Taking a report and consent refusal to the Building Appeals Board: how the appeal actually works
The Board hears your garage or carport case afresh, isn't bound by the council's reasons — or by the Minister's guidelines. What goes into a section 144 appeal, and what wins regulation 74 street-setback cases.
In the previous article we looked at the 30-day window for appealing a report and consent refusal. This one is about what happens when you use it — because a Building Appeals Board appeal is not a complaint form, and the difference between a strong appeal and a hopeful one is usually settled before anyone reaches a hearing room.
We lodged one of these this week: a carport on a lot with a frontage of under nine metres — narrower than the setback the regulation prescribes — where the council consented to the building height, boundary wall and daylight variations but refused the street setback. That pattern, consent on everything except regulation 74, is one we see repeatedly. Street setback is the variation councils find easiest to refuse, because "9.0 metres" reads like a bright line and a carport in front of a dwelling is visible in a way a boundary wall is not.
The Board looks at it differently. Here is how the appeal is built.
The jurisdiction: a fresh look, a softer test
Section 144(1)(a) of the Building Act 1993 gives an owner an appeal against a reporting authority's exercise of discretion. Three features do the work:
The Board decides afresh. It stands in the council's shoes and makes its own decision on the material before it — which means the appeal is your opportunity to put in everything the council never saw: a measured streetscape survey, photographs of every existing forward structure in the street, sight-line analysis, landscape plans.
The Board is not bound by MG-12. The Minister's Guideline that councils must apply — and must refuse against, where a mandatory criterion is unmet — guides but does not bind the Board (Watt v Bass Coast Shire Council [2022] VBAB 61). The same facts that compelled a council refusal can support a Board consent.
Partial refusals stay partial. Where the council consented to some variations and refused one, the appeal targets only the refusal. The consents you hold are not reopened — say so explicitly in the appeal papers so nobody tries.
The documents that decide it
A section 144 appeal is commenced on the Board's Form A with the prescribed fee, and then won or lost on the grounds of appeal and statement of contentions — the document the Board's practice notes require, setting out what decision you say should have been made and precisely why.
A statement of contentions for a regulation 74 case earns its keep by doing the council's assessment better than the council did:
- The mandatory MG-12 criteria first. Streetscape disruption is the battleground: prevailing setbacks measured, not asserted; every existing carport, garage and porch forward of a dwelling in the street documented. Neighbourhood character comes straight from the planning scheme's own wording — read it before the council does, because sometimes it cuts against you (some zone schedules expressly seek garages behind the front wall) and the contentions must meet that head-on rather than hope it goes unnoticed.
- Then the alternative criteria the refusal ignored. Only one needs to be satisfied. Constraint by the allotment's shape or dimensions is the strongest friend of the narrow lot and the battle-axe block; "other conditions on the allotment" covers the practical realities — where the crossover is, what parking the dwelling is left with, easements that sterilise the alternatives.
- The measurement itself, where the geometry is odd. Regulation 74 assumes a straight front boundary. On curved or irregular frontages the Board has accepted that the prescribed measurement becomes genuinely uncertain (In the matter of 3 Towyn Close, Lower Plenty [2020] VBAB 86) — on the right facts, the "encroachment" is smaller than the refusal assumed, or defined only at a single point of a much longer structure.
Concessions belong in the contentions too. A reduced footprint, a deleted element, screening planting offered up front — the Board can consent on conditions, and arriving with the amended, buildable proposal beats defending the maximal one.
The process, briefly
Expect directions from the Registrar, exchange of material with the council, and in many cases a resolution before hearing — councils reassess when confronted with a surveyed streetscape and contentions that engage the criteria properly. If it runs, the hearing is inquisitorial and practical; the Board's practice notes on contentions, directions hearings and hearings set the procedure, and site inspections are common. Costs are not the routine award winners' clients hope for — budget to carry your own.
What it means for a refused owner
The honest summary from the matters we run: a regulation 74 refusal at council level is frequently the product of a thin application meeting a conservative delegate — and the Board is where a properly evidenced case gets its first full hearing. The appeal exists precisely because the legislature knew reporting authorities would sometimes get the discretion wrong.
Use the 30 days. Measure the street. Meet the criteria the refusal skipped.
Perry Town Planning prepares and runs Building Appeals Board proceedings — report and consent appeals, protection works disputes, and modification applications. If your refusal is recent, contact us this week, not next month.