Council archive · source document
Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01
Development Tribunal – Decision Notice
Planning Act 2016, section 255
Appeal Number: 20-034
Appellant: Jayme McNally
Respondent: Noosa Shire Council
Site Address: 30 Moorhen Place, Noosaville in the State of Queensland and described
as Lot 5 on SP190381 ─ the subject site
Appeal
This is an appeal under section 229, section 1 of Schedule 1 and item 2 of Table 1 of the
Planning Act 2016 (PA) against the Noosa Shire Council’s (Respondent) decision to refuse a
change application requesting a minor change to a development permit for a material change of
use of premises – detached house, given by a Decision Notice dated 29 October 2020 (change
application).
Date and time of hearing: 12pm, 1 March 2021
Place of hearing: The subject site
Tribunal: Samantha Hall – Chair
Henk Mulder - Member
Present: Appellant
Jayme McNally – Appellant
Josh McNally
Don Grehan – Pacific BCQ
Noosa Shire Council
Patrick Murphy – Coordinator Planning, Council
Conor Neville – Environment Officer, Council
Decision:
The Development Tribunal (Tribunal), in accordance with section 254(2)(b) of the PA changes
the decision of the Respondent to approve the change application subject to conditions by
changing the conditions the subject of the appeal as follows:
A. Condition 23 – no change.
B. Condition 24 – replace the condition with the following:
“The new patio roof consisting of the barbeque and bench must be:
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(a) constructed to comply with AS3959:2018 “Construction of buildings in bushfire-prone
areas” as if the work was in a Bushfire Attack Level – Fire Zone (BAL-FZ);
(b) setback in accordance with the following:
(i) from the rear/northern boundary, a minimum of:
(1) 8 metres to the outer most projection;
(2) 9 metres to the structural posts;
(3) 8.5 metres to the new bench (that incorporates the barbeque);
(ii) from the existing house wall, a minimum of 0.8 metres to the new bench (that
incorporates the barbeque);
(c) constructed as a discontinuous roof from the main roof, as set out in the approved
drawing A201 revision A10 by Collins Building Designs, dated 22/10/2020.”
Background
1. On or about 2 September 2020, Mr Don Grehan of Pacific BCQ, on behalf of the
Appellant, lodged the change application with the Respondent. The change application
sought the Respondent’s approval for a new rear patio and a detached pool house
(comprising a gazebo, spa and seating area) to be located within a 10 metre fire
protection zone (FPZ) at the rear of the subject site.
2. The 10 metre FPZ was required by a development permit for a material change of use of
premises – detached house (Respondent’s reference MCU 132010.105) dated 25
February 2010 (Development Permit) for the subject site. Specifically, the change
application referenced condition 19 of the Development Permit which stated:
“Flammable structures and landscaping materials, such as timber pergolas, timber decks
and timber sleeper walls shall not be constructed within the 10 metre Fire Protection
Zone.”
3. The proposed detached pool house was to be constructed with a 0.0 metre setback from
the rear boundary and extended almost the entire depth of the 10 metre FPZ. The new
rear patio extended from the rear of the dwelling, as a continuous roof into the FPZ by
3.248 metres.
4. Accordingly, both the proposed pool house and rear patio were to be located within the
FPZ in conflict with condition 19 of the Development Permit, thus necessitating the minor
change application, seeking to change condition 19 of the Development Permit.
5. On or about 29 September 2020, the Respondent issued a letter titled “Further Advice –
Development Application” in which it advised the Appellant as follows (Further Advice
Letter):
“Issue – Fire Protection zone (FPZ)
The condition of approval and the Fire Management Plan for the original development
(subdivision) seek that no structures are located in the FPZ except for minor non-
flammable structures such as pools, BBQ’s and pavement.
It is considered the proposal for the patio roof and gazebo are not minor non-flammable
structures and would place people and property at risk in a bushfire event. Therefore
Council is not supportive of these structures within the FPZ, particularly when there is the
opportunity to locate the structures to the east of the dwelling outside the FPZ.
Advice Required
1. Please provide amended plans with the structures outside the FPZ.”
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6. The Further Advice Letter required a response to the further advice by 29 November
2020.
7. On or about 22 October 2020, amended plans were provided to the Respondent, in which
the proposed detached pool house was removed and replaced with a 3 metre x 3 metre
garden shed that was located wholly within the FPZ. The width of the rear patio was
reduced however it still extended into the FPZ by 1.504 metres.
8. By Decision Notice – Minor Change dated 29 October 2020, the Respondent decided to
approve the requested changes and decided to amend condition 1 of the Development
Permit and include additional conditions 23 – 25 in the Development Permit (Change
Approval).
