Aryzta Australia Pty Ltd v Liverpool City Council [2020] NSWLEC 1632

Land and Environment Court New South Wales

Medium Neutral Citation: Aryzta Australia Pty Ltd v Liverpool City Council [2020] NSWLEC 1632 Hearing dates: Conciliation conference on 27 November 2020 Date of orders: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The appeal is upheld. (2) The Developmental Control Order in Annexure A to this agreement is substituted for the Development Control Order given by the Respondent to the Applicant on 24 July 2019. Catchwords: DEVELOPMENT CONTROL ORDERS – fire safety – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Texts Cited: Australian Standard AS 2118.1-2017 Automatic fire sprinkler systems general systems Building Code of Australia Category: Principal judgment Parties: Aryzta Australia Pty Ltd ACN 100106107 (Applicant) Liverpool City Council (Respondent) Representation: Counsel: G Castellan (Solicitor) (Applicant) L Steer (Solicitor) (Respondent)

Solicitors: GLC Legal (Applicant) Liverpool City Council (Respondent) File Number(s): 2019/246340 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against a Development Control Order made by the Liverpool City Council (hereafter the Council) as it relates to the provision of fire safety to an existing building on Lot 1 DP 1088280, also known as 14 Homepride Avenue, Warwick Farm (hereafter the site). 2. The Council issued the Development Control Order (the Order), pursuant to s 9.32(1)(a)(b) and Schedule 5, Part 2 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 24 July 2019 for non-compliance with an existing condition (4) of a current consent (DA 427/2012) to provide protection to persons from fire. The Order requires compliance works consistent with the approved consent, identified as No. 1 in Schedule 5, Part 2 of the EPA Act. 3. This Class 1 appeal is made under s 8.18 of the EPA Act against the Order relating to the site. 4. The Court agreed to the parties' request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 27 November 2020 by MS Teams. No objectors were heard at the conciliation regarding the works the subject of the order, although the parties have provided written submissions from Fire and Rescue NSW, whom undertook the initial inspection that initiated the action to issue the Order, pursuant to s 9.32(2) of the EPA Act. 5. Based on the Order, as substituted, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The fire safety measures, the substituted Order, is agreed by the parties as being in accordance with the conditions of DA 427/2012, and which recognise the works already undertaken in compliance with the initial submission of Fire and Rescue NSW. The parties agree that based on the existing and proposed works, the Court has the power to substitute the Order, as sought by the parties, pursuant to s 8.18(4)(c) of the EPA Act. 6. The parties agree that the contentions of Council are resolved. The parties have also considered the issues raised by Fire and Rescue NSW, and agree they are now resolved. The decision of the parties is for the Court to substitute the (Development Control) Order, pursuant to s 8.18(4)(c) of the EPA Act. The parties agree that the terms of the Order are capable of being complied within the time frame identified. The parties accept that the time frame has been extended (as described in the Order) so that the applicant can ensure capacity is available in the proposed system, and agree that any risk to persons due to the different timeframe is mitigated by the existing works already undertaken on the site. 7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 8.18(4)(c) of the EPA Act, to substitute the Order, as described in Annexure 'A'. 8. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, as consistency with the: Building Code of Australia (BCA); and Australian Standard: AS 2118.1-2017 Automatic fire sprinkler systems general systems (AS 2118.1-2017). 9. The parties agree that the relevant requirements of the BCA and AS 2118.1-2017 are, or capable to be, satisfied by the proposed terms of the substituted Order. Specifically, the requirements for the extension of the sprinkler system are addressed to their satisfaction. 10. By the substituting of the Order, the parties agree that the relevant requirements of Fire and Rescue NSW, as required under s 9.32 of the EPA Act, are satisfied and that the Court should not be constrained to substitute the orders as agreed. 11. The amended terms of the Order have been considered in the context of the site and other relevant legislative provisions. The parties agree that the contentions raised by Council and all jurisdictional requirements are resolved as required, to the satisfaction of the parties and the Court. 12. Based on the information before me, as provided by the parties in the conciliation, I am satisfied that there are no jurisdictional impediments to the substitution of the Order, pursuant to s 9.34(1)(b) of the EPA Act. 13. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 14. The Court orders: 1. The appeal is upheld. 2. The Developmental Control Order in Annexure A to this agreement is substituted for the Development Control Order given by the Respondent to the Applicant on 24 July 2019.

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Sarah Bish

Commissioner of the Court Annexure A (306157, 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: 15 December 2020