The Council of the City of Lismore v Dawnrange Pty Limited
[2006] NSWLEC 831
•16/11/2006
Land and Environment Court
of New South Wales
CITATION: The Council of the City of Lismore v Dawnrange Pty Limited [2006] NSWLEC 831 PARTIES: APPLICANT
RESPONDENT
The Council of the City of Lismore
Dawnrange Pty LimitedFILE NUMBER(S): 40754 of 2006 CORAM: Jagot J KEY ISSUES: Civil Enforcement :- fire safety order - non-compliance - enforcement of order - time for compliance LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B DATES OF HEARING: 16/11/2006 EX TEMPORE JUDGMENT DATE: 11/16/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr J M Atkin
SOLICITORS
Walters SolicitorsRESPONDENT
Mr A Metcalfe
SOLICITORS
Somerville Laundry Lomax
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
16 November 2006
40754 of 2006
THE COUNCIL OF THE CITY OF LISMORE
ApplicantJUDGMENTDAWNRANGE PTY LIMITED
Respondent
1 These are proceedings commenced by the Council of the City of Lismore against Dawnrange Pty Limited, the owner of premises known as the Gollan Hotel, a commercial hotel in the central business district in Lismore.
2 The Council served an order on Dawnrange on 1 April 2003 under item 6 of s 121B of the Environmental Planning and Assessment Act 1979 requiring Dawnrange to ensure or promote adequate fire safety or fire safety awareness in the above premises. The order listed a detailed series of works required to achieve adequate fire safety within those premises.
3 The evidence before me discloses that, despite ongoing efforts by the Council to ensure that steps in accordance with its order were carried out and completed, the majority of the work was not implemented. On 28 June 2006, the Council served an amended order on Dawnrange for the same purpose, that is, seeking to ensure adequate fire safety and fire safety awareness in the premises.
4 Again, despite efforts by the Council to ensure that those works were carried out and completed, the majority of the works remain outstanding. On 28 August 2006, the Council commenced proceedings in this Court seeking orders that the respondent Dawnrange carry out the works specified in the Class 4 application which reflect the amended order served on 28 June.
5 Mr Watts, the Council’s Building Service Coordinator responsible for ensuring that buildings meet required building and safety standards, has sworn three affidavits in the proceedings. The affidavits setting out details of the steps he has taken to bring about compliance of the premises with fire safety requirements and his concerns with respect to the fire safety status of the premises. This culminated in him serving a further order on 12 September 2006 seeking that the premises cease to be used for residential purposes unless and until the fire safety works had been carried out.
6 Mr Watts inspected the premises most recently on 13 November 2006 and has identified in an affidavit of 14 November 2006 remaining outstanding works, the discussions he had with the representative of Dawnrange and his ongoing concerns about the fire safety status of the premises.
7 Mr Robert McKenzie, who is authorised to act on behalf of Dawnrange, has sworn two affidavits in these proceedings identifying the works that were the subject of the Council’s orders that have in fact been completed and the status of the works that remain outstanding. His affidavit also identifies that the third level of the premises is not occupied, but the second level is occupied by a number of permanent residents. He has concerns about the capacity of those permanent residents to obtain alternative accommodation during the carrying out of the fire safety works. His affidavit records, as at 15 November 2006, the current status of the fire safety works in the premises. This discloses that, while some of the matters referred to by Mr Watts have been attended to, other substantive works remain outstanding. He has also said, however, that steps have been taken to ensure non hardwired smoke detectors are present within each of the rooms and he has otherwise annexed to his affidavit various emergency evacuation plans, fire safety and other documents.
8 At the commencement of the hearing I indicated to the parties that I considered that the fact that required fire safety works, many of which were notified by the Council in April 2003 had not yet been completed, was a most serious matter of real concern.
9 The parties sought the opportunity to identify those works which were accepted to be the most urgent. This was in order to enable a staged carrying out of fire safety works in a manner which was accepted by Dawnrange to be practical, but was also accepted by the Council to be appropriate and not require the cessation of permanent occupation by those residents on the second level of the building. As a consequence of the discussions between the parties only two issues now remain in dispute.
10 The Council and Dawnrange agree that three classes of works fall within the urgent category. They are the enclosure of the stairs, the hardwired smoke detection system and the residential sprinkler system. Dawnrange seeks a period of 28 days within which to complete those works on the basis that information from the supplier is that the best currently available estimate is that the materials required to carry out these works will take two weeks to be provided. For its part, the Council sees these works as important and submits that they should be completed as soon as possible.
11 I agree with the Council and am of the view that, in circumstances where I propose to grant liberty to apply, there should be a period of not greater than twenty-one days for Dawnrange to carry out and complete to the Council’s satisfaction the works within those three classes to which I have referred.
12 There is then a group of works not otherwise the subject of agreement between the parties that the Council and Dawnrange have identified as not falling within the same category of immediate urgency. Dawnrange seeks until 28 February to carry out and complete those works, reflecting its views about the likely impact of the Christmas and holiday period. For its part, the Council wishes to see those works carried out and completed as soon as possible.
13 Again, it seems to me that the Council’s position is compelling and that orders should be made, subject of course to the liberty to apply, requiring these works to be carried out and completed to the Council’s satisfaction by mid January 2007.
14 As I have said, I propose to grant liberty to apply so that the respondent and the Council both have the opportunity to come back to the Court if some circumstance arises by which the time periods to which I have referred and which have otherwise been agreed by the parties, need to be varied - either by providing Dawnrange with more time if there is a compelling and persuasive reason that more time should be provided or reducing the time if there is some circumstance which provides a compelling and persuasive reason for that to occur.
15 The parties have otherwise agreed that Dawnrange should pay the Council’s costs as agreed or assessed and I am satisfied this is also an appropriate exercise of discretion in this case.
16 Accordingly, what I propose to do is to stand the proceedings down to enable the parties to formulate short minutes that can be sealed by the Court today and provided to the parties.
[Discussion with counsel concerning the orders and related proceedings]
17 I am prepared to make orders in accordance with the short minutes of order and so I order:
(1) The respondent undertake and complete the following works referred to in the Amended Order No. 6 dated 28 June 2006, a copy of which is attached hereto, to the premises known as the Gollan Hotel situated at 73 Keen Street, Lismore and more particularly the premises described as Lot 12 in DP 2369 (the premises) within 21 days from the date of these Orders:
(a) Item 6 (enclosure of stairs);
(b) Items 14 and 15 (smoke detection); and
(c) Item 22 (residential sprinklers).(2) Pending completion of all work referred to in Amended Order No. 6, order that the respondent not use or occupy or permit to be used or occupied level 3 of the premises.
(3) The respondent undertake and complete items 9 and 10 of Amended Order No. 6 to the premises by 27 November 2006.
(4) The respondent undertake and complete item 12 of Amended Order No. 6 to the premises by 11 December 2006.
(5) The respondent undertake and complete the balance of the work referred to in Amended Order No. 6 by 19 January 2007.
(7) The respondent to pay the applicant’s costs as agreed or as assessed.(6) Liberty to either party to apply in relation to variation of time periods allowed under these Orders.
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