Kallinosis v Woollahra Municipal Council

Background

1. The site is 609m2 and is located at the corner of Black Street and Hay Street. The existing building contains two storeys. The lower ground floor is a single residential occupancy unit accessed from Hay Street, and has a floor area of around 93m2. Under the BCA, this is categorised as a Class 2 building. The upper ground floor is a boarding house accessed from Black Street, with a floor area of 275.2m2, and is categorised under the BCA as a Class 3 building.
2. The original ground floor of the building, which is now part of the upper ground floor, is a timber framed clad cottage built in around 1907 with a terracotta roof lined internally with traditional lath and plaster. In the late 1950s the building was extended to the rear and to the lower ground floor with Council approval and converted from a residential dwelling to a boarding house. In the early 1960s the downstairs was converted into a single residential unit and the original timber cottage section was bricked externally.
3. On 30 September 2016, the Council issued an order under s121B of the EPA Act, which required fire upgrading works to the building. Mr and Mrs Kallinosis appealed against the order and the matter came before Commissioner Morris for hearing on 12 May 2017. Whether the installation of a residential fire sprinkler system should be required by the order was the only issue in dispute before the Commissioner. In Kallinosis & Anor v Woollahra Council [2017] NSWLEC 1290, the Commissioner determined that:

• The boarding house, in its current form, was a Class 3 building.
• The building did not meet the deemed-to-satisfy provisions of the BCA insofar as they relate to the fire safety of a Class 3 boarding house.
• As a result, there needed to be a performance solution to meet the requirements of the BCA.
• The parties had provided two alternate performance solutions, the first was the installation of a residential fire sprinkler system and the second was the division of the building into two Class 1b buildings using a fire wall.
• In comparing the two alternate performance solutions against the significant shortfall in compliance with the deemed-to-satisfy provisions of the BCA, the Commissioner preferred the fire sprinkler system.

1. Although both the hearing by and the decision of Commissioner Morris post-dates the development consent that forms the subject of the present appeal, it was not raised or noted in her judgment.

The proposal

1. In conjunction with the change in use sought, the development application seeks to install a fire wall to enable the building to become two attached boarding houses. It proposes new stairs to the upper ground floor from the lower ground floor, new bedrooms, new bathrooms, a new laundry, and new kitchen.
2. As a result of the works, one of the proposed boarding houses will be accessed from the Black Street entrance and comprises six boarding rooms located on the upper ground floor, together with communal kitchen, bathroom and laundry facilities. The second proposed boarding house will be accessed from Hay Street and comprises six boarding rooms with four located on the upper ground floor and two located on the lower ground floor, with the floors connected by a new stairwell. The kitchen, bathroom and laundry facilities will be located on the lower ground floor.
3. The consequence of the consent, if carried out, will result in the building being categorised under the BCA as two Class 1b buildings. Pursuant to Part A3 of the BCA, a building classified as a Class 1b is: "(i) a boarding house, guest house, hostel or the like - (A) with a total area of all floors not exceeding 300m2 measured over the enclosing walls of the Class 1b; and (B) in which not more than 12 persons would ordinarily be resident."
4. The proposal is therefore akin to the alternate performance solution that the Commissioner did not prefer in Kallinosis & Anor v Woollahra Council. I discuss the relevance of this further below.

Development consent should be granted

1. There is no dispute between the parties that consent should be granted to the two boarding houses as proposed. In determining whether to grant consent, s 79C(1)(a) of the EPA Act requires the Court, exercising the functions of the consent authority, to consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Section 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 ("WLEP 2014"). Clause 2.3(2) of the WLEP 2014 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: "• To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood."
3. Boarding houses are permissible with development consent in the zone, and the two proposed boarding houses meet the description of a boarding house under the WLEP 2014.
4. The State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH") also applies, and provides at cl 30 the following standards for boarding houses: "30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (f) (Repealed) (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms."
5. In the delegated assessment report, which is relied upon by both parties, the assessing officer states that the proposed boarding house "complies with the standards for boarding houses and includes a driveway/hard stand space which is suitable for a bicycle/motorcycle parking." The assessment report also outlines the necessity for a condition that the maximum occupancy of each boarding house be 12 persons.
6. The assessment report, in considering other elements of the s79C assessment, includes statements that:

• The proposed development "is permitted and is consistent with the objectives of the R2 zone".
• The proposal "does not involve any external changes to the building that will impact on the streetscape".
• It "meets the streetscape character and key elements of the precinct and desired future character objectives of the Vaucluse East precinct".
• The proposal "would not adversely affect streetscape character, solar access, views or privacy."
• The proposed development "is acceptable with regard to the built form and context controls in Part B3.5 of the Woollahra DCP 2015."

