Georges River Council v Tyre Nation Pty Ltd

The interlocutory stages of the proceedings

1. On 24 July 2020, the Council filed a Notice of Motion seeking to have the Company's activities cease on fire safety grounds until the determination of the substantive proceedings. The above‑noted affidavit from Mr Tatian was relied upon in support of this Notice of Motion.
2. The matter came before me on 24 July 2020 as the Duty Judge. For present purposes, it is unnecessary to traverse those interlocutory proceedings in detail save to note that an initial interim regime was established where the Company undertook to: 1. disconnect the power supply for the warehouse building located on the site; 2. remove all vehicles from the site (subject to identified exceptions); and 3. remove all aerosol cans, oils, lighters and other ignition sources from within the warehouse.
3. At several further hearings, the question of the adequacy of electrical safety certification sought to be relied upon by the Company to permit it to be released from the electrical disconnection aspect of the undertaking was dealt with. Two versions of an Electrical Safety Certificate (Exhibits 1 and 2) were rejected as inadequate.
4. Subsequently, a third, further revised version of an Electrical Safety Certificate (which became Exhibit 3) was accepted by the Council as demonstrating that the immediate electrical safety issues at the premises had been resolved satisfactorily. The Company was then permitted to withdraw the electrical safety element of the above undertakings.
5. The remainder of the undertakings remained operative until my delivery of this decision and the orders that follow from it.

Representation

1. The Council was represented by Mr S Goodman SC and Mr M Astill, barrister. The Company was represented by Mr T Hale SC and Mr I Leong, barrister. The Owner was represented by Ms J Reid, barrister.

The Council's summons

1. The Summons filed by the Council on 24 July 2020 to commence these Class 4 proceedings sought the following: Declarations 1 A declaration that the First Respondent, by its servants and agents, has unlawfully carried out, and is unlawfully carrying out, development on the land legally identified as Lot 77 in DP 2022 and Lot 76 DP 3875, also known as 36-38 Waterview Street, Carlton, New South Wales (the Land) in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (EPA Act), in that it is using the land for the purposes of: (a) a 'warehouse or distribution centre'; and/ or (b) a 'local distribution premises' ; and/ or (c) a 'storage premises' ; and/ or (d) a 'depot' (as those terms are defined in the Kogarah Local Environmental Plan 2012 (KLEP)); and/ or (e) the storage of motor vehicle tyres, without development consent, in circumstances where development consent is required for such uses pursuant to the KLEP. 2 A declaration that the Second Respondent, being the owner of the Land and recipient of a Development Control Order No. 1 issued by the Applicant dated 16 December 2019 (Order No. 1), a copy of which is annexed to this Summons and marked "A", has breached the EPA Act in that it has failed to comply with the terms of the Order No.1. 3 A declaration that the Second Respondent, being the owner of the Land and recipient of Development Control Order issued by the Applicant dated 12 February 2020 (Fire Safety Order), a copy of which is annexed to this Summons and marked "B", has breached the EPA Act in that it has failed to comply with terms of the Fire Safety Order. Orders 4 An order that the First and Second Respondents, by themselves, their servants or agents, be restrained from using the Land for the purposes of: (a) a 'warehouse or distribution centre'; and/ or (b) a 'local distribution premises'; and/ or (c) a 'storage premises'; and/ or (d) a 'depot' (as those terms are defined in the KLEP); and/ or (e) the storage of motor vehicle tyres, in breach of s 4.2 of the EPA Act including, without limitation, advertising, soliciting, suffering or permitting the Land to be used for any of those purposes. 5 An Order that the First and Second Respondents, by themselves their servants and agents, remove: (a) all motor vehicle tyres; and (b) all material, products and equipment associated with any of the uses identified in Order 4, from the Land. 6 An Order that the Second Respondent, by itself its servants or agents, comply with the Order No.1: '[s]top conducting the activity of storage of rubber tyres on the Premises', including removing: (a) all motor vehicle tyres; and (b) all material, products and equipment associated with any of the uses identified in Order 4, from the Land. 7 In the alternative to the Orders at 4 - 6 above, and only in the event that the Court might not make orders in accordance with one or more of the Orders at 4 - 6 above, an Order that the Second Respondent remedy the breach of the Fire Safety Order as follows: (a) provide the particulars required by Term 1 of the Fire Safety Order within 6 weeks of the date of these Orders (or such other time as the Court may determine appropriate in the circumstances); (b) provide the particulars required by Term 3 of the Fire Safety Order within 14 days of the date of these Orders (or such other time as the Court may determine appropriate in the circumstances); (c) the proceedings be adjourned to a date or dates following the provision of particulars in Order 7(a) and (b) above for the purposes of allowing the Council and the Court to consider the particulars required by the Fire Safety Order and formulate final Orders requiring fire safety works to be carried out in accordance with the said particulars. The particulars required by this Order must comply with the '[p]articulars of works' under the heading 'IMPORTANT NOTES' in the Fire Safety Order.
2. It is to be observed that, at the commencement of proceedings, Mr Goodman drew to my attention the then resulting position that had arisen between the Council and the Owner. He indicated that the declaration sought in prayer 2 of the Summons and the proposed order in prayer 6, both proposed to be addressed to the Owner, were no longer pressed by the Council. He drew my attention to the limited nature of the disagreement which now remained between the Council and the Owner, particularly with respect to the timing of the carrying out of the agreed remedial fire safety works. This explanation appeared in the transcript of 17 September 2020, at page 3, line 22 to page 49, line 11. It is not necessary to set out this material.
3. The hearing then proceeded on that narrowed basis.

Introduction

1. The interlocutory hearings and the subsequent substantive hearing on 17 and 18 September, the mentions on 8 October 2020 and 13 and 19 November were held, as a consequence of the COVID‑19 pandemic, using Microsoft Teams software, without the necessity for any physical attendance in the courtroom. These hearings were conducted in accordance with the Court's (then) COVID-19 Pandemic Arrangements Policy. At the conclusion of the hearing on 8 October, I reserved my decision.

The mention on 13 November 2020

1. During the course of my preparation of this judgment, well into the process of writing it, it occurred to me that there were several matters that had either not been addressed during the course of the hearing or, potentially, had not been sufficiently addressed. As a consequence, I arranged a mention on the afternoon of 13 November 2020. Those in attendance on this occasion were Mr Astill, Mr Leong and Ms Antonopolous, the solicitor for the Owner.
2. I outlined to these representatives three relevant assumptions which I indicated that I considered it appropriate to make (unless any of them was to be contested by one of the parties). These assumptions were: 1. As a consequence of paragraphs 4 and 9 of the agreed facts (set out later at [49]), it was appropriate to assume that the change of use took place on or about 1 February 2018; 2. As a consequence, the change of use that was the subject of contested elements of these proceedings was to be taken to have occurred on and after that date; and 3. Consistent with Mr Harriman's observations (Mr Harriman being the Company's fire safety expert), at paragraph 125 of the Joint Expert Report, that: The mezzanine was inspected which revealed a stair in a dilapidated state, significant wear to parts of the floor and redundant electrical wiring and service installations. As such, it is my opinion that the mezzanine has been erected between 15-25 years, given the level of wear and tear despite Mr Tatian's equivocation about this (he making contingent comments at paragraph 44 of the Joint Expert Report with Mr Harriman on the assumption that the mezzanine had been erected by the Company), it was, nonetheless, appropriate that I should accept Mr Harriman's assessment and assume that the mezzanine was in place as at the date of the change of use to the Company's tyre storage activities.
3. I then proposed three matters about which I indicated that it was appropriate that the parties consider whether they wished to make further submissions. Those matters were: 1. All matters that were pressed by the Council as demonstrating that the change of use effected by the Company's activities on the site were to be assessed as at the date of that change of use (being on or about 1 February 2018); 2. Setting aside Mr Hale's objection to the admissibility of Mr Nestorovski's conversation with Aaron (an employee of the Company), how could it be said that the conversation on 11 September 2020, during which Aaron made what was said to be an admission about the hours of work on the site, could be regarded as demonstrating that that position had applied as at the date of the change of use in February 2018; and 3. Whether or not the use of the word "required" in cl 1.16(2)(b) of the SEPP meant mandated by some regulatory requirements or was to be regarded as if the word "required" should be read as "necessary" in the context of the provision.
4. I gave the parties until the close of business on Wednesday 18 November 2020 to forward any submissions they might wish to make on these matters to my Associate.
5. On 18 November 2020, the parties sought further time for the making of submissions on the above‑noted matters. I agreed to a limited extension of time until 4.00 pm on Friday 27 November on the basis that any submissions received after that time would not be considered. I had my Associate send e‑mail confirmation of this, she communicating this in the following terms: His Honour has asked me to confirm to you his statement made at the recent mention that the deadline for submissions on matters raised by him at the mention on 13 November 2020 is 4.00 pm on Friday 27 November 2020. As his Honour indicated, no extension will be permitted and any submissions received after that time will not be considered.
6. Counsel for the Council and for the Company filed submissions, prior to the deadline, in response to the matters I had raised. However, no further submissions were received on behalf of the Owner about the matters that I had raised.

Introduction

1. The evidence in the proceedings tendered by the Council comprised three volumes of the Court Book (Exhibits A, B and C) and three volumes of other evidentiary material (Exhibits D, E and F). Various affidavits and reports were included in these exhibits (to the extent that objection was taken to any of that material, this is dealt with below).
2. Documentary material from relevant council records was also included and, to the extent requiring consideration, is later dealt with. Extracts from relevant statutes or statutory instruments and from the LEP were within the material tendered, as were relevant extracts from the Building Code of Australia (the BCA). The role that relevant elements of these documents play in these proceedings is dealt with at the appropriate, later point in this decision.

Critical lay evidence

1. Only evidence from one of the Council's lay witnesses, Mr M Nestorovski, a Development Compliance Officer employed by the Council, requires detailed critical analysis. He relevantly deposed two affidavits, these being dated 23 July and 11 September 2020. It will later be necessary to consider in detail admissibility of elements of the content of them and, if admitted, the consequences arising from that.

Introduction

1. Expert evidence was given by Mr Tatian and Mr Harriman. Mr Tatian provided two individual affidavits. The first, dated 23 July 2020, was in Exhibit E, Tab 20 at folio s 632 to 698. This document set out his observations following an inspection of the site on 21 July 2020.
2. Of particular relevance, for reasons that will later be apparent, Annexure B to this affidavit was the Fire & Rescue NSW "Fire Safety Guideline for Bulk Storage of Rubber Tyres" (the Guidelines) later discussed in detail. Also relevant to my understanding of the site, Annexure C to this affidavit included photographs, at folio s 697/8, showing the proximity of the premises on the site to adjacent residential development.
3. This affidavit addressed, at paragraph 26, the actions which he considered needed immediate implementation to reduce the serious fire risk to the occupants of the building and the adjoining lots. A number of these recommendations provided the basis for the interim undertakings given by the Company (see [10]). The second document prepared by Mr Tatian comprised his detailed expert witness report, a document annexed to his second affidavit dated 31 July 2020. The affidavit and the accompanying report were in Exhibit E, Tab 21 at folio s 699 to 819. It is to be noted that, in addition to annexing a further copy of the Guidelines and a further copy of the set of photographs taken by him during his inspection on 21 July 2020, this report also annexed various extracts from the BCA referenced by him in this report.
4. Although Mr Harriman gave written evidence (affidavits of 2 and 16 September 2020 and an e‑mailed note - Exhibit 4) concerning the mezzanine floor, he did not provide an individual expert report.
5. Mr Tatian and Mr Harriman did produce a Joint Expert Report (Exhibit F, Tab 24 at folio s 944 to 991). This Joint Expert Report was dated 14 August 2020.

The experts' oral evidence

1. Mr Tatian and Mr Harriman gave concurrent oral evidence, oral evidence which responded to questions about matters addressed in elements of their Joint Expert Report. Elements of this evidence, which I considered to be of assistance to me in resolving disputes between the experts concerning issues requiring my determination in these proceedings, are later discussed in the relevant portion of this decision.
2. However, at this point, it is convenient to deal with the outcomes of the Joint Expert Report of Mr Tatian and Mr Harriman. These experts conveniently provided a summary of the outcome of their conferencing in paragraphs 9 to 12 on page 3 of the Joint Expert Report. These are reproduced below: 2 CONCALVE FINDINGS 2.1. SUMMARY OF FINDINGS 9. There was agreement on the scope of works required to upgrade the building to a reasonable level of fire and life safety to the existing building, which is outlined in the table below. 10. The main disagreement was the timing for the works to be completed. This disagreement is a result of our opinions relating to the application of exempt development to the subject building. 11. MT is of the opinion that the change of use required a development consent and that the agreed scope of works should have been carried out prior to the occupation and use of the building. The reasoning is that the existing unauthorised mezzanine structure would have required development consent and the change of use to the tyre warehouse would also trigger the change of use due to the change in classification proposed and the storage requirements of building considered to contain high hazard storage (tyres in a building over 2000m2 building). Any changes incurred as a result of the council fire order to rectify the existing unauthorised works are required to be addressed prior to occupation of the building. 12. AH is of the opinion that the change of use does comply with the provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP Code) and therefore that there was no requirement to carry out any upgrading works at the time of occupation and use for storage of tyres. Further, AH is of the opinion that the requirements to upgrade the building are as a result of the Fire Order, and therefore a reasonable time for compliance should be allowed to carry out the scope of works.
3. The agreed scope of works was set out in Table 2 to the Joint Expert Report. The first of the items in that table addressed the southern mezzanine element in the premises that had been constructed without development consent. Although there was disagreement between Mr Tatian and Mr Harriman as to the timing for the removal of this structure, later described, that mezzanine has now been entirely removed.
4. This removal renders Item 1 in Table 2 no longer relevant for the purposes of required future remedial fire safety works.
5. To enable an understanding of the nature of the remedial works proposed and the reasons why they were necessary, it is appropriate to reproduce Table 2 as Annexure A to this decision.
6. It is appropriate to note that, in Table 3, Mr Tatian and Mr Harriman set out the different timing approaches they considered necessary for addressing the other matters that had been set out in Table 2. Mr Harriman, as can be seen from Table 3 (reproduced as Annexure B), proposed a more relaxed timetable for implementation of the necessary works. In contrast, the position adopted by Mr Tatian, was that all necessary upgrading works should be completed prior to further use of the premises for tyre storage being permitted.
7. As can be seen from paragraphs 11 and 12 of the summary of the positions of Mr Tatian and Mr Harriman reproduced above, the basis for their difference in opinion as to timing has, as its fundamental distinction, the fact that Mr Tatian considered that the change of use was not exempt development and required approval by the Council, whilst Mr Harriman was of the opinion that the change of use was exempt development and that, therefore, the triggering of the necessity for remedial fire safety works was the issuing of the Fire Safety Order to the Owner rather than as a prerequisite for the carrying out of the tyre storage activities by the Company.

The reliability of Mr Harriman's evidence

1. It will later be necessary, in my discussion of the evidence concerning the potential applicability of Table E1.5 of the BCA and Note 4 to that table, to address one aspect of Mr Harriman's evidence in the Joint Expert Report; the questioning of him concerning it; and the submissions made concerning how that episode might colour my view of the general reliability of his evidence when his evidence was in conflict with that of Mr Tatian on the same point.

Objections to Council's evidence

1. Elements of the evidence sought to be relied upon by the Council were the subject of objection pressed by Mr Hale on behalf of the Company. For the most part, the objections were resolved either by the relevant element not being relied upon by the Council or by the element being taken as being an expression of opinion by the deponent rather than as establishing the truth of what was said.
2. However, a significant and important objection was made by Mr Hale to elements of affidavits of Mr Nestorovski concerning conversations between Mr Nestorovski and Aaron.
3. The question of admission or rejection of these conversations later requires detailed consideration in the context of whether s 87 of the Evidence Act 1995 (NSW) (the Evidence Act) is properly engaged in a fashion which renders the conversations adducible as evidencing a relevant admission concerning a potentially determinative fact for one of the Council's contentions. Determination of this objection is critical to whether or not one of the bases upon which the Council proposes that a development application is required to be submitted and approved to permit ongoing use of the site as a tyre storage facility is well‑founded. This objection is dealt with later in detail.

Mr Harriman's Medal of the Order of Australia

1. During the course of his swearing-in, Mr Hale asked Mr Harriman, amongst other formal questions (Transcript 17 September 2020, page 22, lines 25 to 29): HALE: Amongst other things, you were awarded the Medal of the Order of Australia for service to the building and construction industry through professional associations? WITNESS HARRIMAN: That's correct.
2. Later, during the course of Mr Hale's submissions, the following passage records a submission made by Mr Hale (and an exchange between him and me concerning this submission) relating to Mr Harriman's Medal of the Order of Australia and the extent (if any) that it provided some reinforcing basis for my acceptance of Mr Harriman's evidence. The relevant portion of the transcript of 18 September 2020 is in the following terms (page 10, lines 20 to 31): HIS HONOUR: At some stage you will need to tell me why Mr Harriman's service to professional associations has any relevance to the extent of the skills he brings to bear on these matters. HALE: Because of his vast experience and the recognition in the industry of his vast experience. HIS HONOUR: That was not what you just put to me, it was his services to a professional association. HALE: Yes, well I read out what the citation was which was contained in his CV.
3. What was set out under the heading "Awards" in Mr Harriman's CV (Exhibit F, folio 990) was in the following terms: Medal of the Order of Australia (OAM) for service to the building and construction industry through professional associations
4. Whilst I readily accept that Mr Harriman has appropriately been recognised by the award of his Medal of the Order of Australia (OAM) for his services to professional bodies in the building and construction industry, such service - civic-minded and exemplary though it may be - says nothing about his professional competence or technical expertise.
5. As a consequence, I am satisfied that his being awarded his OAM should and does play no role in my weighing of his evidence when he disagrees with Mr Tatian on any matter about which they give conflicting expert opinion.

The agreed facts

1. The parties had settled a Statement of Agreed Facts (SOFAC) which had been tendered as part of Exhibit A, folio 11 of the Court Book. The factual outline which follows is an adapted version of the SOFAC. Parties and the Land 1 The Council, following the amalgamation of Hurstville and Kogarah Councils by the Local Government (Council Amalgamations) Proclamation 2016, is the local government council having the functions of a consent authority for the local government area of Georges River under the Environmental Planning and Assessment Act 1979 (EPA Act). 2 The Company is the occupier of the land legally identified as Lot 77 in DP 2022 and Lot 76 DP 3875, also known as 36-38 Waterview Street, Carlton, New South Wales (Land). 3 Erected upon the Land is an existing building (Building) 4 At all material times the Company has occupied, and currently occupies, the Land pursuant to a lease with the Second Respondent made on 17 January 2018, commencing 1 February 2018 and ending on 31 January 2021 with an option to renew the lease for a term of 2 years (Lease). 5 At all material times the Owner has been, and is, the owner of the Land. 6 The Land is within the local government area of Georges River. 7 At all material times the Kogarah Local Environmental Plan 2012 (KLEP) was and is the environmental planning instrument which controls development on the Land pursuant to the EPA Act. 8 The Land is, and at all material times has been, zoned IN2 Light Industrial pursuant to the KLEP. Company's Use of Land 9 At all material times the Company has carried out, and continues to carry out, development on the Land involving the storage of motor vehicle tyres, including but not limited to: (a) acceptance upon the Land of motor vehicle tyres for storage; and (b) removal from the Land of motor vehicle tyres for transportation to other land (the Development) 10 The Development is carried out by the Company trading as "Newbee Tyre", which is a tyre import and wholesale business. Planning history of the Land 11 The relevant current development consent which have been issued for the Land: (a) DA 86/93 dated 24 January 1994, which approved development for the purposes of the manufacturing of aluminium windows; (b) DA 8/90 dated 22 February 1990, which approved development for the purposes of the storage/ light manufacture/ distribution of stainless steel mufflers; (c) DA 277/84 dated 15 January 1985 (signed 16 January 1985), which approved development for the purposes of a flammable liquids store; (d) DA 145/83 dated 3 August 1983, which approved development for the purposes of the manufacture and packaging of cosmetic toiletry and related products; and (e) DC285/36-38 dated 8 May 1969, which approved development for the erection of a factory for the purpose of warehousing and manufacture of sheet metal, guttering, downpiping, etc. 12 No person has sought development consent for the use of the Land for the purposes of the Development. Order No. 1 13 Development Control Order No. 1 dated 16 December 2019 was given by the Applicant to the Second Respondent (Order No. 1). 14 The Order No. 1 ordered the Second Respondent to do the following: Stop conducting the activity of storage of rubber tyres on the Premises. 15 The time for compliance with the Order No. 1 was 24 January 2020. Fire Safety Order 16 Development Control Order dated 12 February 2020 was given by the Applicant to the Second Respondent (Fire Safety Order). 17 The Fire Safety Order required the Second Respondent to take specified actions by 20 February 2020, 5 March 2020 and 24 March 2020 respectively. 18 The Second Respondent did not provide any particulars of works as required by the Fire Safety Order to the Council. The Mezzanine structure 19 The mezzanine structure in the south western part of the Building on the Land was dilapidated and had not been construed in accordance with any development consent or complying development certificate, and could not be constructed as exempt development. 20 The mezzanine structure would cause the floor area of the Building on the Land to exceed 2000m2, but its removal would reduce the floor area of the Building to below 2000m2. 21 The Building does not comply with the current version of the Building Code of Australia (BCA). 22 Works are required to be carried out so that the Building complies with the BCA (to the extent such compliance is necessary), including, but not limited to: (a) Removal of the mezzanine structure in the south western part of the Building; (b) Pressure and flow test for the fire hydrant system and if sufficient no further works required; (c) Upgrade of those external walls that are within 3m of the boundaries of the Land (except north west wall which is greater than 3m from boundary); (d) Measures to ensure compliance with paths of travel and travel distances; (e) Upgrade of essential services; (f) Upgrade of external paths of travel to the public road.

