Land and Environment Court of New South Wales CITATION : Owners of Strata Plan 15629 v Sydney City Council [2008] NSWLEC 6 Applicant: Owners of Strata Plan 15629 PARTIES : Respondent: Sydney City Council FILE NUMBER(S) : 10446 of 2007 CORAM: Roseth SC KEY ISSUES: Section 121B Order :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s121B-6 DATES OF HEARING: 16/10/2007, 26/10/2007, 21/11/2007, 08/01/2008 DATE OF JUDGMENT: 10 January 2008 Applicant: LEGAL REPRESENTATIVES: Mr D Grieve SC instructed by Mr J Johnson, solicitor of Bartier Perry Respondent: Mr M Arch, council's solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 10 January 2008 10446 of 2007 Owners of Strata Plan 15629 v Sydney City Council Judgment 1 Senior Commissioner : This is an appeal against the Fire Safety Order issued by Sydney City Council on 17 April 2007 pursuant to s121B-6 of the Environmental Planning and Assessment Act 1979 (the Act) in respect of premises at 80 Bayswater Road, Rushcutters Bay. 2 The apartment building at 80 Bayswater Road was built during the 1920s and upgraded for fire safety in 1980 following an Order under the Local Government Act 1919 . It contains ten apartments under strata ownership. It is common ground that the building does not reach contemporary standards of fire safety. It has timber floors, an open timber stair and non fire-rated ceilings and spandrels. It is also common ground that parts of the Order should be complied with, though the applicant argues that not all. 3 The Order has the following sections: 1.01 Single hand action on exit doors; 1.02 Balustrades to stairs; 1.03 Fire safety measures audit; 2.01 Solid core doors to be provided; 2.02 Removal of security screens; 2.03 Floor penetrations (general); 2.04 Lining of ceilings (non-combustible); 2.05 Storage cupboard under exit stair (cease use); 2.06 Residential sprinkler system (installation). 4 At the first hearing on 16 October 2007 the council's expert was Ms Alison Brown, a building surveyor in the council's Fire Safety Department. The applicant's expert was Mr Stephen Fischer, a consulting building surveyor. The experts had reached agreement on all parts of the order with the exception of section 2.06, the installation of sprinklers. Mr Fisher advocates a different approach, namely the fire rating of ceilings in all kitchens and public areas, the provision of fire blankets in kitchens and an alarm system that connects to the fire brigade and identifies the location of the fire. Ms Brown argues that this solution does not deal with fires that originate in bedrooms and living rooms, nor with the spread of fire from kitchens. 5 It is common ground between the parties that the installation of sprinklers throughout the building would provide a higher level of fire safety than the solution recommended by Mr Fischer. The applicant (which comprises the owners of the ten apartments, most or all of which are owner-occupied) argues, that Mr Fischer's solution would provide adequate fire safety. Adequate is the term used in the Act describing s121B-6 Orders. The applicant does not want the installation of sprinklers partly because sprinklers are more expensive and partly because the applicant believes that the installation requires the occupants to leave the apartments while the system is being installed. 6 It is common sense that, if there were no concern with costs and convenience, then sprinklers should be installed since the parties agree that they provide a higher level of safety. It is therefore important that the Court has reliable information on both costs and convenience. 7 The evidence given at the first hearing by Ms Brown and Mr Fischer relevant to cost and convenience was confusing, with the result that it was not possible for me, on the basis of that evidence, to reach a decision. Mr Fischer estimated the cost of installing sprinklers to be $175,000 and the cost of his recommendation (to the extent that they replaced the need for sprinklers) to be $114,000. The difference between these two figures is $61,000. However, Mr Fischer estimated the difference between the cost of the Order as he proposed to amend it and the cost of the Order as issued, to be $89,000. This is illogical, since the two figures should be equal. 