APPLICANTS Brendan Sheedy and Stacey Sheedy (Subject Land owners)

INTERESTED PARTY Minster for the Environment (adjoining property owner)

SUBJECT LAND 24 Bunyip-Modella Road, Bunyip

CITATION Sheedy & Anor v Cardinia Shire Council [2025] VBAB 70

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, Cardinia Shire Council, dated 15 January 2025 refusing consent to a shed with a 1m side setback instead of being 1.75m as required under reg 79 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 shed with a 1m side setback instead of being 1.75m as required under reg 79 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 before 15 January 2025, Brendan and Stacey Sheedy (the Applicants) applied for the consent of the Respondent, Cardinia Shire Council (the Council) to a building permit application for a proposed design in respect of a shed to be erected/built at 24 Bunyip-Modella Road, Bunyip
2. The shed would have a 1m side setback instead of 1.75m as required under reg 79 required under reg 79 of the Building Regulations 2018 (the Regulations).
3. Under reg 79 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 15 January 2025, the Council refused consent, reasoning that the proposed side setback does not meet the Decision Guidelines of Minister's Guideline: MG-12 - Siting and Design of Single Dwellings (MG-12).
2. On 3 February 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).
3. The Appeal was considered 'on the papers'.
4. The subject land is zoned Industrial 1 under the Cardinia Planning scheme. The Council issued a planning permit for the proposed shed.
5. Currently on the subject land there is a dwelling, shed with a carport, and a large Class 8 building used as a mechanic's workshop which is setback 1m from the northern boundary. The proposed shed is to replace the garage and carport and is to be used as a garage and for domestic storage. The proposed shed is to be setback the same distance from the northern boundary as the existing workshop.
6. The Council's submission is that the proposed shed is higher than the existing workshop so should have a greater setback.
7. An unused road (Crown Land) approximately 20m wide adjoining the northern boundary of the subject land is licensed to the Applicants for non-exclusive use for access and customer carparking on an annual basis.
8. The Council's submission includes an email from an officer of the Department of Energy, Environment and Climate Action as follows:

The reduced setback of the shed adjoining the Crown land, and with only a 2300mm setback on the other side of the shed, raises concerns on the reliance for larger vehicles to access the rear of the property, particularly given its operation as a business, through the adjoining Crown land. The proponent has an annual licence for non-exclusive use of the adjoining Crown land for access and as a customer carpark. There is no guarantee of ongoing access. Also, there are concerns that the height of the building, with the reduced setback and given, may result in overshadowing of the Crown land. On this basis the Department of Energy, Environment and Climate Action (DEECA) on behalf of the Minister for Environment does not support the reduced side setback.

1. 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 relevant consideration for me to consider. Based on these considerations I make the following findings.
2. The objective of MG-12 Siting requirement 8 is:

to ensure that the height and setback of a building from a boundary respects the existing or preferred character and limits the impact on the amenity of existing dwellings.

(a) the reduced setback of the proposed shed will have no impact on the amenity of existing dwellings given that it is an industrial area and the nearest dwelling to the north (also in the Industrial 1 zone) is at least 20-30m away as the adjoining Crown Land unused road does not contain a dwelling;

(b) the setback will not result in a disruption of the streetscape as it is located behind the existing dwelling on the subject land and will have no impact on the amenity of dwellings opposite fronting Bunyip-Modella Road; and

(c) the unused road abutting the property to the north should be considered as a side lane for the purposes of criterion (h) of MG-12 Siting requirement 8.

1. I further find that the Council's submission on the purported objection on behalf of DEECA is ill-conceived as:

(a) the land is zoned industrial and any future use of the Crown Land is likely to be an industrial use or a road;

(b) the test in MG-12 Siting requirement 8 is the impact on the amenity of existing dwellings. There is no dwelling on the Crown Land;

(c) overshadowing of the Crown Land where there is no dwelling is not a relevant consideration under MG-12 Siting requirement 8; and

(d) the Council has issued a planning permit for the shed having considered streetscape character and built form as required under Clause 33.01-4 of the Cardinia Planning Scheme.

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 shed with a 1m side setback instead of being 1.75m as required under reg 79 of the Regulations

[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'.