1. The Appeal was heard by the BAB on 24 July 2025.

1. Reg 83 of the Regulations (Overshadowing of recreational private open space) states -

(1) A building must not reduce the sunlight to a recreational private open space of an existing dwelling on an adjoining allotment to the extent that less than the required minimum area of the recreational private open space has less than 5 hours of sunlight between 9 a.m. and 3 p.m. on 22 September.

(2) If a building is to be constructed on an allotment and the existing amount of sunlight to a recreational private open space on an adjoining allotment is less than the amount required under subregulation (1), the amount of sunlight to that area must not be further reduced by the construction of the building.

(3) 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.

(4) In this regulation the required minimum area of a recreational private open space is the lesser of -

(a) 75% of the recreational private open space; and

(b) 40 m 2 with a minimum dimension of 3 m.

1. Clause - 4A(2)(d) of Schedule 2 to the Act states -

In reporting on, or considering whether to consent to, the application (for a building permit), the reporting authority -

(d) must refuse to give its consent to the application if the application does not comply with any matter set out in those guidelines. (the Minister's Guideline MG-12: Siting and Design of Single Dwellings).

1. The Minister's Guideline 12 (Siting requirement 12: Overshadowing of recreational private open space) states -

To ensure buildings do not unreasonably overshadow existing secluded private open spaces.

The reporting authority may give its consent to an application for a building permit for a single dwelling, which does not comply with regulation 83 (Overshadowing of recreational private open space) of the Regulations if all of the following criteria apply:

(a) the proposed building will not significantly impact on the amenity of the secluded private open space(s) on nearby allotments; and

(b) the building is consistent with a building envelope that has been approved under a planning scheme or planning permit and or included in an agreement under section 173 of the Planning and Environment Act 1987.

1. Section 144(1)(a) of the Act (Appeal - Building Regulations) states -

(1) If the building regulations leave a matter to be determined or approved by a person or body or confer a similar discretion on a person or body, the owner of the building or land who requests the determination to be made, approval to be given, or discretion to be exercised may appeal to the Building Appeals Board against -

(a) that determination or approval or the exercise of that discretion;

THE APPLICANT'S STATEMENT OF CONTENTIONS (IN SUMMARY)

1. The Applicant submits that when he paid the deposit for the subject land in 2021, Regulation 83 did not exist, and construction of the dwelling had not commenced.
2. He further submits that the Council has not made a decision but has erred on the side of caution so not to upset his neighbour who is being unreasonable. Daylight to the neighbour's solar panels are not part of the Minister's Guidelines and is therefore unreasonable. The neighbour's dwelling is not compliant with the Regs and is causing its own shadow.
3. Finally, the Applicant submits that any change to the design of his proposed dwelling would mean that -

a) The initial deposit date would not be accepted; > > b) He would need to comply with new National Construction Code regulations; > > c) He would need to comply with the 7-star energy rating; and > > d) His Builder, Fairhaven Homes, estimate the cost of compliance at least at $120,000 which is outside his budget resulting in the cancellation of construction of his proposed dwelling.

THE RESPONDENT'S STATEMENT OF CONTENTIONS (IN SUMMARY)

1. The Shire Council submits that in assessing the Applicant's request for consent, it is required to have regard to the Minister's Guideline MG-12: Siting and Design of Single Dwellings and if any guideline is not met clause 4A(2)(d) of Schedule 2 to the Act requires consent must be refused.
2. The Council notes that -

(a) The required minimum area of Recreational Private Open Space (RPOS) under reg 83 is the lesser of 75% of the RPOS or 40 square metres with a minimum dimension of 3 metres. The total area of RPOS provided to the adjoining dwelling is 76.5 square metres.

(b) Council's site inspection confirmed that the actual side boundary setback is 2.48 metres, not 2.2 metres as shown in the plans submitted by the Applicant. Therefore, the lesser required area of RPOS is 40 square metres as 75% of 76.5 square metres = 57.37 square metres.

(c) According to the overshadowing diagrams submitted by the Applicant and the actual side boundary setback, the existing amount of sunlight to the RPOS of the Adjoining Property is 3.5 square metres under the minimum 40 square metre area at 12 noon, 0.5 square metres over at 1pm and 2.5 square metres over at 2pm.

(d) The extent of additional overshadowing of the RPOS on the Adjoining Property by the proposed dwelling is an additional 11 square metres at 12 noon, 9 square metres at 1pm and 3 square metres at 3pm, being approximately one quarter of the minimum 40 square metre at 1pm and 2pm. There is no impact from overshadowing by the proposed dwelling for the hours between 9am and 11am or at 3pm.

(e) The extent of additional overshadowing would be 3 square metres greater than the above figures at 1pm and 2pm if calculated on the actual existing side boundary setback.

