Ghazi Al Ali Architect P/L v Burwood Council

[2019] NSWLEC 1488

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ghazi Al Ali Architect P/L v Burwood Council [2019] NSWLEC 1488
Hearing dates:	30 September 2019; 1 October 2019
Date of orders:	22 November 2019
Decision date:	15 October 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1) Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans identified in Condition 1(a) of Annexure ‘A’. (2) The appeal is upheld. (3) Development consent for Development Application No. 048/2018 for the demolition of existing structures and construction of a six storey mixed use development comprising two commercial premises at ground floor, 17 apartments and two levels of basement car parking for 25 cars and 8 bicycles, is granted, subject to the conditions at Annexure ‘A’.
Catchwords:	DEVELOPMENT APPEAL: residential apartment development – residential flat building – compliance with the National Construction Code – performance solution for fire egress
Legislation Cited:	Architects Act 2003 Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) State Environmental Planning Policy No 65 – Design Quality in Residential Apartment Development
Texts Cited:	Apartment Design Guide Burwood Development Control Plan 2013 National Construction Code
Category:	Principal judgment
Parties:	Ghazi Al Ali Architect P/L (Applicant) Burwood Council (Respondent)
Representation:	Counsel: Y Koprivnjak (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent)   Solicitors: HWL Ebsworth (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2018/214725
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Burwood Council (the Respondent) of Development Application No. 048/2018 for the demolition of existing structures and construction of a six storey mixed use development comprising two commercial premises at ground floor, 17 apartments and two levels of basement car parking for 22 cars and 3 bicycles.

2. The site is an irregular shape, formed by the elbow bend of Liverpool Road and its intersection with Willee Street in Strathfield, being legally described at Lot 1 in DP 236134, and otherwise known as 319-321 Liverpool Road, Strathfield.

3. The adjoining property to the north of the site is a single storey childcare facility which operates in a free standing cottage. Its owner, Mr Hogkins provided an oral submission at the onsite view conducted immediately prior to the hearing, and his concerns are recorded in written submissions found at Exhibit 2, Tab 6 along with notes agreed by the parties.

4. Prior to the hearing, the Applicant was granted leave to rely on amended plans (Ex B, Tab A) which the parties agree resolve the majority of the contentions, with three contentions remaining that include:

1. Car parking and traffic

2. Waste Management

3. Fire egress

5. The Court was assisted by experts in the following fields:

Applicant	Respondent
Car parking and traffic	Mr Paul Corbett	Mr Jason Scoufis
Waste Management	Mr Eddy Saidi	Mr Henry Gavrilis
Building surveying	Mr Mardiros Tatian	Mr Nelson Silva

6. Subsequent to the filing of the Amended Statement of Facts and Contentions (Ex 1), the parties’ experts conferred and resolved the contentions related to car parking and traffic, and waste management. Only the experts in building surveying were required to provide evidence.

7. In summary, the Respondent contends that as the fire egress for the proposed development does not achieve the ‘deemed to satisfy’ provisions of Part D1.7 of the National Construction Code (NCC), consent should not be granted unless and until the Applicant is able to satisfy the consent authority, or in this matter the Court exercising the functions of the consent authority on appeal, of the details relating to the alternative solution proposed.

8. At the commencement of the hearing, the Applicant advised that an alternative fire egress path had been documented on further amended plans and that certain errors and omissions had been corrected to the following drawings which were then tendered, unopposed, and entered as Exhibit A:

• DA A2030 Rev D – Landscape calculation

• DA A1203 Rev I – Ground Floor Plan

• DA A1201 Rev G – Basement 02 Plan

• DA A1202 Rev G - Basement 01 Plan

• DA A1207 Rev F – Level 04 Plan

The fire engineered solution

9. Two principal paths of fire egress are proposed in this development. As the stairs are not labelled on the drawings, I will refer to them in sequence from the rear of the site, to the Liverpool Road/Willee Street frontage. In this decision, Stair 1 connects the basement to the ground floor. Stair 2 connects the apartments above, to the ground floor. Stair 3 connects the basement to the Willee Street footpath.

