Turkovic v Hornsby Shire Council [2019] NSWLEC 1262

Land and Environment Court New South Wales

Medium Neutral Citation: Turkovic v Hornsby Shire Council [2019] NSWLEC 1262 Hearing dates: 30 April 2019 Date of orders: 14 June 2019 Decision date: 14 June 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Time to comply with the Fire Safety Order dated 17 May 2018 is extended for 7 days from the date of this Order. Catchwords: APPEAL – compliance with fire safety order – smoke detectors – fire safety statement Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Category: Principal judgment Parties: Franjo Turkovic (Applicant) Hornsby Council (Respondent) Representation: Counsel: M Fozzard (Respondent)

Solicitors: Bilias & Associates (Respondent)

Other: F Turkovic, self-represented (Applicant) File Number(s): 2018/185130 Publication restriction: No

Judgment 1. The applicant, Mr Frank Turkovic has appealed against compliance with the Fire Safety Order issued by Hornsby Shire Council on 17 May 2018 in relation to the smoke alarms in his residence at Unit 1, Lot 1 SP 51296, 1/42 Bridge Road, Hornsby (Site). 2. The proceedings are brought pursuant s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) and Mr Turkovic is self-represented. 3. The Council is represented by Mr Fozzard, a barrister.

The Order 1. The Order, which is made under s 121B (now s 9.34) - Item No 1 of Part 2, Schedule 5 of the EPA Act, is in the following terms: "TO MR TURKOVIC PREMISES Lot 1 SP 51296 No.1/42 Bridge Road, HORNSBY NSW 2077 You, as the owner of the premises at Lot 1 SP51296 No. 1/42 Bridge Road, HORNSBY NSW 2077 are hereby given an Order pursuant to Section 121B of the Environmental Planning and Assessment Act 1979 ("the Act"). TO DO WHAT 1. Have an appropriately qualified person carry out a test of the smoke alarms located within unit No.1/42 Bridge Road HORNSBY NSW 2077 2. Following a test of the smoke alarms, provide certification from the appropriately qualified person that the smoke alarms located within unit No.1/42 Bridge Road, HORNSBY NSW 2077 are functional. The submitted certification paperwork is to specify that the smoke alarms meet the requirements of Australian Standard 3786 and Building Code of Australia section E2.2a. Note: Where the existing smoke alarms are not functional or are not within a period of warranty/guaranteed lifespan of the detector, replacement of the smoke alarms will be necessary. Note: A person who carries out work in compliance with a requirement of an Order does not have to make an application for development consent pursuant to Section 121O of the Act. REASONS FOR THE ORDER 1. An annual fire safety statement for the building premises at 42 Bridge Road was due to be submitted to the Council on 16 September 2017. An annual fire statement has been submitted that excludes the smoke detectors for Unit No. 1. The smoke detectors have not been certified that they are functional. A satisfactory annual fire safety statement certifying that all essential fire safety measures are functional has not been submitted as required by [s] 177 (Part 9) of the Environmental Planning & Assessment Act Regulation 2000 [Regs] a breach of the regulation has occurred. 2. Where an inadequate annual fire safety statement in accordance with [s] 177 … of the [Regs] is received then the safety of the persons within the building cannot be ensured. 3. Annual fire safety statements promote fire safety awareness. Where an inadequate annual fire safety statement is submitted there is insufficient promotion of fire safety awareness." (Emphasis altered) 1. Put simply, it requires Mr Turkovic to do two things: 1. first, to engage an appropriately certified person to carry out a test of the smoke alarms located within his unit; and 2. following the testing, to provide to the Council written certification that the smoke alarms are functional. 1. However, Mr Turkovic contests the Order because he believes that the smoke alarms in Unit 1 have been tested and found to be functional and therefore do not need retesting or replacing. He also takes issue with several factual matters relied upon by the Council and submits that the body corporate of his unit block and the property management agent have misrepresented the facts to the Council. 2. At the hearing, Mr Turkovic relied on documentary evidence including emails from the body corporate and the strata manager to support his case. The Council relied on the Annual Fire Safety Statement (AFSS) prepared by Sydney Extinguishers dated 9 September 2017 lodged by the Strata Plan and the oral and written expert evidence of its Senior Building Certifier, Mr James Martin. 3. The relevant facts are as follows.