline
Mr Harriman’s position on compliance with the Guideline
Consideration
Introduction
The weight to be given to the NSW Fire and Rescue Guideline

Conclusion on discretion
An interim fire safety regime
Introduction
The implementation of adapted Table 2
An interim internal operational regime
Tyre stack height
Tyre stack grouping
Aisle widths and wall setbacks
Who is to give effect to the requirements of the adapted Table 2?
The future of the Fire Safety Order
Hours of operation

Costs
Declarations and Orders
Annexure A
Annexure B
Annexure C
Annexure D

JUDGMENT

Introduction

Summary of outcomes and orders

My overall conclusion is that the Company’s change of use to a tyre storage facility on or about 1 February 2018 was not exempt development when that occurred; throughout the period since that change of use, the use has never satisfied the requirements for being exempt development; and, as at the date of this decision, the change of use is not presently exempt development.
As a consequence, development consent was and remains necessary for the Company's use to be permitted to continue.
I have also concluded that it would be appropriate to permit the Company time to lodge a development application and to go through the necessary processes until it is determined to finality. An interim regime to address fire safety measures is appropriate to be implemented by the Company and/or the Owner during the development application process. If the Company receives development consent, the interim regime will be replaced by whatever arises from the conditions of development consent. If the Company fails in its application for development consent, the use of the premises as a tyre storage facility will be required to cease within 21 days of the date of finality of the refusal of consent.
It follows from that which I have summarised above, and later discuss in detail, that the following outcomes are appropriate:

A declaration is to be made that the Company has, and is, carrying out development on the site, which development required the Council's consent and such consent has not been granted;

A declaration is to be made that the Owner breached the Environmental Planning and Assessment Act 1979 (the EP&A Act) by failing to carry out the requirements of the Fire Safety Order issued to it by the Council;

The Company is to be ordered to cease the use of the premises on the site for the purposes of carrying out its tyre storage activities within 21 days;

The Cessation Order is to be suspended to enable the Company to lodge a development application with the Council for a change of use of the premises to seek to legitimise the Company’s tyre storage activities on the site;

A limited period of time is to be permitted to the Company to permit the preparation of such a development application and the lodgement of that application with the Council;

The Company is to be granted leave to relist the matter to seek a variation of the above time limit, should circumstances arise which might necessitate such an approach;

An interim regime of ameliorative fire safety measures is to be imposed pending lodgement with, and determination by, the Council of such development application;

The question of any further stay of the Cessation Order, should an appeal in Class 1 be made to the Court as a consequence of the Council's refusal or deemed refusal of the Company’s development application, will require a separate application to the Court seeking a further stay of the Cessation Order; and

The necessary remedial fire safety works, as agreed by the fire safety experts, are to be required to be carried out by the Owner or Company (as set out in Order (6)) within the timeframe identified by the fire safety expert retained by the Company. These timeframes, however, will be subject to any later revision which might be required by any conditions of development consent attached to an approval granted by the Council or the Court permitting a change of use to allow the continuation of the Company's tyre storage activities on the site.

Background to the proceedings

On 9 July 2020, Georges River Council (the Council) commenced Class 4 proceedings against Tyre Nation Pty Ltd (the Company), as the occupant of the premises at 36‑38 Waterview Street, Carlton (the site) in Sydney's south. Proceedings were also commenced against the owner of the site, Fardous and Saab Pty Ltd (the Owner).
The proceedings were commenced as a consequence of what the Council perceived to be the fire risk arising from the motor vehicle tyre storage activities being undertaken on the site by the Company as part of its tyre sales business. The Council rejects the position advanced by the Owner and the Company that the change of use to a tyre storage facility was and remains exempt development on a proper understanding of the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP).
The Council also alleges that the Company’s activities are not permitted within the scope of the present development consent applicable for the use of the site and that, as a consequence, for the Company's activities to be permitted, a development application is required to be made to, and approved by, the Council before the use of the site as a tyre storage facility is lawful. The Council also alleges that the use of the site as a tyre storage facility is unsafe because inadequate fire prevention measures are installed within the premises on the site.
The Council's concerns had arisen as a consequence of several inspections of the site by council officers. The Council subsequently commissioned a report by Mr Tatian, a fire safety expert. Mr Tatian inspected the premises at the site on 21 July 2020 and deposed an affidavit dated 23 July following that inspection. His affidavit showed that:

He was concerned about issues of electrical safety within the premises on the site. These concerns were based on matters such as the presence of exposed and apparently un‑isolated wiring hanging at several points within the premises;

He was also concerned that the tyres that were stored on the site were stacked to heights above, and were spaced in configurations that were contrary to, what was proposed by a guideline published by NSW Fire and Rescue;

Tyres were not only stacked on the slab floor of the premises but were also stacked on a mezzanine level, the use of which he considered was unsafe; and

His calculations of the floor space area of the premises indicated that the floor space area was in excess of 2,000 square metres, an area which, if used for tyre storage purposes, in his opinion required the installation of a fire sprinkler system and no such system was installed in the premises.

The interlocutory stages of the proceedings

On 24 July 2020, the Council filed a Notice of Motion seeking to have the Company's activities cease on fire safety grounds until the determination of the substantive proceedings. The above‑noted affidavit from Mr Tatian was relied upon in support of this Notice of Motion.
The matter came before me on 24 July 2020 as the Duty Judge. For present purposes, it is unnecessary to traverse those interlocutory proceedings in detail save to note that an initial interim regime was established where the Company undertook to:

disconnect the power supply for the warehouse building located on the site;

remove all vehicles from the site (subject to identified exceptions); and

remove all aerosol cans, oils, lighters and other ignition sources from within the warehouse.

At several further hearings, the question of the adequacy of electrical safety certification sought to be relied upon by the Company to permit it to be released from the electrical disconnection aspect of the undertaking was dealt with. Two versions of an Electrical Safety Certificate (Exhibits 1 and 2) were rejected as inadequate.
Subsequently, a third, further revised version of an Electrical Safety Certificate (which became Exhibit 3) was accepted by the Council as demonstrating that the immediate electrical safety issues at the premises had been resolved satisfactorily. The Company was then permitted to withdraw the electrical safety element of the above undertakings.
The remainder of the undertakings remained operative until my delivery of this decision and the orders that follow from it.

Representation

The Council was represented by Mr S Goodman SC and Mr M Astill, barrister. The Company was represented by Mr T Hale SC and Mr I Leong, barrister. The Owner was represented by Ms J Reid, barrister.

The Council’s summons

The Summons filed by the Council on 24 July 2020 to commence these Class 4 proceedings sought the following:

Declarations

1 A declaration that the First Respondent, by its servants and agents, has unlawfully carried out, and is unlawfully carrying out, development on the land legally identified as Lot 77 in DP 2022 and Lot 76 DP 3875, also known as 36-38 Waterview Street, Carlton, New South Wales (the Land) in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (EPA Act), in that it is using the land for the purposes of:
(a)   a 'warehouse or distribution centre'; and/ or
(b)   a 'local distribution premises' ; and/ or
(c)   a 'storage premises' ; and/ or
(d)   a 'depot' (as those terms are defined in the Kogarah Local Environmental Plan 2012 (KLEP)); and/ or
(e)   the storage of motor vehicle tyres,

without development consent, in circumstances where development consent is required for such uses pursuant to the KLEP.
2 A declaration that the Second Respondent, being the owner of the Land and recipient of a Development Control Order No. 1 issued by the Applicant dated 16 December 2019 (Order No. 1), a copy of which is annexed to this Summons and marked "A", has breached the EPA Act in that it has failed to comply with the terms of the Order No.1.
3 A declaration that the Second Respondent, being the owner of the Land and recipient of Development Control Order issued by the Applicant dated 12 February 2020 (Fire Safety Order), a copy of which is annexed to this Summons and marked "B", has breached the EPA Act in that it has failed to comply with terms of the Fire Safety Order.

Orders

4   An order that the First and Second Respondents, by themselves, their servants or agents, be restrained from using the Land for the purposes of:
(a)   a 'warehouse or distribution centre'; and/ or
(b)   a 'local distribution premises'; and/ or
(c)   a 'storage premises'; and/ or
(d)   a 'depot' (as those terms are defined in the KLEP); and/ or
(e)   the storage of motor vehicle tyres,

in breach of s 4.2 of the EPA Act including, without limitation, advertising, soliciting, suffering or permitting the Land to be used for any of those purposes.
5   An Order that the First and Second Respondents, by themselves their servants and agents, remove:
(a)   all motor vehicle tyres; and
(b)   all material, products and equipment associated with any of the uses identified in Order 4,

from the Land.
6 An Order that the Second Respondent, by itself its servants or agents, comply with the Order No.1:
'[s]top conducting the activity of storage of rubber tyres on the Premises',

including removing:
(a) all motor vehicle tyres; and
(b) all material, products and equipment associated with any of the uses identified in Order 4,

from the Land.
7   In the alternative to the Orders at 4 - 6 above, and only in the event that the Court might not make orders in accordance with one or more of the Orders at 4 - 6 above, an Order that the Second Respondent remedy the breach of the Fire Safety Order as follows:
(a)   provide the particulars required by Term 1 of the Fire Safety Order within 6 weeks of the date of these Orders (or such other time as the Court may determine appropriate in the circumstances);
(b)   provide the particulars required by Term 3 of the Fire Safety Order within 14 days of the date of these Orders (or such other time as the Court may determine appropriate in the circumstances);
(c)   the proceedings be adjourned to a date or dates following the provision of particulars in Order 7(a) and (b) above for the purposes of allowing the Council and the Court to consider the particulars required by the Fire Safety Order and formulate final Orders requiring fire safety works to be carried out in accordance with the said particulars.

