Sydney City Council v Li [2011] NSWLEC 165 | Case summary

Land and Environment Court (NSW)|2011-08-24|Before: Preston CJ, Mr P

PROCEEDINGS ARE BROUGHT TO ENFORCE A FIRE SAFETY ORDER 1The Council of the City of Sydney ("the Council") brings civil proceedings to enforce compliance with an order given under item 6 of s 121B of the Environmental Planning and Assessment Act 1979 ("the EPA Act" ) to ensure or promote adequate fire safety or fire safety awareness ("the Fire Safety Order") within the premises at 193 Regent Street, Redfern. 2The Fire Safety Order was served on the owners of the premises, Mr Carlos Alberto Li and Mrs Yi Hong Chen Li. The premises comprise a two-storey building and is currently used as a fruit shop on the ground floor and a three bedroom residence on the first floor. 3Officers of the Council inspected the premises on 6 October 2009 and discovered fire safety issues. On 24 November 2009, the Council gave notice to the respondents under s 121H of the EPA Act of the intended Fire Safety Order. 4On 15 December 2009, the Council made the Fire Safety Order under s 121B item 6 and served it on the respondents. The Fire Safety Order specified the circumstances justifying the giving of the order as being: "(a) 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; (b) Maintenance or use of the premises constitutes a significant fire hazard." 5The Fire Safety Order specified the works required to be done. The works were to be undertaken in three stages:

Stage 1 within 30 days (ie by 14 January 2010);
Stage 2 within 150 days (ie by 14 May 2010); and
Stage 3 within 180 days (ie by 13 June 2010). 6All works were therefore required to be completed by 13 June 2010. After all the requirements of the order have been complied with, the respondents are required to cause a copy of the final fire safety certificate for the premises to be given to the Council. 7An inspection by the Council on 15 January 2010, one day after the due date for completion of the stage 1 works, revealed that the respondents had completed the stage 1 works, being the work required by terms 2.01 (good housekeeping), 2.02 (egress paths to be kept clear) and 2.03 (removal of storage in and around the exit stair). 8An inspection by the Council on 7 May 2010 revealed that no stage 2 works had been commenced, one week before the due date of 14 May 2010 for completion of the stage 2 works. However, an inspection on 1 June 2010, two weeks after the due date of 14 May 2010 for completion of the stage 2 works, revealed that the works in terms 1.02 (provision of balustrades to the stairwell) and 1.03 (provision of handrails to the stair) of the stage 2 works had been completed. No other stage 2 works and no stage 3 works had been commenced. 9An inspection by the Council on 26 August 2010, over two months after the due date for completion of all works, including stage 3 works, revealed that the only additional work done was that required by term 1.04 (provision of nonslip finish to stair treads) of the stage 2 works and still no stage 3 works had been commenced. 10An inspection by the Council on 19 November 2010 revealed that the only further works undertaken were those required by term 5.01 (installation of portable fire extinguishers). 11Subsequent inspections by the Council on many occasions revealed that the respondents had not carried out any further works required by the Fire Safety Order. 12The works which still needed to be done, at the date of commencement of the proceedings of 11 April 2011, can be briefly summarised as: 1.01 Provision of an egress door to Regent Street 1.05 Installation of exit signs 1.06 Preparation and implementation of fire safety and evacuation procedures 1.07 Certification of existing emergency lighting system to current standards 1.08 Certification of exit signs to current standards 1.09 Confirmation that the same tenant is occupying ground floor shop and first floor residence 1.10 Submission of final fire safety certificate 3.01 Installation of an automatic fire detection and alarm system 3.02 Installation of warning system which sounds upon activation of automatic fire detection and alarm system 3.03 Connection of automatic fire detection and alarm system to NSW Fire and Rescue via third party service provider 4.01 Sealing of wall and ceiling penetrations 4.02 Certification of fire stopping materials 4.03 Construction separating the first floor residence from the ground floor shop including installation of door to the bottom of the stairway 4.04 Certification of existing ceiling serving ground floor shop 4.05 Enclosing of cupboard located beneath stairway with fire-resistive construction and installation of fire door 4.06 Certification confirming fire resistance walls bounding 191 and 193 Regent Street

