Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01

6.    The Further Advice Letter required a response to the further advice by 29 November
      2020.

7.    On or about 22 October 2020, amended plans were provided to the Respondent, in which
      the proposed detached pool house was removed and replaced with a 3 metre x 3 metre
      garden shed that was located wholly within the FPZ. The width of the rear patio was
      reduced however it still extended into the FPZ by 1.504 metres.

8.    By Decision Notice – Minor Change dated 29 October 2020, the Respondent decided to
      approve the requested changes and decided to amend condition 1 of the Development
      Permit and include additional conditions 23 – 25 in the Development Permit (Change
      Approval).

9.    Condition 1 of the Change Approval listed the approved plans for the Development Permit
      and was amended to include the plans provided by the Appellant in response to the
      Further Advice Letter.

10.   The new conditions 23 and 24 of the Change Approval were as follows:

      “23. The 3m x 3m shed is not approved and must not be constructed within the 10m fire
           Protection zone.

      24.    The new patio roof consisting of the BBQ area and bench must be setback from the
             rear/northern boundary a minimum of 9m to the outer most projection.”

11.   On or about 29 October 2020, the Appellant filed the Form 10 – Appeal Notice with the
      Registry of the Building Tribunals.

12.   The grounds of appeal identified by the Appellant were:

      “The Appellant is dissatisfied with Council imposition of Conditions 23 & 24 (Additional
      Conditions 26 October 2020) in the Decision Notice Ref No. 132010.105.01 dated 29
      October 2020 on the basis that the requirements of the Conditions are Building
      Assessment Provisions pursuant to Section 30 of the Building Act 1975 (siting
      requirements and requirement for the construction of buildings in bushfire prone areas)
      and subject to Sections 31(3), 31(4) and 31(5) of the Building Act 1975, the Conditions
      have no effect.”

13.   The Tribunal understands that in a telephone conversation between Ms Kerri Coyle of the
      Respondent and the Tribunal’s Registrar, Ms Coyle raised a concern that there might be
      a jurisdictional issue in this appeal.

14.   By email dated 30 November 2020, the Tribunal’s Registrar made the following directions
      to the Appellant and the Respondent, pursuant to section 250 of the PA (Directions):

      “1.    that Noosa Shire Council provide a written submission (no more than three pages)
            to the Registry by 5pm on 11 December 2020, addressing any jurisdictional aspect
            or aspects it wishes to raise for the appeal;

      2.    that the Appellant provide a submission in response within ten (10) business days of
            receiving a copy of the Council’s submission.”

15.   By email dated 2 December 2020, Ms Coyle provided the Respondent’s written
      submission in response to the Directions (Respondent’s Jurisdiction Submissions).

16.   By email dated 9 December 2020, Mr Grehan provided the Appellant’s written submission
      in response to the Directions (Appellant’s Jurisdiction Submissions).




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