1. In accordance with Siting requirement 12 of Minister's Guideline MG-12, Council was of the opinion that the proposed dwelling will significantly impact on the amenity of the RPOS of the Adjoining Property.
2. Under the Act Council must also have regard to MG-03 which states that if an adjoining owner objects to the proposed dwelling, and the objection is not considered frivolous, the applicant may lodge an appeal with the BAB, but if council approves the application the adjoining owner has no right of appeal.
3. Finally, the two-storey dwelling directly behind the Subject Land has a first floor offset further from the southern boundary than the ground floor. There is no reason why the proposed dwelling cannot be redesigned in a similar manner to comply with the overshadowing requirements.
4. In response to the Applicant's Statement of Contentions the Council submits that -

(a) The same overshadowing provisions existed in the Regulations as far back as 1994 under reg 418 and the regulation number was simply charged to 83 in the 2018 Regulations;

(b) The Impact of the solar panels on the Interested Party's dwelling was not considered as part of Council's decision not to consent to the modification of reg 83; and

(c) Financial implications of designing the proposed dwelling to comply with overlooking provisions and 7-star energy rating requirements are not matters Council can consider in deciding an application for a report and consent.

THE INTERESTED PARTY'S STATEMENT OF CONTENTIONS (IN SUMMARY)

Response to Applicant's Statement of Contentions

1. The definition of recreational private open space has remained unchanged during the relevant period and compliance with the Regs is assessed at the time of application for a building permit, not when a deposit is paid to a builder.
2. In finding that "the proposed dwelling will significantly impact the amenity of the secluded private open space of the adjoining allotment" Council provides a clear reason for their decision not to consent to the proposed dwelling.
3. Council's letter to the Applicant dated 31 March 2025 clearly states that it had "received an objection ... which Council does not consider to be frivolous".
4. The Interested Party submits that since November 2024, they have proactively contacted the Applicant and his builder, but neither party have been willing to engage with them.
5. Council's letter dated 31 March 2025 confirms that consent was refused in accordance with Siting requirement 12 of MG-12, not on the Interested Party's feedback.
6. The Applicant's claim that the Interested Party's "solar panels are not part of the minister's guidelines" is not relevant to reg 83 and did not form part of Council's decision.
7. Reg 83 deals with the impact of overshadowing by a proposed dwelling, and the Applicant's claim that "the neighbour's own home is non-compliant with these new rules, so they are causing their own shadow' is factually incorrect, and irrelevant.
8. The Applicant's references to impact of making changes to the design of the proposed dwelling are not relevant to the Council's assessment and decision under reg 83.

1. The Applicant's builder should have been aware of reg 83, either prior to entering into a contract with the Applicant or the applicant paying a deposit.
2. The Applicant and his builder had ample time to be aware of the regulatory compliance requirements and to address those issues.

1. The double-storey dwelling behind the Subject Land was constructed after the single-storey dwelling behind the Adjoining Property and was designed with an increased first floor setback providing reduced overshadowing impacts on the neighbour's private open space.
2. The precedent set by these neighbouring properties demonstrates that regulatory compliance is achievable by the Applicant.

1. The Interested Party has stated that the Applicant's builder has offered floor plans which have similar floor areas, room counts and other amenities to the proposed floor plan, demonstrate that regulatory compliance is achievable, or if not completely compliant, would significantly reduce the negative impact upon the adjoining property to a point that it would be acceptable, without compromising the desired home size.

1. The Shadow Diagrams prepared by the Applicant's builder incorrectly show the side boundary offset as 2.2 metres when the correct measurement as confirmed by the Council is 2.48 metres, resulting in overshadowing being underestimated by at least 3 square metres at 12pm, 1pm and 2pm which clearly does not satisfy Siting Requirement 12 of Minister's Guidelines MG-12.

1. The Applicant's amended plans relocate an upstairs bedroom to reduce the upper floor length along the shared boundary by 3.4 metres, but due to the incorrect side boundary offset, still underestimate the extent of the overshadowing, and the proposed dwelling remains non-compliant with reg 83.

1. Should the BAB overturn the Council's decision, the resulting overshadowing of the Adjoining Property will result in the loss of clear-to-sky daylight access to the primary habitable rooms (an open kitchen, dining and living area) of the Interested Party's dwelling.

1. We have considered the parties' oral and written submissions.
2. In determining this appeal, we stand in the shoes of the Respondent and therefore in accordance with reg 83 of the Reg, we are obliged to consider whether the Applicant has complied with reg 83.
3. Furthermore, the Act does not provide for the Minister's Guidelines under s 188A to bind or apply to the BAB. However, MG-12 is relevant to this Appeal to the extent it is appropriate for the BAB to have regard to it in determining whether the proposed dwelling is 'appropriate in the circumstances'.
4. We find that the Applicant's proposed dwelling as constructed will not comply with reg 83 or satisfy the applicable decision guidelines in the Minister's Guideline MG-12: Siting and design of single dwellings.
5. Therefore, the determination of the Respondent will 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, [their] or its own costs'.