THE ANGLICAN SCHOOLS COMMISSION (INC) and CITY OF PERTH
[2015] WASAT 120
•28 OCTOBER 2015
THE ANGLICAN SCHOOLS COMMISSION (INC) and CITY OF PERTH [2015] WASAT 120
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 120 | |
| HEALTH ACT 1911 (WA) | |||
| Case No: | CC:1081/2015 | 23 AND 24 SEPTEMBER 2015 | |
| Coram: | MR P DE VILLIERS (MEMBER) | 28/10/15 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | 1. The Certificates of Approval issued by the City of Perth are to be varied to accord with the maximum number of persons for each 'public building' established in the Alternative Solution 2. A further Certificate of Approval shall be issued limiting the number of persons to be accommodated in all of the areas of the building used by the school to 490 persons | ||
| B | |||
| PDF Version |
| Parties: | THE ANGLICAN SCHOOLS COMMISSION (INC) CITY OF PERTH |
Catchwords: | Public building/s Certificates of approval under the Health Act 1911 (WA) Definition of a 'public building' Prevention of overcrowding of public buildings Maximum number of persons a public building/s may be used to accommodate Providing for the health and safety of persons using public buildings What is the meaning of more than one exit Exercise of discretion where a public building/s has one exit Potential safety and health risks Fire Engineered Solution Potential blocking of a single stairway |
Legislation: | Building Act 2011 (WA) Building Code of Australia, Pt A1.1 Building Regulations 2012 (WA), Pt 14 City of Perth Planning Scheme No 2 Health (Public Buildings) Regulations 1992 (WA), reg 6(2), reg 14(5), reg 15 Health Act 1911 (WA), s 36, s 36(1), s 173, s 178, s 178(1), s 179, s 180 Metropolitan Region Scheme |
Case References: | Nil |
Summary | In October 2014, the Perth Anglican Grammar School, previously known as Murdoch College sought to move from their Murdoch facilities to central Perth and applied for approval from the City of Perth to use the premises at 5054 William Street, Perth. This involved a change of use of the building from 'Office' to 'Education' use.,The City of Perth duly granted planning consent, a building licence and an occupancy certificate for the school at the premises. However, in issuing Certificates of Approval under the Health Act 1911 (WA), the City stipulated a 'maximum accommodation' of 50 persons in the 'public building area' on each of the six floors being utilised by the school. This was determined on the basis that the building had a single stairway. The result was to effectively constrain the maximum number of persons within the building to 300 rather than the 490 the school was seeking.,The school subsequently applied to the Tribunal for a review of these decisions.,The issues in the review were agreed by the parties as follows:,(1) What is the public building/s in relation to which the Certificate under s 178 of the Health Act 1911 should be issued?,(2) What is the correct and preferable determination of the maximum number of persons the building/s may be used to accommodate subject to consideration of:,(a) What is the meaning of more than one exit under reg 14(5) of the Health (Public Buildings) Regulations 1992 (WA)?,(b) If it is established under (a) that the building/s has 'one exit', should the Tribunal, in the circumstances of this particular case, approve occupancy exceeding 50 persons (and if so, how many)?,In regard to the first issue in contention, 'What is the public building/s in relation to which the Certificate under s 178 of the Health Act 1911 should be issued?' the Tribunal found that certificates should be issued for areas within the building within which people assemble for education purposes. Given that the legislative mechanism to do so was to issue a Certificate of Approval under s 178 of the Health Act 1911, the effect of the issuing of such certificates would be to designate each area where people assemble within the building, a 'public building' under the provisions of the Health Act 1911.,In addition, the Tribunal found that the whole area of the building used by the school should also be designated a public building to give effect to the need for ongoing inspection of lobbies, exits, doors, gates, corridors, passages, aisles, stairways or gangways and the application of other relevant provisions of the Health Act 1911. This will require the issue of a further Certificate of Approval under s 178 of the Health Act 1911for all of the areas of the building used by the school.,In regard to the second issue in contention, 'What is the meaning of more than one exit under reg 14(5) of the Health (Public Buildings) Regulations 1992', the Tribunal found that considering the facts of this case, and given the single stairway, the building the subject of this review had one 'exit'.,In regard to the final issue in contention, 'Should the Tribunal in the circumstances of this particular case approve occupancy exceeding 50 persons (and if so how many)?', the Tribunal found that the applicant had provided credible evidence that a single stairway would not provide an unacceptable risk to the proposed number of persons assembled for educational purposes within the building the subject of this review.,In the circumstances of this case, the Tribunal accepted that figures used by the Fire Safety Engineer in establishing the Alternative Solution to provide safe egress from each floor of the building in case of fire, provided acceptable limits in ensuring the health and safety for persons in the areas within the building/s where persons assemble for educational purposes. In addition, the Tribunal found that an overall limit on the number of persons using all the areas of the building occupied by the school should be established.,For these reasons the Tribunal made orders varying the Certificates of Approval issued by the City of Perth to accord with the maximum number of persons for each floor established in the Alternative Solution and required the issuance of a further Certificate of Approval for all of the areas of the building used by the school. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH ACT 1911 (WA) CITATION : THE ANGLICAN SCHOOLS COMMISSION (INC) and CITY OF PERTH [2015] WASAT 120 MEMBER : MR P DE VILLIERS (MEMBER) HEARD : 23 AND 24 SEPTEMBER 2015 DELIVERED : 28 OCTOBER 2015 FILE NO/S : CC 1081 of 2015 BETWEEN : THE ANGLICAN SCHOOLS COMMISSION (INC)