The proximity of residential development

1. An air photograph of the site and surrounding development was in evidence in Exhibit D at Tab 12, folio 190. For ease of reference, although the site is oriented at an angle to the cardinal points of the compass, it is convenient to refer to the frontage to Waterview Street as the northern boundary.
2. The first point to be made about what is to be noticed from this air photo is that the premises on the site appear to be built to the boundary on the eastern, southern and western sides. The air photo also discloses a variable setback to the premises from the northern boundary. It is unnecessary to attempt to estimate, with any precision, the extent of that setback.
3. The second relevant information to be gleaned from the air photo is the extent of the residential development with boundaries abutting the boundary of the site.
4. Although difficult to interpret, an examination of this air photo, using a magnifying glass, appears to show that there are at least seven residential properties on the eastern or southern boundaries of the site that have a full boundary in common with the site.
5. The other two boundaries of the site are to its street frontage and, to the west, what appears to be adjoining industrial development (the site immediately to the west also being zoned IN2 as shown on the extract of the zoning map at Exhibit F, Tab 23, folio 936). The premises and the adjoining industrial development to the west each appear to be built to their common boundary.
6. The closest residential development to the site is a weatherboard cottage at the northern end of the eastern boundary of the site. This cottage is shown on the photographs appended to Mr Tatian's first affidavit at Exhibit E, Tab 20, folio 697, upper‑left and lower‑right photos. It would appear that the separation between this cottage and the premises on the site is of the order of ~1.5 metres. It is unnecessary to know this distance with certainty for the purposes of my assessment in these proceedings.

Introduction

1. There is a limited range of elements of planning instruments requiring to be considered in addressing the Company's use of the site as a tyre storage facility. Relevant elements of two environmental planning instruments require consideration. The first is the Kogarah Local Environmental Plan 2012 (the LEP). The LEP came into effect when the site was located within the local government area administered by the former Kogarah Council. This Council has now been amalgamated with the former Hurstville Council, collectively becoming the Georges River Council.
2. The second is the SEPP. Because of issues arising out of cl 2.20B(i) of the SEPP, the terms of s 87 of the Evidence Act also require to be addressed.
3. However, it is appropriate to note that that these Class 4 proceedings are brought pursuant to s 9.45 of the EP&A Act, this being the provision that enables the bringing of proceedings for orders to remedy or restrain breaches of that Act. It is not necessary to repeat the terms of this provision.
4. It also is appropriate to note that the powers of the Court, where such a breach has been established, are set out in s 9.46 of the EP&A Act. This provision is in the following terms: 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may - (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may - (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.
5. It is also relevant to note, following from s 9.46(4) above, that s 20(2) of the Land and Environment Court Act 1979 (the Court Act) also arises as a basis for power when matters of discretion require to be addressed. I separately identify of this source of power when relied upon later. This provision is in the following terms: 20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement (1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of the following - … (c) proceedings under section 123 of the Environmental Planning and Assessment Act 1979, … (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings - (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, (d) …
6. It is to be noted that the reference to the EP&A Act in s 20(1)(c) above is to be taken as being to s 9.45 of that Act (as a consequence of the rearrangement and renumbering of that Act from 1 March 2018).
7. One provision of the Evidence Act requires consideration because an issue concerning the admissibility or otherwise of a critical element impacting on the applicability or otherwise of one of the provisions of the SEPP is potentially called into play in these proceedings.

The LEP

1. The site is presently zoned IN2 Light Industrial. Section 4.2 the EP&A Act has the effect of requiring that development specified in the Land Use Table of the LEP must not be carried out unless the Council has given development consent for that to occur. For the purposes of this discussion, it is not necessary to set out the precise terms of the EP&A Act provision noted.
2. The Land Use Table is one which is in conventional form. For the IN2 Zone, it sets out, first, the objectives for that zone. For the purposes of the present proceedings, it is unnecessary to consider any of the six enumerated objectives. The IN2 element of the Land Use Table, at paragraph 2, notes that there is no development in this zone which is permitted to be carried out without consent.
3. At paragraph 3, there are then listed types of development that are permitted with consent in the IN2 Zone. These are: 3 Permitted with consent Depots; Garden centres; Hardware and building supplies; Industrial training facilities; Light industries; Neighbourhood shops; Oyster aquaculture; Places of public worship; Roads; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 4
4. The final element, in paragraph 4, comprises a list of types of development that are expressly nominated as being prohibited in the IN2 Zone. None of those are relevant to the Company's tyre storage activities.
5. The existing use permitted as a consequence of a development consent granted in 1994 is for the manufacturing of aluminium windows (falling within the permitted use of "Light industries"). The present use by the Company is as a "Warehouse or distribution centre", also a permitted use within this zone as can be seen from the above extract from the Land Use Table. Therefore, there is no dispute in these proceedings that the Company's use of the site for a tyre storage facility is a permitted use in the IN2 Zone.

Introduction

1. The SEPP is a beneficial and facultative environmental planning instrument. If development complies with relevant provisions of the SEPP, that development can be exempt from the necessity for being granted development consent by, here relevantly, the Council.

Relevant SEPP provisions

1. A range of provisions of the SEPP arise for consideration in these proceedings. The first relevant provision is that contained in cl 1.15 of the SEPP, a provision that sets out the general scope for development which is exempt and, thus, does not require any approval to be carried out. This provision is in the following terms: 1.15 What development is exempt development? (1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
2. To fall within the above definition, the SEPP sets out, in cl 1.16, general requirements needing to be satisfied in order to have the benefit of being exempt from the requirement to obtain development consent. Only some elements of this provision require consideration in these proceedings. Those elements of cl 1.16 are: 1.16 General requirements for exempt development (1) To be exempt development for the purposes of this Policy, the development - (a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant provisions, must be structurally adequate, and (b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia, and (b1) …, and (b2) …, and (c) …, and (d) … (1A) … (1B) … (1C) … (2) Development that relates to an existing building that is classified under the Building Code of Australia as class 1b or class 2-9 is exempt development for the purposes of this Policy only if - (a) the building has a current fire safety certificate or fire safety statement, or (b) no fire safety measures are currently implemented, required or proposed for the building. (3) …
3. The SEPP, after setting out these general provisions, contains a number of subdivisions within the General Exempt Development Code. Each of these subdivisions deals with a precise and nominated type of development from within what could be regarded as a kaleidoscopic array of types of development. For the purposes of these proceedings, subdiv 10A deals with the change of use of premises. Changes of use that are potentially rendered permissible without consent are set out in a table in cl 2.20A. The explanatory introduction to the table is in the following terms: 2.20A Specified development A change of use from a current use specified in a category in Column 1 of the Table to this clause to a use specified in the corresponding category in Column 2 of the Table to this clause is development specified for this code.
4. It is not necessary at the time of the change of use to repeat the entirety of the table. The table is divided into two columns, with the first column headed "Current Use", and the second column, "New Use". Within each of these columns, there is a further division of the enumerated uses into three categories. There is no dispute in these proceedings that the 1994-approved use falls within Category 3 of Column 1. There is also no dispute that the Company's use as a tyre storage facility falls within Category 3 in the "New Use" column.
5. The consequence of this is that, provided all the development standards contained in cl 2.20B are satisfied, the change of use from that permitted by the 1994 development consent to the tyre storage facility use actually carried out on the site by the Company will be exempt development and no consent from the Council would be required for that change.
6. However, as later discussed, the position put for the Council is that, whilst some of the relevant elements of cl 2.20B are satisfied, there are other elements which were not and are not now satisfied. If the Council's position on any of these points is correct, the change from the 1994 development consent approved use to that of the Company's current use will not be exempt development and, for it to be permitted to continue, a development application would require to be submitted to, and approved by, the Council. The relevant provisions of cl 2.20B are: 2.20B Development standards The standards specified for that development are that - (a) …, and (b) …, and (c) …, and (d) the new use must not result in a change of building classification under the Building Code of Australia, unless the change of use is from a class 5 building to a class 6 building, or from a class 6 building to a class 5 building, and the building meets all the relevant provisions of that code for the new use, and (e) …, and (f) …, and (g) …, and (h) …, and (i) the new use must not cause the contravention of any existing condition of the most recent development consent (other than a complying development certificate) that applies to the premises relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping, and (j) …, and (k) …

The Evidence Act 1995 (NSW)

1. A matter requiring later consideration is whether or not elements of a conversation between a council officer and an employee of the Company fall within the exception to the hearsay rule provided by s 87 of the Evidence Act.
2. This is one of the matters pressed by the Council as demonstrating that the change of use from the consent to the Company's present use is not presently exempt development arises from the proposition advanced by the Council that the hours of operation on the site by the Company are in contravention of the permitted hours of operation approved in the 1994 consent. This proposition requires later detailed consideration as to whether or not the basis upon which the Council proposes that I should reach such a conclusion is founded on admissible evidence or not. This requires consideration of the circumstances in which the basis for the Council's submission arose.
3. The first aspect of the Evidence Act requiring to be noted is the definition of "admission" contained in the Dictionary to the Act. This definition is in the following terms: admission means a previous representation that is - (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding.
4. The second relevant element is s 87, the provision which creates an exception to the hearsay rule to allow an admission to be adduced as evidence. The relevant elements of s 87 are reproduced below: 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that - (a) …, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) …. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove - (a) …, or (b) …, or (c) the scope of the person's employment or authority.

Introduction

1. Before turning to give a broad outline of the matters requiring determination, it is appropriate to note that one of the consequences of the joint expert evidence from Mr Tatian and Mr Harriman was the conclusion, set out in paragraph 22(a) of the earlier summary of the agreed facts (at [49]) that the southern mezzanine floor needed to be removed for fire and other safety reasons. What has taken place in response to that agreement is later set out in detail.

Introduction

1. I have earlier noted that, on 13 November 2020, I requested the parties to address the question of whether or not the assessments I was required to make concerning compliance with the provisions of the SEPP for the change of use to be exempt development required to address what was known about the state of the premises and its use by the Company as at February 2018.
2. This matter was addressed in the additional submissions filed by 27 November 2020. I now turn to consider the timing aspect addressed in those submissions.
3. The supplementary written submissions on behalf of the Council and the Company, although expressed in slightly differing terms, were in agreement that compliance with the requirements of the SEPP for, here, the Company's use of the site as a tyre storage facility was one which arose not only from on or about 1 February 2018 (there being agreement that that should be regarded as when the Company's use commenced) but was also an ongoing compliance requirement. It is appropriate to set out the relevant extract from each of the submissions on this point.
4. First, the Council's submission on this point was, in paragraphs 3 and 4, in the following terms: 3 The Codes SEPP is to be applied on and from 1 February 2018. For development to be exempt it must comply with all requirements under the SEPP from time to time in an ongoing manner. The Codes SEPP defines exempt development using the linking verb is (ie. present tense) and in the case of development that comprises use it has ambulatory effect so as to apply to the use from time to time. 4 The first relevant date is 1 February 2018, but the relevant dates include every day since then on which the Development (the use) has been undertaken.
5. The Company's submission was in paragraph 11, the submission being in the following terms: 11. To answer the question raised in the first matter, whether or not the development meets clause 1.15 will be assessed both at the date of the commencement of the new use and also at the date when the Court considers whether to make the orders sought by the applicant (and such relevant dates in between).
6. It is, therefore, necessary to consider the range of factual matters in the context of this continuum of assessment.
7. It is useful, however, also to set out the elements of the Council's supplementary written submissions explaining why a change of use could only be exempt development provided there was both initial and continuous compliance with the relevant provisions of the SEPP. These elements of the supplementary submissions were contained in paragraphs 10 to 15. These paragraphs were in the following terms: 10 However, if the relevant development is the use of land the development must continue to conform to the definition of exempt development under the Codes SEPP to be authorised by it. This is because if the use would otherwise require development consent, it must find authorisation in the Codes SEPP, and it can only do this by continuing to be within one of the defined categories of exempt development. 11 Whilst cl 2.20A refers to a change of use as being the development specified, properly construed this clause specifies the uses in the Column 2 - "New use" as being exempt development, where that new use takes the place of a use in Column 1 "Current use" provided both are in the same Category. The EPA Act does not define development by reference to change of use but rather use. 12 The alternative interpretation, that only change of use (and not ongoing use) is exempt under the Codes SEPP does not have a sensible outcome as there would be nothing in the Codes SEPP that would authorise continuation of the use, once changed. 13 Clause 1.15 of the Codes SEPP makes plain that it is only development that is specified in an exempt development code, meets the standards specified for that development and that complies with the requirement of Division 2 of the Codes SEPP that is exempt development. 14 Certain development standards for a change of use under cl 2.208 can only be given effect if the Codes SEPP operates in the way the Council contends. Specifically, cl 2.20B(i) specifies that a change of use must not cause the contravention of any existing condition of the most recent development consent relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping. 15 If the Codes SEPP had a once-off application, akin to a grant of consent, the first respondent would only need to comply with the development standards at the commencement (only) of the new use. This is to say that provided relevant conditions of the 1994 Consent were complied with at 1 February 2018, there would be no ongoing obligation to comply with these conditions.
8. Although considerable discussion arose in the written expert evidence and the subsequent questioning of the experts concerning it, much of that discussion focused on the present status of the premises and what could reasonably be anticipated as a consequence of completion of the agreed removal of the mezzanine element of the internal structure of the premises. However, Mr Tatian and Mr Harriman also addressed, relevantly, the question of whether or not a sprinkler system was required whilstever the mezzanine level existed within the premises. The necessity or otherwise for such a sprinkler system requires later consideration in the context of one element of the requirements of the SEPP.
9. However, critically, what I am required to consider is not only that present and anticipated position, but what was the position at the time that the change of use from that permitted by the 1994 development consent to that of the present tyre storage use being carried out by the Company. That will involve an assessment of the various issues pressed by the Council in an historic context relating to that time of change of use as well as matters which arise from present circumstances or will necessarily arise in the future.
10. In this context, the facts agreed between the parties record that: At all material times the Company has occupied, and currently occupies, the Land pursuant to a lease with the Second Respondent made on 17 January 2018, commencing 1 February 2018 and ending on 31 January 2021 with an option to renew the lease for a term of 2 years.

The state of the premises as at February 2018

1. I am satisfied that, on the uncontroverted evidence before me, two relevant aspects of the state of the premises can be taken as being known as at February 2018.
2. The first of them is that the now demolished mezzanine floor was in place as at that date in the form that it was when Mr Tatian and Mr Harriman first undertook their inspections of the premises.
3. The second aspect of the premises that can be taken as being known to be the position at that date is that the elements giving rise to the agreement between Mr Tatian and Mr Harriman, embodied in Table 2 to their Joint Expert Report (with the exception of the now implemented necessity to demolish the mezzanine), were present at the commencement of the use of the premises as a tyre storage facility.
4. In this latter regard, there is no suggestion that the relevant nature of the structure on the site or of the proximity to the surrounding residential development has changed in any material respect over the intervening period of time.
5. In addition to these necessary factual conclusions, I am satisfied that there is also one necessary and appropriate assumption to be made concerning the state of the premises as at the time of the change of use. That assumption is that the various electrical safety matters observed by Mr Tatian on his initial inspection (and considered by him to warrant immediate safety rectification) reflected the state of the premises as at the change of use. In this context, it is to be observed that neither Mr Tatian or Mr Harriman made any suggestion in their written or oral evidence that these electrical safety issues were caused in any fashion by changes to the premises initiated by the Company.
6. I therefore consider it appropriate to conclude, on the balance of probabilities, that those unsatisfactory electrical safety matters arose as a consequence of the functional abandonment of the prior existing use of the premises at an unknown point in time before the Company's change of use to a tyre storage facility was effected. However, nothing follows from this.

Matters of contest with the Company

1. It is appropriate to note that the primary contest in these proceedings is between the Council and the Company. Although the Summons, as earlier set out at [15], clearly shows that elements of relief have been sought by the Council against the Owner, those matters, as potentially arising for determination, have to considerable extent been resolved either by the Council no longer pressing an element raised in the Summons or by general agreement between the Council and the Owner about functional outcomes.
2. In broad terms, the matters requiring determination involving the Company are: 1. has the Council established one (or more than one) basis upon which I should conclude that the change of use from that permitted by the 1994 development consent to the present use by the Company as a tyre storage facility was not to be characterised as exempt development permitted by the SEPP and this could not continue without seeking and obtaining an approval from the Council; 2. if the outcome of my consideration was that the change of use was not exempt development, but was one which required development consent from the Council, should I exercise my discretion to permit the Company time to prepare and lodge a development application seeking consent to use the site for tyre storage and, if discretion was to be exercised in that fashion, what were appropriate conditions to be attached to that pending finalisation (whether by the Council or by the Court on appeal) of such a development application; and 3. if discretion was not to be exercised in that fashion, what were the appropriate orders now to be made concerning the Company's use of the site. Immediately operative orders of a restrictive or prohibitory nature would only become relevant to be considered if I was to conclude that there was no appropriate discretionary basis upon which the Company might be permitted to continue its activities (subject to such restrictions as I might consider appropriate) pending lodgement and final determination of a development application to regularise the present use.
3. As a consequence, prior to embarking on detailed consideration of the above matters raised by the Council concerning the status of the Company's activities on the site, it is be appropriate to address, comparatively briefly, the matters between the Council and the Owner.

Introduction

1. Two matters remain for determination concerning the Owner. The more significant (being a matter of practicality) is a dispute about timing of implementation of elements of the fire protection improvements otherwise agreed upon by Mr Tatian and Mr Harriman.
2. The second is whether a bare declaration (in the terms sought at paragraph 3 in the Summons) is appropriate to be made.
3. I have earlier set out, at [15], the terms of the Summons commencing these Class 4 proceedings. It can be seen that:

• in prayer 2, the Council sought a declaration that the Owner had failed to comply with a Development Control Order addressed to the Owner issued by the Council on 16 December 2019;
• in prayer 3, the Council sought a declaration that the Owner had failed to comply with the terms of a Fire Safety Order dated 12 February 2020 issued by the Council to the Owner;
• two orders (proposed Orders (4) and (5)) were addressed to both the Company and the Owner. It is not necessary, for present purposes, to repeat the terms of these proposed orders;
• an order, proposed Order (6), sought that the Owner be required to cease conducting the activity of tyre storage on the site; and
• as an alternative to the above‑noted orders, proposed Order (7) was advanced as a basis upon which the Fire Safety Order should be implemented by the Owner.