1. The original application lodged with the Council was the subject of notification and no objections were received. The Kallinosises submit that the proposal is in the public interest by providing additional affordable housing through the two boarding houses.
2. I accept the evidence that the proposal complies with the relevant controls, that it meets the objectives of the zone and the requirements for boarding houses under the SEPP ARH, and I accept the submission that it is in the public interest.
3. An additional consideration under s 79C arises by virtue of cl 94 of the Environmental Planning and Assessment Regulation 2000 ("EPAR"), which provides as follows: "(1) This clause applies to a development application for development involving the rebuilding, alteration, enlargement or extension of an existing building where: (a) the proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or (b) the measures contained in the building are inadequate: (i) to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or (ii) to restrict the spread of fire from the building to other buildings nearby. (c) (Repealed) (2) In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia. (2A), (2B) (Repealed) (3) The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act."
4. In considering this provision, the assessment report considered the proposal to be acceptable, subject to the condition requiring the installation of the residential fire sprinkler system. The Council maintains this position, in that they have not agitated that cl 94 raises a merit issue that warrants refusal of the application, but rather that it raises a question as to what appropriate conditions should be imposed on the grant of development consent.
5. It is clear from the above that consent ought be granted subject to determining the appropriate conditions.

Conditions of development consent

1. To assist the Court in its consideration under cl 94 as to whether the building adequately protects people from fire, and whether it would be appropriate to require the existing building to be brought into total or partial conformity with the BCA, expert opinion evidence was given by Mr Kip and Mr Catchpole, who are both building surveyers with expertise in fire safety. Both Mr Kip and Mr Catchpole agree that the proposal can be brought in partial conformity with the BCA as it can meet the deemed-to-satisfy provisions relating to fire safety for Class 1b buildings.
2. However, the Council submits that this is not sufficient. The Council submits that cl 94(1) and (2) must be read together to allow a holistic view with a risk assessment of the premises to be undertaken and measures imposed to make the building adequate to protect persons and allow their egress in the event of a fire. The Council submits that these measures are not limited to the BCA.
3. The Council relies on the evidence of Mr Kip, who opined that the overall risk assessment of the property reveals that the deemed-to-satisfy fire safety provisions of the BCA are inadequate to protect persons and facilitate their egress in the event of fire. Mr Kip's concerns related to three aspects of the building. The first is the length and nature of the route of egress from the boarding rooms to the exit door, the second is that only one exit is available from each proposed boarding house, and the third is that the age of the building means that there is increased risk that it will not perform adequately in the event of a fire. Mr Kip's concern with this third aspect was that the building materials used to construct the building are not BCA compliant and are not likely to prevent the spread of fire. He also raised concerns about the electrical wiring in the building potentially presenting a fire hazard. A further concern of Mr Kip's is that the occupant profile of a boarding house creates further risk, as they by their nature include persons of low socio-economic status with various levels of related drug, alcohol, aging and physical and mental disability.
4. In Mr Kip's opinion, therefore, is that the proposal is an exceptional or rare occasion when BCA compliance is not adequate and the only way to ensure adequate fire safety in the context of these concerns is for a residential fire sprinkler system to be installed. He stated that this was not a performance solution under the BCA, but rather he was providing it as a result of a risk assessment that he was required to undertake in fulfilling his ethical obligations as an engineer. In carrying out this risk assessment, Mr Kip opined that even if the building is separated to create two buildings, the building use and existing measures remain substantially the same as if the building was not separated and therefore the fire risk to occupants remains the same. In this respect, Mr Kip does not distinguish between the two different categories of buildings.
5. The Kallinosises submit, however, that the power conferred by cl 94(2) is not so broad as to go beyond the requirements of the BCA. They submit that any requirements beyond those of the relevant provisions of the BCA Volume 2 pertaining to Class 1b buildings would be beyond the scope of cl 94(2).
6. They rely on the evidence of Mr Catchpole that the requirements of the BCA for Class 1b buildings, insofar as they relate to egress from the buildings and the restriction on the spread of fire, are adequate to satisfy both cl 94(1) and (2). Mr Catchpole's evidence is that there are three particular measures to be taken that meet the deemed-to-satisfy provisions of the BCA and therefore the performance requirements of Volume 2, which in turn meet the provisions of cl 94. The first is the construction of the fire separating wall to divide the existing building into two Class 1b buildings, which will restrict the spread of fire and satisfies the deemed-to-satisfy solutions of section 3.7.1 of the BCA and therefore meets the performance requirements of Part 2.3. The second is the installation of emergency lighting in each Class 1b building, which facilitates egress from the building in the event of a fire and satisfies the deemed-to-satisfy provisions of BCA Clause 3.7.2.5. The third measure is the installation of interlinked smoke alarms in each Class 1b building (including placing an alarm in each room), which meets the deemed-to-satisfy solution relating to smoke alarms in 3.7.2.2 and 3.7.2.4, and, together with the emergency lighting, will facilitate egress from the building in the event of a fire and satisfy the BCA performance requirements in Part 2.3.2.
7. Mr Catchpole opines that it is not appropriate to require automatic fire sprinkler systems in the Class 1b buildings in circumstances where it is proposed to have measures taken that meet the performance requirements of Volume 2 of the BCA provisions. He asserts that those measures are deemed by the BCA to address the performance requirements for restricting the spread of fire between buildings, safe egress and automatic warning on the detection of smoke to allow occupants to evacuate to a place of safety in the event of a fire. Mr Catchpole's evidence is that compliance with these prescription provisions are therefore adequate and meet the requirements of cl 94.
8. Clause 94(2) is not restricted to the fire safety provisions of the BCA but concerns the entirety of the BCA. I note that Mr Kip and Mr Catchpole both agree that total conformity with the BCA cannot be achieved because the age of the building means that it was constructed with materials that do not meet the current BCA requirements, and to bring the building into total conformity would require reconstruction.
9. However, both Mr Kip and Mr Catchpole agree that the proposal can achieve total compliance with the fire safety requirements of the BCA through the deemed-to-satisfy solutions. The dispute is whether something more is required.
10. In determining the appropriate conditions, I am therefore required to consider the extent of the power under cl 94 and how that power ought to be exercised in the context of the development application.

