May v Pittwater Council

May v Pittwater Council - [2010] NSWLEC 1027 - NSWLEC 2009 case summary — Zoe

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JUDGMENT Introduction and background 1 On 22 April 2009 Mr V Milligan of Vaughan Milligan Development Consulting Pty Ltd made an application pursuant to s.149B of the Environmental Planning and Assessment Act 1979 for a building certificate to be issued under s 149A of the Act in respect of an existing timber deck above a carport and associated spiral staircase associated with the existing dwelling house at 26 Gondola Road, North Narrabeen. 2 The deck/carport is 17 m long 3 m wide and 4.75 m high and is attached to the existing two-storey brick and tile dwelling house. The deck is accessed from the first floor of the dwelling. 3 Adjoining the site to the west at 28 Gondola Road is a detached dwelling house. 4 According to the Statement of Facts and Contentions, on 20 July 1989 the council granted conditional building approval (BA 1737/89) for a roof covering to the then existing deck. On 25 July 1989 council wrote to the owner of the property noting that the original dwelling approval required that the deck have a 500 mm setback, but that this had not been met. In noting that the deck did not meet this requirement it was advised that the council did "not at this stage intend to take any action". 5 According to the application the deck has been in place for many years and was the subject of a "recent refurbishment" (ie removal and reconstruction). This refurbishment was, in part, in response to deterioration from water damage and is said to have been carried out to reflect the deck's original form and configuration including maintaining original levels and the 400 mm side setback from the property's western boundary. 6 The site is subject to the provisions of Pittwater Local Environmental Plan 1992 and pursuant to this plan the subject deck would be permissible with development consent. The neighbours' concerns 7 On 23 March and 4 May 2009 the neighbours at 28 Gondola Road wrote to the council explaining that the deck and stair: Affected the privacy in their garden and sunroom, Affected their solar access, Created noise from the use of the stair, Was a potential fire hazard, Devalued their property. 8 Since the expression of these concerns, privacy screens have been installed on the deck and the stair has been relocated. The only concern pressed by the council in this regard is that involving fire safety. The proposed order and the appeal 9 On 23 March 2009 the council issued a Notice of Proposed Order, followed on 23 April 2009 by an order (Order NOT 0021/09) requiring the demolition of the deck and stairs and the sealing of door openings from the dwelling to the deck within 70 days. The above-mentioned application for a building certificate was subsequently lodged with the council.

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23 However, Part 1.3.3 provides that: "Each part of a building must be classified separately, and- (a) Classes 1a, 1b, 10a and 10b are separate classifications; and (b)... (c) Where parts have different purposes - if not more than 10% of the floor area of a Class 1 building is used for a purpose which is a different classification, the classification of Class 1 may apply to the whole building." 24 Part 1.3.3(c) does not apply here because I understand that the 10% criterion is exceeded. 25 It is thus necessary to determine the classification of the deck and the carport, the classification of the dwelling house itself not being in dispute. 26 As regards the carport, the definition of a Class 10 building includes a "...non-habitable building being a... carport..." and because the existing structure predominantly below the deck is plainly a non-habitable carport it was not in contention that it should be classified as a Class 10 building. 27 As regards the deck, according to the Statement of Facts and Contentions, the deck "... being a habitable area and attached to the dwelling is classified as Class 1a..." 28 In seeking to classify the deck I could find no definition of, or reference to, a deck in the BCA nor is there a definition of a dwelling house that might have provided some assistance. 29 Clearly the deck is an area capable of being used by the residents of the dwelling for domestic purposes. But, being unenclosed and situated outside the external walls of the dwelling, it is not a habitable room that one would otherwise find within a dwelling house. Taking these matters into account and notwithstanding that it is attached to and directly accessible from the dwelling I agree with Mr Howse that the deck should be classified as a Class 10 building, being a "…non-habitable building or structure". 30 Consequently, whilst the carport and the deck, being Class 10 structures, are not required to be protected against fire nor is there any requirement for the dwelling house to be protected from the spread of fire from them, they must, in response to Performance Requirement P2.3.1, not increase the risk of fire traveling to the Class 1 dwelling house. Hence, prima facie, with the deck and the carport being located closer to the allotment boundary than the otherwise acceptable 900 mm setback there is a theoretical increased risk of fire travelling to the dwelling house.

