APPLICANTS Clive Sheppard and Fiona Sheppard (Subject Land owners)

CITATION Sheppard & Anor v Whitehorse City Council [2025] VBAB 78

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 2 April 2025, that refused consent to a new double garage to have a setback from the side street boundary of 0.55m, instead of the minimum prescribed setback of 2.0m 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 new double garage to have a setback from the side street boundary of 0.55m, instead of the minimum prescribed setback of 2.0m 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]

_______________________ ________________________

1. Clive Sheppard and Fiona Sheppard (the Applicants) 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 double garage to be built at 32 Foch Street, Box Hill South (the Subject Land).
2. The double garage is to have a setback from the side street boundary of 0.55m, instead of the minimum prescribed setback of 2.0m 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 3 April 2025, the Council refused consent, reasoning that:

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 0.55m 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 3) 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 Foch being generally in excess of 0.55m.

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, whilst the site is slightly smaller than nearby allotments, there is room for the structure to be moved to a complaint setback; 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 9 April 2025, the Applicants appealed the decision under s 144(1)(a) of the Building Act 1993 to the Building Appeals Board (the BAB).
2. The Appeal was heard 'on the papers' on 29 May 2025.
3. 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 it is a relevant consideration for the BAB to consider. Based on these considerations I make the following findings.

1. The proposal is to construct a double garage, with a low-profile roof (10⁰) rather than a more traditional pitch of 22⁰, in a similar location where once a single galvanised garage existed. The proposed paved location is currently being used for car parking.
2. As this is a corner property, a setback of 2m is typically required, however, the applicant has proposed a 0.55m, based on the need to maintain natural light to existing habitable room windows.
3. It is recognised that the property is elevated and as a result, a retaining wall has been constructed along the western property boundary, the same boundary to which the dispensation is requested. The result of the change in levels, with the inclusion of an existing 1.8. high fence atop the retaining wall along with screening and significantly established vegetation, is that the proposed garage is almost unseen from the road.
4. As a result, I find the siting of the garage closer to the side boundary will not impact upon the neighbourhood character or disrupt the streetscape.

[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'.