Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01

                “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”.




                                                                                             - 12 -