13Mr N Moujalli, a building surveyor with the Council, gave affidavit evidence on 20 May 2011 concerning the fire risk of the premises without these works having been completed: "Currently the building poses a high risk to occupants located on the first floor residence. This is due to the defective egress system that serves the first floor. In the event a fire was to occur on the ground floor during the evening, occupants from the first floor are required to use the stairway which discharges into the ground floor. The means of egress could be cut off resulting in occupants being overwhelmed by smoke or requiring occupants to travel back up the stairway, which has the potential to allow smoke to enter the stairway and spread to the first floor which may also overwhelm occupants. This assumption is based on the fact that occupants will wake up in fire and/or upon sounding of an alarm, which is not always the case. In addition given the building is terraced on both sides, to the extent that any fire in the building is not dealt with quickly, it represents a risk to the occupants of the terraced buildings on both sides (ie, Nos. 195 and 187191 Regent Street)." 14On 11 April 2011, the Council commenced these proceedings to enforce compliance with the Fire Safety Order. The respondents were served with the originating process and pleadings on 15 April 2011. 15For a time the respondents were legally represented by a solicitor. On 16 May 2011, the proceedings were listed for hearing on 14 June 2011. The respondents' solicitor appeared on that occasion. 16Subsequently, on 27 May 2011, the respondents' solicitor withdrew and the respondents became legally unrepresented.

THE HEARING OF THE PROCEEDINGS 17At the hearing on 14 June 2011, the respondents did not appear. Mr Moujalli of the Council rang one of the respondents, Mrs Li, and asked whether she or her husband would be attending Court that morning. Mrs Li said she was at the fruit market and would not be attending. She said she was "working on it". I took this to mean, working on solving the problem addressed by the Fire Safety Order. 18The hearing therefore continued in the respondents' absence. At the conclusion, the Council's solicitor, Mr Hawkes, indicated that he would be asking the Court to make additional orders to those sought in the summons involving restraining the respondents from using the upstairs area of the premises for residential purposes. As the respondents had not been given notice that the Council would be seeking these additional orders, the hearing was adjourned for two weeks until 28 June 2011 and the Council was directed by the Court to give notice to the respondents by 16 June 2011 of the intended orders sought and of the further hearing on 28 June 2011. The Council duly gave notice in writing on 14 June 2011. 19At the adjourned hearing on 28 June 2011, the Council appeared and mentioned the matter on behalf of the respondents. The Council tendered a bundle of correspondence between the Council's solicitor and the respondents and their agent, Mr Aspres. Mr Aspres is not a lawyer. He is a tenant of an unrelated property owned by the respondents where he runs a video store. The correspondence reveals that, in the intervening period, the respondents had made significant progress in complying with the terms of the Fire Safety Order. The parties agreed that the further hearing should be adjourned for a further period of six weeks to allow the works to be completed. 20The Council stated that the works undertaken have abated the immediate threat to life and that it would not be seeking orders restraining the respondents from using the upstairs area of the premises for residential purposes. 21The Council also indicated to the Court that discussions were taking place between the parties for an alternative system for detection of fire to those works required by terms 3.01, 3.02 and 3.03 of the Fire Safety Order. If the parties were able to agree on alternative works, the Council would have needed to modify the Fire Safety Order under s 121ZF of the EPA Act. 22Under these circumstances, the Court adjourned the further hearing of the proceedings until 8 August 2011 and directed the Council to advise the respondents of the adjourned hearing date. 23On 8 August 2011, the respondents appeared by their agent authorised in writing, Mr Aspres. 24The Council read a further affidavit of Mr Moujalli of 4 August 2011 which provided an update on the works done since the previous occasion the matter was before the Court. In summary, Mr Moujalli stated that the current position in relation to the terms of the Fire Safety Order was: 4.01 The work required has been completed 4.02 The work has been completed but appropriate documentary evidence is still required 4.03 Work may have been completed but appropriate documentation has not been submitted 4.04 Outstanding work is still required concerning the ceiling void and access panel 1.02 Work has been completed 1.07 & 1.08 The work may have been completed but the certificates provided do not satisfy the requirements of terms 1.07 and 1.08 and further certification is required 3.01 The certificate provided does not satisfy the terms of 3.01 as it refers to the incorrect Australian Standard.

