Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01

        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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