Appeal - Appeal made under s 144(1)(a) of the Act against the refusal of the Council under reg 76 of the Regulations to consent to the proposed single storey dwelling and garage to have a maximum site coverage of 57%, instead of the prescribed maximum site coverage of 50%, resulting in an encroachment of 7% (47.18m2) - Minister's Guideline MG-12: Siting and Design of Single Dwellings considered and applied.

APPLICANTS Pearl Jayadeep and Jayadeep Johnson (Subject Land owners)

FIRST INTERESTED PARTY Yu Wang (adjoining property owner of 4 Mansfield Avenue, Mulgrave)

INTERESTED PARTIES Andre Tee and Zhe Li (adjoining property owners of 8 Mansfield Avenue, Mulgrave)

BEFORE Members A Maynard (panel chair) and P Bettess

CITATION Jayadeep & Anor v Monash City Council [2025] VBAB 43

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 decisions of the Respondent, Monash City Council dated 18 November 2024 refusing consent to the following -

a) proposed single storey dwelling to have a minimum setback 4.035m, in lieu of the prescribed minimum setback 7.6m from the street alignment, resulting in an encroachment of 3.565m as required under reg 74 of the Building Regulations 2018 (the Regulations); and.

b) the proposed single storey dwelling and garage to have a maximum site coverage 57% in lieu of the prescribed maximum site coverage 50%, resulting in an encroachment of 7% (47.18m2) as required under reg 76 of the Regulations;

1. Pursuant to s 149(1)(d)(i) of the Building Act, the decisions set-aside by Order 1 of these orders are substituted with the BAB's own decisions consenting to the following -

a) the proposed single storey dwelling to have a minimum setback 4.035m, in lieu of the prescribed minimum setback 7.6m from the street alignment, resulting in an encroachment of 3.565m as required under reg 74 of the Building Regulations 2018 (the Regulations).

b) the proposed single storey dwelling and garage to have a maximum site coverage 57% in lieu of the prescribed maximum site coverage 50%, resulting in an encroachment of 7% (47.18m2) as required under reg 76 of the Regulations.

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 this Determination.[1]

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For the Respondent Mr B Vergara, delegate of the Respondent

1. On 2 October 2024, Ms Jayadeep and Mr Jayadeep (the Applicants) applied for the consent of the Respondent, Monash City Council, (the Council) to a building permit application for a proposed design. It was proposed that the single storey dwelling would have a minimum setback of 4.035m instead of the prescribed minimum setback of 7.6m from the street alignment prescribed by reg 74 of the Building Regulations 2018 (the Regulations) and the proposed single storey dwelling and garage would have a maximum site coverage of 57% instead of the prescribed maximum coverage of 50% prescribed by reg 76 of the Regulations to be erected at 6 Mansfield Avenue, Mulgrave (the Subject Land).
2. Under regs 74 and 76 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 18 November 2024, the Council refused consent, reasoning that:
   • The proposed front setback 4.035m will not be consistent with the prevailing setbacks within the immediate neighbourhood.
   • The proposal does not comply with matters set out in the Ministers Guidelines.
   • The setback and site coverage of the proposed dwelling will likely result in significant visual bulk and disruption to the streetscape.
2. On 27 November 2024, the Applicants appealed the decisions (the Appeal) under s 144(1)(a) of the Building Act 1993 (Building Act) to the Building Appeals Board (BAB).
3. The Appeals were heard on 6 February 2025.
4. 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 it is a relevant consideration for the BAB to consider. Based on these considerations we make the following findings and observations.
5. We note that the objective for the minimum setback of a principal single dwelling is;

To ensure that the setbacks of a principal single dwelling from a street respect the existing or preferred character of the neighbourhood and make efficient use of the site.

1. We note the Applicants want to build a single storey home, with internal dimensions wide enough to accommodate their daughter who has special needs, including using a wheelchair.
2. We further note that the Subject Land at 674 m2 is an average sized block for the area but has an irregular shape and a curved frontage sitting between side fences which are full height to the front boundary, being 1.8m on the north side and 1.9m on the south side.
3. Given the full height fences on either side of the Subject Land and considering the curved frontage, we find that the proposed setbacks will not result in a disruption to the streetscape.
4. In addition, we find that the siting of the proposed dwelling is constrained by the shape of the allotment.
5. We note the submissions made at the hearing by Mr Vergara, the Council representative, that the Council would typically support a 7% increase to the proposed site coverage, and that the Council's main issue was the front setback.
6. Given the submissions of Mr Vergara, and our findings above in relation to the front setback, we find it appropriate to allow the appeals in relation to site coverage as landscaping can be provided in the front setback consistent with the neighbourhood character objective in the Monash Planning Scheme.

[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'.