9. Condition 1 of the Change Approval listed the approved plans for the Development Permit
and was amended to include the plans provided by the Appellant in response to the
Further Advice Letter.
10. The new conditions 23 and 24 of the Change Approval were as follows:
“23. The 3m x 3m shed is not approved and must not be constructed within the 10m fire
Protection zone.
24. The new patio roof consisting of the BBQ area and bench must be setback from the
rear/northern boundary a minimum of 9m to the outer most projection.”
11. On or about 29 October 2020, the Appellant filed the Form 10 – Appeal Notice with the
Registry of the Building Tribunals.
12. The grounds of appeal identified by the Appellant were:
“The Appellant is dissatisfied with Council imposition of Conditions 23 & 24 (Additional
Conditions 26 October 2020) in the Decision Notice Ref No. 132010.105.01 dated 29
October 2020 on the basis that the requirements of the Conditions are Building
Assessment Provisions pursuant to Section 30 of the Building Act 1975 (siting
requirements and requirement for the construction of buildings in bushfire prone areas)
and subject to Sections 31(3), 31(4) and 31(5) of the Building Act 1975, the Conditions
have no effect.”
13. The Tribunal understands that in a telephone conversation between Ms Kerri Coyle of the
Respondent and the Tribunal’s Registrar, Ms Coyle raised a concern that there might be
a jurisdictional issue in this appeal.
14. By email dated 30 November 2020, the Tribunal’s Registrar made the following directions
to the Appellant and the Respondent, pursuant to section 250 of the PA (Directions):
“1. that Noosa Shire Council provide a written submission (no more than three pages)
to the Registry by 5pm on 11 December 2020, addressing any jurisdictional aspect
or aspects it wishes to raise for the appeal;
2. that the Appellant provide a submission in response within ten (10) business days of
receiving a copy of the Council’s submission.”
15. By email dated 2 December 2020, Ms Coyle provided the Respondent’s written
submission in response to the Directions (Respondent’s Jurisdiction Submissions).
16. By email dated 9 December 2020, Mr Grehan provided the Appellant’s written submission
in response to the Directions (Appellant’s Jurisdiction Submissions).
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17. By email dated 11 December 2020, the Tribunal’s Registrar made the following further
directions to the Appellant and the Respondent, pursuant to section 250 of the PA
(Further Directions):
“1. That the Noosa Shire Council provide a written submission to the Registry by 5:00pm
on 24 December 2020 providing the Council’s response to the Appellant’s
submissions dated 9 December 2020.”
18. By email dated 18 December 2020, Ms Coyle provided the Respondent’s written
submission in response to the Further Directions (Respondent’s Further Jurisdiction
Submissions).
19. By email dated 22 December 2020, Mr Grehan provided further written submissions on
behalf of the Appellant in response to the Respondent’s further submissions (Appellant’s
Further Jurisdiction Submissions).
20. The Tribunal considered the parties’ written submissions and by email dated 17 February
2021, the Tribunal’s Registrar provided the following decision of the Tribunal to the
parties:
“The Tribunal has carefully considered the arguments of the Council directed to the
jurisdiction of the Tribunal and is not persuaded that there is any jurisdictional impediment
to its proceeding with the appeal. The Tribunal accordingly proposes to proceed to a
hearing.”
21. The hearing of the appeal was conducted at the subject site by the Tribunal on 15 March
2021.
22. At the hearing, the parties undertook to each take some further actions to attempt a
resolution of the issues in dispute.
23. By email dated 17 March 2021, the Tribunal’s Registrar made the following directions to
the Appellant and the Respondent, pursuant to section 250 of the PA (Final Directions):
“Can the Council confirm its willingness to provide a written response to new detailed
information that seeks to utilise construction materials compliant with Bushfire Attack
Level BAL-40 or higher, within the 10.0 metre FPZ.
Can the Council also indicate an acceptable area for such an intrusion into the FPZ for
the installation of a patio awning and a shed, to be identified as a percentage of the FPZ
that is included in the area of the subject site.
The response from Council should be provided to the Registrar, no later than 4pm on the
26 March 2021.
The Tribunal will make further orders as necessary after the completion of these
directions by the Council.”
24. The Respondent provided the following response to the Final Directions by email dated
24 March 2021 from Mr Patrick Murphy of the Respondent to the Tribunal’s Registrar
(summarised as follows) (Respondent’s Final Submissions):
(a) Only a flyover roof was able to be supported in the FPZ if the encroachment was
minor and built to AS3959. A 1 metre intrusion associated with the horizontal
component of the new patio was considered minor if the posts and other structures
were located outside of the FPZ, with only the overhang located within the FPZ.
(b) An intrusion based on a volumetric measure was not supported.