The particulars required by this Order must comply with the '[p]articulars of works' under the heading 'IMPORTANT NOTES' in the Fire Safety Order.

It is to be observed that, at the commencement of proceedings, Mr Goodman drew to my attention the then resulting position that had arisen between the Council and the Owner. He indicated that the declaration sought in prayer 2 of the Summons and the proposed order in prayer 6, both proposed to be addressed to the Owner, were no longer pressed by the Council. He drew my attention to the limited nature of the disagreement which now remained between the Council and the Owner, particularly with respect to the timing of the carrying out of the agreed remedial fire safety works. This explanation appeared in the transcript of 17 September 2020, at page 3, line 22 to page 49, line 11. It is not necessary to set out this material.
The hearing then proceeded on that narrowed basis.

The hearings

Introduction

The interlocutory hearings and the subsequent substantive hearing on 17 and 18 September, the mentions on 8 October 2020 and 13 and 19 November were held, as a consequence of the COVID‑19 pandemic, using Microsoft Teams software, without the necessity for any physical attendance in the courtroom. These hearings were conducted in accordance with the Court’s (then) COVID-19 Pandemic Arrangements Policy. At the conclusion of the hearing on 8 October, I reserved my decision.

The mention on 13 November 2020

During the course of my preparation of this judgment, well into the process of writing it, it occurred to me that there were several matters that had either not been addressed during the course of the hearing or, potentially, had not been sufficiently addressed. As a consequence, I arranged a mention on the afternoon of 13 November 2020. Those in attendance on this occasion were Mr Astill, Mr Leong and Ms Antonopolous, the solicitor for the Owner.
I outlined to these representatives three relevant assumptions which I indicated that I considered it appropriate to make (unless any of them was to be contested by one of the parties). These assumptions were:

As a consequence of paragraphs 4 and 9 of the agreed facts (set out later at [49]), it was appropriate to assume that the change of use took place on or about 1 February 2018;

As a consequence, the change of use that was the subject of contested elements of these proceedings was to be taken to have occurred on and after that date; and

Consistent with Mr Harriman's observations (Mr Harriman being the Company’s fire safety expert), at paragraph 125 of the Joint Expert Report, that:

The mezzanine was inspected which revealed a stair in a dilapidated state, significant wear to parts of the floor and redundant electrical wiring and service installations. As such, it is my opinion that the mezzanine has been erected between 15-25 years, given the level of wear and tear

despite Mr Tatian’s equivocation about this (he making contingent comments at paragraph 44 of the Joint Expert Report with Mr Harriman on the assumption that the mezzanine had been erected by the Company), it was, nonetheless, appropriate that I should accept Mr Harriman's assessment and assume that the mezzanine was in place as at the date of the change of use to the Company's tyre storage activities.

I then proposed three matters about which I indicated that it was appropriate that the parties consider whether they wished to make further submissions. Those matters were:

All matters that were pressed by the Council as demonstrating that the change of use effected by the Company's activities on the site were to be assessed as at the date of that change of use (being on or about 1 February 2018);

Setting aside Mr Hale's objection to the admissibility of Mr Nestorovski’s conversation with Aaron (an employee of the Company), how could it be said that the conversation on 11 September 2020, during which Aaron made what was said to be an admission about the hours of work on the site, could be regarded as demonstrating that that position had applied as at the date of the change of use in February 2018; and

Whether or not the use of the word “required” in cl 1.16(2)(b) of the SEPP meant mandated by some regulatory requirements or was to be regarded as if the word “required” should be read as “necessary” in the context of the provision.

I gave the parties until the close of business on Wednesday 18 November 2020 to forward any submissions they might wish to make on these matters to my Associate.
On 18 November 2020, the parties sought further time for the making of submissions on the above‑noted matters. I agreed to a limited extension of time until 4.00 pm on Friday 27 November on the basis that any submissions received after that time would not be considered. I had my Associate send e‑mail confirmation of this, she communicating this in the following terms:

His Honour has asked me to confirm to you his statement made at the recent mention that the deadline for submissions on matters raised by him at the mention on 13 November 2020 is 4.00 pm on Friday 27 November 2020. As his Honour indicated, no extension will be permitted and any submissions received after that time will not be considered.

Counsel for the Council and for the Company filed submissions, prior to the deadline, in response to the matters I had raised. However, no further submissions were received on behalf of the Owner about the matters that I had raised.

The evidence

Introduction

The evidence in the proceedings tendered by the Council comprised three volumes of the Court Book (Exhibits A, B and C) and three volumes of other evidentiary material (Exhibits D, E and F). Various affidavits and reports were included in these exhibits (to the extent that objection was taken to any of that material, this is dealt with below).
Documentary material from relevant council records was also included and, to the extent requiring consideration, is later dealt with. Extracts from relevant statutes or statutory instruments and from the LEP were within the material tendered, as were relevant extracts from the Building Code of Australia (the BCA). The role that relevant elements of these documents play in these proceedings is dealt with at the appropriate, later point in this decision.

Critical lay evidence

Only evidence from one of the Council’s lay witnesses, Mr M Nestorovski, a Development Compliance Officer employed by the Council, requires detailed critical analysis. He relevantly deposed two affidavits, these being dated 23 July and 11 September 2020. It will later be necessary to consider in detail admissibility of elements of the content of them and, if admitted, the consequences arising from that.

The expert evidence

Introduction

Expert evidence was given by Mr Tatian and Mr Harriman. Mr Tatian provided two individual affidavits. The first, dated 23 July 2020, was in Exhibit E, Tab 20 at folio s 632 to 698. This document set out his observations following an inspection of the site on 21 July 2020.
Of particular relevance, for reasons that will later be apparent, Annexure B to this affidavit was the Fire & Rescue NSW “Fire Safety Guideline for Bulk Storage of Rubber Tyres” (the Guidelines) later discussed in detail. Also relevant to my understanding of the site, Annexure C to this affidavit included photographs, at folio s 697/8, showing the proximity of the premises on the site to adjacent residential development.
This affidavit addressed, at paragraph 26, the actions which he considered needed immediate implementation to reduce the serious fire risk to the occupants of the building and the adjoining lots. A number of these recommendations provided the basis for the interim undertakings given by the Company (see [10]). The second document prepared by Mr Tatian comprised his detailed expert witness report, a document annexed to his second affidavit dated 31 July 2020. The affidavit and the accompanying report were in Exhibit E, Tab 21 at folio s 699 to 819. It is to be noted that, in addition to annexing a further copy of the Guidelines and a further copy of the set of photographs taken by him during his inspection on 21 July 2020, this report also annexed various extracts from the BCA referenced by him in this report.
Although Mr Harriman gave written evidence (affidavits of 2 and 16 September 2020 and an e‑mailed note - Exhibit 4) concerning the mezzanine floor, he did not provide an individual expert report.
Mr Tatian and Mr Harriman did produce a Joint Expert Report (Exhibit F, Tab 24 at folio s 944 to 991). This Joint Expert Report was dated 14 August 2020.

The experts’ oral evidence

Mr Tatian and Mr Harriman gave concurrent oral evidence, oral evidence which responded to questions about matters addressed in elements of their Joint Expert Report. Elements of this evidence, which I considered to be of assistance to me in resolving disputes between the experts concerning issues requiring my determination in these proceedings, are later discussed in the relevant portion of this decision.
However, at this point, it is convenient to deal with the outcomes of the Joint Expert Report of Mr Tatian and Mr Harriman. These experts conveniently provided a summary of the outcome of their conferencing in paragraphs 9 to 12 on page 3 of the Joint Expert Report. These are reproduced below:

CONCALVE FINDINGS

2.1. SUMMARY OF FINDINGS

9.   There was agreement on the scope of works required to upgrade the building to a reasonable level of fire and life safety to the existing building, which is outlined in the table below.
10.   The main disagreement was the timing for the works to be completed. This disagreement is a result of our opinions relating to the application of exempt development to the subject building.
11.   MT is of the opinion that the change of use required a development consent and that the agreed scope of works should have been carried out prior to the occupation and use of the building. The reasoning is that the existing unauthorised mezzanine structure would have required development consent and the change of use to the tyre warehouse would also trigger the change of use due to the change in classification proposed and the storage requirements of building considered to contain high hazard storage (tyres in a building over 2000m2 building). Any changes incurred as a result of the council fire order to rectify the existing unauthorised works are required to be addressed prior to occupation of the building.
12. AH is of the opinion that the change of use does comply with the provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP Code) and therefore that there was no requirement to carry out any upgrading works at the time of occupation and use for storage of tyres. Further, AH is of the opinion that the requirements to upgrade the building are as a result of the Fire Order, and therefore a reasonable time for compliance should be allowed to carry out the scope of works.

The agreed scope of works was set out in Table 2 to the Joint Expert Report. The first of the items in that table addressed the southern mezzanine element in the premises that had been constructed without development consent. Although there was disagreement between Mr Tatian and Mr Harriman as to the timing for the removal of this structure, later described, that mezzanine has now been entirely removed.
This removal renders Item 1 in Table 2 no longer relevant for the purposes of required future remedial fire safety works.
To enable an understanding of the nature of the remedial works proposed and the reasons why they were necessary, it is appropriate to reproduce Table 2 as Annexure A to this decision.
It is appropriate to note that, in Table 3, Mr Tatian and Mr Harriman set out the different timing approaches they considered necessary for addressing the other matters that had been set out in Table 2. Mr Harriman, as can be seen from Table 3 (reproduced as Annexure B), proposed a more relaxed timetable for implementation of the necessary works. In contrast, the position adopted by Mr Tatian, was that all necessary upgrading works should be completed prior to further use of the premises for tyre storage being permitted.
As can be seen from paragraphs 11 and 12 of the summary of the positions of Mr Tatian and Mr Harriman reproduced above, the basis for their difference in opinion as to timing has, as its fundamental distinction, the fact that Mr Tatian considered that the change of use was not exempt development and required approval by the Council, whilst Mr Harriman was of the opinion that the change of use was exempt development and that, therefore, the triggering of the necessity for remedial fire safety works was the issuing of the Fire Safety Order to the Owner rather than as a prerequisite for the carrying out of the tyre storage activities by the Company.