25Mr Moujalli also gave oral evidence and was crossexamined by Mr Aspres on the current status of the work. Unfortunately Mr Aspres' crossexamination of Mr Moujalli did not conclude on 8 August 2011. The hearing therefore needed to be adjourned. Mr Aspres said he was not available for two weeks. The respondents expressed their wish for Mr Aspres to continue to act as their agent. The hearing was therefore adjourned until 22 August 2011. On that day, Mr Aspres continued his crossexamination of Mr Moujalli for most of the day. 26Mr Aspres tendered numerous documents in the respondents' case. Amongst the documents tendered were certificates of a licensed electrician in relation to exit signs, emergency lighting and smoke alarms installed at the premises. These certificates were not in accordance with the form requirements for certification in the terms of the Fire Safety Order. 27Mr Aspres read an affidavit of a builder, Mr S Housepian, dated 8 August 2011, which described works undertaken by Mr Housepian at the premises. In crossexamination on 22 August 2011, Mr Housepian said he would be prepared to give a certificate as to the satisfactory completion of the works, as required by the various terms of the Fire Safety Order. Subsequently, Mr Housepian gave a certificate certifying that the works required by terms 4.01, 4.02, 4.03 and 4.04 of the Fire Safety Order have been completed as required by those terms. 28Mr Aspres read an affidavit of one of the respondents, Ms Yi Hong Chen Li dated 8 August 2011. Mrs Li was also called to give oral evidence and was crossexamined. Mrs Li's oral evidence in chief was largely directed to providing an explanation of the reasons for the delay in complying with the Fire Safety Order, the hardships she has suffered and the costs she has incurred in trying to comply with the Fire Safety Order. In crossexamination, Mrs Li said she would complete the works outstanding under the Fire Safety Order within four months.

BREACH OF THE FIRE SAFETY ORDER IS ESTABLISHED 29The evidence of Mr Moujalli is that the respondents did not complete the works required by the terms of the Fire Safety Order (other than by the terms 1.02, 1.03, 2.01, 2.02 and 2.03) within the periods specified in the Fire Safety Order. The respondents did not adduce evidence to the contrary. The respondents sought instead to explain the reasons for the respondents not being able to comply with the Fire Safety Order within the periods specified. 30A breach of an order issued under s 121B of the EPA Act is a breach of the EPA Act . Section 122(a)(i) and (b)(v) of the EPA Act make a failure to comply with an order under Div 2A of Pt 4 of the Act (in which Division s 121B occurs) a breach of the EPA Act . 31Accordingly, I find the respondents have breached the EPA Act by failing to comply with the Fire Safety Order.

THE BREACH OF THE FIRE SAFETY ORDER CONTINUES 32The breach of the Fire Safety Order and hence the EPA Act has continued after the date specified for completion of all works under the Fire Safety Order. Although the respondents have completed some of the terms of the Fire Safety Order that were outstanding, they have not completed many other terms. One term, term 4.05, the Council accepts, need not be completed as the storage cupboards under the stairs have been sealed permanently. 33As at the close of the evidence at the hearing, Mr Moujalli's evidence is that the completion status of the terms of the Fire Safety Order is as follows: Term Number Requirement Status 1.01 Egress door to Regent Street Not completed 1.02 Provision of balustrades Completed 1.03 Provision of handrails Completed 1.04 Nonslip finish to stair treads Completed 1.05 Exit signs Completed 1.06 Fire safety and evacuation procedures Not commenced 1.07 Emergency lighting certification Not completed 1.08 Exit sign certification Not completed 1.09 One tenant for building Completed 1.10 Fire safety audit/final fire safety certificate Not commenced 2.01 Good housekeeping Completed 2.02 Egress paths to be kept clear Completed 2.03 Removal of storage in and around the exit stair Completed 3.01 Fire detection system Not completed 3.02 Building occupant warning system Not completed 3.03 Fire alarm monitoring system Not completed 4.01 Wall and ceiling penetrations Completed 4.02 Evidence of fire stopping material Completed 4.03 Separation of shop and unit Completed 4.04 Certification of existing ceilings Completed 4.05 Storage cupboards under stairs Not required to be completed 4.06 External walls Not completed 5.01 Portable fire extinguishers Completed

