Ong v North Sydney Council [2011] NSWLEC 1070

Land and Environment Court New South Wales

Medium Neutral Citation: Ong v North Sydney Council [2011] NSWLEC 1070 Hearing dates: 3 March 2011 Decision date: 03 March 2011 Jurisdiction: Class 1 Before: Murrell C Decision: The appeal in respect of the property known as unit 45 at No. 48 Upper Pitt Street Kirribilli is dismissed. Catchwords: APPEAL: s.121 Order to remove and cease using LPG cylinder within unit for cook-top; risk of explosion and fire and hazard to occupants in building and surrounding premises and to fire rescue and ambulance personnel. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act Australian Standard 1596:2008 Category: Principal judgment Parties: David Ong (Applicant) North Sydney Council (Respondent) Representation: Mr K Ong (Litigant in person) Mr P Marincowitz, Solicitor (Respondent) File Number(s): 11025 of 2010

EXTEMPORE Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1The applicant in these proceedings has appealed against an order issued by North Sydney Council under s 121B of the Environmental Planning and Assessment Act 1979, in respect of unit 45 at 48 Upper Pitt Street Kirribilli. This matter commenced as a s 34 conciliation conference under the Land and Environment Court Act . It became clear that the parties would not reach agreement and they both consented to me adjudicating the matter under s 34(4) of the Court Act. 2Those in attendance at the on-site hearing this morning are: Mr Kiem Ong, who has written authority to represent his son David Ong, the owner of the subject unit and the litigant; Mr Fuller, the managing agent for the unit that is currently leased. On behalf of the respondent council, Mr Peter Marincowitz solicitor appeared and evidence was heard from Mr David Taylor, duty commander of the Metropolitan North area located at Crows Nest for New South Wales Fire and Rescue; Mr Anthony Hilt, fire safety officer, North Sydney Council; Superintendent Warwick Isemonger, Manager of the New South Wales Fire Brigade's building compliance unit; and Mr Matthew Fleming, the chairman of the strata plan for the owners corporation. 3The subject unit is on the south-west corner of the eight floor of a residential flat building constructed about the 1960's. The subject unit is two-bedroom, bathroom and a combined living lounge dining area. 4The building has lift access and a single set of internal stairs between floors that are not fire isolated. The building does not have balconies. Adjoining the subject site to the west and south is St Aloysius School, and other development within the area is generally residential in nature. 5The applicant is appealing against the council's order to remove the LPG gas bottle that is located in the kitchen cupboard next to the electric stove and which supplies gas for the gas cooktop, located directly above the electric oven. 6The council issued an emergency order 13 December 2010 and the terms of this order are as follows: EMERGENCY ORDER NO.6 UNDER SECTION 121B OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 SUBJECT PREMISES: Unit 45/48 Upper Pitt Street, Kirribilli NORTH SYDNEY COUNCIL, in the exercise of its functions under Section 121B of the Environmental Planning and Assessment Act 1979, hereby orders you, as the owner of Unit 45, 48 Upper Pitt Street, Kirribilli as follows:- Terms of Emergency Order 1. Remove the LPG gas bottle from within the abovementioned unit. 2.Replace the LPG gas bottle servicing the kitchen facility within the unit to its original power source or that, which is acceptable by Council. All work to be conducted by an appropriately qualified person, with appropriate certification to be provided once work has been completed in accordance with the applicable standards and legislation. Reasons for Emergency Order 1. The provision of an LPG Gas bottle within Unit 45/48 Upper Pitt Street, Kirribilli is considered not adequate to provide fire safety of persons or to prevent the spread of fire within the subject unit in that: The provision of an LPG Gas bottle is not in accordance with Australian Standard 1596/2008 (The Storage and Handling of LP Gas) and therefore is a potential fire hazard as referred to in Council's correspondence dated 18 October 2010. The provision of an LPG gas bottle within the subject unit puts at risk the life safety of the occupants and NSW Fire Brigade should a fire occur within the subject unit. 2. The provision of an LPG Gas bottle within Unit 45/48 Upper Pitt Street Kirribilli is not supported by the NSW Fire Brigade as stipulated by the attached email correspondence to North Sydney Council dated 10/12/10. The Terms of the Order must be complied with within 7 days for the date of this Order 7The respondent contends that the LPG gas cylinder does not comply with the Australian Standard 1596 2008, as there is an alternative method of cooking available for the cooktop. That is electricity. The respondent contends that there are real safety risks and the applicant has not provided any contrary evidence. Furthermore, the respondent contends that the LPG gas cylinder bottle located inside the premises would be an undesirable precedent. 