Turkovic v Hornsby Shire Council

[2019] NSWLEC 1262

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Turkovic v Hornsby Shire Council [2019] NSWLEC 1262

Hearing dates:

30 April 2019

Date of orders:

14 June 2019

Decision date:

14 June 2019

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:
(1)   The appeal is upheld.
(2)   Time to comply with the Fire Safety Order dated 17 May 2018 is extended for 7 days from the date of this Order.

Catchwords:

APPEAL – compliance with fire safety order – smoke detectors – fire safety statement

Legislation Cited:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000

Category:

Principal judgment

Parties:

Franjo Turkovic (Applicant)
Hornsby Council (Respondent)

Representation:

Counsel:
M Fozzard (Respondent)

 

Solicitors:
Bilias & Associates (Respondent)

  Other:
F Turkovic, self-represented (Applicant)

File Number(s):

2018/185130

Publication restriction:

No

Judgment

1. The applicant, Mr Frank Turkovic has appealed against compliance with the Fire Safety Order issued by Hornsby Shire Council on 17 May 2018 in relation to the smoke alarms in his residence at Unit 1, Lot 1 SP 51296, 1/42 Bridge Road, Hornsby (Site).

2. The proceedings are brought pursuant s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) and Mr Turkovic is self-represented.

3. The Council is represented by Mr Fozzard, a barrister.

The Order

4. The Order, which is made under s 121B (now s 9.34) - Item No 1 of Part 2, Schedule 5 of the EPA Act, is in the following terms:

“TO MR TURKOVIC

PREMISES Lot 1 SP 51296 No.1/42 Bridge Road, HORNSBY NSW 2077

You, as the owner of the premises at Lot 1 SP51296 No. 1/42 Bridge Road, HORNSBY NSW 2077 are hereby given an Order pursuant to Section 121B of the Environmental Planning and Assessment Act 1979 (“the Act”).

TO DO WHAT

1. Have an appropriately qualified person carry out a test of the smoke alarms located within unit No.1/42 Bridge Road HORNSBY NSW 2077

2. Following a test of the smoke alarms, provide certification from the appropriately qualified person that the smoke alarms located within unit No.1/42 Bridge Road, HORNSBY NSW 2077 are functional. The submitted certification paperwork is to specify that the smoke alarms meet the requirements of Australian Standard 3786 and Building Code of Australia section E2.2a.

Note: Where the existing smoke alarms are not functional or are not within a period of warranty/guaranteed lifespan of the detector, replacement of the smoke alarms will be necessary.

Note: A person who carries out work in compliance with a requirement of an Order does not have to make an application for development consent pursuant to Section 121O of the Act.

REASONS FOR THE ORDER

1. An annual fire safety statement for the building premises at 42 Bridge Road was due to be submitted to the Council on 16 September 2017. An annual fire statement has been submitted that excludes the smoke detectors for Unit No. 1. The smoke detectors have not been certified that they are functional. A satisfactory annual fire safety statement certifying that all essential fire safety measures are functional has not been submitted as required by [s] 177 (Part 9) of the Environmental Planning & Assessment Act Regulation 2000 [Regs] a breach of the regulation has occurred.

2. Where an inadequate annual fire safety statement in accordance with [s] 177 … of the [Regs] is received then the safety of the persons within the building cannot be ensured.

3. Annual fire safety statements promote fire safety awareness. Where an inadequate annual fire safety statement is submitted there is insufficient promotion of fire safety awareness.” (Emphasis altered)

5. Put simply, it requires Mr Turkovic to do two things:

1. first, to engage an appropriately certified person to carry out a test of the smoke alarms located within his unit; and

2. following the testing, to provide to the Council written certification that the smoke alarms are functional.

6. However, Mr Turkovic contests the Order because he believes that the smoke alarms in Unit 1 have been tested and found to be functional and therefore do not need retesting or replacing. He also takes issue with several factual matters relied upon by the Council and submits that the body corporate of his unit block and the property management agent have misrepresented the facts to the Council.