1. It is to be observed, in an entirely non-critical fashion, that Ms Reid, as counsel for the Owner, needed to take a comparatively limited role in the proceedings. This arose as a consequence of proper concessions made on behalf of the Council in response to Ms Reid's written submissions of 14 September 2020 (see [16]).
2. However, for completeness in understanding the evolution of the matters initially giving rise to these Class 4 proceedings, it is appropriate to explain the position advanced on behalf of the Owner and the Council's response to it, a response which has significantly narrowed the range of matters concerning the Owner requiring my determination.

The Owner's position

1. Ms Reid's written submissions were commendably focused and succinct. Her submissions commenced by addressing the validity of the Development Control Order issued by the Council, an order which required the Owner to cease carrying out the activity of tyre storage at the site. For reasons she explained, that activity was not being carried out by the Owner but was being carried out by the Company. As a consequence, she submitted that the Owner could not be ordered to cease an activity which was not, as a matter of fact, being carried out by it.
2. With respect to the Fire Safety Order, the Owner conceded that it had breached the order by failing to comply with the requirements of the order within the time specified. Ms Reid noted that the Owner adopted Mr Harriman's evidence in the Joint Expert Report (accepting, therefore, that the agreed works in Table 2 to that expert report were needed, but proposing that the timing of implementation of those works should be at as proposed by Mr Harriman in Table 3 to that report rather than the faster implementation proposed by Mr Tatian).
3. With respect to the proposed declaration concerning the breach of the Fire Safety Order, Ms Reid's written submissions said, at paragraph 18: There would be no utility in a declaration as to breach of the Fire Order in circumstances where the works to be undertaken and timeframes in which they are required to be undertaken now vary from the Fire Order and there is general agreement on the works to be undertaken.
4. With respect to the orders proposed in the Summons to be made jointly against the Company and the Owner, Ms Reid submitted that the Owner was not actually carrying out the impugned activities on the site and that there was no evidence that the Owner had control over, or possession of, any of the material on the land associated with, or involved in, the Company's activities.
5. She proposed that the order seeking to restrain the Owner from carrying out the activity of tyre storage on the site should not be made for the reasons noted above.
6. Finally, with respect to the alternative remedial proposed Order (7) advanced by the Council as an alternative to the earlier more prescriptive proposals, Ms Reid submitted, at paragraph 22: The Court would decline to make the orders sought in prayer 7 of the Summons, and would instead make an order that Second Respondent carry out the works required, and in the timeframes suggested, by Mr Harriman in the Joint Report.

The Council's position

1. The Council's response with respect to the primary elements of Ms Reid's submissions can be dealt with comparatively briefly. These are contained in the first four substantive paragraphs of the Council's reply submissions of 16 September 2020 at, relevantly, paragraphs 7 to 10. These were in the following terms: 7 First, the Council does not press for relief with respect to Order No. 1, with the consequence that prayers 2 and 6 of the Summons are not pressed. 8 Secondly, the Second Respondent has now conceded that it failed to comply with the Fire Safety Order in the time specified: 2RSA [17]. It follows that there is no contest that the Second Respondent has breached the EPA Act and the principal issue between the Council and the Second Respondent is the appropriate remedy. 9 Thirdly, as to remedy, and contrary to 2RSA [18], there is utility in the making of a declaration in the terms of prayer 3 of the Summons. The making of such declarations informs the public of the breach of the Act. 10 Fourthly, as to the submission at 2RSA [22], the primary order sought by the Council is that the Land not be used until development consent is obtained and the necessary work is done in view of the risks, and for the other reasons, outlined above.
2. As can be seen, there remains a dispute between the Owner and the Council as to the appropriateness or otherwise of making a declaration addressing the Owners acknowledgement that it had not complied with the Fire Safety Order. I address this matter in my consideration of matters in dispute between the Council and the Owner in the concluding portion of this section of this judgment.
3. The reply submissions also addressed the proposition advanced by Ms Reid, set out above, concerning the carrying out of the necessary remedial fire safety works. The Council's reply submissions on this point were also succinct. They were in the following terms (at paragraphs 11 to 13): 11 In the event that the Court is not prepared to order that the Land not be used in its present state, the Council agrees that the preferred form of order is one which reflects the work required to be undertaken and the times specified for that work. As a minimum this should include the matters set out in Tables 2 and 3 of the Joint Expert Report at Evidence Book Vol 3 Tab 24 at pages 953-957 and 958-959. 12 It should include compliance with the NSW Fire and Rescue Guideline for Bulk Storage of Rubber Tyres, a copy of which is at Evidence Book 2, Tab 21, p 753. This requirement is included in Table 3, but not Table 2 of the Joint Expert Report. 13 Mr Tatian's evidence in the Joint Expert Report (Evidence Book Vol 3, Tab 24, p 952 and 968-969) and his Expert Report (Evidence Book Vol 2, Tab 21, p 723) is that the NSW Fire and Rescue Guideline should be observed. His evidence is that the disorganised and excessive quantities of tyres in breach of the Guideline increases the likelihood of a longer fire and greater spread of fire and smoke. Compliance with the Guideline was one of the fire safety measures specified by the Council in the Fire Safety Order (Evidence Book Vol 1, Tab 5, p 8 (3iii)).

Consideration

1. I turn, first, to the question of whether or not I should make a declaration as sought in prayer 3 of the Summons.
2. As I understand the position, it is well-settled that the making of a bare declaration is ordinarily inappropriate when such a declaration would have no foreseeable consequences for the breaching party (Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180; per Mason J at 188 and Aickin J at 189). The making of a declaration as sought by the Council in prayer 3 of the Summons would have no functional value of a prophylactic nature (contra the position in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 per the plurality at 582).
3. However, as Gaudron J observed, in Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 at [52], there may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention.
4. In the ordinary course of events, in light of the above authority, I would be reluctant to make a bare declaration because of the lack of specific utility in such circumstances. However, the Council proposes that, in this instance, there is some potential educative value in the making of such a declaration. On fine balance, given the public safety importance of ensuring the observation of, and carrying out of works mandated by, Fire Safety Orders, I am satisfied that there is sufficient potential educative utility in making the declaration sought by the Council in prayer 3 of the Summons.
5. With respect to the issues remaining concerning the timing of carrying out of remedial fire safety works, these are inextricably bound up with the issue of whether or not, as a matter of discretion, I should permit the Company's activities on the site to continue pending the lodgement with, and determination by, the Council of a development application to permit a change of use on the site to legitimise the Company's activities.
6. As a consequence, further consideration of matters contained in Tables 2 and 3 of the Joint Expert Report of Mr Tatian and Mr Harriman is deferred until later in my consideration of matters of discretion.

Introduction

1. What follows in the next section of this judgment is what took place leading up to completion of the removal of that mezzanine. That removal had, as a consequence later discussed, the effect of eliminating one substantial area of disagreement between Mr Tatian and Mr Harriman. This issue was whether or not, should the Company's tyre storage activities be permitted to continue (whether on the basis of a formal consent for a change of use or on some interim basis pending such a decision), there would be a mandated necessity for the installation of a sprinkler system in the premises.
2. However, it is necessary, for the purposes of considering whether or not the Company's change of use could have been regarded as exempt development after 1 February 2018, to address the difference between Mr Tatian and Mr Harriman as to whether the mezzanine (whilstever it existed) would have required the installation of a sprinkler system does require resolution. This matter is dealt with separately later.
3. I have earlier set out, at [15], the factual outline I have adapted from the SOFAC. As can be seen from paragraphs 19 and 22(a), it was agreed between the parties' fire safety experts that the unauthorised southern mezzanine structure on the premises needed to be demolished.
4. On 18 August 2020, during the interlocutory hearings, I made orders requiring the removal from the premises of the tyres that had been stored on the mezzanine level and the demolition of that mezzanine structure. The orders set a timetable for the implementation of these two steps. The orders were in the following terms: 1 The first respondent must remove all tyres stored on the mezzanine structure from 36-38 Waterview Street, Carlton by close of business on 21 August 2020. These tyres are to be completely removed from the Premises, and not relocated to any place within it. 2 The first respondent must demolish the Mezzanine and remove any demolished material from the Premises by close of business on 15 September 2020.

The state of the mezzanine on 18 September 2020

1. In his affidavit of 16 September 2020, the day before the substantive hearing was to commence, Mr Harriman deposed that, during the course of his inspections on 15 and 16 September 2020, removal of the tyres as required by the first of my orders of 18 August 2020 had been effected but that complete demolition of the mezzanine had not occurred. The relevant paragraphs of his affidavit were in the following terms: 4 On entering the building at 36-38 Waterview St on 15 September 2020, I observed that mezzanine known as the southern mezzanine was in the process of being demolished. I observed that approximately 50% of the flooring and the floor joists had been removed commencing from the rear of the warehouse. 5 I also observed that the very front section of the mezzanine was being used for the storage of non-combustible aluminium which had been removed from the walls of the mezzanine. This front section area of storage is approximately 58m2 (9 x 6.5m). Annexed hereto and marked "A" is a photo I took on 15 September 2020 of this front area of storage. 6 On entering the building at 36 - 38 Waterview St on 16 September 2020, I observed that all of the mezzanine flooring and floor joists had been removed up to the existing stairway and that the only flooring remaining was the area used for storing the demolished aluminium as outlined above. Annexed hereto and marked "B" is a photo I took on 16 September 2020 of this areaOn the photographs that were annexed to this affidavit of Mr Harriman showed, clearly, not only the small remaining element of the mezzanine floor (upon which the aluminium material was being stored), but also showed that the very substantial steel framing structure which had supported the mezzanine remained undisturbed.
2. During the course of the hearing on the morning of Friday 18 September 2020, I asked Mr Hale to ascertain what was the current position concerning the demolition of the mezzanine floor and its steel supporting structure - as I was concerned that Mr Harriman's photographs (to which he referred above) made it clear that the presence of the substantial undemolished steel framing would make it comparatively simple to reinstate a mezzanine level.
3. After the luncheon adjournment, Mr Hale advised that he had been instructed that the steel framework remained in situ. He advised that it was anticipated that the steel framework and all remaining traces of the required-to-be-removed mezzanine level could, in fact, be removed from the premises by 25 September 2020 (this being 10 full days after the date mandated for the compliance with the second of my orders set out earlier).
4. As a consequence, at the conclusion of the submissions that day, I indicated that I proposed to adjourn the matter rather than reserving my decision, as I wished to provide an opportunity for further evidence to address the question of compliance, or otherwise, with the requirement to effect complete removal of this mezzanine structure.
5. I therefore adjourned until the morning of Tuesday 29 September 2020 and directed that any further evidence (whether from a council officer or on behalf of the Company) concerning the then state of the mezzanine be filed and served by Monday 28 September 2020.

The evidence

1. At the hearing on 29 September 2020, a further affidavit from Mr Nestorovski was read for the Council. An affidavit from Mr Stuart Boyce, relevantly another fire safety engineer, was read on behalf of the Company. Mr Boyce is a colleague of Mr Harriman, Mr Harriman being on leave and unavailable to undertake a further inspection of the site.
2. Mr Nestorovski inspected the site on 28 September 2020. His affidavit said, at paragraphs 3 and 4: 3 On 28 September 2020 I attended the Land to carry out an inspection at the invitation of Jason, the director of the first respondent. I arrived at the Land at 11:30am. The purpose of this inspection was to confirm the completed removal of the mezzanine as had been previously directed by the Court. 4 I observed that although the majority of the structure had been removed, parts of the mezzanine structure remained in place. This included part of the mezzanine on which a large exhaust fan was located and parts of the frame of the mezzanine.
3. Mr Boyce also inspected the site on 28 September 2020. With respect to the state of the mezzanine, his affidavit said, at paragraphs 7 and 8 and 11 to 13: 7 On entering the building at 36-38 Waterview St on 28 [corrected] September 2020, I observed that mezzanine known as the southern mezzanine had been demolished, other than a small portion where there is a cone shaped exhaust canopy from a previous spray booth. The canopy of the spray booth is not considered to be part of the mezzanine and is not trafficable. I observed that other than the small cone shaped exhaust canopy all of the flooring had been removed with only some floor joists left remaining adjacent to the plant platform area. Annexed hereto and marked 'A" is a photo I took on 28 September 2020. 8 I also observed that the previous staircase shown in the photos I have reviewed located adjacent to this old spray booth area had been removed from site. … 11 To reuse this mezzanine area would require not simply provision of floorboards but would in fact require existing floor joists to also be reinstated as well as supporting columns in some areas. 12 In relation to a nominal or small area where cross horizontal beams are shown, my colleague Harriman OAM has given an opinion, with which I agree, that it is not capable of storing tyres and that using cutting equipment could be risky. For that reason, my colleague Harriman OAM has recommended that it can be left as is, an opinion with which I agree. Annexure and marked "D" is an e‑mail from Harriman dated 26 September 2020 and the photo containing the encircled red circle referred to. 13 As such, it is my opinion that the southern mezzanine at 36-38 Waterview St has been removed.

Consideration

1. The order that had been agreed to by the Company on 18 August 2020 concerning the demolition of the southern mezzanine was in unequivocal terms. It is appropriate, here, to repeat the terms of that order: 2 The first respondent must demolish the Mezzanine and remove any demolished material from the Premises by close of business on 15 September 2020.
2. I had explained, at the time of making that order and on 18 September 2020 when Mr Hale had only been able to report partial compliance, that what was required was the complete demolition of the entirety of the southern mezzanine - not merely the removal of the flooring for it.
3. I made this clear because the presence of an RSJ steel framework of vertical and horizontal members (with the horizontal members having fixed vertical tabs (at what appeared to be approximately 500-millimetre spacing) used for the affixing of flooring bearers) was completely unacceptable, as the continued presence of such structures made future reinstatement of flooring to recreate a mezzanine quite simple.
4. I repeated to Mr Hale that the terms of the order were clear and unambiguous.
5. I observe that photograph 8 annexed to Mr Nestorovski's affidavit clearly showed that continuing presence of elements of the unlawful mezzanine structure, including elements of a horizontal RSJ with the tabs for joist affixing on them. A copy of Mr Nestorovski's photograph 8 is Annexure C to this decision. On the right, to the rear of the photograph, a section of RSJ with the tabs can clearly be seen.
6. I indicated to Mr Hale that this position was entirely unacceptable and that the complete demolition of all elements of the mezzanine structure capable of utilisation for the reinstatement of any portion of the unlawful mezzanine floor was in breach of my order of 18 August 2020.
7. I also indicated to him that I was not prepared to proceed to draft a decision unless all elements potentially capable of reinstating any portion of the mezzanine floor were removed. I indicated that the former spray-booth canopy adverted to in Mr Boyce's affidavit did not need to be removed and I was also prepared to permit any vertical elements of the mezzanine structure to remain if they were necessary for retaining the structural integrity of the building.
8. After a short adjournment, Mr Hale advised that he had been instructed that completion of removal of the remaining mezzanine floor elements could be achieved by Friday 1 October 2020.
9. I reminded Mr Hale that his client's instructions to him on 17 September 2020 (as conveyed to me and to the representatives of the other two parties) had been that the entirety of the mezzanine removal would be completed by Friday 25 September 2020.
10. This, obviously, from that which I have set out above concerning the position on 29 September 2020, had turned out to be either overly optimistic or wilfully inaccurate (it being unnecessary to determine, now, which of these might be the correct position).
11. I indicated to Mr Hale, that I proposed to adjourn until Thursday 8 October 2020 in order to allow further (pessimistically calculated) time for the completion of the required demolition. I also indicated that I proposed to order that the Company pay the costs of the Council and of the Owner of the 29 September 2020 hearing.

The evidence

1. A short hearing took place at 4.15 pm on 8 October 2020. At this hearing, a further affidavit from Mr Harriman was read on behalf of the Company. This affidavit resulted from Mr Harriman's inspection of the extent of the removal of the southern mezzanine structure earlier that day.
2. Mr Harriman's affidavit and the photographs annexed to it provided clear evidence that the remaining elements of the southern mezzanine capable of supporting the reinstallation of a mezzanine floor (observable, as described in the affidavit evidence at the hearing on 29 September 2020) had been removed. As a consequence, the order requiring this to have occurred by 15 September 2020 had, finally, now been satisfied.

The outcome concerning the southern mezzanine

1. In the context of substantive matters requiring consideration, the result of this evidence was that the floor area of the building on the site was now less than 2,000 square metres and, importantly, was incapable of readily being increased to be of a floor area in excess of the 2,000 square metres.
2. Specifically, the joint report of Mr Tatian and Mr Harriman recorded (Exhibit F, Tab 24, page 9) that they agreed, in addition to the fact that the floor area had now been reduced to less than 2,000 square metres, that: • The existing volume is less than 12,000 m³. • The building would satisfy the floor area and volume requirements of Type C construction, and therefore was assessed during the conclave to the requirements applicable to Type C construction. Sprinklers are not required to the building under the excessive hazard provisions of Table E1 .5 of the BCA.
3. As a consequence, from the time during the process of demolition of the mezzanine when it ceased to be operable, the requirement for a sprinkler system no longer stood as a basis for concluding that the Company's tyre storage activities were not exempt development.

Request for contingent information on discretion

1. I had also indicated on 29 September 2020 that, on 8 October 2020, I expected that the Company would be in a position to advise me of how long it would take the Company to prepare and lodge a development application for continued use of the premises as a tyre storage facility (should my determination on necessary antecedent matters cause me to conclude that this would be necessary for such a continued use and, as a matter of discretion, it was appropriate to permit the Company time to prepare and lodge such an application).
2. I indicated to Mr Astill, counsel appearing for the Council on this occasion, that I also expected the Council to be able to advise me, on 8 October 2020, as to how long a period of time it would be reasonable to expect the Council would take to assess and determine any development application made by the Company for its continued use of the premises (should that position arise).
3. At the short hearing on 8 October 2020, Mr Hale advised that his instructions were that the preparation of a development application (should I conclude that such an application was necessary) would take only one month if the plans already held by the Council on file were sufficient, but would take two months if it was necessary to prepare a full set of plans for the building. The extent of the additional time required for the preparation of plans, he advised me, did not arise as a consequence of any complexity in drafting but because of high demand at the present time for drafting services.
4. In this context, I had Mr Goodman, appearing on this occasion for the Council, seek instructions as to whether or not the Council did require a fresh set of plans. After a short adjournment to obtain those instructions, he advised me that the Council did require such plans as part of any development application on behalf of the Company if that stage was reached.
5. I indicated that, if I did reach the stage of considering the exercise of discretion and concluded that the Company should be permitted to lodge a development application for a change of use, I would propose to permit three months for that to occur. I indicated that the additional month arose as a consequence of me taking a pessimistic view of time estimates as a consequence of recent experience demonstrating that such estimates were frequently overly optimistic.
6. I indicated that, should I adopt this course, I intended to incorporate a self‑executing regime in the orders providing for it, a regime that would incorporate consequences for the Company's activities if any permitted development application had not been lodged within the allowed time. However, I also indicated that the orders would also incorporate liberty to relist to permit addressing of slippages should they occur.
7. Finally, it is also to be noted that Mr Goodman indicated that the Council had instructed him that it was likely to take three to four months after the lodgement of a development application for such a change of use (if that path was to be followed) for that application to be assessed and determined by the Council.
8. As I have concluded that it would be appropriate for the Company to be given an opportunity to regularise its tyre storage activities by lodgement of a development application for this purpose, it will be necessary in the orders I make to establish an appropriate interim regime to permit this to occur.

Council's contentions why the change of use is not exempt development

1. I have earlier noted that the first of the matters in contention between the Council and the Company is the issue of whether or not the Company's use of the premises, effected by the change from that of aluminium window manufacturing permitted by the 1994 development consent, satisfied, and has continued to satisfy since 1 February 2018, the provisions of various clauses of the SEPP and was and remains exempt development.
2. I have earlier set out the relevant provisions of the SEPP requiring consideration in this context. The Council presses a number of different bases upon which it is submitted that I would not be able to conclude that a relevant and necessary requirement of the SEPP was satisfied. The requirements said not to be satisfied each require separate consideration.
3. In summary, the Council submits that I cannot be satisfied as to the following prerequisites set by the SEPP: 1. The Company's use of the premises did not ever and does not now satisfy cl 1.16(1)(b) of the SEPP that, being an existing building, was put into a state of contravention of the BCA. It is to be noted that this contention is, in effect, an overarching one drawing together in a single complaint the matters arising from the following matters. The various merit matters in support are dealt with in the framework provided by those following matters; 2. The requirements for a change of use set by cl 2.20B(d) is not satisfied because the change of use results in a change of classification of the premises under the BCA; 3. The Company's use of the premises cannot be exempt development because cl 1.16(2) sets fire safety tests for this existing building and those fire safety tests have never been, nor are currently being, satisfied; and 4. The Company's operations on the site are in breach of the operating hours set by the 1994 development consent and thus do not now satisfy the requirement in cl 2.20B(i) (this requiring that there be, relevantly, no contravention of an existing condition of the most recent development consent applying to the premises relating to hours of operation).

