APPLICANTS Anthony Mancuso and Jorelyn Mancuso (Subject Land owners)

FIRST INTERESTED PARTY Rocco Di Raco (Relevant Building Surveyor)

BEFORE Members Geoff Woolcock (panel chair) and Venise Reilly

CITATION In the matter of 344 Heaths Road, Hoppers Crossing (No 2) [2025] VBAB 92

Having considered all the submissions and information placed before it, we are not satisfied that modifying or varying exemption (1) of governing requirement A6G1(1) of the Building Code of Australia 2022, Volume Two is reasonable and not detrimental to the public interest and pursuant to s 161 of the Building Act 1993, determine that the relief sought is refused.

_______________________ ________________________

1. The Applicants are the owners of the land at 344 Heaths Road, Hoppers Crossing.
2. The Applicants made an application to the Building Appeals Board (BAB) pursuant to s 160(2) of the Building Act 1993 (Act) as follows:

To modify Clause A6G1 Exemption 1 of the Building Codes [sic] of Australian [sic] Volume 2 2022, which permits a part of a building that has been designed, constructed or adapted for a different purpose and is less than 10% of the floor area of the storey it is situated on, to adopt the classification of the other part of the storey and apply the classification to the whole storey, applying to a Class 1a building, namely; to permit the proposed salon to adopt the same building classification as the remainder of the dwelling, being Class 1a, whilst being equivalent to 19.5% of the floor area of the storey it is situated on, in lieu of less than 10%, as indicated in the submission. The proposed salon will be 27.37 m2 in lieu of the maximum of 14.039 m2 required to comply with the exemption under Clause A6G1.

1. The BAB, on its own motion, determined the following question in the affirmative, in the form of the Preliminary Determination and Orders dated 26 June 2025 (the Preliminary Determination):

Is Exemption (1) of the governing requirement A6G1 a provision of the Building Regulations 2018 within the meaning of section 160(1) of the Building Act 1993, that is can the BAB modify or vary the Exemption (1) of governing requirement A6G1(1) of the Building Code of Australia 2022, Volume Two in an application made pursuant to s 160(2)(b) of the Act?

1. In the Preliminary Determination, the matter was referred to us to determine whether the relief sought should be granted.
2. We concur with the findings of the Preliminary Determination in that Exemption (1) of the governing requirement A6G1 is a provision of the Building Regulations 2018 (the Regulations) within the meaning of s 160(1) of the Act.
3. Notwithstanding the above, we do not find that it is reasonable and not detrimental to the public interest to modify or vary that provision for the reasons that follow.
4. Regulation 13 requires the relevant building surveyor to determine the classification of a building.
5. The governing requirements under A6G1 of the Building Code of Australia 2022 Volume Two (BCA) state, in part...

(1) The classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adapted to be used.

(2) Each part of a building must be classified according to its purpose and comply with all the appropriate requirements for its classification.

1. BCA governing requirement A1G4(3)(f) states that an Exemption statement is mandatory and is provided to specify when a provision does not need to be complied with.
2. The existing part of the garage is presumably a Class 10a structure, whereas the proposed salon would likely be classified as Class 6.[1]
3. The area for the proposed salon is not part of the 'dwelling' and greatly exceeds 10% of the floor area of the building.
4. We find that the 'relief sought' wherein the applicant is seeking '[t]o permit the proposed salon to have the same building classification as the remainder of the dwelling, being Class 1a' is misconceived as we observe that the existing part of the garage is presumably a Class 10a structure. Therefore, for the proposed salon to be classified as a Class 1a, the existing part of the garage will need to undergo change of use pursuant to reg 229 of the Regulations.
5. The Applicants have not made any submissions as to whether they intend to make an application for the change of use and whether certain building work is proposed to convert the presumably Class 10a part of the garage to a habitable Class 1a structure.
6. We note that the requirements for a Class 6 building go beyond the habitable threshold. In this case, that includes access, egress, fire safety, energy efficiency, health and amenity, particularly fire separation and accessibility.
7. The particular circumstances in this application are not unforeseen by the Regulations. In fact, regs 229 and 233 of the Regulations appropriately respond to these circumstances.
8. We find that it is not appropriate to modify a 'Governing Requirement' of the BCA such as a classification or a definition.
9. We find that rather than modifying or varying exemption provision of the BCA, regs 229 and/or 233 provide a more appropriate pathway under which the municipal building surveyor or a private building surveyor[2] may holistically assess the building or structure and determine whether to grant complete or partial exemption.
10. Accordingly, we refuse the relief sought.