The Owners Corporation of Strata Plan 62254 v Rockdale City Council

The Owners Corporation of Strata Plan 62254 v Rockdale City Council - [2008] NSWSC 392 - NSWSC 2008 case summary — Zoe

[11]

18 During the approval process, the Council retained an independent town-planning consultant, Robert Chambers of Briggs Brindle & Chambers, to assist with its assessment of the application and assist with the drafting of conditions of approval pertaining to the development. The consultant prepared a draft set of conditions which included a condition requiring compliance with Part E 1 of the BCA, adding a note to the following effect: "This will require the sprinklering of the entire building and provision of additional essential services as it exceeds 25 m in the effective height as defined by the Building Code of Australia. Alternatively, reduce the effective height to under 25 m" [letter from Briggs Brindle and Chambers] 19 An initial assessment of a development application approved on 2 October 1996 by the relevant officer of the Council, expressly noted that the building appeared to be in excess of 25 metres with a sprinkler system required. This assessment is to be found on page 5 of the letter from the Council to the developer of 20 August 1996 which includes the following: "It appears that the building height exceeds an effective height of 25 metres. In this regard, the whole building is to be provided with a suitable sprinkler system in accordance with clause E15 of the Building Code of Australia " 20 Condition 73(j) of the Development Approval required the applicant to comply with Part E1 of the BCA. While it was not expressly stated on the Development Approval, a key element of compliance with Part E1 of the BCA was the calculation of the effective height of the building. Part E.1.5 provided that buildings with an effective height of more than 25 metres were required to include, inter alia, a suitable sprinkler system, as well as other fire safety systems. The third development application - DA 31/97 21 At some point around about the end of 1996 there was an amendment to the local environment plan which meant that development consents that had been granted became void: hence the developer had to effectively relodge the application. A further Development Application (DA 31/97) was lodged with RCC in January 1997 and approved by RCC on 4 June 1997. Council's records state that the later application was 'identical in form and substance to that which had been earlier approved'. 22 It was also a term and condition of the development approval relating to DA 31/97, being Condition 71(j), that the building comply with Part E1 of the BCA with respect to (inter alia) fire safety. Again, the DA conditions contained no express notation as to the draft Conditions of Consent (drafted by Robert Chambers) in relation to DA 226/96 that made explicitly clear that compliance with Part E1 of the BCA would require the sprinklering of the entire building. Building Application 390/97 23 On 27 June 1997 a Building Application was lodged for the residential component of the building. This BA, known as "BA 390/97" was approved on 25 July 1997. 24 Plans dated June 1997, and received by the Council on either 15 or 25 July 1997 [Ex JPD4 E], purport to show that the building has an "effective height" of 24.995m. This was marked on the building plans. In fact, as the Council admits, by reference to the BCA definition, the effective height on the approved plans was in fact greater than 25 metres. This was due, at least in part, to the fact that the effective height recorded on the plans was calculated from the floor of the top story to a level representing the top of a set of fire stairs, rather than, as required, from the floor of the top story to the floor of the lowest story providing direct egress to a road or open space. 25 Despite the advice it had received from Robert Chambers in August 1996 to the contrary, the Council, in approving the Building Application, imposed no condition on the developer to install any sprinkler system and provided no reason as to why no such condition was imposed. The inference to be drawn is that RCC either did not direct its mind to the issue at all, or that it (mistakenly) considered that the effective height of the building was less than 25 metres [Rockdale City Council Building Approval dated 25 July 1997].