34Mr Aspres submitted that the respondents had complied with terms 1.01, 1.07, 1.08 and 3.01. 35With respect to term 1.01, Mr Aspres yesterday submitted that the existing roller shutter door on the ground floor providing egress to Regent Street in fact complied with term 1.01. Term 1.01 provides: "That an egress door to Regent Street complying with the requirements of D2.19 and D2.20 shall be provided. The door shall not encroach on the public way and be openable by a single handed downward action or pushing action in accordance with the requirements of D2.21 of the BCA; (Details should be submitted for approval as part of Stage 2 works. Work to be completed as part of Stage 3)." 36Mr Aspres submitted that D2.19 of the Building Code of Australia (BCA) permitted a roller shutter door. D2.19 of the BCA provides, so far as is relevant that: "(b) A doorway serving as a required exit or forming part of a required exit ... (ii) must not be fitted with a roller shutter or tilt-up door unless - (A) it serves a class 6, 7 or 8 building or part with a floor area not more than 200m 2 ; and (B) the doorway is the only required exit from the building or part; and (C) it is held in the open position while the building or part is lawfully occupied ..." 37Mr Aspres submitted that part of the premises is a class 6 building (the fruit shop on the ground floor), this part of the building has a floor area of not more than 200 square metres in area and hence the roller shutter on the ground floor of the premises is permitted. However, today Mr Aspres withdrew that submission. He said he had misread D2.19 of the BCA. The reference to floor area in D2.19 is actually a reference to the floor area of the whole building and not just to the class 6 part of the building. The premises as a whole has a floor area of more 200 square metres. Accordingly, the exception for roller shutters does not apply. 38Mr Aspres today said he had instructions from the respondents that they now agree to comply with term 1.01 of the Fire Safety Order and would install an egress door in the roller shutter. 39In relation to terms 1.07 and 1.08, the Council accepted that the works required, in terms of providing emergency lighting and exit signs, may have been provided but that the certification requirements had not been satisfied. Mr Aspres submitted that the certificates provided by Mr Guo Cai Zeng, tendered as Exhibit 10, satisfied the certification requirements. I disagree. The certificates do not state that the emergency lighting system has been installed and that all of the exit signs have been designed and installed in accordance with the requirements of Part E4 of the BCA, as required by each of terms 1.07 and 1.08. Further certificates need to be issued. Assuming the emergency lighting system and exit signs do in fact comply with the requirements of Part E4 of the BCA, issuing new certificates can be readily achieved. 40In relation to term 3.01, Mr Moujalli's evidence is that, although eight smoke detectors have been installed in accordance with the requirements of Australian Standard and specification E2.2a of the BCA, there are still other items required to be installed before there can be said to be an automatic smoke detention and alarm system complying with the requirements specified in term 3.01 of the Fire Safety Order. In particular, the respondents have not installed a fire indicator panel, an external strobe light or a manual call point and there is no zone block plan. Accordingly, the works required by term 3.01, although commenced, have not been completed. 41Mr Aspres submitted that these additional items are not required to be installed under term 3.01. Mr Aspres also submitted that the certificate of Mr Guo Cai Zeng of 19 August 2011, tendered as Exhibit 17, is sufficient to demonstrate compliance with term 3.01 of the Fire Safety Order. 42I accept the Council's evidence and submission that the works required by term 3.01 have not yet been completed and further items may need to be installed. Mr Aspres endeavoured to establish that further items did not need to be installed by reference to specification E2.2a of the BCA. However, Mr Aspres did not have any evidence that application of the requirements of specification E2.2a of the BCA to the respondents' premises did not require any further works to be installed in order to comply. 43As I have said, the evidence of Mr Moujalli is to the contrary. The only evidence of the respondents is the certificate of Mr Guo Cai Zeng of 19 August 2011. However, that certificate does not say that there has been installed an automatic smoke detection and alarm system, only eight smoke detectors, or that such a system complies with specification E2.2a of the BCA, only that the installation of the smoke detectors complies with cl 2.2a of the BCA, which is a different provision to specification E2.2a of the BCA. 44I am not able to find on the evidence that the respondents have complied with term 3.01 of the Fire Safety Order. The respondents will need to comply in the future, including obtaining a new certificate certifying compliance with term 3.01. 45I note the Council's evidence is that if the respondents do undertake and complete the work specified in term 3.01, this should also result in the respondents complying with the requirements of term 3.02 of the Fire Safety Order. 46In summary, I find the respondents are still in breach of terms 1.01, 1.06, 1.07, 1.08, 1.10, 3.01, 3.02, 3.03 and 4.06 of the Fire Safety Order and hence the EPA Act.

