CITATION Marsh v Warrnambool City Council [2025] VBAB 132

Having considered all the submissions and information placed before it, the Building Appeals Board (BAB) determines that:

1. Pursuant to s 149(1)(a) of the Building Act 1993 (the Building Act), the decision of the Respondent, Warrnambool City Council dated 4 July 2025 refusing consent to the building of the proposed garage as required under reg 74 of the Building Regulations 2018 (the Regulations) is affirmed.
2. 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/these determinations.[1]

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1. On or around June 2025, Anthony Marsh (the Applicant) applied for the consent of the Respondent, Warrnambool City Council (the Council) to a building permit application for a proposed design in respect of proposed garage to be erected/built at 23 Janlor Drive, Warrnambool (the Subject Land).
2. The proposed garage is 7.99m by 6.01m to be setback 5.41m from the frontage instead of 12.5m and 1.4m from the side street instead of 2m required under reg 74 of the Building Regulations 2018 (the Regulations).
3. Under reg 74 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 4 July 2025 the Council refused consent, reasoning that:

...'it is considered that the proposal is not appropriate when taking into account the prevailing front setbacks of existing dwellings on nearby allotments and it is considered the proposed garage locations and setbacks will result in a disruption to the streetscape.'

1. On 31 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).
2. The Appeal was heard 'on the papers' on 25 September 2025.
3. 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.
4. Considering the Decision Guidelines in MG-12 Siting requirement 2, I find as follows:

a) Criterion (a) does not apply. > > b) The setback will result in a disruption of the streetscape for the following reasons: > > 1. The building on the adjoining allotment on the Janlor Drive frontage is setback 12.5m with an open carport setback 7.6m. The existing garage on the subject land is setback 5.96m. The proposed setback of 5.41m is a further reduction of the existing setbacks of buildings on the subject land and the adjoining property resulting in a disruption of the streetscape. > 2. The adjoining building on the Argyle Street frontage is setback 6.0m, a setback of 1.4m instead of the required 2m setback will result in a disruption of the Argyle Streetscape. > 3. Although there are buildings fronting Janlor Drive with similar setbacks to that proposed, the prevailing setback is an average of 6.7m. The proposed 5.41m setback will result in a disruption to the streetscape. > 4. Screening by a hedge does not justify the reduced setbacks.

d) The setback of 5.41m will not be more appropriate taking into account the prevailing setback within the Janlor Drive which averages 6.7m. The side setback of 1.4m will not be more appropriate considering the setbacks of buildings in Argyle Street. > > e) Criteria (e), (f), (g), (h) and (i) do not apply.

5. For the above reasons, I find that the Council's refusal of consent should be affirmed.

[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'.