Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01

     (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.”
Background
1.   On or about 2 September 2020, Mr Don Grehan of Pacific BCQ, on behalf of the
     Appellant, lodged the change application with the Respondent. The change application
     sought the Respondent’s approval for a new rear patio and a detached pool house
     (comprising a gazebo, spa and seating area) to be located within a 10 metre fire
     protection zone (FPZ) at the rear of the subject site.

2.   The 10 metre FPZ was required by a development permit for a material change of use of
     premises – detached house (Respondent’s reference MCU 132010.105) dated 25
     February 2010 (Development Permit) for the subject site. Specifically, the change
     application referenced condition 19 of the Development Permit which stated:

     “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.”

3.   The proposed detached pool house was to be constructed with a 0.0 metre setback from
     the rear boundary and extended almost the entire depth of the 10 metre FPZ. The new
     rear patio extended from the rear of the dwelling, as a continuous roof into the FPZ by
     3.248 metres.

4.   Accordingly, both the proposed pool house and rear patio were to be located within the
     FPZ in conflict with condition 19 of the Development Permit, thus necessitating the minor
     change application, seeking to change condition 19 of the Development Permit.

5.   On or about 29 September 2020, the Respondent issued a letter titled “Further Advice –
     Development Application” in which it advised the Appellant as follows (Further Advice
     Letter):

     “Issue – Fire Protection zone (FPZ)

     The condition of approval and the Fire Management Plan for the original development
     (subdivision) seek that no structures are located in the FPZ except for minor non-
     flammable structures such as pools, BBQ’s and pavement.

     It is considered the proposal for the patio roof and gazebo are not minor non-flammable
     structures and would place people and property at risk in a bushfire event. Therefore
     Council is not supportive of these structures within the FPZ, particularly when there is the
     opportunity to locate the structures to the east of the dwelling outside the FPZ.

     Advice Required

     1. Please provide amended plans with the structures outside the FPZ.”




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