South Sydney City Council v Hexiva Pty Limited
[2001] NSWLEC 172
•08/02/2001
Reported Decision: 120 LGERA 146
Land and Environment Court
of New South Wales
CITATION: South Sydney City Council v Hexiva Pty Limited [2001] NSWLEC 172 PARTIES: APPLICANT
RESPONDENT
South Sydney City Council
Hexiva Pty LimitedFILE NUMBER(S): 40047 of 2001 CORAM: Talbot J KEY ISSUES: Injunctions and Declarations :- mandatory fire safety orders. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B(1) - 6, s 124
Local Government Act 1993 s 132CASES CITED: ACR Trading Pty Ltd & Anor v Fat-sel Pty Ltd & Anor (1987) 11 NSWLR 67;
Crimmins (as executrix of estate of Crimmins dec'd) v Stevedoring Industry Finance Committee [1999] 167 ALR 1;
Pyrenees Shire Council v Day & Anor (1998) 192 CLR 330;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335DATES OF HEARING: 06/07/01, 26/07/01 DATE OF JUDGMENT:
08/02/2001LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr A M Hawkes (Solicitor)
SOLICITORS
Pike Pike & Fenwick
Mr R Wechsler
SOLICITORS
N/A
JUDGMENT:
IN THE LAND AND Matter No. 40047 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 2 August 2001
Respondent
1. The respondent is the owner of a five storey residential flat building containing bachelor flats over a basement carpark. The building was erected pursuant to a development consent issued in 1962.
2. On 26 May 1998 the council issued a notice of proposed order to the respondent pursuant to s 132 of the Local Government Act 1993. Representations were made by the respondent following which a final order was issued on 24 July 1998.
3. Following further correspondence and argument between the parties the council issued a further notice of proposed order on 13 January 1999. The respondent again took advantage of the opportunity to make representations in regard to the proposed order.
4. On 25 March 1999 a final order was served on the respondent company pursuant to s 121B(1) – 6 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).
5. The respondent submitted a development application in respect of the building on 3 June 1999. The council determined the development application by way of approval on 28 August 1999.
6. The respondent lodged an application for a construction certificate on 13 July 2000 and the certificate was issued on 29 December 2000.
7. These class 4 proceedings were commenced by application filed on 28 March 2001. The applicant claims relief by way of a declaration that the respondent has failed to comply with the order dated 25 March 1999 and an order that the respondent comply with the terms of that order.
8. The approved development of the property, when carried out, will convert existing bachelor apartments into one bedroom apartments and one two bedroom apartment, with balconies to be added to each apartment. The development work has not commenced.
9. Some parts of the fire order have been complied with and the council has agreed with the respondent for time to be allowed in respect of other parts of the order. Otherwise, the company is seeking more time to comply with the terms of the orders and, in particular, to defer some significant aspects until the development works are carried out. No fixed timetable has been established in respect of the development works. In the meantime the existing apartments are occupied by tenants.
The legal position
10. Although the respondent has approached the response to the council’s application as if the proceedings are an appeal against the making of the order, to be determined on the merits, it must nevertheless be understood that these are class 4 proceedings seeking enforcement of orders in circumstances where, notwithstanding the right of an appeal, the respondent has not exercised that right.
11. It is not disputed that the subject orders have not been complied with.
12. Accordingly, the remaining issue in the proceedings is whether the court should exercise its discretion not to make orders requiring the respondent to comply with the strict terms of the council’s order or to make such alternative orders as it thinks fit.
13. Mr Wechsler is a director of the respondent company and he appeared on its behalf. The evidence adduced on behalf of the company includes evidence from Mr Wechsler, himself, and from a consultant fire safety engineer engaged by the company.
14. Apart from some technical matters, Mr Wechsler contends that as the proposed works, pursuant to the development consent, will have a major impact on the means by which the performance criteria specified in the fire orders can be achieved, the time for final compliance with the council’s order should be extended for 500 days or to the time when the re-development of the property is carried out, whichever is the earlier. The argument put on behalf of the company is that it will suffer a financial hardship if it is required to carry out the work in the meantime, either because the work will ultimately become redundant or that the company relies upon the cash flow from rental payments to underwrite the cost of the compliance works.