The exempt development claim - the building classification contention

Introduction

1. The BCA establishes a system of classification of buildings. The classifications are, in part, dependent on the nature of the structure and, also in part, dependent on the nature of the use being made of that structure.
2. I have earlier set out the general change of use provision in the SEPP, contained in cl 2.20A which permits a change of use of an existing building to be exempt development. In this instance, the change of use from "Light industry" to "Warehouse or distribution centre" is potentially rendered exempt development by virtue of this provision.
3. However, the provision is not without qualification. As also earlier set out, cl 2.20B of the SEPP requires that, for such a change of use, there must be no change in the classification of the building pursuant to the BCA.
4. In this instance, it was Mr Tatian's evidence that there was such a change of classification and, thus, the change could not be characterised as exempt development. Mr Harriman expressed a contrary view. It will later be necessary to set out in the bases for these views and to determine which of the competing positions is to be adopted.

Multi-classification buildings

1. One of the aspects of the classification system in the BCA is the possibility that a building can, within a single structure, contain multiple classifications. This multi-classification designation is triggered where, for the purposes of the 1994 development consent, three separate activities were carried out within the building at locations that are able to be identified. The floor area used for each purpose gave rise to a multi-classification building, a designation arising from these separate spaces. Those three activities undertaken when the premises were being used for the manufacturing of aluminium windows were: 1. Administration; 2. The window manufacturing activities proper; and 3. The storage and distribution activities carried out of the completed windows post manufacture.
2. For each of these activities to be counted as giving rise to a separate use for the purposes of building classification, a provision known as the "Rule of 10", in A3.3 of the BCA, must be satisfied with respect to each of the potential classifications for the building to have multiple classifications. The Rule of 10 provides if a storey of a building has more than one purpose comprising 10% of the floor area (here the case), the classification of each purpose is applied to that building. The consequence of that is that this building has multiple classifications and thus falls within the terms of A3.4 of the BCA, a provision in the following terms: Parts with more than one classification Notwithstanding A3.3, a building or part of a building may have more than one classification apply to the whole building with the whole of that part of the building. If a building or part of a building has more than one classification apply to the whole building or part, in accordance with (a), that building or part must comply with all the relevant provisions of the BCA for each classification.
3. Mr Tatian and Mr Harriman agreed that, when the aluminium window manufacturing activities were being carried out on the site, each of the three activities nominated above satisfied the Rule of 10 and that, as a consequence, the building was to be classified as having three different building classes operating within the premises.
4. They are also in agreement that, as a consequence of the change of use to that presently carried out by the Company, there is no longer any activity on the site, which would require the manufacturing class element (applicable during the aluminium window manufacturing era) remaining required to be applied to the building.

Consideration

1. It is not necessary, I consider, to address this contention at length. The provisions for change of use contained in cll 2.20A and 2.20B of the SEPP are ones which are expressed at a significant level of generality, as can be seen from the terms of the provision. This demonstrates a distinction to be drawn between the technical elements of the BCA arising as a consequence of the multi-use classification provision in the Rule of 10 and the more general planning approach taken to categorisation of uses as a matter of planning law.
2. Understanding this provision is clearly not intended to be undertaken at a level of minute analysis in circumstances where the beneficial and facultative provision in cl 2.20A of the SEPP is sought to be invoked.
3. In the present instance, had the area of office space in the aluminium window manufacturing phase of the use of the premises been less than 10% (thus not warranting the identification of an additional separate building class applying to the premises), this issue would not have arisen for that use.
4. Indeed, had a 10% use (for example, as office space) whilst the premises were operating pursuant to the 1994 development consent have been reduced in area to 9.99% when the Company's change of use took effect, on the Council's construction of this provision such a change of use could not be exempt development. That, in my opinion, involves a misapplication of what is sought to be protected by this provision of the SEPP.
5. Viewing the provision in a purposive fashion and having regard to the beneficial and facultative nature of the instrument as a whole, I am satisfied that it is inappropriate to accept the Council's submission proposing that the shift in the nature of the internal use classification of elements of the premises stands as a barrier to concluding that the Company's tyre storage use of the premises could not be exempt development for the purposes of the SEPP.
6. It is to be noted that this limited conclusion in the Company's favour, however, does not in any fashion act as a shield for the Company from the necessity to comply with other requirements of the SEPP where what is required by those other provisions is discernible with precision.

The exempt development claim - the fire safety contentions

Introduction

1. As earlier discussed in the context of timing for consideration of whether the Company's use is exempt development or not, the fire safety contentions must be considered over the whole span of time from early February 2018 to the time of this decision.
2. The fire safety requirements bases advanced by the Council as precluding the Company's tyre storage activities from being exempt development arise from cl 1.16(2) of the SEPP. In this context, it is appropriate to repeat the terms of this provision. They are: 1.16 General requirements for exempt development (1) .... (1A) … (1B) ... (1C) .... (2) Development that relates to an existing building that is classified under the Building Code of Australia as class 1b or class 2-9 is exempt development for the purposes of this Policy only if - (a) the building has a current fire safety certificate or fire safety statement, or (b) no fire safety measures are currently implemented, required or proposed for the building.
3. The Council's position is that neither of the requirements of cl 1.16(2) are satisfied.
4. In this context, it will also be necessary to consider how the word "required" in this provision is to be construed.

The absence of a current fire safety certificate or fire safety statement

The Council's position

1. As to the first requirement, the Council submitted that there is no evidence that a current fire safety certificate or fire safety statement exists for the premises.
2. This position was concisely outlined in the Council's written submissions of 14 September 2020 at paragraphs 16 and 17: 16 In this context, it is to be noted that the written submissions demonstrated, at (18), by reference to the affidavit of Ms … Maclean of 11 September 2020 (Exhibit E, Tab 17). Ms Maclean, in (2) of this affidavit, referred to her earlier affidavit of 24 July. This earlier affidavit was in evidence at Exhibit D, Tab 13, with documents in the bundle exhibited to that affidavit being in Exhibit D at Tab 14. Ms Maclean holds the position of the Council's Coordinator Information Management. 17 The effect of the contents of her two affidavits and the documents exhibited to the earlier of them is that she had conducted a comprehensive search across all the potential physical and electronic document storage facilities of the Council to ascertain whether or not there was any record of any fire safety certificate or fire safety schedule relating to the premises on the site (referred to in her affidavits as the Land). The overall effect of her evidence was that there was no record held by the Council of any fire safety certificate or fire safety schedule held by the Council for the premises on the Land.
3. Mr Goodman's oral submissions on this point were succinct (Transcript 18 September 2020, page 3, line 21 to page 4, line 1). In these submissions, he simply sought to reinforce the matters set out above.

The Company's position

1. First, it is to be observed that the written submissions on behalf of the Company, filed on 15 September 2020, address cl 1.16(2) at paragraph 31. This submission was in the following terms: 31. Further, in relation to cl 1.16(2), no fire safety measures were required within the meaning of sub-clause (2)(b) at the time of the change of use. There is, therefore, compliance with cl 1.16(2).
2. As can be seen, this element of the Company's written submissions did not address the question of whether or not there was a current fire safety certificate or fire safety statement for the premises as called up by cl 1.16(2)(a).
3. Mr Hale's oral submissions did not address, at all, the requirement in cl 1.16(2)(a) of the requirement for a current fire safety certificate or fire safety statement. In particular, he did not, in any fashion, contest the evidence of Ms McLean that no current document of either of those descriptions was held by the Council. Nothing was tendered on behalf of the Company or the Owner that would demonstrate that, despite the absence of such a document being able to be found in the Council's records, such a current document presently existed.

Consideration

1. The extract from the Council's written submissions set out above, on my examination of the two affidavits deposed by Ms McLean (in Exhibits D and E), reveals that the summary put in the Council's written submissions accurately reflects her evidence.
2. In this context, it is to be noted that Mr Hale did not require Ms McLean for cross‑examination and that the Company has not sought to lead any evidence to rebut her evidence as to what should be understood from her examination of the Council's records.
3. As I read Ms McLean's uncontested evidence, there has been complete absence of any fire safety certificate or fire safety schedule at any time at, or since, the change of use here in contest. This is sufficient to lead to the conclusion that the change of use was not, and is not, exempt by virtue of cl 1.16(2)(a) being satisfied.

Introduction

1. The uncontested absence of any fire safety certificate or fire safety statement for the building thus requires my consideration of the second limb of cl 1.16(2).
2. As to whether an expansionary interpretation of "required" should be adopted, the Council and the Company had conflicting (and not unexpected) positions.

The Council's position

1. The position advanced for the Council was that such an expansionary position based on "required" being read as "necessary" was appropriate. The Council submitted, at paragraphs 23 to 31: 23 The word "required" is not limited to requirements that are mandated by operation of statute, for the following reasons. 24 First, the ordinary meaning of the word "required" is not so limited. It means necessary in a more general sense. That the word "required" is one element of the composite phrase "implemented, required or proposed" confirms this. There is no concept of being mandated by statute in the terms "implemented" or "proposed" and so such a concept would not be incorporated into the word "required". 25 The phrase "implemented, required or proposed" applies with respect to "fire safety measures". 26 The term "fire safety measures" is not defined in the Codes SEPP, but it is defined in Part 9 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). That part is headed 'Fire Safety and matters concerning the Building Code of Australia'. 27 In that Part of the EPA Regulation the terms 'critical fire safety measure', 'essential fire safety measure', and 'statutory fire safety measures' are also defined. That the Codes SEPP has used the more general term "fire safety measures" suggests an intent to not import any element of statutory mandate into cl 1.16(2)(b) at all, including by the use of the word "required." 28 Secondly, the text of cl 1.16 (2) does not impose such a qualification. 29 Thirdly, there is nothing in cl 1.16(2) or the Codes SEPP generally which compels the incorporation of such a qualification. 30 Fourthly, the legislative purpose of cl 1.16 (2) is the promotion of fire safety. This legislative purpose is better achieved by interpreting the word "required" in a general sense. 31 In the present case, there can be no doubt that fire safety measures are "required" in the ordinary sense of that word. The Joint Expert Report sets out the agreement of the experts on the requisite fire safety measures: see Joint Expert Report at [15], page 3 and table 13 at pages 9-13.
2. In its supplementary written submissions, the Council also says that the additional fire safety measures required by the Fire Safety Order served on the Owner were, in context, a contemporary requirement unable to comply with the terms of cl 1.16(2)(b) of the SEPP. These works were required, in a mandatory sense (because that order's terms describe it as being made pursuant to provisions of the EP&A Act, at least with respect to those works, an expansionary interpretation of the word "required" was not needed to be invoked). This element of the submission was in the following terms at paragraph 32: 32 Further, and in the event that the term does require some statutory mandate to exist, in the present case there are fire safety measures that are required by operation of statute. The Fire Safety Order given by the Council on 12 February 2020 (Annexure B to the Summons) set out fire safety measures and was issued in accordance with s 9.34 and Sch 5, Pt 2, of the Environmental Planning and Assessment Act 1979.

The Company's position

1. On the other hand, the position advanced for the Company was that the word "required" should be approached in a strict sense, being that "required" had to have some form of statutory or regulatory foundation rather than being based on what might be regarded as necessary, in a more expansionary sense. The Company's submission on this point was in the following terms at paragraph 16: 16. As to the second issue [the meaning of the word 'required' in clause 1.16(2) of the SEPP], clause 1.16(2) is directing attention to a building (rather than its use) that is classified as class 1b or class 2-9 of the BCA. In its context, 'required' means required in a statutory sense: that is, required by statute or regulation.

Consideration

1. I am satisfied that it is appropriate to adopt in expansionary understanding of the word "required" in cl 1.16(2)(b). I reach this conclusion for the reasons advanced on behalf of the Council in the paragraphs of its written submissions set out above.
2. In addition, basic public safety issues arise in the context of consideration of what fire safety measures should be present when a building changes use in the fashion contemplated. As the SEPP provides a beneficial pathway for permitting such changes of use without public scrutiny through a consent authority assessment process, I am satisfied that it is in the public interest that a reasonably available and broad interpretation of the provisions relating to fire safety measures should be adopted.

Introduction

1. For the purposes of assessing what arises in the context of compliance or otherwise with cl 1.16(2)(b) of the SEPP, it is sufficient for this aspect to note that the structure of the mezzanine was in place from February 2018 until the recent completion of its demolition.
2. The mere existence of the mezzanine since February 2018 is sufficient to engage the matters discussed in the following consideration. It is unnecessary to assume that the tyre‑stacking on the mezzanine observed by Mr Tatian at the time of his first inspection on 23 July 2020 commenced taking place simultaneously with the change of use in 2018.
3. The reason for this is that the existence of the mezzanine has meant that the overall floor area of the premises has exceeded 2,000 square metres. It is this fact which triggers consideration of elements of the BCA as to whether or not the use of the premises for tyre storage required the installation of a sprinkler system.
4. The importance of the floor area of the premises arises, if the Company's tyre storage activities fell within the definition of "fire hazard" in the BCA and that that fire hazard also falls within the scope of an "excess fire hazard" as set out in Note 4(a) to Table E1.5 of that Code, as installation of a fire sprinkler system within the premises would be mandated.
5. Part E1 of the BCA deals with firefighting equipment. Within this Part, E1.5 deals with sprinkler systems and sets out the circumstances when a sprinkler system is required to be installed in a building or a part of a building. The table in E1.5 is headed "Requirements For Sprinklers". Relevant to consideration in these proceedings, occupancies of "excessive hazard" are required to have sprinkler systems installed in a fire compartment (relevantly for present consideration, the whole of the interior of these premises would be so regarded) where that fire compartment has either a floor area of more than 2,000 square metres or a volume of 12,000 cubic metres. The requirement here applied whilstever the mezzanine level was to be counted as part of the floor area of the premises, as Mr Tatian and Mr Harriman were in agreement that, including the mezzanine, the floor area of the premises would exceed 2,000 square metres until the mezzanine was demolished.
6. First, it is appropriate to set out the BCA's definition of "fire hazard", a definition in the following terms: Fire hazard means the danger in terms of potential harm and degree of exposure arising from the start and spread of fire and smoke and gases that are thereby generated.
7. To understand what would comprise an occupancy of "excessive hazard", the BCA refers a reader to Note 4 to Table E1.5, a note which is in the following terms: 4 For the purposes of this table, occupancies of excessive fire hazard comprise buildings which contain- (a) hazardous processes or storage, including the following: (i) Aircraft hangars. (ii) Cane furnishing manufacture, processing and storage. (iii) Fire-lighter and fireworks manufacturing and warehousing. (iv) Foam plastic and foam plastic goods manufacture, processing and warehousing e.g. furniture factory. (v) Hydrocarbon based sheet product manufacture, processing and warehousing e.g. vinyl floor coverings. (vi) Woodwool and other flammable loose fibrous material manufacture. (b) Combustible goods with an aggregate volume exceeding 1000 m³ and stored to a height greater than 4 m including the following: (i) Aerosol packs with flammable contents. (ii) Carpets and clothing. (iii) Electrical appliances. (iv) Combustible compressed fibreboards (low and high density) and plywoods. (v) Combustible cartons, irrespective of content. (vi) Esparto and other fibrous combustible material. (vii) Furniture including timber, cane and composite, where foamed rubber or plastics are incorporated. (viii) Paper storage (all forms of new or waste) e.g. bales, sheet, horizontal or vertical rolls, waxed coated or processed. (ix) Textiles raw and finished, eg, rolled cloth, clothing and Manchester. (x) Timber storage including sheets, planks, boards, joists and cut sizes. (xi) Vinyl, plastic, foamed plastic, rubber and other combustible sheets, offcuts and random pieces and rolled material storage, eg, carpet, tar paper, linoleum, wood veneer and foam mattresses. (xii) All materials having wrappings or preformed containers of foamed plastics.
8. Before turning to consider the evidence given by Mr Tatian and Mr Harriman as to how the Company's tyre storage activities should be viewed in light of the above BCA provisions, it is appropriate to note that the lists in "(a) Hazardous processes" and "(b) Combustible goods" are inclusive lists and not exhaustive ones.

The Council's expert's position

1. Mr Tatian and Mr Harriman disagreed as to how the Company's tyre storage activities at the premises should be regarded in light of the above requirements.
2. In summary, Mr Tatian expressed the opinion that, properly understood, from the date of commencement of the tyre storage activities, application of the above provisions mandated the installation of a sprinkler system up until such time as the floor area of the premises no longer exceeded 2,000 square metres, whilst the position adopted by Mr Harriman was that the Company's tyre storage activities, properly understood, did not trigger such a requirement.
3. For the purpose of addressing and resolving this disagreement, it will be necessary to set out and then consider relevant portions of their Joint Expert Report and elements of the oral evidence that each of them gave on this topic.
4. Mr Tatian confirmed (Transcript 17 September 2020, page 51, line 16) that he considered that the storage of tyres fell within the matters encompassed by (a) of Note 4 to Table E1.5 of the BCA and not within (b) of that note. In response to a question from Mr Hale, he explained why he considered that this was that position (Transcript 17 September 2020, page 52, lines 10 to 22): WITNESS TATIAN: When we look at the word "hazardous - fire hazard," which is the point that is made under number 4, we actually look at - when you look at the terms "fire hazard means" - this is the definition from the Building Code in the definition section under A1.1 and the page would be from BCA - I'm reading BCA 2016. Page 23: "Fire hazard means the danger in terms of potential harm and degree of exposure arising from the start and spread of fire and smoke and gases that are thereby generated." I believe that based on this defined term that storage of tyres creates very hazardous gases and creates a situation where fire spread or the burning of the actual rubber can last for days if they're not addressed correctly.
5. Mr Tatian was cross‑examined extensively by Mr Hale seeking to have Mr Tatian resile from his opinion that tyre storage fell within Note 4(a) to Table E1.5 of the BCA rather than within Note 4(b) to that table. Mr Tatian was unshaken in his adherence to his opinion on this point.

