1. In reply to the Respondent's submissions the Applicants noted the following:

(a) As part of the Modifications Request, BAB Case no. 456115, council provided comments included an "Appendix 1 - Street Survey" document which indicated the relevant front fence heights for other properties in Henry Street and Burlington St (corner blocks). It is clear from this document that many fences are approved between 1.5m -2.0m in height with varying levels of openness (greater openness than the as built structure on the Subject Land). The Applicants say that should they be constrained to a lesser height than these this further adds to their position that our existing openness (13%, 10mm gaps between pickets) should be acceptable given the height reduction compared to other tall front fences in the street and given that a 1.2m high fence (just 200mm shorter) could be completely solid without issue.

(b) The Applicants also made point of the fact that although 123 Burlington St (neighbour on the corner block) has a 600mm front fence on the corner, their side fence which is facing Henry St and in line with our front fence is 2.0m+ tall. The adjacent corner block, 125 Burlington St also has a 2.0m+ side fence facing Henry Street. Although these are not considered front fences, they do have a visual impact on us and the streetscape. The Applicants noted the fence height transitions from 2.0m+ at the southern end to 1.7m at the northern end which is also in line with fence height in the street - i.e. taller to the south of the Subject Land and shorter to the north. Considering all this and the fact that the street has taller fences near the intersection with Burlington as outlined by council in their Appendix 1 document -26 Henry St, 28 Henry Street, 120 Burlington St, 29 Henry Street, 2/122 Burlington St - the Applicants believe their front fence blends in with the character of the immediate area and our close neighbours and that it does not disrupt the streetscape.

1. The Applicants provided the following submissions in respond to the Directions and Orders issued after the e-hearing:

(a) The permit provided by the Respondent appears to be for 24 Henry Street rather than the Subject Land. There appears to be inconsistency in record keeping and confusion between lot 27 (24 Henry Street) and lot 104 (27 Henry Street). The driveway is also depicted as on the opposite side which is more consistent with 24 Henry Street.

(b) The neighbourhood character objective talks generally about new development needing to contribute to the garden city character through various design methods.

(c) The planning scheme states that a front fence height should not (rather than must not) exceed 1.2m in height, seemingly providing an avenue for taller fences to be permitted where appropriate.

(d) The property is set back from the front fence and is soft landscaped in the front yard including trees that are taller (or will be when matured) than the front fence. This is consistent with the garden city character. The front fence has approximately 13% transparency due to the gaps in the pickets. The fence is made from natural substrate that complements the period of house and garden.

(e) The planning scheme has no explicit requirement or guidance around minimum fence transparency and height requirements. Rather the Respondent has used its discretion it its order to constrain the fence height to 1.4m tall (but allowing the existing gate to be 1.7m tall) and 25% minimum transparency.

(f) The fence height and transparency are inconsistent with the fences already in Henry Street. The Applicants provided a table measuring both height and gaps between pickets:

(g) The Applicants state that of the 56 properties with a front fence in Henry Street, 30 of those properties have fences greater than 1.4m.

(h) The planning scheme aims to maintain and protect the garden city character of the residential areas and to avoid new development from impacting the existing streetscape. It is not transformative in nature and is not aiming to change the pre-existing feel into something different.

(i) The pre-existing fence was the same height with less transparency as evidence by photographs provided. The Applicants have increased transparency which creates better connection between their fence and others in the street. The front fence should not be considered a new development. Further, the planning scheme speaks wholistically about all aspects of designing an entire site for a green city character.

1. The Applicants filed in the proceeding an email dated 13 November 2023 which provides the following information from the Respondent:

Thank you for the information, as per our phone conversation, while it was noted an offer was indicated to you as part of your report of council only application, in that Council would not object to a maximum height of 1.4m and 25% open style front fence. I would consider to allow the vehicle access gates to be higher than 1.4m.

Looking at all the information, I will allow the vehicle gates to be the at the height indicated on the plans attached, however the remaining fence to be a maximum of 1.4m and all of the fence including the gates to be 25% open.

1. The Applicants also filed in the proceeding a Building Regulatory Compliance Report from Red Textas Consulting Building Surveyors dated 4 July 2025. The author of that report was of the opinion that the front fence is structurally sound in accordance with the requirements of the Regulations and is suitable for use as a front fence.

1. In response to the Applicants' submissions the Respondent provides the following submissions:

(a) Council does not agree with noise attenuation arguments. Henry Street is a standard residential street with a speed limit of 50km per hour. It is not expected that a significant amount of noise would be generated from occasional vehicles travelling along the street.

(b) Privacy and security matters are outside the scope of the Ministers Guidelines relating to front fence heights therefore this could not be considered.

(c) Solid or near solid design of fences are no longer the preferred front fence designs within a residential street under the Monash Planning Scheme.

1. In response to the Directions and Order dated 29 April 2025 the Respondent provided the following information:

(a) The Respondent is satisfied that the submitted regulatory report issued for the as built timber front fence by Red Textas Consulting Building Surveyors (dated 4 July 2025) has addressed the concerns under items 3.2 and 3.3 of the Building Order.

(b) The Respondent further provides the following submissions:

(i) Under Item 1.2.1 of the Building Order the Respondent provided a generous compromise to reduce the maximum height to 1.4m with minimum transparency of 25% in lieu of the prescribed maximum height 1.2m within the General Residential Zone 3.

