1. The Respondent's submissions and original reasons centred on a detailed consideration of Minister's Guideline MG-12 - more particularly MG-12 Siting Requirements 2: Minimum Street setback of a principal single dwelling (MG12-2).
2. The Respondent's assessment of MG12-2 is considered in more detail below, but for the time being, it is sufficient to note that the Respondent formed a view that the 3.4m Setback did not meet the requirements of MG12-2 and therefore the Respondent was mandated to refuse consent and had no discretion to deviate from this position.

1. The Interested Party did not provide any written submission for the appeal save for the Consent Notices produced by the Applicant.

1. As a result of the RAC Application, the Respondent was required to consider the RAC Application pursuant to MG-12 which states its purpose as follows:

The purpose of this Guideline is to set out the matters to be considered by a reporting authority [that is, the Respondent in this situation] when preparing a report on, and considering whether to consent to, (report and consent) a variation to the siting, design and access requirements prescribed under Part 5 of the Building Regulations 2018 (Regulations), for an application for a building permit for a single dwelling, including a principal single dwelling, a small second dwelling or a front fence.

1. MG12-2 is the relevant guideline dealing with regulation 74 and minimum street setbacks.
2. MG12-2 states and provides the Respondent with discretion in regard to reg 74 as follows:

To ensure that the setbacks of a principal single dwelling from a street respect the existing or preferred character of the neighbourhood and make efficient use of the site.

The reporting authority may give its consent where a principal single dwelling does not comply with regulation 74 (Minimum street setback) of the Regulations if -

(a) the setback is consistent with a building envelope, if one has been approved under a planning scheme or planning permit and or specified in an agreement under section 173 of the Planning and Environment Act 1987; and

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

(c) the setback is consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme; and

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

(e) the setback will be more appropriate taking into account the preferred character of the area, where it has been identified in the relevant planning scheme; or

(f) the siting of the building is constrained by the shape and or dimensions of the allotment; or

(g) the siting of the building is constrained by the slope of the allotment or other conditions on the allotment; or

(h) there is a need to decrease the setback to maximise solar access to habitable room windows and or private open space; or

(i) the setback will be more appropriate taking into account the desire or need to retain vegetation on the allotment.

1. MG12-2 therefore requires the reporting authority, being the Respondent, to consider three mandatory criteria and at least one of the six other criteria before it can exercise its discretion to approve the 3.4m Setback.
2. As noted above, the Respondent assessed the 3.4m Setback as not meeting MG12-2.

1. Without repeating the parties' submissions and MG12-2 in detail, we note have considered the parties' oral and written submissions and the material filed with the BAB.
2. We have also had regard to the applicable Decision Guidelines set out under the MG12-2**,** given it is a relevant consideration for the BAB to consider.
3. Based on these considerations we make the following findings.

Mandatory MG12-2 criteria a - applicable building envelope

1. Turning to mandatory MG12-2 criterion (a), we find there is no building envelope approved under a planning scheme, permit or section 173 that applies to the subject t Land.
2. Accordingly, MG12-2 criteria (a) is not relevant or applicable.

Mandatory MG12-2 criteria b - disruption to streetscape

1. Turning to mandatory MG12-2 criteria (b), we find the 3.4m Setback will likely disrupt the streetscape as the adjacent properties of 24 and 22 Goodwin Street have significantly deeper setbacks of 7.9m and 8.3m respectively, both of which are substantially more than double the 3.4m Setback.
2. The 3.4m Setback is also almost three times less than the setback of the 10.06m setback of the current house on the Subject Land.
3. Although we accept there is surrounding vegetation that may block the visual impact, such vegetation is readily removable when compared to buildings and built form.
4. Further, from the photos provided by the Applicant, the vegetation would only cover the Proposed Carport from the east, but not the west as there is currently no vegetation on the front boundary of the Subject Land nor 24 Goodwin Street that provides coverage.
5. This is indicated by the Applicant's own depiction of where the Proposed Carport as drawn onto the photos provided.
6. Having said that, we note that 24 Goodwin Street does have an entry portico that sits beyond its front wall setback of 7.9 m. This portico has a setback of 5.9 metres (No. 24's Portico Setback).
7. We are therefore of the view that a setback of 5.0 metres or more is unlikely to disrupt the streetscape as it would be setback from the portico setback of 24 Goodwin Street.
8. Similarly, when viewed from 20 Goodwin Street, it would be further setback and covered by existing vegetation.
9. A setback of 5.0 metres or more, would in our view would comply with MG12-2 criterion (b) and take into consideration the consents of 24 and 22 Goodwin Street.

MG12-2 mandatory criteria c - neighbourhood character consistency

1. Similarly, in regard to mandatory MG12-2 criteria (c), we find the 3.4m Setback is inconsistent with Whitehorse City Council Housing & Neighbourhood Character Review (Garden Suburban Precinct 13) (Precinct 13 Objective), as submitted by the Respondent.
2. In this regard, the 3.4m Setback would not benefit from any vegetation coverage the Precinct 13 Objective refers specifically to the spacing and siting of buildings, not just visual impact or disruption.
3. A setback which is more than double the setback of its immediate neighbours is likely inconsistent to the neighbourhood character when taking into account the Precinct 13 Objective.
4. However, if we consider No. 24's Portico Setback, a minimum setback of 5.0m or less will likely be consistent with the Precinct 13 Objective, as both would have similar siting and spacing of 5 metres to 6 metres, and both would be protruding from the front walls of their respective main buildings.
5. A setback of 5.0 metres or less, would in our view would comply with MG12-2 criterion (c) and take into consideration the consents of 24 and 22 Goodwin Street.

MG12-2 optional criteria d - prevailing setback within the street

1. Criterion (d) of MG12-2 requires the responsible authority to consider whether the 3.4m Setback is more appropriate when taking into account the prevailing setback within the street.
2. On this issue, the Respondent helpfully conducted a survey of the setbacks of 30 properties on Goodwin Street within the vicinity of the Subject Land.
3. The survey indicated that:

(a) the narrowest setback was 4.8 metres at no. 16 Goodwin Street;

(b) 11 of 27 properties (3 setbacks could not be ascertained) had setbacks less than 7.95 metres; and

(c) 4 of 27 properties had setbacks of 4.8 to 6.0 metres, which includes No. 24's Portico Setback of 5.9 metres.

1. Accordingly, we find that the 3.4m Setback would not be more appropriate as it would be narrowest setback out of the 30 other properties, and the narrowest setback by a good 1.8 metres to the next narrowest setback.
2. Similar to our views above, if No. 24's Portico Setback is taken into account (which forms part of the Respondent's survey), a setback of 5.0 metres for the Subject Land would make it the 5th setback of 27.
3. Considering this analysis together with the fact that No. 24's Portico Setback of 5.9m would be directly adjacent, we consider a setback of 5.0 metres for the Proposed Carport would be appropriate when taken into account the prevailing street setbacks.

1. Though MG12-2 provides other optional criteria for us to consider, we are of the view that having found that the 3.4m Setback does not comply with any of the mandatory criteria of (a), (b) and (c), and the optional criterion of (d), it is not necessary to consider whether the 3.4m Setback complies with the remaining criteria.
2. Similarly, having found that a minimum setback of 5.0m for the Proposed Carport would satisfy all three mandatory criteria (a), (b) and (c), as well as discretionary criterion (d), it is not necessary to consider whether the BAB's alternative 5.0m Setback complies with the remaining criteria.
3. In conclusion, we find that the Respondent's refusal to consent to the 3.4m Setback should be set aside and substituted with our decision to consent to a setback of 5.0m for the Proposed Carport.

[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'.