Nechi Holdings Pty Ltd v Sydney City Council

[2006] NSWLEC 428

Land and Environment Court

of New South Wales

CITATION:

Nechi Holdings Pty Ltd v Sydney City Council [2006] NSWLEC 428

PARTIES:

APPLICANT
Nechi Holdings Pty Ltd

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10170 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Fire safety

LEGISLATION CITED:

South Sydney Local Environmental Plan 1998
Environmental Planning and Assessment Act 1979

DATES OF HEARING:

05/07/2006

EX TEMPORE JUDGMENT DATE:

07/05/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Creighton, agent

RESPONDENT
Mr M Fozzard, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

5 July 2006

10170 of 2006 Nechi Holding Pty Ltd v
Sydney City Council



JUDGMENT

1 In regard to an appeal against fire safety requirements placed on the premises at 81-83 Oxford Street, Darlinghurst by the council.

2 On 8 December 1995 the council granted development consent for the use of the first floor as a restricted premises, and to erect an illuminated under awning sign. On 6 February 2002 the council granted development consent to regularise the use of the second floor of the building as a sex on premises venue.

3 On 18 January 2005 a complying development certificate was issued for minor fitout works and use as a bank for the ground floor.

4 Number 81-83 Oxford Street, Darlinghurst is located within the local government area of the City of Sydney and comprises two lots known as Lot 3 in DP 913672, and Lot 4 in DP 730653. The site consists of a three storey building built to the boundary on all sides with front and rear access.

5 The site has a frontage of approximately 10 m, depth of approximately 32 m, and site coverage of approximately 320 sq m.

6 The site is located on the southern side of Oxford Street, Darlinghurst and is situated between Riley Street and Crown Street, Darlinghurst. The surrounding land use is predominantly ground floor shops and first floor shops and residences.

7 The South Sydney Local Environmental Plan 1998 applies to the site, and the site is within zone No. 3 Business Zone under the Local Environmental Plan. Permissible uses under this zone include commercial premises and restricted premises.

8 Order 6 in the table within s 121B(1) of the Environmental Planning and Assessment Act provides that in circumstances where provisions for fire safety and fire safety awareness are not adequate to prevent fire, suppress fire, or prevent the spread of fire, or ensure, or promote the safety of persons in the event of fire, or, maintenance or use of premises constitutes a significant fire hazard, then a council may give an order to the owner of the premises to do or refrain from doing such things as are specified in the order so as to ensure or promote adequate fire safety, or fire safety awareness.

9 On 5 February 2004 the respondent’s fire safety officer inspected the site. On 22 March 2004 the respondent served a notice of intention to give an order on the applicant pursuant to s 121H of the Environmental Planning and Assessment Act. By a letter dated 29 March 2004 the applicant’s building consultant made representations to the respondent as to why an order should not be given.

10 On 19 July 2004 the respondent served a notice of intention to give an order on the applicant pursuant to s 121H of the Act. On 24 August 2004 the respondent served the order on the applicant pursuant to s 121B of the Act, and on 17 November 2005 the respondent’s fire safety officer inspected the site.

11 On 23 December 2005 the respondent served a further notice of intention to give an order on the applicant pursuant to s 121H of the Act, and also notified the applicant that it had revoked the 2004 order. On 6 February 2005 the respondent served an order on the applicant pursuant to s 121B of the Environmental Planning and Assessment Act.

12 At the time the issues of dispute in the matter were:

1. Works in Order No. S030410/RAS for an additional exit to be provided needed to be clarified between the applicant and council in clause 1.01 of the order;
2. Whether the existing stairways are already a non-slip surface being rough finished concrete and thus not requiring any further treatment in accordance with clause 1.04;
3. The works referred to in clause 1.05 relating to the discharge from exits need to be further defined to enable compliance with the order. Any reconstruction to the steps in Riley Street will impose a significant alteration to the premises and cost to the applicant;
4. In relation to the works referred to in clause 4.01 relating to the prevention of the spread of fire it is suggested that the works will impose a significant hardship on the applicant and the tenants of the building. Alternative arrangements, including the carrying out of other works in the fire order, will achieve compliance with the objectives of the Act and the Building Code of Australia. Furthermore, given the layout of the first and second floor the need for a 60 minute fire resistance ceiling is not necessary to protect life or harm to persons;
5. In relation to the wall wetting sprinklers in the ground level rear foyer referred to in the fire safety schedule and in clause 1.05, clarification is necessary to determine if there are other ways of achieving compliance with the objectives of the Act and the Building Code of Australia.

13 During negotiations since that time the parties have resolved all issues except Issue 4, and it relates to the ability of the fire stair to withstand fire sufficiently to allow escape of persons from the premises in the event of an emergency. Apparently this relates to the question of whether or not the structural timbers that hold up the floors of the building are socketed into the masonry wall of the fire stair, or whether or not they are carried separately, either by corbelling of the brickwork, or by bearers on the outside of the fire stair, such that if the floor burnt and the timbers collapsed, it would not affect the fire stair and its integrity.

14 The factual situation of the construction has not been ascertained at the time of the hearing, and the parties have prepared a draft condition to be inserted into the order that would allow for both eventualities, one being that if the timbers are socketed into the structural wall of the fire stair then the ceilings will have to have a 60 minute resistance to the spread of fire in order to protect the floor timbers. If in fact the timbers do not carry through into the fire stair wall then the ceiling fire protection would not be necessary.

15 There were no objectors to the consent orders. It seems to me that the draft conditions prepared by the parties do cover all likely circumstances and that the agreement reached between the parties is something that the Court can agree to.

16 Therefore the orders of the Court by consent of the parties are:

1. The appeal is upheld.
2. Pursuant to S.121ZK of the Environmental Planning & Assessment Act 1979, the terms of the respondent's order dated 6 February 2006 are modified by:-
a) deleting term 4.01 and substituting the following instead:-
"4.01. Incipient Spread Ceilings

1) That ceilings having a 60 minutes resistance to the incipient spread of fire to the space above itself shall be provided above all floors and underneath the roof of the existing building, subject to the requirements of Clause A2.5 of the Building Code of Australia 2005.
2) That, as an alternative to providing ceilings pursuant to (1) above, the buildings floors and any structural part of them shall be confirmed, as being constructed so that at the junction of the floor and stair shaft, the floor or part will be free to sag or fall in a fire without causing structural damage to the stair shaft.
3) That appropriate documentation and certification is to be provided from a suitably qualified person or company attesting to compliance with (1) or (2) above.

4) That in the case that the floors are not load bearing upon the stair shaft as in (2) above, that item 10 of the Fire Safety Schedule shall be thereafter deleted.

3. Each party is to pay its own costs of the appeal
4. The exhibits are all retained on the Court’s file.

___________________

K G Hoffman
Commissioner of the Court
Rjs/ljr