Kallinosis & Anor v Woollahra Council [2017] NSWLEC 1290

Land and Environment Court New South Wales

Medium Neutral Citation: Kallinosis & Anor v Woollahra Council [2017] NSWLEC 1290 Hearing dates: 12 May 2017 Date of orders: 09 June 2017 Decision date: 09 June 2017 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: ORDERS: fire upgrade works to existing boarding house; extent of works required Legislation Cited: Environmental Planning and Assessment Act 1979; Texts Cited: National Construction Code; Building Code of Australia Category: Principal judgment Parties: Lucas John Kallinosis Barbara Effie Kallinosis (Applicants)

Woollahra Council (Respondent) Representation: Counsel: Ms F Berglund (Applicant)

Solicitors: M E McKahon & Associates (Applicant) Mr C Zoppo Lindsay Taylor Lawyers (Respondent) File Number(s): 2016/324636

Judgment 1. Woollahra Council, on 30 September 2016, issued an Order pursuant to Part 6 Division 2A Section 121B of the Environmental Planning and Assessment Act 1979 (EP&AAct) to the applicants, Mr and Ms Kallinosis, and owners of property No. 11 Black Street Vaucluse requiring fire upgrading works to the existing boarding house operated from that property. An appeal against the provisions of that Order has been lodged pursuant to section 121ZK of that Act.

The order 1. The circumstances under which the Order was given are that the Council contends the provisions for fire safety or fire safety awareness are not adequate to prevent fire, suppress or prevent the spread of fire or ensure or promote the safety of persons in the event of fire and the maintenance or use of the premises constitutes a significant fire hazard. 2. The terms of the Order required work to be carried out in three stages. In summary, Stage one required exit doors to swing in the direction of egress, emergency lighting to be installed throughout the building to provide sufficient light in an emergency, exit signs to be installed above all required exit doors and a fire blanket provided in all cooking areas adjacent to cooking appliances. 3. Stage II works required the establishment of a suitable fire safety and evacuation procedure that is compliant with the relevant Australian standard: the provision of an automatic smoke detection and alarm system and the installation of a building occupant warning system. 4. Stage III works required the auditing and certification of all required fire safety measures installed within the building as detailed within the fire safety schedule attached to the Order; the certification of electrical installations serving the subject premises by a suitably qualified electrical contractor certifying compliance with relevant Australian Standard and the installation of a residential sprinkler system throughout the building. 5. Some of the work required by the Order has been completed however, those works in dispute are the completion of 1.01 Swing of Exit doors; 1.03 Emergency lighting 1.04 Fire safety and evacuation procedures (the applicant had provided a document however the Council had failed to review it); 1.05 Fire safety audit/final fire safety certificate; 2.01 Certification of electrical installation and 4.01 Installation of residential sprinkler system. 6. It is common ground that any outcome in this appeal will result in Modified Orders being made by the Court in accordance with the provisions of Section 121ZK(4)(b) of the EP&AAct due to the need to ensure completion of agreed works. 7. The Order relates to a part one and part two storey building erected on the site, No 11 Black Street Vaucluse. The upper level of the building is currently used as a boarding house and has been the subject of previous fire orders issued by the Council. At the rear, lower level of the building there is a separate dwelling. There is no internal linkage between the boarding house and that dwelling. Part of the boarding house is above that dwelling. 8. The primary issue in the case is whether it is necessary to install the residential sprinkler system or whether an alternate method of addressing fire safety is appropriate. In this regard the applicants submit, through their expert, that rather than installing the sprinkler system, an alternate solution that would achieve compliance National Construction Code (NCC) can be implemented. 9. Two alternate solutions were proposed by the applicants' expert. In summary, the first option of an alternate performance solution requires the implementation of the following measures: All occupants exhibit the following characteristics: i. The ability to interpret evacuation queues of the interconnected smoke alarm systems; ii. Do not require any physical assistance from other occupants to expert the building; iii. Is familiar with the building; and can direct visitors to the nearest exit where required. The restriction of 12 occupants within the boarding house portion of the premises, and formalised within the management of use policy for the building. Fire separation to achieve a minimum Fire Resistance Level (FRL) of 60/60/60 between the residential unit and boarding house portions of the building. The smoke alarms within the lower ground residential unit are to be interconnected with the above boarding house system in accordance with AS3786 – 2014. 1. The second and separate solution to achieve compliance with the deemed to satisfy provisions of the Building Code of Australia (BCA), in which the building would be separated into two Class 1 building in accordance with the following: a. Construction of a separating wall having a FRL of not less than 60/60/60 which extends to the underside or a non-combustible roof covering; b. Gaps between the separating wall and the external masonry veneer must be not more than 50 mm, and packed with mineral fibre or other suitable fire resistant material which maintains any weatherproofing in accordance with Clause 3.3.4 of the BCA (Volume 2); c. These and similar spaces that are open to roof space and are common to both Class 1 buildings must be separated by non-combustible vertical linings; d. Any penetrations are to comply with the requirements of Clause (h), (i) and (j) of Clause 3.7.1.8 of the BCA (Volume 2). 1. It is the latter option that is the applicants' preferred option and the one that is put to the Court as the appropriate solution. 2. The applicants accept that the remaining works detailed in the Order are required and therefore, the only matter before the Court is whether the provisions of 4.01 of the Order should be applied. That clause is in the following form: 4.01 Installation of residential sprinkler system. That a residential sprinkler system shall be installed throughout the building. The system shall comply with a standard of installation and maintenance in accordance with the requirements of Australian Standard 2188.4 and the relevant requirements of Specification E1 .5 of the BCA. The system shall provide a distinctive alarm signal that is automatically transmitted to an approved, constantly manned fire alarm receiving centre, with a direct data link to the Fire Brigade in accordance with clause 3.2 of AS2118.1 – 1999. (Work shall be completed as part of Stage 3). Reason: –The building does not have fire rated separation between sole occupancy units to limit and control the development and spread of fire in the event of an outbreak of a fire. 1. It is the Council's position that order 4.01 should be retained whereas the applicants propose to separate the building into two Class 1 buildings with appropriate fire separation as detailed at [11].