• will result in a significant impact on the amenity of existing dwellings on nearby allotments;

• the wall does not abut a side or rear lane; or
• the increased wall height is not required to screen a box gutter; or
• will not be appropriate taking into account the prevailing location, length and or height of boundary walls of existing buildings on nearby allotments; or
• slope of the allotment and or existing retaining walls or fences do not reduce the effective height of the wall.

1. On 5 March 2025, the Applicants appealed the decisions (the Appeals) under s 144(1)(a) of the Building Act 1993 (Building Act) to the Building Appeals Board (BAB).
2. The Appeals were heard 'on the papers' on 24 April 2025.

(a) an allotment is in a zone of a planning scheme specified in Schedule 6; and

(b) a schedule to that zone in the planning scheme specifies minimum setbacks from side and rear boundaries -

a building on the allotment must be set back from a side or rear boundary not less than the relevant setback specified in that schedule.

(2) If subregulation (1) does not apply, a building must be set back from a side or rear boundary not less than the distance specified in respect of that boundary in Table 79.

(3) The following may encroach into the setback distance required by subregulation (1) or (2) -

(a) landings with an area of not more than 2 m2 and less than 1 m in height;

(b) unroofed stairways and ramps;

(c) pergolas;

(d) shade sails;

(e) eaves, fascia and gutters, if the encroachment is not more than 600 mm;

(f) carports that comply with regulation 80.

(4) The following may encroach into the setback distance required by subregulation (1) or (2) by not more than 500 mm -

(a) porches and verandas;

(b) masonry chimneys;

(c) sunblinds;

(d) permanent and fixed screens referred to in regulation 84(5)(d) or (6);

(e) flues, pipes and rainwater heads;

(f) domestic fuel tanks and water tanks;

(g) heating and cooling equipment and other services.

(5) This regulation does not apply to a wall that complies with regulation 80.

(6) 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) This regulation applies to the construction of -

(a) a wall of a building constructed on or within 200 mm of a side or rear boundary of an allotment; or

(b) a carport constructed on or within 1 m of a side or rear boundary of an allotment and which is open on the side facing the boundary or boundaries.

(a) an allotment is in a zone of a planning scheme specified in Schedule 6; and

(b) a schedule to that zone specifies the maximum length of the wall, or of the carport, or of the wall and carport, or the maximum of any of those lengths combined with the length of any existing wall or carport -

that length must not exceed any such maximum length specified in that schedule.

(3) If subregulation (2) does not apply, the length of the wall, or of the carport, or of the wall and carport, or any of those lengths combined with the length of any existing wall or carport, must not exceed the greater of the following -

(a) the length of any existing wall or carport constructed on an adjoining allotment, which is within 200 mm of the boundary of that allotment, if the proposed construction abuts the existing wall or carport;

(b) 10 m plus 25% of the remaining length of the boundary of the adjoining allotment, in any other case.

(a) an average height of 3×2 m where the average is calculated after excluding any length that is less than 2 m in height; and

(b) a maximum height of 3×6 m.

(5) Despite subregulation (4), if the wall or carport abuts an existing wall or carport it may be constructed to the same height as that wall or carport.

(6) 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. In considering the appeal, reference is made to the Minister's Guideline MG-12 Siting and Design of Single Dwellings (MG-12) gazetted on 14 December 2023 and issued pursuant to s 188A of the Act. Section 188A(1) of the Act provides:

The Minister may from time to time issue guidelines relating to the design and siting of single dwellings.

1. Clause 4A of Schedule 2 to the Act ('Schedule 2'), states:

(a) a reporting authority is required by this or any other Act or by the regulations to report on, or to consent to, an application for a building permit for a single dwelling, within the meaning of section 188A(4); and

(b) the regulations provide that section 188A applies to any applications of that kind.

(2) In reporting on, or considering whether to consent to, the application, the reporting authority -

(a) must have regard to the guidelines for the time being in force under section 188A; and

(d) must refuse to give its consent to the application if the application does not comply with any matters set out in those guidelines.

1. Because the BAB is not a reporting authority, MG-12 does not expressly bind the BAB, however, we are of the view it is appropriate to have regard to MG-12 in arriving at a determination in any siting appeal including this one because it is a relevant consideration.
2. We are also of the view that there would need to be exceptional circumstances to justify the BAB permitting a departure from MG-12.[2]

1. The Applicants' submissions on reg 79 of the Regulations are briefly summarised as follows:

(a) The non-compliant area relates to a length of first floor external wall and flue along the western side of the property as marked up in yellow on A04 Proposed Site Plan - First Floor and A15 West & East Elevations.