ORDERS TO REMEDY OR RESTRAIN THE BREACH 47Where the Court is satisfied that a breach of the EPA Act has been committed, or that a breach of the EPA 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: s 124(1) of the EPA Act. The Court also has the powers of the Supreme Court to enforce obligations imposed by the EPA Act and to make declarations of right in relation to any such obligation: s 20(2)(a), (c) of the Land and Environment Court Act 1979 . 48The Council submits that the Court should make a declaration that the respondents breached the Fire Safety Order and the EPA Act and order that the respondents undertake and complete the outstanding work specified in the Fire Safety Order. The Council originally specified a time period of three months, but was prepared to extend the period to four months on the basis of the evidence of Mrs Li, in order to complete the outstanding works. 49Mr Aspres accepted that it would be appropriate for the Court to order the respondents to undertake and complete the work specified in terms 1.06, 1.07 and 1.08 (if the Court found that further certification was required), 1.10 and 4.06 of the Fire Safety Order. 50As I have noted, Mr Aspres contested that the work specified in terms 1.01 and 3.01 needed to be undertaken. I have found that they do need to be undertaken as the existing roller shutter does not comply with the requirements of term 1.01 and the smoke detectors installed are insufficient to constitute an automatic smoke detection and alarm system complying with the requirements of term 3.01. It is appropriate to order that the work specified in terms 1.01 and 3.01 be undertaken. If the work specified in term 3.01 is undertaken and completed, the respondents should also comply with the requirements of term 3.02 of the Fire Safety Order. 51Mr Aspres contested the need to comply with term 3.03 which provides: "That the automatic fire detection and alarm system shall be caused to be connected to a fire alarm monitoring system connected to an approved automatic fire alarm service provider in accordance with AS 1670.3-1994; (Work to be completed as part of Stage 2)." 52In essence, the reasons Mr Aspres submits the Court would not enforce compliance with term 3.03 are:

in his view, there is no requirement in the BCA to require such a fire alarm monitoring system to be installed for ordinary class 2 residential premises and as these premises have a residence on the first floor (although this is classified as class 4) no different requirements should be imposed;
the installation of an automatic smoke detection and alarm system under term 3.01 and a building occupant warning system under term 3.02 of the s 121B order will provide adequate protection in the event of fire;
the building, as modified by the works required under the Fire Safety Order, will provide adequate protection in the event of fire, including appropriate fire resistant walls and ceilings;
there are two fixed telephone and facsimile lines in the residence on the first floor and each of the occupants (who are members of the respondents' family) have mobile telephones so that calls for assistance in the event of fire can be made;
the fire, police and ambulance stations are close by and it takes no longer than about ninety seconds to drive from outside those stations to outside the premises at 193 Regent Street; and
there are windows on the first floor, with bars that can be opened, allowing egress onto the roof at the rear or an awning at the front of the premises in the event of fire. 53Mr Aspres also submitted that the Court should not enforce term 3.03 of the Fire Safety Order so as to allow the respondents to apply for leave to appeal out of time under s 121ZK against the Fire Safety Order and in particular term 3.03 and also to apply to the Minister to request him to modify the Fire Safety Order under s 121ZH, in particular to delete term 3.03. No such applications have yet been made. 54I do not agree with Mr Aspres' submission. The evidence of Mr Moujalli is that all of the works, including the work specified in term 3.03 of the Fire Safety Order, are required to be undertaken to achieve adequate fire safety for the premises and the occupants. The factors referred to by Mr Aspres were taken into account but the conclusion is that the fire alarm monitoring system under term 3.03 is still required. 55The comparison with a class 2 residence is not apt. The premises involve a class 4 residence discharging through a class 6 fruit shop. The travel distance from the stairs from the first floor residence, in their existing configuration, to the required exit on Regent Street is longer than the required distance. The provision of a fire alarm monitoring system compensates by providing for early response by the fire brigade. 56The class 6 part of the building involves a kitchen, a cool room with potentially toxic materials, and storage of potentially flammable materials in the fruit shop on the ground floor. This provides a distinction from a purely residential building. 57The works required by term 3.03 are not onerous or unduly costly. They involve installation of a monitoring box as part of the automatic fire detection alarm system (about $450), monitoring fees ($1,500-$2000 per year) and, if there is a false alarm, an attendance fee to the fire brigade of about $500. The undertaking of these works will therefore not involve financial hardship. 58In circumstances where there are fire safety reasons to require the installation of the fire alarm monitoring system, I do not consider I should defer making an otherwise appropriate order requiring installation of such a system because the respondents might in the future make application either to the Court or to the Minister to modify the order under s 121ZK or s 121ZH. The application to the Court to extend the time for leave to appeal under s 121ZK of the EPA Act does not have reasonable prospects of success because the time for appeal is fixed at 28 days by s 121ZK(3) and the Court is not given power to extend the time. 59There is also no certainty or even likelihood that the Minister would determine to modify the Fire Safety Order to delete term 3.03. Section 121ZI limits the Minister's power to modify a Fire Safety Order under s 121ZH. The Minister must not take action to modify a Fire Safety Order unless the Minister is of the opinion that: "(a) it is necessary because of an emergency, or (b) it is necessary because of the existence or reasonable likelihood of a serious risk to health or safety, or (c) the order relates to a matter of State or regional significance, or (d) the order relates to a matter in which the intervention of the Minister is necessary in the public interest." 60Consideration of each of these matters suggests that it is unlikely that the Minister would be able to form the requisite opinion in the circumstances of this case that his intervention is required to modify the Order. 61In conclusion, I find it is appropriate to order the respondents to undertake and complete each of the outstanding works required by the Fire Safety Order. The period of time of four months is a reasonable period. Mr Aspres submitted that a lesser period of time of one month could be stipulated as the works could be done in that time, however, having regard to the history of this matter, a longer period should be allowed so as to ensure the works are completed in accordance with the Order. 62In assessing the reasonableness of the time period for compliance, it should be borne in mind that the Fire Safety Order was made back on 15 December 2009 and required all works to be completed by 13 June 2010. The proceedings seeking to enforce the Fire Safety Order were commenced on 11 April 2011. The respondents have had ample notice and time to undertake the works. More recently, Mr Aspres stated in an email to the Council in support of an application for adjournment of the hearing that the works would be completed within six weeks ie. by mid August 2011. While some works were done the balance was not completed. 63I consider a further period of four months to be adequate to complete the outstanding works. If unforeseen problems are encountered, the respondents can apply to the Court for an extension of time pursuant to the liberty to apply to vary the Court's order that I propose to grant.

