1. The Applicant provided the following submissions on reg 79 of the Regulations.

(a) Although portions of the proposal sit closer than the prescribed 1000mm, overshadowing, overlooking, and access to daylight have been comprehensively modelled and fall within acceptable thresholds of A10 side setbacks it submits.

(b) No habitable room windows or significant open space on adjoining properties will experience unreasonable impacts. Shadow diagrams showing compliance with the requirement of minimum 5 hours on at least 40sqm without additional shadow onto the neighbours' SPOSs at 9am, 12pm, 1pm, 2pm or 3pm on June 21 - Compliance with Standard A11 daylight requirements to neighbouring windows

(c) The lot is relatively narrow and constrained in width. The Northern aspect is oriented toward the street, making access to winter solar radiation challenging. Minor variations to wall heights and setbacks were incorporated to allow access to natural light for the Eastern neighbouring habitable windows and enable a functional layout that meets contemporary standards for living, accessibility, and energy efficiency. Elements such as rainwater heads and water tanks are infrastructure items, minor in scale and impact, and consistent with common practice across similar sites. Their placement does not affect privacy, amenity, or building bulk perception.

(d) The Applicant submits that the refusals by the Council fail to recognize that strict numerical compliance would result in a worse outcome for all parties. A 6.678m setback would either push building mass against our neighbours' boundaries or necessitate a two-storey design, both options creating greater impacts than our current proposal.

1. The Applicant provided the following regarding other setbacks in the street which were not disputed by the other parties

(a) 135 Stewart Street Brunswick East - main building set back 0m

(b) 137 Stewart Street Brunswick East - main building set back 3.7m

(c) 139 Stewart Street Brunswick East - main building set back 4m

(d) 141 Stewart Street Brunswick East - main building set back 4m

(e) 143 Stewart Street Brunswick East - main building set back 3.4m

(f) 145 Stewart Street Brunswick East - main building set back 3.4m

(g) 147 Stewart Street Brunswick East - main building set back 3.4m

(h) 148 Stewart Street Brunswick East - main building set back 3.8m

(i) 149 Stewart Street Brunswick East - main building set back 1.3m

(j) 158 Stewart Street Brunswick East - main building set back 3.8m

(k) 160 Stewart Street Brunswick East - main building set back 3.3m

(l) 161 Stewart Street Brunswick East - main building set back 4.2m

(m) 162 Stewart Street Brunswick East - main building set back 3.3m

(n) 164 Stewart Street Brunswick East - main building set back 4.5m

(o) 170 Stewart Street Brunswick East - main building set back 3m

(p) 171 Stewart Street Brunswick East - main building set back 5m

(q) 173 Stweart Street Brunswick East - main building set back 4.4m

(r) 174 Stewart Street Brunswick East - main building set back 3.4m

(s) 175 Stewart Street Brunswick East - main building set back 2.1m

(t) 177 Stweart Street Brunswick East - main building set back 3m

(u) 178 Stewart Street Brunswick East - main building set back 4.5m

(v) 181 Stewart Street Brunswick East - main building set back 3m

(w) 184 Stewart Street Brunswick East - main building set back 3.3m

(x) 185 Stewart Street Brunswick East - main building set back 3m

(y) 192(a)(b) Stewart Street Brunswick East - main building set back 1.4m

(z) 194 Stewart Street Brunswick East - main building set back 4.5m

(aa) 196 Stewart Street Brunswick East - main building set 3.6m

(bb) 198 Stewart Street Brunswick East - main building set 3.4m

(cc) 202 Stewart Street Brunswick East - main building set 3m

(dd) 208 Stewart Street Brunswick East - main building set 4.2m

(ee) 210 Stewart Street Brunswick East - main building set 4.2m

(ff) 212 Stewart Street Brunswick East - main building set 4m

(gg) 220 Stewart Street Brunswick East - main building set 4.8m

(hh) 222 Stewart Street Brunswick East - main building set 5.2m

(ii) 232 Stewart Street Brunswick East - main building set 3.75m

(jj) 149a Stewart Street Brunswick East - main building set 2.5m

(kk) 168a Stewart Street Brunswick East - main building set 3m

(ll) 192a Stewart Steet Brunswick East - main building set 1.4m

(mm) 2b Orari Avenue Brunswick East - main building set 3.5m

1. The Applicant submits that based on this data the average setbacks range from 4337.91-4659.72[3]
2. The Applicant relies on an expert architectural assessment report dated 7 December 2024 from Evissa Pty Ltd (which noted the Passivhaus sustainability guidelines).

