Land and Environment Court New South Wales Medium Neutral Citation: The Owner Strata Plan 80129 v Bankstown City Council [2013] NSWLEC 1266 Hearing dates: 24 June 2013 Decision date: 24 June 2013 Jurisdiction: Class 1 Before: Dixon C Decision: See orders following paragraph 17 Catchwords: APPEAL - fire safety order - 121B of the Environmental Planning and Assessment Act 1979 Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: The Owner Strata Plan 80129 (Applicant) Bankstown City Council (Respondent) Representation: Mr N Eastman (Applicant) Mr D Baird (Respondent) Makinson d'Apice (Applicant) Marsdens Lawyers (Respondent) File Number(s): 11150 of 2012 Ex tempore Judgment Introduction 1COMMISSIONER: These proceedings (Matter No: 11150/2012) between the applicant, The Owner Strata Plan 80129 and the respondent, Bankstown City Council, concern an appeal against an order issued by the Council to the applicant pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (EP&A Act) on 19 October 2012 (the Order). 2The proceedings were the subject of a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the Act). At the conference the parties were unable to reach agreement about the matters in dispute so the conference was terminated and the matter was listed for hearing today. 3Just prior to today's hearing date however, the Court was informed that the parties had in fact reached an agreement - based on matters that had been discussed in the s 34 conferences. The parties now request that the matter be dealt with by way of a consent orders. 4The parties agree that the Court can have regard to the evidence given during the s 34 conferences including the matters discussed at the commencement of the onsite conference and during the inspection of the development on 30 January 2013. They also agree that the Court can have regard to the input from Fire and Rescue New South Wales and the evidence Council's Senior Building Surveyor Mr Harry Lambros given during the conference. 5I have been today provided with some reports in respect of investigations, which support the making of the consent orders that have been filed with the Court today. They are: Exhibit C, which is an expert report, prepared by Mr Lee Clark of AED Consulting dated 13 May 2013. The report relates to fire and smoke modelling of the development. Exhibit D, which is a further expert report, prepared by Mr Nathan Halstead of AED Consulting, dated 13 May 2013. The report relates to the requirements of the Council fire order for the development. Exhibit E, which is a town planning report prepared by Anthony Rowan of ARPL dated 22 May 2013. The report relates to advise about the potential planning implications arising from the recommendations contained in the statement of evidence of Nathan Halstead (Exhibit C). Exhibit B, which is a photograph of the premises that shows the area or part of the area that I observed when I attended the view on 30 January 2014. 6The amended statement of facts and contentions dated 24 April 2013 which is (Exhibit 8) records that the parties are in agreement about the following matters: The Order 7The Order is annexed to the Applicant's Class 1 Application, filed on 15 November 2012 with the Court. The Order directed the Applicant to do the following: "Fire separate each floor into two fire resistant areas for the residential part of the builder at 4 West Terrace Bankstown, with the construction of fire resistant walls along the plane of the external wall of the list shaft and ventilation shaft facing the central courtyard void area so that the public corridor/ balcony providing access and egress to the residential sole occupancy units is fire separated from the central courtyard void area. The fire resistant walls must comply with the following: (a) Have an FRL of not less than 60/60/60 and extend to the underside of- (i) The floor of the public corridor/ balcony above; or (ii) The rood ceiling having a resistance to the incipient spread of fire of not less than 60 minutes. (b) Have any openings, penetrations and the junctions of the fire resistant wall and the remainder of the building protected in accordance with Part C3 of the BCA. To ensure that both fire isolated exits are available at each floor, provide a doorway within the fire resistant wall that encloses the public corridor/ balcony that provides egress to the second exit. The doorway to the fire resistant wall is to be fitted with a self closing fire door having an FRL of -/60/30, complying with Specification C3.4, D2.20 and D2.21 of the BCA. Ensure that the design and construction of the fire resistant walls will comply with Performance Requirement FP1.4 of the BCA. Submit details to Council of the proposed building work demonstrating compliance with all of the requirements of this Term of the Order prior to initiation of the building works. Submit the abovementioned details to Council by no later than 90 days from the date of this Order. Submit to Council the final certification on completion of the building works, demonstrating compliance with all of the requirements of this Term of the Order. (Order 1.01) The Statutory Context 8The Order was issued to the applicant by the Council pursuant to s 121B of