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Mr Howse' opinion 41 Mr Howse explained that his solution to the present situation is not a Deemed-to-Satisfy building solution but is instead an Alternative Building Solution and consequently any criticism by Mr Dover that the Deemed-to-Satisfy requirements are not met, is irrelevant. In summary he contends that "... the material of construction and proposed fire rated paint protect the carport and prevents it acting as a means by which fire would spread to the Class 1 residence". 42 More particularly and by reference to Part 1.0.4 ("A Building Solution will comply with the BCA if it satisfies the Performance Requirements") he explained that the existing carport and the deck structure comprise an Alternative Building Solution that achieves a one-hour fire rating and thus satisfies the Performance Requirement in Part 2.3.1 that the Class 1 dwelling house be protected from the spread of fire. This is achieved by the following: The entire carport structure is constructed of spotted (red) gum timber, with the ceiling inside the carport area lined with non-combustible fibre-cement sheeting. Spotted gum timber is one of only seven species tested to date, which does not require fire-retarded treatment for use in bush-fire prone areas and satisfies the criteria specified in the Australian Standard (which for construction in bush-fire prone areas is 3959). In terms of spread of fire across spotted gum timber, the same publication states that it has a ' spread of fire index of only 3 out of 10'. 43 He nevertheless acknowledged that whilst the spotted gum timber used is a hard wood and requires sustained exposure to high temperature to cause ignition, fire rated intumescent paint should be applied to achieve a minimum one-hour fire rating. Hence intumescent paint is to be applied to the carport structure (including posts and beams), to the degree necessary to achieve the necessary fire rating. Also, in response to Mr Dover's concerns, the deck's balustrade and privacy screens along the site boundary should be modified to ensure a one-hour fire rating by providing either fibre cement sheeting or by filling the gaps between the boards. Whichever of these options is chosen it should also be painted with fire rated intumescent paint that can and will achieve a one-hour fire rating for the planes of the structure which are directly exposed to the allotment boundary. 44 He also said that the intumescent paint is not, by itself, used to make the structures compliant but instead to enhance the protection already afforded by "... the inherent fire resisting qualities of the timber materials used." Moreover the reports and publications that he has provided in relation to the materials to be utilised (ie sealants and the spotted gum timber) specify their characteristics. 45 Mr Howse also said that the "unprotected openings" in the external wall of the dwelling that are of concern to Mr Dover are setback well beyond the otherwise required 900 mm setback (ie 3.35 m) from the boundary. These openings (that are not in contravention of any of the fire separation provisions of the BCA) will benefit from the one-hour fire rating of the carport and deck.

