Land and Environment Court New South Wales Medium Neutral Citation: Karmel & Co Pty Ltd v Leichhardt Municipal Council (No 3) [2015] NSWLEC 26 Hearing dates: 20 February 2015 Date of orders: 20 February 2015 Decision date: 20 February 2015 Jurisdiction: Class 1 Before: Biscoe J Decision: See [20] Catchwords: JUDGMENTS AND ORDERS – extension of time for compliance with orders. Legislation Cited: Environmental Planning and Assessment Regulation 2000 cl 154 Cases Cited: Karmel & Co Pty Ltd v Leichhardt Municipal Council (No 2) [2015] NSWLEC 11 Karmel & Co Pty Ltd v Leichhardt Municipal Council [2014] NSWLEC 199 Category: Consequential orders (other than Costs) Parties: Karmel & Co Pty Ltd (Applicant) Leichhardt Municipal Council (Respondent) Representation: COUNSEL: S Sher, solicitor (Applicant) J Thompson, solicitor (Respondent) SOLICITORS: Drayton Sher Lawyers (Applicant) Ritchie & Castellan (Respondent) File Number(s): 10834/14 EX TEMPORE Judgment 1. This is an urgent motion by the applicant to vary orders of the Court. 2. On 16 December 2014 consent orders were made requiring fire safety upgrade works to premises at 673-677 Darling Street, Rozelle comprising an old building at the front and a new building at the rear, which are joined together, used for backpackers accommodation and, on part of the ground floor of the old building, for a barber shop. 3. On 30 December 2014, on the contested urgent motion of the applicant, I granted an extension of time for compliance with the consent orders: Karmel & Co Pty Ltd v Leichhardt Municipal Council [2014] NSWLEC 199, as follows: (1) Extend the time for compliance with the consent orders of 16 December 2014 to 7 February 2015. (2) Provided that the subject premises are vacated, further extend the time for compliance with the consent orders of 16 December 2014 to 31 March 2015. 1. On 6 February 2015, on the contested urgent motion of the applicant, I again extended time for compliance with the consent orders by making the following orders: Karmel & Co Pty Ltd v Leichhardt Municipal Council (No 2) [2015] NSWLEC 11: (1) The orders made on 30 December 2014 are vacated. (2) Pending the carrying out of the remainder of the works required by the consent orders of 16 December 2014, the ground floor and the rear of the first floor of the premises may continue to be occupied until and including 22 February 2015 and thereafter only with the prior written consent of the Council or order of the Court. (3) The barber shop on the ground floor of the premises may continue to be occupied after 22 February 2015 provided that the rest of the premises are vacated or with the prior written consent of the Council or order of the Court. (4) The applicant will vacate the first floor of the premises on or before 7 February 2015. (5) Liberty to apply. 1. Today, I have heard a further urgent contested motion by the applicant for the following relief : 1. Order 2 of orders made on 6 February 2015 to be varied as follows: Pending the carrying out of the remainder of the works required by the consent orders of 16 December 2014, the ground floor of the premises may continue to be occupied after 22 February 2015 only with the prior written consent of the Council or order of the Court. 2. The rear of the first floor of the premises may continue to be occupied up to and including 5 March 2015 or thereafter only with the prior written consent of the Council or order of the Court. 3. Liberty to restore on 2 days written notice. 4. Such further or other orders as the Court deems fit. 1. In Karmel (No 2) at [10]: At my request, the experts for the parties conferred today with a view to seeing whether a consensus between them might emerge. It appears from the concurrent evidence they then gave that there is some real measure of agreement between them as to what is required but the details still remain to be resolved. The applicant's expert proposed that he present a strategy to Council for its approval involving continued occupation of the ground floor and the rear of the premises to allow those parts to continue to be occupied pending the carrying out of the remainder of the work required by the consent orders. He considered that he could present the strategy to Council and obtain its approval within a week and that the work required to implement the strategy could be performed within a further week. The Council's expert did not think it could be done within that time frame. 1. The chronology since I made the orders on 6 February 2014 is as follows. 2. On 13 February 2015 a Building Code of Australia assessment report was prepared for the applicant by City Plan Services and on 16 February 2015 it was sent to the respondent Council's expert, Mr Rossello. 3. On 18 February 2015 Mr Rossello discussed it with the applicant's expert who had prepared that report Mr de Looze. 4. On 19 February 2015 (yesterday), Mr Rossello sent Mr de Looze an email saying that as discussed late the previous day he would amend the report and was going out to the site again that day to obtain a bit more detail and evidence of the fire separation of the retail from the carpark to be included in the report and floor/ceiling system at the back of the retail. He said that he would endeavour to get the amended report to Mr Rossello by the end of yesterday or the next morning (ie today). The report said that the principal of the applicant had advised that he had fire contractors lined up to undertake the required works on Monday 23 February pending the approval of the report details. He said that he had agreed to inspect and verify the installation of this component of works to ensure it is completed in accordance with the specified details. He expressed the opinion that all the required work was feasible within seven days from the date he received Mr Rossello's agreement on the details. He said that if the works are not completed satisfactorily and certified within this seven day period, then he would support the building being vacated until it is completed. 