The reliability of Mr Harriman's evidence

It will later be necessary, in my discussion of the evidence concerning the potential applicability of Table E1.5 of the BCA and Note 4 to that table, to address one aspect of Mr Harriman's evidence in the Joint Expert Report; the questioning of him concerning it; and the submissions made concerning how that episode might colour my view of the general reliability of his evidence when his evidence was in conflict with that of Mr Tatian on the same point.

Objections to Council’s evidence

Elements of the evidence sought to be relied upon by the Council were the subject of objection pressed by Mr Hale on behalf of the Company. For the most part, the objections were resolved either by the relevant element not being relied upon by the Council or by the element being taken as being an expression of opinion by the deponent rather than as establishing the truth of what was said.
However, a significant and important objection was made by Mr Hale to elements of affidavits of Mr Nestorovski concerning conversations between Mr Nestorovski and Aaron.
The question of admission or rejection of these conversations later requires detailed consideration in the context of whether s 87 of the Evidence Act 1995 (NSW) (the Evidence Act) is properly engaged in a fashion which renders the conversations adducible as evidencing a relevant admission concerning a potentially determinative fact for one of the Council’s contentions. Determination of this objection is critical to whether or not one of the bases upon which the Council proposes that a development application is required to be submitted and approved to permit ongoing use of the site as a tyre storage facility is well‑founded. This objection is dealt with later in detail.

Mr Harriman's Medal of the Order of Australia

During the course of his swearing-in, Mr Hale asked Mr Harriman, amongst other formal questions (Transcript 17 September 2020, page 22, lines 25 to 29):

HALE: Amongst other things, you were awarded the Medal of the Order of Australia for service to the building and construction industry through professional associations?

WITNESS HARRIMAN: That’s correct.

Later, during the course of Mr Hale's submissions, the following passage records a submission made by Mr Hale (and an exchange between him and me concerning this submission) relating to Mr Harriman's Medal of the Order of Australia and the extent (if any) that it provided some reinforcing basis for my acceptance of Mr Harriman's evidence. The relevant portion of the transcript of 18 September 2020 is in the following terms (page 10, lines 20 to 31):

HIS HONOUR: At some stage you will need to tell me why Mr Harriman's service to professional associations has any relevance to the extent of the skills he brings to bear on these matters.

HALE: Because of his vast experience and the recognition in the industry of his vast experience.

HIS HONOUR: That was not what you just put to me, it was his services to a professional association.

HALE: Yes, well I read out what the citation was which was contained in his CV.

What was set out under the heading “Awards” in Mr Harriman’s CV (Exhibit F, folio 990) was in the following terms:

Medal of the Order of Australia (OAM) for service to the building and construction industry through professional associations

Whilst I readily accept that Mr Harriman has appropriately been recognised by the award of his Medal of the Order of Australia (OAM) for his services to professional bodies in the building and construction industry, such service - civic-minded and exemplary though it may be - says nothing about his professional competence or technical expertise.
As a consequence, I am satisfied that his being awarded his OAM should and does play no role in my weighing of his evidence when he disagrees with Mr Tatian on any matter about which they give conflicting expert opinion.

The agreed facts

The parties had settled a Statement of Agreed Facts (SOFAC) which had been tendered as part of Exhibit A, folio 11 of the Court Book. The factual outline which follows is an adapted version of the SOFAC.

Parties and the Land

1 The Council, following the amalgamation of Hurstville and Kogarah Councils by the Local Government (Council Amalgamations) Proclamation 2016, is the local government council having the functions of a consent authority for the local government area of Georges River under the Environmental Planning and Assessment Act 1979 (EPA Act).
2   The Company is the occupier of the land legally identified as Lot 77 in DP 2022 and Lot 76 DP 3875, also known as 36-38 Waterview Street, Carlton, New South Wales (Land).
3   Erected upon the Land is an existing building (Building)
4   At all material times the Company has occupied, and currently occupies, the Land pursuant to a lease with the Second Respondent made on 17 January 2018, commencing 1 February 2018 and ending on 31 January 2021 with an option to renew the lease for a term of 2 years (Lease).
5   At all material times the Owner has been, and is, the owner of the Land.
6   The Land is within the local government area of Georges River.
7   At all material times the Kogarah Local Environmental Plan 2012 (KLEP) was and is the environmental planning instrument which controls development on the Land pursuant to the EPA Act.
8   The Land is, and at all material times has been, zoned IN2 Light Industrial pursuant to the KLEP.

Company's Use of Land

9   At all material times the Company has carried out, and continues to carry out, development on the Land involving the storage of motor vehicle tyres, including but not limited to:
(a)   acceptance upon the Land of motor vehicle tyres for storage; and
(b)   removal from the Land of motor vehicle tyres for transportation to other land (the Development)

10 The Development is carried out by the Company trading as "Newbee Tyre", which is a tyre import and wholesale business.

Planning history of the Land

11   The relevant current development consent which have been issued for the Land:
(a)   DA 86/93 dated 24 January 1994, which approved development for the purposes of the manufacturing of aluminium windows;
(b)   DA 8/90 dated 22 February 1990, which approved development for the purposes of the storage/ light manufacture/ distribution of stainless steel mufflers;
(c)   DA 277/84 dated 15 January 1985 (signed 16 January 1985), which approved development for the purposes of a flammable liquids store;
(d)   DA 145/83 dated 3 August 1983, which approved development for the purposes of the manufacture and packaging of cosmetic toiletry and related products; and
(e)   DC285/36-38 dated 8 May 1969, which approved development for the erection of a factory for the purpose of warehousing and manufacture of sheet metal, guttering, downpiping, etc.

12 No person has sought development consent for the use of the Land for the purposes of the Development.

Order No. 1

13 Development Control Order No. 1 dated 16 December 2019 was given by the Applicant to the Second Respondent (Order No. 1).

14 The Order No. 1 ordered the Second Respondent to do the following:
Stop conducting the activity of storage of rubber tyres on the Premises.

15 The time for compliance with the Order No. 1 was 24 January 2020.

Fire Safety Order

16   Development Control Order dated 12 February 2020 was given by the Applicant to the Second Respondent (Fire Safety Order).
17   The Fire Safety Order required the Second Respondent to take specified actions by 20 February 2020, 5 March 2020 and 24 March 2020 respectively.
18   The Second Respondent did not provide any particulars of works as required by the Fire Safety Order to the Council.

The Mezzanine structure

19   The mezzanine structure in the south western part of the Building on the Land was dilapidated and had not been construed in accordance with any development consent or complying development certificate, and could not be constructed as exempt development.
20   The mezzanine structure would cause the floor area of the Building on the Land to exceed 2000m², but its removal would reduce the floor area of the Building to below 2000m².
21   The Building does not comply with the current version of the Building Code of Australia (BCA).
22   Works are required to be carried out so that the Building complies with the BCA (to the extent such compliance is necessary), including, but not limited to:
(a)   Removal of the mezzanine structure in the south western part of the Building;
(b)   Pressure and flow test for the fire hydrant system and if sufficient no further works required;
(c)   Upgrade of those external walls that are within 3m of the boundaries of the Land (except north west wall which is greater than 3m from boundary);
(d)   Measures to ensure compliance with paths of travel and travel distances;
(e)   Upgrade of essential services;
(f)   Upgrade of external paths of travel to the public road.

The proximity of residential development

An air photograph of the site and surrounding development was in evidence in Exhibit D at Tab 12, folio 190. For ease of reference, although the site is oriented at an angle to the cardinal points of the compass, it is convenient to refer to the frontage to Waterview Street as the northern boundary.
The first point to be made about what is to be noticed from this air photo is that the premises on the site appear to be built to the boundary on the eastern, southern and western sides. The air photo also discloses a variable setback to the premises from the northern boundary. It is unnecessary to attempt to estimate, with any precision, the extent of that setback.
The second relevant information to be gleaned from the air photo is the extent of the residential development with boundaries abutting the boundary of the site.
Although difficult to interpret, an examination of this air photo, using a magnifying glass, appears to show that there are at least seven residential properties on the eastern or southern boundaries of the site that have a full boundary in common with the site.
The other two boundaries of the site are to its street frontage and, to the west, what appears to be adjoining industrial development (the site immediately to the west also being zoned IN2 as shown on the extract of the zoning map at Exhibit F, Tab 23, folio 936). The premises and the adjoining industrial development to the west each appear to be built to their common boundary.
The closest residential development to the site is a weatherboard cottage at the northern end of the eastern boundary of the site. This cottage is shown on the photographs appended to Mr Tatian’s first affidavit at Exhibit E, Tab 20, folio 697, upper‑left and lower‑right photos. It would appear that the separation between this cottage and the premises on the site is of the order of ~1.5 metres. It is unnecessary to know this distance with certainty for the purposes of my assessment in these proceedings.

