Kallinosis & Anor v Woollahra Council

The order

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

The evidence

1. Expert evidence on fire engineering was provided by Mr L Tunhavasana for the applicant and Mr S Kip for the Council.
2. The following matters are agreed by the experts:

• the building is an existing timber framed dwelling constructed in about 1907.
• The construction of the lower level, and the encapsulation of the timber dwelling with a brick veneers facade were completed in the 1960s.
• The building is approximately 365m² in floor area, over the two levels, with ground floor of 275 m² and the lower ground floor of 90 m² in area.
• The upper level is currently used as an accommodation building for up to 12 residents, who are not related, and rooms are rented individually to each tenant.
• The lower level is a separate dwelling, occupied by the owner of the building.
• Clause A3.1 of the Building Code of Australia 2016 requires that: 'the classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adapted to be used."
• Clause A3.3 of the Building Code of Australia requires that: "each part of a building must be classified separately, and…,(c) if a building has parts of different classification, each part must comply with all the relevant provisions for its classification."
• No part of the subject building can be a Class 1a building because the lower ground floor is a separate dwelling and therefore the overall building does not contain only a single dwelling.
• A Class 1b (boarding house, guesthouse, hostel or the like) building, in accordance with the classification system in the BCA, cannot exceed 300 m² in floor area or contain more than 12 occupants or be located above or below another dwelling or part of a building that is not Class 1b (other than a private garage), so the subject building cannot be a Class 1b building.
• The ground floor is a "common place of long term or transient living for a number of unrelated persons" and therefore a Class 3 part of the building. The complete definition of class III is as follows: Class 3; A residential building, other than a building of Class 1 or 2, which is a commonplace of long term or transient living for a number of unrelated persons, including - (a) a boarding house, guesthouse, was still, lodging house or backpackers accommodation; or (b) a residential part of a hotel or motel; or (c) a residential part of a school; or (d) accommodation for the aged, children or people with disabilities; or (e) a residential part of a health-care building which accommodates members of staff; or (f) a residential part of a detention centre."
• The provisions of the BCA Clause C2.7 that allow a concession for a building to be treated as two separate buildings for the purposes of the BCA deemed to satisfy provisions of section C, D and E of the BCA if fire separated, does not apply to the classification system in the BCA Section A3, so cannot change the class of the subject building.
• From the details provided by the owner, and the site inspection, the use of the ground floor is either; (a) a boarding house, guesthouse, hostel, lodging house or backpackers accommodation; or (d) accommodation for the aged, children or people with disabilities;
• At the site inspection undertaken by Mr Kip, one aged resident and one resident with some intellectual disability were present. No other residents were present.

1. In relation to the provisions of the Order, the experts also agree that the following works are required:

• Emergency lighting and exit signs to be upgraded to comply with AS2293.1 - 2005 and relevant portions of the BCA as referenced within items 1.02 and 1.03 of the fire safety order.
• Fire safety and evacuation procedures to be produced in accordance with AS 3745 - 2010 and item 1.04 of the fire safety order.
• Upgrade of the existing fire blankets comply with AS3504 - 2006 and AS2444 - 2001 as per the requirements of item 5.01 of the fire safety order.
• Items 3.01 and 3.02 of the fire safety order relating to the existing interconnected smoke alarm system in accordance with the BCA and a S3786 to be considered as an appropriate measure within the subject building.