- Applicant
AND
CITY OF PERTH
Respondent
Catchwords:
Public building/s Certificates of approval under the Health Act 1911 (WA) Definition of a 'public building' Prevention of overcrowding of public buildings Maximum number of persons a public building/s may be used to accommodate Providing for the health and safety of persons using public buildings What is the meaning of more than one exit Exercise of discretion where a public building/s has one exit Potential safety and health risks Fire Engineered Solution Potential blocking of a single stairway
Legislation:
Building Act 2011 (WA)
Building Code of Australia, Pt A1.1
Building Regulations 2012 (WA), Pt 14
City of Perth Planning Scheme No 2
Health (Public Buildings) Regulations 1992 (WA), reg 6(2), reg 14(5), reg 15
Health Act 1911 (WA), s 36, s 36(1), s 173, s 178, s 178(1), s 179, s 180
Metropolitan Region Scheme
Result:
1. The Certificates of Approval issued by the City of Perth are to be varied to accord with the maximum number of persons for each 'public building' established in the Alternative Solution
2. A further Certificate of Approval shall be issued limiting the number of persons to be accommodated in all of the areas of the building used by the school to 490 persons
Summary of Tribunal's decision:
In October 2014, the Perth Anglican Grammar School, previously known as Murdoch College sought to move from their Murdoch facilities to central Perth and applied for approval from the City of Perth to use the premises at 5054 William Street, Perth. This involved a change of use of the building from 'Office' to 'Education' use.
The City of Perth duly granted planning consent, a building licence and an occupancy certificate for the school at the premises. However, in issuing Certificates of Approval under the Health Act 1911 (WA), the City stipulated a 'maximum accommodation' of 50 persons in the 'public building area' on each of the six floors being utilised by the school. This was determined on the basis that the building had a single stairway. The result was to effectively constrain the maximum number of persons within the building to 300 rather than the 490 the school was seeking.
The school subsequently applied to the Tribunal for a review of these decisions.
The issues in the review were agreed by the parties as follows:
- (1) What is the public building/s in relation to which the Certificate under s 178 of the Health Act 1911 should be issued?
(2) What is the correct and preferable determination of the maximum number of persons the building/s may be used to accommodate subject to consideration of:
- (a) What is the meaning of more than one exit under reg 14(5) of the Health (Public Buildings) Regulations 1992 (WA)?
(b) If it is established under (a) that the building/s has 'one exit', should the Tribunal, in the circumstances of this particular case, approve occupancy exceeding 50 persons (and if so, how many)?
In addition, the Tribunal found that the whole area of the building used by the school should also be designated a public building to give effect to the need for ongoing inspection of lobbies, exits, doors, gates, corridors, passages, aisles, stairways or gangways and the application of other relevant provisions of the Health Act 1911. This will require the issue of a further Certificate of Approval under s 178 of the Health Act 1911for all of the areas of the building used by the school.
In regard to the second issue in contention, 'What is the meaning of more than one exit under reg 14(5) of the Health (Public Buildings) Regulations 1992', the Tribunal found that considering the facts of this case, and given the single stairway, the building the subject of this review had one 'exit'.
In regard to the final issue in contention, 'Should the Tribunal in the circumstances of this particular case approve occupancy exceeding 50 persons (and if so how many)?', the Tribunal found that the applicant had provided credible evidence that a single stairway would not provide an unacceptable risk to the proposed number of persons assembled for educational purposes within the building the subject of this review.
In the circumstances of this case, the Tribunal accepted that figures used by the Fire Safety Engineer in establishing the Alternative Solution to provide safe egress from each floor of the building in case of fire, provided acceptable limits in ensuring the health and safety for persons in the areas within the building/s where persons assemble for educational purposes. In addition, the Tribunal found that an overall limit on the number of persons using all the areas of the building occupied by the school should be established.
For these reasons the Tribunal made orders varying the Certificates of Approval issued by the City of Perth to accord with the maximum number of persons for each floor established in the Alternative Solution and required the issuance of a further Certificate of Approval for all of the areas of the building used by the school.
Category: B
Representation:
Counsel:
Applicant : Ms B Moharich
Respondent : Mr G Castledine
Solicitors:
Applicant : Moharich and More
Respondent : Castledine Gregory
Case(s) referred to in decision(s):
Introduction
1 In issuing Public Building Certificates of Approval under the Health Act 1911 (WA) (Health Act) for St George's Anglican Grammar School (also known as Perth Anglican Grammar School) in William Street, Perth, the City of Perth (respondent, City, or Council) restricted the maximum number of persons to 50 persons on each of the six floors being utilised by the school. This restriction was applied as the building had a single stairway. This limited the overall number of people permitted in the building to 300 rather than the 490 the school was seeking.