The relevant statutory provisions

Introduction

There is a limited range of elements of planning instruments requiring to be considered in addressing the Company’s use of the site as a tyre storage facility. Relevant elements of two environmental planning instruments require consideration. The first is the Kogarah Local Environmental Plan 2012 (the LEP). The LEP came into effect when the site was located within the local government area administered by the former Kogarah Council. This Council has now been amalgamated with the former Hurstville Council, collectively becoming the Georges River Council.
The second is the SEPP. Because of issues arising out of cl 2.20B(i) of the SEPP, the terms of s 87 of the Evidence Act also require to be addressed.
However, it is appropriate to note that that these Class 4 proceedings are brought pursuant to s 9.45 of the EP&A Act, this being the provision that enables the bringing of proceedings for orders to remedy or restrain breaches of that Act. It is not necessary to repeat the terms of this provision.
It also is appropriate to note that the powers of the Court, where such a breach has been established, are set out in s 9.46 of the EP&A Act. This provision is in the following terms:

9.46 Orders of the Court

(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2)   Without limiting the powers of the Court under subsection (1), an order made under that subsection may—
(a)   where the breach of this Act comprises a use of any building, work or land—restrain that use,
(b)   where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or
(c)   where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

(3)   Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may—
(a)   adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and
(b)   in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

(4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.
(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.

It is also relevant to note, following from s 9.46(4) above, that s 20(2) of the Land and Environment Court Act 1979 (the Court Act) also arises as a basis for power when matters of discretion require to be addressed. I separately identify of this source of power when relied upon later. This provision is in the following terms:

Class 4—environmental planning and protection, development contract and strata renewal plan civil enforcement
(1)   The Court has jurisdiction (referred to in this Act as “Class 4” of its jurisdiction) to hear and dispose of the following—
…
(c) proceedings under section 123 of the Environmental Planning and Assessment Act 1979,
…
(2)   The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings—
(a)   to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,
(b)   to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,
(c)   to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function,
(d)   …
1. It is to be noted that the reference to the EP&A Act in s 20(1)(c) above is to be taken as being to s 9.45 of that Act (as a consequence of the rearrangement and renumbering of that Act from 1 March 2018).
2. One provision of the Evidence Act requires consideration because an issue concerning the admissibility or otherwise of a critical element impacting on the applicability or otherwise of one of the provisions of the SEPP is potentially called into play in these proceedings.

The LEP

The site is presently zoned IN2 Light Industrial. Section 4.2 the EP&A Act has the effect of requiring that development specified in the Land Use Table of the LEP must not be carried out unless the Council has given development consent for that to occur. For the purposes of this discussion, it is not necessary to set out the precise terms of the EP&A Act provision noted.
The Land Use Table is one which is in conventional form. For the IN2 Zone, it sets out, first, the objectives for that zone. For the purposes of the present proceedings, it is unnecessary to consider any of the six enumerated objectives. The IN2 element of the Land Use Table, at paragraph 2, notes that there is no development in this zone which is permitted to be carried out without consent.
At paragraph 3, there are then listed types of development that are permitted with consent in the IN2 Zone. These are:

Permitted with consent
Depots; Garden centres; Hardware and building supplies; Industrial training facilities; Light industries; Neighbourhood shops; Oyster aquaculture; Places of public worship; Roads; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 4
1. The final element, in paragraph 4, comprises a list of types of development that are expressly nominated as being prohibited in the IN2 Zone. None of those are relevant to the Company’s tyre storage activities.
2. The existing use permitted as a consequence of a development consent granted in 1994 is for the manufacturing of aluminium windows (falling within the permitted use of “Light industries”). The present use by the Company is as a “Warehouse or distribution centre”, also a permitted use within this zone as can be seen from the above extract from the Land Use Table. Therefore, there is no dispute in these proceedings that the Company’s use of the site for a tyre storage facility is a permitted use in the IN2 Zone.

The SEPP

Introduction

The SEPP is a beneficial and facultative environmental planning instrument. If development complies with relevant provisions of the SEPP, that development can be exempt from the necessity for being granted development consent by, here relevantly, the Council.

Relevant SEPP provisions

A range of provisions of the SEPP arise for consideration in these proceedings. The first relevant provision is that contained in cl 1.15 of the SEPP, a provision that sets out the general scope for development which is exempt and, thus, does not require any approval to be carried out. This provision is in the following terms:

1.15 What development is exempt development?

(1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy.
(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.

To fall within the above definition, the SEPP sets out, in cl 1.16, general requirements needing to be satisfied in order to have the benefit of being exempt from the requirement to obtain development consent. Only some elements of this provision require consideration in these proceedings. Those elements of cl 1.16 are:

1.16 General requirements for exempt development

(1)   To be exempt development for the purposes of this Policy, the development—
(a)   must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant provisions, must be structurally adequate, and
(b)   must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia, and
(b1)   …, and
(b2)   …, and
(c)   …, and
(d)   …

(1A)   …
(1B)   …
(1C)   …
(2)   Development that relates to an existing building that is classified under the Building Code of Australia as class 1b or class 2-9 is exempt development for the purposes of this Policy only if—
(a)   the building has a current fire safety certificate or fire safety statement, or
(b)   no fire safety measures are currently implemented, required or proposed for the building.

(3) …

The SEPP, after setting out these general provisions, contains a number of subdivisions within the General Exempt Development Code. Each of these subdivisions deals with a precise and nominated type of development from within what could be regarded as a kaleidoscopic array of types of development. For the purposes of these proceedings, subdiv 10A deals with the change of use of premises. Changes of use that are potentially rendered permissible without consent are set out in a table in cl 2.20A. The explanatory introduction to the table is in the following terms:

2.20A Specified development

A change of use from a current use specified in a category in Column 1 of the Table to this clause to a use specified in the corresponding category in Column 2 of the Table to this clause is development specified for this code.

It is not necessary at the time of the change of use to repeat the entirety of the table. The table is divided into two columns, with the first column headed “Current Use”, and the second column, “New Use”. Within each of these columns, there is a further division of the enumerated uses into three categories. There is no dispute in these proceedings that the 1994-approved use falls within Category 3 of Column 1. There is also no dispute that the Company’s use as a tyre storage facility falls within Category 3 in the “New Use” column.
The consequence of this is that, provided all the development standards contained in cl 2.20B are satisfied, the change of use from that permitted by the 1994 development consent to the tyre storage facility use actually carried out on the site by the Company will be exempt development and no consent from the Council would be required for that change.
However, as later discussed, the position put for the Council is that, whilst some of the relevant elements of cl 2.20B are satisfied, there are other elements which were not and are not now satisfied. If the Council's position on any of these points is correct, the change from the 1994 development consent approved use to that of the Company’s current use will not be exempt development and, for it to be permitted to continue, a development application would require to be submitted to, and approved by, the Council. The relevant provisions of cl 2.20B are:

2.20B Development standards

The standards specified for that development are that—
(a)   …, and
(b)   …, and
(c)   …, and
(d)   the new use must not result in a change of building classification under the Building Code of Australia, unless the change of use is from a class 5 building to a class 6 building, or from a class 6 building to a class 5 building, and the building meets all the relevant provisions of that code for the new use, and
(e)   …, and
(f)   …, and
(g)   …, and
(h)   …, and
(i)   the new use must not cause the contravention of any existing condition of the most recent development consent (other than a complying development certificate) that applies to the premises relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping, and
(j)   …, and
(k)   …

The Evidence Act 1995 (NSW)

A matter requiring later consideration is whether or not elements of a conversation between a council officer and an employee of the Company fall within the exception to the hearsay rule provided by s 87 of the Evidence Act.
This is one of the matters pressed by the Council as demonstrating that the change of use from the consent to the Company's present use is not presently exempt development arises from the proposition advanced by the Council that the hours of operation on the site by the Company are in contravention of the permitted hours of operation approved in the 1994 consent. This proposition requires later detailed consideration as to whether or not the basis upon which the Council proposes that I should reach such a conclusion is founded on admissible evidence or not. This requires consideration of the circumstances in which the basis for the Council's submission arose.
The first aspect of the Evidence Act requiring to be noted is the definition of “admission” contained in the Dictionary to the Act. This definition is in the following terms:

admission means a previous representation that is—

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person’s interest in the outcome of the proceeding.

The second relevant element is s 87, the provision which creates an exception to the hearsay rule to allow an admission to be adduced as evidence. The relevant elements of s 87 are reproduced below:

Admissions made with authority
(1)   For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that—
(a)   …, or
(b)   when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority, or
(c)   ….
(2)   For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove—
(a)   …, or
(b)   …, or
(c)   the scope of the person’s employment or authority.

Matters requiring determination

Introduction

Before turning to give a broad outline of the matters requiring determination, it is appropriate to note that one of the consequences of the joint expert evidence from Mr Tatian and Mr Harriman was the conclusion, set out in paragraph 22(a) of the earlier summary of the agreed facts (at [49]) that the southern mezzanine floor needed to be removed for fire and other safety reasons. What has taken place in response to that agreement is later set out in detail.

Timing and consideration of the issues in dispute

Introduction

I have earlier noted that, on 13 November 2020, I requested the parties to address the question of whether or not the assessments I was required to make concerning compliance with the provisions of the SEPP for the change of use to be exempt development required to address what was known about the state of the premises and its use by the Company as at February 2018.
This matter was addressed in the additional submissions filed by 27 November 2020. I now turn to consider the timing aspect addressed in those submissions.
The supplementary written submissions on behalf of the Council and the Company, although expressed in slightly differing terms, were in agreement that compliance with the requirements of the SEPP for, here, the Company's use of the site as a tyre storage facility was one which arose not only from on or about 1 February 2018 (there being agreement that that should be regarded as when the Company’s use commenced) but was also an ongoing compliance requirement. It is appropriate to set out the relevant extract from each of the submissions on this point.
First, the Council's submission on this point was, in paragraphs 3 and 4, in the following terms:

The Codes SEPP is to be applied on and from 1 February 2018. For development to be exempt it must comply with all requirements under the SEPP from time to time in an ongoing manner. The Codes SEPP defines exempt development using the linking verb is (ie. present tense) and in the case of development that comprises use it has ambulatory effect so as to apply to the use from time to time.