7. At the hearing, Mr Turkovic relied on documentary evidence including emails from the body corporate and the strata manager to support his case. The Council relied on the Annual Fire Safety Statement (AFSS) prepared by Sydney Extinguishers dated 9 September 2017 lodged by the Strata Plan and the oral and written expert evidence of its Senior Building Certifier, Mr James Martin.

8. The relevant facts are as follows.

Facts

9. Mr Turkovic’s Unit is one of nine units in Strata Plan No 51296 (SP).

10. The SP is managed by a Managing Agent called Professional Strata Management Hornsby.

11. Under Part 9 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations), the Strata Plan is required to file with the Council an Annual Fire Safety Statement prepared by a suitably qualified person certifying that identified essential fire safety measures are in place at the relevant block of units.

12. Relevantly, in this case, the Strata Manager of SP 51296 organises the annual first safety inspections required by the EPA Regulations. In recent years it seems that they have engaged the same company – Sydney Extinguishers to carry out the fires safety inspections and to prepare the requisite certification.

13. According to the Council’s evidence on 15 September 2017, an Annual Fire Safety Statement for SP 51296 was prepared by Sydney Extinguishers and dated 9 September 2017 was lodged with the Council. It had been commissioned by the Strata Manager and recorded that Unit 1 was not certified as compliant in relation to smoke alarms. This Annual Fire Safety Statement is marked Attachment No 2 to the applicant‘s Class 1 appeal.

14. At the hearing, Mr Turkovic produced an earlier version of the Annual Fire Safety Statement prepared by Sydney Extinguishers also dated 9 September 2017 lodged with the Council. It is in exactly the same terms as that attached to the Order except that it refers to all Units as being non-compliant in respect to smoke alarms rather than only Unit 1 (Exhibit 6). Mr Turkovic believes that the preparation and lodgement of two Annual Fire Safety Statements for his unit block demonstrates some impropriety; however, the Council confirmed that it receives amended returns from time to time when work has been completed and the return needs to be updated. In this case, the Council relies on the later version of the AFSS to found the Order at issue in this appeal. The Council receives an Annual Fire Safety Statement and this is the only relevant record for the purposes of the appeal as it records the certifier’s assessment that only Unit 1 is non-compliant with respect to smoke alarms. A fact which is also confirmed in the tax invoice submitted to the Strata Manager by Sydney Extinguishers following its inspection of the unit block and preparation of the 2017 Annual Fire Safety testing on 5 September 2017 (Exhibit F).

15. Relevantly, the tax invoice records a charge for the fire safety inspection of Unit 1 as part of the TEST Smoke Alarms and the following comment:

“UNIT 1 _ smoke alarm is over 10 years old and needs replacing @ $160 + GST” (Exhibit F).

16. The tax invoice also states that the company had not been given access to Units 3 and 6 nonetheless it specifies that the smoke alarms in Unit 1 are non-compliant.

17. Exhibit F also contains extracts from email communications between the certifier, Adrian Bartlett from Sydney Extinguishers and the Strata Manager, Lindy Donnelly dated 9 September 2017 wherein the certifier is seeking permission to undertake the repairs identified in the fire safety inspection to render the building “Compliant AFSS”. The works include new smoke alarms in Unit 1. The email states:

“UNIT 1 – Smoke alarm is over 10 years old and needs replacing @ $160 +GST”.

18. In response, Ms Donnelly sends an email to the Strata Committee of the applicant’s unit block on dated 11 September 2017 in the following terms:

“Dear Strata Committee

Please see below. Obviously I need to get this fixed straight away to become compliant. Can you please let me know if you would like to proceed with the quote given below?”

19. The email trail also includes a further undated comment from Ms Donnelly:

“Can you please confirm if you want to go ahead with the installation of either 6X 10 year Lithium operated smoke alarms or Firs Extinguishes in the Common Areas as suggested and highly recommended by Adrian Bartlett

Unit 1s smoke alarm must be replaced ASAP to be compliant or fines could apply. Franjo if you could please respond to my emails ASAP.”

20. The issue of non-compliant smoke dectors within the unit block seems to have been a long standing and recurring problem. In the 2016 Annual Fire Safety Statement – again prepared by Sydney Extinguishers, the applicant and other unit holders are recorded as having non-compliant smoke dectors. Mr Turkovic tendered another series of email communication between Adrian Jones from Strata Management to the unit owner Nigel Chapman (Exhibit 5).