2 The substantive question which arises in the review is whether, given the circumstances of this particular case, the Tribunal should exercise discretion to approve an increase in the number of people permitted in the building.
Background
3 On 21 October 2014, DW Architects made, on behalf of the Perth Anglican Grammar School, an application to the City of Perth seeking approval for a change of use of premises at 5054 William Street, Perth from 'Office' to 'Education' for the use by the Perth Anglican Grammar School. Plans supporting the application were submitted to the City on 24 October 2014.
4 The school, which at that time was known as Murdoch College and located in Murdoch, was anticipated to have 32 staff and 220 students in the first year, growing to around 40 staff and 450 students in the future at the new premises.
5 The plans submitted with the application indicated that the school would occupy the basement, part of the ground floor and all of the remaining four floors (first, second, third and fourth storeys) and a roof deck. The remainder of the ground floor contains an existing bank tenancy facing William Street and a car parking area at the rear, accessed from a laneway located on the adjoining property to the north.
6 In general terms, the distribution of school functions on the various floors was proposed to be as follows:
• Basement: Science, Music and Drama.
• Ground Floor: Foyer and Reception.
• First Floor: Staff and Administration.
• Second and Third Floors: Five teaching spaces, a breakout student lounge and staff preparation room.
• Fourth Floor: Art Room, Library, Café style dining area and associated kitchen facilities.
• Roof Deck: Recreation deck.
7 The building contains a linear service core along its southern side comprising lifts, a stairway, male and female toilets, and a number of vertical service ducts. Importantly, in the current review, each floor of the building has two exits providing access to the single fireisolated stairway while on the ground floor, it is possible to access William Street either directly from the fireisolated stairway, or alternatively, through the lobby area.
8 On 19 November 2014, the respondent granted planning consent under the provisions of the City of Perth City Planning Scheme No 2 and the Metropolitan Region Scheme subject to a number of conditions. These conditions did not include any limitation on the number of students or staff.
9 On 22 April 2015, the respondent issued a Building Licence for the building works involved in converting the building to a college. Given the single fireisolated stairway, the Building Licence was based on a fireengineered Alternative Solution which was certified as complying with the requirements of the Building Code of Australia (Building Code). The Building Licence, under the heading 'Health Conditions', included an annotation which reads '[i]t is noted there is only one staircase per floor limiting the number of persons to 50 per floor'.
10 On 17 July 2015, the respondent issued an occupancy permit for the premises under the Building Act 2011 (WA) (Building Act).
11 On 6 July 2015, the respondent issued Public Building Certificates of Approval to the applicant for St George's Anglican Grammar School at 5054 William Street, Perth.
12 These certificates were issued under s 178 of the Health Act and the Health (Public Buildings) Regulations 1992 (WA) (Public Buildings Regulations) and mandated a 'maximum accommodation' of 50 persons in the 'public building area' on each of the six floors being utilised by the school.
13 The areas designated as 'public building area' on each floor were not specified in the certificates issued. No certificate was issued for the ground floor.
Statutory provisions
14 Section 36 of the Health Act provides for a review by the State Administrative Tribunal of orders and decisions of local governments in the following terms:
(1) Any person aggrieved by any order or decision of a local government may apply to the State Administrative Tribunal for a review of the order or decision.
…
15 Section 173 of the Health Act sets out the terms used and defines 'public building' as follows:
public building means
(a) a building or place or part of a building or place where persons may assemble for
(i) civic, theatrical, social, political or religious purposes; and
(ii) educational purposes; and
(iii) entertainment, recreational or sporting purposes; and
(iv) business purposes;
and
(b) any building, structure, tent, gallery, enclosure, platform or other place or any part of a building, structure, tent, gallery, enclosure, platform or other place in or on which numbers of persons are usually or occasionally assembled,
but does not include a hospital[.]
16 Section 178(1) of the Health Act sets out the requirements for a certificate of approval prior to the use of a public building as follows:
A person shall not open or use a public building unless the local government has issued a certificate of approval in relation to the public building specifying
(a) the purpose or purposes for which the public building may be used; and
(b) the maximum number of persons that the building may be used to accommodate.
17 Section 180 of the Health Act provides powers for the Governor to make regulations under the Health Act as follows:
(1) The Governor may make regulations providing for the safety and health of persons in public buildings.
(2) Without derogating from the generality of subsection (1), regulations may be made
…
(b) for the prevention of over-crowding of public buildings;
(c) prohibiting the obstruction of gangways, passageways, aisles, exits, entrances of public buildings and any roads, thoroughfares, lanes, rights of way or land abutting on an exit or entrance of a public building;
(d) for the prevention of fires in public buildings and protection of persons in the public building from fire;
…
(f) limiting the number of persons that may be accommodated in a public building, and prescribing the minimum space to be provided for each person;
(g) prescribing proper and sufficient means of ingress and egress and access for a public building;
…
(j) providing for health, safety and convenience of persons in and about public buildings whether as members of the public or persons who are in public buildings in pursuance of their occupation or employment[.]
19 Regulation 6(2) of the Public Buildings Regulations provides:
Notwithstanding anything in regulation 7 or 7A(1), a certificate of approval shall not be issued for the accommodation of any number of persons that exceeds the number permitted under the Building Regulations with respect to sanitary facilities, exits and ventilation.