the EP&A Act. 9The Order was issued to the Applicant in accordance with Line 6 of the Table in s 121B of the EP&A Act. Particulars (a) the "premises" specified in the Order includes the 96 lot strata development being Strata Plan 80129 that is situated on the Land; (b) the Applicant is responsible for fire safety of persons on the premises in the event of fire; (c) the premises, the subject of the Order is a "building" for the purposes of the EP& A Act; (d) "premises" is defined in the EP& A Act to mean "... a building of any description or any part of it and the appurtenances to it..." (e) "building" is defined in the EP & A Act to mean "a part of a building, and also includes any structure or part of a structure..." (f) The Applicant is the registered proprietor of Strata Plan 80129, the subject of the Order. The Circumstances surrounding the Order 10On 13 September 2012 the Applicant was issued with an Emergency Order (the Emergency Order) by the Respondent under s 121B of the EP&A Act to, among other things: Remove the louver roof construction located at roof level, including all horizontal louvers, guttering, polycarbonate roofing and roofing elements; (Order No. 1). 11In accordance with the Emergency Order, the Applicant arranged for the louver roof construction including all horizontal louvers, guttering, polycarbonate roofing and roofing elements to be removed. 12The Respondent issued a Notice of Proposed Order in relation to fire safety measures separate to those subject to the Emergency Order on 3 October 2012. 13The Applicant responded to the Notice of Proposed Order on 15 October 2012. 14The Respondent issued the Order on 19 October 2012. 15The Applicant commenced proceedings in the Land and Environment Court objecting to the Order (Order 1.01) on 15 November 2012. Contentions 16The Applicant contends that Order 1.01 of the Fire Order dated 19 October 2012 issued by Bankstown City Council be varied in accordance with the performance based solutions recommended by the experts as set out in the expert evidence relied upon by the Applicant in these proceedings pursuant to the power provided to the Court in accordance with section 121ZK of the EP&A Act. Particulars (a)Correspondence from Nathan Halstead, AE & D Consulting Pty Limited to Harry Lambros, Bankstown City Council dated 7 November 2012, and (b)Correspondence from Nathan Halstead, AE & D Consulting Pty Limited to Barry Burke, Bankstown City Council dated 22 November 2012. Conclusion 17After a consideration of all of the evidence and the relevant law as stated and with the consent of the parties the Court makes the Consent orders filed with the Court which I now read onto the record: Consent Orders 1. The Order given by the Respondent to the Applicant dated 19 October 2013, a copy of which is annexed and marked "A", is modified pursuant to section 121ZK(4)(b) and (c) of the EP&A Act as follows: (a) Substitute the following for item 1.01 under the heading "1. Safety of Persons in the Event of Fire": 1.01 Floors to be enclosed in glazing wall construction 1. Separate each floor into two enclosed areas for the residential part of the building at 4 West Terrace, Bankstown with the construction of glazing walls parallel to the plane of the external wall of the lift shaft and ventilation shaft facing the central courtyard void area so that the public corridor/balcony providing access and egress to the residential sole occupancy units is separated from the central courtyard void area. 2. The glazing wall should be constructed to comply with the following: (a) The glazing walls must be separated by slab or other horizontal construction: (i) projects outwards from the face of the glazing wall not less than 1.1 metres and (ii) is noncombustible and has a fire rating level (FRL) of not less than 60/60/60. (b) The glazing walls are to be designed and installed in accordance with Australian Standard AS12882006 and extend to the underside of - (i) the floor of the public corridor/balcony above; or (ii) the roof ceiling having a resistance to the recipient spread of fire of not less than 60 minutes. (c) All openings, penetrations and the junctions of the glazing wall and the remainder of the building should be stopped with noncombustible material to prevent the free passage of smoke. (d) The glazing should be marked to make it visible in accordance with the relevant provisions of cl 6.6 of Australian standard AS1428.1-2009. (e) Ensure that the design and construction of the glazing walls will comply with B1.1 and Performance Requirement FP1.4 of the BCA. (f) Ensure that a continuous access path of travel to the entry door of the ground floor residential sole occupancy units is provided in accordance with the relevant requirements of the Australian Standard AS1428.1/2009. 