Delfinos Bay Resort CTS 7168 v Commissioner, Queensland Fire and Emergency Services [2016] QCAT 496

CITATION: Delfinos Bay Resort CTS 7168 v Commissioner, Queensland Fire and Emergency Services [2016] QCAT 496 PARTIES: Body Corporate for Delfinos Bay Resort CTS 7168 t/as Delfinos Bay Resort CTS 7168 (Applicant) v Commissioner, Queensland Fire and Emergency Services (Respondent) APPLICATION NUMBER: GAR031-16 MATTER TYPE: General administrative review matters HEARING DATE: 17 November 2016 HEARD AT: Hervey Bay DECISION OF: Member Rogers DELIVERED ON: 15 December 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW - review of decision to issue notice of non- compliance – where certificate of approval issued previously – where no change made to structure – whether issued certificate based on correct plans – whether previous decision binds current decision makers. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 28 Fire and Emergency Services Act 1990 (Qld) s 104SH, s 104G Fire Safety Act 1974-1976 (Qld) s 10 APPEARANCES: APPLICANT: Body Corporate for Delfinos Bay Resort CTS 7168 t/as Delfinos Bay Resort CTS 7168 -- 1 of 10 -- 2 RESPONDENT: Commissioner, Queensland Fire and Emergency Services REPRESENTATIVES: APPLICANT: represented by Mr N. Gaston, Chairman of the Body Corporate Committee of Delfinos Bay Resort RESPONDENT: represented by Mr M. Nicolson, Barrister instructed by Ms M. Katsande of Queensland Fire and Emergency Services. REASONS FOR DECISION [1] Delfinos Bay Resort is a low rise complex facing the Fraser Island Straits at Torquay, part of the City of Hervey Bay. In 1983 application was made for the approval of the complex of 22 private dwelling units, restaurant, pool, sauna and spa. The construction was completed in 1988. Originally constructed as a holiday complex, it was subsequently strata titled and the units are now owned by individual unit holders, many of whom are permanent residents. [2] On 12 January 2016 the Queensland Fire and Emergency Service (QFES) issued a Notice of Failure to Comply under s 104G of the Fire and Emergency Services Act 1990 (‘the Act’) to the Body Corporate for Delfinos Bay Resort (Delfinos Bay Resort) and required certain action to be taken. [3] The non-compliance was stated to be: ‘Fire Doors lack required tags and service agents reports detail various non- compliant issues.’ The further action required an appropriately qualified and licensed person be engaged to conduct an audit of all the Fire Doors, to conduct and complete remedial works required and to certify compliance with the applicable technical standard to which it was originally installed. [4] Delfinos Bay sought a review of that decision to the Tribunal by application dated 10 February 2016. The basis of the application was ‘The Fire Door Installation … continues to operate as designed and approved when construction was completed in 1987’ and ‘…. the local Queensland Fire and Emergency Services need to accept the decision that was made by those in authority at the time Delfinos Bay Resort was constructed in 1987.’ -- 2 of 10 -- 3 [5] A person aggrieved by a notice may apply for a review to QCAT.1 The Tribunal must decide the review in accordance with the QCAT Act and the enabling Act under which the decision was made and has all the functions of the decision maker for the reviewable decision being reviewed.2 [6] The purpose of a review is to produce the correct and preferable decision and the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.3 [7] It is not necessary to show a mistake of fact or law on the part of the original decision maker when bringing an application for review. Once an application is before the Tribunal the reviewable decision carries no evidentiary or legal weight. Neither party bears an onus of proof. However the parties have an evidentiary burden, this means they must put before the Tribunal the evidence they want considered. [8] The Act requires the appointment of an assessor chosen by the principle registrar of QCAT from a list provided by the Commissioner of QFES. The function of the assessor is to help the Tribunal decide questions of fact in a proceeding.4 [9] In this case Mr Richard Jones, Principal Officer Building & Plumbing, of the Fraser Coast Regional Council was appointed as the assessor. He was known to both parties and had provided an opinion about the need for Fire Doors at Delfinos Bay Resort under current legislation to the parties. Both parties at the commencement of the hearing indicated they had no objection to Mr Jones helping the Tribunal in the role of assessor. [10] By a Tribunal direction dated 11 November 2016 Delfinos Bay Resort was required to file the statement attaching plans of Mr Gaston, Chairman of the Body Corporate Committee by 14 November 2016. QFES provided two further affidavits in response