20 It is to be noted that the Public Buildings Regulations do not include any detailed provisions in regard to 'exits'.
21 However, reg 14(5) requires that '[t]he occupier of a public building that has an occupancy exceeding 50 persons shall ensure that the building has more than one exit unless the local government otherwise approves.'
22 The Building Regulations 2012 (WA) (Building Regulations) are made under the powers provided in Pt 14 of the Building Act. The Building Regulations are referred to in the Public Buildings Regulations at various regulations. On the other hand, the Building Regulations do not make any reference to public buildings.
Issues
23 In determining whether more than 50 persons should be permitted on each floor of the building or whether the overall number of persons permitted to occupy the building should be increased beyond 300 persons, a number of issues arise.
24 These were agreed by the parties at the hearing as:
(1) What is the public building/s in relation to which the Certificate under s 178 of the Health Act should be issued?
(2) What is the correct and preferable determination of the maximum number of persons the building/s may be used to accommodate subject to consideration of:
(a) What is the meaning of more than one exit under reg 14(5) of the Public Buildings Regulations?
(b) If it is established under (a) that the building/s has 'one exit', should the Tribunal, in the circumstances of this particular case, approve occupancy exceeding 50 persons (and if so, how many)?
What is the public building/s in relation to which the Certificate under s 178 of the Health Act should be issued?
26 This issue is in dispute, as the respondent contends that each storey of the school should be treated as a 'public building', while the applicant contends that where the whole of a building is to be used as a 'public building', it should not be artificially separated into parts.
27 The respondent's contention relies on both the grammatical meaning and a purposive interpretation of the definition established by s 173 of the Health Act. The substantive argument put forward is that the 'public building' definition explicitly includes a part of a building where persons may assemble (emphasis added). The Macquarie Dictionary Online (2013) defines 'part' as 'a portion or division of a whole'.
28 The respondent draws on the provisions of s 180 of the Health Act which provides for regulations to be made for a range of matters which include prevention of overcrowding in public buildings, limiting the number of persons that may be accommodated in a public building, prescribing means of ingress and egress access for a public building, and providing for health and safety of persons in and about public buildings.
29 The respondent submits that given the objective of the Health Act is to ensure public health and safety, an optimal public health and safety outcome for the occupants of the six storeys will be facilitated and best served by interpreting the definition of 'public building' so as to include each of the six storeys as separate public buildings.
30 Mr Eugene Lee, the Interim Manager of Environmental and Public Health at the City gave evidence for the respondent. His evidence is that the Senior Environmental Officer at the City had determined that each storey of the building was a public building under s 173 of the Health Act. He further says other environmental health officers at the City consistently construe the definition of public building under s 173 of the Health Act so as to apply to each storey of a building. Mr Lee, while noting other local authorities also take this approach, did not explain the logic underpinning this approach.
31 Mr Sidney Brodie, a Senior Technical Officer at the State Government's Environmental Health Directorate was also called by the respondent. It was his view that as each floor is quite distinct, each should be treated as a public building in its own right.
32 In his opinion, the purpose of the Certificate of Approval is to prevent overcrowding of critical areas. His view is that each storey of the school is a critical area and that setting the capacity for each storey would establish controls to ensure individual storeys are not overcrowded. While he suggested that it is common practice in the industry to treat individual areas as public buildings, he noted that in some instances the sum of the individual areas may exceed total building capacity which may be constrained by other requirements such as the number of toilets.
33 The Guidelines on the Application of the Health (Public Buildings) Regulations 1992 (Guidelines) were attached to the witness statement of Mr Brodie. While the Guidelines, in dealing with area calculations, are silent on uses other than large licenced premises, for such premises they state, 'only the areas available for public assembly could be included in the area calculation' (page 14) and that the assessment of floor areas '… effectively calculates the area available for patrons to assemble. It does not allow areas required to be maintained for patron safety or amenity such as lobbies, corridors, bars or areas used by staff etc to be utilised' (page 17).
34 The Certificates of Approval issued by the respondent for the building the subject of this review apply to the 'public building area' on each floor. While the public building areas are not delineated, they presumably apply to those areas where 'persons assemble for educational purposes'. Thus the Certificates of Approval apparently do not apply to the stairs, lifts, toilets and other components of the service core or, as previously noted, the reception area on the ground floor. These components, which clearly fall within the ambit of the Health Act and Public Buildings Regulations, thus fall outside the areas formally designated as public building(s) by the Certificates of Approval.
35 In challenging the respondent's submissions the applicant contends '… there is nothing in this definition which suggests that where the whole of a building is to be used as a "public building" that it should be artificially separated into parts, so that each part must be dealt with as a separate "public building"'.
36 This argument drew on the Minister's Hansard Second Reading Speech on the Health Amendment Act (Number 59 of 1991) which included the following statement:
One of the most important aspects of existing provisions of the Act is that of the ongoing inspection of public buildings to ensure that crowd control and escape ways, and firefighting and emergency lighting requirements are appropriately maintained.
