1. Regulation 84 of the Regulations provides:

(1) A habitable room window or raised open space of a building on an allotment must not provide a direct line of sight into a habitable room window or on to a secluded private open space of an existing dwelling on an adjoining allotment.

(2) In the case of a direct line of sight from a habitable room window, the line of sight is any line measured from a height of 1·7 m above the floor level of the habitable room and contained within the space enclosed by -

(a) a vertical plane measured at an angle of 45° from each side of the window; and

(b) a horizontal plane 1·7 m above the floor level of the habitable room; and

(c) the ground level below; and

(d) a horizontal distance of 9 m from the window.

(3) In the case of a direct line of sight from a raised open space, the line of sight is any line measured from a height of 1·7 m above the floor level and along the perimeter of the raised open space to any point within a horizontal distance of 9 m from the raised open space and extending 45° beyond any point where the perimeter of the raised open space meets a wall of a building.

(4) In the case of a secluded private open space, the horizontal distance of 9 m referred to in subregulation (2)(d) or (3) is to be measured from the ground level.

(5) A habitable room window complies with this regulation if -

(a) In the case where a habitable room window provides a direct line of sight into a habitable room window of an existing dwelling on an adjoining allotment, it is offset a minimum of 1·5 m from the edge of one window to the edge of the other; or

(b) it has a sill height at least 1·7 m above floor level; or

(c) it has obscure glazing in any part of the window below 1·7 m above floor level; or

(d) the direct line of sight is obscured by a permanent and fixed screen that has no more than 25% of its area open.

(6) A raised open space complies with this regulation if the direct line of sight into the habitable room window or on to the secluded private open space on the adjoining allotment is obscured by a permanent and fixed screen which has no more than 25% of its area open.

(7) A window referred to in subregulation (5)(c) may be able to be opened provided that when open the obscure glazing does not permit a direct line of sight on to the secluded private open space or into the habitable room window referred to in subregulation (1).

(8) This regulation does not apply to a new habitable room window or raised open space that faces a property boundary if -

(a) there is a visual barrier at least 1·8 m high at the boundary; and

(b) the floor level of the room or the raised open space is less than 800 mm above the ground level at the boundary.

(9) 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.

raised open space means a landing with an area of more than 2 m2, a balcony, a terrace, a deck or a patio;

secluded private open space means any part of private open space on an allotment -

(a) which is screened for at least 90% of its perimeter by a wall, fence or other barrier that is at least 1·5 m high and that has no more than 25% of its area open; and

(b) which is primarily intended for outdoor recreation activities.

1. The relevant Ministers Guideline MG-12 Siting and Design of Single Dwellings (MG-12) for this matter is as follows:

Objective To limit views into existing secluded private open space and existing habitable room windows.

Decision Guidelines The reporting authority may give its consent to an application for a building permit for a principal single dwelling or a small second dwelling that does not comply with regulation 84 (Overlooking) of the Regulations if all of the following criteria apply:

1. the proposed building will not significantly impact on the amenity of existing dwellings on nearby allotments and/or any associated secluded private open space; or
2. the building will not significantly increase the level of existing overlooking of habitable room windows of existing dwellings on nearby allotments and or any associated secluded private open space.

1. Section 188A(1) of the Act provides:

The Minister may from time to time issue guidelines relating to the design and siting of single dwellings.

1. Clause 4A of Schedule 2 to the Act ('Schedule 2'), states:

(a) a reporting authority is required by this or any other Act or by the regulations to report on, or to consent to, an application for a building permit for a single dwelling, within the meaning of section 188A(4); and

(b) the regulations provide that section 188A applies to any applications of that kind.

(2) In reporting on, or considering whether to consent to, the application, the reporting authority -

(a) must have regard to the guidelines for the time being in force under section 188A; and

(d) must refuse to give its consent to the application if the application does not comply with any matters set out in those guidelines.

1. Because the BAB is not a reporting authority, MG-12 does not expressly bind the BAB, however, we are of the view it is appropriate to have regard to MG-12 in arriving at a determination in any siting appeal including this one because it is a relevant consideration.
2. We are also of the view that there would need to be exceptional circumstances to justify the BAB permitting a departure from the Guideline.[2]

1. The Applicant provided the following contentions in support of the appeal:

(a) The Interested Party has agreed to the proposed modifications to the glass balustrade on the decking.

(b) The Interested Party has not objected to the proposed building work, and the Respondent's refusal based on privacy concerns lacks justification.

(c) To balance the interests of all parties, the applicant is open to discussing alternative solutions with the adjoining owner and the Council, such as raising the fence height or planting tall trees near the fence to mitigate privacy concerns.

1. The Respondent provided the following submissions in support of its refusal of the application for report and consent.

(a) The proposed 1.965m high floor level of the deck would result in a direct line of sight into the habitable room window/s and secluded private open space on the adjoining property, in contravention of the requirements of reg 84 of the Regulations. The Council considers this would impact privacy.