The extent of the power under cl 94

1. I accept the submissions of the Kallinosises that cl 94 of the EPAR is not so broad as to allow a consent authority to conduct a holistic risk assessment of the premises and use unfettered discretion to determine what must be done to ensure that the building is adequate to protect persons using the building and facilitate their egress in the event of a fire. The proper construction of cl 94 is far more constrained.
2. Clause 94(1) sets out the circumstances in which the clause applies. The first requirement is that it is "a development application for development involving the rebuilding, alteration, enlargement or extension of an existing building."
3. The second requirement is that either cl 94(1)(a) or (b) are met. If cl 94(1)(b) is relied upon, then at this point a risk assessment or other review can be undertaken to determine whether: "(b) the measures contained in the building are inadequate: (i) to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or (ii) to restrict the spread of fire from the building to other buildings nearby."
4. If the first requirement is met and the risk assessment (or other review of the building) finds that the measures contained in the building are inadequate, then the clause applies. The application of cl 94(1)(b) to a development application or a building is relevant only insofar as it determines whether the clause applies.
5. If the clause applies, then the duty of consideration and the discretionary power to require BCA conformity in cl 94(2) is enlivened. As consent authority is bound "to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia." That is to say, a consent authority is bound to consider whether to exercise the power to require BCA conformity. It is clear that the limit of the power is to require total or partial conformity with the BCA. Nothing in cl 94(2) confers an unfettered discretion on the consent authority to go beyond bringing a building into total or partial conformity with the BCA.
6. I therefore accept that the power in cl 94(2) does not allow conditions to be imposed on the grant of development consent that are more onerous than the requirements of the BCA.
7. The next question that arises is how that power ought to be exercised in the present application, and whether the installation of a residential fire sprinkler system is within the scope of bringing the building into total or partial conformity with the BCA.