37 In closing, the applicant argued:
We therefore submit that in this case the whole of the building that is being used as a school should be considered as a public building. Now, that is not to say that each storey should not have its own maximum number of occupants. This is necessary not only to avoid overcrowding, but to ensure that exits work appropriately in an emergency.
38 Depending on the particular circumstances, a public building may be regarded as an entire building or part of a building. It will be a question of fact and degree in each case as to which category is relevant.
39 An important aim of both the Health Act and the Public Buildings Regulations is to control the maximum number of persons permitted in areas where people assemble in public buildings. This principle is explicitly recognised in the submissions of the respondent. The applicant concedes that 'each room may have a maximum number of occupants' and while it argued that the whole school is a public building, it accepts that per storey limits on the number of persons permitted are required.
40 The Tribunal finds that Certificates should be issued for areas within the building within which people assemble for education purposes. An important intention of the Health Act and Public Buildings Regulations is, in the interest of public safety and health, to prevent overcrowding in public buildings. The legislative mechanism to do so is to issue a Certificate of Approval under s 178 of the Health Act. This provision is required to be applied to a 'public building’, or more specifically in terms of the Certificates issued for a 'public building area', and therefore as a matter of logic, the only mechanism to effectively control the number of persons in 'areas where people assemble' within a building, is to designate each such area a 'public building' under the provisions of the Health Act.
41 However, the Tribunal additionally accepts the applicant's submission that the whole of the area of the building used by the school should be designated a public building. This will give effect to the further need for ongoing inspection of lobbies, exits, doors, gates, corridors, passages, aisles, stairways or gangways and the application of other relevant provisions of the Health Act. There is, in the Tribunal's view, no legal impediment in the Health Act impeding the issue of such a certificate of approval.
What is the correct and preferable determination of the maximum number of persons the building/s may be used to accommodate?
42 In seeking to address this question, the initial consideration is to assess the meaning of 'exit' under reg 14(5) of the Public Buildings Regulations which requires that a public building that has an occupancy exceeding 50 persons shall ensure that the building has more than one exit. This arose as, while the building has two exits on each floor and two exits on the ground floor, it has a single stairway linking these exits. The respondent contends that, as the building had a single stairway, it had one exit while the applicant contends that, as the building had two exits onto William Street, it had more than one exit. This question is relevant in that, should the applicant's contention be accepted, there would be no need to exercise discretion under reg 14(5) which limits occupancy in a public building to 50 persons unless the building has more than one exit.
What is the meaning of more than one exit under reg 14(5) of the Public Buildings Regulations?
43 The respondent noted that neither 'exit' nor 'exit door' are defined in the Health Act or Public Buildings Regulations and submits that two 'exit doors' do not constitute two 'exits'. In reaching this conclusion, the respondent relies on the definition in the Building Codewhich in Pt A1.1 defines exit as follows:
Exit means
(a) Any, or any combination of the following if they provide egress to a road or open space -
(i) An internal or external stairway.
(ii) A ramp
(iii) A fire-isolated passageway.
(iv) A doorway opening to a road or open space.
(b) A horizontal exit or a fireisolated passageway leading to a horizontal exit.
(Original emphasis)
44 The applicant submits that reg 14(5) of the Public Buildings Regulations uses the term 'building' in respect to the number of exits required as distinct from 'public building'; this is in contrast with regs 14(1) (4) which all use the term 'public building'. In this context the applicant argues that taking a purposive approach to interpretation requires that 'building' must be given a different meaning to 'public building'.
45 The applicant therefore argues that 'on the basis that a "public building" can be a "part of a building", regulation 14(5) [of the Public Building Regulations] requires that the building itself has more than one exit, not that part of the building does'.
46 The Tribunal is not convinced by the submission of the respondent which proposes that the definition in the Building Code should be utilised to resolve this definitional issue, as there is no relevant legislative link between the provisions of the Health Act or Public Buildings Regulations and the Building Code.
47 In addition, the Tribunal is not persuaded by the applicant's argument which relies on an interpretation of a single subregulation of reg 14 which is atypically broader than the other provisions of the same regulation.
48 Section 179 of the Health Act provides powers for the inspection of public buildings. Section 179(2) provides for the removal of any obstruction from 'any exit, entrance, gangway, passageway or aisle of a public building' and 'any road, thoroughfare, lane, right of way or land abutting on an exit or entrance of a public building'.
49 Section 180 of the Health Act provides for the making of regulations which include:
…
(2) …
(c) prohibiting the obstruction of gangways, passageways, aisles, exits, entrances of public buildings and any roads, thoroughfares, lanes, rights of way or land abutting on an exit or entrance of a public building;
…
(g) prescribing proper and sufficient means of ingress and egress and access for a public building;
(j) providing for health, safety and convenience of persons in and about public building[.]
51 Regulation 15 of the Public Buildings Regulations establishes the following provisions:
(1) A person shall not while a public building is in use as a public building
(a) obstruct any lobby, exit, door, gate, corridor, passage, aisle, stairway or gangway; or
(b) lock any exit door or gate in an exit path,
of the public building.
(2) The occupier of a public building shall ensure that while a public building is in use as a public building
(a) every lobby, exit, door, gate, corridor, passage, aisle, stairway or gangway, of the public building is not obstructed; and
(b) every exit door of the public building that is required to be used is not locked[.]
