Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01

      (c)   a development approval for a material change of use was required for each lot within
            the Doonella Noosa Estate, the Development Permit being the approval for the
            dwelling on the subject site;

      (d)   pursuant to section 66(2) of the PA, the Respondent could not impose any conditions
            upon an approval of the change application that were inconsistent with a condition of
            the Earlier Approval; and

      (e)   the relevant condition of the Earlier Approval, as acknowledged by both parties, was
            condition 5.2, which provided as follows:

            “All buildings (which does not include swimming pools or other structures that do not
            present a fire hazard) located on allotments adjoining either private open space or
            public open space shall be located in accordance with the setback requirements
            contained in the Fire Management Plan.”

60.   After setting out the planning background, the Respondent identified its jurisdiction issue
      as being that the Tribunal did not have the ability to decide the appeal because the
      Tribunal’s decision could approve a development which would be inconsistent with the
      conditions of the Earlier Approval and that would be unlawful.

61.   The Appellant’s Jurisdiction Submissions took a different approach, taking issue with the
      lawfulness of condition 5.2 of the Earlier Approval, when considered within the context of
      sections 30 and 31 of the BA. Then, the Appellant’s Further Jurisdiction Submissions
      considered the jurisdiction of the Tribunal pursuant to Schedule 1 of the PA.

62.   The Tribunal considered the parties’ jurisdiction submissions and decided that the
      Tribunal did have jurisdiction to hear the appeal. There were three reasons for the
      Tribunal’s decision.

Reason 1

63.   The first reason is that which is already set out in the Jurisdiction section of this Decision
      Notice.

64.   The Tribunal considered that it has clear jurisdiction pursuant to Schedule 1 of the PA to
      hear this appeal.

Reason 2

65.   The Appellant raised an overall argument about the lawfulness of condition 5.2 of the
      Earlier Approval within the context of sections 30 and 31 of the BA.

66.   While those arguments did stray into the Appellant’s grounds of appeal in this appeal,
      any question about the lawfulness of condition 5.2 of the Earlier Approval or the imposition
      of the residential design guidelines, is outside the scope of this appeal.

67.   As set out above, the Tribunal’s jurisdiction pursuant to the PA is limited to a consideration
      of “a decision for … a change application for a development approval that is only for a
      material change of use of a classified building”.

68.   The Tribunal’s jurisdiction does not extend to a consideration of the development
      approval that is to be changed by the change application, in this case, that would be the
      Development Permit, or to another relevant development approval, in this case, the
      Earlier Approval.

69.   Any challenge to the Development Permit or, as contended by the Appellant, to the Earlier
      Approval, would need to be started by a different process and most likely heard by the
      Planning and Environment Court.



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