8 Ms Brown, on the other hand, suggested that the cost of installing the sprinklers would be only $61,000. Her figure is based on a telephone conversation between her superior officer and an installer of sprinklers, in which the installer was given some information about the building. Clearly, Ms Brown's figures are also unreliable. However, for Mr Fischer's estimate to be correct, Ms Brown's would have to be not just wrong, but disastrously wrong. If Ms Brown is correct, the cost of installing sprinklers is a great deal less than the supposedly cheaper solution advocated by Mr Fisher. The difference between the two estimates is too great for me to have confidence in either of them. 9 As regards the inconvenience that the installation of sprinklers would cause to the occupants of the apartments, the Court had no evidence whatever. Would the occupants have to leave their apartments, and, if yes, for how long? A day or two, or a month or two? At the first hearing, these questions were not even asked, let alone answered. 10 To reach a decision based on more reliable information, I directed the parties to appoint a joint expert. At the hearing on 8 January 2008 Ms Debbie Fisher, an engineer with long experience in the installation of sprinklers, told the Court that the cost of installing sprinklers would be about $125,000. The additional cost of installing sprinklers over the safety measures advocated by Mr Fischer is in the order of $25,000, or $2,500 for each apartment. This is not a sum that would justify a second best solution, even if it were found to be adequate . However, in Ms Fisher's opinion, the solution advocated by Mr Fischer is not adequate, since it involves the fire rating of ceilings only in kitchens. She would accept the alternative solution as adequate only if all the ceilings in the building were fire-rated. If this were done, the cost would be far in excess of the sprinklers solution. 11 As concerns convenience, Ms Fisher said that installing sprinklers in an apartment would take three days. The occupants would be inconvenienced during that time, but they would not have to leave the apartment. There is therefore no substance to the applicant's claim that the installation of sprinklers would cause serious inconvenience. 12 A further dispute between the parties relates to the time for compliance. The council's Order specifies two months for some of the simple requirements (referred to as Stage 1) and six months for the more elaborate work such as the installation of sprinklers (referred to as Stage 2). The applicant wants six months for Stage 1 and a year for Stage 2. I do not accept that the Stage 1 works need more than two months to complete. According to Ms Fisher, the installation of sprinklers would take two months for the whole building. Even with keeping the council's deadline, the applicant would have four months to prepare for the works. I see no reason to change the compliance period specified in the council's Order. 13 On the basis of Ms Fisher's evidence the Court has no reason to amend the council's order, other than for amendments on which the parties have agreed. The orders below give effect to this conclusion. Orders 1. The appeal is dismissed. 2. Fire Safety Order issued by Sydney City Council on 17 April 2007 pursuant to s121B-6 of the Environmental Planning and Assessment Act 1979 in respect of premises at 80 Bayswater Road, Rushcutters Bay is confirmed except for the amendments agreed to by the parties. 3. The amended order is as at Annexure A. 4. The exhibits may be returned. ___________________ Dr John Roseth Senior Commissioner Appeal No 10446 of 2007 Annexure A Owners Strata Plan 15629 v Sydney City Council 08 January 2008 THE OWNERS – STRATA PLAN NO.15629 C/- Body Corporate Services Lower Ground Level 323 Castlereagh Street SYDNEY NSW 2000 ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979 SECTION 121B-6 FIRE SAFETY ORDER Premises: 80 Bayswater Road, RUSHCUTTERS BAY NSW 2011 You being the owner in respect of the property at the abovementioned premises are ordered by Sydney City Council to do such things as are specified in the order so as to ensure and promote adequate fire safety and fire safety awareness within the subject premises. The specified works given below shall be completed to the satisfaction of Council within the compliance period detailed below. Circumstances in which an Order number 6 can be given: (a) Provisions for fire safety or fire safety awareness are not adequate to prevent fire, suppress or prevent the spread of fire or ensure or promote the safety of persons in the event of fire; (b) Maintenance or use of the premises constitutes a significant fire hazard Premises the subject of the Order: 80 Bayswater Road, Rushcutters Bay NSW 2011 Lots 1 – 10, SP 15629, Lot 51, DP 80136 Compliance Period: Pursuant to s.121M of the Environmental Planning and Assessment Act 1979, the period for compliance with this order will be