The Company's expert's position

1. It is necessary to set out, at some length, the oral evidence given by Mr Harriman concerning his views on whether or not the tyre storage activities of the Company fell within Note 4(a) or 4(b) to Table E1.5 of the BCA.
2. First, it is appropriate that I set out three extracts of Mr Harriman's written contribution to the Joint Expert Report on this topic. The first two were brief.
3. Mr Harriman expressed the opinion, in paragraph 124 of the Joint Expert Report, that: In accordance with clause in Table E1.5 of the BCA, a building storing goods of excessive hazard, which would include tyres, is required to have an automatic sprinkler system where the floor area and volume exceeds 2000 m² or volume exceeding 12,000 m³.
4. Mr Harriman also said, in paragraph 133, that: As the additional floor area of the mezzanine causes the building to exceed 2000 m², and therefore the development proposal would require sprinklers, it is my opinion that the provisions of the BCA would be contravened as a result of the development being the storage of tyres.
5. He then continued to say that demolition of the mezzanine, thus reducing the floor area of the premises below 2,000 square metres, would remove the necessity for the installation of a sprinkler system.
6. His lengthier contribution was under the heading "4.6.4 Risk of tyre storage and goods of excessive hazard" at folio 979 in the Joint Expert Report. This element of Mr Harriman's evidence was in the following terms: 155 It is agreed with Tatian that the risk of tyres igniting is low, and also that once ignited extinguishment is difficult, however the BCA does not require any special consideration until the floor area of the building exceeds 2000 m² or the volume exceeds 12,000 m³. 156 To light rubber takes a sustained flame and heat for a long period of time as rubber is a stable chemical compound and significant amounts of energy are required to start decomposing the rubber which includes the release of combustible gases. A simple cigarette or cigarette lighter would not cause the ignition of a tyre. Therefore, the risk of tyre ignition is low when compared to other hazardous material including paper, foams, furniture, plastics, liquid fuels and flammable gases, which are common materials found in most building in varying quantities. 157 Tyres are difficult to extinguish because of their geometry and it is hard to get water to all internal and external surfaces of a tyre at the same time. 158 Table E1.5 of the BCA requires sprinklers in a storage facility only where the floor area exceeds 2000m2 or a volume of 12,000m3. An occupancy of excessive hazard includes: a) Hazardous storage including: a. Aircraft hangers b. Cane furnishing manufacturing and storage c. Foam plastic d. Woodwool and other loose fibrous material manufacture b) Combustible goods with an aggregate volume exceeding 1,000m3 stored to a height exceeding 4m. 159 The storage of tyres would be hazardous storage under (a) above, and not dependant on quantity or storage height. 160 Therefore, it is my opinion that the BCA does adequately address the storage of hazardous materials by requiring sprinklers where a building floor area or volume is exceeded. The BCA does not provide for any other controls or special arrangements for tyre storage or similar hazardous goods.
7. Mr Harriman's initial oral explanation was in the following terms (Transcript 17 September 2020, page 56, lines 8 to 37: WITNESS HARRIMAN: My opinion of 4A is that it's talking about hazardous processes or storage and when you break that down, aircraft hangars are considered excessive or hazardous storage because at normal atmospheric temperature and pressure the jet fuel used in aeroplanes will vaporise, so that means it turns from liquid to gas and the gas is very explosive, so that's a hazardous thing. Cane furnishings: when you manufacture them, there is a lot of dust that comes off the cane. That sawdust is explosive in normal atmosphere and temperature. I think fire lighters and fireworks are self‑explanatory as to why they're explosive. Foam plastic: when you manufacture foam plastic, that's a liquid and it turns to a solid by drying off volatiles. These volatiles are normally in the form of some alcohol. Those volatiles are obviously very combustible. And as we go down the list, the last one there is wood wool. Wood wool is explosive in, in the atmosphere and temperature. We have to be extremely careful with any process that involves turning wood into sawdust because it is explosive. So I read 4A as those type of things that are explosive or can ignite extremely easily during their process of storage, whereas if we look at 4B, down in subclause (xi) or 11, it talks about the storage of rubber and also being rolled material storage, which is, in my mind, more aligned to a tyre than 4A. So storage of tyres, I could put a cigarette lighter to it and it will not catch on fire, but if I put a cigarette lighter to virtually anything in A, I would have a major fire instantly. So that is why I'm of the opinion that 4B is the relevant construction with respect to the storage of tyres. HALE: What do you say about the application of 4B? It doesn't include tyres specifically. WITNESS HARRIMAN: 4B doesn't include tyres specifically, but it addresses combustible goods and yes, tyres are combustible.
8. Mr Goodman cross‑examined Mr Harriman briefly. The crux of his cross‑examination addressed the element of Mr Harriman's contribution to the Joint Expert Report set out above. To understand the context of this questioning, it is appropriate to set out the entirety of Mr Goodman's questioning and Mr Harriman's responses (Transcript 17 September 2020, page 61, line 26 to page 63, line 23): GOODMAN: Mr Harriman, you prepared an expert report on or around 14 August 2020? WITNESS HARRIMAN: Yes, that's correct. GOODMAN: Since then you've put on at least one affidavit, haven't you? WITNESS HARRIMAN: Yes, correct. GOODMAN: In no affidavit that you've put on since then have you made any correction to the joint expert report, have you? WITNESS HARRIMAN: No, I have not. GOODMAN: You gave some evidence earlier today about the construction of note 4, didn't you? WITNESS HARRIMAN: Yes. GOODMAN: You expressed the view that 4B was the preferrable or the more applicable subsection to propose? WITNESS HARRIMAN: Yes. GOODMAN: You sought to do so on the basis that 4A in your view is more applicable to things that could explode? WITNESS HARRIMAN: Or, or ignite very easily. GOODMAN: Yes. You expressed none of those views in the joint expert report, did you? WITNESS HARRIMAN: No. GOODMAN: In fact, in the joint expert report you expressed the view that storage of tyres would be hazardous storage under subparagraph A, didn't you? WITNESS HARRIMAN: Under paragraph A, sorry? GOODMAN: Yes. WITNESS HARRIMAN: ..(Not transcribable)..that. GOODMAN: Yes. If we were to go, please, to page 35 of the joint expert report, which is page 979 of the bundle. WITNESS HARRIMAN: Yeah. GOODMAN: You see at the top of that page, "Risk of tyre storage and goods of an excessive hazard." WITNESS HARRIMAN: Yes. GOODMAN: I direct your attention specifically to paragraph 158 on the third table in 1.5 and you say there, "An occupancy of excessive hazard includes A or B," and that corresponds with the definition in note 4, doesn't it? WITNESS HARRIMAN: Yes. GOODMAN: Then in 159 you say, "The storage of tyres would be hazardous storage under A above and not dependent on quantity or storage height," don't you? WITNESS HARRIMAN: Yes, I do. It's written there. GOODMAN: Thank you. That's all I wish to ask of Mr Harriman, your Honour. HALE: If I could ask Mr Harriman, do you hold that view? GOODMAN: ..(Not transcribable).. WITNESS HARRIMAN: No, I don't. To be honest, I don't remember writing that. I don't know where that one come from. GOODMAN: Is it your evidence, Mr Harriman, that someone else wrote that for..(not transcribable).. WITNESS HARRIMAN: I, I believe in all honesty that there is a word missing, that it should be "the storage of tyres would not be a hazardous storage under A above." GOODMAN: Then how do you - I withdraw that. What I suggest to you, Mr Harriman, is that you made this report on 14 October and it expressed the views you held at that time, didn't it ? WITNESS HARRIMAN: ..(Not transcribable).. GOODMAN: I apologise. You held those views at that time, didn't you? WITNESS HARRIMAN: I didn't hold the view of that statement. I, I do believe there's a typographical error in there. GOODMAN: That's not something that you've mentioned either in your evidence today or in any affidavit you've put on since your joint expert report, is it? WITNESS HARRIMAN: That is correct.
9. Following this questioning by Mr Goodman, Ms Reid asked one question of Mr Harriman (Transcript 17 September 2020, page 63, lines 39 to 43): REID: Mr Harriman, you were asked some the question about your report and you indicated that there had been a typographical error. When was the first time that the typographical error came to your attention? WITNESS HARRIMAN: Just in this instant.
10. I interpose that, after Mr Harriman responded to Mr Hale to explain why he (Mr Harriman) considered that tyre storage fell within Note 4(b) to Table E1.5 of the BCA, Mr Tatian sought the opportunity to make an additional explanatory comment in support of his view that Note 4(a) applied. Mr Tatian said (Transcript 17 September 2020, page 56, line 43 to page 57, line 1): WITNESS TATIAN: Thank you. In relation to part B, it speaks about aerosol cans and other vinyls and the like which burn quite aggressively and can catch alight themselves and are quite explosive, so in saying so, it's, it's very, it's actually unclear as to the fact that, you know, parts of point B could be in point A or vice versa. So when looking at 4A, the fact that tyres can burn for days on end, which would then exceed the requirements of the fire resistance levels of the building, okay, that have been provided, and the types of fumes and gases they produce, which are quite hazardous for people, I believe that it sits in 4A.
11. Mr Goodman's closing submissions on the question of whether Note 4(a) to Table E1.5 of the BCA applied were in the following terms (Transcript 18 September 2020, page 32, lines 12 to 42): GOODMAN: The point is the construction of 4A, as I understand Mr Hale's proposition is that your Honour would construe this subparagraph as if it required that the matter being stored be readily ignitable or explosive. My response to that is as follows, there's nothing on the face of the text which would suggest that that is the case. As your Honour is very familiar with, the starting point of any construction is the text considered in its context and its context here would be any explanatory memoranda or the equivalent and the context would certainly not include the views of a witness as to the operation of a clause. Secondly, the clause is as your Honour indicated yesterday an inclusive, non‑exhaustive clause and your Honour in my submission would construe..(not transcribable)..as a client to any type of hazardous storage. The next point was the submission, as I understood it, that the tyres were not hazardous because they were not readily ignitable. This overlooks the evidence concerning the consequences if a fire were to commence. And relevantly to this is the definition at p 19 of the same volume of fire hazard. At the bottom of p 19, "Fire hazards means the danger in terms of potential harm and debris arising from the start and spread of the fire and the smoke and gases." In other words, the hazard is a consequence of the fire not the risk of a fire being started. I think I took your Honour this morning to the evidence, I spoke about the evidence of the consequences, being the hazardous smoke and gases and the fire of some lengthy duration. The next point is Mr Hale's submission that the cause of any breach of E1.65 was the erection of the mezzanine rather than the storage. The answer to that is it's common ground that the mezzanine was there first, and the storage came later. It could only be the addition of the tyres onto that structure or onto a building which now had more than 2,000 square metres of floor area which caused the breach.

Consideration of the necessity for a sprinkler system

1. I have earlier set out the extract from the transcript of Mr Goodman's cross‑examination of Mr Harriman concerning what Mr Harriman had written in the Joint Expert Report concerning the application of Note 4 to Table E1.5 of the BCA to the Company's tyre storage activities. It is to be observed, specifically for present purposes, that Mr Harriman said (Transcript 17 September 2020, page 63, lines 4 to 6): WITNESS HARRIMAN: I, I believe in all honesty that there is a word missing, that it should be "the storage of tyres would not be a hazardous storage under A above."
2. In light of this "correction" to paragraph 159 of the Joint Expert Report, it is now appropriate to set out the entirety of this paragraph of Mr Harriman's written evidence with that insertion and not merely the first element of it. The relevant paragraph, as Mr Harriman now says it should be read, would be in the following terms: The storage of tyres would not be hazardous storage under (a) above, and not dependent on quantity or storage height.
3. Given that Mr Harriman's paragraph 159, in its completely revised form, is a nonsense, there is no proper basis upon which I can accept his "correction" to it. There are three reasons why this is the case.
4. I have earlier set out Mr Harriman's written evidence where he expressly says that Note 4(a) to Table E1.5 of the BCA was applicable rather than Note 4(b) being applicable. This paragraph, as a matter of contextual completeness, is not amenable to the same form of "correction" as Mr Harriman proposes should be read for paragraph 159.
5. Similarly, I have also earlier reproduced a second paragraph in Mr Harriman's contribution to the Joint Expert Report. This paragraph, as with that discussed immediately above, is similarly not amenable to "correction" in the fashion proposed by Mr Harriman to paragraph 159 of his contribution to the Joint Expert Report.
6. The third, and most compelling, reason for rejecting this "correction" to Mr Harriman's evidence is that he did not seek to suggest that there was any need to alter the second element of that paragraph, the element that says that the nature of storage of tyres would not be dependent on quantity or storage height when all the activities falling within Note 4(b) to Table E1.5 of the BCA are dependent on the volume of material stored and the height at which it is stored. As a consequence, a reading of paragraph 159 in the fashion proposed by Mr Harriman during the course of his cross‑examination by Mr Goodman renders the paragraph internally contradictory.
7. As a consequence, I am satisfied that what Mr Harriman wrote in paragraph 159, prior to his attempt to resile from that in his oral evidence, represented his honest expert opinion on the appropriate application of Note 4 to Table E1.5 of the BCA. Paragraph 159 accurately replicates the two earlier references made by Mr Harriman to how the tyre storage activities of the Company should be regarded for these purposes.
8. As a further consequence, I am satisfied that, by virtue of the fact that the floor area of the building exceeded 2,000 square metres at the time of the change of use to the Company's tyre storage activities, up until at least when demolition of the mezzanine level was commenced, compliance with the BCA mandated that an automatic sprinkler system be installed within the building and it was not.
9. That represents a failure to comply with cl 1.16(2)(b) of the SEPP, meaning that, throughout that period of time, the Company's change of use was not exempt development for the purposes of the SEPP as it satisfied neither limb of cl 1.16(2).

Other mandatory fire safety measures

1. It is the Council's position that the BCA mandated fire rating treatments to the external walls as agreed by Mr Tatian and Mr Harriman. Their Joint Expert Report noted, at paragraph 74, that the demolition of the mezzanine would result in the building containing a floor area of less than 2,000 square metres. As a consequence of this, the experts agreed that, when this had occurred: … the external walls needed to be of type C construction (90/90/90 FRL).
2. They explained that this was relevant because it allowed the use of a lightweight plasterboard solution and a one-way fire rating from the outside only.
3. The rectification of the external walls to have this fire rating level was necessary because it was agreed that the risk of ignition of the tyres did not come from their storage on the site but came from the possibility of fire spreading from surrounding (primarily residential) development to the tyres within the premises. It was also the position that it was agreed that, although the likelihood of ignition of tyres from within the building was extremely low, if the tyres were to catch fire, as a consequence of ignition from an external blaze, extreme temperatures were likely to arise and control of a fire of the tyres within the warehouse would be difficult to contain and extinguish.

Other necessary fire safety measures

1. This position was concisely outlined in the Council's written submissions of 14 September 2020 at paragraph 18. 18 As to the second requirement, the Council relies on the agreement between Mr Tatian and Mr Harriman as set out in Table 2 to their Joint Expert Report as demonstrating that fire safety measures are (necessary and) proposed for the building. This, it is submitted, demonstrates non-satisfaction of the second limb of this provision.
2. For proper contextual consideration, the word "currently" is, I am satisfied, to be regarded as qualifying all three of the words ("implemented", "required" and "proposed") in cl 1.16(2)(b). It is in this context that it is necessary to consider how the concept of fire safety measures "currently … required" is to be understood at the time of the change of use from that of the 1994 development consent to the Company's current use.
3. There are two possible approaches to consideration of this composite expression. The first, that advanced by Mr Hale, is that, for the premises on the site to be regarded as not satisfying this proposition, the fire safety measures would have needed to have been mandated ("required"), in some statutory fashion, at the time that the change of use was effected.
4. At this point, I note that the reply submissions by Mr Goodman and Mr Astill on behalf the Council did not address the timing proposition concerning cl 1.16(2) put by Mr Hale, as noted above.
5. Given, as is clear, the Fire Safety Order did not require works to be undertaken to the premises at the time of the change of use but merely imposed that requirement from the date of the order in February 2020, this Order does not evidence any breach of the requirement in cl 1.16(2)(b) at the time of the change of use.
6. On the other hand, for reasons earlier explained, an alternative interpretation of the word "required" in the provision is available, an interpretation which would have the broader meaning of "necessary" rather than the narrower one advocated by Mr Hale.
7. I am satisfied that the broader interpretation of the word "required" as meaning "necessary" is to be preferred in the context of the structure of 1.16(2)(b). Neither of the words "implemented" or "proposed" is one of application by any form of mandatory imposition. They, in their context, appear to be purely ones of operation (past or future) rather than something imposed by any regulatory regime. In this context, it is appropriate to consider whether or not that which is set out in Table 2 of the Joint Expert Report should be regarded as constituting fire safety measures "necessary" (therefore "required" in this contextual understanding) for the building.
8. The agreement by Mr Tatian and Mr Harriman, that the fire safety measures in Table 2 of the Joint Expert Report are necessary fire safety upgrades for the building and should be carried out, is also to be viewed with the additional acknowledgement by the Owner and the Company that these works should be carried out (albeit within the timeframe suggested by Mr Harriman, there being a continuing dispute as to the appropriateness of that timetable).
9. There is nothing anywhere in the evidence that could cause me to conclude that the matters identified by Mr Tatian and Mr Harriman in Table 2 were not deficiencies in fire safety aspects of the building at the time when the Company's change of use was effected.
10. I am satisfied that the inference to be drawn from matters such as the hanging electrical wires and other electrical deficiencies identified by Mr Tatian at the time of his July 2020 inspection is that the then state of the building was reflective of that at the conclusion of the 1994 development consent use of the building and thus at the time of its change of use.
11. The further inference to be drawn, therefore, is that the fire safety measures in Table 2, to the extent that they might not be mandated by the BCA (for example, part of Item 8 in Table 2), were also necessary (and therefore "required") from the time of the change of use in order to permit that change of use to be carried out in a fire‑safe fashion.
12. As a consequence, this establishes an additional basis to conclude that the change of use from that permitted by the 1994 development consent to that currently being undertaken by the Company was not one satisfying cl 1.16(2) to permit it to be exempt development. The inevitable overall consequence is that a development application was and remains necessary to seek approval for that change of use.

The Fire Safety Order

1. The position advanced in his oral submissions by Mr Hale concerning whether or not there was compliance with cl 1.16(2)(b) was that the fire safety works set out in Table 2 of the Joint Expert Report arose entirely as a consequence of the Fire Safety Order issued by the Council in February 2020 and were not as a result of the change of use from that permitted by the 1994 development consent to that currently being conducted by the Company on the site.
2. His submission was that a distinction was to be drawn between the existing condition of the building, constructed pursuant to a much earlier approval from the Council and consistent with the then required standards for construction, and the recently imposed requirements of the Council as embodied in the Fire Safety Order. He submitted (Transcript 18 September 2020, page 22, lines 13 to 24): HALE: … That there is an existing building and once it is constructed in accordance with the then standards, the BCA standards and which really is pursuant to the various conditions, the building is lawful and there is no obligation for the owner of the building to upgrade in any way the building. But the Fire Safety Order is the means by which an owner of a building which cross--is quite lawful in the measures that it has can be required to upgrade it but that is with respect independent of what is required if reference required unless it was suggested at the time of the change of use at the outset that there was such a Fire Safety Order and that's why I've been seeking to be quite distinct in the two aspects.
3. In this context, it is to be noted that fire safety measures are currently required for the building as a consequence of the lack of fulfilment of the Fire Safety Order of the Council of 12 February 2020. Such a Fire Safety Order is one which mandates the fire safety measures specified in the order to be carried out.
4. It therefore falls within cl 1.16(2)(b) and remains unsatisfied.

The exempt development claim - the conditions of consent contention

Introduction

1. The final basis upon which the Council challenged the assertion by the Company that the change of use of the premises to a tyre storage facility was exempt development was based on the allegation of non-compliance with cl 2.20B(i) of the SEPP. This provision requires that, amongst other things, there be no change caused by the change of use to the hours of operation permitted by any existing development consent.