8The applicant states that the gas cooktop has been installed as there is no town gas available and this is the owner's preferred method of cooking. The applicant states that the Owners' Corporation was advised of the intention to refurbish the premises including the kitchen and their approval was given in April 2009 with the refurbishment works commencing in July 2009 and completed in November 2009. The applicant states that as part of the refurbishment works a gas cooktop was installed as the desired method of cooking and as the building is only supplied with electrical connection, which is not the method in which the applicant wishes to cook. 9In December 2009, the Owners' Corporation requested that the applicant remove the gas cylinder and the applicant advised that in his opinion installation is permitted under the Australian Standard 1596:2008. However, no correct certification was provided. 10The applicant proposes that the gas cylinder be relocated to a cupboard facing the living room so that it will be kept away from flame heat or other ignition sources and that he intends to install high and low level ventilation louvres to the cupboard housing the LPG cylinder and that there is an openable window to provide natural ventilation. The applicant is also prepared to install a gas detection system for possible leakage and that the gas cylinder valve be closed after each use to address the respondent's concern for dissipation of pooling gas. 11The applicant also contends that the respondent has not assessed its case and it has failed to properly brief the New South Wales Fire Brigade. The applicant maintains that the gas cylinder bottle is in accordance and in compliance with the Australian Standard. 12A copy of the Australian Standard was provided entitled ' The storage and handling of LPG - AS 1596:2008' . Section 2.3 is "for minor storage and usage of LP gas" and this states: (a) The use and storage of cylinders of LP Gas indoors, whether full or nominally empty, should be avoided whenever practicable. Cylinders should preferably be located out-of-doors. (d) Users of LP Gas should be aware of the hazards and risks of its storage and use. (e) Cylinders shall be kept upright in a well-ventilated area away from flame, heat or other ignitions sources. (f) Cylinders shall be protected from excessive temperature rise. (j) Cylinders shall be kept in a location that does not hinder the escape of people, and is away from any combustible or waste materials. 13Section 4.4.4, for cylinders indoors states: "The use of LP gas cylinders indoors is not recommended. Where are an outdoor cylinder and piping system cannot be provided, indoor usage of cylinders shall be restricted to portable appliances and equipment as specified in section 2 of this standard". 14The respondent contends that there is a reasonable alternative, that is electricity, and therefore it is reasonably practicable to avoid the use of the gas cylinder as contained in clause 2.3(a) of the Australian Standard. Council further contends that the hazards and risks associated with the proposed use of the gas cylinder are unacceptable, given that the cupboard is manufactured from combustible material and there is no permanent ventilation to outside air. Furthermore, the respondent contends that the gas cylinder will not be sufficiently protected from excessive temperature and will not be kept sufficiently away from combustible materials. 15In support of the respondent's position, the Court heard evidence from the New South Wales Fire and Rescue and Sgt Isemonger. Documents were tendered that included a material safety data sheet for LP gas and this includes facts on the following: volatility; flashpoint and exposure; flammability limits that show it to be highly flammable and when mixed with air may be flammable or explosive with the gas heavier than air and there is risk of remote ignition. Also tendered was a post-incident analysis report of a vapour explosion in a residential unit at Cabramatta. This explosion occurred due to a release of gas from a 4.5 kg LPG cylinder, dispersing through the unit until reaching an ignition source, causing a deflagration explosion. The force of the explosion caused structural damage to the unit, including forcing the front door outwards, opposite to the way the door is swung, also the front double sliding aluminium window frame was displaced and found on the front lawn of the units. Contributing factors to the explosion include: a propane gas release forming a flammable vapour cloud physical properties of the gas .................. the presence of ignition source occupant behaviour inappropriate storage and use of LPG equipment. There were two adults and two children at home at the time of the incident and all four occupants were injured. The most severe burns were a 4-year-old girl however, the injuries were minimised due to the quick action of the firefighters filling a bath with cold water and immersing the child whilst awaiting medical attention. The report also addresses the need to inform the public into the hazards of using LPG as a cooking or heating device in non-ventilated areas. The child spent one month in intensive care. 16Another incident at Queanbeyan was from a unit in a block of twelve where two of the units were completely destroyed by an LPG explosion, which took place in a unit on the first floor. The explosion was caused by an LPG cylinder. The photographs show considerable structural damage to the brick walls and framing, with the roof and windows blown out. The gas cook-top on the stone was in the 'turned on' position. 