The first relevant date is 1 February 2018, but the relevant dates include every day since then on which the Development (the use) has been undertaken.
1. The Company's submission was in paragraph 11, the submission being in the following terms:
To answer the question raised in the first matter, whether or not the development meets clause 1.15 will be assessed both at the date of the commencement of the new use and also at the date when the Court considers whether to make the orders sought by the applicant (and such relevant dates in between).
1. It is, therefore, necessary to consider the range of factual matters in the context of this continuum of assessment.
2. It is useful, however, also to set out the elements of the Council’s supplementary written submissions explaining why a change of use could only be exempt development provided there was both initial and continuous compliance with the relevant provisions of the SEPP. These elements of the supplementary submissions were contained in paragraphs 10 to 15. These paragraphs were in the following terms:
However, if the relevant development is the use of land the development must continue to conform to the definition of exempt development under the Codes SEPP to be authorised by it. This is because if the use would otherwise require development consent, it must find authorisation in the Codes SEPP, and it can only do this by continuing to be within one of the defined categories of exempt development.
Whilst cl 2.20A refers to a change of use as being the development specified, properly construed this clause specifies the uses in the Column 2 - "New use" as being exempt development, where that new use takes the place of a use in Column 1 "Current use" provided both are in the same Category. The EPA Act does not define development by reference to change of use but rather use.
The alternative interpretation, that only change of use (and not ongoing use) is exempt under the Codes SEPP does not have a sensible outcome as there would be nothing in the Codes SEPP that would authorise continuation of the use, once changed.
Clause 1.15 of the Codes SEPP makes plain that it is only development that is specified in an exempt development code, meets the standards specified for that development and that complies with the requirement of Division 2 of the Codes SEPP that is exempt development.
Certain development standards for a change of use under cl 2.208 can only be given effect if the Codes SEPP operates in the way the Council contends. Specifically, cl 2.20B(i) specifies that a change of use must not cause the contravention of any existing condition of the most recent development consent relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping.
If the Codes SEPP had a once-off application, akin to a grant of consent, the first respondent would only need to comply with the development standards at the commencement (only) of the new use. This is to say that provided relevant conditions of the 1994 Consent were complied with at 1 February 2018, there would be no ongoing obligation to comply with these conditions.
1. Although considerable discussion arose in the written expert evidence and the subsequent questioning of the experts concerning it, much of that discussion focused on the present status of the premises and what could reasonably be anticipated as a consequence of completion of the agreed removal of the mezzanine element of the internal structure of the premises. However, Mr Tatian and Mr Harriman also addressed, relevantly, the question of whether or not a sprinkler system was required whilstever the mezzanine level existed within the premises. The necessity or otherwise for such a sprinkler system requires later consideration in the context of one element of the requirements of the SEPP.
2. However, critically, what I am required to consider is not only that present and anticipated position, but what was the position at the time that the change of use from that permitted by the 1994 development consent to that of the present tyre storage use being carried out by the Company. That will involve an assessment of the various issues pressed by the Council in an historic context relating to that time of change of use as well as matters which arise from present circumstances or will necessarily arise in the future.
3. In this context, the facts agreed between the parties record that:

At all material times the Company has occupied, and currently occupies, the Land pursuant to a lease with the Second Respondent made on 17 January 2018, commencing 1 February 2018 and ending on 31 January 2021 with an option to renew the lease for a term of 2 years.

The state of the premises as at February 2018

I am satisfied that, on the uncontroverted evidence before me, two relevant aspects of the state of the premises can be taken as being known as at February 2018.
The first of them is that the now demolished mezzanine floor was in place as at that date in the form that it was when Mr Tatian and Mr Harriman first undertook their inspections of the premises.
The second aspect of the premises that can be taken as being known to be the position at that date is that the elements giving rise to the agreement between Mr Tatian and Mr Harriman, embodied in Table 2 to their Joint Expert Report (with the exception of the now implemented necessity to demolish the mezzanine), were present at the commencement of the use of the premises as a tyre storage facility.
In this latter regard, there is no suggestion that the relevant nature of the structure on the site or of the proximity to the surrounding residential development has changed in any material respect over the intervening period of time.
In addition to these necessary factual conclusions, I am satisfied that there is also one necessary and appropriate assumption to be made concerning the state of the premises as at the time of the change of use. That assumption is that the various electrical safety matters observed by Mr Tatian on his initial inspection (and considered by him to warrant immediate safety rectification) reflected the state of the premises as at the change of use. In this context, it is to be observed that neither Mr Tatian or Mr Harriman made any suggestion in their written or oral evidence that these electrical safety issues were caused in any fashion by changes to the premises initiated by the Company.
I therefore consider it appropriate to conclude, on the balance of probabilities, that those unsatisfactory electrical safety matters arose as a consequence of the functional abandonment of the prior existing use of the premises at an unknown point in time before the Company's change of use to a tyre storage facility was effected. However, nothing follows from this.

Matters of contest with the Company

It is appropriate to note that the primary contest in these proceedings is between the Council and the Company. Although the Summons, as earlier set out at [15], clearly shows that elements of relief have been sought by the Council against the Owner, those matters, as potentially arising for determination, have to considerable extent been resolved either by the Council no longer pressing an element raised in the Summons or by general agreement between the Council and the Owner about functional outcomes.
In broad terms, the matters requiring determination involving the Company are:

has the Council established one (or more than one) basis upon which I should conclude that the change of use from that permitted by the 1994 development consent to the present use by the Company as a tyre storage facility was not to be characterised as exempt development permitted by the SEPP and this could not continue without seeking and obtaining an approval from the Council;

if the outcome of my consideration was that the change of use was not exempt development, but was one which required development consent from the Council, should I exercise my discretion to permit the Company time to prepare and lodge a development application seeking consent to use the site for tyre storage and, if discretion was to be exercised in that fashion, what were appropriate conditions to be attached to that pending finalisation (whether by the Council or by the Court on appeal) of such a development application; and

if discretion was not to be exercised in that fashion, what were the appropriate orders now to be made concerning the Company’s use of the site. Immediately operative orders of a restrictive or prohibitory nature would only become relevant to be considered if I was to conclude that there was no appropriate discretionary basis upon which the Company might be permitted to continue its activities (subject to such restrictions as I might consider appropriate) pending lodgement and final determination of a development application to regularise the present use.

As a consequence, prior to embarking on detailed consideration of the above matters raised by the Council concerning the status of the Company's activities on the site, it is be appropriate to address, comparatively briefly, the matters between the Council and the Owner.

Matters of contest with the Owner

Introduction

Two matters remain for determination concerning the Owner. The more significant (being a matter of practicality) is a dispute about timing of implementation of elements of the fire protection improvements otherwise agreed upon by Mr Tatian and Mr Harriman.
The second is whether a bare declaration (in the terms sought at paragraph 3 in the Summons) is appropriate to be made.
I have earlier set out, at [15], the terms of the Summons commencing these Class 4 proceedings. It can be seen that:

in prayer 2, the Council sought a declaration that the Owner had failed to comply with a Development Control Order addressed to the Owner issued by the Council on 16 December 2019;

in prayer 3, the Council sought a declaration that the Owner had failed to comply with the terms of a Fire Safety Order dated 12 February 2020 issued by the Council to the Owner;

two orders (proposed Orders (4) and (5)) were addressed to both the Company and the Owner. It is not necessary, for present purposes, to repeat the terms of these proposed orders;

an order, proposed Order (6), sought that the Owner be required to cease conducting the activity of tyre storage on the site; and

as an alternative to the above‑noted orders, proposed Order (7) was advanced as a basis upon which the Fire Safety Order should be implemented by the Owner.

It is to be observed, in an entirely non-critical fashion, that Ms Reid, as counsel for the Owner, needed to take a comparatively limited role in the proceedings. This arose as a consequence of proper concessions made on behalf of the Council in response to Ms Reid's written submissions of 14 September 2020 (see [16]).
However, for completeness in understanding the evolution of the matters initially giving rise to these Class 4 proceedings, it is appropriate to explain the position advanced on behalf of the Owner and the Council's response to it, a response which has significantly narrowed the range of matters concerning the Owner requiring my determination.

The Owner’s position

Ms Reid's written submissions were commendably focused and succinct. Her submissions commenced by addressing the validity of the Development Control Order issued by the Council, an order which required the Owner to cease carrying out the activity of tyre storage at the site. For reasons she explained, that activity was not being carried out by the Owner but was being carried out by the Company. As a consequence, she submitted that the Owner could not be ordered to cease an activity which was not, as a matter of fact, being carried out by it.
With respect to the Fire Safety Order, the Owner conceded that it had breached the order by failing to comply with the requirements of the order within the time specified. Ms Reid noted that the Owner adopted Mr Harriman's evidence in the Joint Expert Report (accepting, therefore, that the agreed works in Table 2 to that expert report were needed, but proposing that the timing of implementation of those works should be at as proposed by Mr Harriman in Table 3 to that report rather than the faster implementation proposed by Mr Tatian).
With respect to the proposed declaration concerning the breach of the Fire Safety Order, Ms Reid's written submissions said, at paragraph 18:

There would be no utility in a declaration as to breach of the Fire Order in circumstances where the works to be undertaken and timeframes in which they are required to be undertaken now vary from the Fire Order and there is general agreement on the works to be undertaken.