(b) The setback relating to the proposed building envelope has been approved under an existing planning permit 'PA231083'. With reference to the attached Ground & First Floor plans and snippets of comparison between the approved planning and proposed building documentation the wall alignments are consistent and have not been amended at all.

(c) The infringement will have a de minimis effect on the adjoining neighbours back yard. The proposed building is located to the neighbours East and will have no significant impact on the Interested Party's Private Open Space (POS) being the backyard. The neighbouring land is up to approximately 450mm elevated above our site, coupled with our walls being under 3m in height along the boundary, the Applicants propose there will be no significant impact to the neighbours existing habitable windows as the location of the proposed encroachment is not within the window zone.

(d) The setback will not result in a disruption of the streetscape as the rear of the building is not visible from the streetscape, therefore causing no disruption.

(e) The setback has been reviewed and approved by the councils Statutory Planning Department in accordance with the Heritage and Design Development (DD04) Overlays of the Hobsons Bay Planning Scheme which applies to the Subject land.

(f) As indicated within the A04 document the external wall encroachment varies from 0mm to approximately 309mm along a small proportion of the wall line where the boundary adjusts in direction. The encroachment of the wall at its extremity has no bearing on the visual bulk nor overlooking as there are no windows within the wall itself that would attribute to this.

(g) The encroachment of the proposed flue of approximately 137mm is minor in its proposed encroachment. The flue has been adjusted from the original approved plans to comply with building regulations and reticulation requirements as per manufactures requirements, refer to A14 North & South Elevations. The flue is proposed to be powder coated to match the Western ground floor roof, level one wall cladding and the first floor roofing in order to blend in with the external façade and view of the Adjoining neighbours property.

(h) Shadow diagrams were prepared and have been drawn to indicate the amount of overshadowing as part of the Applicants submission to their private building surveyor in obtaining a building permit. These diagrams indicate the amount of overshadowing that will affect the Adjoining Property at various times of the day. These documents were provided to the Respondent as part of the report and consent submission and contain diagrams showing shadows cast between 9am and 3pm at the 22 September Equinox as per the Regulations. These diagrams clearly show that shadowing is compliant with Building Regulation 83 and therefore removes the notation that the encroachment affects the Adjoining Property amenity and eastern windows.

1. The Applicant provided the following submissions on reg 80 of the Regulations:

(a) The non-compliance relates to the amount of wall construction on or within 200mm of a side boundary of the Subject Land and the Adjoining Property.

(b) The setback relating to the proposed building envelope has been approved under an existing planning permit 'PA231083'. With reference to the attached Ground & First Floor plans and snippets of comparison between the approved planning and proposed building documentation the wall alignments are consistent and have not been amended at all.

(c) The Applicant relies on documents A22 & A23 Shadow diagrams indicating compliance hence not adversely affecting the Adjoining Properties recreational private space nor adding to overshadowing.

(d) The proposed new walls do not adversely impact the Adjoining Properties amenity, daylight to habitable windows, cause undue shadowing or negatively impact on the use of their service yard & back yard. The proposed walls on boundary are under the 3.2m average height limit (lower than the neighbours garage parapet wall).

1. The Hobsons Bay City Council Guidelines for Infill Development in Heritage Areas in Hobsons Bay 2006 states:

'the objective is to ensure new development is of a high-quality design that creatively interprets and responds positively to the historic context provided by the heritage place or precinct... To ensure new development does not visually dominate a heritage place or area'. The proposed walls on boundary (where the site adjoins with the Adjoining property) mimic the existing neighbourhood character and the general acceptance for walls on boundary yet doesn't impact the amenity of neighbouring dwellings.'

1. The proposed ground floor walls are a design response to the Adjoining Properties architecture. The Adjoining Property has also built hard against their Western boundary with light wells providing daylight & ventilation to internal rooms, with a 1m wide service yard to the Eastern boundary. Sites in this neighbourhood are narrow with the resulting architectural language to be heritage respective street frontage with high density double storey development and generous walls on boundary behind. The proposed walls on boundary are not excessive given the narrow and elongated footprint of the site and the established neighbourhood character.

1. The Respondent provided the following submissions in relation to the appeals:

(e) Both the application pursuant to reg 79 and 80 of the Regulations was refused due to Schedule 2 Clause 4a to the Act, MG-12 and MG-03 Guidelines.