17An information sheet on liquefied petroleum gas, states that "LPG is heavier than air and thus will flow along floors and tend to settle in low spots such as basements. This can cause ignition or suffocation hazards, if not dealt with". Regulation 2004, sets out requirements and restrictions on connection of gas appliances and the requirements for certification for connections. The evidence of the experts from New South Wales Fire and Rescue is that the connection of the gas cook-top to the LPG cylinder has not been undertaken in an authorised way and would fail certification from an appropriate qualified person. 18The respondent tendered a letter from the New South Wales Government Fair Trading Department and the following comments were made: First , if the cook top has been modified to operate with the LP Gas cylinder and the modification has not been approved under the Gas Supply (Consumer Safety) Regulation 2004 (the Regulation), it is an offence to connect the cook top. Secondly, such a modification would be contrary to clause 2.4.2 of Australian Standard AS 4551-2008 Domestic gas cooking appliances which requires the appliance to be connected to a fixed consumer piping outlet. Thirdly , connection of the cook top to the gas cylinder would be "gasfitting work" which the Regulation regulates. Relevantly, clause 21 requires that work to comply with Australian Standard AS/NZS 1569-2008, The storage and handling of LP Gas ... 19Sgt Isemonger informed the Court that the gas is compressed by some 273 times for liquid petroleum gas and as such, the gas cylinder of 9 litres, is about 2500 that would last for two days if a gas oven is left on continuously. He also told the Court that LPG is two-and-a-half times heavier than air and natural gas is half the weight of air. As such, LPG cools at low levels and collects in dank areas, as such it is highly unstable and inflammable, with a low flashpoint and mixing with air, it becomes explosive. In areas that are not ventilated, the gas sits at a low level and therefore storage is of utmost importance, due to the risk of explosion. 20In my assessment the incidents provided to the Court demonstrate that fire fighters are placed at great risk when attending a fire in a block of units. NSW Fire and Rescue would need to evacuate the whole building and within a 200 m radius around the building, and this would include the school. I accept the evidence that the LPG cylinder located within the subject unit is potentially a high risk of explosion and clearly this is a life-threatening situation that should be avoided. 21During the proceedings the experts advised that the inherent danger of a gas cylinder inside the unit is a great risk to the safety of people in and around the vicinity and to community workers including the fire and ambulance service. The cylinder potentially becomes a projectile in the event of an incident. It was further explained to the proceedings that it takes little to ignite including the mere action of the refrigerator kicking in, or a spark from a mobile phone within the unit. 22The applicant submits that the Australian Standard provides leeway in 2.3(a) "the use and storage of cylinders of LP gas indoors should be avoided wherever practicable, and cylinders should preferably be located out of doors". Mr Ong considers that this does not prohibit the use of LPG cylinders indoors and that the applicant is prepared to put in a gas detection system and an alarm, as shown in the supplementary facts provided to the Court, and a non combustible cupboard,. 23For the respondent Mr Marincowitz submits that there are three key elements: the LPG cylinder does not comply with the Australian Standard; there is an alternative and therefore it should be avoided wherever practicable, the alternative being electricity for a cook-top; and that there are real safety issues with the use of an LPG cylinder for an installed gas cook-top. Furthermore, Mr Marincowitz states that the applicant has not provided contrary evidence and the approval of the LPG cylinder inside for use of a gas cook-top, would be a most undesirable precedent. 24The provisions of 121ZK provide the Court with wide powers to make, vary, or substitute orders, as issued by the council. In my assessment, having regard to the evidence to the Court, in particular that of the New South Wales Fire and Rescue, I am not satisfied that the LPG cylinder should remain in the unit. In my assessment, based on the properties of LPG and its high volatility when stored indoors, it creates an unreasonable and unnecessary risk to not only occupants of the building and surrounding area, but to community personnel including the New South Wales Fire and Rescue and the Ambulance Service. 