APPLICANTS Giovanni Quatterone and Marina Quatterone (Subject Land owners)

INTERESTED PARTY Thanh Tran (Adjoining Property owner)

BEFORE Members P Bettess (panel chair) and L Kwok

CITATION Giovanni & Anor v Kingston City Council [2025] VBAB 79

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, Kingston City Council dated 23 April 2025 refusing consent to a proposed dwelling addition to be constructed with an overshadowing of recreational private open space instead of as required under reg 83 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 proposed dwelling addition to be constructed with an overshadowing of recreational private open space instead of as required under reg 83 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.[1]

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1. On or before 23 April 2025, Giovanni Quatterone and Marina Quatterone (the Applicants) applied for the consent of the Respondent, Kingston City Council (the Council) to a building permit application for a proposed design in respect of a dwelling addition to be erected/built at 28 Springs Road, Clarinda (the Subject Land).
2. The dwelling addition would cause overshadowing of recreational private open space instead of what is required under reg 83 of the Building Regulations 2018 (the Regulations).
3. Under regulation 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 this regulation.

1. On 23 April 2025 the Council refused consent, reasoning that:

Kingston City Council refuses to the siting of the proposal as shown on the plans as it does not meet the objective of Ministers Guideline MG-12 for regulation 83 of the Regulations which states:

To ensure buildings do not unreasonably overshadow existing secluded private open space;

In that, the proposal does not comply with the following relevant Decision Guidelines:

a) the proposed building will not significantly impact on the amenity of the secluded private open space(s) on nearby allotments...

1. On 1 May 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 the papers' on 5 June 2025.
3. The Applicant's submissions included diagrams showing the extent of shadows on the adjoining property's secluded private open space from the existing building and the proposed building on the subject land at 9:00am, 12:00pm and 3:00pm on 22 September.
4. The parties' submissions did not include diagrams showing the shadow cast on the secluded private open space by the existing buildings on the adjoining property.
5. While the BAB was not provided with diagrams of the shadows cast by the existing buildings on the adjoining property, the Council did refer to these shadows in submitting that there will be a significant impact on the amenity of the secluded private open space on the adjoining property from the proposed building considering the already reduced amenity due to existing overshadowing of the secluded private open space.
6. We have considered the parties' 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.
7. The objective of Siting requirement 12: Overshadowing of recreational private open space in MG-12 is to ensure buildings do not unreasonably overshadow existing secluded private open spaces.
8. The MG-12 decision criterion (a) is that the proposed building will not significantly impact on the amenity of the secluded private open space(s) on nearby allotments.
9. Decision criterion (b) does not apply to this case as there is no approved building envelope.
10. We consider it appropriate in considering the objective and decision criterion of Siting requirement 12 in MG-12 to assess the additional overshadowing impact of the proposed building on the secluded private open space in determining the reasonableness and significance of the amenity impact.
11. We have considered the Council's assessment of the extent of overshadowing of secluded private open space on the adjoining property and have made our own estimation of the extent of these shadows.
12. Based on the relief levels provided, we observe a 800mm drop from the ground level of the existing dwelling on the south side to the recreational private open space on the adjoining property. Though this has the potential to increase the impact of overshadowing from the building extension, this also increases the extent of overshadowing from the existing boundary fence and buildings, thereby reducing the additional overshadowing from the building extension. It is not apparent that the ground level changes have been taken into consideration.
13. With these overshadowing factors taken into consideration, we estimate that the additional overshadowing of the recreational private open space on the adjoining property from the proposed building is less than 2m2 at 9:00am, with negligible additional impact at 12:00pm and 3:00pm on 22 September.
14. Furthermore, the upper level building extension, compared to the existing building, is already proposed to be set back a further 850mm from the southern boundary. Any further increase in setback from the southern boundary will not significantly reduce the overshadowing.
15. We find the additional overshadowing to be reasonable and it will not significantly impact of the amenity of secluded private open space on the adjoining property.
16. We note that the adjoining property owner has supported the appeal but this has not been a major factor in making our determination. We consider that the impact of amenity for the adjoining property concerns both present and future occupants or owners of the property in the current built form.
17. Having regard to the foregoing, we find that the decision of the Council should be set-aside and substituted with the BAB's own decision consenting to overshadowing of recreational private open space instead of as required under reg 83 of the Regulations.

[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'.