as follows: I. Stage 1 works shall be completed within 60 days from the date of service of this order upon you ; II. Stage 2 works shall be completed within 180 days from the date of service of this order upon you; Relevant Authority: The relevant legislative provision is section 121B-6 of the Environmental Planning and Assessment Act, 1979. Terms: The terms of the Order are: THE SPECIFIED WORKS 1. SAFETY OF PERSONS IN THE EVENT OF FIRE 1.01 Single hand action on exit doors That the final exit doors shall be operable by single handed downward action or pushing action in accordance with the requirements of D2.21 of the BCA. Locking snibs and padlocks are not permitted and are to be removed; (Works to be completed as part of Stage 1) 1.02 Balustrades to stairs That balustrades to the stairs to the premises should be extended to comply with the height requirements of D2.16 of the BCA; (Works to be completed as part of Stage 1) 1.03 Fire safety measures audit That an audit shall be performed on all required fire safety measures installed within the building and such remedial works shall be undertaken to ensure that those required measures are capable of operating/performing to at least the standard for which the measure was originally designed and implemented. The required measures are specified in the attached fire safety schedule pursuant to clause 168 of the Environmental Planning and Assessment Regulation 2000 ; ( Works to be completed as part of Stage 2 ) 2. THE PREVENTION OF THE SPREAD OF FIRE 2.01 Solid-core doors to be provided That the doors of the following areas shall be at least of solid timber core construction, 35mm thick, tight fitting and fitted with an approved self-closing device designed to bring the doors to the fully closed and latched position after each manual operation; (a) store rooms/cleaners room; (b) all doors to sole occupancy units; (c) all other rooms opening on to the common corridor/stairway; ( Works to be completed as part of Stage 2 ) 2.02 Electromagnetic Door Holders An electromagnetic door holder is to be installed for the entry door for each unit with a security door. Upon the activation of the building's fire detection system door holders are to release any entry door then being held open enabling the self-closing device on the door to automatically shut the door. ( Works to be completed as part of Stage 1 ) 2.03 Floor penetrations (general) That penetrations in the floors shall be sealed with a smoke-resistive material. The smoke-resistive material shall accord to the relevant requirements of Specification C2.5. All work shall be completed to the satisfaction of Council; ( Works to be completed as part of Stage 1 ) 2.04 Lining of ceilings (non-combustible) That the underside of all floors in the building in areas that are not lined, such as the laundry area, be lined with one of the following materials - (a) 13mm fir-protective grade plasterboard; (b) Perforated gypsum lath with a normal paper finish; (c) Fibrous-plaster sheet conforming to AS 2185 specification for fibrous plaster products; (d) Fibre-reinforced cement sheeting; (e) Any other material, upon formal application that is subsequently approved by Council; fixed in accordance with the normal trade practice for a fire protective covering. Appropriate documentation is to be provided from a suitably qualified person or company attesting compliance. ( Works to be completed as part of Stage 2) 2.05 Storage cupboard under exit stair (cease use) The cupboard beneath the fire exit stairs is to be upgraded so that it has resistance to the incipient spread of fire of at least 60 minutes and a self-closing fire door with an FRL of at least -/60/30. ( Works to be completed as part of Stage 1 ). 2.06 Residential sprinkler system (installation) That a residential sprinkler system shall be installed throughout the building. The system shall comply with a standard of installation and maintenance in accordance with the requirements of Australian Standard 2118.4 and the relevant requirements of Specification E1.5 of the BCA. A distinctive alarm signal shall be automatically transmitted to an approved, constantly manned fire alarm receiving centre, in accordance with AS 2118.1. The sprinkler system shall be designed and installed in a manner that aims at preserving as much as possible the building's existing heritage fabric. General details of the proposed sprinkler system are to be submitted to Council prior to the initiation of the works (i.e. pipe colours, type of sprinkler head (sidewall preferred) and manner of fixing etc); ( Submission details are to be