APPLICANTS Thomas McMurry and Erin Leiner (Subject Land owners)

INTERESTED PARTY Patricia Jones (adjoining property owner of 40 Kingswood Drive, Dingley Village)

INTERESTED PARTY Barbara Emons (adjoining property owner of 44 Kingswood Drive, Dingley Village)

SUBJECT LAND 42 Kingswood Drive, Dingley Village

CITATION McMurry & Anor v Kingston City Council [2025] VBAB 53

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 dated 24 December 2024 of the Respondent being the Kingston City Council refusing consent to a dwelling addition to be constructed with a minimum street setback of 5.0m instead of the prescribed minimum street setback of 7.62m 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 dwelling addition to be constructed with a minimum street setback of 5.5m instead of the prescribed minimum street setback of 7.62m as required under reg 74 of the Regulations.
3. 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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1. On or around 24 December 2024, Thomas McMurry and Erin Leiner (the Applicants) applied for the consent of the Respondent, Kingston City Council, (the Council) to a building permit application for a proposed design in respect of a dwelling addition to be built at 42 Kingswood Drive, Dingley Village (the Subject Land).
2. The dwelling addition would be constructed with a minimum street setback of 5.0m instead of the prescribed minimum street setback of 7.62m as required under reg 74 of the Building Regulations 2018 (the Regulations).
3. Under regulation 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 24 December 2024, the Council refused consent, reasoning that:

Kingston City Council refuses to the siting of the proposal as shown on the plans as it does not meet the objective of Ministers Guideline MG-12 for regulation 74 of the Regulations which states:

To ensure that the setbacks of buildings from a street respect the existing or preferred character of the neighbourhood and make efficient use of the site;

In that, the proposal does not comply with the following relevant Decision Guidelines:

a) the setback will be more appropriate taking into account the prevailing setback within the street; or

b) the setback will not result in a disruption of the streetscape; and

1. On 20 January 2025, the Applicants 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 considered 'on the papers' on 10 April 2025.
3. The Council indicated its support for a compromise position of a 6.5m setback.
4. The Applicants submitted, however, that a 6.5m setback would result in the proposed extension having a dimension of 2.55m which is insufficient for a bedroom. The Applicants in their submissions propose a 5.5m setback as a compromise.
5. 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 they are a relevant consideration for the BAB to consider. Based on these considerations I make the following findings.
6. I find that a setback of 5.5m will not result in a disruption of the streetscape as there are several dwellings with setbacks of 6.09m. A 5.5m setback will still provide adequate space for planting in the front setback which is a feature of the streetscape.
7. I further find that a 5.5m setback is consistent with the Neighbourhood Character Objective in Schedule 7 to the Neighbourhood Residential Zone in the Kingston Planning Scheme:

To maintain and reinforce the rhythm of dwelling spacing, providing visual breaks between and around buildings.

1. For the above reasons, I find that the Council's decision should be set aside and substituted with the BAB's own decision consenting to a 5.5m front setback for the proposed dwelling extension.

[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'.