15. The Court agrees with the submission made on behalf of the council by its solicitor, Mr Hawkes, that the discretion to be exercised by the Court in these class 4 proceedings does not attract an examination of the merits of the requirements of the order made by council for the purpose of substituting the Court’s opinion as to what would or would not be appropriate in terms of the requirements of a fire order. The Court is faced with a finding that there has been a breach of a statutory requirement, the object of which is to protect the occupants of the building and their property in the event of fire.
16. The guidelines for the exercise of the discretionary power conferred on the Court by s 124 of the EP&A Act was outlined by the President of the Court of Appeal in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at p 339 and supplemented by his further observations in ACR Trading Pty Ltd & Anor v Fat-sel Pty Ltd & Anor (1987) 11 NSWLR 67 at p 82. They have been repeatedly applied in this Court as a matter of established principle.
17. The council is seeking the enforcement of a public duty imposed by an act of parliament in the interest of public safety. The interest of the council is deemed to be protective and beneficial, not private or pecuniary, based upon an expectation that persons will comply with the terms of the legislation. The Court is entitled to mollify or refuse relief “where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction” ( Fat-sel at p 82).
18. It is not the task of the Court in class 4 proceedings to re-work the terms of the fire order. The Court has a duty, as much as the council, to ensure that the objectives of the EP&A Act are achieved in the public interest. The public interest in the present circumstances is twofold. Firstly, the Court must be seen to uphold the law enacted by parliament, which in the present case flows through to the second element, namely, to act in the interest of public safety.
19. Any question of hardship must be considered against the prevention of harm to the occupants of the building and other members of the public.
How the Court should exercise its discretion in the present case
20. The starting point for this consideration is a submission made to the council on behalf of the respondent on 9 May 2000. In his written submission the respondent undertook to complete outstanding works in accordance with a schedule and timetable presented to the council.
21. Notwithstanding the effluxion of time since, the council is still prepared to allow the period of time requested in May 2000 calculated from the date of the Court orders. This approach contrasts with that of the respondent who, in some cases, seeks an even greater length of time to comply with the original fire orders than that offered in May 2000. It is true that the respondent informs the Court that certain works are now complete. However, in some of these cases the council contends that minor requirements are still outstanding, generally in respect of certification. Nevertheless, the council is prepared to allow a further period in respect of the completed items to facilitate a period of consultation and clarification to avoid misunderstanding.
23. The items in the original fire order, which the Court has decided to resolve by reference to the undertaking given in May 2000, modified in accordance with the council’s concession, are as follows:-22. No logical reason has been put to the Court whereby it has been persuaded that the time should be extended beyond the timeframe now suggested by council, with several exceptions which I will deal with separately.
- Orders 2.1, 2.2 & 2.3 Immediately
Order 1.2 1 week
Orders 4.2, 4.3 & 4.4 2 weeks
Orders 1.6, 1.10, 4.6, 5.2 & 5.3 8 weeks
Orders 1.1 & 1.3 12 weeks
Orders 1.4 & 1.5 18 weeks
24. Order 1.9 requires that the existing lift shall be fully enclosed by having a specified fire resistant level with all openings protected by self closing fire doors complying with AS1735 – 11. The respondent has agreed to comply with this order within six weeks and the council has accepted the offer. The Court will make an order that the respondent comply with Order 1.9 within six weeks from the date of the Court’s order.
25. The council and the respondent have agreed in respect of works required in lieu of the works specified under Order 1.11. The Court is prepared to rely upon the agreement of the parties and make an order accordingly. Order 1.11 relates to fire isolation of an existing flight of stairs. The parties have settled on an appropriate order to be made in substitution for the original Order 1.11 and the Court proposes to deal with that issue in the way agreed upon by the parties.
26. The respondent has agreed to comply with Order 2.4 within a period of six weeks. The Court will make an order to reflect this agreement.
