Building Appeals Board Modifications of the Building Regulations in Practice
On 3 February 2025, the Building Appeals Board (matter: 455647) found in favour of the Applicant in a section 160 (2) (b) Building Act 1993 application to modify the regulations which dictated the minimum rear setback of the subject property. The Applicant was represented by Lovegrove and Cotton Construction and Planning Lawyers, and the decision was made on the following.
Circumstances:
On 14 November 2019 Amendment C125 to the Monash Planning Scheme was legislated, which had the effect of changing the zoning of the property into a General Residential Zone, schedule 3 (GRZ3).
This meant that the rear setback was now imposed with a 5-meter minimum, a considerable difference to the previous 1-meter allowance.
The Building Surveyor issued a Building Permit based on the original plans on 23 November 2022, which essentially endorsed plans for the rear setback of 4.73m at one rear corner and 3.0m at the closet point to the rear boundary. Construction commenced, and continued until the dwelling was approximately 80% completed.
On 5 October 2023 a Building Notice and a Building Order to Stop Building Works were issued on the Property following the PBSs realisation of the non-compliant rear setbacks.
The owner, who was not at fault in relation to the non-compliance, sought permission from the City of Monash (Council) via a report and consent application, which was rejected due to the inability for the Council to issue report and consent on an as-built structure. Often, applicants may seek this permission via a ‘Report Only’ application, but in this instance this option was not provided by the Council.
Due to this, on 19 January 2024, the Owner made a section 160(2) (b) of the Building Act (Vic) 1993 application to modify regulation 79 of the Building Regulations 2018.
Section 160 (2) (b) Building Act 1993 reads:
An application may be made to the Building Appeals Board for the determination that a provision of the Building Regulations-
a) Does not apply; or
b) Applies with modifications or variations specified in the application –
To a building or land specified in the application.
Regulation 79 of the Building Regulations 2018 reads:
Side and rear setbacks
(1) If—
(a) an allotment is in a zone of a planning scheme specified in Schedule 6; and
(b) rear boundaries—
a schedule to that zone in the planning scheme specifies minimum setbacks from side and 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.
The Monash Planning Scheme for General Residential Zone 3 reads:
• A new wall not on or within 200mm of a rear boundary should be set back at least 5 metres.1
• Rear setback – 5 metres.
The issue to the owner then, was a restrictive planning scheme being in effect while construction of the dwelling was nearing completion. As stated in the Building Order, the Owner had the options of showing representations to the PBS to ‘Show Cause’ as to why the as built structure should remain, or appeal/make and application for review to the Building Appeals Board. Should this show cause response or the Building Appeals Board review be rejected, the building was facing demolition or modification to the extent that it was brought back into compliance.
Building Appels Board section 160 Building Act 1993 application
A section 160 Building Act 1993 review means you request the Board to find that the relevant regulation which is in breach does not apply to the specified building or land. The Building Appeals Board will hear the arguments of the applicant, the Council and any ‘interested partes’; generally the immediate neighbours of the subject dwelling.
A section 160 application is part of and subject to the conditions within division 5 of the Building Act (Vic) 1993, especially in the case of modification being sought:
Section 162 (3) – Special powers – modification of regulations.
(3) The Building Appeals Board must not determine that a provision of the building regulations applies to a building or land in a modified or varied form unless satisfied that to do so is reasonable and not detrimental to the public interest.
The application of what is ‘reasonable and not detrimental to the public interest’ can have regard to the Ministers Guidelines MG-12. The Ministers Guidelines MG-12 provide several considerations/hurdles, four which must be satisfied (if applicable) and at least one of the remaining five which must be satisfied:
Ministers Guidelines MG-12- Siting and design of single dwellings
Objective
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.