COSTS OF THE PROCEEDINGS 64These are civil enforcement proceedings in Class 4 of the Court's jurisdiction. The usual cost order for these types of proceedings are that costs follow the event, that is to say, that the unsuccessful party should pay the successful party's costs of the proceedings. The Council submits that it has been successful in the proceedings by establishing the respondents' breach and obtaining declarations and injunctive relief. The Council submits there is no disentitling conduct of the Council. 65The Council applies for costs in the fixed sum of $8,935.00. This amount of costs is based upon an itemised schedule comprising $7,840.00 in-house legal costs and disbursements of $1,095.00 (including the filing fee of the proceedings). The in-house legal costs comprise the solicitor's costs at a charge out rate of $280 per hour for preparation of the originating process and pleadings, preparation and settling of affidavits and other evidence, case preparation and attendances at court at interlocutory and final hearings. The costs have been discounted in terms of time spent and hearing time (in particular, the Council only sought costs for half a day of hearing rather than the last two and a half days of the hearing). The amount, the Council submits, is reasonable. 66The Council submitted it is appropriate in the circumstances for the Court to order costs in the specified gross sum instead of assessed costs, under the Court's power in s 98(4)(c) of the Civil Procedure Act 2005. 67Mr Aspres opposed the making of a cost order against the respondents. One basis was that the Council had failed to respond to the respondents' application for the Council to modify the Fire Safety Order under s 121ZF of the EPA Act to extend the time period for compliance. Mr Aspres submitted that if the Council had modified the Fire Safety Order to extend the time for compliance the respondents would no longer have been in breach of the Fire Safety Order. Hence, the Council would not have needed to bring these proceedings to remedy the respondents' breach of the Fire Safety Order. Hence, Mr Aspres submits, the Council's conduct in failing to modify the Fire Safety Order to extend the time for compliance constitutes disentitling conduct. 68Alternatively, Mr Aspres submits that if the Fire Safety Order had been modified in June 2011, then this final hearing would have been avoided. 69I disagree. First, the respondents did not apply to the Council for it to modify the Fire Safety Order until after the Council commenced these proceedings on 11 April 2011. Mr Aspres emailed Mr Moujalli of the Council on 23 June 2011 requesting an extension of three months but only in respect of one item of the Order, term 1.01 (Exhibit E). The next day, 24 June 2011, Mr Aspres emailed the CEO of the Council requesting a general extension of three months "to finalise certain components of the Fire Order" (Exhibit 4). 70As I have noted earlier, at the hearing on 28 June 2011, the email of Mr Aspres was tendered in which Mr Aspres agreed with the Council's suggested adjournment of the hearing for six weeks to complete the works under the Fire Safety Order. On 26 July 2011, Mrs Li emailed Mr Moujalli at the Council requesting "six weeks extension time to continue finish 193 Regent Street, Redfern fire rating matters" (Exhibit 5). All of these requests are after the Council had commenced the proceedings. The Council's alleged failure to agree to these requests to modify the s 121B order made after commencement of proceedings cannot amount to disentitling conduct before the commencement of the proceedings. 71Secondly, the respondents had failed to comply with the Fire Safety Order for an extended period of time. The respondents were required to have completed all works under the Fire Safety Order by 13 June 2010. The Council did not commence the proceedings until 11 April 2011. The Council was not precipitous in commencing the proceedings immediately after the period for compliance under the Fire Safety Order had expired. It allowed a considerable period of grace before commencing the proceedings. 