27. Order 4.1 requires that all entrance doors to units shall be, at least, of solid core construction with smoke seals and fitted with an approved self closing device. In May 2000 the respondent advised the council that “Approximately 8 doors” had been replaced to that date. The concern then expressed was that during the execution of the proposed development works the new doors might be damaged. It is difficult to see why, in the meantime, solid core doors should not be installed for the purpose of constraining the escape of fire from the individual units on the basis that care is taken to protect the doors from damage during the development construction stage, either by temporarily removing them or by some other means. Given that the respondent was prepared to comply within 18 weeks from 9 May 2000 and the council accepts that period from the date of the Court’s order as being reasonable, the Court will order that the respondent comply with Order 4.1 within 18 weeks.
28. Order 4.5 of the council’s order provides that penetrations in walls and ceilings of rooms, that are required to have an FRL, shall be sealed with a material no less fire resistant than the wall or ceiling itself. The concern of council principally relates to the penetration by electrical equipment between the floors. It was the respondent’s contention in May 2000 that the building already complied with this requirement and that certification to that effect could be provided within two weeks. Mr Wechsler has pointed out to the Court that if the penetrations were sealed now the work would have to be re-done when the development works are undertaken. The council’s fire safety assessor, Mr Luu, indicated that, in his view, it would be satisfactory for the penetrations to be sealed in a temporary manner, and that would suffice until the development was complete. The Court is satisfied, therefore, that it is not unreasonable for the respondent to complete the works, even if it is in a temporary way, within two weeks.
29. In May 2000 the respondent informed the council that in its belief hydrants external to the building could be relied upon for compliance with cl E 1.3 of the Building Code of Australia (“the BCA”) which requires that the hydrants be installed throughout the building. Mr Wechsler offered on behalf of the company at that time to arrange for water pressure checks and produce the council verification that the building complies within four weeks.
30. The council is prepared to allow the company a period of six weeks to provide a report from an appropriate qualified consultant certifying whether or not the building can rely on the existing external hydrants. If the report does not so certify then it requires the hydrants to be installed throughout the building within six months.
31. Here again, the company asks the Court to allow a period of 500 days or until the building is re-occupied following execution of the development works before it is required to install the hydrants, if the report provided does not certify that it can rely upon the existing external hydrants. The submission by the company is said to be based on the practical reality that all major works be carried out contemporaneously with the development. Furthermore, Mr Wechsler claims it is unreasonable to deny the respondent income from the building by causing it to be vacated to enable the fire control works to be carried out. The prospect that the installation of hydrants will make it necessary for the present occupants to vacate the premises has not been explained. The Court is prepared to exercise its discretion in favour of the applicant to allow the installation of the hydrants within six months in the event that the report from the consultant demands it.
32. The only remaining requirement of the fire order that needs to be addressed is Order 3.1 which requires that a smoke detection and alarm system be installed throughout the building together with, at least, one thermal type fire detector in each unit adjacent to the inside of the entrance door. It also requires that the detector shall be interconnected with the corridor alarm system. Here again, Mr Wechsler contends on behalf of Hexiva Pty Limited that part of the works required to achieve compliance with Order 3.1 will be made redundant by the proposed development. He suggests that a practical intermediate step would be to install battery operated smoke alarms in lieu of hard wired equivalents as a temporary means of compliance with the intention of Order 3.1, pending the execution of the proposed works. He further states that battery operated smoke alarms are widely used throughout Australia for the above purpose. The company agrees to install battery operated smoke alarms in each sole occupancy unit and in the corridors within 18 weeks of the date of the Court’s order. If, after 500 days, the building is still occupied then the respondent will comply with Order 3.1.