(f) Planning Permit, PA231083, was issued for the development work on 21 May 2024. The Planning Permit did not assess siting requirements contained in Clause 54 of the Planning Scheme, hence the application for consent and report of Council under the Regulations was lodged.

(g) The Adjoining Owner objected to the proposed building work.

1. The Respondent provided the following submissions in relation to the appeals concerned with reg 79 of the Regulations:

(a) In relation to MG-12(a), the adjoining property owner has identified that the proposed building setback will significantly impact on both their amenity and their secluded private open space.

(b) MG-12(b) is not material to the site.

(c) In relation to MG-12(c), as the proposed reduction in setback is to the rear of the property it does not impact the streetscape.

(d) In relation to MG-12(d), the Respondent notes a planning permit was issued by Council for the development in the Heritage overlay. The Respondent further refers to Schedule 4 of the Neighbourhood residential Zone contains the following neighbourhood character objective:

To support development that contributes to the heritage place.

(e) In relation to MG-12(e), the adjoining dwelling at 17 Twyford Street Williamstown was constructed in 1999 and complies with the setback requirements of the time. The adjoining owners objection includes that the proposed building is inappropriate given the proposed setbacks.

(f) In relation to MG-12(f), a planning permit was issued by Council for the development in the Heritage Overlay.

(g) In relation to MG-12(g), the property is considered to be flat therefore this is not material.

(h) In relation to MG-12(h), the wall does not adjoin a side street or lane.

(i) In relation to MG-12(i), the reduced setback of the building is not opposite an existing wall on the boundary.

1. The Respondent provided the following response in respect of the appeals concerned with reg 80 of the Regulations:

(a) In relation to MG-12(a), the proposed length of the wall will result in a significant impact on the amenity of the existing adjoining dwelling.

(b) MG-12(b) is not applicable

(c) In relation to MG-12(c), the Respondent notes a planning permit was issued by Council for the development in the Heritage overlay. The Respondent further refers to Schedule 4 of the Neighbourhood residential Zone contains the following neighbourhood character objective:

To support development that contributes to the heritage place.

(d) In relation to MG-12(d), The adjoining property has a wall on the boundary to their garage. The wall is a maximum of 3.2metres high and 6 metres long as shown on the development plans at the time of construction in 1999. The proposed wall significantly extends in length along the boundary compared to the existing adjoining garage wall.

(e) In relation to MG-12(e), a planning permit was issued by Council for the development in the Heritage Overlay.

(f) In relation to MG-12(f), the property is considered to be flat therefore this is not applicable.

(g) In relation to MG-12(g), the wall does not adjoin a side street or lane.

(h) In relation to MG-12(h), the front section of the wall adjacent the home office, ensuite and guest bedroom do contain a box gutter that is screened by the wall. The rear section of the wall contains an eave gutter

1. The Respondent also notes MG-3 Minister's Guideline MG-03 and that given it received an objection that it did not consider frivolous consent was therefore refused.

1. The Interested Parties (adjoining owners) objected to the report and consent for the following reasons:

(a) The design had been amended from the previously approved plans (town planning).

(b) The reduced first floor setback would increase the visual bulk of the adjoining property and result in additional shadowing of the East facing windows of their property and increase the perception of overlooking.

(c) The flue would result in an adverse impact to their property.

(d) The combined walls on the boundary had been amended and would result in additional overshadowing and a direct impact on their secluded private open space.

1. The Interested Parties provides the following submissions in relation to reg 79 of the Regulations:

(a) The proposal to reduce the setback of the dwellings first floor western side external wall from 1.862 metres required by regulation 79 to 1.553 metres will result in the western wall being over 300mm closer to the eastern boundary of our property. This will increase the visual bulk of the adjoining property and result in additional shadowing of the east facing windows to our property and increase the perception of overlooking. This will be detrimental to our amenity.

(b) The proposal to locate the flue 0.363 metres from our eastern boundary in lieu of the prescribed 0.5 meters required by regulation 79 will result in an adverse impact to our property. The proposed flue is already an unsightly visual element when viewed from our secluded private open space. The applicant had already chosen to expose this flue to view from our property rather than concealing it from view in their new home. The reasons given for the relocation of the flue are spurious and will only increase the visual impact of the flue.