53 Notwithstanding that the building has two exit doors on the ground floor, the fact that that there is only one fireisolated stairway connecting the two exit doors on the ground floor to the two exit doors on each floor, the Tribunal finds that the building, for the purposes of reg 14(5) has only one exit.
If the building/s has 'one exit' should the Tribunal in the circumstances of this particular case approve occupancy exceeding 50 persons (and if so how many)?
54 The parties agree that reg 14(5) of the Public Buildings Regulations provides discretion to approve occupancy exceeding 50 persons in a public building with a single exit and the matter at issue is, whether in the circumstances of this review, it is appropriate for the Tribunal to exercise such discretion. This turns on the merits of the case.
55 Regulation 14(5) of the Public Buildings Regulations provides no express criteria to be applied in deciding whether to exercise the discretion to allow greater occupancy where there is only a single exit.
56 However, the intent of the legislation suggests that the discretion must be considered having regard to the health and safety of persons in public buildings. More specifically, this requires that the components of 'ingress and egress and access for a public building', which link the areas where persons assemble to the public domain, comply with the logically adduced intentions of the Health Act and the Public Buildings Regulations. In the current context, this turns on whether the single exit provided is adequate in terms of the number of persons which it is proposed will use the building/s, given the range of relevant potential risks to health and safety.
57 The respondent submits that discretion under reg 14(5) of the Public Buildings Regulations should only be exercised where the respondent, or the Tribunal standing in its shoes, is satisfied that all safety and health considerations affecting the public building/s have been addressed to a level that allows discretion to be exercised. However, the respondent contends that in this case not all safety and public health considerations particular to the circumstances of the approved application have been adequately addressed by the alternative solution.
The Alternative Solution
58 In seeking a building permit, a Fire Safety Engineering Report was prepared by the Building Certifier, Mr Helmut Schwanke of Fire Safety Solutions Pty Ltd. This report addressed the use of a single stairway and put forward an Alternative Solution.
59 This was necessary as 'only one exit' was 'provided instead of a minimum of 2 exits from all floors' as required by the Deemed-to-Satisfy provisions of the Building Code. Such an Alternative Solution will comply with the Building Code if it satisfies the relevant Performance Requirements of the Building Code.
60 In developing the Alternative Solution, Mr Schwanke undertook an analysis which demonstrated that the Alternative Solution stairway provides an equivalent occupancy capacity when compared to two Deemed-toSatisfy stairways. On this basis he certified the building as complying with the relevant Performance Requirements of the Building Code.
61 This analysis established that, in terms of the requirements of the Building Code, it was safe to permit the following number of occupants on each floor of the building:
• Basement: 88
• First Floor: 54
• Second: 142
• Third Floor: 142
• Fourth Floor: 146
• Roof Deck: 100
62 Mr Alexandrovski, an expert Fire Safety Engineer called by the respondent, provided a Peer Review Report of the Fire Safety Engineering Report prepared by Mr Schwanke which contends that while the report 'was prepared generally in accordance with the accepted fire safety engineering guidelines: however, key components of a fire safety engineering assessment were either missing or not reflected adequately'.
63 The substantive criticism was that the report 'does not provide sufficient supporting evidence to demonstrate compliance with all performance criteria …' in particular, fire brigade intervention.
64 In formulating the Alternative Solution in respect of the single stairway, Mr Schwanke demonstrated that the Alternative Solution was at least equivalent to the DeemedtoSatisfy provisions of the Building Code and that the stairway is therefore deemed to comply with the relevant performance requirements. Given that Mr Alexandrovski did not seek to challenge either the methodology, or the details of the queuing time, or stacking capacity analysis carried out by Mr Schwanke, and the considerable experience of Mr Schwanke in undertaking such analyses, the Tribunal prefers the evidence of Mr Schwanke in regard to the Alternative Solution.
Nonfire risks
65 The respondent contends that in this case, not all safety and public health considerations particular to the circumstances of the approved application have been adequately addressed by the Alternative Solution. In the respondent's view, the following safety and public health considerations have not been adequately addressed:
a) bomb threats;
b) shooter incidents;
c) earthquakes
d) hazardous materials incidents including accidental release from within the school (ie. laboratory spills or gas leaks);
e) flood;
f) lightening;
g) civil protest;
h) infrastructure failure (ie. power failure);
i) ventilation or air-conditioning failure;
j) violent incidents (eg. criminal threats, gang violence, pepper spray incidents, brawls, suicide);
k) inability of emergency services personnel to properly respond to an incident once the single stairway is blocked; and
l) reduced ability of student's attending St George's Anglican Grammar School to respond appropriately to emergency situations.
66 Mr Brodie submits that compliance with building legislation does not necessarily mean that the building is fit for purpose and that this was particularly pertinent where fire engineered solutions are relied upon. He did however concede that the fire engineering process is able to address fire related safety issues. However, he argues that the acceptance and focus of a fire solution masks other issues which need consideration.
67 While he advised that in his judgment, no discretion should be provided under reg 14(5) of the Public Buildings Regulations, he stated that current Department of Health advice is that the discretion should be restricted to low risk facilities with only a slightly increased number. In this regard, his opinion is that educational settings are regarded as relatively low risk, although in his view the risk profile at St George's School is higher than most educational institutions due to the design and reliance on a single stairway in a multistorey school.