33. The works proposed in Order 3.1 are part of the works identified by the council’s fire safety assessor as being required to ensure that the building is provided with adequate fire safety provisions to prevent fire, suppress fire, prevent the spread of fire and ensure the safety of persons in the event of a fire. The respondent’s consulting fire safety engineer, Kenneth Bernie, believes that battery operated smoke alarms will be satisfactory on the understanding that the development work commences within 18 months. He agrees, however, that it will be necessary for a formal inspection of the battery to take place every three months. The issue for the respondent appears to be the cost of fixing conduits to the existing ceilings and the aesthetic affect in the meantime, pending completion of the development works.
34. Mr Luu is concerned that a battery operated system is not reliable while it is not linked to adjoining units and the permanent power supply.
35. Mr Wechsler has pointed out that the cost of cabling the building will be significantly reduced if the hard wired detectors are installed during the execution of the works pursuant to the development consent. He says there are, at present, no suspended ceilings in the building. As a result the cabling throughout the building would be required to be placed in conduit secured to concrete and masonry. If this work is programmed with works pursuant to the development consent, Mr Wechsler claims there would be a minimal labour cost component in the cabling. He estimates the cost saving to be approximately $14,000.
36. Mr Wechsler relied on his own expertise to submit on behalf of the company that the amount of combustible material in the building is limited, thereby, reducing the risk to the occupiers. He claims that the reason for non-compliance with the statutory requirements is that the length of certain corridors results in a four to six second increase in egress time. This submission in itself may be reasonable, however, the consequences of failing to provide an integrated detection and alarm system could nevertheless be fatal.
37. Mr Wechsler refers to and relies upon fire modelling using the US standard procedure which, he says, shows that in the prevailing circumstances of small size sole occupancy units with limited combustible material on hand any fire self extinguishes after approximately 20 minutes. This evidence neither explains the US standard or how it is to be applied in this present case. In the absence of a proper risk analysis of the warning system proposed by the respondent as the alternative to the requirements of the council’s order, the Court is thereby left to ponder on what damage or loss could be caused in that vital 20 minutes.
38. In Crimmins (as executrix of estate of Crimmins dec’d) v Stevedoring Industry Finance Committee [1999] 167 ALR 1, McHugh J commented at par 166 that power vested by statute in a public authority may give to it such a significant and special measure of control over the safety of the personal property of particular persons as to oblige it to exercise its powers to avert danger or to bring the danger to the knowledge of others. He noted that the powers of the council, with respect to fire protection, were identified as being in this category in Pyrenees Shire Council v Day & Anor (1998) 192 CLR 330. Although McHugh J and the members of the High Court in Pyrenees were addressing a different issue, nevertheless, their observations are apposite to the manner in which the Court should have regard to the powers and responsibilities of a council in respect of matters relating to fire prevention and safety. The fact that works can be carried out in a more economical way by delaying the implementation of the orders for the convenience of the building owner is contextually irrelevant. It is proposed, therefore, that the respondent be required to comply with Order 3.1 within the period of 18 weeks nominated by the council.
39. In the exercise of its discretion to make such orders as it sees fit, the Court is prepared to allow a reasonable time for the respondent to comply with the outstanding requirements of the council’s order. The times allowed vary according to the particular order. They are generally in line with the council’s position and reflect the practicalities of carrying out the work required. Significant weight has been placed upon the submissions made to the council by the respondent on 9 May 2000.
Costs
40. Mr Wechsler made a submission on behalf of the company that the council is not entitled to an order for costs as it was necessary for Hexiva Pty Limited to defend the proceedings in order to resolve disputes associated with a number of paragraphs in the order. This contention is untenable in the light of the failure of the company to appeal against the orders made by the council, as was its right, and furthermore, by its failure to compromise those matters which it finally agreed to accommodate until the litigation was upon it.
41. Although it is not necessarily to the council’s credit that it deferred the pursuit of these proceedings while the development application and application for a construction certificate remained extant, the company, on the other hand, has not provided any realistic expectation that the works will be carried out within, what the Court believes, is a reasonable time having regard to the potential gravity of the consequences in the event of an unexpected fire. The Court is particularly concerned that there is no fixed, reliable timetable for the carrying out of the development.
