CITATION Barry v Maroondah City Council [2025] VBAB 111

Having considered all the submissions and information placed before it, the Building Appeals Board (the BAB) determines that:

1. Pursuant to s 149(1)(d) of the Building Act 1993 (the Building Act), the decision of the Respondent, Maroondah City Council dated 30 May 2025 refusing consent to the construction of a garage with a front setback of 7.5m instead of the required 9m as required under reg 74 of the Building Regulations 2018 (the Regulations) is set-aside.
2. Pursuant to s 149(1)(d)(i) of the Building Act, the decision set-aside by Order 1 of these orders is substituted with the BAB's own decision consenting to the construction of a garage with a front setback of 7.5m instead of the required 9m as required under reg 74 of the Regulations.
3. Pursuant to sch 3, cl 16(3) to the Building Act, liberty to apply on the question of costs, subject to such liberty being exercised within 14 days of the date of this determination.

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1. On 19 March 2025, the Applicant applied for the consent of the Respondent, Maroondah City Council (the Council) to a building permit application for a proposed design in respect of a garage to be built at 23 Lois Street, Ringwood East (the Subject Land).
2. The garage would have a front setback of 7.5m instead of the required 9m as required under reg 74 of the Building Regulations 2018 (the Regulations).
3. Under reg 74(4) of the Regulations:

The report and consent of the relevant council must be obtained to an application for a building permit in relation to a design that does not comply with this regulation.

1. On 30 May 2025 the Council refused consent, reasoning that:
   1. It is considered that the proposed setback will result in a disruption of the streetscape; and
   2. It is considered that the proposed setback will not be more appropriate taking into account the prevailing setback within the street; and
   3. It is considered that the siting of the building is not constrained by either the shape or dimensions of the allotment; and
   4. It is considered that the siting of the building is not constrained by the slope of the allotment or other conditions on the allotment; and
   5. It is considered that there is no need to decrease the setback to maximise solar access to habitable room windows and or private open space; and
   6. It is considered that the proposal is not consistent with _S_ection 173 Agreement AU016832T as registered on title.
2. On 26 June 2025 the Applicant appealed the decision (the Appeal) under s 144(1)(a) of the Building Act 1993 (Building Act) to the Building Appeals Board (BAB).
3. The Appeal was dealt with 'on the papers' on 14 August 2025.
4. I have considered the parties' written submissions, and the material filed with the BAB. I have also had regard to the applicable Decision Guidelines set out under the Minister's Guideline MG-12, given it is a relevant consideration for the BAB to consider. Based on these considerations I make the following findings.
5. Under the provisions currently applied under the Regulations a 9m setback is required, however a number of circumstances have been considered as part of the appeal:

a) The prevailing setbacks along the street vary from 6m through to 9m. > > b) Had there been a multi-unit development under Clause 55 of the Planning Scheme, a 6m front setback would be permissible. > > c) The Victorian State Government has developed a new Code for Townhouse and Low-Rise developments, effectively amending Clause 55 (ResCode) of the Planning Scheme through Amendment VC267 as well as a new clause 54 similarly effecting singe dwellings on a lot and small second dwellings. B2-1 of the Code will change the street setback, reducing the front setback from 9m to 6m, no longer taking the average of the two adjoining properties. The standard takes the lesser setback of a dwelling on an abutting allotment where this setback is less than 6m. > > d) Whilst I appreciate that the Council had recommended to the applicant that they withdraw the appeal and wait for the new Code to come into effect, the applicant nevertheless proceeded to appeal the decision of the Council.

6. Having regard to the above, I find that the request to construct the garage at a front yard setback of 7.5m is considered reasonable as it will not impose upon the existing streetscape character. I further find that many homes along the street have setbacks less than 7.5m and that the single storey-built form has an articulated façade. Finally, the new Statewide Code, were it a townhouse or low-rise apartment building, enables the garage setback to be reduced even further than the requested 7.5m.