The Owners Strata Plan 16878 v Sydney City Council

[2009] NSWLEC 1137

Land and Environment Court

of New South Wales

CITATION:

The Owners Strata Plan 16878 v Sydney City Council [2009] NSWLEC 1137

PARTIES:

APPLICANT
The Owners Strata Plan 16878

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10606 of 2008

CORAM:

Hussey C

KEY ISSUES:

SECTION 121B ORDER :- Fire Order, Necessity to install sprinklers to achieve adequate fire safety/awareness

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Owners of Strata Plan 15629 v Sydney City Council [2008] NSWLEC 6
Acorn Cove Pty Ltd v Sydney City Council [2008] NSWLEC 1362

DATES OF HEARING:

19/12/2008 and 23/02/2009

 
DATE OF JUDGMENT: 

6 May 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Newport, barrister
Instructed by
Cordato Partners

RESPONDENT
Mr M. Baird, barrister
Instructed by
Sydney City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

6 May 2009

10606 of 2008 The Owners Strata Plan 16878 v Sydney City Council

JUDGMENT

Background

1 This appeal was lodged against the requirements a s 121B Order which required fire safety upgrading works, including the installation of a sprinkler system in a 15 level commercial building located at 49-51 York Street, Sydney. The applicant contends that the requirement for the sprinkler system component is unreasonable and this is the sole issue in this matter.

The site

2 The site comprises Lot 10 DP 33813, Lot 11 DP 50737, Lots 1-16 DP 16878, being 49 –51 York Street Sydney and known as “Shaw House”.

3 The site contains a 15 level (approximately 41m high) commercial office building, with a basement, that was erected in 1964. The building is of concrete construction and has 2 lifts and 1 fire stair and is used for a variety of commercial and professional purposes. It has no residential component and no off street car parking or loading dock.

4 Commercial professional buildings of various styles, scale and finishes, surround the site, some of which have shops and refreshment rooms on the ground floor.

The Order

5 The Order No 6 was issued on 19 May 2008 in the circumstances that the provisions for fire safety or fire safety awareness were not considered adequate to prevent fire, suppress or prevent the spread of fire or ensure or promote the safety of persons in the event of fire. Also, the maintenance or use of the premises constitutes a significant fire hazard.

6 The order identified a number of detailed works to be progressively completed within 3 stages, over a period of 545 days from the date of the order i.e. 19 May 2008.

7 The applicant subsequently agreed to undertake the majority of the identified works, except the suppression of fire requirements, involving the installation of fire sprinklers. The agreed works are subsequently specified but importantly include pressurisation of the single lift shaft.

The evidence

8 Detailed evidence was presented by:

• Mr H Luu; Council’s senior building surveyor, Fire Safety
• Superintendent C Jurgeit; Manager, Structural Fire Safety Unit, NSW Fire Brigades.
• Mr M Lundqvist; Consulting fire safety engineer.
• Dr M Foley Consulting fire safety engineer.
• Mr W Stevens; Fire protection consultant
• Mr B Fong; Structural engineer.

9 Mr Luu inspected the property and determined that fire safety upgrading was required. He acknowledged that as this is an existing building constructed in 1964, the provisions of the BCA do not strictly apply due to the age of the building.

10 Nevertheless, he considers the BCA provisions indicate useful upgrading reference points to achieve an adequate level of fire safety/awareness in the subject circumstances. In particular the qualitative guidelines that refer to:

• “Objectives”; that set out what the community expects of a building, and
• “Functional Statements”; that describe how it is proposed the building will be designed and constructed to meet those community expectations.

11 Compliance with these objectives and functional statements is then achieved by satisfying the “performance requirements” that reflect current standards. One of the methods for compliance with the performance requirements under the BCA is by the implementation of specific measures that achieve the “deemed-to-satisfy” provisions. Another method allows the implementation of an “alternative solution”, which complies with the assessment methods for determining that a building solution meets the performance provisions of the BCA.