to this statement, one by Mr McNulty dated 15 November 2016 and one, which was sent to the Tribunal by email on 16 November 2016, from Mr McKean. An attempt was made to give this document to Mr Gaston, on behalf of Delfinos Bay Resort, on the morning of the hearing. He refused to accept it. [11] QRES sought leave to file the affidavit at the start of the hearing. Delfinos Bay Resorted resisted this application on the basis that there was no direction requiring its production and there was no time for the document to be read and fully understood. Mindful of my obligation to ensure all relevant material was disclosed to the Tribunal, I confirmed Mr McKean was available to answer questions, granted leave for the affidavit to be filed5 and stood the matter down to allow it to be read. 1 Fire and Emergency Services Act 1990 s 104SB. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20. 4 Fire and Emergency Services Act 1990 s104SH. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28. -- 3 of 10 -- 4 History of Certification [12] QFES holds the original plans of the complex submitted for approval and made them available at the hearing. These plans have been stamped with an ‘Interim Certificate of Approval’ dated 27 November 1987 and a ‘Certificate of Approval MB/A37275’ dated 21 June 1988. QFES also holds the Certificate of Interim Approval and the Certificate of Approval matching the stamps on the plans.6 [13] There are 23 Units. The plans show the location where a Fire Door is required by a pencil notation of ’FD’ underlined in red ink. In the Legend on Sheet 3/8 of the plans it states ‘FD’ denotes 1 hour fire rated doorset with lever handle’. Each Unit entrance door in Blocks A, B and C with the exception of Unit 7, which is marked as the restaurant, is marked with a ‘FD’. I was unable to locate Unit 19 on the plans and have surmised that because there are two Unit 15s, one on page 3/8 and one on page 5/8 the Unit marked 15 on 5/8 is a typographical error and should in fact refer to Unit 19. I note the evidence of Delfinos Bay Resort that the Lot numbers of the plans are not consistent with the door numbers. [14] The Notice of Non- compliance was issued on the basis of these plans. [15] Mr Gaston’s statement dated 14 November 2016 attached plans showing the approval by Hervey Bay City Council dated 21 May 1987. This predates the Interim Approval Certificate under the Fire Services Act. These plans also have a notation requiring Fire Doors. [16] The approval by the Hervey Bay City Council states ‘These plans have been examined for the purpose of the Council’s By-Laws only and the Council accepts no responsibility for any defect therein’. [17] He also provided a copy of the Hervey Bay Town Council meeting minutes dated 11 January 1984 showing approval to the construction subject to compliance with the provisions of the Standard Building By-Laws. [18] It is not in dispute that the building does not comply with the Fire Safety requirements as evidenced by the plans held by QFES. It is accepted by all parties that the entrance doors in Blocks A and B are not Fire Doors. It was the evidence of Mr Gaston at the hearing, which I accept, that the doors never were Fire Doors because if they had been constructed as Fire Doors and then replaced there would remain physical evidence of the substitution. He further stated the doors in Block C have been replaced by self closing doors however these doors have not been certified as Fire Doors. Submissions of Delfinos Bay Resort [19] Delfinos Bay Resort argued the fire authority of the time and Council approved the complex prior to occupancy. Both of those authorities had an obligation to inspect the premises and neither raised a concern about the 6 Affidavit of Dean McNulty filed 27 October 2016. -- 4 of 10 -- 5 absence of Fire Doors7. It must therefore be accepted that approval was given for the construction as it was inspected, notwithstanding that the stamped approvals were on plans that did not reflect the actual construction. In other words there was and is no requirement for Fire Doors in Blocks A or B. [20] It further argues the only plans that could be used as a reference would be plans marked with an ‘as constructed’ stamp8 however it is admitted that both the Body Corporate and Fraser Coast Council have been unable to locate any such plans. Mr Gaston in his statement further admitted he is ‘unable to explain how the Building and Plumbing Inspectors would approve early redundant incomplete sets of development plans after construction completion in 1987.’9 [21] Delfinos Bay Resort argues the original plans approved by Hervey Bay Town Council in 1984 did not include a set of external stairs which were later added to the western side of Blocks A and B. The addition of these stairs resulted in compliance with the Hervey