1. The Council provided the following submissions in support of its position.

(a) The required front setback, as per Regulation 74 is 6678mm. The required setback for the proposed walls at heights of 3280mm & 3060mm to the eastern boundary, as perreg 79, is 1000mm. The required setback for the proposed wall at a height of 4481mm to the western boundary, as per reg 79, is 1264mm

(b) Stewart Street runs in an east/west direction, and intersects with Nicholson Street to the east, and Lygon Street to the west. The Subject Lite is located on the southern side of Stewart Street. The site is rectangular with an allotment area of approximately 468.25m2. The site is approximately 12.8m wide by 36.57m in length. The eastern allotment boundary adjoins number 218 Stewart Street, and the western allotment boundary adjoins 214 Stewart Street.

(c) Clause 15.01-5S of the Merri-Bek Planning Scheme sets out the objectives and strategies as follows:

To recognise, support and protect neighbourhood character, cultural identity, and sense of place.

Support development that respects the existing neighbourhood character or contributes to a preferred neighbourhood character.

Ensure the preferred neighbourhood character is consistent with medium and higher density housing outcomes in areas identified for increased housing.

Ensure development responds to its context and reinforces a sense of place and the valued features and characteristics of the local environment and place by respecting the:

• Pattern of local urban structure and subdivision.
• Underlying natural landscape character and significant vegetation.
• Neighbourhood character values and built form that reflect community identity.

Clause 15.01-5L - Incremental and minimal change areas policy guidelines

• Where the prevailing height of surrounding buildings in incremental change areas is not three or more storeys, designing three storey developments to have a:
  • Visually recessive third storey.
  • Building height of no more than two storeys at the interface with adjoining properties and the public realm.
• Designing development in rear yards to be single storey unless either:
  • The prevailing context is not one of open rear yards and garden outlooks.
  • The building envelope respects the existing character of open rear yards and garden outlooks though provision of:
    • Generous side and rear setbacks.
    • Private open space at ground floor that provides space for screen tree planting around the development
    • sensitive design of the upper levels with adequate articulation, setbacks and materials to minimise visual bulk impacts as seen from neighbouring rear secluded open spaces.

Schedule 1 to Clause 32.09 Neighbourhood Residential Zone sets the neighbourhood character objectives in these areas:

To promote a preferred neighbourhood character where the design and siting of new dwellings include generous landscaping through the retention of existing canopy trees (where practicable) and the planting of new canopy trees and vegetation.

1. The Council provided the following submissions in support of its position on reg 74 of the Regulations:

(a) The setback will not be more appropriate taking into account the prevailing setback within the street as:

(i) The southern side of Stewart Street has setbacks that change from approximately 3.9m-7.5m. The allotments on either side of the subject site have setbacks of 7.5m and 5.9m, while smaller setbacks can be seen at the small dwellings/lots on each corner of the block, with setbacks of 3.9m and 4.8m.

(ii) Taking the setbacks in the street into consideration, the prevailing setback is seen to exceed 4.5m. With only one nearby property having a setback smaller than 4m (212 Stewart Street), this is not seen as prevailing.

(iii) The proposed setback of 3.520m-5.757m is therefore not consistent with the prevailing setback within the street and doesn't respect the prevailing setbacks established and maintained by existing dwellings within Stewart Street.

(b) The siting of the building is not constrained by the shape and dimensions of the allotment.

(c) The site has an approximate fall of 770mm from rear to front and the Council does not believe that the slope would constrain the location of the building on the site.

(d) There is no need to decrease the setback to maximise solar access to habitable room windows or private open space.

(e) No significant vegetation exists on site.

(f) The setback will result in a disruption of the streetscape because:

(i) The proposed front setback does not respect the prevailing setbacks established and maintained by existing dwellings within Stewart Street.