12 The absence of specific criteria for older buildings has resulted in a qualitative assessment solution by Mr Luu and Superintendent Jurgeit, supporting the installation of sprinklers. An alternate statistical risk assessment solution by Mr Lundqvist, which involves a comparison of the subject building with 2 other BCA complying buildings (i.e. 1 x 8 storey and 1 x 16 storey), concludes that adequate fire safety can be achieved by other upgrading work, excluding installation of sprinklers.

13 The question for the Court then, is what is the most appropriate of these significantly different solutions in the circumstances, to achieve an adequate level of fire safety. In addressing this question, I accept that the BCA provisions do not apply, but as all the experts have made reference to it, in the absence of any other accepted controls, I consider the BCA is a relevant control to compare the competing solutions.

14 From his assessment of the building, Mr Luu identified the following issues of significance to be considered:

(a) The ability of the building to restrict the spread of fire,
(b) The adequacy of the exiting means of egress, and
(c) The height of the building and the lack of specific high rise fire safety measures.

15 In addressing the first issue, Mr Luu referred to the “deemed to satisfy” provisions of the BCA, wherein a building like the subject building should be provided with “Type A” construction. On this basis the relevant objectives of Section C of the BCA are:

(a) safeguard people from illness or injury due to a fire in a building; and
(b) safeguard occupants from illness or injury while evacuating a building during a fire; and
(c) facilitate the activities of activities of emergency services personnel; and
(e) protect other property from physical damage caused by structural failure of a building as a result of a fire.

16 Accordingly, Mr Luu says that smoke from an outbreak of fire presents a critical threat to escaping occupants of a high-rise building. The threat occurs due to smoke spreading from the area of fire origin to other floors via service shafts, lift shafts and other openings within the building such as stairways/service pipes/air conditioning services-dampers and the like. The effect of fire smoke to escaping building occupants contributes to physical incapacitation, disorientation, restricted vision and panic.

17 In these circumstances, Mr Luu says that the existence of a sprinkler system assists in the safe exit of persons from the building in a fire event. Without a sprinkler system within the building, Mr Luu considers that a fire outbreak could escalate to other floors increasing exiting risks. Also, the effect of a fire with a sprinkler system is that it keeps in check the fire size, which then reduces the ability of the fire to grow, spread and limits the amount of smoke produced.

18 The associated functional statements in the BCA are contained in CF1 and CF2 as follows:

CF1 A building is to be constructed to maintain structural stability during fire to -
a. allow occupants time to evacuate safely; and
b. allow for fire brigade intervention; and
c. avoid damage to other property.
CF2 A building is to be provided with safeguards to prevent fire spread -
a. so that occupants have time to prevent fire spread without being overcome by the effects of fire; and
b. to allow for fire brigade intervention; and
c. to adjoining fire compartments; and
d. between buildings.

19 Consequently, Mr Luu does not consider these objectives or functional statements are satisfied unless a sprinkler system is installed because a sprinkler system would:

• Suppress the growth of any fire within the premises after ignition.
• A sprinkler system is activated at the source of the fire incident and hence provides immediate control of the spread of fire.
• The effectiveness of a sprinkler system is not dependent on human response to a fire.

20 With regard then to the second issue of the adequacy of exiting means of egress, Mr Luu says that the deemed-to-satisfy requirements of cl D1.2 of the BCA specifies for class 2 to 8 buildings, “that in addition to any horizontal exit, not less than 2 exits must be provided from each storey if the building has an effective height of more than 25m”. Also, that stairways in this type of building should be fire-isolated and that a doorway must not open into the fire isolated exit unless it opens from a public area, a sole occupancy unit, which occupies the whole floor or a toilet.

21 As the subject building has only 1 fire-isolated stairway and several doorways opening directly into it, this is a matter of concern. According to Mr Luu, this situation creates increased hazard to life safety if heat, smoke or toxic gases from a fire in another part of the building were to enter it. Therefore a sprinkler system would better preserve the exit pathway, so that persons are not trapped on the upper levels without an alternate means of egress.