68 While he had not been able to find scientific evidence as to why 50 persons is a defining limit, it is Mr Brodie's opinion that it is not uncommon for legislation in other parts of the world to require multiple exits, once capacity reaches 50 persons.
69 Dr Green, a risk expert called by the applicant, expressed the opinion that in order to make a qualified judgment as to whether any identified threat is a serious possibility, data is required.
70 Dr Green undertook a detailed assessment of the threats identified by the respondent in each case providing both data and an analysis of the potential risk. A number of risks such as floods and lightning, he discounts as substantive risks. He also notes that a number of the identified threats would require a lockdown of the school rather than evacuation.
71 Dr Green identifies two critical elements in considering egress. Firstly, the time taken to evacuate the building and secondly, how this time may be increased by blockage or partial blockage on the egress route. In his opinion, there are two major types of threat which may cause difficulty in evacuation; a major earthquake and a bomb.
Potential blocking of the single stairway
72 Both Mr Brodie and Mr Christopher Cubbage, a security and risk expert called by the respondent, argued that the building required two separate emergency stairways. This was based on the concern that in an emergency, a single stairway could become blocked. While Mr Brodie identified what, in his opinion, is a range of concerns over the daytoday operation of a single stairway, he did not provide any evidence on the potential blocking of the stairway. Mr Cubbage suggests that the stairway could become blocked by explosion, collapse or temporarily by a barrier.
73 While it was Dr Green's opinion that threats other than fire identified by the respondent are unlikely to block the stairway, he accepts that a major earthquake and a bomb have the potential to block the stairs. Given the return period of 250 years or more for a major earthquake, and the fact that such any event would be likely to block any number of stairs provided, it is his opinion, that the case of a bomb in the stairwell pipe bombs would be the most likely threat.
74 These, if detonated in the stairway, will, in his opinion, be unlikely to cause collapse of the stairway and will be unlikely to impede egress from the building. In his view, the police will however want to preserve the scene and this will result in a lockdown followed by evacuation utilising the lifts. He also noted the current restrictions on access to the school premises which would reduce the risk of someone with a bomb accessing the stairway.
75 The two fire engineers, Mr Alexandrovski, called by the respondent, and Mr Schwanke, called by the applicant, both addressed the question of the potential for the stairway to be blocked. While their evidence is limited to the risk posed by fire, both advised that they were not aware of any case of a stairway ever being blocked during a fire event.
76 Mr Alexandrovski also raised concerns over the potential conflict between persons evacuating the building and fire brigade personnel seeking to access the building and the risk of smoke penetration when the fire brigade needed to utilise the stairway to gain access with a fire hose.
77 In regard to both these potential risks, Mr Schwanke's opinion is that as these were generic risks applying to any fire stairway they are dealt with by the relevant provisions of the Building Code which had been applied in this case.
78 Given the detailed risk analysis provided by Dr Green and the lack of definitive evidence on this issue provided by the expert witnesses called by the respondent, the Tribunal accepts Dr Green's evidence. His opinions are based on forensic training in the examination of explosion and fire sites, considerable applied research, and the publication of an extensive body of work on risk assessment.
Tribunal considerations
79 While there is no express relationship between the provisions of the Health Act, Public Buildings Regulations and the Building Code, the Tribunal, in terms of the restricted risk of fire, accepts for the purposes of the Health Act and Public Buildings Regulations the outcome of an Alternative Solution developed under the Building Code.
80 While there were clearly differences between them, the evidence of both Mr Schwanke and Mr Alexandrovski is that if a building complies with the Building Code this will ensure that the risk of fire is adequately addressed. The Building Code provides that compliance can be achieved either by meeting the Deemed-To-Satisfy provisions or, as in this case, through the development of an Alternative Solution which meets the relevant performance requirements of the Building Code.
81 It became clear at the hearing that all the experts giving evidence accepted that these provisions are relevant and that it is general industry practice to utilise them in dealing with the risk of fire under the Health Act. This case was most clearly set out by Mr Brodie whose opinion is that in developing the Public Buildings Regulations '[r]equirements that were deemed to be adequately addressed by the building legislation were removed and only requirements not addressed by the [Building Code] were retained within the new 1992 Regulations'. This would explain the fact that coverage of fire in the Public Buildings Regulations is restricted to heaters, fires, stage curtains, smoking and the like. None of the experts giving evidence sought to challenge this opinion.
82 Therefore, although the Building Code is not expressly incorporated in the discretion established by the Public Buildings Regulations, the Tribunal is persuaded that the opinion of the experts, utilising the approach specified in the Building Code, is of assistance to the Tribunal in determining whether to exercise its discretion in this case.
83 In terms of the broader range of potential nonfire risks identified by the respondent, the Tribunal is satisfied, based on the evidence provided, that the applicant has adequately addressed those risks and established that in this particular case that these risks, where they do require evacuation as opposed to a lockdown, do not require evacuation procedures over and above those established by the provisions of the Building Code in response to a fire. This finding is based on the detailed and coherent expert evidence of Dr Green which the Tribunal prefers to that of either Mr Brodie or Mr Cubbage.