Bay Town Council Standard Building By-Laws and meant the requirement for unit entry doors to be fire doors in Blocks A and B no longer applied. [22] The consequence of these approvals by QFES and Council in 1987, it is argued, is that any requirement to ‘maintain a prescribed fire safety installation namely Fire Doors’ or to ‘have the Fire Doors reinstated to a standard of safety and reliability’ cannot apply because the Fire Doors were never there. QFES cannot now require the installation of equipment that was not required at the time of approval. The language of the Notice presupposes equipment was present because the requirement is to ‘maintain’ and ‘reinstate’. [23] Finally, Mr Gaston gave evidence of his concern that installing Fire Doors in a complex with frail residents might make things less rather than more safe. The basis for his concern is the doors recently installed in Block C. He says they are very heavy and difficult to open quickly. While they are not certified because they are not in certified frames or tagged as required he is reluctant to extend these doors to the rest of the complex. Further, he said installing Fire Doors in Blocks A and B doors would not be effective to prevent the spread of fire because the wall surrounding them is not required to have a fire rating. [24] The submissions of Delfinos Bay Resort focussed on Blocks A and B, specifically the impact of the amendments to plans at construction, however the arguments relating to retrospectivity of the requirements apply equally to Block C and I have considered the submissions on that basis. Submissions of QFES 7 Fire Safety Act 1974-1976 s 10. 8 Statement of Mr Noel Gaston dated 29 May 2016 page 5. 9 Statement of Mr Noel Gaston dated 14 November 2016. -- 5 of 10 -- 6 [25] It is argued by QFES that the role of the Tribunal is to review the Notice not the issue of whether or where Fire Doors are needed. The plans approved under the Fire Safety Act 1974 indicate a requirement for Fire Doors for Blocks A, B and C and the Notice has referred to non- compliance with that requirement. [26] It was submitted that it is accepted by all parties the entrance doors in Block A, B and C are not Certified Fire Doors and accordingly the basis for the Notice of Non-Compliance is established. [27] There was a legislative regime in place at the time of approval and it clearly indicated the requirement for Fire Doors. This was reflected in the approved plans. What the Inspecting Officer did at the time cannot be looked at here because the Notice is based on the approved plans not the previous decisions made. [28] In addition to the plans a report dated 23 October 2015, commissioned by Delfinos Bay Resort and prepared by David Job for Certcorp DGL Pty Ltd, was included with the QFES Statement of Reasons. That report relied on the only plans available, namely the QFES approved plans. Mr Job in the report referred to the legislation applicable at the time of the approval10 and formed the view the doors in Block A and Block B were required to be self closing one hour fire rated doors because these doors opened onto a passage way on the approved plans. It was noted Block A and Block B did not have self-closing doors. [29] Mr Job inspected a number of doors in Block C, all of which were self closing doors and he therefore made the assumption ‘these doors are self- closing fire doors until proven otherwise.’ However he went on to state that his report ‘in no way indicates that these fire doors comply with the legislative requirements for fire doors and that would need to be independently tested by an appropriately licensed contractor.’ [30] Mr Jones, in his role assisting the Tribunal, confirmed that in 1987 the legislation stated a public corridor was defined to mean an open passageway or an enclosed space and he agreed with Mr Job’s assessment Fire Doors were required at that time. Subsequent amendments confined a public corridor to an enclosed space, which means Fire Doors would not be needed now in Blocks A and B, but that was not the legislation applicable at the time of the approval. The requirements for Block C, which has an enclosed corridor, remain unchanged. [31] QFES argues its position is supported by the report of CertCorp which has identified and applied the relevant legislative provision. [32] Delfinos Bay Resort believe the report should not have come to the attention of QFES because it commissioned the report and stipulated it was 10 Building Act 1975-1984 Part 22.9. -- 6 of 10 -- 7 to remain confidential until a full sized copy of the QFES plans was made available, which was not done. [33] Also in evidence are various inspection reports which certify that the doors required to be Fire Doors are not tagged. This evidence was not disputed. [34] QFES accepted that the Building Act at the time was more onerous than it is now. It submitted that if a Certifier issues a report saying doors comply with current legislation QFES will accept there is no requirement to replace those doors identified as compliant. This concession is a consequence of s.104D(2) of the Act, which states it is a defence to prosecution for an offence for non-compliance of a Notice if it can be established the installation is unnecessary for fire safety. Is there a requirement for a prescribed fire safety installation, namely Fire Doors at Delfinos Bay Resort? [35] The Notice alleges non-compliance to be ‘Fire Doors lack required tags and service agents reports detail various non- compliant issues.’ [36] The issue in dispute is which doors should be classified as Fire Doors. [37] It was not disputed by Delfinos Bay Resort that the doors in Block C are required to be Fire Doors and they do not have the necessary Certification. On that basis alone I am satisfied the Notice is valid and the application should be dismissed. [38] After such a long period of time the only decision that can be made about the requirement for Fire Doors must be made on the basis of the written documentation now available. There is no evidence to establish a later set of plans, following the addition of the stairs, without the requirement for Fire Doors was even drafted. The Certificate of Approval MB/A37275 specifically states that the plans are to ‘be read as one with this Certificate’ and the only plans in evidence require Fire Doors. [39] I note the argument by Delfinos Bay Resort that the plans do not reflect the actual construction and that only plans marked ‘as constructed’ should be relied on. However there is no evidence before me that it was ever practice for such a stamp to be used. [40] I am satisfied that the complex did not comply with the requirements when the approval was given, however it does not follow that a decision made at that time determines what the requirements were then or are now. -- 7 of 10 -- 8 [41] While not couched in these terms, as I understand it the argument made by Delfinos Bay Resort is essentially an argument of estoppel.11 It argues that a decision was made in 1987 that the construction complied with fire safety requirements and a decision was made by Council at the same time that the construction complied with the Building Code. Since that time the original owners and subsequent purchasers have relied on those decisions when selling and purchasing in the building. In these circumstances owners should be able to continue to rely on those decisions and QFES is estopped from requiring modifications or subsequent certification because it is bound by its previous decision. [42] This assertion is countered by Acts Interpretation Act 1954 (Qld), s 23(1) which states: If an Act confers a function or power on a person or body, the function may be performed, or the power may be exercised, as occasion requires. [43] In other words, if a person has the responsibility to determine if there is compliance with the Fire Safety Act that power may be exercised as occasion requires. An argument that a previous decision has determined a matter conclusively is inconsistent with this provision. Each decision maker must be free to turn their own mind to the evidence before them. I am particularly aware that this issue concerns one of public safety and any argument restricting fire safety offers in the performance of their duty needs to be treated with caution. [44] The argument raised by Delfinos Bay Resort may be applied to conduct between private individuals when deciding their obligations to each other, however in administrative decisions the responsibility of any authority is to the public at large. While there is a preference for consistency this cannot prevent a wrong decision from being overturned. [45] I accept that in this case Delfinos Bay Resort is arguing the original decision was right, however accepting this submission would require me to ignore the only documentary evidence available. If I was satisfied the plans are not an accurate representation of what is required and therefore disregarded them, there would be no valid Certificate of Approval in place at all. The Certificate of Approval relied on by QFES incorporates the plans nominated. No other plans have been identified to fill the vacuum. Without plans the Certificate is meaningless. This would leave Delfinos Bay Resort in a worse position than it is in currently. [46] This conclusion also addresses the argument that Delfinos Bay Resort cannot be required to maintain or reinstate installations that were never there. I have found that the installations were always required to be there 11 Wright & Anor v Hamilton Island Enterprises Ltd; ACN 055 389 725 P/L & Ors v Hamilton Island Enterprises Ltd [2003] QCA 36 in the decision