The case of Brisbane City Council v Erlbaum  QPEC 46
concerned an appeal against the Building and Development Dispute Resolution Committee's decision about the validity of an enforcement notice issued by the Brisbane City Council.
The council issued an enforcement notice for a building that did not have the fire separation measures required for a building of its class. The council did not give a show cause notice before giving the enforcement notice.
Michael and Erez Erlbaum, the owners of the building, appealed to the Committee against the council's decision to issue the enforcement notice without first giving a show cause notice, and the Committee set aside the enforcement notice. The council then appealed to the Queensland Planning and Environment Court.
The main issue in dispute was whether the Committee had made an error of law in deciding that the lack of fire separation measures was not "dangerous" and therefore did not justify the council's decision to issue the enforcement notice without first giving a show cause notice.
The court found that the Committee had made an error of law by relying on the Queensland Building Work Enforcement Guidelines 2002
and the presence of smoke alarms in the building to make its decision. The Court allowed the appeal and remitted the matter back to the Committee to re-determine the matter according to law.
The Committee found that the building did not comply with the BCA in relation to fire safety for class 2 buildings but nonetheless set aside the enforcement notice as it was not so dangerous which warranted the giving of an enforcement notice without a show cause notice
Mr and Mrs Erlbaum built additions to the building that they owned, which was a dwelling house, resulting in three discrete living areas within the building. There had been a longstanding dispute between the council and Mr and Mrs Erlbaum in relation to the building.
In 2013, the council issued an enforcement notice relating to fire safety, including the lack of fire separation between the independent living areas. However, the council did not first give a show cause notice.
Under section 248(4)
of the Building Act 1975
, the council may give an enforcement notice without first giving a show cause notice where the matter that the enforcement notice relates to is of a dangerous or minor nature.
In that instance, the Committee set aside the enforcement notice but required Mr and Mrs Erlbaum to make an application to change the Building Code of Australia classification of the building from class 1a (detached house) to class 2 (2 or more occupancy units each being a separate dwelling). The Committee found that the building did not comply with the Building Code of Australia in respect of fire safety for class 2 buildings. However, it was not "dangerous" for the purpose of justifying the council's decision to give an enforcement notice without first giving a show cause notice.
The Committee did not consider the building to be dangerous given the presence of individual smoke alarms in the building and set aside the further enforcement notice given by the council which was given in the absence of a show cause notice
In 2014, the council issued another enforcement notice relating to fire safety, similar to the one issued in 2013. Again, the council did not give a show cause notice as it held the view that the building was dangerous due to the inadequacy of fire separation measures.
The Committee set aside the enforcement notice, maintaining its earlier view that the building was not dangerous.
In its consideration of whether the building was dangerous as a result of the lack of fire separation measures between the separate dwellings, the Committee observed that the word "dangerous" was not defined for the purposes of section 248 of the Building Act 1975 and it was to be interpreted according to its ordinary meaning.
Nonetheless, the Committee sought interpretation assistance from the 2002 guidelines, in particular section 4.2.2 which provided that:
What constitutes a 'matter of dangerous or minor nature' is not defined, nor has it been tested in court. However it is reasonable to assume dangerous is intended to refer to some circumstance where a building or structure is structurally unsound and could collapse or present another immediate hazard.
A building or structure that was lawfully constructed and remains structurally sound or intact cannot be considered dangerous because it does not meet current safety standards.
The Committee observed that individual smoke alarms which were present in the building were subject to the final determination by the building certifier on the development application for building works. Nonetheless, the Committee assumed that they "would function as required to give an early warning of a fire to the residents and allow them the opportunity to escape the premises".
On this basis and having regard to section 4.2.2 of the 2002 guidelines, the Committee concluded that "although it may be inferred the building is unsafe due to the absence of any early warning or protection for occupants in the upper level from a fire situation originating in the lower level of the subject building, there are nevertheless individual smoke alarms present in each of the SOU’s. The degree of risk does not represent an immediate hazard such as to find a building "dangerous" as that term is commonly understood."
The council appealed to the court, asserting that the Committee made an error of law by making its findings on the question of dangerous by reference to the 2002 guidelines.
Court found that the Committee had failed to properly consider whether the smoke alarms would sufficiently fulfil the function of the fire separation measures and these matters should have been expressly considered rather than basing them on assumption
The court had difficulties to see how the 2002 guidelines would assist the Committee with its interpretation of the word "dangerous", particularly given its purpose. In the court’s view, the Committee should have applied the plain ordinary meaning of the word rather than adopting the meaning given in the guidelines.
Nonetheless, after a closer examination of the Committee’s reasoning, the court did not find any specific error of law made by the Committee as a result of its reference to the guidelines.
However, the court relevantly noted that the Committee, in making its findings, mainly relied on the presence of individual smoke alarms, which in its view would mitigate the fire danger caused by the absence of fire separation between the dwellings. The court observed that the two fire safety measures had different purposes. Smoke alarms served to give warning of a fire, and fire separation measures would slow the spread of fire, giving time and opportunity to escape. As such, a building with smoke alarms but without adequate fire separation could still be dangerous.
The court found that the Committee had not properly considered whether the smoke alarms would adequately fulfil the function of the fire separation measures. These matters should not have been the subject of an assumption or presumption and the Committee should have expressly considered them. Accordingly, the Court was satisfied that the Committee’s fact finding exercise was materially affected by an error of approach which indicated an error of law.
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