APPLICANTS Alison Dane and Shaun Warrington (Subject Land owners)

BEFORE Members H Hodges (panel chair) and J Homewood

CITATION Dane & Anor v Yarra Ranges Shire Council [2025] VBAB 123

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

1. Pursuant to s 149(1)(d) of the Building Act 1993 (the Building Act), the decision of the Respondent, the Yarra Ranges Council dated 12 June 2025 refusing consent to an extension to the dwelling (Garage/Store) that would have a 2.140m frontage setback, instead of the required 7.5m minimum required front setback 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 proposed extension to the dwelling (Garage/Store) with a 2.140m setback, instead of the required 7.5m minimum required front setback due to its front orientation to View Street and meeting the applicable criterion contained in the Minister's Guidelines 12 (MG-12).
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.[1]

_______________________ ________________________

For the Respondent Kate Campbell, delegate of the Respondent

1. On 20 June 2025, Alison Dane and Shaun Warrington (the Applicants) applied for the consent of the Respondent, Yarra Ranges Council (the Council) to a building permit application for a proposed design in respect of an extension to be erected/built at 5 Gear Avenue, Mount Evelyn (the Subject Land).
2. The extension would have a 2.140m frontage setback, instead of the required 7.5m minimum required by reg 74 of the Building Regulations 2018 (the Regulations).
3. Under regulation 74 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 12 June 2025, the Council refused consent, reasoning that:

In accordance with the Ministers Decision Guidelines, you are advised that Council is of the opinion that:

• the setback will result in a disruption of the streetscape, and is not considered to be a generous front setback as per the requirement in the neighbourhood character study
• The proposed setback does not provide a consistent setback along each road to create a consistent alignment of façades.

1. On 9 July 2025, the Applicants appealed the decision (the Appeal) under s 144(1)(a) of the Building Act 1993 (Building Act) to the Building Appeals Board (BAB).
2. The Appeal was heard on 28 August 2025.

1. Section 160(2) of the Act states, in part:

(2) An application may be made to the Building Appeals Board for a determination that a provision of the building regulations -

(a) does not apply; or

(b) applies with the modifications or variations specified in the application -

to a building or land specified in the application.

1. Section 162 of the Act states, in part:
   1. Special powers - modification of regulations

...

(3) The Building Appeals Board must not determine that a provision of the building regulations applies to a building or land in a modified or varied form unless satisfied that to do so is reasonable and not detrimental to the public interest.

1. The following Regulations are relevant to the consideration of one or more of the proceedings:

(a) an allotment is in a zone of a planning scheme specified in Schedule 6; and

(b) a schedule to that zone specifies a setback from a street alignment -

a building on that allotment must be set back from a street alignment not less than the relevant setback specified for the street alignment in the schedule.

(2) If subregulation (1) does not apply, a building must be set back from a street alignment not less than the distance specified in respect of that alignment in Table 74.

Existing dwellings on adjoining allotments facing the same street

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

(3) The following may encroach into the setback distance required by subregulation (1) or (2) by not more than 2·5 m -

(a) porches, verandahs and pergolas that have a maximum height of less than 3·6 m above natural ground level;

(b) eaves, fascia and gutters;

(c) sunblinds and shade sails;

(d) permanent and fixed screens referred to in regulation 84(5)(d) or 84(6);

(e) decks, steps or landings less than 800 mm in height.

(4) 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.

(5) In this regulation street does not include lane, footway, alley or right of way.

(6) For the purposes of this regulation, an allotment does not adjoin another allotment if its boundary only touches the boundary of the other allotment at one point (for example, at a corner).

1. Section 11 of the Act addresses the circumstances of where there is an inconsistency between aplanning schemeand a building regulation in relation to a siting matter.

(1) If a provision of a planning scheme under the Planning and Environment Act 1987 regulates the siting of buildings in respect of a municipal district or part of a municipal district, any building regulation which also regulates that matter -

(a) if not inconsistent with that provision, must be complied with in addition to that provision;

(i) so far as is practicable, must be read so as to resolve the inconsistency; and

(ii) subject to subparagraph (i), to the extent of the inconsistency, ceases to have effect in that municipal district or that part of the municipal district on the coming into operation of the provision of the planning scheme for the period that the provision is in force.

(2) A council must publish notice in a newspaper circulating generally in its municipal district of the fact that a regulation under this Part has ceased to have effect in the municipal district or part of it.

1. In considering the appeal, reference is made to the Minister's Guideline MG-12 Siting and Design of Single Dwellings ('Guideline') gazette on 14 December 2023 under s 188A of the Act. Section 188A(1) of the Act provides:

The Minister may from time to time issue guidelines relating to the design and siting of single dwellings.