1. The Interested Parties provided the following submissions in relation to reg 80 of the Regulations:

(a) The Interested Parties object to the application to permit the dwelling to be constructed on or within 200mm of the side boundary with a total combined length of 23.045 metres on boundary in lieu of the prescribed maximum length on the boundary of 15.54 metres contract to regulation 80.

(b) The length of combined boundary wall is already excessive and the proposed amendment to both increase the combined length and reduce the setback will be contrary to the amenity. The proposed amendments increase the visual bulk of the adjoining property, result in additional overshadowing. This is a direct impact on our secluded private open space.

1. The Applicants provided the following reply submissions in relation to MG-12(a) relating to reg 80 of the Regulations:

(a) The Applicants say that they have further evidence to show that the Respondent and Interested Party provided initial responses to the proposed report and consent application that it's not consistent with their responses to the appeal application.

(b) The Interested Parties have used the same submissions to both Respondent and the BAB. Given this, the Applicants feel that they have responded to those submissions.

1. The Applicants then provided the following additional information in reply:

(a) Approximately 6.823 lineal meters of the new wall on boundary is adjacent to the Adjoining Neighbours existing garage wall on boundary and does not affect the amenity of the existing dwelling

(b) Approximately 7.961 lineal meters of the proposed new wall on boundary is adjacent the neighbours side service pathway which is setback 1100mm from the eaves of the adjoining property and does not affect the amenity of the existing dwelling

(c) The above totals 14.784 lineal meters of wall on boundary out of the 23.045 lineal meters proposed on boundary of which has no impact to the neighbour's private rear open space and does not affect the amenity of the existing dwelling

(d) The remainder of the wall on boundary of 8.261 lineal meters is made up of 838mm of wall that is at the front of the site and the remainder of the wall of 7.423 lineal meters abounds the neighbours rear yard.

(e) The Applicants note that the principal open space being the neighbours rear yard is South facing and its outlook from the covered porch is not adversely affected by the proposed wall on boundary. The design of the ground floor has been planned in a manner that reflects the narrow orientation and elongated footprint of the site whilst planning a functional layout for a family of 5. We note that this is consistent with what we have previously affirmed with the neighbourhood character of the area.

(f) The Respondent advised that under the Ministers Guidelines they are required to refuse the Applicants submission if they received an objection from the adjoining property that is deemed to not be considered as non-frivolous.

(g) The Respondent then went on to confirm that if they had not received an objection from the adjoining neighbour, that council as the Respondent would have approved the Report and Consent matters issued by the Applicant.

1. First, we observe there are three appeals before us to determine. We note that Appeals 1 and 2 relate to the Western Wall and is concerned with reg 79 of the Regulations. Accordingly, we will deal with Appeals 1 and 2 together and Appeal 3 separately, which is concerned with reg 80.

1. We have considered each parties written submissions which were filed and exchanged during the proceeding.
2. 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.
3. We turn to each of the MG-12 criteria set out for reg 79 of the Regulations to determine if it is appropriate to affirm or quash the decisions outlined in Appeal 1 and Appeal 2.
4. We note that all of the applicable criteria from MG12(a)-(d) must be met and at least one of the applicable criteria from MG-12(e)-(i) must be met.

a. the setback will not result in a significant impact on the amenity of the secluded private open space and habitable room windows of existing dwellings on nearby allotments; and

1. The Interested Party's main complaint regarding the setback of the wall is that it would increase the visual bulk of the proposed building and result in additional shadowing of the east facing windows on the adjoining property and increase the perception of overlooking.
2. The Respondent and Interested Party have not disputed the Applicant's submissions that the external wall encroachment varies from 0mm to approximately 309mm along a small proportion of the wall line where the boundary adjusts in direction.
3. We have reviewed the plans and the shadowing diagrams provided by the Applicants. We note that neither the Respondent nor Interested Party have provided contrary shadowing diagrams. Further, that the Respondent has not disputed the Applicant's submission that the shadowing diagrams show there is no contravention of reg 83 of the Regulations.
4. We note that a fully compliant design would create shadowing to the habitable room windows and that the proposed design does not noticeably alter this shadowing impact. Similarly, the private open space would not be significantly impacted.
5. The issue of visual bulk is offset by the structure of the building which provides for the first floor to be set back further than the ground floor wall in a tiered wedding cake design. This reduces the impact of visual bulk because the full height of the building is not in one piece but rather staggered away from the Adjoining Property.
6. It is not clear what 'perception of overlooking' means, there are Regulations against overlooking but not the perception of overlooking. The Interested Party has not raised a submission that definitively suggests overlooking and nor has the Relevant Building Surveyor or Respondent identified any overlooking. In any event, the report and consent application has not referred to the relevant overlooking Regulations and it does not form part of this appeal.
7. We consider that MG-12(a) as it relates to Appeal 1 has been met by the Applicants.