22 The remaining issue relates to the building height due to the subject buildings height exceeding 25m. This matter is relevant because of the inability to fight fires in high-rise buildings from the street level. In this regard, Mr Luu therefore considers the installation of sprinklers is required in a building of this 41m height, to provide adequate safety.

23 Mr Lundqvist adopted a different “Fire safety upgrade strategy”, involving a risk-based ‘As Low As Reasonably Practicable’ (ALARP) assessment. This assessment involved a review of the building characteristics and classification of the various floor areas/fire compartments and building population, according to cl A3.2 of the BCA. This notwithstanding that full compliance with the BCA is not required.

24 From this, Mr Lundqvist listed the following proposed fire safety measures in Table 5, which indicates some reliance on the BCA controls.

4.2.5 Proposed fire safety measures
The major proposed fire safety measures after upgrading are listed within Table 5. This is not intended to provide a full list of essential services.

Fire safety measures	Proposed upgraded standard of performance
Automatic fire detection and alarm	BCA E2.2, NSW specification E2.2a and AS 1670.1-2004
Automatic fire suppression system	CA16-1962 (basement only)
Automatic air pressurisation system (fire-isolated stairway)	BCA E2.2, specification E2.2a and AS/NZS 1668.1-1998
Automatic exit doors (main entrance)	BCA D2.19, D2.21
Building occupant warning system	BCAE2.2, clause 6 of specification E2.2a
Sound system and intercom systems for emergency purposes (EWIS)	BCA E4.9 and AS 1670.4-2004
Electromagnetic door holders (basement)	BCA C3.8
Emergency lifts	BCA E3.4 and AS 1735.2-2001
Emergency lighting	BCA E4.2, E4.4 and AS/NZS 2293.1-2005
Emergency signs	BCA E4.5, E4.6, E4.7 (class 2 and 3), E4.8 and AS/NZS 2293.1-2005
Fire alarm monitoring	BCA clause 7 of specification E2.2a and AS 1670.3-1997
Fire control centres and rooms (>0.3m above street level)	BCA E1.8 and specification E1.8
Fire brigade booster assembly (on York street)	AS 2419.1-2005
Fire doors	BCA Section C and AS1905.1-1997
Fire extinguishers (portable)	AS2444-1990
Fire hose reel system	BCA E1.4 and AS 2441-2005
Fire hydrants	BCA E1.3 and AS 2419.1-2005
Fire seals (protecting openings in fire resisting components of the building)	BCA Section C3, AS 1530.4-2005 and AS 4072.1-2005
Re-entry from fire-isolated exit	BCA D2.22
Maintenance plan and emergency evacuation plan	AS 3745-2002

Table 5 Main fire safety measures provided within building

25 This risk assessment solution is based on the reasonableness of requiring sprinklers within the subject building, in the context of the level of risk to society present within other office buildings. The other comparable and BCA complying buildings (DTS) are:

• DTS 1; being 8 storeys with floor area of 1000 sq m and 1 fire-isolated stair.
• DTS 2; being 16 storeys with floor area of 2000sq m and 2 fire-isolated stairs.

