The Owners - Strata Plan No 22607 v The Council of the City of Sydney

[2020] NSWLEC 1324

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No 22607 v The Council of the City of Sydney [2020] NSWLEC 1324

Hearing dates:

Conciliation conference on 7 July 2020; Documents filed 14 July 2020

Date of orders:

24 July 2020

Decision date:

24 July 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1)      The appeal is upheld.

(2) The Respondent’s Order dated 5 March 2020, issued in respect of the premises at 110-116 Sussex Street, Sydney NSW 2000 is substituted for the Order at Annexure A pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979.

Catchwords:

FIRE SAFETY ORDER – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 22607 (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Strata Specialist Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2020/101098

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.18 Environmental Planning and Assessment Act 1979 (EP&A Act) against a Fire Safety Order (Order) issued by the Respondent in respect of the premises at 110-116 Sussex Street, Sydney (premises).

2. The Order required the Applicant to carry out certain work to ensure and promote adequate fire safety and fire safety awareness within the premises in reliance upon Schedule 5 Part 2 EP&A Act Order 1.

3. On 7 July 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).

4. Shortly after the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to uphold the appeal and substitute an alternative order to the one the subject of this appeal.

5. An agreement pursuant to s 34 LEC Act was filed by the parties on 14 July 2020 giving effect to the agreement in principle.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

7. The parties’ agreement involves the Court exercising the function under s 8.18 (4) (a) of the EP&A Act to make a substitute order. The parties have stated and I agree on the basis of the material provided that the relevant jurisdictional prerequisites that are satisfied so this function can be exercised are:

1. provisions for fire safety or fire safety awareness are inadequate to prevent fire, suppress or prevent the spread of fire or ensure or promote the safety of persons in the event of fire;

2. maintenance or the use of the premises constitutes a significant fire hazard; and

3. the proposed substitute order is an order that the Respondent could have given.

8. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

9. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 8.18(4) of the EP&A Act.

10. The Court orders:

1. The appeal is upheld.

2. The Respondent’s Order dated 5 March 2020, issued in respect of the premises at 110-116 Sussex Street, Sydney NSW 2000 is substituted for the Order at Annexure A pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act1979.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (274429, pdf)

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Decision last updated: 24 July 2020