Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01

          (c)       The 3 metre x 3 metre shed in the FPZ was not appropriate and was not a minor
                    structure. As it was located in the FPZ and was a storage shed, it was beyond the
                    Respondent’s ability to regulate and monitor compliance with any conditions
                    requiring non-flammable materials to be stored within it and would set a poor
                    precedent for the management of the rest of the FPZ across the development. It
                    was not considered a minor encroachment.

25.     By email dated 8 April 2021, Mr Grehan on behalf of the Appellant to the Tribunal’s
        Registrar, stated the following (Appellant’s Final Submissions):

        “In light of Council’s non-compromise position reflected in their response of 24 March
        2021, the owners of the premises at 30 Moorhen Place, Noosaville QLD 4566 feel that
        the additional expenditure in re-designing the building work to appease Councils
        concerns is unwarranted and request the Tribunal to decide the matter on the current
        design and their position expressed at the hearing to the effect that Bushfire Construction
        requirements are a Building Assessment Provision and accordingly, by virtue of Section
        31 of the Building Act 1975 and Section 8 of the Planning Act 2016, Councils Planning
        Instrument has no effect.”

Jurisdiction
26.     Schedule 1 of the PA states the matters that may be appealed to the Tribunal.1

27.     Section 1(1) of Schedule 1 of the PA provides that Table 1 states the matters that may
        be appealed to a tribunal. However, pursuant to section 1(2) of Schedule 1 of the PA,
        Table 1 only applies to a tribunal if the matter involves one of a list of matters set out in
        sub-section (2).

28.     Section 1(2)(f) of Schedule 1 of the PA, relevantly refers to “a decision for, or a deemed
        refusal of, a change application for a development approval that is only for a material
        change of use of a classified building”.

29.     A “classified building” is defined in Schedule 2 of the PA to mean a “class 1 building”.

30.     The Building Code of Australia defines a “class 1 building” to include a single dwelling,
        being a detached house.

31.     In this appeal, the change application was with respect to a development permit for a
        material change of use of premises – detached house.

32.     So, Table 1 of Schedule 1 of the PA applies to the Tribunal.

33.     Under item 2 of table 1 of Schedule 1 of the PA, an appeal may be made against the
        responsible entity’s decision on the change application. The appeal is to be made by the
        applicant, who in this case was the Appellant and the respondent to the appeal is the
        “responsible entity”, who in this case is the Respondent.

34.     In circumstances where the Decision Notice was dated 29 October 2020 and was
        received on 30 October 20202, this appeal was to be filed on or before 27 November
        2020.3 This was satisfied.

35.     Accordingly, the Tribunal is satisfied that it has the jurisdiction to hear this appeal.

Decision framework



1
  Section 229(1)(a) of the PA.
2
  See Item 3 (Date written notice of decision received) of the Form 10 – Notice of Appeal / Application for Declaration of this appeal.
3
  Section 229 of the PA.




                                                                                                                                   -5-