(ii) The proposed reduced front setback of approximately 3.1m is significant and would result in a visually dominant/bulky structure, resulting in a disruption of the streetscape and the character of the neighbourhood.

(iii) Furthermore, approval of the proposed front setbacks would cause an undesirable precedent for future development on nearby allotments thereby altering the preferred streetscape and neighbourhood character of Stewart Street.

1. The Council provided the following information in support of its position on reg 79 of the Regulations:

(a) The setback will result in a significant impact on the amenity of the secluded private open space and habitable room windows of existing dwellings on nearby allotments because:

(i) The walls to the eastern boundary are located directly opposite habitable room windows at 218 Stewart Street. These are both highlight windows, and both affected rooms have alternate windows to provide ample daylight for the spaces. As such, the Council is of the opinion that these walls will not significantly impact the amenity of these windows and the associated habitable spaces.

(ii) The wall facing the western allotment boundary is proposed to be located opposite the private open space of 214 Stewart Street. The proposed setback of 1160mm in lieu of 1264mm is minimal, and in Council's opinion will not result in significant impact on the secluded private open space.

(iii) Although Council concedes that these non-compliances would not result in significant impact on the amenity of the secluded private open space and habitable room windows, comments received from the adjoining owner at 218 Stewart Street have been considered under Minister's Guideline MG-03 (MG-03). The owners of the adjoining property claim that this non-compliance will have significant impact on the amenity of their property.

(iv) An effort can be seen to have been made in the design of the walls to allow 1m clear to sky and minimize the impact to habitable room windows, however, the extent of non-compliance is significant (789mm) and objections from the adjoining owner have been considered. Therefore, in adherence with MG-03, the comments have been deemed non-frivolous, and Council is not able to support the reduced setbacks.

(b) Walls on boundaries can be seen at 212 Stewart Street and 220 Stewart Street, and as such, the Council accepts that the reduced setbacks will not result in a disruption of the streetscape.

(c) The Council submits that the setback will not be more appropriate taking into account the prevailing setback of existing buildings on nearby allotments. This is because although walls on boundaries can be seen on nearby allotments, a setback between 200-1000mm is not prevailing. The walls on boundaries on nearby allotments are typically the length of a garage, and seemingly compliant with reg 80 of the Regulations. The Council contends that the proposed walls, having setbacks of 211mm and 212mm, and a combined length of over 22.5m, is not consistent with the prevailing setbacks on nearby allotments.

(d) The slope of the allotment and or existing retaining walls or fences do not reduce the effective height of the building

(e) The building does not abut a side or rear lane.

(f) The building is not opposite an existing wall built to or within 150mm of the boundary.

1. There were no written or oral submissions made by the First Interested Parties.

SECOND INTERESTED PARTIES SUBMISSIONS AND EVIDENCE

1. The Second Interested Parties' position is as follows:

(a) The Second Interested Parties' objection to the proposed setbacks is based on an architectural report.

(b) The Second Interested Parties note that each setback on the street is unique and takes into account the dwelling type and point in time the building approval was granted.

1. The Second Interested Parties provided a report from Economedes Architecture dated January 2025 which provides the following opinion:

(a) 214 Stewart Street is a single story weatherboard dwelling to the west of subject site and has a 7.5m setback to Stweart Street. 218 Stewart Street the property is occupied by a single story weatherboard dwelling to the east of the subject site and has a 6m setback.

(b) There is a concern regarding front setback, length of walls on boundary and height of walls on boundary.

(c) Currently, the front setback to the existing dwelling on the subject site is 7.5m while the neighbouring properties at No. 214 & No. 218 have front setbacks of 7.5m and 6.0m respectively. The proposal however consists of a front setback of 3.85m which is not in keeping with the street character. This drastically affects the amenity of the Second Interested Party's property at No. 218 due an extra 3.65m of wall, not only towards the street, but also on the shared boundary.

(d) Regulation 80 protects the amenity of adjoining allotments by limiting the height and length of walls or carports that will be on or within 200mm of an adjoining allotment boundary. The maximum allowable length of all walls built on the boundary can be calculated as follows: a + b + c ≤ 10 + [0.25 (d-10)] where d = boundary length. In this particular case, the eastern boundary between the Second Interested Party's property and the subject site consists of a boundary length of 36.58m. The proposed length of wall on boundary equates to a total of 22.74m. This again drastically affects the amenity of Second Interested Parties' property especially when compared to no wall on boundary currently.