21. Based on these communications, it seems that on 5 September 2016 Mr Chapman (who owns a unit in the block and appears to have been on the body corporate at that time) authorised the replacement of smoke alarms for all identified units apart from his own. Based on advice from Council’s Ms Lindsay Rawson (Team Leader Hornsby Building Certifications Council), Mr Chapman challenged the need to replace his 10 year old smoke alarm on the basis that is was functional.

22. According to the emails before the Court, Ms Rawson had advised Mr Chapman that:

“There is no compulsion in any law/standard/guideline to replace smoke detectors over 10 years.

It is my understanding within the industry, that the majority of smoke dectors and / or their batteries have a life of around 10 years and that it is common industry practice to recommend replacement after 10 years.

He is of the view it is ‘good practice’ to replace smoke detectors if recommended by an inspector = he views that as ‘good housekeeping’.”

23. Relying on this advice from Council in 2016, Mr Chapman apparently despatched an email to the Strata Manager questioning the testing of the smoke alarm in his unit – and advising that he had been at home at the time and confirmed that his alarm was functioning despite it being 10 years old. In response, the Strata Manager asked the unit holders at 1, 2, 4, 8 and 9 with identified smoke alarms older than 10 years to arrange for their replacement themselves if they did not want to use Sydney Extinguishers and provide certification of replacement.

24. The applicant believes that he can avoid the need to comply with the Order by also confirming that he was present at the time of the testing and can confirm that the smoke dector is working. The applicant contends, like Mr Chapman did in 2016 that although his fire alarm is 10 years old, it is working. Therefore, he submits that it does not need to be replaced at a cost of $160 plus GST. Moreover, it is a hard wired version and he was at home at the time of the inspection of his unit by Sydney Extinguishers in 2017 and after testing heard a “beep” which he believes signifies that the fire detector is working. He also relies on that earlier advice of the Council’s compliance officer (communicated in 2016 to the Strata Manager) to support his case that the replacement of the unit is not required as the alarm is in working.

25. For those reasons, when the Strata Management submitted the 2017 Annual Fire Safety Statement, it informed the Council that Mr Turkovic had refused to replace or renew the smoke detector within the property.

26. At that point, Mr Martin contacted Mr Adrian Bartlett of Sydney Extinguishers who had carried out the fire safety assessments in 2016 and 2017 to discuss the matter. He apparently confirmed in a conversation over the phone that the smoke dector was non-compliant in Unit 1.

27. Mr Martin explained to the Court there are 3 ways that a Council becomes aware of essential fire safety measures needing replacement; one of the ways is when the Annual Fire Safety Statement (AFSS) is delivered to the Council and identifies non-compliance. In this case, Mr Martin was made aware of the non-compliance upon receipt of the AFSS in 2017. The Annual Fire Safety Statement dated 9 September 2017 received by the Council expressly stated that the smoke alarms in Unit 1 were not compliant with AS 3786-1993 (Council’s Senior Building Certifier Mr James Martin expert report Exhibit 3, Tab D).

28. Mr Martin also explained that unless certified to be functional a smoke dector generally has a recommended life of 10 years under section 2.1 of AS 3786-1993 and section 4.1 of AS 3786-2014. In this case, the applicant concedes that the smoke dector although hard wired is 10 years old therefore it needs to be certified as functional or replaced.

29. Mr Martin believes that it is unsafe for the occupants of Unit 1 and the other occupants of the residential property not to replace the smoke alarm. It is a simple procedure and should cost in his experience between $100 and $200 depending on the service provider. And, once the smoke alarm is replaced, the AFSS for the building can be issued.

30. Mr Martin said that he had attempted to discuss the issue with the applicant in order to avoid litigation before serving a notice of intention to serve an Order on 7 February 2018 (Exhibit E) but to no avail and the Order issued on 17 May 2017.

Consideration/Findings

31. The Order states that it has been issued under s 121B of the EPA Act pursuant to Item 1 of Part 2 Fire Safety Orders in Schedule 5 of the EPA Act. Schedule 5 is set out below.