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Intumescent paint and spotted gum 46 The intumescent paint that has and will be used is a product called " Firefree 88 Fire Resistant Paint". According to the product data sheet this paint can withstand temperatures up to 1094°C and will give a one or two hour fire rating depending upon the surface to which it is to be applied. Its effectiveness is subject to it being applied in accordance with the manufacturers specifications. 47 In March 2008 the NSW Rural Five Service issued a Fast Facts document titled Intumescent Paint Systems 1/06 (Release 3). This document explains that the RFS: "... has requested testing reports and to date has not received any information to confirm that there are paints or coatings that comply with the requirements of AS 3959". And that: "As of the 1 March 2008, the RFS will not accept the application of intumescent paints to increase the fire resistance of a combustible material (timber) unless compliance with the requirements of AS 3959 can be clearly demonstrated." 48 In response to these concerns, Mr Howse asserts the effectiveness of intumescent paints and I understand that that such paints are available that comply with AS3959 (Building In A Bushfire Zone Standard). 49 According to Mr Howse the spotted or red gum timber, by reference to the Timber Development Association has a published ignition temperature of over 200°C. This is "...well beyond the range of embers and sparks that they emanate from the fire outbreak in adjoining premises." Also, in the NSW Rural Fire Service's "Development Control Note No 1 - Fire retardant treated timber" indicates that red gum timber satisfies the Level 1 and Level 2 construction requirements of the bushfire Australian Standard. Court's conclusions 50 Had the carport and deck been set back 900 mm from the allotment boundary there would have been no issue as to compliance with the BCA requirements for fire safety. Instead and as a consequence of being set back only about 400 mm from the boundary - a 500mm deficiency - the Performance Requirement for fire separation is not met. This could have been satisfied by compliance with Figure 3.7.1.4 that have requires the construction of a one-hour fire rated wall along the side of the carport opposite the allotment boundary. However the applicant has chosen not to construct such wall and, with the advice of its expert Mr Howse, has chosen to utilise an Alternative Building Solution to meet the requirements of the BCA. This solution has been described and considered in some detail by Mr Howse and Mr Dover. 51 As regards the balustrade and privacy screens these are plainly not the external walls of a dwelling and need not be treated as such. Despite this, because they are situated less than 900 mm from the allotment boundary they must, together with their supporting structures and the carport, be considered to be a threat to the dwelling house. But I accept that this threat can be overcome if they have a one-hour fire rating. 52 As for this Alternative Building Solution, I accept Mr Howse' expertise to the effect that the carport structure and the balustrade and privacy screens will, taking into account: the characteristics of the spotted/red gum timber; the intumescent paint; with the sealing of the gaps between the boards; and the ceiling inside the carport area being lined with non-combustible fibre-cement sheeting, achieve the necessary one-hour fire rating. In these circumstances and taking into account the set back of the dwelling's external wall from the allotment boundary any concerns relating to the openings in that wall are obviated. 53 In all of the circumstances I am satisfied that, subject to the changes recommended by Mr Howse and subject to appropriate conditions the deck and carport comprise an effective Alternative Solution that protects the dwelling house from the spread of fire and thus meets the requirements of the BCA. The appeal is therefore upheld and the council is directed to issue a building certificate. Orders 54 For the above reasons the orders of the Court are: 1. The appeal is upheld. 2. The council is, pursuant to 149F(3) of the Land and Environment Court Act 1979, directed to issue a building certificate for the building works described in the plans marked As Built Drawings 26 Gondola Street, North Narrabeen - Drawing Numbers: BC 01 Rev A (19/10/09) and BC 02 Rev A (16/10/09). The building certificate is to be subject to the following conditions: (i) The carport and deck structure (comprising support structures, balustrades, privacy screens and the underside of the deck/carport ceiling) must be modified as necessary to achieve a one-hour fire rating (ie an FRL of not less than 60/60/60) within 90 days from the making of these orders. (ii) As a minimum the works referred to in condition (i) above shall include the sealing of all gaps with a fire retardant material and the coating of those surfaces of the carport and deck structure that might be exposed to a the spread of fire from the allotment boundary, with intumescent paint to be applied and whenever necessary reapplied in accordance with the manufacturers requirements. All timber utilised is to be spotted gum. (iii) Expert certification of the one-hour fire rating (as referred to in condition (i) above) is to be provided by the owner of the property to the council upon completion of the above works. Such certification is to include any associated documentation (including eg the manufacturers specifications of any products used and certificates of completion of the application or installation of such products). (iv) Any products utilised (to achieve the one-hour fire rating) that have a limited effective life must be identified in the certification and before such products reach this limit they must be reapplied or replaced in a timely fashion such that the one-hour fire rating is continuously maintained. Further expert certification to this effect is to be provided to the council by the owner (at that time) of the property within 30 days of any reapplication or replacement. (v) The continuing use of the deck and carport by the present or any subsequent owner or occupier is subject to compliance with these conditions to the effect that a one-hour fire rating for these structures is maintained. 3. With the exception of Exhibit E (the plans referred to in Order 2 above), the exhibits are returned.

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Judgment (23 paragraphs)

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