1. The main issue raised by the Interested Party in relation to amenity as it relates to the flue is that it creates a visual intrusion.
2. The BAB has reviewed the material and notes it is the bottom of the flue which is non-compliant for a small distance before the flue angles back to the first floor of the proposed building. The Applicant has suggested the encroachment of the proposed flue is approximately 137mm which has not been disputed by either party. Given this, the extent of this non-compliance is minimal.
3. Whilst we accept that the flue is visible above the roof line, regardless of placement the flue would need to be above the roof line to adequately function. Further, such construction elements are typical to many homes, particularly those in Heritage Overlays.
4. The Interested Party suggested other methods could be used such as screening the flue. However, the Applicant has proposed to powder coat the flue so that it matches the Western Ground floor roof, level one wall cladding and first floor roof. This would cause the flue to blend into the background of whatever material it is against and reduce the visual intrusion significantly.
5. We consider that the proposed flue powder coating and minimal non-compliance meets the requirements of MG-12(a).

b. 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

1. Decision criterion (b) is not material as there is no building envelope approved under a planning scheme or planning permit specified in an agreement under section 173 of the Planning and Environment Act 1987.

c. the setback will not result in a disruption of the streetscape; and

1. The Interested Parties have not contended that there would be a disruption to the streetscape. The Respondent conceded it would not disrupt the streetscape due to the location of the wall.
2. We accept the submission of the Respondent on this issue. We have further viewed the design and note that whilst there is building up to each boundary side, that the overall location of the wall subject of Appeal 1 together with the design which incorporates a reduced set back of the upper floor creates a sense of space.
3. Accordingly, we find that Appeal 1 meets MG-12(c).

1. The flue does not impact on or result a disruption of the streetscape. It is an element found in many homes. Accordingly, we find that Appeal 2 meets the MG-12(c) criterion.

d. the setback is consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme, and

1. The Respondent states that the Applicants obtained a planning permit for the development which is within a heritage overlay. The Respondent notes it has a neighbourhood character objective to support development and contribute to the heritage of the place.
2. As the Applicants' proposed building meets the heritage overlay this would support a conclusion that the overall design and setback is consistent with the neighbourhood character objective to contribute to the heritage of the area.
3. Given the above, we conclude that the Applicants have established that MG-12(d) criterion has been met.

e. the setback will be more appropriate taking into account the prevailing setback of existing buildings on nearby allotments; or

1. We note the Applicants' reference to the Respondent Council's guidelines for infill development in Heritage Areas dated to 2006. This includes reference to meeting the historic context of the heritage precinct but also discusses the proposed walls on boundary. It states:

The proposed walls on boundary (where the site adjoins with the Adjoining property) mimic the existing neighbourhood character and the general acceptance for walls on boundary yet doesn't impact the amenity of neighbouring dwellings.

1. The Applicants have noted the Adjoining Property's architecture was built hard against the Western boundary with a 1m wide service yard to the Easter boundary. The Respondent confirmed however that this was compliant with the applicable regulatory requirements at the time of construction.
2. There is no persuasive submission to counter the Applicants' contention that the setbacks of existing buildings on nearby allotments includes narrow and elongated sites with high density double storey development and generous walls on boundaries.
3. The granting of a planning permit under the Heritage Overlay in the area would also support a conclusion that the set back is appropriate and consistent with the prevailing setback of existing buildings on nearby allotments.
4. Given the available evidence, we conclude that the Applicants have met the MG-12(e) criterion.

1. We consider that if it can be said that this criterion applies to the flue, the flue as a construction element is likely also in keeping with the Heritage Overlay as a general design feature.
2. Whilst the parties have not provided particular evidence of the prevalence of the flue placement and setbacks in the area, we note that it is common for the flue to be placed on the exterior of homes. The whole of the design has further been considered under planning for the heritage overlay which takes into account the particular design responses appropriate for the area. Accordingly, the flue itself together with the minor encroachment for a short distance as approved on the Heritage overlay would meet MG-12(e).

f. 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

1. In response to this criterion the parties have reiterated their contentions above under MG-12(c) which discuses the neighbourhood character objective and how it interacts with the Heritage Overlay.
2. We find that Appeal 1 and Appeal 2 have met the MG-12(f) criterion.

g. the slope of the allotment and or existing retaining walls or fences reduce the effective height of the building; or

1. There is a disagreement between the parties regarding whether the block has a slope which reduces the effective height of the building.
2. There is no land survey to support the Applicants' submission that the Adjoining Property is 450mm higher than the Applicants' property.
3. We do not consider that the Applicants have established that criterion MG-12(g) applies in this case.