26 Mr Lundqvist initially identified a number of limitations for this approach, which include:

Limitations
• The assessment is limited to ground floor - level 14 of the building, ie the sprinkler protected printing basement tenancy and the plant room levels are excluded. As the existing basement tenancy is sprinkler protected and the number of occupants is low this floor has been excluded from the study. Similarly the plant room level and lift room level have been excluded from the study.
• The assessment is based upon both Australian and international data for general office buildings. This is likely to include a large proportion of low-rise buildings with large floor plates and multiple fire stairs being different from the assessed high-rise building with a small floor plate and single fire stair, however for the purpose of this assessment the statistical data is considered appropriate.
• The fire scenarios and occupant response scenarios assessed within this report are considered reasonable for typical office occupancies.
• This report considers single point arson as a source of ignition. Arson involving accelerants or multiple ignition sources is not considered in this assessment as it is outside the scope of the BCA. As such the data used within this report excludes data from terrorist attacks such as the 9/11 event in New York, US. For the purpose of this assessment this is consider appropriate.
• A detailed assessment of other non-compliances associated with the building has not been undertaken. This may impact on areas such as expected damage to the building and fire brigade intervention.
• If there are building alterations or additions, a change in use or changes to the fire safety systems in the future, a reassessment will be needed to verify consistency with the assessment in this report.
• The data, methodologies, calculations and conclusions documented within this report specifically relate to the building and must not be used for any other purpose.
• The documentation that forms the basis for this report is listed within Appendix A.
• This report has been prepared based upon information provided by others. Defire has not verified the accuracy and/or completeness of this information and shall not be responsible for any errors or omissions which may be incorporated into this report as a result.

27 The risk assessment approach also relies on some assumptions which include:

Assumptions
• For the purpose of this assessment it is assumed that with the exception of the sprinkler system all fire safety measures required by the fire safety order issued by City of Sydney will be installed within the building.
• The existing building complies with the applicable building standard at the time of construction and there are no other significant deficiencies in the fire safety systems and design of the building impacting upon the risk to life due to fire.
• For a satisfactory level of fire safety to be achieved, regular testing and maintenance of all fire safety systems and measures, including management-in-use systems, is essential and is assumed in the conclusion of this assessment.
• The proposed fire safety schedule must be maintained and certified in accordance with the EP & A Regulations 2000 and relevant Australian standards.

28 Based on the upgrading schedule, 3 levels of assessment were undertaken. Firstly, a qualitative absolute assessment using deterministic smoke and evacuation modelling for the floor of origin – to assess the risk of occupants being exposed to untenable smoke within the fire affected compartment and to assess the time to evacuate the whole building compared to that of a similar DTS complying building.

29 Secondly, a quantitative probabilistic risk assessment has been undertaken for the whole building to compare the risk to life due to fire within the subject building to a DTS complying building. This assessment was to indicate that the expected risk to life within the subject building is less than that of similar DTS complying buildings.

30 The final level is a quantitative comparative assessment of the time for fire brigade intervention, for comparison with the DTS buildings.

31 In the application of this model, the key factors are ‘available safe evacuation time’ (ASET) and the ‘required safe evacuation time’ (RSET). But in determining these factors, Mr Lundqvist acknowledges that all engineering analysis includes a varying degree of uncertainty associated with the assessment methodology and in the estimated input values depending on the amount of relevant statistical data and research available. Therefore he adopts a margin of safety for ASET/RSET of 95% i.e. a 95% level of safety.

32 The scope of the deterministic fire safety engineering assessment is limited to estimating smoke filling times within a single floor using simplified zone modelling and analysing the required evacuation time from a single floor and the whole building. The analysis of potential fire and smoke spread beyond the floor (compartment) of fire origin is excluded.

33 The comparative results are shown in Table 5:

Area considered	Detection method	ASET	RSET	ASET/RSET margin
Existing 16-storey building	AS1670 smoke detector	N/A	11-12 min (11.5)	Base
BCA complying 8-storey building (for comparison)	AS1670 smoke detector	N/A	19-20 min (19.5)	+8 min compared to 49-51 York Street
BCA complying 16-storey building (for comparison)	AS1668 smoke detector	N/A	35-40 min	23-27 min compared to 49-51 York Street

Table 5 Comparison of RSET for building

34 From this, Mr Linquist concludes that the subject building is evacuated in approximately half the time the BCA complying 8-storey building when ignoring the cue time and pre-movement phase. Therefore, he says the subject building presents a similar or lesser risk to life due to fire. Also, that the analysis confirms the 16 storey building would require substantially longer evacuation time, which is considered the main reason – together with the increased difficulties of fire brigade operations – for requiring additional fire safety measures in buildings over 25m in effective height.