The deemed-to-satisfy measures are adequate in law

1. The BCA is a performance based code that establishes performance requirements that can be met either by a performance solution (also called an alternative solution) or by using a deemed-to-satisfy solution. A performance solution is any measure that results in the achievement of the performance requirements. The deemed-to-satisfy solutions are measures prescribed by the BCA and deemed by the BCA to be measures that meet the performance requirements. That is, if the deemed-to-satisfy solutions are carried out, then the performance standards are deemed to be achieved.
2. Class 1b buildings are a sub-category of Class 1 buildings and the performance standards for fire safety for Class 1 buildings are set out in Part 2.3 of the BCA - Volume 2. They are summarised in the explanatory information functional statements, which provide (insofar as is relevant): "F2.3.1 Protection from the spread of fire A Class 1 building is to be protected from the spread of fire. F2.3.2 Fire detection and early warning A Class 1 building is to be provided with safeguards so that occupants are warned of a fire in the building so that they may safely evacuate. F2.3.3 Heating appliances Hearing appliances using controlled combustion located in a building are to be installed in a way which reduces the likelihood of - (a) fire spreading beyond the appliance; and (b) smoke from the appliance entering the building. …"
3. I note that the proposal does not include heating appliances, and F2.3.4, F2.3.5 and F2.3.6 do not apply. Details of the performance requirements for each functional statement are set out immediately thereafter, as follows: "P2.3.1 Protection from the spread of fire (a) A Class 1 building must be protected from the spread of fire from- (i) another building other than an associated Class 10 building; and (ii) the allotment boundary, other than a boundary adjoining a road or public space. (see Figure 2.3.1) (b) A Class 10a building must not significantly increase the risk of fire spread between Class 2 to 9 buildings. P2.3.2 Fire detection and early warning In a Class 1 building, occupants must be provided with automatic warning on the detection of smoke so that they may evacuate in the event of a fire to a place of safety. …"
4. The acceptable construction practices that satisfy these performance requirements are then set out at Part 3.7 of the BCA - Volume 2. These are those measures that are referred to as 'deemed-to-satisfy' solutions as each sub-part within Part 3.7 contains a statement that "Compliance with this acceptable construction practice satisfies [the relevant performance requirement]". For example, within Part 3.7.1 Fire Separation, cl 3.7.1.1 says "Compliance with this acceptable construction practice satisfies Performance Requirement P2.3.1 for fire separation."
5. Part 3.7.1 sets out the requirements for the deemed-to-satisfy solution for fire separation, including that the wall separating the two Class 1b buildings must have a FRL of not less than 60/60/60, commence at the footings or ground slab, and extend to either the underside of the roof covering if the roof covering is non-combustible, or to at least 450mm above the roof covering if it has a combustible roof covering. A number of other requirements are also set out.
6. Part 3.7.2 sets out the requirements for the deemed-to-satisfy solution for smoke alarms, including (inter alia) that the smoke alarms must be installed in every bedroom, in every corridor or hallway associated with a bedroom, and on each storey and that they must be interconnected. Part 3.7.2.5 also sets out the requirements for lighting to assist evacuation, which is another matter required for the deemed-to-satisfy solution for performance requirements 2.3.2.
7. Given that the installation of a residential fire sprinkler system is not one of the construction methods that constitute a deemed-to-satisfy solution, the only way that it can be required for the purpose of bringing the building into conformity with the BCA pursuant to cl 94 is if it is provided as a performance solution.
8. However, both Mr Kip and Mr Catchpole agree that the deemed-to-satisfy solutions can be met with the current proposal. In those circumstances, there is no requirement to go beyond this to a performance solution, as the performance requirements will be met through compliance with the deemed-to-satisfy solutions.
9. It is clear, therefore, that the deemed-to-satisfy solutions are sufficient to bring the building into compliance with the specified fire safety performance requirements of the BCA that apply to the proposed development, and are therefore adequate in law. Where they are adequate in law, to prescribe a performance solution where none may be necessary would be outside the scope of cl 94(2).