completed as part of Stage 1. Commissioning of works to be completed as part of Stage 2) ATTACHMENT TO ORDER 121B-6 FIRE SAFETY SCHEDULE CLAUSE 168 ENVIRONMENTAL PLANNING & ASSESSMENT REGULATION 2000 FIRE SAFETY MEASURES CURRENTLY OR PROPOSED TO BE IMPLEMENTED IN THE BUILDING MINIMUM STANDARD OF PERFORMANCE Premises: 80 Bayswater Road, RUSHCUTTERS BAY NSW 2011 Date of Order: 17 April 2007 Order Ref: S052708/AEB FIRE SAFETY MEASURES Current Proposed Minimum Standard or Standard of Installation 1 Automatic smoke detection and alarm system Specification E2.2a (3) of the BCA 2 Automatic fire suppression system (residential sprinkler) Specification E1.5 of the BCA/AS2118.4 3 Building occupant warning system Clause 6 of Specification E2.2a of the BCA 4 Electromagnetic door holders to residential sole-occupancy units AS 4178/ C3.11 of the BCA 5 Emergency lighting Ordinance 70 Clause 55.12 6 Exit signs Part E4 of the BCA 7 Fire alarm communication link (for sprinklers) Specification E2.2a (7) / AS 1670.3 8 Fire resistive incipient spread of ceiling of not less than sixty (60) minutes to the laundry at lower ground level A2.5 of the BCA 9 Smoke sealing to openings in floors of the building Item 2.03 of Council's Fire Safety Order dated 17 April 2007 10 Hose reel system AS 1221, AS 2441 Ord. 70 clause 27.2 Ministerial Specification 10 11 Portable fire extinguishers E1.6 of the BCA/AS 2444 12 Fire doors to entry doors to units, under stairs cupboards, cleaners/store rooms and all other rooms opening to the common stairway/corridor Part C and D of the BCA / AS 1905.1 On completion of the work, the owner of the building shall cause the Council to be furnished with a "Final Fire Safety Certificate" in relation to each essential fire or other safety measure included in this schedule. The certificate shall meet with the requirements of Part 9 Division 4 of the Environmental Planning and Assessment Regulation 2000. A copy of the certificate is to be given to the Commissioner of New South Wales Fire Brigades, and a further copy is to be prominently displayed in the building in a location specified by the Council. In addition to the above, it will be necessary at least once in each period of 12 months from the date of the above "Final Fire Safety Certificate" for the owner of the building to furnish the Council with respect to each essential fire or other safety measure implemented in the building, an "Annual Fire Safety Statement" pursuant to the requirements of Part 9 Division 5 of the Environmental Planning and Assessment Regulation 2000 the details of which will be available on application. Glossary Term Definition The Building Code of Australia (BCA) is produced and maintained by the Australian Building Codes Board (ABCB) on behalf on the Australian Government and each State and Territory Government. The BCA is a uniform set of technical provisions for the design and construction of buildings and other structures throughout Australia whilst allowing for variations in climate and geological or geographic conditions. BCA The goals of the BCA are to enable the achievement and maintenance of acceptable standards of structural sufficiency, safety (including safety from fire), health and amenity for the benefit of the community now and in the future. The edition (year) of the BCA used in compliance with the order will be the edition current at the time of the Order being issued. The BCA is published in two volumes: Volume One pertains to Class 2 to 9 buildings; Volume Two pertains to Class 1 and 10 buildings. Certification Means a certificate or other approved form of written correspondence issued by an appropriately qualified person stating that the properties and or performance of a material, product or system, method of construction or design meet with the specific requirements of the order. Fire-resistance level (FRL). Means the fire resistance [in minutes] of a building element determined in accordance with Specification A2.3 of the BCA, for the following criteria: Structural adequacy; and FRL Integrity; and Insulation And expressed in that order Details (to be submitted) Means architectural building plans, drawn to industry standards, having an appropriate scale(s), elevations, sections and accompanied with suitable specification dealing with materials methods of construction and design. Smoke Resistive Construction A form of non-combustible construction which has subdividing walls, floors or other smoke barriers in it required to contain/minimise smoke movement throughout a building during a fire. 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.