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(c) The 3 metre x 3 metre shed in the FPZ was not appropriate and was not a minor
structure. As it was located in the FPZ and was a storage shed, it was beyond the
Respondent’s ability to regulate and monitor compliance with any conditions
requiring non-flammable materials to be stored within it and would set a poor
precedent for the management of the rest of the FPZ across the development. It
was not considered a minor encroachment.
25. By email dated 8 April 2021, Mr Grehan on behalf of the Appellant to the Tribunal’s
Registrar, stated the following (Appellant’s Final Submissions):
“In light of Council’s non-compromise position reflected in their response of 24 March
2021, the owners of the premises at 30 Moorhen Place, Noosaville QLD 4566 feel that
the additional expenditure in re-designing the building work to appease Councils
concerns is unwarranted and request the Tribunal to decide the matter on the current
design and their position expressed at the hearing to the effect that Bushfire Construction
requirements are a Building Assessment Provision and accordingly, by virtue of Section
31 of the Building Act 1975 and Section 8 of the Planning Act 2016, Councils Planning
Instrument has no effect.”
Jurisdiction
26. Schedule 1 of the PA states the matters that may be appealed to the Tribunal.1
27. Section 1(1) of Schedule 1 of the PA provides that Table 1 states the matters that may
be appealed to a tribunal. However, pursuant to section 1(2) of Schedule 1 of the PA,
Table 1 only applies to a tribunal if the matter involves one of a list of matters set out in
sub-section (2).
28. Section 1(2)(f) of Schedule 1 of the PA, relevantly refers to “a decision for, or a deemed
refusal of, a change application for a development approval that is only for a material
change of use of a classified building”.
29. A “classified building” is defined in Schedule 2 of the PA to mean a “class 1 building”.
30. The Building Code of Australia defines a “class 1 building” to include a single dwelling,
being a detached house.
31. In this appeal, the change application was with respect to a development permit for a
material change of use of premises – detached house.
32. So, Table 1 of Schedule 1 of the PA applies to the Tribunal.
33. Under item 2 of table 1 of Schedule 1 of the PA, an appeal may be made against the
responsible entity’s decision on the change application. The appeal is to be made by the
applicant, who in this case was the Appellant and the respondent to the appeal is the
“responsible entity”, who in this case is the Respondent.
34. In circumstances where the Decision Notice was dated 29 October 2020 and was
received on 30 October 20202, this appeal was to be filed on or before 27 November
2020.3 This was satisfied.
35. Accordingly, the Tribunal is satisfied that it has the jurisdiction to hear this appeal.
Decision framework
1
Section 229(1)(a) of the PA.
2
See Item 3 (Date written notice of decision received) of the Form 10 – Notice of Appeal / Application for Declaration of this appeal.
3
Section 229 of the PA.
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36. The Decision Notice was issued by the Respondent on or about 29 October 2020. At
that time, the PA was in force.
37. The Appellant filed a Form 10 – Notice of Appeal / Application for Declaration on or about
9 November 2020.
38. The appeal is a PA appeal, commenced after 3 July 2017 under section 229 of the PA.
As such, the appeal is to be heard and determined under the PA.
39. This is an appeal by the Appellant, the recipient of the Decision Notice and accordingly,
the Appellant must establish that the appeal should be upheld.4
40. The Tribunal is required to hear and decide the appeal by way of a reconsideration of the
evidence that was before the Respondent which decided to give the Decision Notice the
subject of this appeal.5
41. The Tribunal may (but need not) consider other evidence presented by a party with leave
of the Tribunal6.
42. The PA provides the Tribunal with broad powers to inform itself in the way it considers
appropriate when conducting a tribunal proceeding and the Tribunal may seek the views
of any person7.
43. The Tribunal may consider other information that the Registrar asks a person to give to
the Tribunal.8
44. The Tribunal is required to decide the appeal in one of the following ways set out in section
254(2) of the PA:
(d) confirming the decision; or
(e) changing the decision; or
(f) replacing the decision with another decision; or
(g) setting the decision aside and ordering the person who made the decision to
remake the decision by a stated time; or
(h) for a deemed refusal of an application:
(i) ordering the entity responsible for deciding the application to decide the
application by a stated time and, if the entity does not comply with the order,
deciding the application; or
(ii) deciding the application.
Material Considered
45. The material considered in arriving at this decision comprises:
(a) ‘Form 10 – Appeal Notice’, grounds for appeal and correspondence accompanying
the appeal lodged with the Development Tribunals Registrar on or about 29 October
2020.
4
Section 253(2) of the PA.
5
Section 253(4) of the PA.
6
Section 253(5)(a) of the PA.
7
Section 249 of the PA.