The Council's position

1. The Council's position is that that there is admissible evidence in these proceedings that the hours of operation of the tyre storage facility operated by the Company at the premises extend beyond and are in breach of the relevant provision of the 1994 development consent.
2. The basis for this was set out at paragraphs 26 to 28 of the Council's written submissions of 12 September 2020. These paragraphs were in the following terms: The most recent development consent is the 1994 Development Consent, Condition 10 of which provided that the hours of operation were 7.00am - 7.00pm - Monday to Friday 7.00am - 7.00pm - Saturday No work Sunday Condition 12 provided that these hours were limited to a period of 12 months and that unless a modification application was made the hours of operation at the expiration of the 12 month period would be: 7.00am - 5.00pm - Monday to Friday 7.00am - 12 noon - Saturday No work Sundays The McLean Affidavit contains no records of a modification application having been lodged or approved in relation to hours of operation. Accordingly, the current approved hours of operation are as per condition 12 of the 1994 Development Consent.
3. That which is set out above is not challenged on behalf of the Company or on behalf of the Owner.
4. Therefore, it is not in dispute that the latest permitted time of operation of the aluminium window manufacturing use was 5.00 pm, Monday to Friday. It is the Council's position that there is evidence admissible in these proceedings that the operation of the tyre storage facility does not conclude until 6.00 pm on weekdays.
5. The consequence of this, the Council submits, is that this constitutes a breach of the requirement in cl 2.20B(i), thus removing the Company's change of use of the premises from being exempt development.
6. I now turn to explain the basis upon which the Council adopts this position.
7. Relevantly, inspections of the site were undertaken by Mr Nestorovski on 14 February 2020.
8. The first of Mr Nestorovski's affidavits, dated 23 July 2020, records a conversation which Mr Nestorovski had with an employee of the Company (named Aaron) on 14 February 2020. Mr Nestorovski's affidavit records, at paragraph 23, the conversation in the following terms: 23 As I was carrying out this inspection, I had a conversation with a man who was inside the building to the following effect: I said: Hello, my name is Michael Nestorovski and I am a Development Compliance Officer for Georges River Council. Is your manager or boss here so I can speak with him or her in relation to the current illegal use of this property? He said: Hi Michael, my name is Aaron and I just work here but can you please speak to Jason who is the boss - he is the best person to speak with. Jason is at the office if you want to go and see him there. I said: Is Jason unable to make it here? He said: I will call him and find out. I said: Okay.
9. On the next occasion when Mr Nestorovski had a conversation with Aaron, that conversation took place on 8 September 2020. This second conversation is set out in Mr Nestorovski's second affidavit at paragraphs 7 and 8. Those paragraphs are in the following terms: 7 I arrived at the Land at around 5:15pm. I walked up the driveway towards the warehouse on the Land but did not enter it. As I walked up the driveway I saw three workers on the Land, including a man I knew as Aaron from previous inspections. The workers were handling tyres from the rea of the premises and moving them towards the front of the premises. 8 I had a conversation with Aaron to the following effect: Me: Hi Aaron, I can see you are all still working. What time do you plan on finishing? Aaron: We should be finished around 6:00pm but maybe a little later. Me: Okay, so what time do you guys usually start and finished work? Aaron: Most days we start at about 8:00am and finish around 6:00pm but it depends because if we have a late delivery we will work later. Me: Okay, do you guys work weekends? Aaron: On Saturdays were work maybe till around lunch time but it's always different you know, but we don't work on Sundays. Me: Okay, no worries Aaron. Thanks for letting me know. Aaron: Do I need let the owner know about anything? Me: That's alright, if the owner needs to be notified of anything Council will be in touch. Have a good night.
10. The Council's position is that both these conversations are admissible evidence and that the second of them constitutes evidence proving that the Company's tyre storage operation, being conducted until 6.00 pm on weekdays, constitutes an extension of the hours of operation permitted by the 1994 development consent and thus breaches cl 2.20B(i) of the SEPP.
11. On this basis, the Council submits that the Company's change of use at the site to operating as a tyre storage facility is not exempt development. Thus, on this further basis, the Council submits that a development application is required to be submitted and approved in order to render the Company's activities lawful.
12. In its supplementary submissions, the Council also addressed the proposition inherently implicit in the Company's submissions, that any current breach of the hours of operation approved in the 1994 development consent were unable to be enforced using that consent as a vehicle for compliance enforcement. This was dealt with at paragraphs 16 and 17 of the supplementary submissions in the following terms: 16 Ordinarily conditions of development consent are enforceable against any person who relies on the consent in which they are contained. However in the case of exempt development the consent is not being relied upon; rather it is the Codes SEPP that authorises the use. In this case any breach of the hours of operation in the 1994 Consent would not be a failure to carry out development in accordance with the 1994 Consent in breach of s 4.2(1)(b) of the EPA Act, as the proponent is not carrying out development to which s 4.2 relates. 17 The conditions only have legal force to the extent that the Codes SEPP, specifically cl 2.20B(i), gives them legal force. The way it does this is to exclude from the description of exempt development, via cl 2.20B(i), any use that does not conform to existing conditions of "the most recent development consent."
13. I am satisfied that these supplementary submissions are correct for the reasons outlined in them and do not require to be addressed further.

The Company's position

1. The initial position advanced by the Company was contained in its written submissions at paragraph 24. This submission was in the following terms: 24. Clause 20.20B(d)(i) provides that the new use must not cause the contravention of any existing condition that applies to the premises, including, inter alia one relating to hours. The ASA alleges that there may be occasions on which there has been a breach of the 1994 conditions of consent concerning hours. Even if that were the case, any such contravention of the condition is not caused by the new use, any more than such a contravention while manufacturing aluminium windows was caused by the 1994 grant of development consent. Any such contravention is caused by a decision to work late. The 1994 conditions of consent continue to apply to the use of the premises and are to be complied with.
2. However, during the course of the hearing, Mr Hale challenged the admissibility of the evidence of Mr Nestorovski, set out at [252] and [253], advanced by the Council in support of this challenge to the change of use being exempt development.
3. In essence, Mr Hale submitted that, to the extent that the elements of Mr Nestorovski's affidavits were said to constitute admissions that the Company's activities were routinely carried out after 5.00 pm and thus in breach of the conditions of consent applying to the aluminium window manufacturing business by virtue of the 1994 development consent, the exception to the hearsay rule in s 87 of the Evidence Act did not apply. The basis of this objection was that anything that had been said by Aaron, an employee of the Company, was something that was said by him without authority and thus could not be used to invoke s 87 of the Evidence Act to permit its admissibility.
4. This objection was first raised by Mr Hale on 17 September 2020. After an exchange by me with him (with short responses from Mr Astill), I ruled that the evidence was admissible. The exchange is recorded in the transcript of 17 September 2020 at page 8, line 52 to page 11, line 46 where, at lines 43 to 46, I made the following ruling: HIS HONOUR: … I am satisfied that the statement that is on folio 596 falls within the scope of 87(1)(b) to the extent that the person named Eren was an employee of the party and was making a representation relating to a matter within the scope of his employment. I permit the evidence.
5. On the second day of the hearing, Mr Hale returned to this basis of objection to the evidence in Mr Nestorovski's affidavits, set out at [252] and [253] above.
6. In commencing this aspect of his submissions, Mr Hale said (Transcript 18 September 2020, page 13, lines 1 to 4): HALE: … With respect, we would ask your Honour to reconsider your ruling with regard to the admissibility because, with respect, it seems to be contrary to established authority and even recent authority of the High Court in April this year.
7. Counsel for the Council raised no objection to this course and I permitted Mr Hale to continue to explain to me, in more detail than he had the day before, the basis of his objection.
8. Mr Hale then set out what he understood to be the basis of my ruling on the previous day. He did so from informal notes taken by the legal representatives of the Company (as the previous day's transcript was not then available). Mr Hale said (Transcript 18 September 2020, page 13, lines 14 to 19): HALE: … I think what your Honour said according to our informal notes, your Honour said it was disjunctive not cumulative and I understood what your Honour was suggesting is it's sufficient if the person is an employee and therefore one doesn't have to go to whether the representation related to a matter within the scope of the person's employment.
9. This summary of what had been the basis of my interpretation of s 87 of the Evidence Act the previous day as warranting the ruling I had made is, I accept, an unexceptional but accurate short summary of the basis for my ruling.
10. Mr Hale then took me to three decisions which he said were contrary to the position which I had adopted. The first one of them was a decision given by the High Court in Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16 (Helicopter Resources).
11. Mr Hale took me to the first paragraph of the judgment of the plurality, a paragraph which made it clear that that case was dealing with s 87(1)(b) of the Evidence Act (1995) (ACT) (the Evidence Act (ACT)), a provision in the same terms as that which I had addressed in the equivalent New South Wales legislation.
12. Mr Hale then took me to [18] of the plurality's judgment, a paragraph in the following terms: Section 87(1)(b) of the Evidence Act departs from the common law primarily by extending the range of employees and agents whose representations may be treated as admissions against their employers or principals: from those having authority to make representations on the latter's behalf[17] to those not so authorised but whose representations relate to a matter within the scope of their employment or authority[18]. Thus, it may be accepted that, where an employee is compelled to give evidence about such matters, the employee is thereby compelled to give evidence that may be taken to be an admission by his or her employer. The provision does not, however, involve any "singular change" to the accusatorial system of criminal justice. To the contrary, the common law's "strict insistence upon the distinction between the agent's authority to act and his authority to speak concerning his action" was pilloried by Wigmore as making "a laughing-stock out of court methods"[19], and, for similar reasons, Sir Rupert Cross considered[20] it preferable to abandon the common law rule in favour of r 63(9) of the American Uniform Rules of Evidence as promulgated in 1953[21]. Hence, as the Australian Law Reform Commission explained[22] in the recommendation that spawned s 87(1)(b), the change which it effected was to improve the fairness of the adversary process: "The primary argument for permitting an 'admission' by a third party to be proved against a party is based on the adversary nature of the trial system. It is fair to allow a party to be held responsible for an assertion made by a third party if that third party is an agent of the party acting under his authority. Thus, an admission made by a managing director should be admissible against the company, even if arguably unreliable, because he either had actual authority to make the admission or was put in a position where a reasonable observer would assume he had such authority. ... [I]t would seem that the best approach is to impose a requirement of authority to speak or a requirement that the statement relate to an area of personal responsibility." (emphasis added)
13. In response to Mr Hale taking me to this paragraph, I put the following proposition to him (Transcript 18 September 2020, page 14, lines 16 to 25): HIS HONOUR: If Aaron had made some statement recorded by Mr Nestorovski that related to, let's say, electricity consumption at the office that is at other premises and the company's preference not to source environmentally responsible energy, that could hardly be an admission made during the course of Aaron's employment. I would accept that as a proposition. But in circumstances where the admission that Aaron has been said to have made and which is relied upon by the council against your client, is Aaron making an admission as to what his hours of work are. Is that not a matter within the scope of his employment classically?
14. Mr Hale did not accept this proposition.
15. After taking me through the nature of the disputed evidence and advancing the proposition that portion of the conversation where Aaron said, "I just work here, but can you please speak to Jason who is the boss," demonstrated that Aaron did not have authority for the purposes of s 87 of the Evidence Act. In this context, the following exchange took place (Transcript 18 September 2020, page 14, line 27 to page 15, line 25): HALE: No. No. The first thing you would have to do is identify what the scope of his employment is and I'll give you some examples but going back to the Law Reform Commission: "It would seem…of personal responsibility." What we have here going firstly to the first affidavit behind tab 11 exhibit D p 158 at about 21 is when Mr Nestorovski arrived and at para 23 he had a conversation with Aaron who disavowed any authority. He's asked the question at para 23: "Is your manager or boss here so I can speak to him?" "My name is Aaron. I just work here but can you please speak to Jason who is the boss," ie "I have no authority to speak. Jason is - he is the best person to speak with." Jason is in the office and he went to see Jason. The point is somebody who is working as a manual labourer may have some limited scope in particular circumstances to say something but here what can be said about Aaron having in the scope of his authority the ability to be able to make admissions on behalf of his employer about whether or not the office or at least the premises is operating contrary to the development consent? As the Law Reform Commission summarises again at para 18 of Helicopter in relation to the particular managing director, he was put in a position where a reasonable observer would assume he had such authority. How could he be put simply by working in the factory in a position where it was assumed that he had authority to make admissions?
16. I then asked him: HIS HONOUR: It would depend a little, would it not, on the nature of the admission upon which reliance is sought to be put? So if the question that was put to Aaron was, "Are you operating in breach of the 1993 development consent?" then, it would seem to me, subject to anything Mr Goodman might want to chance his arm on advancing to the contrary, Aaron could not conceivably have any authority to make such an admission. But here in effect the admission is, what hours are you working?
17. Mr Hale's response was: HALE: But that comes down to the point he is not somebody by his authority, particularly referring to the difficulties of language, he is not somebody, who is a factory worker or a warehouse worker, it is not suggested it was his function to deal with the public in any way. He's just working there and then Mr Nestorovski appears, has a conversation with him on the first time, he disavows he has any authority: "My boss is there." But if you say it is necessary to identify the scope of his employment and whether or not it could be said that the scope of his employment was to make admissions to third parties about the hours of operation - and I'll come to another case in a moment - let us remember what happened in the affidavit of 11 September last week which was on 8 September, a week before the case, where clearly enough the correspondence and interaction between the council, the plaintiff and my client was through lawyers and he arrived in those circumstances because what is relevant is to look at the time, could it be said in the week before the hearing of this case Aaron had authority to make admissions about hours to a council officer in the context of the proceedings that were about to commence and in respect of which all interaction was through lawyers? The answer is no.

The Council's submissions in reply

1. The Council's submissions in reply on this proposition were comparatively brief. They responded not only to Mr Hale's oral submissions discussed above, but also to those contained in paragraph 24 earlier set out at. In light of their brevity, it is convenient to set out these reply submissions in full (Transcript 18 September 2020, page 33, line 45 to page 34, line 23): ASTILL: … My friend's address to you today, kept leading the scope of a person's employment with the scope of a person's authority which in our submission is not correct. Section 87(1)(b) addresses two different situations, disjunctively all the way through and what has to be within the scope of the person's employment is not authority to make admissions, rather the subject matter of the representation and the subject matter of the representation by Mr Aaron was the hours of operation. Whatever the scope of his employment, he along with every other worker in the world perhaps knows what time knockoff is. It is clearly within the scope of his employment that he knows the subject matter of the representation being when he stops work. That's the simply answer to those submissions, the bases that he took your Honour to are about the scope of an authority, really they weren't about employment at all. The final point on para I is my friend said, "Well, the contravention of the hours of operation could be enforced against his client just as it could have been enforced against the operator of the previous manufacturing use." With respect, that is incorrect. Where a person relies on a development consent for their use, of course the conditions the consent are enforceable against them. Thus, for the previous user, relying on the development consent for its use, the conditions are enforceable. However, Mr Hale's point does not rely on the consent for its use, it relies on being lawful under the exempt and complying development set. And in that context, para I is not a requirement on the operation, it is a prerequisite to being an exempt development. So it's not enforceable, it's just that - well, sorry, it's rather it is if you do not conform to I, you are not exempt. It's not a matter of enforceability, it's a matter of being wholly outside the set. His client is not at all in the same position as the previous operator relying on the consent.

The Company's supplementary submission

1. Mr Hale did not address, in his primary submissions, written or oral, matters of merit relating to the conversation between Mr Nestorovski and Aaron. However, in the supplementary submissions in response to issues I raised, Mr Hale did address this issue. He did in two fashions. First, in time (but not in sequence of his written submissions), the submission was made that no inference could be drawn concerning what might have been the hours of operation as at 1 February 2018 (at paragraph 14): … no inference can be drawn about the hours of operation at the time the change of use commenced. There is no evidence of how long Aaron had been working at the Premises. Nor can it be known to what extent Aaron's answers related to a particularly busy period.
2. With respect to the position that applies at the present time (on the inference that I reject Mr Hale's submissions concerning s 87(1) of the Evidence Act), the supplementary written submissions said, at paragraphs 9 and 10: 9. The statutory provisions clearly do not contemplate that development consent would be required for a use which now complies with clause 1.15(1) of the SEPP. 10. For example, while ever the new use does not meet the standard in clause 2.20B(i) because it contravenes an existing condition relating to hours of operation, the changed use requires development consent. If subsequently the hours of operation are changed to conform to the condition, the changed use no longer requires development consent. The SEPP does not contemplate that in those circumstances' development consent would be required for a use which meets all the criteria of clause 1.15. What purpose would be served?
3. I address the rhetorical question posed at the end of this submission in my consideration of this aspect of the Council's case.

Consideration

1. I have earlier set out the relevant provision's elements of the Evidence Act requiring consideration before it can be ascertained whether or not what was said by the Company's employee, Aaron, to Mr Nestorovski can be regarded as an admission in these proceedings. If it is to be regarded as an admission, the question which then arises is whether or not that admission is to be taken as demonstrating that the Company's change of use required development consent from the Council or was to be regarded as exempt development.
2. As can be seen from the terms of s 87(1)(b) earlier set out, there are two potential gates available to permit Aaron's comment concerning the Company's hours of operation on the site to be determined to be an admission.
3. The first possible basis upon which Aaron's nomination of 6.00 pm as being the time when the Company's operations ceased on weekdays can be so categorised an admission is if Aaron can be regarded as having authority to make such an admission. For the reasons outlined by Mr Hale, there is no basis upon which such a conclusion could be drawn.
4. However, the second potential basis upon which Aaron's comment could be regarded as an admission is if he made it because, as an employee of the Company, what he revealed was within the scope of his employment. To consider whether or not this gate is open, it is necessary to contemplate whether or not Aaron's' remarks concerning his hours of work would be categorised as falling within such a description.
5. I am satisfied that it is to be regarded as doing so.
6. It is readily to be accepted that Aaron's role in the tyre storage facility is unlikely to be a sophisticated one; although there is no evidence, the ready inference is that Aaron is likely to be involved in the sorting and stacking of tyres at the time of their receipt at the premises or finding and retrieving tyres when they are required to be removed from the premises as part of the Company's sales activities.
7. The sorts of matters that fall within the scope of Aaron's employment, for the purposes of the second gate in s 87(1)(b) of the Evidence Act, would encompass things such as what equipment was utilised by him in the course of his duties; how were instructions conveyed to him setting the scope of his activities on any working day; what breaks was he to take for meal or other purposes during the course of his working day; and the span of his working day itself (here, relevantly, the time at which his ordinary working hours regularly ceased).
8. Seen in this broad context, there is no doubt in my mind that Aaron's informing Mr Nestorovski that the concluding time of his ordinary day's work was 6.00 pm on weekdays was potentially capable of being an admission (as defined) because it demonstrated that, at the time the conversation was held, the ordinary hours of operation of the Company's business on the site were contrary to the permitted hours of operation contained in the conditions of development consent attaching to the approval of the aluminium window manufacturing operation in 1994.
9. In this regard, the submissions made by Mr Astill on behalf of the Council concerning the potential for what Aaron said to Mr Nestorovski as demonstrating that the second gate in s 87(1)(b) of the Evidence Act are to be accepted.
10. The High Court's decision in Helicopter Resources was one dealing with proceedings before a coroner where the potential of evidence to be given to that inquiry might subsequently be sought to be relied upon as an admission pursuant to s 87 of the Evidence Act (ACT) against the employer in subsequent criminal proceedings.
11. At [18], the plurality cited, with approval, a passage from the 1985 report of the Australian Law Reform Commission entitled Evidence (at Vol 1, pages 422 to 423). In this context, the Commission had described the proposed limitation on admissions, in circumstances such as these, as being one requiring the imposition of a requirement of authority to speak or a requirement that the statement relate to an area of personal responsibility.
12. There is, in the present proceedings, no suggestion of actual authority in the sort of managerial position instance by the Commission in the passage cited. However, the question of observation of hours of work (as is here the matter of consideration in the conversation between Mr Nestorovski and Aaron) is clearly a matter relating to Aaron's personal responsibility.
13. Helicopter Resources provides no comfort to the Company in its resistance to Aaron's statement constituting an adducible admission in reliance on s 87 of the Evidence Act.
14. Mr Hale and I had an exchange (Transcript 18 September 2020, page 14, line 16 to page 15, line 29) concerning how it might be construed that Aaron's responsibility extended, within the scope of his employment, to making some admission as to his hours of work in the fashion dealt with in Helicopter Resources.
15. In response, Mr Hale relied upon the decision of Brereton J in Refina Pty Ltd v Binnie [2009] NSWSC 311 (Refina) in the Supreme Court of New South Wales.
16. In Refina, what was sought to be adduced as an admission was a statement by a farm manager concerning the actions and motives of his employer for those actions. The conversation relied upon did not relate to anything which arose out of the matters within the managerial remit of the employee involved. The case clearly involved the question of the extent of the authority to make the alleged admission and did not relate to any matter arising out of the terms of the employment of the person who had allegedly made the admission.
17. As a consequence, this case related to elements of s 87 of the Evidence Act that are not relied upon by the Council for the purposes of having Aaron's statement as to his hours of work being held to be an admission contrary to the interests of his employer. Refina has no relevance to what I am required to consider in these proceedings.
18. The path to the ability to rely on the admission made by Aaron as to his hours of employment being in breach of those permitted by the 1994 development consent are twofold.
19. The first arises from s 87(1)(b) constituting an admission that was made by Aaron "within the scope" of his employment.
20. Second, on a separate basis, Aaron's comments to Mr Nestorovski as to the finishing time of his ordinary daily work hours constitutes a representation that fits within the terms of s 87(2)(c), as it tends to show the scope of his employment. Although the Council relied on the first of these bases to demonstrate that this was an admission against interest, the second basis is equally valid and provides a complete response to Mr Hale's submissions that it should not be so regarded.
21. This position is critical to understanding the nature of the distinction between the potential avenues for statements to be adduced as admissions derived from s 87 of the Evidence Act.
22. In all of this discussion, Mr Hale focused on s 87(1)(b) because, he submitted, that consideration needed to be made of the extent to which the representation made by Aaron was one which "related to a matter within the scope" of Aaron's employment.
23. However, s 87(2)(c) also expressly excludes the application of the hearsay rule to a previous representation made by a person that "tends to prove the scope" of Aaron's employment authority.
24. In this context, I am satisfied that the scope of Aaron's employment must, logically, include the hours for which he was employed and, crucially, the time of cessation of his daily employment activities.
25. The necessary consequence of this conclusion is that the Council has established breach of cl 2.20B(i) of the SEPP as a basis for concluding that the change of use is currently not exempt development.