(e) Similar to above, there is also a concern with not only the length of wall on boundary, but also the height of walls on boundary. The average height of a wall on a boundary must not exceed 3.2m. The average height is calculated by dividing the total area of the wall by the total length of the wall. Given the survey and proposed elevations provided, the boundary wall (north of the proposed courtyard) seems to be higher than what is allowable. A detailed section will need to be provided to determine the exact height above natural ground level. There are concerns with the habitable room windows along the north/western side of the Second Interested Parties' property

(f) The purpose of regulation 81 (daylight to existing habitable room windows) is to ensure adequate daylight is provided to existing habitable room windows of an existing dwelling on an adjoining allotment and shown above.

(g) Furthermore, the subject site proposes a wall / building of 3.835 metres at 1.0m from boundary. The purpose of regulation 75(3) is to control the height of the part of a building that is within 1m of a boundary and adjacent to a boundary wall on the subject site.

(h) The expert concludes that the proposal is likely to have a detrimental impact on the amenity of the adjoining properties.

THE APPLICANT'S REPLY TO COUNCIL AND INTERESTED PARTIES POSITIONS

1. In relation to the Council's and Interested Parties' contentions the Applicant says as follows:

(a) In relation to reg 74 of the Regulations, the Council asserts disruption of the prevailing setbacks. Evidence shows a broader context with setbacks from 1.3m to 7.6m, and varied architectural character (Victorian terraces, interwar bungalows, modern infill). The proposal's 3.5-3.85m setback lies within this range and is coupled with low-bulk single- storey form. Comparative drawings demonstrate that a compliant two-storey form would worsen overshadowing.

(b) In relation to reg 79 of the Regulations the Council cites encroachments. The west variation is minor (104mm), with no objection from 218 Stewart. Shadowing comply with Standard A11. Forward siting reduces bulk compared to a compliant two-storey form. Eastern walls are articulated to mitigate impact.

(c) Even if 214 Stewart were redeveloped, front solar access would be compromised regardless. Rear siting ensures resilient solar outcomes.

(d) There is a net green gain to the vegetation and landscaping.

(e) The Council itself concedes that the western variation (1160mm vs 1264mm) is minimal and would not result in any significant amenity impact, and that it would have been supportive of this outcome. Similarly, the Council acknowledges that the eastern walls face only highlight windows at 218 Stewart, with alternate windows providing ample daylight, such that no significant impact arises. The Council also accepts that boundary walls are already characteristic of Stewart Street and do not disrupt the streetscape. These concessions reinforce that the proposal satisfies the intent of reg 79 and that refusal on these grounds is not justified.

(f) The Council asserts that approval would set an undesirable precedent. On the contrary, the Board has repeatedly confirmed that variations which reflect existing street diversity do not create adverse precedent but rather recognise contextual reality. In Everly v Darebin[4] and Tregent v Casey CC[5], reduced setbacks were allowed precisely because surrounding properties already exhibited a wide range of setbacks and architectural forms. The same is true here: surveys A3-A5 demonstrate setbacks along Stewart Street between 1.3m and 7.6m. Approval of this proposal would therefore be consistent with established BAB principles, reinforcing the contextual integrity of Stewart Street rather than undermining it.

