Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01

      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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