Introduction

1. These counts are an expansion of those earlier made on this topic.
2. It is also to be observed that Mr Tatian and Mr Harriman are in agreement as to the necessity to undertake fire protective works to the building. The question then arises as to whether such fire protective works are required, this being a matter engaged by cl 1.16(2)(b) of the SEPP, in that development is not able to be exempt development if "fire safety measures are currently required".
3. It is to be noted that the Fire Safety Order was issued by the Council to the Owner in February 2020. That Fire Safety Order required fire safety measures to be implemented for the building. Whilst that which was required by the Fire Safety Order is not in entirely corresponding terms to that which is the scope of the agreed works set out by Mr Tatian and Mr Harriman in Table 2 to the Joint Expert Report, nonetheless, the Fire Safety Order did (and still does) require the works specified in it to be undertaken.
4. In this context, although Mr Harriman expressed the opinion that the change of use was exempt development, it is appropriate to note his comments at paragraphs 95 and 96 of the Joint Expert Report (at folio 971) where he wrote: 95 Therefore, in my opinion, the trigger to upgrade the building is the fire order the subject of this report. 96 In the alternative, if it is found not to be exempt development, and the building did require upgrading prior to occupation for the new use, which is not my opinion, I opine that the fire order should provide a reasonable timeframe to carry out the works and that the use and occupation of the building can continue while these works are undertaken.
5. This passage self-evidently demonstrates that Mr Harriman does not question the fact that fire safety works are required, in a statutorily imposed sense, for the purposes of analysis of the relevant provision in the SEPP.
6. The position advanced in his oral submissions by Mr Hale concerning whether or not there was compliance with cl 1.16(2)(b) was that the fire safety works set out in Table 2 of the Joint Expert Report arose entirely as a consequence of the Fire Safety Order issued by the Council of February 2020 and were not as a result of the change of use from that permitted by the 1994 development consent to that currently being conducted by the Company on the site.
7. His submission was that a distinction was to be drawn between the existing condition of the building constructed pursuant to a much earlier approval from the Council and consistent with the then required standards for construction and the recently imposed requirements of the Council as embodied in the Fire Safety Order. He submitted (Transcript 18 September 2020, page 22, lines 13 to 24): HALE: … That there is an existing building and once it is constructed in accordance with the then standards, the BCA standards and which really is pursuant to the various conditions, the building is lawful and there is no obligation for the owner of the building to upgrade in any way the building. But the Fire Safety Order is the means by which an owner of a building which cross--is quite lawful in the measures that it has can be required to upgrade it but that is with respect independent of what is required if reference required unless it was suggested at the time of the change of use at the outset that there was such a Fire Safety Order and that's why I've been seeking to be quite distinct in the two aspects.
8. As noted earlier, fire safety measures are currently required for the building as a consequence of the lack of fulfilment of the Fire Safety Order of the Council of 12 February 2020. Such a Fire Safety Order is one which mandates the fire safety measures specified in the order to be carried out.
9. As a consequence, the existence of the unsatisfied Fire Safety Order means that, at the present time, the premises do not satisfy the terms of cl 1.16(2)(b) of the SEPP and, therefore, the Company's use of the premises as a "Warehouse or distribution centre" is not exempt development and use of the premises for this purpose requires the granting of development consent for it to continue.
10. The overlapping of the period from the commencement of the Company's tyre storage use to the demolition of the mezzanine with the period since February 2020 when the Fire Safety Order was issued by the Council (a Fire Safety Order which remains unsatisfied) means that the Company's change of use can never have satisfied cl 1.16(2)(b) of the SEPP. Indeed, whilst the Fire Safety Order continues to remain operative (there having been no appeal lodged against it), the Company's use can never satisfy the provision of the SEPP. These conclusions are entirely independent of any more expansionary interpretation of the word "necessary" in this provision of the SEPP.
11. However, to permit a complete resolution of issues in the proceedings, I need to address further the continued existence of this Fire Safety Order and resolve the conflicts between it and the agreed works remaining relevant from Table 2 to the Joint Expert Report.
12. Although the Fire Safety Order currently operates in a fashion to preclude the Company's tyre storage activities from being exempt development, the fire safety regime of remedial works derived from Table 2 of the Joint Expert Report and the interim fire safety‑related operating regime I have determined to be appropriate will, by virtue of their imposition as orders of the Court, constitute fire safety requirements for the purposes of the clause. In these circumstances, these fire safety requirements arising from the orders coming from these proceedings render the Fire Safety Order of 12 February 2020 otiose. As a consequence, it is appropriate that I require that the Council discharge this order.

General

1. Broad guidance concerning how discretion is to be exercised in Class 4 proceedings was set out by Kirby P in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 to 341. It is not necessary to repeat them for the purposes of these proceedings, it is sufficient to note that guideline (4) set out by his Honour stresses the role of public authorities, as is here being played by the Council, in the upholding of the integrity of the statutory planning system.
2. In the present instance, the Council does not advance the position, as I understood its case, that the site is incapable of being permitted to be operated as a tyre storage facility by the Company. The Council's position is consistent with the evidence of Mr Tatian on fire safety matters and the Council's position on the necessity for consent from the Council for the use to be permitted.
3. I have earlier set out the reasons why am satisfied that a development application would be required to be made to the Council to regularise the Company's use. I have also set out the advice that Mr Hale was instructed to give me concerning the timeframe for the lodgement of such a development application (together with my pessimistic assessment of the adequacy of that) and the advice from Mr Goodman as to how long it could reasonably be expected to take for such an application to be assessed and determined by the Council.

The NSW Fire and Rescue Guideline

1. Annexure B to Mr Tatian's affidavit of 23 July 2020 was a document published by NSW Fire and Rescue. The document was at folios 24 to 38 of the affidavit. It is to be inferred from the cover sheet that this document is part of a series of Fire Safety Guidelines published by the organisation. The document is entitled "Guideline for bulk storage of rubber tyres" (the Guideline). The Guideline is described as being Version 03 and is dated 5 December 2014. It is described as having been prepared by the Fire Safety Branch of the Community Safety Directorate of NSW Fire and Rescue.
2. The Guideline contains, relevantly, recommendations about the configuration for groups of individual stacks of tyres and the appropriate dimension of aisles that should be left between such groups of tyre stacks. The terms of these elements of the Guideline and the evidence given by Mr Tatian and Mr Harriman as to what would be the appropriate position to be adopted if, as a matter of discretion, the Company should be permitted to continue some form of tyre storage on the site. This could only be as an interim regime pending lodgement and determination of a development application for approval of the change of use to permit ongoing storage of tyres on the site.

Mr Tatian's position on compliance with the Guideline

1. As might be expected, Mr Tatian proposed that the requirements of the Guideline should be adopted as relevant.

Mr Harriman's position on compliance with the Guideline

1. I have later set out my conclusion as to the appropriateness of giving significant (if not determinative) weight to the Guideline. However, Mr Harriman, in both his written and oral evidence, addressed the potential consequences for the viability of the Company's commercial operations if such adherence was mandated.
2. First, in his written evidence at 4.6.3 Assessment of the Guideline in the Joint Expert Report, Mr Harriman said (at paragraphs 152 to 154): 152 The guideline states that the storage of tyres in a non-sprinkler protected building is limited to 30 m² area by 3.7m height and gaps of 3m between stacks. 153 In the subject building there is a potential storage height of 5.5m. Assuming one stack is 30m² (5.5 m x 5 .5m) with a 1.5m curtilage around all four sides, this result is a storage volume of 110m³ (5.5 x 5.5 x 3 .7m high) giving an available volume of 400m³ (8.5 x 8 .5 x 5.5m height), which represents 27% of the available volume. 154 The Guideline is therefore very restrictive and results in an underutilisation of storage space, which will impact on the financial viability of storage of tyres.
3. During the course of his oral evidence, Mr Harriman responded to Mr Tatian's comments regarding the necessary setbacks from the walls of the building in the following terms (Transcript 17 September 2020, page 66, line 41 to page 67, line 4): The second issue was Mr Tatian suggested that he needs 4 and a half to 5 or 6 metres setback from the external wall to stop the..(not transcribable)..from next door. I don't agree with that because on at least two sides we have residential property and they are set back well from the boundary. The other thing I did mention in my report at clause 153, the joint report at 153, that if we complied with the guideline of the Fire Brigade we would only be able to use 20%, 27% ..(not transcribable)..of the volume. Now, that was based on calculations with tyres being stored up to the internal wall. If I was to remove tyres to a distance of 6 metres all the way around and still comply with the 3 metres between the groups of tyres, that 27% would probably half, so we'd be looking at 13 to 15% usable capacity of the building, and I, I can't comment on the owners but I would not see how that could be financially viable.

Introduction

1. For the reasons I have earlier explained, there are two separate and distinct bases necessitating the conclusion that the change of use at the site from that permitted by the 1994 development consent to the present use as a tyre storage facility was not exempt development.
2. This position therefore requires consideration of whether or not to permit the present use to continue in some fashion in order to enable a development application to be made to the Council to regularise this use.
3. If so, it is also necessary, in light of the evidence given by Mr Tatian and Mr Harriman, to consider what court‑imposed conditions should apply to any interim regime pending consideration by the Council of such an application (if made).

The weight to be given to the NSW Fire and Rescue Guideline

1. It is therefore necessary to consider, in this context, the appropriate weight to be given to the Guideline for the purposes of that assessment.
2. The issue of potential operation of Table E1.5 of the BCA is not now relevant for the purposes of an interim regime as a consequence of the demolition of the southern mezzanine reducing the floor area below the triggering threshold for this provision. For present purposes, as that issue has disappeared, it is not necessary to resolve that point in any fashion.
3. In the Joint Expert Report, at paragraph 161, Mr Harriman disagreed with the proposition advanced by Mr Tatian concerning the Guideline. Mr Harriman expressed the view that, when a building is covered by, and can readily comply with, the requirements of the BCA, it is unnecessary to also mandate satisfaction of the Guideline.
4. The Guideline now potentially arises as relevant as I am now considering, as a matter of discretion, what regime (if any) might be appropriate to impose to permit continued operation of the tyre storage facility pending submission to, and determination by, the Council of a development application seeking an ongoing approval for the change of use to that being conducted by the Company. Such a process involves my preliminary consideration of what might be appropriate planning issues for such an interim regime.
5. It is in this context that I consider it appropriate, as a matter of public interest, to consider the Guideline. In doing so, it is clear that documents informing me (and, in future, the Council) on public interest matters are not confined to those appearing in published environmental planning instruments and that a consent authority may range widely in search for material as to the public interest (Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289, at [81] per Mason P).
6. In this context, I am satisfied that the Guideline is appropriate to be taken into account in my discretionary assessment.
7. Indeed, given the nature of the organisation which has developed and promulgated the Guideline, I am satisfied that they are to be given very significant (near determinative) weight in my consideration as to what interim regime might be appropriate to be imposed on the Company pending determination by the Council of a development application for a change of use to permit the Company's ongoing tyre storage operation of the site.
8. It is appropriate, in response to Mr Harriman's general evidence concerning compliance with the Guideline, that I indicate that I am not addressing matters of commercial viability of the Company's operations in what I need to determine in these proceedings. These proceedings are ones arising from the Company's tyre storage activities being conducted in close proximity to residential premises, where the Council complains of (and has established the existence of) inadequate fire safety measures in the premises and, given the uncontradicted evidence of what would occur if the stored tyres were to ignite, the necessity for me to impose an interim fire safety regime pending whatever determination might arise from a development application to regularise that use, should the Company elect to pursue that course.
9. My orders will provide that, obviously, they will be superseded by any conditions of development consent that will be imposed should the Company elect to seek, and be granted, development consent for its continued use of the premises.
10. If the interim regime that I have mandated as necessary until finalisation of any development application process (should one be embarked upon) result in the Company needing to consider whether or not it is prepared to continue its activities on the site under the mandated interim basis I have established, that is entirely a matter for the Company.
11. If the Company chooses not to do so, the commercial consequences of such a decision are ones to be resolved not in proceedings such as these, but between the Company and the Owner through such bilateral processes as are available to them.
12. In this regard, it is important to note the evidence of Mr Tatian that the risk of a catastrophic conflagration occurring arose primarily as a consequence of the potential for external sources of ignition causing combustion of the stored tyres rather than from a fire originating within the premises.
13. This risk, which will continue until necessary works to the external walls of the premises are undertaken to address it appropriately, will be an ongoing one, one requiring addressing and resolution, as I understood the evidence, through the development application process.
14. The more immediate internal risks identified by Mr Tatian at the time of his initial inspection, arising from the dilapidated state of the electrical wiring and the risks arising from the existence of the unapproved mezzanine, have now been resolved.
15. In addition, the range of fire risk protective matters identified by Mr Tatian and Mr Harriman in Table 2 of the Joint Expert Report will require to be implemented. There is, as was noted in that report, a dispute between them as to whether or not use of the premises should be permitted to continue pending implementation of those measures and, as a subsidiary aspect of that, how much time should be permitted for implementation if the use was to continue on an interim basis.
16. During the course of the concurrent evidence given by Mr Tatian and Mr Harriman, I asked them (Transcript 17 September 2020, page 68, lines 14 to 16): HIS HONOUR: …. Then what measures, if any, do you say would be appropriate to be ordered if I was to exercise discretion to permit the present use to continue in some fashion pending fire safety upgrades to the building?
17. During the course of the hearing, I asked the experts about what conditions concerning the height of stacked tyres might be appropriate if I was to permit the continuation of the use on an interim basis.
18. The witnesses were in agreement on the maximum height of any tyre pile which could be permitted during any interim regime. They differed, however, on three critical elements. The first of these was the configuration of the number and arrangement of tyre stacks which should be permitted to be clustered together in a grouping.
19. The Guideline shows, on page 9, the configuration for stacked tyres recommended as appropriate by NSW Fire and Rescue. That configuration is for the stacks to be in groups of 16 arranged so that they are in a 4 x 4 pattern. It was Mr Tatian's evidence that he considered that any interim arrangement should mandate adoption of such a stacking configuration.
20. On the other hand, Mr Harriman did not accept that such a configuration was necessary and that, in the circumstances here being considered, a configuration of 3 x 8 stacks would be appropriate. He said (Transcript 17 September 2020, page 67, lines 38 to 42): Yes, I do, your Honour. I, I, I refer to my affidavit that was served yesterday and it is a bit hard to see in the picture but basically they've stored the tyres in a width of 3 not 4 but a length much longer than 3, so they basically have aisles of tyres in bays of three but probably 1, 3, 4, maybe 7 or eight in length, so 3 x 8 rather than 4 x 4.
21. Mr Harriman proposed that the present stack groupings should be considered acceptable.
22. It can be seen from the earlier photograph reproduced at Annexure D (from Mr Harriman's affidavit of 16 September 2020) that, at least the group of stacks of tyres toward the rear wall shown in the photograph, appeared to be configured in the fashion for which Mr Harriman contends.
23. The second disagreement was as to the appropriate interim separation of tyre stack groups from external walls.
24. It was Mr Tatian's evidence that the primary risk of ignition of the stored tyres did not now come from within the tyre storage area itself but came as a consequence of the inadequate protection afforded by the external walls of the building. The risk was from the ingress of external fire as a consequence of this. Mr Tatian said (Transcript 17 September 2020, page 23, lines 1 to 11): WITNESS TATIAN: … The one item that I want to highlight is the fact that the fire - I'm concerned about the fire from the outside in. currently we have external walls with no fire ratings. We have buildings within close proximity, okay, one of which appears to be in use and dilapidated. In the event that building were to catch alight, we are looking at, potentially, 850 degrees to 1,000 degree fire, okay? Celsius, that is. And the risk of fire spread to the - to the building is significant. Furthermore, the Building Code of Australia, which, now that we're removed or are in the process of removing the mezzanine and reduced it down to Type C construction, still requires the external walls of our building to achieve an FRL from the outside in to prevent a fire from actually entering into the premises.
25. If there was to be an interim regime pending implementation of protective improvements to these walls (whether as a matter of the exercise of discretion in these proceedings or as a consequence of any future approval by the Council), consideration is necessary as to what would be an appropriately safe separation distance of groupings of stacked tyres from the relevant exterior walls.
26. I raised this matter with Mr Tatian and Mr Harriman during the course of their oral evidence. They disagreed as to the appropriate separation distance, with Mr Tatian proposing a greater separation as a precautionary measure than Mr Harriman.
27. Mr Tatian's evidence on this topic was (Transcript 17 September 2020, page 65, lines 18 to 25): WITNESS TATIAN: I would be considering - I would look at it in, in a step format, but the main - I will outline the main hazards. Number 1 would be fire spread from the neighbour into the building, so it would need to have clearances from the external wall to the first row of tyre storage. That would be sized down - HIS HONOUR: What would you say that clearance would need to be? WITNESS TATIAN: I would state that it would need to be between the distances of 4.5 metres to 6 metres to be comparable to something that we would see in clause C3.2 of the NCC for window openings and fire spread through openings.
28. Mr Harriman's evidence in response was (Transcript 17 September 2020, page 66, line 41 to page 67, line 4): The second issue was Mr Tatian suggested that he needs 4 and a half to 5 or 6 metres setback from the external wall to stop the..(not transcribable)..from next door. I don't agree with that because on at least two sides we have residential property and they are set back well from the boundary. The other thing I did mention in my report at clause 153, the joint report at 153, that if we complied with the guideline of the Fire Brigade we would only be able to use 20%, 27% ..(not transcribable).. of the volume. Now, that was based on calculations with tyres being stored up to the internal wall. If I was to remove tyres to a distance of 6 metres all the way around and still comply with the 3 metres between the groups of tyres, that 27% would probably half (sic), so we'd be looking at 13 to 15% usable capacity of the building, and I, I can't comment on the owners but I would not see how that could be financially viable.
29. Mr Tatian responded further to this - as can be seen from the following exchange (Transcript 17 September 2020, page 68, line 43 to page 69, line 3): GOODMAN: Thank you. Mr Harriman also gave some evidence that in his view the setback from the external wall was not needed for at least two sides because of the residential on those sides. Do you have any comments on that? WITNESS TATIAN: I, I disagree that it's not required. Just because it is a residential part of the building does not mean that it cannot catch alight, and temperatures for residential building are between 830 degrees to 1,000 degrees, depending on the literature you look, that you've, you've obtained information from, and on that basis, I would maintain that the distances from the external walls need to be maintained.
30. At Mr Hale's request, Mr Harriman commented (Transcript 17 September 2020, page 69, lines 11 to 14): WITNESS HARRIMAN: ….. The residential properties, they are - the, the buildings, I mean, are set quite a distance away from the..(not transcribable)..in instances, so I still don't support the need for moving tyres away from the external wall.
31. The final difference between Mr Tatian and Mr Harriman concerned the width of the aisles which should be required between the groups of stacks of tyres - however those groups were permitted to be configured. The Guideline also recommends, at page 9, that clear aisles of a minimum width of three metres should be left between groups of stacked tyres for unsprinklered tyre storage facilities.
32. The oral evidence given by Mr Tatian was that, as the premises would not have a sprinkler system installed (at least during the interim regime), the Guideline's aisle width was appropriate to be mandated for the purposes of any interim regime which might be permitted pending lodgement and determination of a development application for ongoing use of the site for tyre storage. Mr Harriman did not comment on the aisle width when invited to comment on Mr Tatian's statements, other than to say that it would not be commercially viable. The evidence on aisle widths was recorded in the transcript of 17 September 2020 at page 65, line 38 to page 67 line 4).
33. As can be seen, the overall interim regime proposed by Mr Tatian is, in all regards, more restrictive than that proposed by Mr Harriman. The ability of the Company to utilise the site would be significantly less, on an interim basis, under the regime proposed by Mr Tatian when compared to that advanced by Mr Harriman.
34. However, for the reasons which follow, I am satisfied that the more conservative approach is appropriate to be adopted. I now turn to explain why I have reached this conclusion.

