In the current landscape, small planning consultancies like ours are increasingly being asked to prepare ‘Report and Consent’ submissions. This suits us well as considerations such as setbacks, walls on boundaries, and issues of overlooking are what occupy our thoughts as town planners. 

Occasionally, these Report and Consent applications are declined and find  their way to the Building Appeals Board (BAB)—although, I’m happy to say JLP Melbourne has managed to avoid this. 

Having served as a sessional member on the BAB for 5 years, I have observed a consistent and problematic theme in these applications presented to the Board.

Firstly, it is not uncommon for Municipal Building Surveyors to refuse a Dispensation Application as soon as an objection is received, as though a single objection mandates refusal. This is misleading. Neither the Building Act nor the Building Regulations require or even suggest such an approach.. 

This misinterpretation likely stems from the ambiguously worded Ministers Guideline No.3, which states:

Where a request is made to allow a reduction in the setback requirements of Part 4 of the Regulations, the municipal council is to seek the views of the relevant adjoining owner. If an adjoining owner objects to the proposal, and the objection is not considered frivolous, the municipal council in deciding the issues should bear in mind that refusal would create the situation where the applicant may lodge an appeal to the Building Appeals Board. 

This gives the affected adjoining owner the opportunity to appear as a witness of the municipal council at the appeal.

At no point does this statement dictate that the council must refuse the application; it merely states that the council should consider an objection when making its decision and be aware that if they do refuse, the applicant might appeal to the BAB.

Therefore, if a Council Building surveyor suggests refusal based solely on receipt of an objection, be aware that this does not constitute a valid reason for denial. In such instances, consulting a town planner would be beneficial. 

Another frequently encountered challenge is the interpretation of how to apply the Building Regulations and Ministerial Guideline No.12. This is reminiscent of decoding a riddle from a fantasy novel.

In order to be deemed acceptable, a proposal must achieve the relevant ‘objective’ and adhere to the ‘Decision Guidelines’ outlined in the Minister’s Guidelines. 

 Yet, it seems that many councils refuse dispensation simply because the proposal doesn’t meet a specific regulation. This logic is flawed; if a proposal met the regulation outright, there would be no need for dispensation to begin with. 

The focus, therefore, should not be on whether the regulation is met, but rather on whether the proposal achieves the relevant objective and complies with the Decision Guidelines.

For instance, the relevant questions for a proposal not meeting regulation setbacks might include: Will it significantly impact any adjoining open space? Does it contravene any explicit direction in a Neighbourhood Character policy or other relevant criteria?

If a council refuses an application, it should justify this decision by explaining why  the proposal  fails to meet the objective and Decision Guidelines. A refusal cannot be justified merely on the basis of non-compliance with regulation. 

That’s not to say that all the refusals of Municipal Building Surveyors are unjustified in the manner described above; however, too many cases presented to the Building Appeals Board exhibit these elements.

Hence, when compiling your ‘Report & Consent’ or commissioning someone else to do it, ensure the focus is on how the proposal aligns or diverges from the ‘objective’ first, followed by the ‘Decision Guidelines’. These are the critical considerations.

Article written by James Livingston

James Livingston | Town Planning Consultant
JLP Melbourne 
Suite 210, 838 Collins St, Docklands 3008
T: 0400 318 121 | E: [email protected]