10. In simple terms, the dispute relates to the manner in which paths of travel converge from Stair 1 and Stair 2. Both paths converge at the ground floor where the two stairs share a fire isolated corridor, which then opens in to two ground floor lobbies so as to provide a means of escape to the footpath fronting Liverpool Road and Willee Street.

11. The Applicant acknowledges that the means of escape does not meet the ‘deemed to satisfy’ provisions of the NCC but instead relies on a performance solution which is described in a Fire Engineering DA Supporting letter dated 30 September 2019 (Ex L), tendered on the first day of the hearing. I understand that, in order to achieve the deemed-to-satisfy provisions of clause D.17 of the NCC, Stairs 1 and 2 should discharge directly to a road or open space.

12. However as both Stairs 1 and 2 open in to an area within the confines of the building, being the lobbies, the proposal is not ‘deemed to satisfy’ the provisions of the NCC and so the Applicant’s performance solution is summarised in Table 3, and section 5 of Exhibit L as follows:

• Fast response sprinkler heads to be provided throughout the building

• All doorways throughout the ground floor to be fitted with fail-safe open devices which operate in fire mode, with the exception of commercial tenancies and garbage room

• Doorways separating the two ground floor lobbies shall be self-closing, fire rated doors, and be fitted with viewing panels and swing in both directions

• Non-combustible wall and floor lining shall be provided throughout all corridors and paths of travel throughout the ground floor level

• Signage shall be provided at 3 locations to the effect that no combustibles or other storage is to occur in the lobby area.

13. Additionally, in oral evidence Mr Tatian advised that fire extinguishers would be supplied to the tenancies as they are considered to be a class 6 (retail) use.

14. In his oral evidence, Mr Silva for the Respondent, expressed concern that the implications of achieving the performance solution proposed by the Applicant were not fully understood, and if he were the Principal Certifying Authority (PCA), he would not grant consent until the performance solution was fully detailed or, preferably, a deemed to satisfy solution was found. Furthermore, in Mr Silva’s experience, a deemed to satisfy solution should be addressed at the design stage, and it was inappropriate for a condition of consent to require fire egress to be resolved prior to the issue of a Construction Certificate.

15. The Applicant submits that conditions such as No. 29 and No. 42 in the draft conditions of consent (Ex 6) deal specifically with fire resistance and details of the means of egress paths being confirmed prior to the issuing of a Construction Certificate, and is an appropriate mechanism for compliance to be achieved prior to occupation.

16. The experts were recalled on the second day of the hearing to further assist the Court in understanding the performance solution proposed by the Applicant, and the architectural plans at Exhibit A. In the course of their evidence, Mr Tatian stated that in his mind, there were two options to achieve a deemed to satisfy solution, which includes:

1. Egress from the basement to the area marked Communal Open Space 01, and then via a grassed path along the property boundary adjoining No. 41 Willee Street, or

2. Using the Residential Lobby as a fire-isolated path, with doors fitted with hold-open devices that would close in the event of fire. This would also require the relocation of the door to apartment G01.

17. In response to the description of these options by Mr Tatian, Mr Silva noted that as he was not a fire engineer, it would be helpful to see the options in sketch form, and I granted a short adjournment in order for sketches to be prepared.

18. Following the adjournment, Mr Tatian explained the sketches of the two options that he had developed, and Mr Silva noted that while a full review was required to offer an informed response, he prefers Option 1 of the two options presented to him.

19. The sketch shown in Option 1 removes all egress from the fire isolated stairs in to the lobby. Instead, access from both Stairs 1 and 2 is provided to a common fire-isolated passageway, with access directly outside to the Communal Open Space 01, and then to Willee Street via a side passage external to the building. Mr Tatian advises that the NCC permits two access points to share an exit in this manner. As I understand it, Option 1 would result in the removal of plantings proposed in Exhibit A plans in favour of a clear path, possibly over a grassed area, to Willee Street. The Respondent advises that the plantings are not a requirement of a development control, but were considered by the Council to provide visual amenity.