35 With regard to the statistical fire risk analysis, the modelling is estimated upon data presented by the British Standards Institution for office buildings, with reference to International Fire Engineering Guidelines. This estimate is compared to data from NSWFB and US data.

36 For the analysis, Mr Lundqvist states that in the assessment of acceptable risk, there is limited data on appropriate risk to life criteria due to fires within buildings. In these circumstances, data on the level of risk to society from Holland, UK, Hong Kong, Australia and the US has been summarised by the Swedish Department of Defence and is used as a reference point. Notwithstanding this, all the guidelines acknowledge the as low as reasonably practicable (ALARP) concept.

37 The analysis then incorporates comparative estimated costs due to fire based on US and Australian data to determine an estimated cost per life saved.

38 The final part of the methodology is the application of the “Fire brigade intervention model’ (FBIM) to predict the time taken by a fire brigade to undertake its activities at the fire scene from time of notification through to control and extinguishment. Average values were apparently inputted due limited availability of input from NSWFB. The results are in the following table.

49 York Street	DTS 8-storey
Arrival	10 min	10 min
Access fire floor	25 min	20 min
Extinguish fire	35 min	30 min
Perimeter search	38 min	34 min
Secondary search and rescue	45 mins	60 mins

39 Consequently, Mr Lundqvist concluded that the installation of sprinklers is not required to achieve an adequate level of safety.

40 This risk assessment approach and conclusion is supported by Dr Foley, who is a highly qualified and experienced fire engineer. Dr Foley checked the computer modelling and separately researched statistical data in order to provide her support for the assessment. However, she notes that this checking is not a reassessment and as such it is subject to all the limitations and assumptions in Mr Lundqvist’s report.

41 With regard to the comparison between the subject building and other 8 and 16 storey, BCA complying buildings, Dr Foley says:

“The report uses comparison to both a BCA deemed to satisfy (DtS) 8 storey office building and a BCA deemed to satisfy 16 storey building. Generally, for new buildings, the latter is the standard and comparisons are not made between buildings above and below 25m in effective height as the standards within the BCA between these is vastly different. However, in considering the necessity or otherwise of upgrading the level of safety within an existing building, this is considered appropriate in the absence of any guidelines on appropriate levels of risk for buildings. This can only rationally be done through a risk based approach, allowing comparison of risk, consideration of the acceptability of that risk based as far as possible on societal expectations, and hence consideration of the necessity to further reduce that risk (and how that may be done in a cost effective manner).
In response to Council’s statement that it is neither appropriate nor acceptable for the level of risk in the subject building to be compared to an 8-storey office building it is noted that the level of risk is compared to both an 8-storey building and to a new, fully compliant 16 storey building. These two cases form the upper and lower bounds of the proposed ‘acceptable level of risk, within the ‘ALARP’ region’. As such the subject building is being considered on its own merits, with the level of risk contextualised through comparison with a range of acceptable office buildings within the BCA. It is considered this is an appropriate and reasonable approach, particularly as the BCA is not retrospective and existing buildings generally do not have to achieve the same standards as the current BCA”.

42 The detailed checking process allowed Dr Foley to draw a number of conclusions, including the following:

• The comparison of sprinkler activation time v time to evacuate (RSET) indicates that the sprinklers offer no benefit to the occupants of the floor in terms of completing their evacuation in tenable conditions.
• The analysis demonstrates that the subject building, when upgraded in accordance with the Defire (Lundqvist) report, achieves a level of risk that is within the bounds of risk given by BCA deemed to satisfy office buildings. Whilst it is acknowledged that fire fighting is a greater challenge in buildings over 25m and that sprinklers would provide a reduced level of risk it is considered that the analysis does demonstrate that the risk within the building falls within an acceptable range.
• With regard to the risk assessment, a literature review of international data revealed a range in the values of a statistical life in the order of US$0.5 - $21M. Consequently, by assuming the costing of the proposed sprinkler system is accurate, the cost per life saved for installation of the sprinkler system exceeds the researched value of a statistical life (US based), and values in other industries and as such may be considered unreasonable.