1. Clause 4A of Schedule 2 to the Act ('Schedule 2'), states:

(a) a reporting authority is required by this or any other Act or by the regulations to report on, or to consent to, an application for a building permit for a single dwelling, within the meaning of section 188A(4); and

(b) the regulations provide that section 188A applies to any applications of that kind.

(2) In reporting on, or considering whether to consent to, the application, the reporting authority -

(a) must have regard to the guidelines for the time being in force under section 188A; and

(d) must refuse to give its consent to the application if the application does not comply with any matters set out in those guidelines.

1. Because the BAB is not a reporting authority, the Guideline does not expressly bind the BAB, however, we are of the view it is appropriate to have regard to the Guideline in arriving at a determination in any siting appeal including this one because it is a relevant consideration.
2. We are also of the view, there would need to be exceptional circumstances to justify the BAB permitting a departure from the Guideline.[2]

Siting requirement 2: Minimum Street setback of a principal single dwelling

1. The Guideline states that the objective regarding the minimum street setback is to ensure that the setbacks of buildings from a street respect the existing or preferred character of the neighbourhood and make efficient use of the site.
2. The Guideline further underscores that, under cl 4A(2)(d) of Schedule 2, the Council must refuse its consent to an application for a building permit for a reduced setback front setback for a dwelling or garage, which does not comply with reg 74 of the Regulations unless:

(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; and

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

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

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

(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; or

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

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

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

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

1. The Applicants consider that View Street, rather than Gear Avenue, should be considered the street containing the frontage for this dwelling for the purpose of any assessment under reg 74 of the Regulations due to the following:

(a) The primary façade, front veranda, entry point and building orientation face View Street. The existing dwelling is laid out longitudinally along this frontage, and the proposed garage extension maintains this alignment.

(b) The Applicants have referenced the VBA practice note, that 'Front Street' is determined in the context of the subject allotment and the proposed dwelling. The term front wall refers to the wall that presents as the architectural frontage"

(c) The registered building surveyor has determined that View Street is the primary façade based on building orientation, access patterns, and architectural hierarchy.

(d) A planning permit has already been issued for the new extension with no objection.

(e) The functional street address and building presentation are on View Street.

(f) The streetscape of View Street is characterised by varied setbacks and dwelling forms. The proposed garage is consistent in alignment with the existing residence and contributes to a cohesive and respectful streetscape.

(g) The proposed 2140 setback from Gear Avenue occurs along a side boundary, not the primary frontage.

(h) The garage extension does not project beyond the established building line to View Street, maintaining a consistent 4310mm setback with the dwelling and carport. There is no disruption to the streetscape when View Street is considered as the principal street. and should be considered accordingly under the Minister's Guidelines (MG-12).

(i) The adjoining neighbour has provided signed written consent to the proposed design.

1. The Applicants note, that if the proposal is considered with the frontage to View Street, the setback would meet the Ministerial Guidelines (MG-12) contrary to the submission from the Respondent. The Applicants particularly note the following:

(a) The dwelling clearly fronts View Street, as supported by both design documentation and the Registered Building Surveyor's formal determination.

(b) The proposed garage aligns with the established built form, presenting no detriment to the View Street streetscape.

1. The Respondent refused the report and consent on the following grounds:

(a) Does not meet the objectives of Regulation 74, which seek to ensure that building setbacks respect the existing or preferred character of the neighbourhood.

(b) Disrupts the streetscape and fails to provide a generous or consistent front setback, as required by the Neighbourhood Character Study and Minister's Guidelines.

(c) Does not align with the established pattern of façades along Gear Avenue, resulting in a visually inconsistent and non-compliant built form.

The Respondent provided the following information in support of its position:

(a) The existing Dwelling located on the comer of Gear Avenue and View Street was originally constructed with the frontage facing towards Gear Avenue.

(b) The setback requirements in 1979 would have required a minimum front dwelling setback of 7.5m facing Gear Avenue and a minimum side setback of 2.7m.c. The Neighbourhood Character Study indicates a front setback of 7.5 meters; however, the building regulations mandate a setback of 9 meters.

(c) Due to this it is councils' opinion that the proposed Extension to Dwelling (Garage/Store) setback onthe Gear Avenue side will not meet the requirements of regulation 74 and the Ministers Guideline MG-12 Siting and Design of Single Dwellings. The Planning Permit was approved through Banyule BPi, and while their assessment may differ, Council does have the responsible authority for determining street frontage in context of reg 74 of the Regulations.