8
Section 253 and section 246 of the PA.
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(b) The Respondent’s written submissions provided by email dated 2 December 2020, in
response to the Directions (Respondent’s Jurisdiction Submissions), including the
following attachments:
(i) The Change Approval;
(ii) Doonella Noosa Plan of Development dated 29 July 2003 )(POD);
(iii) Doonella Estate Residential Design Guidelines dated 29 August 2006; and
(iv) Fire Management Plan for Lake Doonella, Tewantin dated 21 April 2011 (FMP).
46. The Appellant’s written submissions provided by email dated 9 December 2020, in
response to the Directions (Appellant’s Jurisdiction Submissions).
47. The Respondent’s written submissions provided by email dated 18 December 2020,
in response to the Further Directions (Respondent’s Further Jurisdiction
Submissions).
48. The Appellant’s further written submissions provided by email dated 22 December
2020, in response to the Respondent’s further submissions in paragraph (d)
(Appellant’s Further Jurisdiction Submissions).
49. The Respondent’s response to the Final Directions provided by email dated 24 March
2021 (Respondent’s Final Submissions).
50. An email dated 8 April 2021, from Mr Grehan on behalf of the Appellant to the
Tribunal’s Registrar (Appellant’s Final Submissions).
51. Noosa Plan 2020 (Noosa Plan).
52. Planning Act 2016 (PA).
53. Planning Regulation 2017 (PR).
54. Building Act 1975 (BA).
55. Building Code of Australia.
56. Queensland Development Code (QDC).
Findings of Fact
The Tribunal makes the following findings of fact:
Jurisdiction issue
57. The Respondent’s Jurisdiction Submissions provided a detailed planning background for
the development of the subject site and indeed the broader Doonella Noosa Estate.
58. The Tribunal accepts the Respondent’s Jurisdiction Submissions with respect to the
planning background for the development of the subject site.
59. In particular, the Respondent identified the following:
(a) that a development approval for a material change of use to create the Doonella Noosa
Estate (being Application No. 132003.22113.8 (23616 DA)) (Earlier Approval)
continued in effect for the development of the subject site;
(b) the Earlier Approval established the POD that remained binding upon development
within the Doonella Noosa Estate;
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(c) a development approval for a material change of use was required for each lot within
the Doonella Noosa Estate, the Development Permit being the approval for the
dwelling on the subject site;
(d) pursuant to section 66(2) of the PA, the Respondent could not impose any conditions
upon an approval of the change application that were inconsistent with a condition of
the Earlier Approval; and
(e) the relevant condition of the Earlier Approval, as acknowledged by both parties, was
condition 5.2, which provided as follows:
“All buildings (which does not include swimming pools or other structures that do not
present a fire hazard) located on allotments adjoining either private open space or
public open space shall be located in accordance with the setback requirements
contained in the Fire Management Plan.”
60. After setting out the planning background, the Respondent identified its jurisdiction issue
as being that the Tribunal did not have the ability to decide the appeal because the
Tribunal’s decision could approve a development which would be inconsistent with the
conditions of the Earlier Approval and that would be unlawful.
61. The Appellant’s Jurisdiction Submissions took a different approach, taking issue with the
lawfulness of condition 5.2 of the Earlier Approval, when considered within the context of
sections 30 and 31 of the BA. Then, the Appellant’s Further Jurisdiction Submissions
considered the jurisdiction of the Tribunal pursuant to Schedule 1 of the PA.
62. The Tribunal considered the parties’ jurisdiction submissions and decided that the
Tribunal did have jurisdiction to hear the appeal. There were three reasons for the
Tribunal’s decision.
Reason 1
63. The first reason is that which is already set out in the Jurisdiction section of this Decision
Notice.
64. The Tribunal considered that it has clear jurisdiction pursuant to Schedule 1 of the PA to
hear this appeal.
Reason 2
65. The Appellant raised an overall argument about the lawfulness of condition 5.2 of the
Earlier Approval within the context of sections 30 and 31 of the BA.
66. While those arguments did stray into the Appellant’s grounds of appeal in this appeal,
any question about the lawfulness of condition 5.2 of the Earlier Approval or the imposition
of the residential design guidelines, is outside the scope of this appeal.
67. As set out above, the Tribunal’s jurisdiction pursuant to the PA is limited to a consideration
of “a decision for … a change application for a development approval that is only for a
material change of use of a classified building”.
68. The Tribunal’s jurisdiction does not extend to a consideration of the development
approval that is to be changed by the change application, in this case, that would be the
Development Permit, or to another relevant development approval, in this case, the
Earlier Approval.
69. Any challenge to the Development Permit or, as contended by the Appellant, to the Earlier
Approval, would need to be started by a different process and most likely heard by the
Planning and Environment Court.
