Court Judgement 01032021 Cases - Appeal 20-034 · 132010.105.01

70.     For the purposes of this appeal, the Tribunal’s jurisdiction extends only to a consideration
        of the conditions in dispute in the appeal, being conditions 23 and 24 of the Council’s
        Decision Notice dated 29 October 2020.

Reason 3

71.     Finally, while the Tribunal understands the concern raised by the Respondent about the
        potential for the Tribunal’s decision to contravene section 66(2) of the PA, this concern is
        unfounded. As the Respondent is constrained by the operation of the PA, so too is the
        Tribunal.

72.     It cannot be assumed that any decision made by the Tribunal would conflict with condition
        5.2 of the Earlier Approval. Indeed, condition 5.2 of the Earlier Approval is broad in its
        wording, specifically excluding “other structures that do not present a fire hazard” so, by
        way of example, it would be available to the Tribunal to make a decision that a structure
        “does not present a fire hazard” if the Tribunal is properly satisfied by evidence given that
        a structure “does not present a fire hazard”.

73.     Accordingly, the Tribunal was satisfied that the Tribunal did have jurisdiction to hear the
        appeal.

Issues in dispute in appeal

74.     Turning then to the issues in dispute in the appeal, there was no dispute between the
        parties that the change application was an application for a minor change pursuant to
        section 81 of the PA.

75.     The Appellant’s grounds of appeal, which it returned to in the Appellant’s Final
        Submissions, raised issue with the imposition of conditions 23 and 24 of the Change
        Approval stating that they were unlawful because pursuant to sections 30, 31(3), 31(4)
        and 31(5) of the BA, as they were building assessment provisions.

76.     Section 30 of the BA relevantly provides the meaning of “building assessment provisions”
        as being the following laws and other documents:

        (a) Chapters 3 and 4 of the BA;

        (b) the fire safety standard;

        (c) the fire safety standard (RCB);

        (d) any provisions of a regulation made under the BA relating to building assessment work
            or accepted building work;

        (e) any relevant local law, local planning instrument or resolution9 made under section 3210
            of the BA or any relevant provision under section 33 of the BA11;

        (f) the BCA; and

        (g) subject to section 33 of the BA, the QDC.

77.     “Local planning instrument” is defined in the BA as being a local planning instrument
        under the PA. Section 8 of the PA defines a “local planning instrument” to be a planning

9
  Schedule 4 (Dictionary) of the Local Government Act 2009 defines a resolution of a local government to mean the formal decision
   of the local government at a local government meeting.
10
   Section 32 of the BA relevantly provides that a local government may make or amend: a local planning instrument, local law,
   planning scheme or a resolution about building work or other matters related to the BCA or QDC prescribed under a regulation; or
   alternative provisions under section 33 of the BA.
11
   Section 33 of the BA relevantly provides that a planning scheme can include alternative provisions to the QDC’s residential design
   and siting provisions for particular buildings and only if the provisions are a qualitative statement or quantifiable standard.




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