Column 1	Column 2	Column 3
To do what?	In what circumstances?	To whom?
1	To do or stop doing things for the purposes of ensuring or promoting adequate fire safety or fire safety awareness	When provision for fire safety or fire safety awareness is inadequate to: • prevent fire, or • suppress fire, or • prevent the spread of fire. To ensure or promote the safety of persons in the event of fire.  When lack of maintenance of the premises or the use of the premises constitutes a significant fire hazard.	The owner of the premises or, in the case of a place of shared accommodation, the owner or manager

32. The Order is addressed to Mr Turkovic who is the owner of Unit 1. It requires him to do two things to prevent the spread of fire and to promote the safety of persons in the event of fire.

33. Having regard to the evidence before me, I am satisfied that the Order is valid. And while the applicant complained at the hearing that he did not receive the annexures to the Order being the first Fire Safety Statement from Sydney Extinguishers dated 9 September 2017 for the reason outlined by the Council as summarised this earlier statement is of no relevance in this case. The Council relies on the latest version of the AFSS as lodged which identified the smoke alarms in Unit 1 as not being certified as functional.

34. Mr Martin told the Court the objective of the Australian Standard (AS 1851/2012) requiring routine service of fire protection systems and equipment as set out in cl 1.2 is:

"…to maintain the reliability of the fire protection systems and equipment such that they continue to meet the requirements of the approve design and are likely to do so until the next scheduled activity.”

35. With that objective in mind and accepting the fact that smoke alarms have a recommended service life of at least 10 years under normal working conditions and the applicant’s smoke alarm is at least 10 years old and not certified, I think it is reasonable that the alarm be tested in accordance with the Council Order. While I accept that there is no requirement for replacement of the alarm just because of its age in the circumstances, it is appropriate based on the evidence as there is no reliable evidence before the Court tabled by the applicant to refute the expert views expressed by Mr Martin and the 2017 AFSS report received from Sydney Extinguishers.

36. I do not accept that the “beep” which the applicant says he heard is sufficient to demonstrate that the unit is functional or compliant with a relevant standard. In short, I have no information about the make or type of smoke detector installed in Unit 1 other than that confirmation that the alarm is at least 10 years old.

37. In my assessment, the alarm needs to be tested by an appropriate person and certified as compliant with the requisite AS or replaced. As stated by Mr Martin in Court, the evidence is that the smoke detectors in Unit 1 are older than 10 years and based on the AFSS 2017 return are not functional until certified to be so.

38. The EPA Act is the umbrella instrument and the EPA Regulations sit under the Act. The Building Code of Australia is picked up by the EPA Regulations and sets out certain standards for different Classes of building – in this case the relevant category of building is Class 2 (Exhibit 5). The standards set out the inspection regime for compliance and in this case, the smoke alarm was found not to be compliant.

39. While I understand that the applicant believes that he has been unfairly targeted and other unit holders have not been required to obtain certification of function of their 10 year fire detectors, I am only concerned with the evidence before me in relation to the Order which is directed to his property. The AFSS states that the smoke detectors in his Unit are not certified as functional. I am unclear, on the evidence, how Mr Bartlett formed that view but on balance, it seems he inspected the unit according to the invoice and the applicant’s evidence. The Council’s Order is lawful and by its terms reasonable and in my opinion needs to be enforced to ensure the safety of the applicant in his home and the other residents from fire. Once tested by an authorised person to confirm – as the applicant contends – that the smoke alarms are working and compliant with the relevant AS then nothing more needs to be done. However, if that testing is carried out and the applicant‘s view about functionality is found to be incorrect then there will be need to replace the smoke alarms.

40. Accordingly, I have decided that the applicant should have a further short period of 7 days in which to comply with the terms of the Council’s Order and be given an opportunity to provide the requisite certification of the smoke alarms from an appropriately qualified person.

41. The Court orders:

1. The appeal is upheld.

2. Time to comply with the Fire Safety Order dated 17 May 2018 is extended for 7 days from the date of this Order.

……………………………

S Dixon

Senior Commissioner of the Court

********

Amendments

14 June 2019 - Correction made to typographical error at [40]

Decision last updated: 14 June 2019