Land and Environment Court New South Wales Medium Neutral Citation: Blue Mountains City Council v Venkataramana and Anor [2015] NSWLEC 201 Hearing dates: 4 December 2015 Date of orders: 04 December 2015 Decision date: 04 December 2015 Jurisdiction: Class 1 Before: Moore AJ Decision: At [19] Catchwords: FIRE SAFETY – inoperative system – interim orders HYGIENE – rat droppings in kitchen – interim orders Category: Procedural and other rulings Parties: Blue Mountains City Council (Applicant) M K Venkataramana (First Respondent) N A Birch (Second Respondent) Representation: Counsel: Mr T Cork, Solicitor (Applicant) Mr M Fozzard, Barrister (Respondents) Solicitors: McPhee Kelshaw (Applicant) File Number(s): 40917 of 2015 Publication restriction: No Judgment 1. HIS HONOUR: These proceedings were commenced by summons issued by Blue Mountains City Council (the Council) against the two nominated Respondents in October 2015. The matter has been before the list judge on a number of occasions since its first return date on 23 October. 2. The primary matter that is in dispute between the parties concerns whether or not the Respondents are carrying out a development at premises known as the Rest Easy Motel at 3‑5 Old Bathurst Road, Wentworth Falls, rather than for the permitted use as a motel but using it for general residential occupation, in effect, as a residential flat building. 3. That matter will now be dealt with in substantive terms by a hearing in February 2016. As a consequence of that, there is no need to grant the first element sought in the notice of motion with which I am dealing today; that is, an order for expedition, as if expedition were to have been granted it would not have had any functional effect given that date. 4. In the substantive matters deal with in the summons, there are also matters that arise concerning fire safety and the status or utility of the fire protective measures installed at the premises. 5. In effect, in summary, the Council's position is that the premises are being occupied for an unlawful use and that unlawful use is being carried out in an unsafe fashion. 6. I have in evidence attached to the affidavit of Brian Crane, read on the motion, dated 15 October 2015, being the second affidavit by Mr Crane of that date. An email annexed to it from Inspector Peter Nugent, the Duty Commander of Metropolitan West 3, Blue Mountains, Lithgow, Hawkesbury, of Fire and Rescue NSW. That e-mail, dated Thursday 15 October, indicates a number of defects with the fire prevention measures at the premises. Inspector Nugent expresses the opinion that the level of occupants' safety at the premises is severely affected. He sets out a number of reasons for that in the email but it is sufficient for the purposes of these proceedings to note that that opinion is expressed in addition to the opinion expressed by the Council's officer who has dealt with these matters, Mr Rodney Bles, to whose evidence I will return shortly. 7. At one of the earlier return dates in the proceedings before Pain J on 20 November 2015, her Honour made orders by consent that set out a number of undertakings, in effect, that the Respondents in the proceedings agreed to do during the period between 20 November 2015 and 27 November 2015 with respect to the premises. They are set out in five subparagraphs. The first is to ensure that all essential fire safety measures in the motel, including the smoke alarms in residents' rooms and the fire alarm installed in the motel, remain in full working order and, at paragraph (d): Clean or cause to be cleaned by Monday 23 November 2015 the kitchen in the motel and ensure that the kitchen remains at all times in a clean and tidy condition fit for use by the tenants of the motel for the cooking of food. 1. There is uncontradicted evidence that those orders were not obeyed by the Respondents. First there is the evidence of Mr Bles, contained in his affidavit of 26 November 2015, read on the motion, where he sets out the details of the inspection he undertook of the premises at 11.17am on 26 November, being a time within the period of the operation of the consent orders made by Pain J. It is clear from the matters set out in paragraph 4 of that affidavit that the first of the elements of the orders made by consent before her Honour were not complied with at that time. 2. In a further affidavit by Mr Crane, dated 26 November, it is clear from Mr Crane's observations concerning his inspection on 26 November, again within the period of the orders made by consent by Pain J, set out at paras 32 to 35, of a number of matters that make it clear that the second of the elements of the orders that were made by consent by Pain J on 20 November had not been complied with - they being matters described by Mr Crane concerning what can only be as an unsanitary and filthy condition of the kitchen in the premises. 3. The photographs that are appended to his affidavit and marked as annexure A, adverted to in paragraph 35 of his affidavit, show in particular (at the second of the photographs) two shelves covered with rat droppings and, at the third of the photographs, a cleaning cloth on a steel workbench where that cleaning cloth also has a significant number of rat droppings on it. The final one of those four photographs also shows a sprinkling of rat droppings on the floor of the kitchen. It is quite clear that, in addition to the failure to obey the consent order with respect to the state of the fire equipment, there has also not been a provision of clean material and facilities within the kitchen of the premises. 4. The primary difficulties, there being two of them in my assessment, with the functionality of the fire alarm system at the premises are that: * a number of elements of it are in disrepair, a matter to which I will return; and * the residents of the premises cook in their rooms, thus potentially occasioning the triggering of the fire alarm system resulting in them taking prophylactic measures to disable the fire alarm system in order to avoid the noise therefrom and to enable them to cook using frying and other smoke emitting methods in a fashion that would otherwise trigger the alarms. 