Conclusion on discretion

1. I have concluded that it is appropriate to allow the Company sufficient time to lodge a development application for the change of use of the premises and to permit the Council sufficient time to assess and determine such an application before any order requiring the cessation of the use should come into effect. Further, if such a development application is made and it is refused by the Council, the orders establishing the interim regime should be structured to permit the interim use regime to continue until either the expiry of the time within which such refusal could be appealed and, if appealed, until that appeal is disposed of by this Court.
2. In the event that the final result of the above processes is that a development consent for the change of use is granted subject to conditions, the interim regime arising from these proceedings is, obviously, to be replaced by whatever are the conditions attaching to such a development consent.
3. However, should the above processes, when exhausted, leave the Company without a development consent for the use of the premises for the purposes of a tyre storage facility, it is appropriate that the Company be required to cease the use within 21 days of the date of the final adverse conclusion of any development application process.
4. For the reasons I earlier outlined, I am satisfied that it is appropriate to allow a reasonable period within which the Company is to be able to lodge a development application with the Council for a change of use. Under the circumstances relating to the likely time necessary for the preparation of plans to support such a development application (as explained by Mr Hale during the course of the hearing) and the fact that the period during which the development application will need to be prepared includes the Christmas holiday period, I am satisfied that I should require the application to be lodged with the Council by the end of March 2021.
5. However, the orders should provide that, if such a development application is not lodged by that date and liberty to approach to seek an extension of that period is not exercised with an extension being granted (such liberty to apply on three working days' notice to be provided for in the orders), a self‑executing element of the orders is to provide that the Company is to cease using the site as a tyre storage facility if no such application is made.

Introduction

1. As a consequence of my conclusion that it would be appropriate to permit the Company to continue its tyre storage activities under a defined interim regime pending lodgement of, and determination by, the Council of a development application to permit the use of the premises for the Company's purpose, it is necessary to establish a regime that can provide an appropriate basis for this to occur.
2. There are three elements that require to be addressed in this context, in my assessment. The first of them is implementation of the elements of Table 2 to the Joint Expert Report of Mr Tatian and Mr Harriman. The second is to address the operational regime of the Company's activities pending what will be the conditions of development consent imposed as an ongoing operational regime when (and if) the Company is granted development consent to use the premises as a tyre storage facility on an ongoing basis. The final element, given the agreement between Mr Tatian and Mr Harriman concerning the scope of the remedial fire safety works needing to be undertaken to the premises that, effectively, substitute for what had been mandated by the Fire Safety Order issued by the Council on 12 February 2020, is to resolve the differences that would otherwise arise between the orders I make in these proceedings and the ongoing obligations imposed by the Fire Safety Order.

The implementation of adapted Table 2

1. Although I have earlier rejected Mr Harriman's attempt to "correct" the terms of paragraph 159 in the Joint Expert Report, my rejection of that does not mean that it is not appropriate to have regard to the timing he has proposed, in Table 3 to the Joint Expert Report, for the implementation of relevant items listed in Table 2 to that report.
2. In circumstances where Mr Tatian acknowledged, as earlier discussed, that operational conditions could be imposed if I was minded to afford the Company the opportunity to seek to regularise its use of the premises, Mr Tatian's proposal that all elements of Table 2 were to be implemented on the basis that required the Company to vacate the premises and carry out the works prior to reoccupation for the purposes of tyre storage is not appropriate.
3. I did not discern anything in Mr Tatian's written or oral evidence that demurred from the timetable recommendations made by Mr Harriman, if I was to permit the tyre storage used to continue on an interim basis pending regularisation by the granting of a development consent.
4. Under such circumstances, I am satisfied that it is appropriate to adopt Mr Harriman's timetable for the purposes of my orders in these proceedings. Implementation, however, is to be subject to an ability to be granted to the Council to permit the Council to modify, in any terms attached to the granting of development consent, any timetabling elements for the implementation of Table 2 where those elements are incomplete as at the time of imposition of the terms of development consent.
5. Therefore, the items requiring implementation by remedial works to the premises will be incorporated in the orders made finalising these proceedings.

An interim internal operational regime

1. Pending the granting of development consent to regularise the Company's activities on an ongoing basis, it is necessary to establish an interim regime to address matters which, I would expect, will be addressed by elements that will otherwise need to be contained in conditions attaching to a development consent when (and if) such a consent is granted to the Company. The first of these, albeit a minor one, is the continuation of the ban on aerosols, cigarette lighters and the like being on the premises. That ban is to continue in the terms provided for in the currently operating regime established during the course the hearing.
2. Second, the element of the interim regime relating to vehicles on the site is also to continue until Item 6 of the modified Table 2 in Order (6) is completed and no storage external to the building is being carried out.
3. I would expect that these two interim aspects would be uncontroversial.
4. However, there remain four substantive elements concerning the storage of tyres within the building that need to be addressed on an interim basis pending the remedial works to address the requirement for fire rating rectification of external walls to the building as agreed between Mr Tatian and Mr Harriman. The four elements are: 1. Imposition of a mandated aisle width between stacks of tyres; 2. Setting a maximum height at which tyres are to be stored in stacks within the premises (noting, however, that there is no controversy on this point because of the agreement between Mr Tatian and Mr Harriman about the appropriate maximum stack height); 3. To set a permitted configuration for tyre stacks to be configured; and 4. To address the appropriate separation distance between stacks of tyres and external walls of the premises pending the carrying out of the fire rating remedial works to those walls.

Tyre stack height

1. Mr Tatian and Mr Harriman are in agreement that the maximum height appropriate to be permitted for any stacks of tyres is 3.7 metres. I am satisfied that this is an appropriate regime to adopt. I note, in the context of the next topic to which I will need to turn, that this maximum stack height is entirely consistent with that proposed by the Guideline.

Tyre stack grouping

1. In his affidavit of 23 July 2020, Mr Tatian gave evidence of the configuration of the tyre stacks on the site at the time of his first inspection on 21 July 2020. The relevant elements of that evidence, at folio s 3 and 4 of his affidavit, were in the following terms: (a) There was a very large amount of tyres stacked throughout the Warehouse; (b) Areas within the building, including a space which appeared to have been formerly used as office space and the like, were stacked with tyres. The mezzanine level directly above this office space area was also stacked with tyres; (c) There was a small area where no tyres were located, near the entry of the Warehouse, which appeared to be used for loading/ unloading. To the right of the loading area there was a mezzanine level. Tyres were stacked below the mezzanine level and above the mezzanine level; … (e) Moving to the back of the warehouse, there was a bolted door which appeared to be an access/ exit door to the rear (its exact purpose was unclear). To the left hand side of this were more tyres, and an opening leading to another portion of the warehouse; (f) The second portion of the warehouse contained tyres stacked throughout. Some of the tyres appeared to be stacked at a height greater than 4m; (g) Throughout the Warehouse tyres were stacked around structural steel columns used to support the structure; … (o) The large amount of tyres that I observed stacked within the Warehouse were stacked in a haphazard manner. The tyres I observed stacked within the Warehouse did not accord with the required stacking methods set out in the Fire and Rescue NSW Fire Safety Guideline - Guidelines for the bulk storage of rubber tyres (Guidelines). A copy of the Guidelines is annexed to this affidavit and marked "B";
2. Mr Harriman also addressed this topic in his affidavit of 2 September 2020. His evidence on this topic was in the following terms: 5 The tyres were stacked in blocks with gaps between them. In places these gaps were more than 1m in width but in many places the gaps were approximately 600-700mm. For paths of travel for egress a minimum of 1m is required.
3. During the course of the concurrent evidence of these two experts, I drew attention to a photograph appended to the affidavit of Mr Harriman which depicted the configuration of the stacks of tyres on the occasion of his inspection of the premises. A copy of that photograph is Annexure D to this judgment.
4. Mr Tatian proposed that the tyre stack configuration should be 4 x 4 stacks of tyres in each grouping of such stacks. On the other hand, Mr Harriman proposed that such grouping of stacks of tyres should be permitted to be on a 6 x 2 basis, this being the basis of the grouping adjacent to the wall depicted in the photograph reproduced as Annexure D to this judgment.
5. Resolution of this difference between the experts is, I am satisfied, simple. I have earlier explained why, despite Mr Harriman's objection to any regard being paid to the Guideline, I am satisfied that that document is to be accorded significant weight in resolution of issues in dispute between Mr Tatian and Mr Harriman. Given, also, I have a reluctance to accept Mr Harriman's evidence when it is in conflict with that of Mr Tatian, the inevitable resultant conclusion to be drawn with respect to the differences between them on this point is that Mr Tatian's position (adopting that proposed by the Guideline (in Exhibit E at folio 666)) is to be preferred.
6. My orders will therefore provide that the appropriate maximum stack configuration will be in 4 x 4 clusters. Whilst these are the external dimensions of such clusters, this will be expressed as a maximum, thus permitting the Company to operate on a lesser regime should its operational requirements dictate that.

Aisle widths and wall setbacks

1. During the course of their oral evidence, Mr Tatian and Mr Harriman expressed different opinions as to the appropriate separation distance that should be required for stacks of tyres from walls of the premises requiring fire rating level upgrades.
2. As earlier noted, Mr Tatian expressed the view that the clearances of groups of tyre stacks from the external walls should be based on cl C3.3 of the BCA.
3. I have examined cl C3.3 "Separation of external walls and associated openings in different fire compartments" of the BCA (Exhibit C, folio 127). On my reading of that provision, it gives no obvious interpretive assistance in the present circumstances.
4. Mr Harriman's evidence, earlier set out in his general comments concerning the applicability of the Guideline, also provided no specific assistance on how I should address this point.
5. Whilst it is reasonable to assume that the Guideline addresses what should be tyre storage arrangements in buildings that have appropriate fire‑rated external walls, I am prepared, for present circumstances, to adopt, as an appropriate regime for aisles, wall separations and stack grouping separations, that which is set out in Figure 13 of the Guideline in Pt 7.2, being the part that deals with unsprinklered buildings (as is here the case). Figure 13 is reproduced below:

Who is to give effect to the requirements of the adapted Table 2?

1. Although it will be necessary in addressing these matters in the orders to impose obligations for the carrying out of those works, it is appropriate that I note that the question of responsibility for that was also addressed during the course the hearing.
2. Ms Reid made the following submission with respect to which party should be responsible for carrying out the remedial works (Transcript 18 September 2020, page 29, lines 14 to 17): If o 7 [order 7 reproduced at [15] as sought in the Summons] is to be made, it is to facilitate the first respondent's use of the premises and should properly require the work be undertaken by the first respondent. The second respondent consents to those works being carried out.
3. On the other hand, Mr Hale advocated a more pragmatic approach. He submitted (Transcript 18 September 2020, page 29, lines 31 to 36): So far as the fire safety orders are concerned, it relates to the building and it's - I think the first safety orders were only things to be - were only sought against the second respondent, not the first respondent but obviously there will be commercial arrangements that need to be made between the first and second respondents and we don't see the Court should be concerned with that.
4. Whilst, consistent with Ross v Lane Cove (2014) 199 LGERA 298; [2014] NSWCA 50 (Ross), orders could be made to require the Company to carry out the works, because they arise as a consequence of the Company's activities being called into question in these proceedings, I am satisfied that the appropriate burden should fall on the Owner in order to ensure that the works will actually be carried out whilstever the Company remains in occupation of the premises and carrying out its tyre storage activities. However, as Mr Hale indicated, commercial arrangements between the Company and the owner may well give rise to a more pragmatic resolution in ensuring that the necessary remedial works are effected. That, I am satisfied, would give rise to processes to which the Court and the Council need not be privy nor be participants.
5. The obligation to give effect to my orders requiring the implementation of the remedial measures set out in the adapted Table 2 from the Joint Expert Report (with the exception of the requirement in Item 6 of the adapted Table which falls on the Company) will therefore be imposed on the Owner (with the ability to return to seek relief from those obligations if the Company's activities cease before the requirements are completely satisfied).

The future of the Fire Safety Order

1. The Fire Safety Order issued by the Council to the Owner in February 2020 remains operative.
2. My examination of the terms of that order discloses, as earlier observed, that the mandated requirements for compliance with its terms are at variance with what I have determined to be the appropriate implementation regime for the elements of Table 2 of the Joint Expert Report that remain to be effected.
3. Given the contested nature of these proceedings, and the extensive evidence given by Mr Tatian and Mr Harriman concerning the basis upon which they have reached agreement on the appropriate scope of remedial works to be carried out the premises, it is necessary to ensure that the conflict between the orders made in these proceedings and the requirements of the Council's Fire Safety Order are resolved.
4. There has been no appeal made by the Owner seeking to vary the obligations that were imposed on the Owner by the Fire Safety Order. As a consequence, I am satisfied that I do not have jurisdiction to amend the Fire Safety Order so as to have its terms coincide with the requirements that I will impose as a consequence of these proceeding.
5. I am, however, satisfied that I do have power, in the exercise of my discretion arising from both the EP&A Act and/or s 20(2) of the Court Act, to order that the Council revoke the Fire Safety Order, as the consequence of imposing the remedial regime and the interim operational regime.
6. Self‑evidently, the revocation of the 12 February 2020 Fire Safety Order does not preclude the Council from issuing some future Fire Safety Order for reasons of failure to implement that which is required by this decision or, indeed, more generally if other circumstances arise which might warrant the making of such an order.

Hours of operation

1. The hours of operation of the tyre storage facility are to be those that apply arising from the 1994 development consent, with the alteration that the facility is to be permitted to operate until 6.00 pm on weekdays (this later - by one hour - weekday operation is reflective of what are the present operating hours of the facility). This is derived from the earlier discussed conversation with Aaron recorded in the affidavit of Mr Nestorovski in circumstances where the Council has not suggested, during the course of these proceedings, that any adverse impact on residential amenity arises as a consequence of this additional hour of operating time.

Costs

1. In Class 4 proceedings, costs ordinarily follow the event. In these proceedings, in general terms, the Council has achieved success on most (but not all) relevant issues of principle (although, on the exercise of discretion, the Council has not achieved the relief sought).
2. However, the costs' position is potentially clouded as a consequence of the two Respondents with different roles and where the relief sought at the commencement of the proceedings differed as against those Respondents. In a change at the commencement of the hearing, the Council indicated that, effectively, it no longer sought relief against the Owner (noting, however, that it was necessary for the Owner to being a respondent to the proceedings - Ross).
3. Three things are obvious with respect to the question of costs. These are: 1. The Council is entitled to orders that will see it appropriately reimbursed for its costs in initiating and pursuing these proceedings; 2. I have no proper evidentiary basis (and certainly no knowledge of any exchanges between the Company and the Owner that would assist me) to reach any determination as to apportionment of costs between the Company and the Owner; and 3. It is desirable, if possible, to avoid the necessity for further proceedings to extend what have already been somewhat protracted proceedings in order to conduct a second adjudication, one confined solely to the question of costs' apportionment.
4. Under the circumstances, where the first of the three propositions I earlier set out is incontrovertible, adopting Mr Hale's proposal in the context of the cost of the remedial works to enable a commercial resolution between the Company and the Owner on the question of costs to be paid to the Council, the appropriate course for me to follow is to make the Company and the Owner jointly and severally liable for the Council's costs.
5. An order of that nature will ensure that there is an appropriate stimulus to those two parties reaching a mutually acceptable resolution on the costs' issue whilst preserving to the Council its ability to pursue either or both of those parties for its costs.

Declarations and Orders

1. It therefore follows that the declarations of the Court are: 1. The Court declares that the First Respondent, by its servants and agents, has unlawfully carried out, and is unlawfully carrying out, development on the land legally identified as Lot 77 in DP 2022 and Lot 76 in DP 3875, also known as 36-38 Waterview Street, Carlton, New South Wales (the Land) in breach of s 4.2 of the Environmental Planning and Assessment Act 1979, in that it is using the Land without development consent for a purpose requiring development consent in circumstances where consent is required for such use and it has not been obtained; and 2. The Court declares that that the Second Respondent, being the Owner of the Land and recipient of the Development Control Order issued by the Applicant dated 12 February 2020 (Fire Safety Order) has breached the Environmental Planning and Assessment Act 1979, in that it has failed to comply with terms of the Fire Safety Order.
2. The Court orders that: 1. The First Respondent is ordered to cease the use of the Land for the purposes of tyre storage within twenty-one (21) days of the coming into effect of this order; 2. Order (1) is suspended until 5.00 pm on 26 March 2021 to enable the First Respondent to lodge a development application with the Applicant for a change of use of the Land to permit the First Respondent's tyre storage activities on the Land; 3. The First Respondent has leave, on three (3) working days' notice, to relist the matter before Moore J (any such relisting not be before 25 January 2021) to seek a variation of the period of suspension in Order (2); 4. If the First Respondent lodges a development application with the Applicant, prior to 5.00 pm on 26 March 2021, for a change of use of the Land to permit the First Respondent's tyre storage activities on the Land, Order (1) is further suspended until the Applicant approves the development application; 5. If the Applicant refuses the development application or is deemed to have refused it or approves the development application with conditions not acceptable to the First Respondent and the First Respondent commences Class 1 proceedings in the Court against the refusal, deemed refusal or contested conditions, Order (1) is further suspended until 5.00 pm on the fourteenth (14th) working day after the filing of such Class 1 appeal; 6. The fire safety measures in Column 2 of the table below (taken from Table 2 of the Joint Expert Report of the fire safety experts at folios 953 to 957 of Exhibit F) are to be implemented within the times and by the party specified in Column 3 (unless subsequently varied by any conditions of consent attaching to approval of a development application for the First Respondent's change of use to a "Warehouse or distribution centre"): Defect description Timing to Complete 1 Fire Hydrant System 1 month for flow and pressure enquiry 2 months - Review of the results by Council 3 months for a design of a new system, if the flow and pressure of the steel hydrants is not sufficient 6 months to install fire system Implementing party - Second Respondent 2 External Walls within 3m of the boundary and protection of openings (windows) 12 months Implementing party - Second Respondent 3 Paths of Travel to exit doors, flashing lights 1 month to provide a plan of the proposed layout to council 3 months to complete the works Implementing party - Second Respondent 4 Essential Services 3 months Implementing party - Second Respondent 5 Electrical wiring (unless already resolved) 3 months Implementing party - Second Respondent 6 External path of Travel to a Public Road and removal of ad-hoc storage 1 month Implementing party - First Respondent

1. Until the First Respondent obtains development consent for use of the premises as a "Warehouse or distribution centre" and the conditions subject to which that consent otherwise provides or the Second Respondent has satisfied Item 2 of the table to Order (6) to the satisfaction of the Applicant, from no later than 22 January 2021, the operational regime for the First Respondent's use of the premises is to be that: 1. tyres are to be stacked in configurations of no more than 4 x 4 stack groupings; 2. aisles between stack groupings, separation from walls and exit paths are to be as depicted in Figure 13 in Pt 7.2 of "Guideline for bulk storage of rubber tyres" (version 03 dated 5 December 2014) published by NSW Fire and Rescue; 3. all vehicles are to be removed from the site in the manner required by the First Respondent's undertaking of 24 July 2020; and 4. no aerosol cans, oils, lighters and other ignition sources are permitted within the warehouse; 1. The First Respondent's hours of operation of its tyre storage activities at the premises are to be those required by the 1994 development consent applying to the site with the exception that the Company's operations are permitted to continue until 6.00 pm Monday to Friday (public holidays excepted); 2. The Applicant is to discharge the Fire Safety Order issued to the Second Respondent on 12 February 2020 within twenty-eight (28) days of the date of these orders; 3. Either Respondent has liberty to relist the matter before Moore J on three (3) days' notice if either Respondent wishes to seek a further suspension of Order (1) to enable finalisation of any Class 1 proceedings arising with respect to the finalisation of any development application lodged by the First Respondent seeking consent to use the premises as a "Warehouse or distribution centre"; 4. The Second Respondent is granted liberty to relist the matter before Moore J on three (3) days' notice to seek to discharge any continuing obligations arising from these orders in the event that the First Respondent ceases its tyre storage activities on the premises; 5. Other than the costs of the hearing of 29 September 2020, the Respondents are jointly and severally ordered to pay the Applicant's costs as agreed or assessed; 6. The First Respondent is to pay the costs of the Applicant and the Second Respondent of the hearing of 29 September 2020 as agreed or assessed; and 7. The exhibits are returned.

Amendments 29 December 2020 - The solicitors for the First Respondent are now correctly identified as 'SHL & Associates Lawyers'. 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: 29 December 2020