Perpetual Trustee Company Limited trading as Perpetual Trustee Company Limited v The Council of the City of Sydney

[2023] NSWLEC 1722

Land and Environment Court

New South Wales

Medium Neutral Citation:

Perpetual Trustee Company Limited trading as Perpetual Trustee Company Limited v The Council of the City of Sydney [2023] NSWLEC 1722

Hearing dates:

Conciliation conference on 12 September 2023, 3 November 2023 and 15 November 2023

Date of orders:

30 November 2023

Decision date:

30 November 2023

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Control Order No FIRE/2023/11, issued to the Applicant on 23 March 2023 in relation to 135 King Street, Sydney (being Lot 152 Deposited Plan 792149), which was modified on 20 September 2023, is further modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 in the terms set out in Annexure A.

Catchwords:

DEVELOPMENT CONTROL ORDER – fire safety – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Sch 5 Pt 2, cll 23, 27

Environmental Planning and Assessment Regulation 2000, s 162D

Environmental Planning and Assessment Regulation (Development Certification and Fire Safety) Regulation 2021, s 84, Sch 1, cl 2

Land and Environment Court Act 1979, ss 17, 34

Local Government Act 1919, Ordinance 70

Texts Cited:

Standards Australia, Australian Standard AS 2419.1-2005, 2005

Australian Building Codes Board, National Construction Code 2022 Volume One - Building Code of Australia, 2022

Fire & Rescue NSW, Performance Based Design Brief, 2023

Category:

Principal judgment

Parties:

Perpetual Trustee Company Limited trading as Perpetual Trustee Company Limited (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
B Salon (Solicitor) (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent

File Number(s):

2023/124297

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant filed an appeal pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Development Control Order No. FIRE/2023/11 (DCO) issued on 23 March 2023 by The Council of the City of Sydney (Council) in relation to the premises known as 135 King Street, Sydney (Site):

1. The Site is legally known as Lot 152 in Deposited Plan 792149 and consists of a 29-storey mixed use building with a basement carpark.

2. The Applicant has standing to commence the proceedings pursuant to s 8.18(1) of the EPA Act as the DCO was issued to the Applicant as the registered proprietor of the Site.

3. The DCO is a “Fire Safety Order” pursuant to s 9.34(1)(b) of the EPA Act, and was made in accordance with Item 1 of the Table in Pt 2 of Sch 5 to the EPA Act, being a Fire Safety Order that requires the recipient “to do…things for the purposes of ensuring or promoting adequate fire safety or fire safety awareness”. In particular, page 4 of the DCO provides that “the building’s existing fire hydrant system shall be upgraded to comply in all respects with the requirements of the Building Code of Australia (BCA) and AS2419-2017”.

4. These proceedings were commenced on 18 April 2023 which is within the time period set out in s 8.18(3)(a) of the EPA Act.

5. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

6. The Court has power or function to determine the matter pursuant to s 8.18(4) of the EPA Act which provides:

8.18 Appeals concerning orders

…

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

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or …

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 12 September 2023, 3 November 2023 and 15 November 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court modifying the DCO pursuant to s 8.18(4)(b) as follows:

1. Update the Fire Safety Schedule to include the Fire Engineering Report (FER).

2. Update the “Specified Works” in accordance with the works set out in the FER and extend the “Compliance Period” for the Applicant to complete these works to 30 January 2025 pursuant to Sch 5 cl 27 of the EPA Act.

3. Amend the “reasons for giving the Fire Order” section to remove any references to the clause 162D notice, and make clear that the building is compliant with fire safety standards applicable at the time it was constructed.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 8.18(4)(b) of the EPA Act to modify the DCO. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied, as set out below.

5. The parties agreed that the issue of the DCO did not arise from any non-compliance on the part of the Applicant. Instead, the DCO (particularly the request to upgrade the fire hydrant system) arose from a change in Fire & Rescue NSW’s (FRNSW) operations as FRNSW no longer uses portable relay pumps for firefighting on upper levels.

History of the Site

6. The construction of the mixed use building on the Site was completed in 1987. The fire hydrant system was designed and installed in accordance with the applicable fire safety standards at the time, being Ordinance 70 of the Local Government Act 1919.

7. On 14 December 2020, the Council received a Notice of a Significant Fire Safety Issue from a private certifier pursuant to cl 162 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000) (the 162D Notice).

8. The 162D Notice identified a significant fire safety issue being that “The Fire hydrant system does not comply with BCA E1.3.2019 …The fire hydrant landing valves are located outside of the fire isolated stairways”.