The deemed-to-satisfy measures are adequate in fact

1. The evidence of Mr Kip is that because an existing building cannot practically be upgraded to meet all present-day standards in the BCA, and may not contain the anticipated construction standards prescribed or assumed in the current BCA, a holistic review of fire safety is required that is not restricted to the fire safety requirements of the BCA. In support of this, he relies on clauses 94(1), 131 and 143 of the EPAR, which he says contain additional requirements not limited to the BCA.
2. Mr Kip conceded that in light of his concerns about the building, his preference for the building would be to retain the current configuration of the building as a Class 3 boarding house, with the stairs inserted as proposed to create a second exit. However, that is not the current development application that is before the Court. Further, the consideration of matters arising under cl 131 and 143 do not arise in determining a development application. Clause 131 concerns development standards for a complying development certificate, and cl 143 concerns the issue of a construction certificate. In any event, a question may arise in considering those clauses as to whether they can require something more than what the BCA requires.
3. Mr Catchpole's evidence is that the deemed-to-satisfy measures prescribed in the BCA for a Class 1b building are sufficient to restrict the spread of fire between buildings and allow safe egress and automatic warning on the detection of smoke so that they can evacuate to a place of safety in the event of a fire. He says that the use of the older construction materials does not necessarily increase the risk of the fire affecting the structure, as often hardwood was used and hardwood takes longer to burn than softwood. Further, Mr Catchpole says that there are features of the small occupancy boarding houses that improve fire safety, such as the relationships built between the residents by using a common kitchen and bathroom, which mean that residents are more likely to ensure that everyone evacuates from the building during a time of fire. Mr Catchpole considers that meeting the deemed-to-satisfy provisions of the BCA is sufficient to prevent the spread of fire and enable residents safe egress in the event of a fire.
4. Mr Kip's concerns are largely based on an assessment of the building as a Class 3 building. His assessment of the adequacy of the length of the egress path, the doors, the walls around the bedrooms and the ceiling, are all based on the BCA requirements for a Class 3 building. However, the proposal before the Court is not for a Class 3 building and these requirements do not apply to a Class 1b building. A distinction between the two types of buildings is drawn by the BCA based on the size of the boarding houses. The size characterisation is not so arbitrary as to belie the distinction as Mr Kip has done. Rather, the reduced fire safety requirements for a Class 1b building reflect that there are less people who need to exit the building across a smaller floor space. Although Mr Kip is well experienced in the BCA, having been involved in the Australian Building Codes Board, and has concerns about the adequacy of the fire safety requirements of the BCA, I must consider his evidence in light of the current state of the law and therefore of the BCA.
5. In that regard, I accept the opinion of Mr Catchpole that the deemed-to-satisfy measures in the BCA for a Class 1b building are sufficient and adequate to restrict the spread of fire between buildings and to allow safe egress. In circumstances where the evidence is that those deemed-to-satisfy measures can be carried out, it is not appropriate for me to impose a condition requiring a specified performance solution which may be more onerous, such as the installation of a fire sprinkler system.

No other applicable policy requires the installation of a fire sprinkler system

1. In his evidence, Mr Kip relies on the findings published in a number of reports concerning fire related deaths, including:

• The USA Government FEMA report on socio-economic factors and the incidence of fire, which states that "[v]irtually every study of socioeconomic characteristics has shown that lower levels of income are either directly or indirectly tied to an increased risk of fire."
• The report by the Federal Parliament Legal and Constitutional Affairs Committee of the Australian Senate on 'Use of smoke alarms to prevent smoke and fire related deaths', which reported that "people made vulnerable by age or another factor are most likely to be victims of smoke and fire-related deaths and injuries."
• The 2015 National Fire Protection Association (NFPA) report 'Fire loss in the United States During 2014', which concluded that "wider use of residential sprinklers must be aggressively pursued."
• The findings of the NSW Coroners Court in the Inquest into the death of Connie Zhang, at [143] that "[t]he evidence in this inquest and in other inquests over which I have presided leave absolutely no doubt in mind that the most effective fire safety measure in any building housing multiple occupants is a fire sprinkler system. It is second to none."

1. There is no doubt that fire sprinklers reduce the spread of fire. However, other than the application of the BCA through cl 94, there is no policy in place by the Council or at a state or national level that forms part of the s 79C consideration and could require the installation of a residential fire sprinkler system as a condition of development consent for the present application. The dissatisfaction with the adequacy of the deemed-to-satisfy provisions of the BCA which is expressed by Mr Kip cannot be resolved by me in my role exercising the functions of the consent authority conducting an assessment under s 79C. In carrying out that assessment, I must consider the development application in accordance with the law and I am bound by that law. It is not my role to question its adequacy, and in that respect I accept the submission made on behalf of Mr and Mrs Kallinosis that if I were to impose the condition sought by the Council, I would be creating an "uncomfortable" precedent which would more appropriately be the subject of a policy decision made by the governing authority rather than by a consent authority.

