Land and Environment Court of New South Wales CITATION : May v Pittwater Council [2010] NSWLEC 1027 APPLICANT Kirk May PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10489 of 2009 CORAM: Bly C KEY ISSUES: BUILDING CERTIFICATE :- carport and deck attached to dwelling house, fire safety, Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Pittwater Local Environmental Plan 1992 Building Code of Australia DATES OF HEARING: 9 December 2009 DATE OF JUDGMENT: 9 February 2010 APPLICANT Mr T Sattler (solicitor) LEGAL REPRESENTATIVES: RESPONDENT Ms B Phelan (solicitor) SOLICITOR Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 9 February 2010 10489 of 2009 Kirk May v Pittwater Council JUDGMENT Introduction and background 1 On 22 April 2009 Mr V Milligan of Vaughan Milligan Development Consulting Pty Ltd made an application pursuant to s.149B of the Environmental Planning and Assessment Act 1979 for a building certificate to be issued under s 149A of the Act in respect of an existing timber deck above a carport and associated spiral staircase associated with the existing dwelling house at 26 Gondola Road, North Narrabeen. 2 The deck/carport is 17 m long 3 m wide and 4.75 m high and is attached to the existing two-storey brick and tile dwelling house. The deck is accessed from the first floor of the dwelling. 3 Adjoining the site to the west at 28 Gondola Road is a detached dwelling house. 4 According to the Statement of Facts and Contentions, on 20 July 1989 the council granted conditional building approval (BA 1737/89) for a roof covering to the then existing deck. On 25 July 1989 council wrote to the owner of the property noting that the original dwelling approval required that the deck have a 500 mm setback, but that this had not been met. In noting that the deck did not meet this requirement it was advised that the council did "not at this stage intend to take any action". 5 According to the application the deck has been in place for many years and was the subject of a "recent refurbishment" (ie removal and reconstruction). This refurbishment was, in part, in response to deterioration from water damage and is said to have been carried out to reflect the deck's original form and configuration including maintaining original levels and the 400 mm side setback from the property's western boundary. 6 The site is subject to the provisions of Pittwater Local Environmental Plan 1992 and pursuant to this plan the subject deck would be permissible with development consent. The neighbours' concerns 7 On 23 March and 4 May 2009 the neighbours at 28 Gondola Road wrote to the council explaining that the deck and stair: Affected the privacy in their garden and sunroom, Affected their solar access, Created noise from the use of the stair, Was a potential fire hazard, Devalued their property. 8 Since the expression of these concerns, privacy screens have been installed on the deck and the stair has been relocated. The only concern pressed by the council in this regard is that involving fire safety. The proposed order and the appeal 9 On 23 March 2009 the council issued a Notice of Proposed Order, followed on 23 April 2009 by an order (Order NOT 0021/09) requiring the demolition of the deck and stairs and the sealing of door openings from the dwelling to the deck within 70 days. The above-mentioned application for a building certificate was subsequently lodged with the council. 10 On 30 May 2009 the council served an infringement notice on the owner of the property for carrying out building work without consent. 11 On 19 June 2009 the council wrote to the applicant detailing the works that are required to be carried out prior to the issue of a building certificate. These works include: A 1200 mm setback so as to comply with the fire separation requirements of the Building Code of Australia . The provision of a privacy screen. The removal of the unauthorised spiral stair. 12 This appeal, filed with the Court on 22 July 2009, under s.149F of the EPA Act is against the Pittwater Council's deemed refusal of the building certificate application. The contentions 13 According to the Statement of Facts and Contentions dated 12 November 2009, the respondent contends that the building certificate application should be refused due to non-compliances with the Building Code of Australia. Alternatively a building certificate could be issued if the structure is modified so as to comply with the BCA. This could be achieved by way of a reconstruction of the deck/carport (as shown in Exhibit 4) that involves setting the deck back 900 mm from the boundary and providing a one-hour fire rated side wall to the carport. 