(d) Council maintains that applicants cannot selectively nominate or alternate between street frontages to suit the objectives of a particular application. The determination of a primary street frontage must be grounded in consistent planning principles, historical applications, and regulatory interpretation. It is not a matter of applicant preference or convenience, but rather a statutory assessment based on the established built form and history of the site.

(e) Council has assessed Gear Avenue as the correct primary frontage for the purposes of reg 74 of the Regulations. The 2.14m setback from Gear Avenue as non-compliant front setback and not a side setback.

(f) Council respectfully disagrees with the appellant's assertion of full compliance with MG-12. The proposed garage/storeroom remains a dominant structure within the Gear Avenue frontage and does not meet the performance-based criteria of MG-12.

(g) The proposed building work is still required to meet the requirements of reg 74 of the Regulations.

(h) In response to the properties raised by the Applicants as having similar setbacks, the Council submits the following:

1. Council notes that a Certificate of Final Inspection was issued for a building permit relating to a garage at 3 Gear Avenue, Mount Evelyn, which was approved with a front setback of 4 metres.
2. Regarding 1A Gear Avenue, Council clarifies that this property was originally part of 17 York Road prior to subdivision. The dwelling was constructed before the subdivision was approved, at which time Gear Avenue functioned as a side street to York Road. Consequently, the original orientation and setback were not assessed against Gear Avenue as a primary frontage.
3. Council further notes that all other examples cited by the appellant pertain to View Street, which does not share the same frontage as the subject allotment. These examples are therefore not considered relevant to the current application under Regulation 74, and Council does not take them into account in its assessment.

(i) The alternative design provided by the applicant shows compliance (2m side street setback) relating to the side street setback - regulation 79. It is the relevant building surveyor's responsibility to ensure that this design complies with the relevant siting requirements of the Building Regulations 2018. Council would like to make comment that opting for this design might provide a vehicular and pedestrian hazard due to the potential vehicular protrusion past the allotment boundary if a vehicle is not parked in the garage on the allotment.

1. The Respondent has further provided the existing controls and neighbourhood character for the area:

APPLICANTS' STATEMENT OF REPLY TO THE RESPONDENT

1. The Applicants provided the following responding submissions:

(a) The existing dwelling's architectural frontage faces View Street.

(b) Vehicle access is only possible from View Street. There is no physical or legal vehicle access from Gear Avenue.

(c) Modern planning assessments must consider current site usage, prevailing neighbourhood character, and the intent of ResCode, rather than relying solely on outdated approvals.

(d) The 1997 Council approved carport faces View Street, no driveway was proposed from Gear Avenue in those approved plans.

(e) It is submitted that View Street functions as the practical and visual primary frontage, with Gear Avenue operating in a secondary capacity. Regulation 74 permits an assessment based on performance outcomes, which should allow consideration of functional context over rigid historical records.

(f) Council's interpretation that the proposed 2.14 m setback constitutes a non-compliant front setback from Gear Avenue presupposes the outcome of the frontage determination. As View Street is clearly the primary frontage as highlighted in "Primary Street Frontage Determination" above, the setback to Gear Avenue would be correctly assessed under Regulation 79 (side street setback).

1. The proposed design complies with the 2m side street setback requirement under Regulation 79.
2. The building's scale and form are proportionate to the site and comparable to other side street interface treatments within the area.

(g) The assertion that the proposed garage/storeroom is "dominant" within the Gear Avenue frontage context overlooks:

1. The presence of existing fencing and existing and proposed vegetation screening, which substantially mitigates any visual impact.
2. MG-12 focuses on "respecting neighbourhood character and making efficient use of the site" - not solely numerical setbacks.
3. The proposal maintains consistency with the scale, siting, and rhythm of built form evident along Gear Avenue and in comparable nearby streets.
4. No vehicle access possible from Gear Avenue, which maintains a landscaped nature strip and current soft landscaping.

(h) The Planning Permit had to consider the proposed building with assessment of the setback, local character and impact the project would have on the neighbourhood. This included the following:

1. To ensure setbacks are generous, consistent with nearby dwellings and allow sufficient space to mature plantings
2. To ensure that buildings and works retain an inconspicuous profile and do not dominate the landscape.

1. We have considered the parties' oral and written submissions and the material filed with the BAB. We 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 we make the following findings.
2. In order to review the appeal, we must consider which side of the Subject Land should be deemed the front of the property. We can then proceed to consider the front setback being sought in accordance with the MG-12 guidelines.

Which side of the Subject Land is the front of the property?