With respect to the orders proposed in the Summons to be made jointly against the Company and the Owner, Ms Reid submitted that the Owner was not actually carrying out the impugned activities on the site and that there was no evidence that the Owner had control over, or possession of, any of the material on the land associated with, or involved in, the Company's activities.
She proposed that the order seeking to restrain the Owner from carrying out the activity of tyre storage on the site should not be made for the reasons noted above.
Finally, with respect to the alternative remedial proposed Order (7) advanced by the Council as an alternative to the earlier more prescriptive proposals, Ms Reid submitted, at paragraph 22:

The Court would decline to make the orders sought in prayer 7 of the Summons, and would instead make an order that Second Respondent carry out the works required, and in the timeframes suggested, by Mr Harriman in the Joint Report.

The Council's position

The Council's response with respect to the primary elements of Ms Reid’s submissions can be dealt with comparatively briefly. These are contained in the first four substantive paragraphs of the Council's reply submissions of 16 September 2020 at, relevantly, paragraphs 7 to 10. These were in the following terms:

First, the Council does not press for relief with respect to Order No. 1, with the consequence that prayers 2 and 6 of the Summons are not pressed.
Secondly, the Second Respondent has now conceded that it failed to comply with the Fire Safety Order in the time specified: 2RSA [17]. It follows that there is no contest that the Second Respondent has breached the EPA Act and the principal issue between the Council and the Second Respondent is the appropriate remedy.
Thirdly, as to remedy, and contrary to 2RSA [18], there is utility in the making of a declaration in the terms of prayer 3 of the Summons. The making of such declarations informs the public of the breach of the Act.
Fourthly, as to the submission at 2RSA [22], the primary order sought by the Council is that the Land not be used until development consent is obtained and the necessary work is done in view of the risks, and for the other reasons, outlined above.
1. As can be seen, there remains a dispute between the Owner and the Council as to the appropriateness or otherwise of making a declaration addressing the Owners acknowledgement that it had not complied with the Fire Safety Order. I address this matter in my consideration of matters in dispute between the Council and the Owner in the concluding portion of this section of this judgment.
2. The reply submissions also addressed the proposition advanced by Ms Reid, set out above, concerning the carrying out of the necessary remedial fire safety works. The Council's reply submissions on this point were also succinct. They were in the following terms (at paragraphs 11 to 13):
In the event that the Court is not prepared to order that the Land not be used in its present state, the Council agrees that the preferred form of order is one which reflects the work required to be undertaken and the times specified for that work. As a minimum this should include the matters set out in Tables 2 and 3 of the Joint Expert Report at Evidence Book Vol 3 Tab 24 at pages 953-957 and 958-959.
It should include compliance with the NSW Fire and Rescue Guideline for Bulk Storage of Rubber Tyres, a copy of which is at Evidence Book 2, Tab 21, p 753. This requirement is included in Table 3, but not Table 2 of the Joint Expert Report.
Mr Tatian’s evidence in the Joint Expert Report (Evidence Book Vol 3, Tab 24, p 952 and 968-969) and his Expert Report (Evidence Book Vol 2, Tab 21, p 723) is that the NSW Fire and Rescue Guideline should be observed. His evidence is that the disorganised and excessive quantities of tyres in breach of the Guideline increases the likelihood of a longer fire and greater spread of fire and smoke. Compliance with the Guideline was one of the fire safety measures specified by the Council in the Fire Safety Order (Evidence Book Vol 1, Tab 5, p 8 (3iii)).

Consideration

I turn, first, to the question of whether or not I should make a declaration as sought in prayer 3 of the Summons.
As I understand the position, it is well-settled that the making of a bare declaration is ordinarily inappropriate when such a declaration would have no foreseeable consequences for the breaching party (Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180; per Mason J at 188 and Aickin J at 189). The making of a declaration as sought by the Council in prayer 3 of the Summons would have no functional value of a prophylactic nature (contra the position in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 per the plurality at 582).
However, as Gaudron J observed, in Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 at [52], there may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention.
In the ordinary course of events, in light of the above authority, I would be reluctant to make a bare declaration because of the lack of specific utility in such circumstances. However, the Council proposes that, in this instance, there is some potential educative value in the making of such a declaration. On fine balance, given the public safety importance of ensuring the observation of, and carrying out of works mandated by, Fire Safety Orders, I am satisfied that there is sufficient potential educative utility in making the declaration sought by the Council in prayer 3 of the Summons.
With respect to the issues remaining concerning the timing of carrying out of remedial fire safety works, these are inextricably bound up with the issue of whether or not, as a matter of discretion, I should permit the Company's activities on the site to continue pending the lodgement with, and determination by, the Council of a development application to permit a change of use on the site to legitimise the Company's activities.
As a consequence, further consideration of matters contained in Tables 2 and 3 of the Joint Expert Report of Mr Tatian and Mr Harriman is deferred until later in my consideration of matters of discretion.

Removal of the southern mezzanine floor

Introduction

What follows in the next section of this judgment is what took place leading up to completion of the removal of that mezzanine. That removal had, as a consequence later discussed, the effect of eliminating one substantial area of disagreement between Mr Tatian and Mr Harriman. This issue was whether or not, should the Company's tyre storage activities be permitted to continue (whether on the basis of a formal consent for a change of use or on some interim basis pending such a decision), there would be a mandated necessity for the installation of a sprinkler system in the premises.
However, it is necessary, for the purposes of considering whether or not the Company's change of use could have been regarded as exempt development after 1 February 2018, to address the difference between Mr Tatian and Mr Harriman as to whether the mezzanine (whilstever it existed) would have required the installation of a sprinkler system does require resolution. This matter is dealt with separately later.

There are three elements that require to be addressed in this context, in my assessment. The first of them is implementation of the elements of Table 2 to the Joint Expert Report of Mr Tatian and Mr Harriman. The second is to address the operational regime of the Company's activities pending what will be the conditions of development consent imposed as an ongoing operational regime when (and if) the Company is granted development consent to use the premises as a tyre storage facility on an ongoing basis. The final element, given the agreement between Mr Tatian and Mr Harriman concerning the scope of the remedial fire safety works needing to be undertaken to the premises that, effectively, substitute for what had been mandated by the Fire Safety Order issued by the Council on 12 February 2020, is to resolve the differences that would otherwise arise between the orders I make in these proceedings and the ongoing obligations imposed by the Fire Safety Order.

The implementation of adapted Table 2

Although I have earlier rejected Mr Harriman's attempt to “correct” the terms of paragraph 159 in the Joint Expert Report, my rejection of that does not mean that it is not appropriate to have regard to the timing he has proposed, in Table 3 to the Joint Expert Report, for the implementation of relevant items listed in Table 2 to that report.
In circumstances where Mr Tatian acknowledged, as earlier discussed, that operational conditions could be imposed if I was minded to afford the Company the opportunity to seek to regularise its use of the premises, Mr Tatian’s proposal that all elements of Table 2 were to be implemented on the basis that required the Company to vacate the premises and carry out the works prior to reoccupation for the purposes of tyre storage is not appropriate.
I did not discern anything in Mr Tatian’s written or oral evidence that demurred from the timetable recommendations made by Mr Harriman, if I was to permit the tyre storage used to continue on an interim basis pending regularisation by the granting of a development consent.
Under such circumstances, I am satisfied that it is appropriate to adopt Mr Harriman's timetable for the purposes of my orders in these proceedings. Implementation, however, is to be subject to an ability to be granted to the Council to permit the Council to modify, in any terms attached to the granting of development consent, any timetabling elements for the implementation of Table 2 where those elements are incomplete as at the time of imposition of the terms of development consent.
Therefore, the items requiring implementation by remedial works to the premises will be incorporated in the orders made finalising these proceedings.

An interim internal operational regime

Pending the granting of development consent to regularise the Company's activities on an ongoing basis, it is necessary to establish an interim regime to address matters which, I would expect, will be addressed by elements that will otherwise need to be contained in conditions attaching to a development consent when (and if) such a consent is granted to the Company. The first of these, albeit a minor one, is the continuation of the ban on aerosols, cigarette lighters and the like being on the premises. That ban is to continue in the terms provided for in the currently operating regime established during the course the hearing.
Second, the element of the interim regime relating to vehicles on the site is also to continue until Item 6 of the modified Table 2 in Order (6) is completed and no storage external to the building is being carried out.
I would expect that these two interim aspects would be uncontroversial.
However, there remain four substantive elements concerning the storage of tyres within the building that need to be addressed on an interim basis pending the remedial works to address the requirement for fire rating rectification of external walls to the building as agreed between Mr Tatian and Mr Harriman. The four elements are:

Imposition of a mandated aisle width between stacks of tyres;

Setting a maximum height at which tyres are to be stored in stacks within the premises (noting, however, that there is no controversy on this point because of the agreement between Mr Tatian and Mr Harriman about the appropriate maximum stack height);

To set a permitted configuration for tyre stacks to be configured; and

To address the appropriate separation distance between stacks of tyres and external walls of the premises pending the carrying out of the fire rating remedial works to those walls.

Tyre stack height

Mr Tatian and Mr Harriman are in agreement that the maximum height appropriate to be permitted for any stacks of tyres is 3.7 metres. I am satisfied that this is an appropriate regime to adopt. I note, in the context of the next topic to which I will need to turn, that this maximum stack height is entirely consistent with that proposed by the Guideline.