25I do not accept the applicant's submission that the Australian Standard in 2.3(a) should be interpreted to allow an LPG cylinder adapted to a gas cook-top. I accept the submission of the respondent that subcl (a) is clear in its terms and must be given a commonsense interpretation, that is, it should be avoided wherever practicable. In the circumstances of this case there is a clear and practicable alternative and that it is an electric cook-top. A person's personal preference for indoor cooking with LPG as opposed to an electric cook-top, should not be allowed under any circumstances and the paramount requirement for safety and precaution must be observed at all times and especially where other people's lives are potentially put at risk. 26I have determined the LPG cylinder should not be allowed to remain in subject unit as it poses a severe risk to life. The constraints of the design of the building with no balconies means that a gas cylinder cannot be stored outside and also importantly the lack of a fire isolated staircase means that in the event of any leakage given the properties of the gas being two-and-a-half times heavier than air, means that it would escape under the main front door and down the dual purpose fire stair that also provides direct access to the units served by the same stair well. 27Based on my assessment of the evidence of the experts the situation of a gas cook-top connected to an LPG cylinder should not be allowed to remain and the danger and risk can not be overcome by a gas detection system, or an alarm, or leaving a window open in the unit for ventilation as these measures that would not prevent a serious incident occurring. If the applicant chooses to cook with gas, the applicant also has the choice of a property that has town gas available. It is irresponsible for an LPG cylinder to be used for the purpose that the applicant seeks. 28In my determination I have also had regard to the applicant's proposed alternative location, to the other side of the kitchen facing the living room, in a fire rated non combustible cupboard however from the evidence of the experts this would not overcome the inherent risks associated with LPG cylinders stored indoors nor would it prevent a potentially most serious and hazardous incident. An individual personal preference cannot override or neglect to have proper regard to the Australian Standard that reflects the collective knowledge and experience of experts for the protection and safety of the community. 29In the circumstances the LPG cylinder should be decommissioned immediately, that is, of today. I do not accept the applicant's submission that a convenient time would be when the current tenant vacates the subject unit say in May. The owner of the unit has the option of installing an electric cook-top at his own convenience. It is not a matter for this Court as to the arrangements the owner makes with the tenant during the period before an electric cook-top is installed but clearly the purchase and installation is not a complicated matter. Furthermore the Court must put the safety of all persons above this, including that of the tenant. 30Accordingly, based on my assessment and determination above the formal Orders of the Court are: 1. The appeal in respect of the property known as unit 45 at No.48 Upper Pitt Street Kirribilli is dismissed. 2. The Emergency Order issued by North Sydney Council on 13 December 2010 is confirmed with modifications and the following Order is made: EMERGENCY ORDER NO.6 UNDER SECTION 121B OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 SUBJECT PREMISES: Unit 45/48 Upper Pitt Street, Kirribilli Terms of Emergency Order 1. Remove the LPG gas bottle from within the abovementioned unit and in the future not store or operate an LPG cylinder in the unit. 2. Any future cook-top for the unit must only be connected to electricity and installation is to be carried out by an appropriately qualified person, with appropriate certification to be provided once work has been completed in accordance with the applicable standards and legislation. Reasons for Emergency Order 1. The provision of an LPG Gas bottle within Unit 45/48 Upper Pitt Street, Kirribilli is considered not adequate to provide fire safety of persons or to prevent the spread of fire within the subject unit in that: (a) The provision of an LPG Gas bottle is not in accordance with Australian Standard 1596/2008 (The Storage and Handling of LP Gas) and therefore is a potential fire hazard as referred to in Council's correspondence dated 18 October 2010. (b) The provision of an LPG gas bottle within the subject unit puts at risk the life safety of the occupants and NSW Fire Brigade should a fire occur within the subject unit. 2. The provision of an LPG Gas bottle within Unit 45/48 Upper Pitt Street Kirribilli is not supported by the NSW Fire Brigade as stipulated by the attached email correspondence to North Sydney Council dated 10/12/10. The Terms of the Order must be complied with immediately by 4pm today, the date of this Order. Failure to comply with the requirements of this Order on or before the specified date is an offence pursuant to Section 125 of the Environmental Planning and Assessment Act 1979. You are further advised that in accordance with Section 121ZJ of the Act, if the Order is not complied with Council may do all such things as are necessary or convenient to give effect to the terms of the Order, including the carrying out of any work required by the Order. Any expenses incurred by the Council together with all the associated costs may be recovered by Council in any Court of competent jurisdiction as a debt due to the Council by you. J S Murrell Commissioner of the Court