1. In order to consider the MG-12 Guidelines, we must have regard to which side of the Subject Land should be regarded the 'front'.
2. The Applicants are of the opinion that the front of the property faces View Street as this is where the front of the dwelling aligns to the Street. The Respondent contended that the front of the property should be that facing Gear Avenue due to historical building permits and the postal address.
3. During the e-hearing we note the Respondent reasonably acknowledged that the front walls and door of the existing building did face View Street rather than Gear Avenue.
4. Regulation 74 of the Regulations refers to 'street alignment' which, under reg 5 of the Regulations, means the line between a street and an allotment. However, the table contained within reg 74 of the Regulations also makes the following references:

Existing dwellings on adjoining allotments facing the same street

The average distance of the setbacks of the front walls of the existing buildings on the adjoining allotments facing the front street...

1. In providing appropriate context to reg 74 of the Regulations, it appears that the orientation of the front walls of existing buildings to the street is relevant in considering front setbacks.
2. The evidence provided indicates the existing dwelling on the Subject Land has front walls, being the architectural frontage, which align to View Street rather than Gear Avenue. The Respondent acknowledged this was the case in the oral hearing. Although the Respondent relies on the actual postal address and prior building permits.
3. We also note the Planning Permit and process considered the frontage of the Subject Land as part of the Planning Permit Process. The Planning Permit has the front of the Subject Land as facing View Street rather than Gear Street.
4. The endorsed plans for Planning Permit YR 2024/514, dated 1 November 2024, show the front door entry to the dwelling is on View Street and show there is no access to the house from Gear Avenue. The Gear Avenue boundary of the property has a 1.2m timber fence with no access along this fence line to the property from Gear St.
5. Whilst we note the application of s 11 of the Act, it is our view that the Planning Permit is consistent with a consideration of reg 74 of the Regulations which references the front walls of the existing building.
6. We conclude and find that the front of the Subject Land's dwelling is orientated toward View Street and consideration of the relevant setbacks should be taken from the Subject Land's Street alignment to View Street.
7. Although we acknowledge the Respondent's position of the postal address and prior building permits, the position does not align with the definition of street alignment which is outlined in reg 74 of the Regulations. We are bound to follow the definition of street alignment and the text contained under reg 74 of the Regulations.

1. In considering the application, we note it is appropriate to have regard to the MG-12 guidelines for reg 74 of the Regulations. We have outlined our analysis below.
2. We confirm that our analysis will be made with regard to our finding above, that is the front setback should be taken from View Street.

(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; and

1. Decision criterion (a) is not material 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; and

1. We have reviewed the streetscape in question and cannot identify a consistent front setback or design in the streetscape.
2. We further note that the design of the proposed dwelling has been modelled off an existing home in the street. The street comprises of very diverse housing designs. The proposal is not inconsistent with the buildings in the existing streetscape.
3. Given this, we can only conclude that the design and proposed setback, will not result in disruption of the streetscape.

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

1. We have reviewed the neighbourhood character objective which includes such objectives as:

(a) Strong forest area

(b) Undulating topography

(c) Open gardens with dense canopies and vegetation

1. We note that many of these character objectives are not strongly represented within View Street.
2. Notwithstanding our finding above, we do not consider that the proposed setback creates any inconsistency with the relevant neighbourhood character objective policy or statement set out in the relevant planning scheme.
3. We do not consider that the proposed building and its setback will have a negative impact on the relevant neighbourhood character objectives.

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

1. We refer to our findings above in relation to the streetscape.
2. There are no consistent front setbacks within View Street.
3. We further note that the wide nature strips in front of the homes on View Street which soften the impact of the inconsistent front setbacks.
4. Given this, the setback will be appropriate taking into account the lack of prevailing setback within the street.

(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; or

1. We consider that the front setback of the proposed building will be more appropriate considering the preferred character of the area.
2. The site setback is appropriate given the context and frontage in View Street.
3. We further note that if we were to determine frontage from Gear Avenue and the relevant setbacks for front and side setbacks, this would create an odd and inconsistent setback within the street.

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

1. Decision criterion (f) is not material as whilst the site of the building is irregularly shaped, the parties did not raise this ground as relevant or applicable.

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

1. Decision criterion (g) is not material as whilst the site of the building is on a sloping site, the parties did not raise this ground as relevant or applicable.

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

1. Decision criterion (h) is not material as there is no submissions suggesting there is a need to decrease the setback to maximise solar access to habitable room windows and or private open space.

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

1. Decision criterion (i) is not material as the setback is not required to take into account the desire or need to retain vegetation on the allotment.

1. We consider that the Applicants have established that the MG-12(a)-(c) apply and at least one criterion from MG-12(d)-(i) applies. Given this, we conclude that the Applicants have established that the proposed front setback should be granted.

[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.