1. We have considered the parties' oral and written submissions and the material filed with the BAB. We have also based our assessment of setback distances on the plans Revision TP6 dated 23 May 2025 as these appear to be what was available to the Council at the time of making its decision. We have further had regard to an additional set on file Rev TP8 dated 10 July 2025 'issued for BAB appeal' as part of our assessment.
2. We have also had regard to the applicable Decision Guidelines set out under the MG-12, given it is a relevant consideration for the BAB to consider.
3. Based on these considerations we make the following findings.
4. The proposal is described in the plans prepared by Evissa Architects Revision TP6 dated 23 May 2025. The proposal is a bespoke design concept for a single dwelling that adopts passive house principles. It provides for transition in the front wall setback across the frontage from east to west but is constructed on or close to the boundary on either side. There is a wide eave/porch consistent with the parapet line of the office that provides a shadow line to the garage. Above the garage is a roof deck area which will enjoy outlook to the street.
5. We are required to consider the plans that are before us for a single story dwelling based on the law that applies at the date of our determination. To this extent the applicant's assertion that a two-storey form would have a worse impact on the street and neighbouring amenity, whilst potentially true, cannot form part of the decision as there are no plans or sufficiently substantive submissions on this issue. Accordingly, as we are required to consider the proposal before us, we have placed no weight on this submission.
6. We will consider the appeals in respect of reg 74 of the Building Regulations 2018 (Regulations) and the appeals in respect of reg 79 of the Regulations separately having regard to the applicable Decision Guidelines in MG-12.

Appeals 1, 2 and 3 relating to Reg 74 of the Regulations

1. Prior to assessing the appeals, we note the Applicant raised the concept of 'effective setback' as a measurement methodology. The Applicant has noted that elements such as front porches provide an 'effective' setback that is smaller than a front setback simply to the front wall of the building.
2. In our view, reg 74 of the Regulations must govern how to measure the front setback. Regulation 74 of the Regulations states clearly in calculating the front setback:

The average distance of the setbacks of the front walls of the existing buildings on the adjoining allotments facing the front street, or 9m, whichever is the lesser" (our emphasis added).

1. Accordingly, whilst we accept that porches and verandahs do exist, these structures are treated separately under reg 74 of the Regulations. These structures are expressly permitted to encroach into the front setback distance. The front setback distance is calculated by reference to the front wall of the existing building. This suggests porches, pergolas and verandahs are considered as separate and distinct from a dwelling's front walls.
2. We will have regard to the front setback distances to the proposed building's walls rather than other architectural features or structures which do not form part of the building walls.
3. In relation to Appeals 1, 2 and 3, it is common ground that the setback of the office window, front wall and garage wall do not comply with reg 74 (2) of the Regulations. The window is proposed to be setback 3520mm, the front wall of the office 3850mm and the garage 5757mm where the required setback is 6678mm.
4. We turn now to review Appeals 1, 2 and 3 in the context of the MG-12 Decision Guidelines.

(a) the setback is consistent with a building envelope, if one has been approved under a planning scheme or planning permit and or specified in an agreement under section 173 of the Planning and Environment Act 1987;

1. Decision criterion (a) is not material to Appeals 1, 2 and 3 as there is no building envelope approved under a planning scheme or planning permit specified in an agreement under section 173 of the Planning and Environment Act 1987.

(b) the setback will not result in a disruption of the streetscape;

1. We accept the submissions of the Applicant that this is a streetscape which exhibits a variety of dwelling types and forms and front setbacks. The Applicant calculated the average setback as ranging from 4.337s to 4.659m. This is consistent with the submissions of the Council that the range occurred from 3.9m to 7.5m with a prevailing front setback greater than 4.5m.
2. The Council accepted in both written and verbal submissions that the Subject Land was sandwiched in a block with allotments containing 3.9m as shown on plans, but street survey shows 4m, and 4.8 metres front setbacks. The Council offered a compromise of a 4.5m setback for the office window with a commensurate setback for the office wall and garage in order to maintain articulation within the facade.
3. In the location of the Subject Land within the streetscape, we find that the proposed setback will create disruption to the streetscape, because the proposed setback is closer than the setback of 212 Stewart Street, the average setback is in the order of 4.5m and the setback of both the neighbouring properties to the Subject Land contain larger front setbacks. However, there are other properties contained within the streetscape that have shorter setbacks, some in close proximity to the Subject Land.
4. Given this, we consider that a 4m setback would be more appropriate for the office wall (Appeal 2), but consider a lesser setback of 3.63 metres is appropriate for the office window (Appeal 1) as a 330mm alteration for a window feature would not disrupt the streetscape and this would bring the front setback into alignment with nearby front setbacks.
5. We note the position for the garage, which is the subject of Appeal 3, would be different. There is a roof guard/eave which projects from the garage closely aligned with the setback of the office wall. However, the structural wall of the garage is set back from the front at 5.757 metres, is recessive and will not disrupt the streetscape. This setback is greater than the office wall and window and this setback will retain articulation between the dwelling and garage portions of the proposed building.
6. We find that within this varied context that the setback of the garage is sufficient to ensure that this element does not disrupt the streetscape.
7. We note that part of the objective in MG12 is to make efficient use of the site. We are satisfied that the increased setback we have required for the office wall and window, but allowing the garage to remain retains the efficient used of the site
8. We are confident that the architect can refine the façade of the dwelling to maintain articulation and visual interest in the façade.