of Jerrard JA at para 40. -- 8 of 10 -- 9 and on that basis the Notice is valid. The fact that there has been non- compliance since the original occupation of the building, and that previous occupiers were not aware of this, is not reason to waive a requirement imposed for the protection of public safety. [47] The evidence of the CertCorp report supports the view the plans now available were the plans approved at the time because they encapsulate the legislative requirements then in force. I accept the submission of QFES that the Notice requires compliance with the plans approved at the time notwithstanding the Standards then were more onerous than now. [48] The material establishes there was an amendment to the plans providing for external stairs to the western side of Blocks A and B. It is argued by Delfinos Bay Resort the addition of these stairs resulted in fire safety compliance with the Hervey Bay Town Council Standard Building By-Laws and obviated the need for Fire Doors because they provide an effective means of escape. There is nothing in the report of Mr Job or any other evidence to support this argument. The evidence of Mr McNulty 12 , an authorised fire service officer, was Fire Doors secure the means of escape by containing fire within a compartment, as escape routes are only effective if isolated from flames and smoke. Mr McKean in evidence said the requirements are also for the protection of fire officers when fighting a fire. I do not accept the change to the plans affected the requirements for the fire safety installation. [49] Mr Gaston is concerned requiring Fire Doors poses a greater risk than it avoids. Mr McKean, when asked to comment of this concern, said it is his role to provide advice but he is not a Certification Officer. He said he is not personally aware of self opening doors but he thinks there would be devices to assist the elderly that would meet the requirements of QFES. These issues have had to be addressed in the context of nursing homes. [50] I accept the argument of QFES that it is not my role to determine if Fire Doors should be required, merely to determine if the requirements have been complied with. I note that in relation to Blocks A and B further certification may result in no need for Fire Doors in any event. [51] It is further claimed by Delfinos Bay Resort that a former Caretaker, who was in conflict with the Body Corporate, fraudulently provided false plans to the two local Fire Equipment Service Providers and as a result the service providers subsequently provided false reports indicating the existing dors were non compliant. [52] While I accept there were difficulties with the previous Caretaker those difficulties are not relevant this issue. The circumstances surrounding the way this building came to the attention of QFES is not evidence that goes to the question of non-compliance. 12 Affidavit of Dean McNulty filed 27 October 2016 at para 13. -- 9 of 10 -- 10 [53] For the reasons given I am satisfied there is a requirement for a fire safety installation in Delfinos Bay Resort, namely Fire Doors, the complex is not currently compliant with this requirement and the Notice is therefore valid. [54] I have considered the required action and am satisfied it is necessary and reasonable to ensure the fire safety requirements of the complex. It may also limit the amount of work necessary to ensure compliance. No submissions were made that the requirements were not appropriate. [55] The application is dismissed. Observation [56] When Delfinos Bay Resort was constructed Certification was undertaken by officers of the authority and Council. This is no longer that case and the process is now conducted by authorised Certifiers. It is the evidence of Mr Gaston, which I accept, that the Body Corporate Committee has made extensive inquiries but has been unable to find a Certifier willing to conduct an audit, supervise required works and issue a Certificate of Compliance. It appears the Certifiers approached, after considering the professional risk and the complexity of the task, have decided it is not a commercial venture they are prepared to undertake. [57] The difficulties experienced by Delfinos Bay Resort are a result of decisions made by QFES and Council, consistent with many government departments, councils and authorities to outsource certain functions. While I do not have the power to make any orders in this regard it is my recommendation that QFES and Council give consideration to making available a Certifier of last resort at a commercial but reasonable rate to Bodies Corporate who find themselves in this position. Necessary criteria to be satisfied could include the actions of previous decision makers, hardship and a requirement that all avenues for commissioning a private Certifier have been exhausted. -- 10 of 10 --