14 The existing carport and deck are said to not comply with the BCA as follows: "The carport is classified under Part 1.3 of the Building Code of Australia as a Class 10a structure but does not meet the fire separation requirements of Part 3.7.1 of the Building Code or qualify for exemption under Part 3.7.1.6 (d) (ii) (iii) from the fire protection provisions of the Code." "The deck being a habitable area and attached to the dwelling is classified as Class 1a under the Building Code of Australia and being less than 900 mm from the boundary and combustible is subject to but does not comply with the fire protection requirements of Part 3.7.1.5 of the Building Code of Australia." Expert evidence 15 In dealing with this matter the Court was assisted by the written and oral expert evidence of: Mr W Dover the council's Health and Building Surveyor. Mr H Howse the applicant's fire safety consultant. The Building Code of Australia fire safety requirements The hierarchy of the Building Code of Australia 16 The hierarchy of the Building Code of Australia as described in Part 1.0.3 is divided into Guidance Levels and Compliance Levels. The Guidance Levels comprise Objectives and Functional Statements that are not mandatory but are included to assist in the interpretation of relevantly applicable clauses. 17 The Compliance Levels comprise Performance Requirements and Building Solutions. All Building Solutions must comply with the Performance Requirements. Mandatory Performance Requirements can be achieved by compliance with identified Building Solutions that can involve Deemed-to-Satisfy Provisions and/or Alternative Solutions. In practice most buildings meet these requirements with a combination of Deemed-to-Satisfy Provisions and Alternative Solutions. Where Alternative Solutions are proposed these are required to be assessed against one or more of the Assessment Methods. (See Parts 1.0.3, 1.0.4, 1.0.5 and 1.0.8). Guidance Levels 18 The applicable fire safety Guidance Levels in the form of Objectives and Functional Statements are contained in Part 2.3 of the BCA. Relevantly, Objective O2.3 is to: "(b) Avoid the spread of fire;" 19 And Functional Statement F2.3.1 provides that: "A Class 1 building is to be protected from the spread of fire." Compliance levels 20 As regards the applicable Compliance Levels, Performance Requirement P2.3.1 requires that: "(a) A Class 1 building must be protected from the spread of fire from- (i) another building other than an associated Class 10 building; and (ii) the allotment boundary, other than a boundary adjoining a road or public space." Classification of building and structures 21 It is thus necessary to consider the classification of the existing dwelling house and the attached deck and carport. Class 1 and 10 buildings are relevantly classified in Part 1.3.2 as follows: "Class 1 - one or more buildings, which in association constitute- (a) Class 1a - a single dwelling being - (i) a detached house..." "Class 10 - a non-habitable building or structure being - (a) Class 10a - a non-habitable building being a private garage, carport, shed, or the like..." 22 The existing detached single dwelling house is plainly a Class 1(a) building. Because it is not uncommon for a detached dwelling house to have an attached deck and carport it would be logical to expect that the existing dwelling house, with its attached deck and carport would together comprise a Class 1 building (that includes a Class 1a building). 23 However, Part 1.3.3 provides that: "Each part of a building must be classified separately, and- (a) Classes 1a, 1b, 10a and 10b are separate classifications; and (b)... (c) Where parts have different purposes - if not more than 10% of the floor area of a Class 1 building is used for a purpose which is a different classification, the classification of Class 1 may apply to the whole building." 24 Part 1.3.3(c) does not apply here because I understand that the 10% criterion is exceeded. 25 It is thus necessary to determine the classification of the deck and the carport, the classification of the dwelling house itself not being in dispute. 26 As regards the carport, the definition of a Class 10 building includes a "...non-habitable building being a... carport..." and because the existing structure predominantly below the deck is plainly a non-habitable carport it was not in contention that it should be classified as a Class 10 building. 27 As regards the deck, according to the Statement of Facts and Contentions, the deck "... being a habitable area and attached to the dwelling is classified as Class 1a..." 28 In seeking to classify the deck I could find no definition of, or reference to, a deck in the BCA nor is there a definition of a dwelling house that might have provided some assistance. 29 Clearly the deck is an area capable of being used by the residents of the dwelling for domestic purposes. But, being unenclosed and situated outside the external walls of the dwelling, it is not a habitable room that one would otherwise find within a dwelling house. Taking these matters into account and notwithstanding that it is attached to and directly accessible from the dwelling I agree with Mr Howse that the deck should be classified as a Class 10 building, being a "…non-habitable building or structure". 