Tyre stack grouping

In his affidavit of 23 July 2020, Mr Tatian gave evidence of the configuration of the tyre stacks on the site at the time of his first inspection on 21 July 2020. The relevant elements of that evidence, at folio s 3 and 4 of his affidavit, were in the following terms:

(a) There was a very large amount of tyres stacked throughout the Warehouse;

(b) Areas within the building, including a space which appeared to have been formerly used as office space and the like, were stacked with tyres. The mezzanine level directly above this office space area was also stacked with tyres;

(c) There was a small area where no tyres were located, near the entry of the Warehouse, which appeared to be used for loading/ unloading. To the right of the loading area there was a mezzanine level. Tyres were stacked below the mezzanine level and above the mezzanine level;

…

(e) Moving to the back of the warehouse, there was a bolted door which appeared to be an access/ exit door to the rear (its exact purpose was unclear). To the left hand side of this were more tyres, and an opening leading to another portion of the warehouse;

(f) The second portion of the warehouse contained tyres stacked throughout. Some of the tyres appeared to be stacked at a height greater than 4m;

(g) Throughout the Warehouse tyres were stacked around structural steel columns used to support the structure;

…

(o) The large amount of tyres that I observed stacked within the Warehouse were stacked in a haphazard manner. The tyres I observed stacked within the Warehouse did not accord with the required stacking methods set out in the Fire and Rescue NSW Fire Safety Guideline - Guidelines for the bulk storage of rubber tyres (Guidelines). A copy of the Guidelines is annexed to this affidavit and marked “B”;

Mr Harriman also addressed this topic in his affidavit of 2 September 2020. His evidence on this topic was in the following terms:

The tyres were stacked in blocks with gaps between them. In places these gaps were more than 1m in width but in many places the gaps were approximately 600-700mm. For paths of travel for egress a minimum of 1m is required.
1. During the course of the concurrent evidence of these two experts, I drew attention to a photograph appended to the affidavit of Mr Harriman which depicted the configuration of the stacks of tyres on the occasion of his inspection of the premises. A copy of that photograph is Annexure D to this judgment.
2. Mr Tatian proposed that the tyre stack configuration should be 4 x 4 stacks of tyres in each grouping of such stacks. On the other hand, Mr Harriman proposed that such grouping of stacks of tyres should be permitted to be on a 6 x 2 basis, this being the basis of the grouping adjacent to the wall depicted in the photograph reproduced as Annexure D to this judgment.
3. Resolution of this difference between the experts is, I am satisfied, simple. I have earlier explained why, despite Mr Harriman's objection to any regard being paid to the Guideline, I am satisfied that that document is to be accorded significant weight in resolution of issues in dispute between Mr Tatian and Mr Harriman. Given, also, I have a reluctance to accept Mr Harriman's evidence when it is in conflict with that of Mr Tatian, the inevitable resultant conclusion to be drawn with respect to the differences between them on this point is that Mr Tatian’s position (adopting that proposed by the Guideline (in Exhibit E at folio 666)) is to be preferred.
4. My orders will therefore provide that the appropriate maximum stack configuration will be in 4 x 4 clusters. Whilst these are the external dimensions of such clusters, this will be expressed as a maximum, thus permitting the Company to operate on a lesser regime should its operational requirements dictate that.

Aisle widths and wall setbacks

During the course of their oral evidence, Mr Tatian and Mr Harriman expressed different opinions as to the appropriate separation distance that should be required for stacks of tyres from walls of the premises requiring fire rating level upgrades.
As earlier noted, Mr Tatian expressed the view that the clearances of groups of tyre stacks from the external walls should be based on cl C3.3 of the BCA.
I have examined cl C3.3 “Separation of external walls and associated openings in different fire compartments” of the BCA (Exhibit C, folio 127). On my reading of that provision, it gives no obvious interpretive assistance in the present circumstances.
Mr Harriman's evidence, earlier set out in his general comments concerning the applicability of the Guideline, also provided no specific assistance on how I should address this point.
Whilst it is reasonable to assume that the Guideline addresses what should be tyre storage arrangements in buildings that have appropriate fire‑rated external walls, I am prepared, for present circumstances, to adopt, as an appropriate regime for aisles, wall separations and stack grouping separations, that which is set out in Figure 13 of the Guideline in Pt 7.2, being the part that deals with unsprinklered buildings (as is here the case). Figure 13 is reproduced below:

Who is to give effect to the requirements of the adapted Table 2?

Although it will be necessary in addressing these matters in the orders to impose obligations for the carrying out of those works, it is appropriate that I note that the question of responsibility for that was also addressed during the course the hearing.
Ms Reid made the following submission with respect to which party should be responsible for carrying out the remedial works (Transcript 18 September 2020, page 29, lines 14 to 17):

If o 7 [order 7 reproduced at [15] as sought in the Summons] is to be made, it is to facilitate the first respondent’s use of the premises and should properly require the work be undertaken by the first respondent. The second respondent consents to those works being carried out.

On the other hand, Mr Hale advocated a more pragmatic approach. He submitted (Transcript 18 September 2020, page 29, lines 31 to 36):

So far as the fire safety orders are concerned, it relates to the building and it’s - I think the first safety orders were only things to be - were only sought against the second respondent, not the first respondent but obviously there will be commercial arrangements that need to be made between the first and second respondents and we don’t see the Court should be concerned with that.

Whilst, consistent with Ross v Lane Cove (2014) 199 LGERA 298; [2014] NSWCA 50 (Ross), orders could be made to require the Company to carry out the works, because they arise as a consequence of the Company's activities being called into question in these proceedings, I am satisfied that the appropriate burden should fall on the Owner in order to ensure that the works will actually be carried out whilstever the Company remains in occupation of the premises and carrying out its tyre storage activities. However, as Mr Hale indicated, commercial arrangements between the Company and the owner may well give rise to a more pragmatic resolution in ensuring that the necessary remedial works are effected. That, I am satisfied, would give rise to processes to which the Court and the Council need not be privy nor be participants.
The obligation to give effect to my orders requiring the implementation of the remedial measures set out in the adapted Table 2 from the Joint Expert Report (with the exception of the requirement in Item 6 of the adapted Table which falls on the Company) will therefore be imposed on the Owner (with the ability to return to seek relief from those obligations if the Company’s activities cease before the requirements are completely satisfied).

The future of the Fire Safety Order

The Fire Safety Order issued by the Council to the Owner in February 2020 remains operative.
My examination of the terms of that order discloses, as earlier observed, that the mandated requirements for compliance with its terms are at variance with what I have determined to be the appropriate implementation regime for the elements of Table 2 of the Joint Expert Report that remain to be effected.
Given the contested nature of these proceedings, and the extensive evidence given by Mr Tatian and Mr Harriman concerning the basis upon which they have reached agreement on the appropriate scope of remedial works to be carried out the premises, it is necessary to ensure that the conflict between the orders made in these proceedings and the requirements of the Council’s Fire Safety Order are resolved.
There has been no appeal made by the Owner seeking to vary the obligations that were imposed on the Owner by the Fire Safety Order. As a consequence, I am satisfied that I do not have jurisdiction to amend the Fire Safety Order so as to have its terms coincide with the requirements that I will impose as a consequence of these proceeding.
I am, however, satisfied that I do have power, in the exercise of my discretion arising from both the EP&A Act and/or s 20(2) of the Court Act, to order that the Council revoke the Fire Safety Order, as the consequence of imposing the remedial regime and the interim operational regime.
Self‑evidently, the revocation of the 12 February 2020 Fire Safety Order does not preclude the Council from issuing some future Fire Safety Order for reasons of failure to implement that which is required by this decision or, indeed, more generally if other circumstances arise which might warrant the making of such an order.

Hours of operation

The hours of operation of the tyre storage facility are to be those that apply arising from the 1994 development consent, with the alteration that the facility is to be permitted to operate until 6.00 pm on weekdays (this later - by one hour - weekday operation is reflective of what are the present operating hours of the facility). This is derived from the earlier discussed conversation with Aaron recorded in the affidavit of Mr Nestorovski in circumstances where the Council has not suggested, during the course of these proceedings, that any adverse impact on residential amenity arises as a consequence of this additional hour of operating time.

Costs

In Class 4 proceedings, costs ordinarily follow the event. In these proceedings, in general terms, the Council has achieved success on most (but not all) relevant issues of principle (although, on the exercise of discretion, the Council has not achieved the relief sought).
However, the costs’ position is potentially clouded as a consequence of the two Respondents with different roles and where the relief sought at the commencement of the proceedings differed as against those Respondents. In a change at the commencement of the hearing, the Council indicated that, effectively, it no longer sought relief against the Owner (noting, however, that it was necessary for the Owner to being a respondent to the proceedings - Ross).
Three things are obvious with respect to the question of costs. These are:

The Council is entitled to orders that will see it appropriately reimbursed for its costs in initiating and pursuing these proceedings;

I have no proper evidentiary basis (and certainly no knowledge of any exchanges between the Company and the Owner that would assist me) to reach any determination as to apportionment of costs between the Company and the Owner; and

It is desirable, if possible, to avoid the necessity for further proceedings to extend what have already been somewhat protracted proceedings in order to conduct a second adjudication, one confined solely to the question of costs’ apportionment.

Under the circumstances, where the first of the three propositions I earlier set out is incontrovertible, adopting Mr Hale's proposal in the context of the cost of the remedial works to enable a commercial resolution between the Company and the Owner on the question of costs to be paid to the Council, the appropriate course for me to follow is to make the Company and the Owner jointly and severally liable for the Council’s costs.
An order of that nature will ensure that there is an appropriate stimulus to those two parties reaching a mutually acceptable resolution on the costs’ issue whilst preserving to the Council its ability to pursue either or both of those parties for its costs.