20. The Respondent submits that the Court should not be satisfied that the means of fire egress is resolved, and so should not grant consent but instead refuse the application pursuant to s 4.15 of the EPA Act as the site is unsuitable for development as currently proposed in the application before the Court, as set out in s 4.15(1)(c), and as it is not in the public interest as set out in s 4.15(1)(e). However, in the event that the Court is minded to grant consent, the Respondent advises, and the Applicant agrees, that I should provide preliminary findings with directions in order for the Applicant to prepare further amended plans, accompanied by a detailed report to evidence a solution that is deemed to satisfy the NCC.

The site and its context

21. The site is located at the boundary between the B2 Local Centre zone and the R2 Low Density Residential zone within the Burwood Local Environmental Plan 2012 (BLEP). The objectives of the B2 Local Centre zone are as follows:

•  To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

•  To encourage employment opportunities in accessible locations.

•  To maximise public transport patronage and encourage walking and cycling.

22. The development the subject of the development application is a residential flat building which, along with commercial premises, is permitted in the B2 zone with consent, and it is agreed between the parties that the proposal is within the maximum floor space ratio permitted by cl 4.4 of the BLEP, and substantially within the maximum permissible height required by cl 4.3 of the BLEP, other than for a portion of the development seeking the benefit of additional height under the provisions of cl 5.6 of the BLEP.

23. A maximum permissible height of 20m applies to the site, as set out in the height of buildings map found at cl 4.3 of the BLEP. The amended plans show a localised exceedance of the maximum permissible height by a maximum dimension of between 200mm and 1100mm over a distance of 9m, for which the Applicant relies on the provisions of cl 5.6 of the BLEP which provides, at subcl (2) that:

Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent.

24. Mr Koprivnjak for the Applicant also explained that the site was identified in Part 3.1 of the Burwood Development Control Plan 2013 (BDCP) as a ‘gateway site’ within the Enfield Local Centre and where the objectives, found at 3.2.1 of the BDCP encourages roofs in the following terms:

O1 To ensure that new buildings:

…

Integrate roof design with the building character and enhances the skyline

…

P33 Roof designs are to be integrated into the overall architectural character of the building and enhance the skyline of the centre or corridor.

P34 Buildings are to have recognisable roof termination or capping distinguishable from the public domain.

…

P36 Roofs must respond to the orientation of the site. For example, the use of eaves and skillion roofs to facilitate to solar access.

25. In the alternative, the Applicant also tendered a written request to justify the contravention of the development standard at cl 4.3 pursuant to cl 4.6 of the BLEP. However, I am satisfied that the proposed exceedance is consistent with the requirements of cl 5.6(3) which is in the following terms:

(3)  Development consent must not be granted to any such development unless the consent authority is satisfied that:

(a)  the architectural roof feature:

(i)  comprises a decorative element on the uppermost portion of a building, and

(ii)  is not an advertising structure, and

(iii)  does not include floor space area and is not reasonably capable of modification to include floor space area, and

(iv)  will cause minimal overshadowing, and

(b)  any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.

26. In forming this opinion of satisfaction, I am assisted by the Statement of Environmental Effects prepared by Mr Neil Kennan of Nexus Environmental Planning (Ex F), and submissions from Ms McCulloch for the Respondent to the effect that the Council sought independent urban design advice prior to the hearing and, as a result of that advice, is satisfied the application demonstrates design excellence in accordance with cl 6.5 of the BLEP, and is also satisfied that the roof feature is consistent with the requirements of cl 5.6(3).

27. The parties agree that the proposed development satisfies the provisions of State Environmental Planning Policy No 65 – Design Quality in Residential Apartment Development (SEPP 65) in all respects. However on the first day of the hearing, I noted that the statement required to be completed by the architect in accordance with cl 50 (1A) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations) was not in a form consistent with the requirements set out in cl 50 (1AB) of the EPA Regulations.