30 Consequently, whilst the carport and the deck, being Class 10 structures, are not required to be protected against fire nor is there any requirement for the dwelling house to be protected from the spread of fire from them, they must, in response to Performance Requirement P2.3.1, not increase the risk of fire traveling to the Class 1 dwelling house. Hence, prima facie, with the deck and the carport being located closer to the allotment boundary than the otherwise acceptable 900 mm setback there is a theoretical increased risk of fire travelling to the dwelling house. Assessment methods and acceptable construction practice 31 Part 1.0.9 identifies a number of Assessment Methods that can be used singularly or in combination to determine if a Building Solution complies with the Performance Requirements (or Deemed-to-Satisfy Provisions). These comprise: "(a) Evidence to support that the use of a material, form of construction or design meets a Performance Requirement or a Deemed-To-Satisfy Provision as described in 1.2.2. (b) Verification Methods such as- (i) The Verification Methods in the BCA; or (ii) Such other Verification Methods as the appropriate authority accepts for determining compliance with the Performance Requirements. (c) Comparison with the Deemed to Satisfy provisions. (d) Expert Judgment ." 32 Part 3.7.1.1 provides that compliance with an acceptable construction practice (as described throughout Part 3.7.1 satisfies Performance Requirement P 2.3.1 for fire separation. Protection of the Class 1 dwelling house 33 Relevant to this proposal, Part 3.7.1.6 provides that: "(a) Where a Class 10a building is located between a Class 1 building and the allotment boundary,... the Class 1 building must be protected by one of the following methods shown in Figure 3.7.1.4." 34 Figure b in Part 3.7.1.4 is thus relevantly applicable to the proposed carport. This diagram depicts a Class 1 building with an attached Class 10a building that is positioned "Less than 900mm" from an allotment boundary. The accompanying note refers to "an external wall of the Class 10a building" and such a wall is depicted on the figure along the side of the Class 10a structure where it is adjacent to the allotment boundary. An external wall is defined in the BCA as "an outer wall of a building..." and Part 3.7.1.5 provides that such walls are required to be fire resisting and must have an FRL of not less than 60/60/60 (A one-hour fire rating). The existing open carport does not have an external wall and hence cannot be considered to be compliant with Part 3.7.1.6 (a). Again, prima facie, there must be an increased risk of fire travelling to the dwelling house. Evidence of suitability 35 In these circumstances and in support of the proposal, Mr Howse relies on Part 1.2.2 (that deals with evidence of suitability of the use of materials, form of construction or design) that relevantly provides: "(a) Subject to 1.2.3 and 1.2.4, evidence to support that the use of a material, form of construction or design meets a Performance Requirement or a Deemed-to-Satisfy Provision may be in the form of one or a combination of the following: "(vi) Any other form of documentary evidence that correctly describes the properties and performance of the material or form of construction and adequately demonstrates its suitability for use in the building." Expert Judgment 36 For the purposes of Part 1.0.9 (d), Expert Judgment means: "... the judgment of an expert who has the qualifications and experience to determine whether a Building Solution complies with the Performance Requirements ." 37 I accept that for the purposes of Part 1.0.9, Mr Howse and Mr Dover are experts, each being relevantly accredited building surveyors. Mr Dover 's opinion 38 Mr Dover was concerned that the occupants of the dwelling house would not be safeguarded as there are unprotected openings (windows and doors) within the external wall of the dwelling and a one-hour fire rating has not been provided against the encroaching deck/carport structure. Similarly the carport/deck structure has not been provided with a one-hour fire protection between the boundary and the structure. 39 In this regard the proposed painting of the structures and the balustrade (including the timber privacy screening) with intumescent paint would not achieve a one-hour fire rating; the gaps between the boards would allow the passage of flame, embers, hot gases and sparks. He also contends that it is not sufficient or acceptable for an expert to just state that an application of intumescent paint to combustible parts of the structures will have a one-hour fire rating. Instead the Performance Requirements relevant to an Alternative Solution should be identified together with the relevant Deemed-to-Satisfy Provisions. Also, being only 1 m to 1.7 m high the balustrade does not constitute a wall and would offer little resistance to the spread of fire to the combustible timber deck and carport and thence to the dwelling itself. 