(c) the setback is consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme;

1. The Council stated that decision criterion (c) is not material as specific setbacks are not identified in the relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme.
2. We accept Council's submission that a specified front setback distance has not been identified. However, we are required in criterion (c) to consider any relevant neighbourhood character objective, policy or statement (our emphasis). The parties referred us to the Merri-bek Planning Scheme ('Scheme'). The site is located within an area of minimal change at Clause 2.04 of the scheme. Within minimal change areas the scheme the scheme includes policy to:

Create or enhance a landscape character by designing and siting new development to integrate generous landscaping though the retention of existing canopy trees (where practical) and the planting of new canopy trees.

1. This is reflected in the specific preferred neighbourhood character objective set out in schedule 1 to the Neighbourhood Residential Zone in the Merri-bek planning scheme:

To promote a preferred neighbourhood character where the design and siting of new dwellings include generous landscaping through the retention of existing canopy trees (where practicable) and the planting of new canopy trees and vegetation.

The schedule to the zone does not vary the front setback requirements but we do not accept the Council contention that this means that the above objective is not relevant to our consideration. The objective specifically refers to the 'siting of new dwellings'.

1. The parties addressed this in oral submissions at the hearing. While we accept the applicant's submission that the setback proposed will allow the provision of a small tree in front of the office window, we note that the additional setback that we have required for reasons set out above will also support the specific neighbourhood character objectives of the zone.

(d) the setback will be more appropriate taking into account the prevailing setback within the street;

1. As we have set out above a front setback of 4 metres for the office wall (Appeal 1) would be in keeping with some of the more nearby allotment's front setbacks and reduce the difference to the immediately adjoining properties. Whilst the proposed front setback for the office window (Appeal 2) would not be aligned to the prevailing front setback, a front setback of 3.63 metres for the office window would be more appropriate to maintain the window as a feature in the context of the prevailing front setbacks.
2. We find this to be a minor protrusion from the office wall that will not adversely affect the prevailing front setback.
3. We consider that the garage (Appeal 3) is setback further than 4.5 metres from the front and we find this is appropriate and consistent with the prevailing front setback.

(e) the setback will be more appropriate taking into account the preferred character of the area, where it has been identified in the relevant planning scheme;

1. The Council has indicated that the Decision Guideline (e) was not material to his decision as Schedule 1 to Clause 32.09 Neighbourhood Residential Zone does not identify requirements for minimum street setbacks, or neighbourhood character objectives relating to setbacks.
2. As noted above, the preferred character of the area is specified in the zone and relates to generous landscaping and planting of canopy trees.
3. We have already addressed the more appropriate setback of 4 metres for the office wall to have regard to this preferred character and the planting of canopy trees.
4. We note that the garage setback would meet this criterion.

(f) the siting of the building is constrained by the shape and or dimensions of the allotment;

1. The Decision Guideline (f) is not material in considering Appeals 1, 2 and 3 as the siting of the building is not constrained by the shape and or dimensions of the allotment.

(g) the siting of the building is constrained by the slope of the allotment or other conditions on the allotment;

1. The decision criterion (g) is not material in considering Appeals 1, 2 and 3 as the siting of the building is not constrained by the slope of the allotment or other conditions on the allotment.