72Thirdly, the Council gave notice before action to the respondents of both the respondents' breach of the Fire Safety Order and of the Council's intention to commence proceedings to enforce the Fire Safety Order. The Council first gave notice by letter dated 27 August 2010. The Council communicated with the respondents and their various consultants, subsequently extending the time for preparation of a schedule of works and for completion of outstanding items, from time to time in these communications. The Council even proposed (on 12 January 2011) a draft modification of the s 121B order in response to the modified works that had been proposed by the respondents' then consultant, Mr Bloom of NSW Fire Compliance. However, the respondents did not agree to the proposed modification, as they were required to do under s 121ZF of the EPA Act, hence the Council had no power to modify the Fire Safety Order. 73On 30 March 2011, in response to the respondents' request, Mr Moujalli of the Council emailed Mrs Li and a new architectural consultant further copies of the Fire Safety Orders issued by the Council for various properties in Regent Street, including the draft modified Fire Safety Order for 193 Regent Street which had not been accepted by the respondents. The Council only commenced the proceedings on 11 April 2011, serving the originating process and pleadings on the respondents on 15 April 2011. This chronology shows that the respondents had adequate notice of the breach of the Fire Safety Order and the Council's intention to commence proceedings to enforce compliance with the order. 74Fourthly, the respondents, through their agent Mr Aspres, have continued to contest the terms of the Fire Safety Order. The respondents have not agreed to do all of the works required under the Fire Safety Order. Hence, merely extending the time for compliance with the Fire Safety Order would not have resolved the dispute between the parties. 75Mr Aspres also submitted that costs should not be awarded against the respondents because the respondents had attempted to comply with the Fire Safety Order but were thwarted by inappropriate professional advice, the costs they had incurred and personal hardship. However, the purpose of an order for costs in favour of a successful party in civil litigation is to compensate that party, not to punish the unsuccessful party. Whatever were the reasons for the respondents being unable to comply with the Fire Safety Order, the fact remains they were in breach and that breach had fire safety risk consequences. It was entirely appropriate that the Council commence proceedings to remedy the breach and hence alleviate the fire safety risk. The Council has been successful in doing so and should be compensated for the cost of doing so. 76I consider it is appropriate in the circumstances to order costs in a fixed sum. The amount sought by the Council of $8,935.00 is reasonable. It involved a number of discounts, including of the hearing time.

ORDERS 77The Court:

Declares that the respondents have failed to comply with the terms of an order dated 15 December 2009 given pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (the s 121B order) relating to premises known as 193 Regent Street, Redfern, New South Wales and served on the respondents by the applicant by failing to complete the specified works (other than the works comprised in terms 1.02, 1.03, 2.01, 2.02 and 2.03 of the s 121B order) within the specified periods for compliance.
Orders the respondents to undertake and complete the works (other than the works comprised in terms 1.02, 1.03, 1.04, 1.05, 1.09, 2.01, 2.02, 2.03, 4.01, 4.02, 4.03, 4.04 and 5.01 of the s 121B order which have already been undertaken and in term 4.05 which is not required to be completed) specified in the s 121B order within sixteen weeks from the date of this Court order.
Grants the parties liberty to apply on five days notice for any further or other orders (including orders for revoking, varying, supplementing or replacing these orders in whole or part) upon sufficient cause being shown.
Orders the respondents to pay the applicant's costs of the proceedings in the sum of $8,935.00.

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: 15 September 2011

Sydney City Council v Li

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