43 This approach is in stark contrast to that presented by Superintendent Jurgeit, who has extensive fire-fighting experience with the NSWFB. He regularly reviews alternate solution assessments and is required to take into account:

• That one of the primary aims is provide safe buildings for the community and for firefighters tasked with combating incidents in those buildings.
• Section 6 of the Fire Brigades Act 1979 regulates that it is the duty of the Commissioner of Fire Brigades to take all practical measures to prevent and extinguish fires and protecting and saving property in the case of fire.
• Section 7 of the FBA 1979, which gives authority to the Commissioner to take measures in NSW for protecting persons from injury or death and property from damage.

44 Accordingly, he acknowledges that the building upgrade does not have to comply with the BCA, but he initially identified the following features of concerns; there is only a single fire isolated stair instead of 2, no zone smoke control system, no grade 1 water supply for hydrant system and non compliant hydrant booster valve set.

45 Superintendent Jurgeit’s opinion is that fire service intervention in the subject building would prove more difficult than in a BCA compliant building for the following reasons:

17. In my opinion from my experience, no two fires are the same and therefore the manner of dealing with them is different in most cases. Initial actions of fire officers are dependant upon the circumstances that they are presented with at any given time. An officer might appraise a situation differently to a colleague. Similarly, afire officer might appraise a situation differently at different times.
18. In my opinion fire service intervention in the subject building without sprinkler suppression would prove more difficult than in a BCA compliant building for the following reasons:
a. Fire crews would need to make their way to a fire affected level via a single fire stair with no other choice of ingress into the building.
b. Fire crews would need to work through the stair to the fire floor against the flow of egressing building occupants.
c. Fire crews would not be afforded a choice of hydrants since there is only one per level.
d. Fire crews may need to travel to the uppermost levels of the building via the fire stair noting that the physiological effects of this operation would be increasingly more difficult with every level of ascension.
e. Any occupants that required removal from the building because of smoke inhalation would require additional resources.
f. The functionality of the stair pressurisation system would be compromised as doors were opened thus further exacerbating the spread of smoke.
g. Without sprinkler suppression, firefighters would be faced with a situation of uncertainty in terms of fire growth and smoke development. It is highly probable that without sprinkler suppression the fire would be of far greater size, therefore also developing more smoke.
h. Movement of smoke travel in a non-sprinkler controlled environment would be increased, thus presenting hazardous and even dangerous conditions to floors away from the point of origin of fire.
i. Aerial fire appliances are effective only to certain heights and only operate within certain parameters. An aerial attack on the subject building would not be effective since the height of the building exceeds the capability of the NSWFB's highest appliance. The highest elevation that any NSWFB aerial appliance can attain under ideal conditions is 37 metres from the.ground. Depending on site circumstances, maximum elevation could be substantially less.
j. Notwithstanding height, an aerial appliance would have difficulty in successfully rescuing trapped persons due to time delays in locating the appliance and getting it `to work'. Any aerial operations could only be effected from the front of the building in York Street.
k. Locating the aerial in York Lane is inappropriate: and would not be achieved due to the narrow carriageway.
I. External fire attack would not be a recommended option since this tactic tends to drive fire and smoke back into the building thus affecting fire crews tasked with search and rescue, or extinguishment.
m. Sustained fireground operations would mean that significantly more water would be used than if the fire had been controlled by a sprinkler system,
n: A higher weight of fire attack would be necessarily. This means that resources are taken away from other surrounding areas, diminishing the protection normally offered to those areas.
o. Additional smoke would affect the environment.
p. Additional water usage would mean that contaminated water would need to be dealt with before it entered drains.
q. Sustained and uncontrolled fire, as commonly found in unsprinklered buildings would be likely to have an impact on the structural stability of the building and may also affect the adjoining buildings.
19. It should be noted that stair pressurisation and occupant warning are only effective following activation of either the sprinkler or the smoke detector. When comparing the efficacy of sprinklers v smoke detection in alerting occupants and notifying the fire service, I understand that sprinklers offer approximately 98% reliability whereas smoke detection offers approximately 75%.