(h) there is a need to decrease the setback to maximise solar access to habitable room windows and or private open space;

1. We note that the proposed reduced front setback has provided greater scope for the architect in incorporating passive house principles as set out in the evidence of the architects.
2. The Decision Guideline (h) is not material in considering Appeals 1, 2 and 3. The reduced setback is not required to maximise solar access to the office window as this window has a northern aspect. We find that reduced setback is not required to maximise solar access to proposed habitable room windows or those on adjoining properties given the orientation of the allotment.
3. The Applicant submitted that an increase front setback may result in smaller internal courtyards which are designed to provide improved solar access. We find that the setback proposed is not required to achieve this and note that the increased setback that we have required can be accommodated in the design in several ways.
4. The garage, which is the subject of Appeal 3, does not possess a habitable room requiring solar access or a private open space to which a decreased setback could apply.
5. The applicant emphasised the need to accommodate solar panels and the like, but these are located to the rear of the site.

(i) the setback will be more appropriate taking into account the desire or need to retain vegetation on the allotment.

1. The decision criterion (i) is not material in considering Appeals 1, 2 and 3 as there is no substantial vegetation for retention.

1. We have concluded that the more appropriate front setback for the office wall (Appeal 2), taking into account reg 74 of the Regulations and the MG-12 guidelines, is 4 metres.
2. Under Appeal 1, taking into account reg 74 of the Regulations, the MG-12 guidelines and our relevant findings in Appeal 2, the appropriate setback for the office window is 3.63 metres.
3. Under Appeal 3, we accept the siting of the garage in the proposed design.
4. We find that these setbacks will:

(a) Ensure the streetscape is not disrupted by bringing the dwelling closer than the prevailing front setback or those front setbacks closer to the proposed dwelling.

(b) Meet the preferred neighbourhood character outcome by maintaining sufficient space for landscaping

(c) Maintain articulation across the frontage of the garage.

1. We note the First Interested Parties submitted that the office wall would result in disruption of the streetscape but the increase setback of the office wall and window that we have required will assist in transition to the east.
2. We will make orders relating to Appeals 1, 2 and 3 to give effect to our findings.

Appeals 4, 5, 6, 7 and 8 relating to reg 79 of the Regulations

1. The proposal provides for walls and services proximate to the eastern side boundary. The walls are offset from the boundary just over 200mm to allow for the retention of the existing boundary fence and to ensure that the standard for daylight to habitable room windows requirements are met.
2. There is also an encroachment for the living room wall to the western boundary.
3. We will turn now to consider the relevant MG-12 Decision Guidelines which are relevant in Appeals 4, 5, 6, 7 and 8.

(a) the setback will not result in a significant impact on the amenity of the secluded private open space and habitable room windows of existing dwellings on nearby allotments;

1. The evidence from both the Applicant and the Council was that the building elements the subject of Appeals 4, 5, 6, 7 and 8 would not impact the amenity of the secluded private open space or habitable room windows of the existing dwellings on nearby allotments. However, the interested party did not support the proposed side setbacks.
2. We note that the Second Interested Party produced an architectural report in support of their objection to the Appeals relating to the Eastern side of the proposed dwelling. That architectural report suggests a reduction to amenity based on reg 75, 80 and 81 of the Regulations which are not relevant to these appeals. There is no evidence of non-compliance with those regulations. Further, the length of the walls and height of the walls was identified as an issue. However, the proposed dwelling is a single-story dwelling which greatly reduces the potential wall heights. We have already noted our findings in relation the amenities of solar access, outlook and secluded private open space and do not consider that a significant adverse impact is established. In addition to the above, we have already addressed the front setback issue raised in the report.
3. There appears to have been a concerted design effort to reduce impacts on the amenity of the adjoining properties, in particular to the secluded private open space and habitable room windows.
4. We find that the reduction in side setbacks to the east will not result in significant impact on the amenity the adjoining property because:

(a) The wall of the office and bedroom 1 generally aligns with the location of the adjoining car port. We have increased the front setback of the office as set out above which will further limit any impact.

(b) There is a courtyard proposed on the eastern boundary between bedrooms 1 and 2 that generally reflects the alignment of the entry courtyard on the adjoining property and will protect outlook from the north facing bedroom window perpendicular to the proposed new wall.

(c) The bedroom and living room walls are located opposite two highlight windows which have limited outlook. Daylight is maintained to these windows.

(d) The extent to which the living room extends beyond the line of the adjoining dwelling to the rear is minimal and will not result in unacceptable shadow or visual bulk to the secluded private open space.

