APPLICANTS Mayank Seth and Rakhi Seth (Subject Land owners)

SUBJECT LAND 15 Shafer Road, Blackburn North

BEFORE Members E Karabardak (panel chair), and J Livingston

CITATION Seth & Anor v Whitehorse City Council [2025] VBAB 88

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, Whitehorse City Council dated 28 March 2025 refusing consent to the dwelling having a setback distance of 6.619 metres from the front street alignment, instead of the prescribed minimum setback distance of 9.0 metres 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 the dwelling having a setback distance of 6.619 metres from the front street alignment, instead of the prescribed minimum setback distance of 9.0 metres 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 about early March 2025, Mayank Seth and Rakhi Seth (the Applicant/s) applied for the consent of the Respondent, Whitehorse City Council, (the Council) to a building permit application for a proposed design in respect of a dwelling to be erected/built at 15 Shafer Road, Blackburn North (the Subject Land).
2. The Applicants' report and consent application sought the Council's approval for the proposed dwelling to have a setback distance of 6.619 metres from the front street alignment, instead of the prescribed minimum setback distance of 9.0 metres, 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 28 March 2025 the Council refused consent, reasoning that:

Council officers have assessed your application, undertaken a site inspection and in this instance, are not willing to support the proposed minimum street setback, as the proposal is not in-line with the Minister's Guidelines (MG/12).

Council has utilised the Ministers Guidelines to conduct this assessment and the following determinations are provided:

b. the setback will result in a disruption to the streetscape in this instance, as the nearby buildings are all setback more than 6.619metres from the front boundary; and;

c. the setback is not consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme; and The City of Whitehorse's Housing & Neighbourhood Character Review (Garden Suburban Precinct 9) contains the following preferred neighbourhood character points:

"To maintain and reinforce the rhythm of spacing between and around buildings, and the alignment of buildings along the street"

d. the setback will not be more appropriate taking into account the prevailing setback within Shafer Road being generally in excess of 6.619metres.

e. the setback will not 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 not constrained by the shape and or dimensions of the allotment; or

g. the siting of the building is not constrained by the slope of the allotment or other conditions on the allotment; or

h. there is not a need to decrease the setback to maximise solar access to habitable room windows and or private open space; or

i. the setback will not be more appropriate taking into account the desire or need to retain vegetation on the allotment.

1. On 21 April 2025, the Applicant/s appealed the Council's 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 19 June 2025.

1. We have considered the parties' written submissions and the material filed with the BAB. We 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 we make the following findings.
2. The Subject Land is located within a neighbourhood that is undergoing transition. The existing housing stock of single storey, bream brick 1950's and 1960's dwellings are incrementally being replaced by larger double storey 'volume build' dwellings or medium density housing proposals. In each of those circumstances, there has been an increase in site coverage, hard surfaces and a decrease in setbacks, as well as the landscaping theme becoming more formalised.
3. The Subject Land is located on a corner, determining that it has only one neighbour as reference point when deciding whether the proposed front setback is an acceptable outcome.
4. The Subject Land is also not as 'deep' as other sites on both sides of the street. With a depth of 30 metres, it is roughly 2 metres 'shorter' than its neighbour and up to 4 metres shorter than other sites within the street.
5. While the Subject Land is largely devoid of vegetation, the neighbour to the west has a large hedge that runs along the common side boundary and the dwelling itself at No.13 Shafer Street, has a significant side setback in the vicinity of 2.4m. There also does not appear to be any habitable room windows facing the Subject Land.
6. Turning to the planning scheme, the site is a General Residential Zone, which includes the purposes;
   • To encourage development that is responsive to the neighbourhood character of the area.
   • To encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport.
7. The schedule to the Zone, makes the following modification;
   • Any new wall on a boundary should be setback at least 10 metres from the front boundary or 1 metre further than the average set back of the buildings on adjoining allotments, whichever is the lesser.
8. As mentioned by the council the Subject Land also falls into the Garden suburban Precinct 9 Neighbourhood character area, which includes the following strategies;
   • Site low-set, pitched-roof development in spacious garden settings, with a backdrop of large native and exotic trees.
   • Maintain the pattern of regular front and side setbacks from both side boundaries, allowing sufficient space for planting and growth of new vegetation.
   • Set back upper levels of new development from the ground level to minimise their dominance in the streetscape.
   • Provide low or open style front fences, that allow views into front gardens and lawn areas and maintain an open streetscape.
9. Having regard to the existing conditions and the planning context, it is clear that the thrust of the neighbourhood character provisions is to provide for dwellings to existing in a landscaped setting. This includes, not only the front setbacks, but also the side setbacks and to provide a backdrop of vegetation, presumably enhanced by planting in the rear setback.
10. The proposal before us, provides for a 6.619 metre front setback, approximately 2.7m setback to both side boundaries and a 3m setback to the rear boundary. The proposed dwelling is centrally located on the Subject Land, with setbacks that provide sufficient space for the planting of canopy trees.
11. Taking into account the strategic thrust of the scheme for a neighbourhood where dwellings are 'framed' by vegetation, and in recognition that this site is different from its neighbours by having a 'short' depth, it is our view, that the proposed front setbacks is an acceptable outcome.

[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'.