APPEAL - An Appeal made under s 144(1)(a) of the Building Act 1993 against the refusal of the council under reg 79 of the Building Regulations 2018 to consent to the alfresco to have varying minimum setbacks of 3.2m to the dwelling and 3.287m to the alfresco, instead of the prescribed minimum setback of 5m from the western (rear) title boundary, resulting in an encroachment of 1.8m and 1.713m.

FIRST INTERESTED PARTIES Paul Tesoriere and Anna Sun-Tesoriere (adjoining property owners of 42 Barrington Drive, Ashwood)

SECOND INTERESTED PARTY Robert Parsons (adjoining property owner of 2 Shelley Court, Ashwood)

CITATION Luo v Monash City Council [2025] VBAB 127

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, Monash City Council dated 4 July 2025 refusing consent to a garage to have varying minimum setbacks 6.443m to the porch/main bedroom, and 6.206m to the garage, instead of the prescribed minimum setback 7.6m from the front street alignment, 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 garage to have varying minimum setbacks 6.443m to the porch/main bedroom, and 6.206m to the garage, instead of the prescribed minimum setback 7.6m from the front street alignment, as required under reg 74 of the Regulations.
3. Pursuant to s 149(1)(d) of the Building Act, the decision of the Respondent, Monash City Council dated 4 July 2025 refusing consent to an alfresco to have varying minimum setbacks 3.2m to the dwelling and 3.287m to the alfresco, instead of the prescribed minimum setback of 5m from the western (rear) title boundary, as required under reg 79 of the Regulations is set-aside.
4. 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 an alfresco to have varying minimum setbacks 3.2m to the dwelling and 3.287m to the alfresco, instead of the prescribed minimum setback of 5m from the western (rear) title boundary, as required under reg 79 of the Regulations.
5. 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]

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1. On 22 April 2025 Qi Luo (the Applicant) applied for the consent of the Respondent, Monash City Council (the Council) to a building permit application for a proposed design in respect of a double storey dwelling and garage to be erected/built at 1 Shelley Court, Ashwood (the Subject Land).
2. The double storey dwelling and garage would be:

a) A garage having varied minimum setbacks 6.443m to the porch/main bedroom, and 6.206m to the garage, instead of the prescribed minimum setback 7.6m from the front street alignment, as required under reg 74 of the Building Regulations 2018 (the Regulations). > > b) An alfresco to have varying minimum setbacks 3.2m to the dwelling and 3.287m to the alfresco, instead of the prescribed minimum setback of 5m from the western (rear) title boundary, as required under reg 79 of the Building Regulations 2018 (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 4 July 2025 the Council refused consent, reasoning that:
   1. It is considered that the proposed minimum front and rear setbacks do not take into account the prevailing front and rear setbacks of existing dwellings within the immediate neighbourhood.
   2. The proposal does not comply with matters set out in the Ministers Guidelines.
   3. Council has noted the irregular size and shape of the allotment has resulted in a constraint to the siting of a dwelling; however, it was determined that the proposed dwelling size and design would not be suitable fit to the allotment as it would result in significant visual bulk, and likely cause a disruption to the streetscape.
2. On 13 July 2025 the Applicant appealed the decision (the Appeal) under s 144(1)(a) of the Building Act 1993 (Building Act) to the Building Appeals Board (BAB).
3. The Appeal was heard 'on the papers' on 11 September 2025.
4. I have considered the parties' written submissions and the material filed with the BAB. I 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 I make the following findings.
5. The application is proposing to demolish a single-story house and replace it with a large double story home.
6. The property itself is an irregularly shaped corner property that is approx. 650m2. It is located within an established neighbourhood that is predominately made up of similar sized or even larger sized allotments, primarily single-story dwellings with newer dwellings opting to be double story.
7. As the neighbourhood undergoes change, many of the older homes are being replaced with large two-story dwellings which not only appear more imposing but take up larger footprints. Although permitted they are slowly changing the neighbourhood character.
8. The challenge now, is the balance between what is permissible under the ongoing regulatory changes, the ongoing desire of the existing community to retain the character of the original neighbourhood and the protection of the amenity of all property owners.
9. In this case, the property, like all corner properties, has 2 frontages. Although the property is recognised as 1 Shelley Court, the property itself presents to Barrington Drive. Therefore, it is reasonable to consider the 19m frontage is to Barrington Drive with the slightly narrower 15m boundary along Shelley Court being the sideage.
10. Now having regard to the frontage, the streetscape character of frontages do vary. Although the streetscape is predominantly characterised by large front yards, many newer properties are encroaching on what are considered today to be significance, especially those within the likes of Shelley Court.
11. It must also be acknowledged that the current government policy is to enable development closer and closer to the street frontages and in fact, the most recent legislative changes allow a 6m setback as of right.
12. It is also recognised that the front façade of the property provides for a degree of articulation, between the front porch, portico, the house and the carport, all of which reduce how the dwelling impacts upon the streetscape.
13. Therefore, having regard to the streetscape and the neighbourhood character, as well as recent changes to government policy, the requested front yard setback of just over 6m is considered appropriate.
14. I now turn my consideration to the request for a reduced rear yard setback. The rear year setback generally has two purposes. One is to create a functional private open space, the other, to create an appropriate separation to the property that it backs onto so that properties can maintain a reasonable level of amenity.
15. In the case of this property, as it is a corner property, it utilises the side of the property to Shelley Court as its main private open space. This space is significant and will ensure that the existing large mature liquid amber tree is maintained
16. As for the impact upon the property to the rear (2 Shelley Court), it is recognised that the new dwelling, albeit 2 stories in height, is setback further than the existing home which is only 2.5m from the rear property boundary. In fact, although the dispensation proposes that the building to be setback 3.2m from the rear boundary, given the irregular shape of the property, the separation between the house and the rear property boundary gradually increases from 3.2m to approximately 4.5 metres.
17. The impact upon the property at 2 Shelley Court is negligible, given that it has such a significant front yard setback. This new house actually backs onto its front yard and has no impact upon the amenity within the house (ie overlooking/overshadowing).
18. Therefore, having regard to all the various regulations, the requests for variations are considered appropriate and will not negatively impact upon the existing streetscape or neighbourhood character and will not have any adverse impacts upon the amenity of the adjoining properties.

[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'.