Conclusions

46 The fundamental question posed in this matter concerns what is a reasonable level of fire upgrading works to achieve an adequate level of fire safety and awareness in this 15-storey commercial building that was built in 1964. Because of its age, it does not comply with the BCA, nor is it required to be upgraded to now current BCA standards.The particular issue is whether sprinklers should be installed in addition to the other agreed works.

47 The respective experts in this matter have presented significantly different approaches to address this question. In doing so the applicant’s fire consultant, Mr Lundqvist has adopted a computer based, risk assessment model to quantify the risks involved by comparing the subject building with fully BCA compliant 8-storey and 16-storey buildings.

48 This approach identifies a number of limitations and assumptions, concluding that with the provision of other fire safety measures, then satisfactory times will be available for the building occupants and consequently an adequate level of fire safety would be achieved, without the sprinklers. Dr Foley supports this approach as being both reasonable and representing “best practice”.

49 Against this, Council’s building officer Mr Luu and Superintendent Jurgeit from NSW Fire Brigade have adopted a practical, substantially qualitative assessment based on their experience, whereby they agree that sprinklers are required to provide adequate fire safety. They say that this represents “current practice” for the determination of upgrading works to achieve adequate fire safety.

50 For my determination of these competing approaches, I initially acknowledge that the computer modelling approach appears attractive by endeavouring to quantify the risks and reduce the inevitable subjectivity incurred in the stated ‘current practice’. However, the consideration of the evidence causes me some concern in accepting the reliability of the modelling, based on the stated limitations and assumptions.

51 Firstly, I have reservations about the direct comparability of the subject building with the other BCA complying 8 and 16-storey buildings, particularly with different floor areas and exiting arrangements – the 16-storey building has 2 fire-isolated stairs. In this regard, Dr Foley indicated it was this comparison was not generally made for new buildings.

52 I also have some concerns about the reliability of the modelling, noting Mr Lundqvist’s acknowledgement that there is always a degree of uncertainty in all assessment modelling, due to the input values. In the subject matter, there is a significant amount of input data, much of which appears to be derived from overseas sources. Whilst this may be appropriate, there was no compelling evidence, to assure the Court that this input data was appropriately correlated to local conditions. In the circumstances, I consider this a negative aspect.

53 Insofar as Mr Lundqvist included as an essential element the modelling of the fire brigade intervention model to support his position, I note that Dr Foley said this assessment does not contribute much to the assessment of whether or not sprinklers are required to achieve an acceptable level of risk in this building. This qualification introduces an element of doubt in accepting the overall modelling.

54 Considering the various responsibilities listed by Superintendent Jurgeit, it seems to me that the NSWFB’s intervention role is critical in assessing the overall risk. As the brigade’s charter is to always endeavour to save lives and property, I consider the aforementioned list of intervention matters for the brigade should be given considerable weight. In this regard, it seems curious to me that with all the comprehensive referencing in the modelling, no specific reference was made to the NSWFB input, save for statistical data, on order to provide local correlation. The inclusion of this data would likely add credibility to the model in the specific circumstances.

55 Whilst Superintendent Jurgeit acknowledged the potential benefit of the modelling approach to rationalise fire upgrading, he maintained his position that the sprinklers were required to provide an adequate level of safety. His opinion is that the threshold for a sprinkler system should be set lower than 25m so as to facilitate life safety, fire-fighter safety, property protection and environmental protection. I do not consider there was any compelling evidence in this matter, to set aside this opinion.