[134]

"In relation to the effective height of the building as defined by the Building Code of Australia, I can advise that giving consideration to Council's methodology with respect to the determination of the original application the building with a landing level to the stairs of rl 6.926 and a top floor level of RL 31.921 will be considered to be below 25 m" [PX 197] 72 The Council squarely contends that because of the earlier history in which it was not obliged to check the developers estimate of height of the building and did not do so, this inception problem permeated throughout the whole of the various stages and approvals up to and including the issue of the final occupation certificates. The proposition is that in those circumstances, the Council, having not been under a statutory obligation to check the effective height of the building, came under no common law duty to do so. 73 The finding is that the Council by its conduct placed itself in such a position that it attracted a duty of care which called for the taking of special care in this area. It was relevantly in control of the structure. This was a relationship which gave rise to a common law duty of care because the Council, by a practice generally dictated by statute upon which other persons came to rely, created a self-imposed duty to take positive action to protect the safety and interests of persons such as those whom the body corporate represent. Any examination of the degree and nature of control exercised by the Council over the risk of harm with which these proceedings are concerned, yields the conclusion that those who would come to dwell in the building had a high degree of vulnerability and depended upon the proper exercise by the Council of its powers. 74 At the end of day the Council clearly issued the final certificates " that the building is suitable for occupation or use", which certificates qua the provision of a suitable sprinkler system [cf clause E 15 of the BCA] were simply incorrect. Enough had occurred between the lodging and approval of the original development application and the issue of these certificates, to have alerted the Council to the need for particular and special care to be taken with respect to what was the effective height of the building. The mezzanine issue was itself calculated to alert the Council to precisely that issue. But even were this not the case, the earlier history and the final occupation certificate issue combined to have alerted the Council to the need to take special care to comply with the need to ensure compliance with the additional fire requirements necessary for a building with an effective height of in excess of 25 metres. Proportionate liability 75 While submissions were initially made with regard to proportionate liability, ultimately on a close examination of the relevant statutory provisions both parties conceded that that was not something which was an issue in these present proceedings. The plaintiff's standing 76 As a final procedural matter, the Court notes that the plaintiff has standing to represent the owners of the building in proceedings in which the owners are jointly entitled to bring proceedings, and which relate to common property. This right derives from the Strata Schemes Management Act 1996 (NSW) s 227:

[139]

(4) A contribution required to be made by an owner of a lot to another owner in relation to such a judgment debt is to bear the same proportion to the judgment debt as the unit entitlement of the contributing owner bears to the aggregate unit entitlement. 77 The alleged defects in the approved fire safety services affect the common property. I note that s 227(3) protects the defendant from any later claim being brought by any of the individual lot holders in the event that any judgment received by the plaintiff is not spent on the appropriate rectification works. Damages 78 The Council has contended that, even if the relevant duty is found and breach is established, the plaintiff has not been able to show that it has suffered any loss. The Court need go no further than to find that the plaintiff has suffered loss. In that event, the proceedings will be referred out for the purpose of determination of the quantum of that loss. 79 In my view the plaintiff has crossed the barrier and shown that the non-compliant circumstances which prevail qua the fire safety systems are likely to require some real form of expenditure. In the circumstances where the quantum issue in its entirety is to be referred out, it is inappropriate for the Court to go beyond this finding presently. The concurrence of the New South Wales Fire Brigade in terms of what is or is not to be required will likely have to be obtained. The Senior Fire Safety Officer of the Council in his report of April 2003 made reference to any rectification issues requiring to be handled through a Notice of Proposed Order and subsequent Order (6) (Fire Safety) under the provisions of the EP&A Act 1979 [Exhibit EX at 336]. 80 One further feature of the current position should also been mentioned. This is that, by letter of 9 September 2003 from the Council to the Owners Corporation, the Council required that the Owners Corporation not commence any major fire safety upgrading works. This is a curious world where the Council retains the power to order such works if it deems it appropriate to do so: yet defends these proceedings relying inter alia upon the proposition that it has never so ordered. Its forensic interest is obvious. Its inability to bind the exercise of its discretion into the future is also obvious. Indeed I am somewhat surprised that, holding in its power the entitlement to order such works if that was appropriate, nonetheless it contends that a finding of no loss is requisite. Short minutes of order 81 The parties are to bring in short minutes of order which are to include the order for the reference out, on which occasion costs will be dealt with. ************

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