Decision Guidelines
The reporting authority may give its consent to an application for a building permit for a principal single dwelling or a small second dwelling (as applicable) that does not comply with regulation 79 (Side and rear setbacks) of the Regulations if— all of the following criteria apply (a-d):
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
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
c. the setback will not result in a disruption of the streetscape; and
d. the setback is consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme, and at least one of the following criteria apply (e-i):
e. the setback will be more appropriate taking into account the prevailing setback of existing buildings on nearby allotments; or
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
g. the slope of the allotment and or existing retaining walls or fences reduce the effective height of the building; or
h. the building abuts a side or rear lane; or
i. the building is opposite an existing wall built to or within 150mm of the boundary.
As discussed in the decision of the s160 Building Act 1993 BAB application regarding the Mount Waverley applicant:
Amenity:
The BAB accepted the submission that the wording ‘significant’ impact on amenity, and that the submissions made by the RBS that the question to be answered is whether there is a ‘significant’ impact on amenity, not whether there is any impact at all. The impact that is to be assessed is not the impact of the Dwelling itself; it is the impact of the reduction in the setback from what is otherwise allowed as-of-right.
The BAB also took into consideration the:
– The Property is not parallel to the rear boundary.
– The boundary angels away from the second rear neighbour (who was an interested party to the proceedings).
– The Property is considerably lower (at 7.5 metres) than the maximum building height
allowance of 11 metres.
– A rear wall could have been built on the boundary, without requiring report and consent from the Council.
This contrasted with the Council and MBS submitting that there was significant visual bulk to the neighbours at the rear of the Property. The BAB found in favour of the applicant in this regard, following the opinion provided by the expert planning consultant and legal representatives.
Neighbourhood character:
The relevant Neighbourhood character objective reads as follows:
To support new development that contributes to the preferred garden city character through well landscaped and spacious gardens that include canopy trees.
To promote the preferred garden city character by minimising hard paving throughout the site by limiting the length and width of accessways and limiting paving within open space areas.
To support new development that minimises building mass and visual bulk in the streetscape through generous front and side setbacks, landscaping in the front setback and breaks and recesses in the built form.
The developer submitted that the only reference to setbacks was the front and side setbacks.
The Council and the MBS submitted that the reduction in the rear setback is not consistent with the preferred garden city neighbourhood character identified for the GRZ3.
The Board stated: “Having regard to the overall design of the Dwelling, and its compliance with remaining siting regulations (including, in particular, those relating to the front setback, site coverage and permeability), we find that the Dwelling is consistent with the adopted neighbourhood character objectives.” Essentially, the block was of a restrictive shape, which meant that although there was a breach in the regulations, sufficient space was still provided for the encroachment to satisfy the ‘garden city’ character prioritised by Amendment C125 of the Monash Housing Strategy.
Prevailing setback
The Applicant and the RBS relied on the fact that there are several buildings within the area which encroach into the five-metre rear setback and the Council and the MBS submitted that little weight should be given to these buildings as they were constructed before the Scheme was amended by Amendment C125.
The Board decided that MG-12 does not suggest the word ‘prevailing’ should be qualified by when the ‘prevailing’ buildings were constructed, and that comparisons can only be made to other buildings that encroach, with regard also to the size of the setbacks on the opposite side.
Conclusion
The Board stated that a determination does not turn on the Board making a positive finding that modification is in the public interest, only that it is not detrimental. The Board stated: “having formed the view that the modification sought is reasonable, we may now grant the relief sought unless we form the view that it would be detrimental to the public interest for us to modify or vary the provision of the building regulations that would permit that relief sought.”
The finding of the BAB in these circumstances meant that demolition was not required of the dwelling, and that construction work could continue.
While there was an extremely prejudicial alternative to the owner of demolishing a nearly completed property, section 160 applications can still be difficult. For this reason, this favourable Building Appeals Board finding resolved the situation for the owner and avoided a costly demolition order.
Disclaimer
This article is for general informational purposes only and does not constitute legal advice. For advice specific to Owners Corporations, building defects, or dispute resolution, please contact Lovegrove & Cotton at enquiries@lclawyers.com.au or call (03) 9600 4077.
Image Acknowledgements:
The digital renders used in this article were developed collaboratively by Lovegrove & Cotton and ChatGPT. The photo images that are not the digital renders are stock images sourced from Shutterstock.
Footnotes
