Land and Environment Court of New South Wales CITATION : Acorn Cove Pty Limited v Sydney City Council [2008] NSWLEC 1352 APPLICANT Acorn Cove Pty Limited PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 11330 of 2007 CORAM: Tuor C Appeal :- fire safety order KEY ISSUES: whether fire safety system adequate LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 05/08/2008 EX TEMPORE JUDGMENT DATE : 5 August 2008 APPLICANT Mr A Pickles, barrister instructed by Mr G McKimm, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr M. Baird, barrister Instructed by Mr M. Fozzard, solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 5 August 2008 11330 of 2007 Acorn Cove Pty Limited v Sydney City Council JUDGMENT 1 This is an appeal against a fire safety order under s 121B - Order 6 of the Environmental Planning and Assessment Act 1979 issued by the City of Sydney Council on 4 December 2007, for the premises at 375-379 Riley Street, Surry Hills. The premises are three adjoining terraces, which enjoy existing use rights for use as a brothel. 2 The terms of the Order 6 specified works to be carried out. The applicant appealed against a number of these works. 3 A conference under s 34 of the Land and Environment Court Act 1979 was held on 2 June 2008. At the termination of the conference, the only matter that remained in dispute was whether the applicant should be required to install an automatic sprinkler system (4.01 of the Order). The applicant instead proposes a smoke detector and an alarm system. 4 The key issue between the parties was whether or not the proposals appropriately address the circumstances in Order 6, namely whether: Provision for fire safety or fire safety awareness are not adequate to prevent fire, suppress fire or prevent the spread of fire or ensure or promote the safety of persons in the event of fire. 5 Mr Pickles, for the applicant, submits that the requirement for an automatic sprinkler system exceeds the requirements for adequacy and that the applicant's proposal is an adequate solution. 6 Mr Baird, for the council, submits that the smoke detector and alarm system are not adequate. 7 The parties both agreed that compliance with the Building Code of Australia (BCA) is not required but that it is an appropriate guide to assess adequacy for fire safety. 8 The Court heard expert fire evidence from Mr Hieu Van Luu, for the council, and Mr M O'Neill, for the applicant. 9 Mr Van Luu's principal concerns related to, (i) the low fire resistance of the construction of the buildings (ii) inadequate egress from the buildings (iiii) type of use and operation of the premises. 10 The experts set out their opinions on these matters in their individual reports and reports in reply. 11 During the hearing Mr Van Luu and Mr O'Neill agreed that the use of the buildings as a brothel would be classified as either class 4 or 5 under the BCA. The requirements under the BCA for both classes are not materially different. Initially Mr O'Neill considered the buildings to be more akin to a class 1 residence, but without the fire source of people cooking or sleeping. 12 The experts agreed that: o The buildings are technically three storeys and each exit can be accessed by no more than one flight of stairs. o The buildings construction would not comply with the BCA requirements, in particular, all stairs are not fire-isolated and those in 375 and 377 are timber. The stairs in 379 have timber treads but steel supporting beams. The floors are timber. The exact construction material of the ceiling is unknown but likely to be plasterboard. 13 In summary, Mr O'Neill considered the smoke detector and alarm system was adequate as it would provide sufficient time for people to evacuate the building in the event of a fire and that there are three fire stations in close proximity to the site. He emphasised that clients are accompanied at all times by staff who are instructed in evacuation procedures. This would ensure a prompt exit from the building, which Mr O'Neill estimated would take up to 5 minutes. 14 Mr O'Neill stated that the smoke detector would set off an alarm throughout the building earlier than the sprinkler would respond to radiant heat thereby providing a longer period for evacuation. In his opinion, the sprinkler system would suppress the fire to protect property but was unnecessary to ensure the safety of people, which is the prime consideration of the Order. 15 Mr Van Luu's opinion can be summarised as being that the smoke detector and alarm system rely heavily on human behaviour as well as the ability of the fire brigade to arrive quickly and undertake search and rescue functions. He was principally concerned that in the event of fire, openings between the terraces and the lack of fire isolation would very quickly cause the stairways to be smoke filled. This would result in people being overcome by smoke or make it difficult for people to pass. He estimated this period to be in the order of 5 to 10 minutes. Findings 16 The question before the Court is whether the provision of a smoke detector and alarm is adequate to prevent fire, suppress fire or prevent the spread of fire or ensure or promote the safety of persons in the event of fire. 17 In determining the question of adequacy, the BCA is an appropriate guide or benchmark for assessment, although compliance is not required. The stated "goals of the BCA are to enable the achievement of minimum necessary standards of relevant health, safety (including structural safety and safety from fire), amenity and sustainability objectives efficiently". 18 The construction of the buildings and the existing fire egress do not meet the requirements of the BCA. Council is not seeking to upgrade the construction of the buildings or require fire-isolated exits. However, Mr Van Luu considers that the proposed sprinkler system would achieve the objectives of the BCA as it would suppress the growth and spread of fire and is not dependant upon human response to a fire for people to exit the building. 19 I accept Mr Van Luu's opinion and consider that the proposed sprinkler system would achieve, but not exceed, the test of adequacy given that the requirements of the BCA are only minimum requirements. 20 In reaching this decision I have considered that, firstly, the alternate system of a smoke detector and alarm system relies heavily on human response. Given the nature of the use (an eighteen room brothel which operates twenty-four hours a day, seven days a week without limitations such as a management plan and permits both alcohol consumption and cigarette smoking) and that patrons may not be familiar with the building, it is not reasonable to expect that people will act in an orderly and rational manner in the event of a fire. 21 Whilst staff will be trained, it cannot be relied upon that they will remain with their clients and assist them to exit the building, nor can it be relied upon that people will evacuate immediately in the event of a fire. 22 Even if Mr O'Neill's estimate of five minutes is used as the basis for evacuation, this period is close to Mr Van Luu's estimate of the time for smoke to make the stair impassable. While these are only estimates the margin for error is very narrow and does not satisfy the test for adequacy. 23 Secondly, having visited the premises, the layout is very confusing with different levels, narrow corridors and stairs. It would be easy to become disorientated in an emergency situation, particularly for people unfamiliar with the premises. 24 Thirdly, the construction of the building does not comply with the structural adequacy requirements of the BCA of 90 minutes and elements of the building would fail in 15 to 20 minutes, based on Mr O'Neill's estimates. Again, this provides little margin for error, given that the speed of evacuation is largely dependant on human response. 25 Fourthly, while the fire brigade may arrive within five minutes there is no evidence that demonstrates that clients and staff would be easily accounted for. While management retains a record of rooms in use the likelihood of clients or some staff remaining to inform relevant people that they have exited the building is slim. This may result in the requirement for the fire brigade to carry out search procedures within a building already affected by fire, which may raise unnecessary safety issues for fire fighters. 26 Fifthly, the sprinkler system coupled with the existing alarm system will alert people to evacuate as well as suppressing the fire. While the alarm is not throughout the building it will enable people close to the fire to evacuate promptly while the sprinkler prevents the spread of fire to other areas. This enables greater time for people to evacuate and for the fire brigade to carry out search procedures if required. 27 Finally, the smoke detector and alarm system does not suppress or prevent the spread of fire, which are relevant considerations in determining the adequacy of the provisions for fire safety. Orders 1. The appeal is upheld in part. 2. Pursuant to S.121ZK of the Environmental Planning & Assessment Act 1979 , the terms of the Respondent's order dated 4 December 2007 are modified as set out in Annexure "A". 3. The exhibits, except exhibits 1, 2, 3 and A may be returned. ___________________ Annelise Tuor 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.