84 In weighing all of the evidence provided in addressing the relevant provisions of the Heath Act and the Public Buildings Regulations, in terms of the broader potential risks to the health and safety of persons using a public building, it should be recognised that it is never possible to fully eliminate risk. This is put by Mr Green in his evidence where his opinion is that 'mitigation can reduce the risk, but it will never be zero'. The question then arising for the Tribunal is, whether the risks associated with a single stairway will be acceptable in terms of the requirements of the Health Act and the Public Building Regulations making it appropriate, in the particular circumstance of this case, to consider exercising the discretionary powers established by reg 14(5) of the Public Buildings Regulations.
85 In this regard, the Tribunal finds that the applicant has provided credible evidence that a single stairway would not provide an unacceptable risk to the proposed number of persons assembled for educational purposes within the building the subject of this review.
86 Such a finding is however, contingent on a clear delineation of the maximum number of persons those areas of the building occupied by the school can be used to accommodate. Based on the evidence provided by Mr Schwanke, the Tribunal accepts the figures used by him in establishing the Alterative Solution under the Building Code to provide safe egress from each floor of the building in case of fire as follows:
• Basement: 88
• First Floor: 54
• Second Floor: 142
• Third Floor: 142
• Fourth Floor: 146
• Roof Deck: 100
87 Finally, in regard to the maximum number of persons permitted in all those areas of the building occupied by the school, the Tribunal accepts the submission of the applicant that the maximum number of persons in the school will comprise 450 students and 40 staff establishing a total number of 490 persons. The difference between this number and the total for the various areas within the building of 672 will provide the flexibility required for periods of changeover during the day between classes, where there may be more children on some floors than others.
Alternative escape
88 Dr Green also notes that, while not strictly necessary in order to maintain an adequate level of safety, the adjoining property at 56 William Street has two areas which abut the building the subject of this review and which, with suitable development and agreement with the consent of the owners of that building, could be used as secondary exit routes. Mr Cubbage also refers to this possibility in his evidence.
89 Under crossexamination, Mr Green also suggests it may be possible to provide alternative access through the car park on the ground floor, from which it would be possible to access the Hay Street Mall through the first floor of the adjacent building at 56 William Street.
90 In this regard, the Tribunal observes that, while it may well be prudent for the school to explore the alternative egress routes identified by Mr Green in his evidence, given the speculative nature of these possibilities they have in the Tribunal's view no relevant bearing on the current review.
Conclusion
91 This review turns on whether, in the particular circumstances of this case, it is appropriate to exercise the discretion provided by reg 14(5) of the Public Buildings Regulations to allow more than 50 persons per floor to 'assemble for educational purposes' in the building given the need to provide for the health and safety of persons using public buildings.
92 In regard to the first issue in contention 'What is the public building/s in relation to which the Certificate under s 178 of the [Health Act] should be issued?', the Tribunal finds:
• That certificates should be issued for areas within the building within which people assemble for educational purposes to establish the maximum number of persons that those areas of the building may be used to accommodate.
• The legislative mechanism to do so is to issue a Certificate of Approval under s 178 of the Health Act and by the issuance of such certificates to designate each area where people assemble within the building a 'public building' under the provisions of the Health Act.
• That the whole of the area of the building used by the school should also be designated a public building to give effect to the need for ongoing inspection of lobbies, exits, doors, gates, corridors, passages, aisles, stairways or gangways and the application of other relevant provisions of the Health Act. This will require the issue of a further Certificate of Approval under s 178 of the Health Act for all of the areas of the building used by the school.
93 In regard to the second issue in contention, 'What is the meaning of more than one exit under reg 14(5) of the [Public Buildings Regulations]?', the Tribunal finds:
• Considering the facts of this case and given the single stairway the building the subject of this review has one 'exit'.
94 In regard to the final issue in contention, 'should the Tribunal in the circumstances of this particular case approve occupancy exceeding 50 persons (and if so how many)?', the Tribunal finds:
• That the applicant has provided credible evidence that a single stairway would not provide an unacceptable risk to the proposed number of persons assembled for educational purposes within the building the subject of this review.
• The figures used by Mr Schwanke in establishing the Alterative Solution to provide safe egress from each floor of the building in case of fire provide acceptable limits in ensuring the health and safety for persons in the areas within the building/s where persons assemble for educational purposes.
• That an overall limit on the number of persons using all the areas of the building occupied by the school should be set at 490 persons.
Orders
1. The Certificates of Approval issued by the respondent under s 178 of the Health Act 1911 (WA) for the St George's Anglican Grammar School are to be varied as set out below:
Floor | Current Maximum Number of Persons | Varied Maximum Number of Persons |
| 50 | 88 |
| 50 | 54 |
| 50 | 142 |
| 50 | 142 |
| 50 | 146 |
| 50 | 100 |
- 2. A Certificate of Approval shall be issued by the respondent under s 178 of the Health Act 1911 (WA) for the St George's Anglican Grammar School limiting the number of persons to be accommodated in all of the areas of the building used by the school to 490 persons.
I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, MEMBER
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