40 Mr Dover also questions the suitability of the materials and the form of construction in the absence of test results by a registered testing authority in the context of the requirements of the BCA. Mr Howse' opinion 41 Mr Howse explained that his solution to the present situation is not a Deemed-to-Satisfy building solution but is instead an Alternative Building Solution and consequently any criticism by Mr Dover that the Deemed-to-Satisfy requirements are not met, is irrelevant. In summary he contends that "... the material of construction and proposed fire rated paint protect the carport and prevents it acting as a means by which fire would spread to the Class 1 residence". 42 More particularly and by reference to Part 1.0.4 ("A Building Solution will comply with the BCA if it satisfies the Performance Requirements") he explained that the existing carport and the deck structure comprise an Alternative Building Solution that achieves a one-hour fire rating and thus satisfies the Performance Requirement in Part 2.3.1 that the Class 1 dwelling house be protected from the spread of fire. This is achieved by the following: The entire carport structure is constructed of spotted (red) gum timber, with the ceiling inside the carport area lined with non-combustible fibre-cement sheeting. Spotted gum timber is one of only seven species tested to date, which does not require fire-retarded treatment for use in bush-fire prone areas and satisfies the criteria specified in the Australian Standard (which for construction in bush-fire prone areas is 3959). In terms of spread of fire across spotted gum timber, the same publication states that it has a ' spread of fire index of only 3 out of 10'. 43 He nevertheless acknowledged that whilst the spotted gum timber used is a hard wood and requires sustained exposure to high temperature to cause ignition, fire rated intumescent paint should be applied to achieve a minimum one-hour fire rating. Hence intumescent paint is to be applied to the carport structure (including posts and beams), to the degree necessary to achieve the necessary fire rating. Also, in response to Mr Dover's concerns, the deck's balustrade and privacy screens along the site boundary should be modified to ensure a one-hour fire rating by providing either fibre cement sheeting or by filling the gaps between the boards. Whichever of these options is chosen it should also be painted with fire rated intumescent paint that can and will achieve a one-hour fire rating for the planes of the structure which are directly exposed to the allotment boundary. 44 He also said that the intumescent paint is not, by itself, used to make the structures compliant but instead to enhance the protection already afforded by "... the inherent fire resisting qualities of the timber materials used." Moreover the reports and publications that he has provided in relation to the materials to be utilised (ie sealants and the spotted gum timber) specify their characteristics. 45 Mr Howse also said that the "unprotected openings" in the external wall of the dwelling that are of concern to Mr Dover are setback well beyond the otherwise required 900 mm setback (ie 3.35 m) from the boundary. These openings (that are not in contravention of any of the fire separation provisions of the BCA) will benefit from the one-hour fire rating of the carport and deck. Intumescent paint and spotted gum 46 The intumescent paint that has and will be used is a product called " Firefree 88 Fire Resistant Paint". According to the product data sheet this paint can withstand temperatures up to 1094°C and will give a one or two hour fire rating depending upon the surface to which it is to be applied. Its effectiveness is subject to it being applied in accordance with the manufacturers specifications. 47 In March 2008 the NSW Rural Five Service issued a Fast Facts document titled Intumescent Paint Systems 1/06 (Release 3). This document explains that the RFS: "... has requested testing reports and to date has not received any information to confirm that there are paints or coatings that comply with the requirements of AS 3959". And that: "As of the 1 March 2008, the RFS will not accept the application of intumescent paints to increase the fire resistance of a combustible material (timber) unless compliance with the requirements of AS 3959 can be clearly demonstrated." 48 In response to these concerns, Mr Howse asserts the effectiveness of intumescent paints and I understand that that such paints are available that comply with AS3959 (Building In A Bushfire Zone Standard). 