Declarations and Orders

It therefore follows that the declarations of the Court are:

The Court declares that the First Respondent, by its servants and agents, has unlawfully carried out, and is unlawfully carrying out, development on the land legally identified as Lot 77 in DP 2022 and Lot 76 in DP 3875, also known as 36-38 Waterview Street, Carlton, New South Wales (the Land) in breach of s 4.2 of the Environmental Planning and Assessment Act 1979, in that it is using the Land without development consent for a purpose requiring development consent in circumstances where consent is required for such use and it has not been obtained; and

The Court declares that that the Second Respondent, being the Owner of the Land and recipient of the Development Control Order issued by the Applicant dated 12 February 2020 (Fire Safety Order) has breached the Environmental Planning and Assessment Act 1979, in that it has failed to comply with terms of the Fire Safety Order.

The Court orders that:

The First Respondent is ordered to cease the use of the Land for the purposes of tyre storage within twenty-one (21) days of the coming into effect of this order;

Order (1) is suspended until 5.00 pm on 26 March 2021 to enable the First Respondent to lodge a development application with the Applicant for a change of use of the Land to permit the First Respondent’s tyre storage activities on the Land;

The First Respondent has leave, on three (3) working days’ notice, to relist the matter before Moore J (any such relisting not be before 25 January 2021) to seek a variation of the period of suspension in Order (2);

If the First Respondent lodges a development application with the Applicant, prior to 5.00 pm on 26 March 2021, for a change of use of the Land to permit the First Respondent’s tyre storage activities on the Land, Order (1) is further suspended until the Applicant approves the development application;

If the Applicant refuses the development application or is deemed to have refused it or approves the development application with conditions not acceptable to the First Respondent and the First Respondent commences Class 1 proceedings in the Court against the refusal, deemed refusal or contested conditions, Order (1) is further suspended until 5.00 pm on the fourteenth (14^th) working day after the filing of such Class 1 appeal;

The fire safety measures in Column 2 of the table below (taken from Table 2 of the Joint Expert Report of the fire safety experts at folios 953 to 957 of Exhibit F) are to be implemented within the times and by the party specified in Column 3 (unless subsequently varied by any conditions of consent attaching to approval of a development application for the First Respondent’s change of use to a “Warehouse or distribution centre”):

Defect description

Timing to Complete

1
Fire Hydrant System 1 month for flow and pressure enquiry

2 months - Review of the results by Council

3 months for a design of a new system, if the flow and pressure of the steel hydrants is not sufficient

6 months to install fire system

Implementing party - Second Respondent

2

External Walls within 3m of the boundary and protection of openings (windows)

12 months

Implementing party - Second Respondent

3

Paths of Travel to exit doors, flashing lights

1 month to provide a plan of the proposed layout to council 3 months to complete the works

Implementing party - Second Respondent

4

Essential Services

3 months

Implementing party - Second Respondent

5

Electrical wiring (unless already resolved)

3 months

Implementing party - Second Respondent

6

External path of Travel to a Public Road and removal of ad-hoc storage

1 month

Implementing party - First Respondent

Until the First Respondent obtains development consent for use of the premises as a “Warehouse or distribution centre” and the conditions subject to which that consent otherwise provides or the Second Respondent has satisfied Item 2 of the table to Order (6) to the satisfaction of the Applicant, from no later than 22 January 2021, the operational regime for the First Respondent’s use of the premises is to be that:

tyres are to be stacked in configurations of no more than 4 x 4 stack groupings;

aisles between stack groupings, separation from walls and exit paths are to be as depicted in Figure 13 in Pt 7.2 of “Guideline for bulk storage of rubber tyres” (version 03 dated 5 December 2014) published by NSW Fire and Rescue;

all vehicles are to be removed from the site in the manner required by the First Respondent’s undertaking of 24 July 2020; and

no aerosol cans, oils, lighters and other ignition sources are permitted within the warehouse;

The First Respondent's hours of operation of its tyre storage activities at the premises are to be those required by the 1994 development consent applying to the site with the exception that the Company's operations are permitted to continue until 6.00 pm Monday to Friday (public holidays excepted);

The Applicant is to discharge the Fire Safety Order issued to the Second Respondent on 12 February 2020 within twenty-eight (28) days of the date of these orders;

Either Respondent has liberty to relist the matter before Moore J on three (3) days’ notice if either Respondent wishes to seek a further suspension of Order (1) to enable finalisation of any Class 1 proceedings arising with respect to the finalisation of any development application lodged by the First Respondent seeking consent to use the premises as a “Warehouse or distribution centre”;

The Second Respondent is granted liberty to relist the matter before Moore J on three (3) days’ notice to seek to discharge any continuing obligations arising from these orders in the event that the First Respondent ceases its tyre storage activities on the premises;

Other than the costs of the hearing of 29 September 2020, the Respondents are jointly and severally ordered to pay the Applicant’s costs as agreed or assessed;

The First Respondent is to pay the costs of the Applicant and the Second Respondent of the hearing of 29 September 2020 as agreed or assessed; and

The exhibits are returned.

**********

Annexure A

Annex A - Table 2 (125753, pdf)

Annexure B

Annex B - Table 3 (33221, pdf)

Annexure C

Annexure D

Amendments

29 December 2020 - The solicitors for the First Respondent are now correctly identified as 'SHL & Associates Lawyers'.

Decision last updated: 29 December 2020

Medium Neutral Citation:	Georges River Council v Tyre Nation Pty Ltd [2020] NSWLEC 172
Hearing dates:	24 and 29 July; 5, 13 and 14 August; 2, 3, 17, 18 and 29 September; 8 October; 13 and 19 November; supplementary written submissions on 27 November 2020
Date of orders:	24 December 2020
Decision date:	24 December 2020
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See declarations and orders at [407] and [408]
Catchwords:	EXEMPT DEVELOPMENT - change of use of premises - change in mix of building classes pursuant to Building Code of Australia (BCA) - consideration of provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP) as the tests for whether change of use constituted exempt development - necessity for new use to satisfy requirements of the SEPP not only when the change of use occurred but on a continuing basis - changes in building classification not a barrier to change of use being exempt development - SEPP set fire safety requirements that must be satisfied - fire safety requirements not satisfied at the time of change of use and continue to remain unsatisfied - new use was not and is not exempt development - requirement that new use be compliant with hours of operation condition in any development consent for earlier use - consideration of whether a statement by an employee of the present operator constituted an adducible admission demonstrating that the hours of operation breached the condition of the earlier development consent - statement satisfies requirements of s 87 of the Evidence Act 1995 (NSW) so as to constitute an admission - changed use operating in breach of hours of operation condition of prior development consent - second basis for concluding that the change of use was not exempt development at the time of the hearing - new use requires development consent to be permitted to continue - declarations and orders appropriate DISCRETION - tenanted premises used as tyre storage facility - consideration of whether tenant’s tyre storage activities should be permitted to continue in order to permit lodgement of a development application to regularise this use of the premises- appropriate to provide an opportunity to seek development consent to permit continuation of present use - necessity for interim and ongoing fire safety improvements - orders provide for implementation of remedial works agreed to by fire safety experts - orders also provide for additional interim fire safety measures pending determination of development application - appropriate to suspend order requiring cessation of present use pending determination of development application to regularise the present use FIRE SAFETY ORDER - Fire Safety Order served on the owner of the premises - remedial fire safety works proposed by the order differ from those agreed as necessary by the fire safety experts in the proceedings - appropriate to make a declaration that the owner of the premises had not complied with the terms of the Fire Safety Order - because fire safety upgrade works and interim fire safety operational arrangements to be imposed by orders in these proceedings, appropriate to direct that the Council discharge the Fire Safety Order with which the owner has not complied COSTS - Council successful in seeking declaration that the change of use was not exempt development - Council successful in obtaining orders for a range of agreed remedial fire safety works and interim fire safety operational conditions pending determination of a development application to continue the use - costs to follow the event - costs to be ordered jointly and severally against the tenant and the owner of the premises
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.2, 9.45, 9.46 Evidence Act 1995 (ACT), s 87 Evidence Act 1995 (NSW), s 87 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979, s 20 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16 Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 Refina Pty Ltd v Binnie [2009] NSWSC 311 Ross v Lane Cove Council (2014) 199 LGERA 298; [2014] NSWCA 50 Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Texts Cited:	COVID-19 Pandemic Arrangements Policy “Guideline for bulk storage of rubber tyres” (version 03 dated 5 December 2014) in a series of Fire Safety Guidelines published by NSW Fire and Rescue
Category:	Principal judgment
Parties:	Georges River Council (Applicant) Tyre Nation Pty Ltd (First Respondent) Fardous and Saab Pty Ltd (Second Respondent)
Representation:	Counsel: Mr S Goodman SC/Mr M Astill, barrister (Applicant) Mr T Hale SC/Mr I Leong, barrister (First Respondent) Ms J Reid, barrister (Second Respondent) Solicitors: HWL Ebsworth (Applicant) SHL & Associates Lawyers (First Respondent) One Group Legal (Second Respondent)
File Number(s):	170606 of 2020
Publication restriction:	No

Defect description	Timing to Complete
1	Fire Hydrant System	1 month for flow and pressure enquiry
2 months - Review of the results by Council
3 months for a design of a new system, if the flow and pressure of the steel hydrants is not sufficient
6 months to install fire system Implementing party - Second Respondent
2	External Walls within 3m of the boundary and protection of openings (windows)	12 months Implementing party - Second Respondent
3	Paths of Travel to exit doors, flashing lights	1 month to provide a plan of the proposed layout to council 3 months to complete the works Implementing party - Second Respondent
4	Essential Services	3 months Implementing party - Second Respondent
5	Electrical wiring (unless already resolved)	3 months Implementing party - Second Respondent
6	External path of Travel to a Public Road and removal of ad-hoc storage	1 month Implementing party - First Respondent