28. Where an application relates to residential apartment development, cl 50 (1A) of the EPA Regulations requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50 (1AB), which include attestations in relation to cl 28 (2)(b) and (c). At the commencement of the second day of the hearing, the Applicant tendered a revised statement (Ex M) that I am satisfied is consistent with the provisions of the EPA Regulations, and so satisfies cl 28(2)(b) of the SEPP 65.

29. The site has a frontage to Liverpool Road, which is a classified road for the purposes of cl 101 of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP). The Applicant submits, and I am satisfied, that the application achieves practicable and safe, vehicular access from Willee Street, and not from Liverpool Road. Furthermore, I consider the letter from PDC Consultants dated 27 September 2019 (Ex H) satisfactorily addresses the design and likely volume of vehicular access, including a B99 Design Vehicle, which is supported by appropriate signage and linemarking (Ex D).

30. While the Respondent’s bundle contains a letter from the RMS (Tab 3) confirming no objections are raised in relation to the application, the Applicant advises me that the scale of the development is not at a size that would require being referred to the RMS in any event, according to Schedule 3 of the Infrastructure SEPP.

31. To satisfy the requirements of subcl (2)(c) of the Infrastructure SEPP, the Applicant tendered technical specifications for an ‘Aeropac’ acoustic air ventilator which I am accept is a reasonable measure to ameliorate potential traffic noise or vehicle emissions arising from the adjacent classified road in apartment 1.02 and 2.02.

32. Pursuant to cl 7 of the State Environmental Planning Policy No.55 – Remediation of land, I am satisfied on the basis of the statement of historical uses on page 10 of Exhibit F that the site is unlikely to be contaminated.

33. The plans before the Court depict encroachments over the public footpath at each level between Level 2-5 in the form of an architectural feature projecting around 500mm from the face of the Liverpool Road/Willee Street facade, and a further projection of greater dimension at the level of the architectural roof feature. I am advised by the Respondent that as the Court stands in the shoes of the Council, it is within power to grant consent notwithstanding this encroachment, and I consider the projections to not impose any obstruction or impediment to the footpath.

34. An awning is also shown over the footpath on section and elevational drawings, but not in plan form. The awning structure appears to be largely consistent with Part 3.2.20 of the BDCP.

Consideration

35. Mr Koprivnjak advises me that the parties have made a concerted effort throughout the proceedings to resolve the issues in contention, and I accept that the iteration of plans and supporting documents have resulted in a single contention being the subject of the hearing.

36. In broad terms, the challenge facing the Applicant is how to provide a safe means of egress in the event of fire from the centre and rear of the site, where Stair 1 and 2 are located, to the road. The options appear to present themselves in one of two ways; either through the lobby of the building, or around its side.

37. As I understand it, a fire solution may be deemed to satisfy the provisions of the NCC, or be an alternative performance solution, or be a combination of deemed to satisfy and performance solution.

38. According to Mr Silva, the Applicant’s performance solution contained in drawings at Exhibit A, brings occupants of the basement and apartments, who are all seeking to escape and may be in distress, in to conflict by converging the paths of travel available to them at a point in the Commercial Lobby outside the commercial lift, a space of approximately 2m x 2m in which 3 doors swing in different directions, and appear to cause the paths of travel through these doors to overlap or conflict.

39. Mr Tatian advises me that D2.20 of the NCC allows a door swing to encroach up to 500mm in to the path of travel and the experts agree that the double leaf door shown between the commercial lift lobby and the commercial lobby may be deleted for fire engineering purposes. While the Court was not further addressed on D2.20, the converging paths of travel and the numerous door swings in this space appears to support the concerns aired by Mr Silva in his oral evidence. Furthermore, Mr Tatian advises that the doors, being fire-rated, are largely solid with viewing panels. In my view this adds to the likelihood of converging paths of travel coming in to conflict when seeking escape as sightlines may be limited by the need for the lobby doors to be fire rated, and while I accept the double leaf door may be deleted, a proposal to further amend plans tends to favour the Respondent’s argument.