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70. For the purposes of this appeal, the Tribunal’s jurisdiction extends only to a consideration
of the conditions in dispute in the appeal, being conditions 23 and 24 of the Council’s
Decision Notice dated 29 October 2020.
Reason 3
71. Finally, while the Tribunal understands the concern raised by the Respondent about the
potential for the Tribunal’s decision to contravene section 66(2) of the PA, this concern is
unfounded. As the Respondent is constrained by the operation of the PA, so too is the
Tribunal.
72. It cannot be assumed that any decision made by the Tribunal would conflict with condition
5.2 of the Earlier Approval. Indeed, condition 5.2 of the Earlier Approval is broad in its
wording, specifically excluding “other structures that do not present a fire hazard” so, by
way of example, it would be available to the Tribunal to make a decision that a structure
“does not present a fire hazard” if the Tribunal is properly satisfied by evidence given that
a structure “does not present a fire hazard”.
73. Accordingly, the Tribunal was satisfied that the Tribunal did have jurisdiction to hear the
appeal.
Issues in dispute in appeal
74. Turning then to the issues in dispute in the appeal, there was no dispute between the
parties that the change application was an application for a minor change pursuant to
section 81 of the PA.
75. The Appellant’s grounds of appeal, which it returned to in the Appellant’s Final
Submissions, raised issue with the imposition of conditions 23 and 24 of the Change
Approval stating that they were unlawful because pursuant to sections 30, 31(3), 31(4)
and 31(5) of the BA, as they were building assessment provisions.
76. Section 30 of the BA relevantly provides the meaning of “building assessment provisions”
as being the following laws and other documents:
(a) Chapters 3 and 4 of the BA;
(b) the fire safety standard;
(c) the fire safety standard (RCB);
(d) any provisions of a regulation made under the BA relating to building assessment work
or accepted building work;
(e) any relevant local law, local planning instrument or resolution9 made under section 3210
of the BA or any relevant provision under section 33 of the BA11;
(f) the BCA; and
(g) subject to section 33 of the BA, the QDC.
77. “Local planning instrument” is defined in the BA as being a local planning instrument
under the PA. Section 8 of the PA defines a “local planning instrument” to be a planning
9
Schedule 4 (Dictionary) of the Local Government Act 2009 defines a resolution of a local government to mean the formal decision
of the local government at a local government meeting.
10
Section 32 of the BA relevantly provides that a local government may make or amend: a local planning instrument, local law,
planning scheme or a resolution about building work or other matters related to the BCA or QDC prescribed under a regulation; or
alternative provisions under section 33 of the BA.
11
Section 33 of the BA relevantly provides that a planning scheme can include alternative provisions to the QDC’s residential design
and siting provisions for particular buildings and only if the provisions are a qualitative statement or quantifiable standard.
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instrument made by a local government that is a planning scheme, a temporary local
planning instrument or a planning scheme policy.
78. A “planning instrument” is also defined in section 8 of the PA to be an instrument that sets
out policies for planning or development assessment.
79. Section 30 of the BA also refers to a resolution of the relevant local government.
Development approvals can be granted by resolution of a local government or by
delegated authority to an officer of the local government. While no evidence was
presented to the Tribunal with respect to whether the Change Approval was given by the
Respondent by delegated authority or at a local government meeting, the Tribunal has
considered the Respondent’s meeting agendas for 202012 and notes that no meeting was
held on 26 October 2020, being the date the Respondent granted the Change Approval.13
On this basis, conditions 23 and 24 of the Change Approval were not imposed pursuant
to a resolution of the Respondent.
80. Conditions 23 and 24 of the Change Approval are clearly not a “local planning instrument”,
nor do they fall within any of the other laws or documents that are defined to be building
assessment provisions in section 30 of the BA.
81. Accordingly, the Tribunal finds that conditions 23 and 24 of the Change Approval are not
building assessment provisions as defined by section 30 of the BA.
82. Section 31(3) of the BA, relevantly provides that the effect of a building assessment
provision mentioned in section 30(a) to (d), (f) or (g) can not be changed under a local
law, local planning instrument or local government resolution.
83. Section 31(4) of the BA, relevantly provides that a local law, local planning instrument or
local government resolution must not include provisions about building work, to the extent
a building assessment provision mentioned in subsection (3) applies to the building work.
84. Section 31(5) of the BA, relevantly provides that to the extent a local law, local planning
instrument or local government resolution does not comply with subsection (4), the local
law, local planning instrument or local government resolution is of no effect.