9. On 12 October 2021, the Respondent issued a Fire Safety Order (2021 Order) which required the Applicant to submit a fire safety report that evaluates the performance of the existing fire hydrant system against the performance standards of AS 2419.1-2005.

10. The 2021 Order was revoked by Council in the course of these proceedings on 12 September 2023.

11. On 22 June 2022, Council issued a second Fire Safety Order (2022 Order) which required the Applicant to upgrade the existing fire hydrant system to comply with the requirements of the BCA clause E1.32019 and AS 2419.1-2005.

12. On 8 September 2022, the Council revoked the 2022 Order pursuant to cl 23 of Sch 5 of the EPA Act. In the Notice of Revocation the Council stated:

“[T]he city has referred the matter to Fire & Rescue NSW (FRNSW) for comment. As we are yet to receive a response from FRNSW and the time given to appeal the Order expires on 15 September 2022 the City has decided to revoke the Fire Safety Order at this time.”

13. On 2 November 2022, the Respondent received a letter from FRNSW which stated inter alia:

1. FRNSW note that an internal fire hydrant booster assembly is installed on Level 23 of the building.

2. Ordinance 70 and Australian Standard (AS) 2419.1-1994 permitted the use of an internal booster connection for portable relay pumps to be installed in buildings above 75 metres or as required by the regulatory authority, to provide a pressurized water source for firefighting operations on the upper levels of the building.

3. To use these fire hydrant systems, FRNSW is required to transport portable pumps to the premises to provide a pressurized water source for firefighting operations on the upper levels of these buildings. In this regard, the use of portable relay pumps no longer suits the operational needs of FRNSW.

……

FRNSW recommends that:

1. Council upgrades the hydrant system to meet the requirements of the current AS 2419.1 for an equivalent new building.”

   14. On 23 March 2023, the Council issued the DCO. The parties agree that the DCO, particularly the request to upgrade the fire hydrant system, stems from a change in FRNSW’s operations: FRNSW no longer uses portable relay pumps for firefighting on upper levels:

   1. To use the existing fire hydrant systems on the site, FRNSW is required to transport portable pumps to the Site to provide a pressurised water source for firefighting on the upper levels of the building.

   2. Council received notice from FRNSW that due to the changing operational and work health and safety requirements of the Fire Brigade, FRNSW will no longer be transporting portable pumps to the upper levels of buildings to boost hydrant pressures.

   3. The result of the decision by FRNSW is that the existing provisions for fighting fires in the upper levels of the Site (a high rise building above 75m in height) are inadequate to prevent, or suppress fire or prevent the spread of fire.

   15. During the s 34 Conciliation Conference process, the parties, in consultation with FRNSW, finalised a performance solution capable of satisfying the operational requirements of FRNSW by engaging in FRNSW’s Performance Based Design Brief process (PBDB process).

   16. The PBDB process involved the submission of a Fire Engineering Brief Questionnaire for FRNSW’s feedback, which would then be addressed by way of a (final) Fire Engineering Report (FER).

   17. The FER, Revision 2 dated 14 November 2023 by Voss Grace + Partners, reference S23171, as agreed by the parties and FRNSW, is under tab 1 to the s 34 Agreement Bundle filed 15 November 2023.

   18. The proposed Modified Order is Annexure A to the s 34 Agreement, and the proposed Modified Order amended with tracking is Annexure B.

   19. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, and for the reasons set out above.

   20. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3)(1) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I note that the Council requires a “Final Fire Safety Certificate” to meet the requirements of Part 11 s 84 and Sch 1 s 2 of the Environmental Planning and Assessment Regulation (Development Certification and Fire Safety) Regulation 2021 be delivered by the Applicant on completion of the works as set out in the DCO as modified by this judgment. I shall modify the DCO in accordance with the agreement between the parties pursuant to s 8.18(4)(b) of the EPA Act.

   21. The Court notes that it is common ground between the parties that the issue of the DCO did not arise from any non-compliance on the part of the Applicant. Instead, the DCO (particularly the request to upgrade the fire hydrant system) arose from a change in FRNSWs operations as FRNSW no longer uses portable relay pumps for fire fighting on the upper levels of high-rise buildings.

   22. The Court orders:

   1. The appeal is upheld.

   2. Development Control Order No FIRE/2023/11, issued to the Applicant on 23 March 2023 in relation to 135 King Street, Sydney (being Lot 152 Deposited Plan 792149), which was modified on 20 September 2023, is further modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 in the terms set out in Annexure A.

M Peatman

Acting Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 30 November 2023