This is our explanation of the setbacks in BCC. We hope this will clarify some of the muddy waters surrounding setbacks and in particular the small lot code.
Ultimately, there are implications surrounding the lack of direction that the small lot code provides as it relates to setbacks. By relying only on the definition of a setback in the planning scheme there may be unexpected outcomes.
“Brisbane City Council measures setbacks to the wall” is a statement I have heard and even said many times. This is a statement that has been carried over from the CityPlan 2000 where the planning scheme said “For the purpose of this provision the setbacks of the Building Regulation are to be read as taken to the wall, not the outermost projection”.
The current planning scheme (City Plan 2014) carries over this statement only in Table 5.3.4.1 which identifies what is prescribed accepted development (i.e. no development application required). Specifically the statement relates only where reference is made to setbacks in the Building Regulation 2006. In those instances a “Note” clarifies that the setbacks are to be read as taken to the wall, not the outermost projection.
A note about “Notes” – The planning scheme has different types of “notes”. A “Note” is part of the planning scheme in that it has statutory weight. An “Editor’s Note” is intended to provide clarification on a provision. They are extrinsic material.
In the rest of the City Plan 2014 the point of a building where a setback is measured varies depending on the code or assessment benchmark that applies. In some instances a code will clearly state where a setback is to be measured. Both the Multiple dwelling code and Dual occupancy code identify that the front and rear setbacks are measured either to the balcony
or wall. A “Note” under the respective setback table provides further guidance on where to measure to for setbacks to balconies. In the case of dwelling houses and the setback provisions, these same stipulations are not included.
Like many planning schemes in Queensland, the City Plan 2014 includes alternative provisions to the Queensland Development Code (QDC) for setbacks and site cover. The QDC clearly states that setbacks are taken to the outermost projection (OMP). This limits opportunities for confusion to arise. Unfortunately the way planning schemes deal with this statement is not as
clear.
The Dwelling house code does not include provisions relating to setbacks however the Dwelling house (small lot) code (small lot code) does. The small lot code includes alternate front, side, and rear setbacks to those in the QDC. It also varies the site cover. Where the small lot code makes reference to a setback there is no specification on where this is to be measured. Instead the code includes a hyperlink to the definition of “setback”.
Setback is a defined term being the shortest distance, measured horizontally between the OMP of the building or structure to the vertical projection of the boundary of the lot where the building or structure is. Then, there is an “Editor’s note”. In this case, the Editor’s note refers to section 1.7.6 of the City Plan 2014. Section 1.7.6 of the City Plan 2014 explains the provisions surrounding deemed compliance with site cover and setbacks for the purpose of complying with assessment benchmarks. This section states that where a building does not comply with a setback or site cover only because of an eave of a roof or a sunhood (or similar), an exemption is made. This exemption allows you to exclude these identified
aspects or OMP of the building from the calculation of setback.
We reiterate that the Editor’s note does not say that the measurement is to be taken to the wall – it stays silent. Where specification is not made on where a setback is to be measured, the setback is measured to outermost projection. However if the measurement to OMP results in non-compliance with the assessment benchmarks only because you have included an eave of a roof or a sunhood or similar that is attached to the wall, these non-compliances are excused and the setback is “deemed to comply”.
We acknowledge that in all likelihood the result of excluding the eaves and sunhoods will mean that the measurement will be taken to the wall. While this may be the case, in our view it is worth pointing out the distinction as it may not always be the case.
This issue has arisen regarding the cladding of a house that intruded into the setback. The framing of the wall was compliant, but the cladding was not. A question was raised as to where the measurement should be taken and the outcome was that it was to the outside of the cladding. While the cladding was part of the wall, it was the OMP of the wall.
The above reiterates why it is important to ensure that you are reading the planning scheme requirements for your specific development carefully. Unfortunately the nature of planning schemes means that the rules can vary from one part or code to another. In some instances these variances are the difference between triggering a development application and
avoiding one.