3. To ensure that both fire isolated exits are available for occupant egress on each floor, provide a doorway within the glazing wall that encloses the public corridor/balcony that provides egress to the second exit. The doorway to the glazing wall is to be fitted with an automatic closing glazed door designed and installed in accordance with Australian standard AS1288-2006, and the doors shall be fitted with suitable and appropriate smoke seals and be fitted with a self-closing device. The automatic closing operation must be initiated by the activation of a smoke detector installed in accordance with the relevant provisions of Australian Standard AS 1670.1-2004 and be located not more than a 1.5 metre horizontal distance from the internal side of the doorway. The glazed doors must be installed so that: (a) On the activation of the smoke detector installed to initiate the automatic closing of the door, or any other fire or smoke detection device in the parts of the building connected to the central courtyard void area, the following shall commence: (i) all of the glazed doors shall close immediately, and (ii) the building occupant warning system installed within 4 West Terrace, Bankstown, shall be activated; (b) The glazed door shall swing in the direction of egress from the immediate enclosed area, and be fitted on both sides of the door with a single device which is located between 0.9 metres and 1.1 metres from the floor which opens the door by a single handle downward action. (c) The continuous accessible path of travel through all doorways within the glazing walls complies with the relevant requirements of Australian Standard AS1428.12009. (d) Each doorway shall be marked to make it visible in accordance with the relevant provisions of cl 13.1 of the Australian Standard AS1428.1-2009. Submit details to the council of the proposed building work demonstrating compliance with all the requirements of this term of the order prior to the initiation of building works. Submit the above mentioned details to the council by no later than ninety days from the date of this order. Submit to council for the final certification on completion of the building works demonstrating compliance with all of the requirements of these terms of the order. (b) Substitute the following for Item 1.03 under the heading "1. Safety of Persons in the Event of Fire": 1.03 Exit doors to doorways within glazing walls. Install an exit sign directly above each doorway within each glazing wall that provide access and egress along the public corridor/balcony constructed at 4 West Terrace, Bankstown. Install the exit sign in accordance with the requirements of E4.6 and E4.8 of the BCA. (c) Substitute the following for item 1.08 under the heading "1. Safety of Persons in the Event of Fire 1.08 Signs on doors serving the Glazing Walls. Install signage in accordance with D2.23(b)(i) of the BCA on either the wall adjacent to the doorway or on both sides of the door that is constructed within the glazing wall that provide access and egress along the public corridor/balcony at 4 West Terrace, Bankstown. (d) Delete the whole of item 4.03 under the heading "4. The Prevention of the Spread of Fire". (e) Substitute the following for the words appearing under the heading "Period for Compliance with the Order" "The order must be complied with by 24 December 2013." (f) Substitute the following for the schedule under the heading "Fire Safety Schedule" clause 168 Environmental Planning and Assessment Regulation 2000 fire safety measures to be implemented in the building. Minimum standard or performance at page 13, Premises: 4 West Terrace, Bankstown, New South Wales 2200 Date of Order 24 June 2013 Fire Safety Measures Current Proposed Minimum Standard of Performance 1. Automatic fail safe devices √ Term 1.01 of Council Order dated 24 June 2013 2. Automatic fire detective and alarm systems √ √ Clauses 3, 4 and 6 of Specification E2.2a of the BCA, Term 1.01 of Council Order dated 24 June 2013 3. Automatic fire suppression system √ √ E1.5, Specification E1.5 of the BCA, AS2118.1 4. Emergency lighting √ E4.2, E4.4 of the BCA 5. Exit signs √ √ E4, 5, E4.6, E4.8 of the BCA, Term 1.03 of Council Order dated 24 June 2013 6. Fire alarm communication link √ AS1670.3, AS2118.1 7. Fire dampers (located in walls of plan rooms and the like that are bounding public corridors) √ AS/NZS1668.1, AS1682 8. Fire doors √ √ C2.12, C2.13, C3.8, C3.10, C3.11 of the BCA, AS 1905.1 9. Fire hydrant systems √ √ E1.3 of the BCA, AS2419.1 10. Fire seals protecting openings in fireresisting components of the building √ C3.15 of the BCA, AS1530.4, AS 4072.1 11. Glazing wall construction system √ Term 1.01 of Council Order dated 24 June 2013 12. Hose reel systems √ E1.4 of the BCA, AS2441 13. Lightweight construction (including walls of plant rooms and the like that are bounding public corridors) √ Specification C1.8 of the BCA 14. Mechanical air handling systems (including air pressurisation systems) √ E2.2, Clause 9 of Specification E1.5, Clauses 5 and 6 of Specification E2.2a of the BCA AS/NZS 1668.1 15. Portable fire extinguishers √ E1.6 of the BCA, AS2444 16. Smoke detectors and heat detectors √ Term 1.01 of Council Order dated 24 June 2013 17. Smoke doors √ Term 1.01 of Council Order dated 24 June 2013 18. Warning and operational signs √ √ D2.23, E3.3 of the BCA, Term 1.08 of Council Order dated 24 June 2013 19. Wall wetting sprinkler and drencher systems √ D1.7 of the BCA, AS2118.2 4. No order as to costs. Susan Dixon Commissioner of the Court 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. Decision last updated: 03 April 2014