Appeal - An appeal made under s 144(1)(a) of the Building Act 1993 against the refusal of the Council to consent to a building permit that would allow a proposed garage which is to be constructed within 200mm of the Northern allotment Boundary to have a maximum average wall height of 3.4 metres in lieu of a maximum average wall height of 3.2 metres, a maximum external wall height of 3.8 metres in lieu of a maximum wall height of 3.6 metres and a maximum length of 12.577 metres in lieu of 11.495 metres as prescribed by reg 80 of the Building Regulations 2018 - Minister's Guideline MG-12: Siting and Design of Single Dwellings considered.

SUBJECT LAND 328 Wendouree Parade, Lake Wendouree

BEFORE Members A Maynard (panel chair) and P Bettess

CITATION Gilbert v Ballarat City Council [2025] VBAB 122

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, Ballarat City Council on 15 July 2025 refusing consent to a reduction in the minimum street setback (front), from the required distance of 5.08m set by regulation 74(2), to a reduced street setback distance of 0.0m 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 a reduction in the minimum street setback (front), from the required distance of 5.08m set by regulation 74(2), to a reduced street setback distance of 0.0m.
3. Pursuant to s 149(1)(d) of the Building Act 1993 (the Building Act) the decision of the Respondent, Ballarat City Council on 24 June 2025 refusing consent to a proposed garage which is to be constructed within 200mm of the Northern allotment Boundary to have;
   1. A maximum average wall height of 3.4 metres in lieu of a maximum average wall height of 3.2 metres, and
   2. A maximum external wall height of 3.8 metres in lieu of a maximum wall height of 3.6metres, and
   3. A maximum length of 12.577 metres in lieu of 11.495 metres.

as required under reg 80 of the Building Regulations 2018 (the Regulations) is set-aside.

1. Pursuant to s 149(1)(d)(i) of the Building Act, the decision set-aside by Order 3 of these orders is substituted with the BAB's own decision consenting to a proposed garage which is to be constructed within 200mm of the Northern allotment Boundary to hav;
   1. A maximum average wall height of 3.4 metres in lieu of a maximum average wall height of 3.2 metres, and
   2. A maximum external wall height of 3.8 metres in lieu of a maximum wall height of 3.6metres, and
   3. A maximum length of 12.577 metres in lieu of 11.495 metres.
2. 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]

_______________________ ________________________

For the Applicant Mr C Fletcher, applicant's representative

For the Respondent Mr M Hudson, delegate of council

1. On 10 June 2025 and 1 July 2025 Debbie Gilbert (the Applicant) applied for the consent of the Respondent, Ballarat City Council (the Council) to a building permit application for a proposed design in respect of a dwelling and garage to be built on a corner allotment at 328 Wendouree Parade, Lake Wendouree (the Subject Land).
2. The dwelling and garage would be

a) Constructed with a reduced street setback (front), from the required distance of 5.08m set by regulation 74(2) of the Building Regulations 2018 (the Regulations), to a reduced street setback distance of 0.0m. > > b) Constructed within 200mm of the Northern allotment Boundary to have: > > 1. a maximum average wall height of 3.4 metres in lieu of a maximum average wall height of 3.2 metres as required by Reg 80(4)(a), and > 2. a maximum external wall height of 3.8 metres in lieu of a maximum wall height of 3.6metres as required by Reg 80(4)(b), and > 3. a maximum length of 12.577 metres in lieu of 11.495 metres as required by Reg 80(3)(b).

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 15 July 2025, the Council refused consent (reg 74), reasoning that:
   • The siting of the building is not constrained by the slope of the allotment or other conditions on the allotment.
   • The setback is not more appropriate taking into account the desire or need to retain vegetation on the allotment.
   • The siting of the building is not constrained by the shape / dimensions of the allotment.
   • The setback will not be more appropriate taking into account the prevailing setback within the street.
   • The setback will result in a disruption of the streetscape.
2. On 24 June 2025, the Council refused consent (reg 80), reasoning that:
   • The wall does not abut a side or rear lane.
   • 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.
3. On 22 July 2025 the Applicant appealed the decisions (the Appeals) under s 144(1)(a) of the Building Act 1993 (Building Act) to the Building Appeals Board (BAB).
4. The Appeals were heard on 18 September 2025.
5. We note the Applicant's submissions that:

(a) The siting of the proposed dwelling and garage closely follow the siting of the previous dwelling and outbuildings on the Subject Land (which the Applicant intended to renovate, but decided to replace, due to structural issues).

(b) The proposed dwelling and garage have been the subject of a planning permit application where consideration was given to neighbourhood character under the Ballarat Planning Scheme (BPS), and the development was assessed under the Design and Development Overlay, Schedule 6. The Applicant was granted a planning permit for the proposed dwelling and garage.

1. We note the Council's acceptance of the relevant building surveyor's assessment of the proposed dwelling as having its architectural frontage to Martin Avenue.
2. 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.
3. We find that there is no building envelope applicable to the Subject Land approved under a planning scheme or permit, nor specified in an agreement under the planning and Environment Act.
4. We find that the front setback for the proposed garage at 0.0m will not result in a disruption to the streetscape.
5. We find that the front setback of the garage at 0.0m is consistent with the neighbourhood character objective and will be more appropriate taking into account the preferred character of the area which is identified in the BPS. The proposed design for the dwelling with the garage behind the dwelling maintains a 6.79m setback to Wendouree Parade which meets the objectives of retaining a garden character and maintaining a visual connection to the street space and retains views from the street space to Lake Wendouree.
6. We find that the variations in the height and length of the proposed garage wall are relatively minor. We note that there are no windows on the adjoining allotment in Martin Street facing the proposed garage wall and that it has no impact on the secluded private open space of the adjoining allotment. We therefore find there is no significant impact on the amenity of the adjoining allotment.
7. We find that the length and height of the proposed garage wall is consistent with the neighbourhood character objective and will be more appropriate taking into account the preferred character of the area which is identified in the BPS.
8. We find that the height and length of the proposed garage wall is appropriate taking into account the length and location of the boundary wall on the nearby allotment at 326 Wendouree Parade, which is directly opposite the Subject Land in Martin Street (i.e. on the opposite corner).

[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'.