56 I have also considered this in the context that the existing building has restricted access to the street water main. Normally a fully compliant BCA building would have an A Grade 1 supply where water is derived from 2 totally independent water mains. As this is not the situation here, discretion can be exercised by the NSWFB to allow a Grade 2 water supply, where the water is fed from 2 directions. In this case, I understand Superintendent Jurgeit would be prepared to exercise the discretion, but on the preference that the sprinklers be installed. I consider this requires due weight in assessing the overall desirability for the sprinklers.

57 Another matter of concern is that the non-sprinkler option involves a higher level of human intervention. This is one of the limitations admitted by Mr Lundqvist. Accordingly, I have considered this relative to the automatically programmed sprinklers, albeit noting that they may not be activated until some time after fire ignition, and accordingly accept the respondent’s evidence that the sprinklers should have increased reliability and consequently reduce the risks.

58 In this regard, I particularly note Mr Luu’s evidence that he has been involved with fire safety inspections and follow-up for the past 18 years. Over that period there has apparently been many difficulties experienced in obtaining Annual Fire Safety Statements for some buildings, which works against the notion of increased reliance on management initiatives, in my assessment.

59 This aspect was acknowledged by Mr Lundqvist, who said the building would not represent an undue safety risk provided the fire safety upgrade is completed and a well-documented maintenance and management plan is implemented. If this does not occur, then a sprinkler system is warranted. Consequently, I rely Mr Luu’s evidence that the sprinkler system is generally more reliable in reducing risks, so as to achieve an adequate level of fire safety and awareness.

60 In order to differentiate these opposing approaches, the experts provided evidence on “current practice” relative to “best practice. Mr Luu referred to his extensive experience at the Sydney City council, where the current practice for many buildings involves site inspection a to ascertain fire upgrading requirements. He listed in detail (Appendix 3) some 17 other similar high rise city buildings, all of which fire sprinklers are, or are in the process of being installed to provide adequate fire safety. From this evidence, I am satisfied that the current practice is to undertake the qualitative assessment as advocated by Mr Luu and Superintendent Jugeit.

61 As I stated initially, the risk assessment approach has appeal to achieve a rational outcome, however there was no compelling evidence, aside from the opinions of Mr Lundqvist and Dr Foley presented that confirmed this approach is widely used in NSW for fire upgrading works. In fact, Mr Lundqvist confirmed the very limited acceptance of this approach, in the circumstances of older type building assessment fire upgrades.

62 It therefore appears to me that there is a significant public interest issue involved in adopting this somewhat radical approach, in the NSW context, unless recognised authorities independently support it as “best practice”. Such recognition would presumably confirm the modelling methodology, the acceptable range of assumptions and input data used in the modelling and that it is appropriately correlated to the local context. It should also identify the level of risk to persons parameters that the community considers acceptable and under what circumstances it is appropriate to make comparisons with other buildings.

63 In the ultimate, I consider it reasonable to maintain the current practice, which requires the installation of sprinklers to achieve an adequate level of fire safety and awareness in this building. I rely on the evidence of Mr Luu and Superintendent Jurgeit and give determining weight to the risks associated with fighting a fire in this building that are made more reasonable with sprinklers, so as to achieve an adequate level of fire safety and awareness. Notwithstanding this, the building still does not comply with the BCA, as compliance would require 2 fire-isolated stairs.

64 Submissions were made regarding the determinations in Owners of StrataPlan 15629 v Sydney City Council [2008] NSWLEC 6 and Acorn Cove PtyLtd v Sydney City Council [2008] NSWLEC 1362, however I do not consider they deal with a comparable scale of issues, to those in the subject matter.

65 Accordingly, I intend to dismiss the appeal and make new orders based on a suitable time frame for the works including the sprinklers, to submitted by the parties by 11 May 2009.

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R. Hussey
Commissioner of the Court
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