49 According to Mr Howse the spotted or red gum timber, by reference to the Timber Development Association has a published ignition temperature of over 200°C. This is "...well beyond the range of embers and sparks that they emanate from the fire outbreak in adjoining premises." Also, in the NSW Rural Fire Service's "Development Control Note No 1 - Fire retardant treated timber" indicates that red gum timber satisfies the Level 1 and Level 2 construction requirements of the bushfire Australian Standard. Court's conclusions 50 Had the carport and deck been set back 900 mm from the allotment boundary there would have been no issue as to compliance with the BCA requirements for fire safety. Instead and as a consequence of being set back only about 400 mm from the boundary - a 500mm deficiency - the Performance Requirement for fire separation is not met. This could have been satisfied by compliance with Figure 3.7.1.4 that have requires the construction of a one-hour fire rated wall along the side of the carport opposite the allotment boundary. However the applicant has chosen not to construct such wall and, with the advice of its expert Mr Howse, has chosen to utilise an Alternative Building Solution to meet the requirements of the BCA. This solution has been described and considered in some detail by Mr Howse and Mr Dover. 51 As regards the balustrade and privacy screens these are plainly not the external walls of a dwelling and need not be treated as such. Despite this, because they are situated less than 900 mm from the allotment boundary they must, together with their supporting structures and the carport, be considered to be a threat to the dwelling house. But I accept that this threat can be overcome if they have a one-hour fire rating. 52 As for this Alternative Building Solution, I accept Mr Howse' expertise to the effect that the carport structure and the balustrade and privacy screens will, taking into account: the characteristics of the spotted/red gum timber; the intumescent paint; with the sealing of the gaps between the boards; and the ceiling inside the carport area being lined with non-combustible fibre-cement sheeting, achieve the necessary one-hour fire rating. In these circumstances and taking into account the set back of the dwelling's external wall from the allotment boundary any concerns relating to the openings in that wall are obviated. 53 In all of the circumstances I am satisfied that, subject to the changes recommended by Mr Howse and subject to appropriate conditions the deck and carport comprise an effective Alternative Solution that protects the dwelling house from the spread of fire and thus meets the requirements of the BCA. The appeal is therefore upheld and the council is directed to issue a building certificate. Orders 54 For the above reasons the orders of the Court are: 1. The appeal is upheld. 2. The council is, pursuant to 149F(3) of the Land and Environment Court Act 1979, directed to issue a building certificate for the building works described in the plans marked As Built Drawings 26 Gondola Street, North Narrabeen - Drawing Numbers: BC 01 Rev A (19/10/09) and BC 02 Rev A (16/10/09). The building certificate is to be subject to the following conditions: (i) The carport and deck structure (comprising support structures, balustrades, privacy screens and the underside of the deck/carport ceiling) must be modified as necessary to achieve a one-hour fire rating (ie an FRL of not less than 60/60/60) within 90 days from the making of these orders. (ii) As a minimum the works referred to in condition (i) above shall include the sealing of all gaps with a fire retardant material and the coating of those surfaces of the carport and deck structure that might be exposed to a the spread of fire from the allotment boundary, with intumescent paint to be applied and whenever necessary reapplied in accordance with the manufacturers requirements. All timber utilised is to be spotted gum. (iii) Expert certification of the one-hour fire rating (as referred to in condition (i) above) is to be provided by the owner of the property to the council upon completion of the above works. Such certification is to include any associated documentation (including eg the manufacturers specifications of any products used and certificates of completion of the application or installation of such products). (iv) Any products utilised (to achieve the one-hour fire rating) that have a limited effective life must be identified in the certification and before such products reach this limit they must be reapplied or replaced in a timely fashion such that the one-hour fire rating is continuously maintained. Further expert certification to this effect is to be provided to the council by the owner (at that time) of the property within 30 days of any reapplication or replacement. (v) The continuing use of the deck and carport by the present or any subsequent owner or occupier is subject to compliance with these conditions to the effect that a one-hour fire rating for these structures is maintained. 3. With the exception of Exhibit E (the plans referred to in Order 2 above), the exhibits are returned. ___________________ T A Bly Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.