Wong v Cumberland City Council

[2022] NSWLEC 1602

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wong v Cumberland City Council [2022] NSWLEC 1602

Hearing dates:

Conciliation conference on 11 October 2022.

Date of orders:

2 November 2022

Decision date:

02 November 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Fire Safety Order no. 1 issued by the Respondent to the Applicant and dated 14 July 2022 is modified as follows:

(a) The Period of Compliance with the Order is amended to 5:00pm Tuesday 11 October 2022;

(b) Item (7) of the Works to be carried out pursuant to the Order is deleted.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.18, 9.34, 9.35, 9.36, 18.8, Sch 5 Pts 4, 5, 6

Cumberland Local Environmental Plan 2021 Sch 5

Heritage Act 1977 s 136

Land and Environment Court Act 1979 ss 17, 34

Category:

Principal judgment

Parties:

Albert Shuen Wong (Applicant)
Cumberland City Council (Respondent)

Representation:

Counsel:
Dr S Berveling (Applicant)
C McFadzean (Respondent)

Solicitors:
Di Lizio & Associates (Applicant)
Cumberland City Council (Respondent)

File Number(s):

22/225703

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the giving by the Respondent of a Fire Safety Order dated 14 July 2022 to the Applicant relating to the whole of the land contained in Lot 2 Deposited Plan 509380 and known as 2 Russell Street, Granville NSW 2124 (the Land).

1. The proceedings are brought in Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

2. the statutory power or function to be exercised in determining the proceedings is s 8.18(4)(b) of the EPA Act and s 34(3) of the LEC Act.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 October 2022. I presided over the conciliation conference. The parties reached in principle agreement at the conciliation conference and agreed that their jurisdictional statement could be gleaned from the Statement of Facts and Contentions filed by the Respondent on 29 August 2022. The parties filed a s 34 Agreement on 14 October 2022.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and modifying the Fire Safety Order dated 14 July 2022 pursuant to s 8.18(1) and (4)(b) respectively.

4. The Respondent is empowered to give a fire safety order in respect of the Land pursuant to s 9.35(1)(b) of the EPA Act as the Applicant failed to furnish an Annual Fire Safety Statement (AFSS) when requested between March and July 2022.

5. Fire Safety Order No. 1 under Schedule 5 Part 2 of the EPA Act may be given to do or stop doing things for the purposes of ensuring or promoting adequate fire safety or fire safety awareness.

6. The circumstances when a Fire Safety Order No. 1 may be given include:

1. When provision for the fire safety or fire safety awareness is inadequate to:

1. Prevent fire, or

2. Suppress fire, or

3. Prevent the spread of fire;

2. To ensure or promote the safety of persons in the event of fire.

3. When lack of maintenance of the premises or the use of the premises constitutes a significant hazard.

7. A Fire Safety Order No. 1 may be given to the owner of the premises. The Applicant is the owner of the premises.

8. The appeal relates to Order No. ON2022/1003 issued by the Respondent on 14 July 2022, the terms of which, in summary form, require the owner of the Land to provide:

1. An interconnected smoke alarm system;

2. Evacuation lighting;

3. Bannisters to internal stairs;

4. Illuminate and maintain an exist sign;

5. Install and maintain portable fire extinguishers;

6. Installation certificates for pars 1-5 above;

7. A structural adequacy certificate for the building;

8. Prepare an Annual Fire Safety Statement (AFSS);

9. Submit an AFSS annually; and

10.Display the AFSS prominently in the building on the Land.

9. The Land is used as a boarding house.

10. The order does not have the effect of making a resident homeless and accordingly Schedule 5, Part 4, cl 2 of the EPA Act has no application.

11. The Land, together with the conjoined residence at 4 Russell Street is identified as a heritage item of local significance under Schedule 5 of Cumberland Local Environmental Plan 2021 (Cumberland LEP 2021). Pursuant to Schedule 5, Part 4, cl 3(2) of the EPA Act, before giving the order the Respondent considered the impact of the order on the heritage significance of the item. The impact was considered to be minimal and acceptable. The Land is not subject to an interim heritage order or listing on the State Heritage Register. The Land is not subject to an order under s 136 of the Heritage Act 1977.

12. The Fire Safety Order dated 14 July 2022 was served on the Applicant and included information as required by Schedule 5 Part 4 cl 4(1) and (2) of the EPA Act.

13. The Fire Safety Order dated 14 July 2022 included reasons as required by Schedule 5 Part 4 cl 5 of the EPA Act.

14. The Respondent wrote to the Applicant advising that the AFSS had not been submitted with the former AFSS expiring on 5 June 2021, on 17 March 2022 and on 25 May 2022.

15. At the request of the Commissioner for Fire and Rescue NSW, the Respondent inspected the Land with a representative of Fire and Rescue NSW on 24 June 2022.

16. On 30 June 2022 the Respondent issued a Notice of intention to Give an Order on 21 June 2022 (the Proposed Order) in accordance with Schedule 5 Part 6 cl 8 of the EPA Act. The terms of the Proposed Order were to the same effect as the (later) terms of the Fire Safety Order dated 14 July 2022. The Proposed Order allowed until 14 July 2022 for the making of representations. The Applicant did not make any representations in relation to the Proposed Order in accordance with Schedule 5, Part 6, cl 9 of the EPA Act.

17. The Fire Safety Order dated 14 July 2022 was served on the Applicant in accordance with Schedule 5, Part 4, cl 9 of the EPA Act, and in accordance with Schedule 5, Part 4, cl 10 of the EPA Act, a copy of the Respondent’s fire safety order was given to the Commissioner of Fire and Rescue NSW on 25 August 2022.

18. In accordance with the time provisions in s 18.8(3)(a) the Applicant filed an appeal on 1 August 2022.

19. The Fire Safety Order dated 14 July 2022 was lawfully issued. The Respondent had power to issue the Fire Safety Order under ss 9.34 and 9.35 of the EPA Act. The Respondent followed the applicable procedures as provided for in s 9.36 and Sch 5, Pts 4, 5 and 6 were observed.

20. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 8.18 (1) and (4)(b) to uphold the appeal and modify the Fire Safety Order dated 14 July 2022.

21. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be as set out above and explained how the jurisdictional prerequisites have been satisfied.

22. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. The Respondent had power to issue the Fire Safety Order dated 14 July 2022 after following the procedures set out in s 9.36 and Schedule 5, Parts 4, 5 and 6 of the EPA Act. The Applicant appealed to the Court in accordance with the time provisions set out in s 18.8(3)(a). I have power to amend the Order in accordance with s 18.8(4)(b) of the EPA Act.

23. 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.

Notes

24. The Court notes:

1. On 11 October 2022 officers of the Respondent inspected the premises on the Land, the subject of the Fire Safety Order dated 14 July 2022 and the subject of these proceedings, and are satisfied that items 1-6 and 8-10 inclusive of the works required by the Fire Safety Order dated 14 July 2022 as set out in the Table in Annexure A thereto, have been carried out.

Orders

25. The Court Orders:

1. The appeal is upheld.

2. The Fire Safety Order No. 1 issued by the Respondent to the Applicant and dated 14 July 2022 is modified as follows:

1. The Period of Compliance with the Order is amended to 5:00pm Tuesday 11 October 2022;

2. Item (7) of the Works to be carried out pursuant to the Fire Safety Order dated 14 July 2022 is deleted.

…………………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 02 November 2022