Fardous and Saab Pty Ltd v Georges River Council [2023] NSWLEC 1404

Fardous and Saab Pty Ltd v Georges River Council [2023] NSWLEC 1404

The Court upheld the appeal and modified the Fire Safety Order because the parties and BCA experts agreed that many requirements had been complied with, should be deleted, or should be amended, and the remaining works and certifications could be addressed through the modified order. In relation to external walls, the Court accepted the Applicant's submission that the relevant statutory power concerned present inadequacy of fire safety, not speculative future changes, and was satisfied the amended item 2.01 was appropriate.

Jurisdiction
Australia
Judgment Date
27 July 2023
Procedural Posture
Class 1 Appeal Against a Development Control (fire Safety) Order / Principal Judgment; Final Orders
Outcome
Appeal upheld; Development Control (Fire Safety) Order modified in accordance with Annexure A; exhibits retained.
Legal Topics
['development Control (fire Safety) Order' 'modification of Development Control Order' 'fire Safety Measures' 'building Code of Australia Compliance']
['planning and Environment Law' 'building and Fire Safety Compliance'] ['development Control (fire Safety) Order' 'modification of Development Control Order' 'fire Safety Measures' 'building Code of Australia Compliance']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Class 1 Appeal Against a Development Control (fire Safety) Order / Principal Judgment; Final Orders

Legal Issues

  1. 1 ['Whether the Development Control (Fire Safety) Order should be revoked, modified, substituted, found complied with, or otherwise dealt with under s 8.18(4) of the Environmental Planning and Assessment Act 1979.' 'Whether the fire safety works and certifications required by the Fire Safety Order remained necessary or had been completed or agreed to be modified.' 'Whether item 2.01 concerning external walls should require upgrading beyond what was presently necessary for adequate fire safety.']

Ratio Decidendi

The Court upheld the appeal and modified the Fire Safety Order because the parties and BCA experts agreed that many requirements had been complied with, should be deleted, or should be amended, and the remaining works and certifications could be addressed through the modified order. In relation to external walls, the Court accepted the Applicant's submission that the relevant statutory power concerned present inadequacy of fire safety, not speculative future changes, and was satisfied the amended item 2.01 was appropriate.

Court Disposition

Appeal upheld; Development Control (Fire Safety) Order modified in accordance with Annexure A; exhibits retained.

Orders

  • ['The appeal is upheld.' 'Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control (Fire Safety) Order made under Div 9.3 and Sch 5, Pt 2 (Order 1) of the Environmental Planning and Assessment Act 1979 dated 5 September 2022 in respect of the property contained in Lot...