35. An occupant of the basement who is seeking to escape has an alternative to exiting through the Commercial lift lobby. He or she may choose to exit the building at the door from the fire isolated passage to the Communal Open Space 01, only to find that, in order to gain refuge at the road, he or she would be required to re-enter the building and escape through the Residential Lobby, past the mailboxes which Mr Tatian advises are considered a fire source requiring a performance solution to mitigate.

36. The Respondent submits that as there are a number of matters requiring further resolution it is not appropriate to rely on conditions of consent to achieve an acceptable fire egress strategy. The Applicant considers that I would be satisfied that conditions such as Condition 29 (Ex 6) are a mechanism by which the PCA can be confident that a complying fire egress path has been achieved. However, in my view Condition 29 is best described as a means by which certification of façade materials, lift and stair construction, ventilation systems and the like may be submitted to the PCA for completeness in the site record, and is not intended to support the further modification of the plans. In this respect, and for the reasons stated above, I accept the Respondent’s position that it would not be in the public interest for consent to be granted prior to a satisfactory fire egress strategy being resolved and where its resolution is likely to require modification to the plans that may impact on adjoining properties in the form of a side passage.

37. The parties acknowledge that the Option 1 sketch developed at [19] is likely to achieve a fire egress strategy that is deemed to satisfy the NCC, and which also would appear to remove the potential conflict in paths of travel and other risks described at [36]-[38].

Directions

43. For the reasons already stated, I am satisfied that the proposed development is capable of achieving a means of fire egress that satisfies the deemed to satisfy provisions of the NCC, and it being otherwise compliant with provisions of the BLEP and BDCP, I am minded to grant consent.

44. However as the parties require my findings in order to further amend the plans and to settle an agreed set of conditions, the Court directs that within 14 days of these orders:

1. The Applicant is to file and serve amended plans that reflect the Option 1 sketch described at [19], including any and all internal amendments to walls, doors and passageways arising from the deletion of the path of travel being through the lobbies.

2. The Applicant is to file and serve a report that describes in detail the strategy, path of escape, and all systems and signage in support of the fire egress path, including any fire engineering solution required to demonstrate compliance to the satisfaction of the Respondent.

3. The Applicant is also to file and serve an amended landscape plan to reflect the final form of plantings, deep soil and the like.

4. The parties are to confer so as to file and serve agreed conditions of consent.

45. In the event that the parties cannot agree terms of any of the conditions, the parties have leave to approach the Registrar to relist the matter before me for short arguments about the conditions at issue.

Addendum made on 8 November 2019

46. Amended plans were filed on 1 November 2019 in accordance with my orders at [44(1)] and [44(3)], and I am satisfied that the egress path, signage and other measures are in a form that warrant the grant of consent.

47. A report that details the fire strategy, path of escape, and all fire safety systems and signage in support of the fire egress path was filed on 1 November 2019 in accordance with my orders at [44(2)].

48. The final and consolidated conditions of consent were filed on 5 November 2019 and I am satisfied that they respond to my findings and so consent to the application should be granted on the basis that the development be carried out in accordance with those Approved Plans and Supporting Documents listed at Condition 1(a).

Orders

49. The Court orders that:

1. Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans identified in Condition 1(a) of Annexure ‘A’.

2. The appeal is upheld.

3. Development consent for Development Application No. 048/2018 for the demolition of existing structures and construction of a six storey mixed use development comprising two commercial premises at ground floor, 17 apartments and two levels of basement car parking for 25 cars and 8 bicycles, is granted, subject to the conditions at Annexure ‘A’.

…………………………

T Horton

Commissioner of the Court

Annexure A (507 KB)

Plans (4.79 MB)

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Amendments

22 November 2019 - See Addendum for final orders at [49] of the judgment.

Decision last updated: 22 November 2019