1. The experts do not agree on whether the ground floor use of the building is a Class 3(d) rather than a Class 3(a) building with Mr Kip saying that because the use includes some accommodation for the aged and disabled it is possibly a Class 3(d) use and classification where as Mr Tunhavasana believes the use of the ground floor is as a boarding house, guesthouse, hostel or lodging house and is therefore a Class 3(a) use and classification.
2. Regardless, they agree that all Class 3 buildings that are required to meet the BCA Deemed-to-Satisfy Provisions require significant fire safety matters to be installed including: a. The distance of travel to an exit to be of not more than 6m (the subject building has approximately 21m to a single exit). b. Walls around bedrooms (sole-occupancy units (SOUs) to achieve a 60/60/60 FRL (the subject building has no fire resistance rating to the bedroom walls). c. Walls between bedrooms (SOUs) to extend to the underside of the roof, or a ceiling achieve a 60/60/60 FRL (the subject building has no fire separation in the roof space). d. Doors to each SOU to be self-closing tight fitting solid timber core doors at the least 35mm thick (the subject building has timber doors only 6mm thick at the feature panels and the doors are not tight fitting or self-closing.
3. In considering the risk to occupants, Mr Kip considers that regardless of floor area or classification, to compensate for these significant shortcomings a residential fire sprinkler system to Australian Standard 2118.4 - 2012 (Part 4: Sprinkler protection for accommodation buildings not exceeding four storeys in height) and connected directly to the relevant fire brigade, would be the most efficient and effective solution, instead of requiring other upgrade work in addition to that described above. He relies on a number of documents included in the Council bundle, Exhibit 1 which include coroner's reports and other fire safety statistics.
4. Mr Tunhavasana considers the use of a fire sprinkler system is one of several methods in which additional fire safety measures can be used to offset the various compliance issues relating to the prescriptive requirements of the BCA. On this basis, he proposes the performance solution outlined at [11] to achieve compliance with the National Construction Code in lieu of the prescriptive deemed to satisfy solution. An alternate wording for order 4.01 has been proposed by the applicant as exhibit F and both experts agree that that wording would be appropriate should the Court find the performance solution proposed by Mr Tunhavasana is suitable.
5. Mr Kip conceded that the circumstances to which the coroner's report that he referred to differed from the situation at the subject site and agreed that there needs to be an independent assessment for individual needs. Similarly, he agreed that the boarding house does not generally cater for people over the age of 65 or that may be classified as aged persons, nor that the characteristic of the resident differ from the characteristics of other boarding houses within the Sydney area.

Conclusion and findings

1. Based on the evidence of the experts, it is common ground that the existing boarding house does not meet the deemed to satisfy provisions of the BCA. In this regard, the Council proposes that a performance solution involving the installation of a residential sprinkler system whereas the applicant proposes to divide building into two Class 1b buildings and provide fire separation between those buildings.
2. Whilst not part of the Court's consideration, the experts agree that the installation of the sprinkler system would be far simpler and cheaper than carrying out the necessary structural and fire separation works proposed by the applicant. They agree that the sprinkler system would involve annual maintenance costs and the cost of linking to the Fire Brigade of around two half thousand dollars per annum at least whereas, the division of the building into two Class 1(b) buildings would not incur such annual costs and be limited to ensuring that the fire alarms were operational.
3. In its current form, it is agreed that the building is a Class 3 building and therefore, my decision must take into account those provisions. Accordingly, having regard to the evidence, and the extent of non-compliance with the deemed to satisfy provisions of the BCA, I accept the evidence of Mr Kip that the installation of the residential fire safety system the most appropriate means of ensuring the safety of occupants of that building. That is regardless of whether any of the occupants are aged or disabled. Mr Tunhavasana agrees that in the event of a fire, the sprinkler system would contain that fire to one room of the boarding house, and I consider that this is an important consideration so that in the event of a fire, the fire does not spread the risk to other occupants of a building. My decision is based on the assessment of both options against the deemed to satisfy provisions for Class 3 buildings detailed at [19] and in particular consideration of how best to ensure that the significant shortfall in compliance is best addressed.
4. Whilst the cost factor of necessary fire upgrade works should never be compared to the cost of a life that may be risked in a building that does not meet relevant fire safety standards, I note the agreement of the experts that the installation of the residential sprinkler system is the cheapest and easiest option for the building.
5. Therefore, having regard to the evidence, I consider it appropriate that the requirement to install the residential sprinkler system be imposed and therefore no change to that aspect of the Order is required.
6. As stated earlier, in view of the works that have been carried out and the other agreed positions of the experts, it is appropriate that the Order be modified to reflect the extent of works now required and therefore, pursuant to the provisions of section 121(4)(b) of the EP&AAct, it is appropriate to modify the Order.
7. I consider the timeframes proposed by the council are reasonable given the nature of particular works required.
8. The Orders of the Court are: 1. The appeal is upheld. 2. The fire safety order that applies to No 11 Black Street Vaucluse and issued to the owners of the property and applicants in these proceedings is modified so that it is now in the form of Order included in Annexure A. 3. The exhibits, other than exhibits A and B, are returned.

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Commissioner Morris 324636.2016 (Annexure A) (103 KB, pdf)

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