(b) Council noted that the proposed deck will have a finished floor level height 1.965m above natural ground level, which would be significantly higher than the existing 1.6m boundary fence.

(c) In particular, the Respondent says in response to the MG-12(a) criterion that:

The proposed deck with maximum finished floor level height 1.965m would very likely result in significant line of sight impact onto the existing habitable room windows and secluded private open space on the adjoining property.

(d) In relation to the MG-12(b) criterion the Respondent submits:

The proposed deck with maximum finished floor level height 1.965m would very likely result in significant line of sight impact onto the existing habitable room windows and secluded private open space on the adjoining property.

(e) The Respondent agrees it did not receive an objection but still considers that it does not meet the applicable MG-12 guidelines.

(f) The Respondent notes the Applicant has offered solutions to ensure privacy for the Interested Party. The Council has noted that compliance with reg 84 can be achieved by carrying out any of the following options:

(i) installing a screen along the sides of the proposed deck up to minimum height 1.7m.

(ii) installing a screen on top of the existing boundary fence up to a maximum height 3.0m (in accordance with Regulation 91).

(iii) Council cannot consider vegetation as an acceptable screen to prevent the direct line of sight onto the adjoining property, as it is not considered a valid screen under the Regulations.

(g) It was unclear to Council what the owner considers 'reasonable' in this case, as it was previously suggested that compliance under Regulation 84 could be achieved by installing a 1.7m high screen along the sides of the proposed deck to prevent line sight onto the habitable room window/s and secluded private open space on the adjoining property, however the owner subsequently declined due to reduction of visual appeal.

(h) Based on the applicant's statement in Item 3, should the deck likely have minimal usage, a 1.7m high screen along the sides of the proposed deck, or extending the existing boundary fence height, can be considered reasonable options to protect the privacy on the adjoining property.

1. The Applicant has provided the following response to the Respondent's submissions:

I agree to modify the proposed balustrade on the side of the deck

facing 4 Armstrong Street to a 1.7 metre high frosted (obscure) glass screen, in accordance with Regulation 84 of the Building Regulations 2018.

This change is intended to fully address any potential privacy issues for the adjoining property at 4 Armstrong Street.

However, I would like to respectfully request that the other side of the deck (not facing 4 Armstrong) be permitted to retain the originally proposed 1.2 metre high clear glass balustrade, as that side does not overlook any habitable room windows or secluded private open space of a neighboring property.

1. We have considered each parties' written submissions which were filed and exchanged during the proceeding.
2. We have also had regard to the applicable Decision Guidelines set out under MG-12. Notwithstanding the use of the conjunction 'or' between MG12(a)-(b) the objective to the guide states that all of the criteria should apply to establish any entitlement to a variation under reg 84 of the Regulations.

Decision Guideline MG.12(a): the proposed building will not significantly impact on the amenity of existing dwellings on nearby allotments and/or any associated secluded private open space.

1. We have noted the Applicant's original report and consent and her most recent offer of screening with frosted glass outlined above. The BAB conducts de novo hearings which means it can take into account material which was not before the original decision maker (Respondent) at the time of making the decision.
2. We consider that the original proposal would have had an impact to the amenity of existing dwelling due to overlooking into the habitable room windows.
3. The option involving a 1.7m frosted glass screen/balustrade would adequately screen the habitable room windows and secluded private open space of the Adjoining Property from overlooking without blocking sunlight.
4. There would still be an oblique view to the secluded private open space which we consider would not significantly impact on the existing dwelling on the Adjoining Property.
5. We form the view that subject to the frosted glass measured 1.7m from the finished floor level of the deck that this criterion would be met. We further note that the screening would only be required on the side which adjoins the Adjoining Property.

Decision Guideline M-G12(b): the building will not significantly increase the level of existing overlooking of habitable room windows of existing dwellings on nearby allotments and or any associated secluded private open space.

1. For similar reasons as above, we consider the new proposal using a frosted glass screen measuring 1.7m from finished floor level of the deck would screen off any overlooking and should practically prevent it. There may still be an oblique view to the secluded private open space, but we do not consider this a significant increase to overlooking.
2. We further note that the Interested Parties did not object to either the original or updated proposal for screening by the Applicant.
3. We conclude that the Applicant has satisfied criterion MG-12(b).

1. The Applicant has satisfied MG-12(a)-(b) and accordingly subject to the construction of a 1.7m frosted glass screen/balustrade measured from the finished floor level of the deck to screen the side adjoining the Adjoining Property the proposal would meet the requirements to allow the report and consent.

[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'.

[2] This reflects that the BAB stands in the shoes of the Council and that it is desirable for the BAB to promote consistent decision making within the regulatory framework. Further, the BAB has considered the content of the Guidelines and concludes that the Guidelines set out by the Minister are reasonable and appropriate requirements.