Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01

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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