Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01

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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