85. Given that conditions 23 and 24 of the Change Approval are not a local law, local planning
instrument or a local government resolution, nor are they building assessment provisions,
the Tribunal is satisfied that section 31 of the BA does not apply to negate the effect of
the conditions.
86. Finally, at the hearing, Mr Murphy, on behalf of the Respondent, made oral submissions
that conditions 23 and 24 of the Change Approval met the conditions test in section 65 of
the PA.
87. In the absence of evidence presented by the Appellant to the contrary, the Tribunal
accepts Mr Murphy’s evidence and is satisfied that conditions 23 and 24 of the Change
Approval are lawfully imposed pursuant to the PA.
The structures within the FPZ
88. While the Appellant’s grounds of appeal and the Appellant’s Final Submissions turn on a
legal interpretation of sections 30 and 31 of the BA, at the hearing of the appeal, the
parties also considered at length, the location of the shed and the proposed new patio
roof within the FPZ.
12
Pursuant to section 249 of the PA, the Tribunal has broad powers to inform itself in the way it considers appropriate when
conducting a tribunal proceeding.
13
See page 1 of the Decision Notice issued by the Respondent and dated 29 October 2020.
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89. Given the evidence that was presented in this regard, the Tribunal considers it appropriate
to continue to consider that evidence and make a decision in that regard.
The shed
90. Condition 23 of the Change Approval stated that the shed was not approved and could
not be constructed within the 10 metre FPZ.
91. While nothing turns on it for the purposes of this appeal, the Tribunal and the Respondent
observed at the site inspection of the subject site that the 3 metre x 3 metre garden shed
had already been constructed. On the side of the shed facing the pool, a large mural had
been painted which the Appellant identified as being of sentimental value.
92. The Appellant expressed an understanding that a garden shed was accepted
development and didn’t require a development approval. The Respondent considered
that a development approval would be required because, as currently being considered
in the appeal, the shed was located within the FPZ, thus not complying with the conditions
of the Earlier Approval and the Change Approval.
93. It was agreed at the hearing that the construction of the shed was not a matter for this
appeal and that the appeal would proceed on the basis that the change application was
made seeking both the shed and the new patio roof.
Was the shed a “fire hazard”?
94. The parties agreed at the hearing that the use of the subject site continued to be subject
to the conditions of the Earlier Approval, as well as those of the Change Approval (subject
to the issues in dispute in this appeal raised by the Appellant).
95. The parties gave oral evidence at the hearing, with respect to condition 5.2 of the Earlier
Approval and whether the location of the shed within the FPZ complied with that condition.
96. In particular, the discussion centre on the words in brackets in condition 5.2 of the Earlier
Approval, which can be extracted as follows [underlining added for emphasis]:
“All buildings (which does not include swimming pools or other structures that do not
present a fire hazard) … shall be located in accordance with the setback requirements
contained in the” FMP.
97. The FMP relevantly provided the following:
(a) In Table 6 (Compliance checklist), in row 1, titled “Fire Protection Zones”, the following:
“The Fire Protection Zones shown in the attached Figure 1 shall be provided and
incorporated into the Fire Management Plan and other relevant management plans.
Within all Fire Protection Zones:
…
- Flammable structures and landscaping materials, such as timber fences, timber
pergolas, timber decks and timber sleeper walls, are prohibited;
- non-flammable structures such as paved areas and swimming pools are permitted.”
(b) Figure 1 identifies a FPZ of a width of 10 metres extending from the rear boundary fence;
(c) Table 11 (Residential Precincts Fire Protection Zones), in row 1, titled “Premium
Residential Lots 1 – 17 & 24”, the following:
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“10 metre wide FPZ with no understorey vegetation (see figure 1)
…
Minor non-flammable structures such as paved areas, pools and BBQs are
permitted to be located within the FPZ.”
98. While not the subject of the appeal, the parties also gave oral evidence about and
discussed condition 19 of the Change Approval, which provided as follows:
“Flammable structures and landscaping materials, such as timber pergolas, timber decks
and timber sleeper walls shall not be constructed within the 10 metre Fire Protection
Zone.”
99. At the hearing, the Respondent’s position was that the shed was a flammable structure,
it couldn’t be considered a minor non-flammable structure and therefore couldn’t be
located within the 10 metre FPZ. There were three main reasons for this:
(a) the shed had not been constructed out of non-flammable materials;
(b) the Respondent wouldn’t be able to regulate what is stored within the shed in the future
to ensure that only non-flammable substances are stored within it; and
(c) approving the shed within the FPZ would establish a dangerous precedent for the local
government area, in which there are many FPZ’s of a similar nature.
100. The Appellant’s position was that the shed didn’t currently contain flammable materials
or goods and there was no intent to store flammable materials or goods within the shed,
so the Appellant would be prepared to accept a condition to regulate the contents of the
shed.