1. In relation to Appeal 6, neither the Council nor the First Interested Party who owns the adjoining property on the Western side, objected to this appeal. We find that the reduction in the living room setback to the west will not result in any amenity impact to the western neighbour. The extent of encroachment is minor in nature and will not result in significant shadow, bulk or other amenity impact.
2. In relation to Appeals 7 and 8, we do not consider that the rainwater heads (box gutters) or the rainwater tank impact amenity to the secluded private open space and habitable room windows. This is because by their nature box gutters reduce overhanging and overshadowing and would be the preferable method to reduce such impacts. The ceiling heights are stepped with a box gutter so as to minimise the wall heights on the boundary. Further, the rainwater tank location has minimal impact on those amenities

(b) the setback is consistent with a building envelope, if one has been approved under a planning scheme or planning permit and or specified in an agreement under section 173 of the Planning and Environment Act 1987;

1. Decision Guideline (b) is not material to Appeals 4, 5, 6, 7 and 8 as there is no building envelope approved under a planning scheme or planning permit specified in an agreement under section 173 of the Planning and Environment Act 1987.

(c) the setback will not result in a disruption of the streetscape;

1. We find that the proposed side setbacks the subject of Appeals 4, 5, 6, 7 and 8 will not disrupt the streetscape. It is not uncommon within this streetscape for garage walls or other building elements to be constructed on or proximate to at least one side boundary. The reduced setbacks are consistent with this streetscape character.
2. We further note that the side setbacks sought under Appeals 5, 6, 7 and 8 will not be visible from the street. Given this, we find that the proposed side setback changes will not result in a disruption of the streetscape.

(d) the setback is consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme,

1. Decision Guideline (d) is not material to Appeals 4, 5, 6, 7 and 8. While the preferred neighbourhood character objective seeks space for canopy trees, this is primarily achieved through provision of front and rear setbacks and areas of private open space such as the proposed courtyards.

(e) the setback will be more appropriate taking into account the prevailing setback of existing buildings on nearby allotments;

1. As noted above, we do not consider that there is a prevailing side setback for existing buildings on nearby allotments.
2. Given this, we consider that the side setbacks sought in Appeals 4, 5, 6, 7 and 8 would be appropriate taking into account this lack of prevailing side setbacks for existing building on nearby allotments

(f) the setback will be more appropriate taking into account the preferred character of the area, where it has been identified in the relevant planning scheme; or

1. We consider that decision criterion (f) has some relevance to the office wall the subject of Appeal 4, in part, due to its interaction with Appeal 2.
2. Accordingly, due to the current reduction to the front office wall which will better comply with the preferred character of the area in relation to planting of canopy trees, this assists in Appeal 4 which relate to the Office and Bedroom 1 wall. Otherwise, the side setback complies with the preferred character of the area.
3. The Decision Guideline (f) is not material to Appeals 5, 6, 7 and 8 as there is no preferred character of the area identified in the relevant planning scheme which relates to these side setback matters.

(g) the slope of the allotment and or existing retaining walls or fences reduce the effective height of the building;

1. The Decision Guideline (g) is not material to appeals 4, 5, 6, 7 and 8 as the slope of the allotment and or existing retaining walls or fences do not reduce the effective height of the building.

1. The decision criterion (h) is not material to appeals 4, 5, 6, 7 and 8 as the proposed building does not abut a side or rear lane.

(i) the building is opposite an existing wall built to or within 150mm of the boundary.

The decision criterion (i) is not material to appeals 4, 5, 6, 7 and 8 as the building is not opposite an existing wall built to or within 150mm of the boundary.

1. We consider that the Appeals 4, 5, 6, 7 and 8 meet the requirements for a varied side setback under the MG-12 guidelines.
2. We will accordingly grant those appeals by setting aside the decisions below and substituting decision that grants the relief sought.

[1] Clause 17 of Schedule 3 to the Building Act 1993 provides: 'Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs'.

[2] This reflects that the BAB stands in the shoes of the Council and that it is desirable for the BAB to promote consistent decision making within the regulatory framework. Further, the BAB has considered the content of the Guidelines and concludes that the Guidelines set out by the Minister are reasonable and appropriate requirements.