Anderson v Building Appeals Board [2017] VSC 415 (21 July 2017) (PDF 3.8MB)
Background
The plaintiffs filed two appeals with the Building Appeals Board (“Board”) against Stonnington City Council’s refusal to give its consent to requests for report and consent in respect of Regulation 414 of the Building Regulations 2006 (“Regulations”) to proposed alterations and additions to a dwelling.
The Board made a determination and refused to give its report and consent under Regulation 414 of the Regulations.
Appeal
The plaintiffs made an application to the Supreme Court of Victoria for an order quashing or setting aside the determination of the Board. The plaintiffs advanced two grounds at the hearing, namely the Board had regard to an irrelevant consideration, being daylight access, when determining whether it was acceptable to grant report and consent and the Board had misdirected itself when considering whether to grant report and consent.
The plaintiffs submitted that Division 2 of Part 4 of the Regulations is a comprehensive ‘code’ for the protection of amenity and neighbourhood character. They submitted that each Regulation within the Division addresses a separate aspect of amenity such that the term amenity should be construed narrowly to avoid overlapping.
Council, being the second defendant, represented by Mr Joe Forrest of counsel and briefed by Russell Kennedy Lawyers, submitted that when exercising discretion regarding whether or not to grant report and consent, consent must be refused to an application for report and consent if the application did not comply with any matter set out in the Minister’s Guidelines MG-12 (“MG”). This includes amenity to habitable room windows of existing dwellings on nearby allotments, in this case relating to limiting access to daylight and sky.
Justice McDonald held that the meaning of amenity in terms of Regulation 414 and the MG should not be read down, he stated at paragraph [45] of the judgement:
The discretion conferred upon the second defendant by (f) of the Reg 414 Ministerial Guidelines is unconfined. There is no basis for reading down the ordinary meaning of ‘amenity’ (which includes accessibility of daylight) because reg 416(1) provides that a building must be set back from a habitable room window in an existing dwelling on an adjoining allotment to provide for a light court to the window that has a minimum area of 3m² and a minimum dimension of 1m clear to the sky.
Conclusions regarding Regulation 414
Justice McDonald did not accept the plaintiffs’ arguments and preferred the arguments put on behalf of the Council. The application for judicial review was dismissed accordingly.
The ordinary meaning of amenity should be applied in relation to Regulation 414 and the MG, which includes accessibility to daylight. Accordingly, it is open to a council, in exercising its discretion when considering whether or not to provide its report and consent pursuant to Regulation 414, to refuse to give consent if the proposed setback would result in a significant impact on the amenity, including accessibility to daylight, of the secluded private open space and habitable room windows of existing dwellings on nearby allotments.
Please contact our Statutory Building and Prosecution Team should you require any further advice: Ian Pridgeon, Marcus Heath, Daniel Silfo, Elizabeth Flanagan and Angelina Bell.
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