Relevance of the decision on the order appeal

1. The Council emphasised that the decision of Commissioner Morris in Kallinosis & Anor v Woollahra Council resolved the same issues that are presently before the Court, and did so in favour of requiring the residential fire sprinkler system to manage the risk to the premises. The Council therefore urges me to resolve the present issue before the Court in the same manner. The Council also submits that the fact that the order is required to be complied with supports a condition of development consent with the same requirements.
2. Mr and Mrs Kallinosis submit, however, that the consideration by the Commissioner was in respect of a Class 3 building that is not before the Court in the present application. Further, they submit that the fact of the existence of the order is irrelevant to the exercise of the functions of the consent authority in determining the application.
3. For the following reasons I accept that the consideration by Commissioner Morris is distinguishable from that which I am required to carry out in the present proceedings. First, the power exercised by Commissioner Morris in an appeal against an order is entirely different to the power exercised by a consent authority in determining a development application. The Commissioner was exercising the power under s121B of the EPA Act, which confers broad powers on the Court, on an appeal from the order of a council, to order the owner of premises "to do or refrain from doing such things as are specified so as to ensure or promote adequate fire safety or fire safety awareness". This power can be exercised where the Court is satisfied that, based on the building, the provisions "for fire safety or fire safety awareness are not adequate to prevent fire, suppress fire or prevent the spread of fire or ensure or promote the safety of persons in the event of fire." This allows an assessment of the current premises to be carried out and appropriate orders to be made.
4. By contrast, in the present proceedings, I do not have broad powers to conduct an assessment of the current premises and make appropriate orders but I instead carry out the functions of the consent authority in determining the development application for prospective work and use. The current use is not relevant to the exercise of that power. The current building is relevant only as it relates to cl 94. I must consider the application in accordance with s79C of the EPA Act and I am also restrained by cl 94(2), which I consider limits me to the applicable provisions of the BCA concerning Class 1b buildings.
5. As such, the power arising under s121B allows the consideration of matters that are beyond the scope of the BCA, whereas the power under cl 94(2) is confined to the provisions of the BCA.
6. Second, the subject of Commissioner Morris' consideration is distinguishable from the subject I am considering in the present application. Whereas Commissioner Morris was required to consider the present state of the building at the time of the hearing in order to determine the appropriate terms of the order, I am required to consider the future use and built form of the building that is proposed by the development application before the Court.
7. Third, the context of the Commissioner's determination is quite different from that of the present application. Commissioner Morris preferred the residential sprinkler system in the context of the building being a Class 3 building that did not meet the deemed-to-satisfy provisions of the BCA. The present application seeks development consent that, if carried out, will result in the building being two attached Class 1b buildings and the deemed-to-satisfy provisions of the BCA with respect to fire safety can be met. It is not appropriate to use a decision on a Class 3 building to inform the correct outcome for a consent that results in two Class 1b buildings. The very fact that the classification is different makes it a different context.
8. Finally, the mere fact of the existence of the order issued by Commissioner Morris does not mean that I need to incorporate the terms of the order in any consent granted for the premises. It is not appropriate to incorporate in conditions of development consent for a Class 1b building requirements of an order that was based on the building being a Class 3 building. Notwithstanding this, the order stands separately to and independently from a development consent, which may or may not be pursued. The order will remain in place and is required to be complied with even if the requirements contained therein do not become a condition of development consent. In any event, it appears prima facie that whilst ever the boarding house remains a Class 3 building the order is particularly pertinent, although in its current form it is required to be complied with regardless of whether the consent the subject of these proceedings is carried out.

Outcome of the appeal

1. I am therefore satisfied that consent should be granted for the proposal, on conditions that require the building to meet the performance requirements for Class 1b buildings, which will require any person who carries out the consent to either meet the deemed-to-satisfy provisions of Parts 3.7.1 and 3.7.2 or develop an alternative performance solution. That alternative performance solution might include fire sprinklers. However, in circumstances where the deemed-to-satisfy provisions can be met, the use of cl 94(2) of the EPAR to mandate the fire sprinkler system is not appropriate or necessary. Further, any dissatisfaction with the adequacy of the deemed-to-satisfy provisions of the BCA cannot be resolved by me in my role on an appeal from the decision of a consent authority.
2. The remainder of the conditions that were imposed on the grant of consent by the Council were not disputed by Mr and Mrs Kallinosis, and are therefore similarly imposed on this consent.
3. The orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for the construction of a fire wall and other internal works at 11 Black Street, Vaucluse and to change the use of the premises from a dwelling and a boarding house to two attached boarding houses (classified as two Class 1b buildings under the Building Code of Australia), subject to the conditions of development consent in Annexure A. 3. The exhibits are returned, except for Exhibit C. Annexure A (C) (370 KB, pdf)

---

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: 30 November 2017