5. This morning the applicant told me that the applicant's expert should be able to provide the foreshadowed amended report to the Council's expert by noon today and Council told me that the Council's expert should be available to commence considering it at about 1pm today and should be able to complete his assessment of that report by about 4pm today. 6. The purpose of the report by the applicant's expert, as stated in the report, is to demonstrate that the occupied areas do not constitute a hazard to the health and safety of the occupants and the partial occupation of the building is equivalent to an interim occupation certificate whereby only a portion of the building can be occupied provided the hazard to the health and safety of the occupants have been taken into account as outlined in cl 154 Environmental Planning and Assessment Regulation 2000. 7. The report states that its purpose is to present a strategy to demonstrate that some areas of the building can remain occupied beyond 22 February 2015. It was stated that it would be demonstrated the proposed occupied areas achieve a suitable level of fire safety that does not compromise the health or safety of the occupants. He noted that as per the orders of this Court the attic and first floor of the front section of the building are not occupied and would not be reoccupied until all the fire safety upgrade works are approved by Council and completed. It said that: The original strategy was for the continued occupation of the ground floor at the rear of the premises whilst the process of upgrading the remainder of the building is negotiated with Council and undertaken, however as part of City Plan Service Site Investigations we cannot support the continued use of the front section of the ground floor until all the documentation subject to the Court's order is submitted to and approved by Council which is not feasible within the proposed 7 day time frame within the current order. The strategy proposed by City Plan Services is to only occupy the ground floor retail tenancy and the ground and first floor of the rear portion of the building by providing appropriate fire compartmentation which will satisfyings [sic] the agreed upgrade strategy within the NSWLEC order 10834 of 2014 dated 16.12.2014. This addresses the main fire risk within the building. 1. The summary at the end of the report confirms that the strategy proposed is to only occupy the ground floor retail tenancy and the ground and first floor of the rear portion of the building by providing appropriate fire compartmentation which will satisfy the agreed upgrade strategy within the 16 December 2014 order. This addresses the main fire risk within the building. 2. Given the content of the report, prayer 1 of the applicant's motion is unsustainable because the report is not supportive of any continued occupation of the ground floor of the premises after 22 February 2015 pending the carrying out of the remainder of the works required by the consent orders of 16 December 2014 – apart from the barber shop. 3. The issue therefore centres upon prayer 2 of the notice of motion which seeks an order that the rear of the first floor of the premises may continue to be occupied up to and including 5 March 2015 or thereafter only with the prior written consent of the Council or of the Court. 4. The respondent opposes any further extension of time. However, it appears to me that the experts for the parties may be close to agreeing a strategy such as that proposed in the report to which I have referred. I propose to give them opportunity until next Tuesday to agree upon that strategy, failing which the premises, except for the barber shop, will have to be vacated pending the carrying out of the works required by the December 2014 orders. 5. I have discussed the proposed form of those orders with the parties' legal representatives who agree that if such orders are to be made, then they are in acceptable form. 6. The applicant submits that there should also be an order imposing an obligation of good faith on the Council's expert when assessing the proposed strategy. I consider that all experts involved in the Court's processes are implicitly under an obligation of good faith. I see no need to make that proposed order. 7. The orders of the Court are as follows: 1. Order 2 made on 6 February 2015 is varied by deleting the reference to "the rear of the first floor". 2. Order that the rear of the first floor of the premises may continue to be occupied until and including 10am on 25 February 2015, and thereafter provided that the number of occupants does not exceed 28 and the ground floor of the rear of the premises is not used for accommodation: 1. until and including 5 March 2015, provided that by 4pm on 24 February 2015 an expert appointed by Council and an expert appointed by the applicant agree on a strategy proposed in a report of the latter or a variant thereof; 2. after 5 March 2015, provided that the work required by the said acceptable strategy is carried out and certified as contemplated by the strategy on or before 5 March 2015. 1. Order 3 made on 6 February 2015 is vacated. 2. The barber shop on the ground floor of the front of the premises may continue to be occupied after 22 February 2015, provided that the rest of the front of the premises are vacated or with the prior written consent of the Council or order of the Court. 3. The exhibits may be returned. ********** Amendments 26 February 2015 - typographical error in coversheet - case name (No 3) 26 February 2015 - typographical error in para [20] (2) - change "24 March 2015" to "24 February 2015" 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: 26 February 2015