101. The Appellant also alleged that many properties within the Lake Doonella Estate that had
a 10 metre FPZ already had sheds constructed within the FPZ.
102. There was some discussion at the hearing as to whether the shed could be altered so as
not to “present a fire hazard” and to meet the requirements of the FMP. The identity of
the shed was also discussed as to whether it would be a “minor non-flammable structure”
for the purposes of Table 11 of the FMP.
103. The Respondent’s Final Submissions identified that it was the Respondent’s view that the
shed was not appropriate, was not a minor structure, and that the Respondent could not
monitor compliance with any condition restricting storage of flammable substances.
Again, the Respondent identified it would “set a poor precedent for the management of
the rest of the FPZ across the development.”
104. The Tribunal observed that the subject site was quite large and there was some grassed
land to the eastern side of the dwelling house outside of the FPZ that could easily
accommodate a shed.
105. The Tribunal understands that the mural painted on the shed was of sentimental value to
the Appellant, however, the wall upon which that mural was painted could potentially be
retained for aesthetic value and be reinforced to be a feature alongside the pool, while
the remainder of the shed (with a new wall) could be relocated outside of the FPZ.
106. On balance, the Tribunal considers that while the shed itself might be able to be
considered a minor structure, the Tribunal prefers the Respondent’s submissions that the
shed would “present a fire hazard” and that the shed, combined with its potential contents,
could not be considered a “minor non-flammable structure”.
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107. As the Respondent contended at the hearing, even if a condition that limited the materials
that could be stored in the shed was a lawful condition, which the Tribunal has some
doubt about, the enforcement of such a condition would be almost impossible for the
Respondent. Further, while the Respondent and the Tribunal didn’t doubt the sincerity of
the Appellant’s assertions that the Appellant wouldn’t store flammable substances within
the shed, the Respondent wouldn’t have such assurances from future owners.
108. The Tribunal was also sensitive to the Council’s concerns about creating a poor
precedent, when there are many homes in the area that are burdened by the FPZ.
109. Accordingly, the Tribunal confirms condition 23 of the Change Approval and makes no
change to that condition.
The patio roof
110. Condition 24 of the Change Approval stated that the new patio roof (including the BBQ
area and bench) must be setback from the rear boundary a minimum of 9 metres to the
outer most projection. This effectively allowed a 1 metre relaxation into the 10 metre FPZ
at the rear of the subject site for the new patio roof.
111. The patio proposed by the Appellant required a 1.504 metre relaxation into the 10 metre
FPZ at the rear of the subject site.
112. During the hearing, the parties considered the patio roof within the context of condition
5.2 of the Earlier Approval and the FMP in the POD.
113. Some common ground was able to be reached between the parties with respect to the
patio roof, on the basis that unlike the shed, the patio roof was an open structure and as
it had not yet been constructed, its construction materials could be specified to be non-
flammable and its design could be altered to reduce the footprint of the patio within the
FPZ.
114. The Respondent’s Final Submissions identified that the Respondent could consider a
patio roof to be a “minor non-flammable structure” within the FPZ on the following basis:
(a) with a flyover roof;
(b) built to AS3959;
(c) with only a 1 metre encroachment of the horizontal component of the patio roof into the
FPZ with the posts and other structures located outside the FPZ.
115. The Tribunal respectfully notes that the “concessions” made in the Respondent’s Final
Submissions are actually more stringent than the requirements of condition 24 of the
Change Approval, in that the concessions allow the same 1 metre encroachment into the
FPZ but in addition require a flyover roof, that it be built to AS3959 and that the posts and
other structures must be located outside the FPZ.
116. The Tribunal has considered the Respondent’s Final Submissions, along with the
requirements of AS3959, the FMP in the POD and the relevant conditions of the Change
Approval and considers that a new patio roof can be a “minor non-flammable structure”
and located within the FPZ.
117. The purpose of the FPZ created by the FMP in the POD was to minimise any hazard to
life and property because of a catastrophic bushfire in the neighbouring bushland.
118. The Tribunal is satisfied that the additional requirements identified in the Respondent’s
Final Submissions are appropriate to meet the purpose of the FPZ, with the exception
that the Respondent has not persuaded the Tribunal that the encroachment of the patio
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roof (including the barbeque area and bench) of more than 1 metre into the FPZ would
increase the hazard to life and property.