42. Mr Wechsler contends that the council has not demonstrated that the occupants are, or were, in real danger of fire. If this is a correct assertion then neither Mr Luu, on behalf of the council, or even Mr Bernie, on behalf of the respondent, were heard to support it. Furthermore, the Court is not prepared to acquiesce in a situation where a building continues to be occupied without the best available protection for its tenants.
43. The intransigence of the respondent ultimately forced the council’s hand, whereby it had no real alternative in the pursuit of its public duty other than to seek orders for compliance with the original orders from this Court.
44. In those circumstances the council is entitled to an order for costs.
45. Having regard to the whole of the circumstances and after taking into account the evidence of the witnesses called by both parties and the written and oral submissions made, the Court proposes to make formal orders as follows:-Orders
- 1. A declaration that the respondent has failed to comply with an order dated 25 March 1999 served upon it by the applicant pursuant to s 121B(1) - 6 of the EP&A Act with respect to the premises known as 5 Tusculum Street, Potts Point.
- 2. That the works required to be undertaken within premises known as 5 Tusculum Street, Potts Point by the following paragraphs of the Fire Safety Order issued by South Sydney City Council under s 121B(1) - 6 of the EP&A Act and dated 25 March 1999 be undertaken by the respondent within the periods specified below, such periods to be calculated as from the date of this order:-
- Par 1.1 12 weeks
Par 1.2 1 week
Par 1.3 12 weeks
Par 1.4 18 weeks
Par 1.5 18 weeks
Par 1.6 8 weeks
Par 1.9 6 weeks
Par 1.10 8 weeks
Par 2.1 Immediately and to be maintained at all times
Par 2.2 Immediately and to be maintained at all times
Par 2.3 Immediately and to be maintained at all times
Par 2.4 6 weeks
Par 3.1 18 weeks
Par 4.1 18 weeks
Par 4.2 2 weeks
Par 4.3 2 weeks
Par 4.4 2 weeks
Par 4.5 2 weeks
Par 4.6 8 weeks
Par 5.2 8 weeks
Par 5.3 8 weeks
- (a) Remove the existing fire door currently positioned at the top of the stair flight connecting the basement carpark and the exit door at ground floor level (fire exit discharge level);
(b) Provide a fire door set complying with AS1905 to the existing opening at the bottom of the stair landing;
(c) Provide a fire door set complying with AS1905 to separate the basement carpark from the laundry and the required fire isolated stair of the carpark level (where the existing steel gate is currently positioned);
(d) Provide additional signage to direct building occupants to the final exit door of the building;
(e) Provide additional signage to the back of the new fire door at the bottom of the stairs to indicate that it is not an exit door;
(f) Remove all storage materials inside the fire stair;
(g) Submit to council an alternative building solution to determine equivalence with the Deemed to Satisfy Clause D2.4 of the BCA, in accordance with the assessment methods specified in A0.9 of the BCA; and
(h) Install a smoke door to the laundry entry.
5. That within 21 days of completion of the works the subject of these orders the respondent shall furnish or cause the council to be furnished with a “Fire Safety Certificate” in relation to each essential fire or other safety measure included in the schedule to the aforesaid Fire Safety Order dated 25 March 1999.4. That in respect of the requirements imposed on the respondent by Order 5.1 dated 25 March 1999 the respondent shall provide to council within six weeks from the date hereof a report from an appropriately qualified consultant certifying whether or not the building can rely on the existing external hydrants for compliance with the requirements of the BCA. If the report does not certify that the building can rely on the existing external hydrants, then the hydrants shall be installed throughout the building in accordance with requirements of cl E1.3 of the BCA within six months from the date hereof.
6. That at the same time as furnishing the council with a Fire Safety Certificate under Order 5 hereof the respondent shall furnish or cause the Commissioner of New South Wales Fire Brigades to be furnished with a copy of the Certificate(s) to be given to council pursuant to Order 5 hereof and shall prominently display a further copy thereof in the premises known as 5 Tusculum Street, Potts Point in a location specified by South Sydney City Council.
8. The exhibits may be returned.7. That the respondent pay the applicants costs.
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