1. Decision criterion (h) is not material as the building does not abut a side or rear lane.

i. the building is opposite an existing wall built to or within 150mm of the boundary.

1. Decision criterion (h) is not material as the building is not opposite an existing wall built to or within 150mm of the boundary.

1. As the Applicants have established all the applicable criterion from MG-12(a)-(d) and at least one of the criterion form MG-12(e)-(i) apply, we find that it is appropriate to approve the proposed variations.

1. We now turn to each of the MG-12 criteria set out for reg 80 of the Regulations to determine if it is appropriate to affirm or quash the decision outlined in Appeal 3.
2. We note that all of the applicable criteria from MG12(a)-(c) must be met and at least one of the applicable criteria from MG-12(d)-(h) must be met.

a. the location, length and or height of the wall(s) will not result in a significant impact on the amenity of existing dwellings on nearby allotments; and

1. Regulation 80 of the Regulations allows the consideration of all walls on boundary to be assessed in combination.
2. However, if considering the particular wall on boundary shared with the Adjoining Property by itself, we note that this wall in isolation would be compliant.
3. We further note that the shadow diagrams do not suggest the wall by itself would result in significant loss of sunlight amenity or create significant shadowing.
4. The Interested Parties suggested the visual bulk is an issue. However, if the wall was considered simply by itself rather than in combination with the wall on the opposite side of the Subject Land, then it would be compliant and there would be no difference in visual amenity.

b. 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

1. Decision criterion (b) is not material as there is no building envelope approved under a planning scheme or planning permit specified in an agreement under section 173 of the Planning and Environment Act 1987.

c. the location, length and height of the wall is consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme; and

1. We note our comments above in relation to the Heritage Overlay and neighbourhood character objective.
2. The design proposal including the location, length and height of the wall has been through the planning permit process which considered the Heritage Overlay. The neighbourhood character objective further incorporates are requirement to consider Heritage.
3. We also note that neither the Respondent nor the Interested Party has objected to the wall on the basis of it being inconsistent with the neighbourhood character objective.
4. Given this, we conclude that the Applicants have met MG-12(c).

d. the location, length and or height of the wall will be appropriate taking into account the prevailing location, length and or height of boundary walls of existing buildings on nearby allotments; or

1. We note the parties have not specifically addressed the MG-12(d) criterion with photographs of the nearby properties.
2. It is quite possible that the planning permit process in considering the Heritage Overlay may have considered this issue, however, it is not clear that it would have given there is not a Council guideline provided that addresses it.
3. Given this, we consider there is insufficient evidence to establish that MG-12(d) has been met.

e. the location, length and or height of the wall will be more appropriate taking into account the preferred character of the area, where it has been identified in the relevant planning scheme; or

1. We note our comments further above in our Reasons as it relates to preferred neighbourhood character of the area and the Heritage overlay.
2. We consider that the planning permit process had regard to the Heritage Overlay and approved the design, including the location, length and height of the wall. The preferred neighbourhood character of the area has regard to Heritage and infill walls.
3. Given this, we conclude that the Applicants have established MG-12(e).

f. the slope of the allotment and or existing retaining walls or fences reduce the effective height of the wall; or

1. We note our comments above relating to the slope at the property.
2. We are not satisfied that MG-12(f) has been established to show that the slope of the allotment and/or existing fences would reduce the effective height of the wall.

1. Decision criterion (g) is not material as the building does not abut a side or rear lane.

h. the increased wall height is required to screen a box gutter.

1. Decision criterion (h) is not material as the wall height is not required to screen a box gutter.

1. As the Applicants have established all the applicable criterion from MG-12(a)-(c) and at least one of the criterion form MG-12(d)-(h) apply, we find that it is appropriate to approve the proposed variation.

[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'.

[2] This reflects that the BAB stands in the shoes of the Council and that it is desirable for the BAB to promote consistent decision making within the regulatory framework. Further, the BAB has considered the content of the Guidelines and concludes that the Guidelines set out by the Minister are reasonable and appropriate requirements.