119. Accordingly, the Tribunal is satisfied that a patio roof would not present a fire hazard, if it
was constructed in accordance with the following conditions:
(a) constructed to comply with AS3959:2018 “Construction of buildings in bushfire-prone
areas” as if the work was in a Bushfire Attack Level – Fire Zone (BAL-FZ);
(b) setback in accordance with the following:
(i) from the rear/northern boundary, a minimum of:
(1) 8 metres to the outer most projection;
(2) 9 metres to the structural posts;
(3) 8.5 metres to the new bench (that incorporates the barbeque);
(ii) from the existing house wall, a minimum of 0.8 metres to the new bench (that
incorporates the barbeque);
(c) constructed as a discontinuous roof from the main roof, as set out in the approved
drawing A201 revision A10 by Collins Building Designs, dated 22/10/2020.
Reasons for the Decision
120. The appeal is against the imposition of conditions 23 and 24 of the Change Approval that
were alleged to be unlawful because pursuant to sections 30, 31(3), 31(4) and 31(5) of
the BA, they were building assessment provisions.
121. The Tribunal finds that conditions 23 and 24 of the Change Approval are not building
assessment provisions as defined by section 30 of the BA.
122. Given that conditions 23 and 24 of the Change Approval are not a local law, local planning
instrument or a local government resolution, nor are they building assessment provisions,
the Tribunal is satisfied that section 31 of the BA does not apply to negate the effect of
the conditions.
123. While the appeal turned on a legal interpretation of sections 30 and 31 of the BA, at the
hearing of the appeal, the parties presented evidence with respect to the location of the
shed and the proposed new patio roof within the FPZ. Given this, the Tribunal considered
it appropriate to consider that evidence and make a decision in that regard.
124. It was agreed at the hearing that while the shed had already been constructed and the
Respondent had no prior knowledge of that fact, the construction of the shed was not a
matter for this appeal and the appeal would proceed on the basis that the change
application was made seeking both the shed and the new patio roof.
125. On balance, the Tribunal prefers the Respondent’s submissions that the shed would
“present a fire hazard” and that the shed, combined with its potential contents, could not
be considered a “minor non-flammable structure”.
126. The Tribunal agrees with the Respondent that any condition restricting the content of the
shed may not only be unlawful but also difficult to enforce and that any allowance of the
shed within the FPZ would create a potentially dangerous precedent for the location of
similar structures within the nearly FPZ areas.
127. The Tribunal notes that there is potential for the shed to be located elsewhere on the
subject site outside of the FPZ and that if the Appellant so chose, the wall of the shed
upon which the mural has been painted could be retained and reinforced as a feature wall
alongside the pool.
128. With respect to the new patio roof (including the barbeque area and bench), the Tribunal
understands the purpose of the FPZ created by the FMP in the POD was to minimise any
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Page 15
hazard to life and property because of a catastrophic bushfire in the neighbouring
bushland.
129. The Tribunal is satisfied that the additional requirements identified in the Respondent’s
Final Submissions are appropriate to meet the purpose of the FPZ, with the exception
that the Respondent has not persuaded the Tribunal that the encroachment of the patio
roof (including the barbeque area and bench) of more than 1 metre into the FPZ would
increase the hazard to life and property.
130. Accordingly, the Tribunal is satisfied that a patio roof would not present a fire hazard, if it
was constructed in accordance with the following conditions:
(a) constructed to comply with AS3959:2018 “Construction of buildings in bushfire-prone
areas” as if the work was in a Bushfire Attack Level – Fire Zone (BAL-FZ);
(b) setback in accordance with the following:
(i) from the rear/northern boundary, a minimum of:
(1) 8 metres to the outer most projection;
(2) 9 metres to the structural posts;
(3) 8.5 metres to the new bench (that incorporates the barbeque);
(ii) from the existing house wall, a minimum of 0.8 metres to the new bench (that
incorporates the barbeque);
(c) constructed as a discontinuous roof from the main roof, as set out in the approved
drawing A201 revision A10 by Collins Building Designs, dated 22/10/2020.
Samantha Hall
Development Tribunal Chair
Date:
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Page 16
Appeal Rights
Schedule 1, Table 2 (1) of the Planning Act 2016 provides that an appeal may be made against a
decision of a Tribunal to the Planning and Environment Court, other than a decision under section
252, on the ground of -
(a) an error or mistake in law on the part of the Tribunal; or
(b) jurisdictional error.
The appeal must be started within 20 business days after the day notice of the Tribunal decision
is given to the party.
The following link outlines the steps required to lodge an appeal with the Court.
http://www.courts.qld.gov.au/courts/planning-and-environment-court/going-to-planning-and-
environment-court/starting-proceedings-in-the-court
Enquiries
All correspondence should be addressed to:
The Registrar of Development Tribunals
Department of Housing and Public Works
GPO Box 2457
Brisbane QLD 4001
Telephone (07) 1800 804 833 Facsimile (07) 3237 1248
Email: [email protected]
- 16 -
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