Appeal - An appeal made under s 144(1)(a) of the Act by the landowners against the refusal of the Council under reg 83 of the Regulations to consent to the proposed carport to further overshadow the adjoining recreational private open space at 7 Truscott Street, Glenroy between 9.00am and 3.00pm on 22 September purportedly restricting overshadowing for 3 hours instead of the required 5 hours.

APPLICANTS Simon Gauci and Tania Gauci (Subject Land owners)

ADJOINING PROPERTY 1/7 Truscott Street, Glenroy

BEFORE Members A Maynard (panel chair) and P Bettess

CITATION Gauci & Anor v Merri-bek City Council [2025] VBAB 41

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

1. Pursuant to s 149(1)(a) of the Building Act 1993 (the Building Act), the decision of the Respondent, the Merri-bek City Council (Council) of 9 October 2024, refusing consent to the proposed carport wall length abutting the eastern allotment boundary with a maximum wall length of 16.800mm in lieu of the required 13.993m as required under reg 80 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 is substituted with the BAB's own decision consenting to the proposed carport wall length abutting the eastern allotment boundary with a maximum wall length of 16.800mm in lieu of the required 13.993mm as required under reg 80 of the Regulations.

1. Pursuant to s 149(1)(b) of the Building Act, the decision of the Respondent, the Merri-bek City Council (Council) of 9 October 2024, refusing consent for the proposed carport to purportedly further overshadow the adjoining recreational open space at 7 Truscott Street, Glenroy between 9.00am and 3.00pm on 22 September restricting overshadowing 3 hours instead of the required 5 hours as required under reg 83 of the Regulations is quashed.

1. 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 these Determinations.[1]

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For the Respondent Ms S Banskota, delegate of the Respondent

1. On 14 August 2024, Mr Simon Gauci and Ms Tania Gauci (the Applicants) applied for the consent of the Respondent, Merri-bek City Council, (the Council) to a building permit application for a proposed design in respect of carport at 9 Truscott Street, Glenroy (the Subject Land).
2. The proposed carport would:

a) have a wall length abutting the eastern allotment boundary with a maximum wall length of 16,800mm in lieu of the required 13,993mm required under reg 80 of the Building Regulations 2018 (the Regulations) > > b) purportedly further overshadow the adjoining recreational private open space at 7 Truscott Street, Glenroy between 9.00am and 3.00pm on 22 September restricting overshadowing to 3 hours instead of the required 5 hours as required under reg 83 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 these regulations.

1. On 9 October 2024, the Council refused consent, reasoning that:
   • The location, length and or height of the wall will not be appropriate taking into account the prevailing location, length and or height of boundary walls of existing buildings on nearby allotments.
   • The location, length and or height of the wall(s) will result in a significant impact on the amenity of existing dwellings on nearby allotment
   • The location, length and height of the wall are not consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme
   • Minister's Guidelines MG/03 indicates that if an adjoining owner objects to the proposal, and the objection is not considered frivolous, then in refusing the application this gives the affected adjoining owner the opportunity to appear as a witness of the municipal council at appeal.
   • The building will impact on the amenity of existing dwellings on nearby allotments.

1. On 31 October 2024, the Applicants appealed the decisions (the Appeals) under s 144(1)(a) of the Building Act 1993 (Building Act) to the Building Appeals Board (BAB).
2. The Appeals were heard on 27 February 2025.
3. 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 (MG-12), given they are relevant considerations for the BAB to consider. Based on these considerations we make the following findings.
4. We note that there is already a carport on the Subject Land which is 3.3m high. The height of the proposed carport is 3.2m.
5. The increased length of the replacement carport means it will be immediately adjacent to the garage on the property at 7 Truscott Street, Glenroy which has a wall on the boundary.

1. In considering Siting requirement 9 of the MG-12 with respect to reg 80 of the Building Regulations 2018 (Regulations), we find:

a) The location, length and height of the wall will not result in a significant impact of the amenity of the existing dwelling at 7 Truscott Street; > > b) There is no building envelope applicable to the subject land; > > c) The neighbourhood character objectives, policies or statements set out in the Merri-bek Planning Scheme are of a general nature and are not directly applicable to the carport; and > > d) The location, length and height of the carport is appropriate taking into account the location, length and height of the boundary wall on the adjoining allotment.

1. In considering reg 83 of the Regulations, we note the existence of a 3.2m high fence on the property at 7 Truscott Street, which is within 200mm of the boundary.
2. We note the Council's submission that the plan submitted for the report and consent showed a 2m high boundary fence and the application was assessed under reg 83 of the Building to cast an additional shadow. The Council conceded at the hearing that due to the existence of the 3.2m fence the proposed carport complies with reg 83 of the Regulations but questioned the legality of the fence, which according to the Applicant has existed for at least 17 years.
3. We find that the proposed carport complies with reg 83 as it will provide no additional overshadowing to the recreational private open space of the property at 7 Truscott Street because of the existence of the 3.2m fence and that the question of whether the fence was lawfully constructed is irrelevant to assessing the additional overshadowing under reg 83 of the Regulations.
4. We note the adjoining owners initially supported the proposed carport on the basis that there would be no overshadowing to the solar panel on the roof of their garage. However, in further correspondence they resiled from that position and objected to the proposed carport stating:

We have had a good look at the proposed plans and we DO NOT want the height of their new proposal garage to be higher than our garage height which is 3100mm.

Their proposal height is 3200mm. This will mean that we get some sort of shadowing and may interfere with our solar panels.

1. Mr Gauci gave evidence that the existing garage wall on the boundary at 7 Truscott Street is 3.2m high with the roof being lower than the wall height and that the proposed carport will be built to the same height as the neighbouring garage wall.
2. We note that the solar panels are not flat on the garage roof but are lower at the front and raised at the rear to maximise the access to northern sunlight. We find that the proposed carport to be built at 3.2m, which is the same height as the garage will have a small impact, if any, to the solar access of the solar panels on the garage roof of 7 Truscott Street.

[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'.