1. It is reasonable infer from the evidence that is referred to in an affidavit of Mr Crane where one of the residents deposes in response to a question from Mr Crane that she does not have a key to access the kitchen. Whatever exhortation may be made, as shown in Exhibit 2 from the property management company to the residents, inviting them, exhorting them in quite strong terms to use the kitchen, there is no utility in such an exhortation if, first, you cannot get into the kitchen, and, second, if you can get into the kitchen, it is in a foul state of affairs. 2. There is also the evidence that the fire safety system itself required repair, that is set out in Exhibit 1, which is a letter from Guard Extinguishers Pty Ltd to the property management company setting out that which is needed to be undertaken for the purposes of rectifying the fire system. It is clear from that that there has been interference with the fire protection system in the past, and it is also clear, to give the Respondents the credit due for it, that the Respondents have commenced activity to rectify the defects in the fire alarm system. 3. However, it is also to be observed that the Respondents have not caused the annual fire safety certification to be provided to the Council as required, although they are only just out of time with that, and Guard Extinguishers Pty Ltd indicate in Exhibit 1 that they expect that after the entirety of the repairs to the system are effected they will be able to provide that annual fire safety testing certificate by the close of business on Friday, the 18th of December, being a reasonable assumption. 4. The question really that arises for me to determine as to whether I will order any intervention with the premises is not a question of statutory interpretation, as pressed by Mr Fozzard. 5. There is no doubt in my mind that to intervene in any fashion with respect to the substantive issue that is in dispute between the parties (that is, the use of the building and how it might be occupied) would be inappropriate at this time. 6. I am, however, satisfied that whatever might be the statutory issues with respect to cll 167 and 181 of the Environmental Planning Assessment Regulation 2000 that there is an overwhelming public interest of ensuring the safety of the residents of the building, at least on the basis that the substantive issues will be determined sometime in the reasonably foreseeable future. 7. I, therefore, do consider it appropriate to put in place a protective regime as well as setting a timetable leading up to a hearing and I indicate that the orders that I am about to make will be transcribed and formally provided to the parties this afternoon. 8. In order to do so it seems to me that the following orders ought be made: 1. The rectification works to the fire safety system at the Rest Easy Motel at 3 to 5 Old Bathurst Road, Wentworth Falls (the premises) as described in the fourth and fifth dot points of the letter from Guard Extinguishers Pty Limited (Exhibit 1 on the motion) dated 3 December 2015 and annexed to these orders are to be completed by 5.00 pm on Tuesday 15 December 2015; 2. The 2015 annual fire safety certificate for the premises and a certificate of completion of the fire safety works in (1) are to be provided to the Blue Mountains City Council (the Council) by 5.00 pm on Friday 18 December 2015; 3. The Respondents are to advise, in writing by 5.00 pm on 8 December 2015, all occupants of the premises that they are not to cook in their rooms and that all cooking on the premises is to be undertaken in the kitchen (for which a key is provided); 4. With the notification in (3) the Respondents are to provide each resident of the premises with a key to the kitchen; 5. By 5.00 pm on Monday 7 December 2015, the Respondents are to: 1. ensure that the power points in the kitchen are both safe for use and operational; 2. ensure that the kitchen is clean and in particular that: 1. the refrigerators in the kitchen are rendered and remain fully operational and suitable for use by the occupants; 2. the stoves in the kitchen are rendered and remain fully operational and suitable for use by the occupants; 3. the benchtops and food preparation areas in the kitchen clean so that they benchtops and areas are free of vermin and rodent droppings and fit for use by occupants for the preparation of food; 4. hot-water system, the sinks and all plumbing in the kitchen are rendered and remain fully operational; and 5. the floors and all surfaces in the kitchen are cleaned and are in a fit and proper state for a kitchen used for the preparation of food. 1. By 5.00 pm on Monday in each week commencing on Monday 14 December 2015, the Respondents are to cause the cleaning in 5(b) to be repeated; 2. The Respondents are to require the person appointed to respond to any fire alarm from the premises to notify the Council, in writing by e-mail, on each occasion there is an alarm incident and to do so within one working day of that incident; 3. The Respondents are to file and serve their response to the Summons by close of business on 18 December 2015; 4. The Applicant is to file and serve its affidavits-in-chief and a bundle of documents and Points of Claim by the close of business on 4 January 2016; 5. The Respondents are to file and serve any affidavits and a bundle of any additional tender documents and Points of Defence by close of business on 15 January 2016; 6. The Applicant is to file and serve any affidavits in reply and a bundle of any additional tender documents and Points of Reply by the close of business on 29 January 2016; 7. There will be a pre-trial mention on 8 February 2016; 8. Liberty to relist on 24 hours' notice; and 9. The costs of the Motion are reserved. ********** 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: 18 December 2015