(ii) The Applicant indicated in their written statement dated 18 October 2024 that they may accept the reduced height to 1.4m but would maintain the minimum 10mm gaps between pickets. Further the Applicant states that a compliant solid 1.2m front fence would have comparable visual impact compared to a 1.4m timber picket fence with 10mm gaps.

(iii) The Respondent maintains that the 10mm gaps would not be enough to achieve the preferred minimum transparency for the as-built front fence, as it is not consistent with the prevailing highly transparent front fence designs within the immediate neighbourhood. The Respondent refers to Appendix 1 Street Survey in support of its position.

1. The Respondent has provided a copy of the front fence building permit for 27 Henry Street Oakleigh.

1. The appeal was originally regarding the demolishment of the fence and the conditions relating to the height and transparency of the front fence and pedestrian gate. However, during the hearing the parties agreed to also address the condition relating to construction standards outlined in 3.2 and 3.3 of the Building Order.
2. We note that the Respondent considered conditions 3.2 and 3.3 of the Building Order have been addressed by the engineering report. Accordingly, whilst the Respondent may have had grounds to issue those conditions in the first instance, it is now appropriate for those portions of the Building Order to be cancelled.
3. The outstanding condition on the Building Order under appeal is a statement that the fence has been constructed without obtaining Council Report and Consent contrary to the requirements of Regulation 89 of the Building Regulations 2018 (Regulations). In particular, the condition that the front timber fence has been constructed with a maximum height of 2.2m within 3.0m of the street frontage.
4. We appreciate the Respondent's provision of the front fence building permit. However, we have concerns as to whether this is for the street address of the Subject Land or the lot address which would relate to 24 Henry Street. The drawing has the driveway on the opposite side of where it is located at the Subject Land. In addition to this, the cross street of Burlington Street should be on the left of the Subject Land and is depicted on the right.
5. We note that the Respondent has noted an issue of transparency for the front fence and stated it should have 25% transparency. However, this condition is not contained within the Planning Scheme or character objective documents provided to us. There is a reference to breaks and recesses in the built form of structures to avoid visual bulk but there is no prescriptive statement as to a 25% transparency requirement. Given this, we do not consider there is a proper basis to require this percentage of transparency in the fence under 1.2 of the Building Order. Accordingly, it is not necessary or appropriate for us to make a finding on the transparency of the fence.
6. Whilst it is true that the Applicants did not obtain the appropriate report and consent, the Applicants did issue an application for report for the as built front fence. A compromise offer was made for a reduced height of 1.4m for the fence and a reduced height of 1.7m for the gate.
7. The compromise offer was not agreed and the condition relating to the front fence and reg 89 of the Regulations was placed in the Building Order.
8. Given this, to determine the appropriateness of imposing condition 3.1 of the Building Order, we must assess whether the as built front fence is contrary to Regulation 89 of the Regulations.
9. We have noted the regulatory context of reg 89 of the Regulations above and how the BAB determines these matters.
10. Regulation 89 of the Regulations permits a 1.5m front fence height within a normal street and a higher fence height of 2m for declared roads. However, based on Schedule 6 of the Regulations, the Respondent Council has its own Planning Scheme and General Residential Zones which vary the front fence heights to 1.2m.
11. The Ministerial Guidelines (MG-12) further provide criteria for the determination of such building work as front fence heights. These criteria further incorporate considerations of neighbourhood character objective, policy of statement set out in the relevant planning scheme.
12. Accordingly, we have had regard to the MG12 criteria in determining whether the as-built fence achieves the objectives of the Regulations.
13. Our consideration of the MG-12 guidelines for front fence heights is outlined below.
14. We further note that to understand the context of the Subject Land we had regard to Near Maps and the declared roads in the vicinity.[2]

a. the fence is required for the minimisation of noise intrusion

1. The Applicants have stated the front fence is required for the minimisation of noise intrusion. However, the Respondent has submitted that the fence is not so required because Henry Street is a standard residential street with speed limit of 50km
2. The Subject Land is near the intersection of Henry Street and Burlington Street. Burlington Street is part of a bus route. Further, the location of Henry Street Oakleigh is part of a pocket of suburban streets surrounded by declared roads including Huntingdale, Princes Highway East, Warrigal Highway and North Road Highway. These are all busy Arterial Roads.
3. Whilst we accept that Henry Street is a suburban street, we also accept that there is likely to be some cross traffic through Henry Street seeking to access arterial roads and noise from that local traffic.
4. On balance, we are satisfied that the fence height contributes meaningfully to the minimisation of noise intrusion and that this criterion is met.

b. the fence height will not result in a disruption of the streetscape

1. The Applicants have produced tables and charts of properties within Henry Street together with their fence heights. The Respondent has not objected to the data provided by the Applicants or produced contrary material. However, the Respondent did provide its own evidence of front fences in the street and noted it would be taking action on some of these front fences.
2. The Applicant's measurements are provided above in this Determination. We note that the survey taken by the Respondent of numbers 20, 22, 24, 26, 28 and 29 Henry Street show a variance of front fence heights from 1.57m to 2.1m. Of those front fences provided, 3 are over 2 metres in height, two are between 1.57m and 1.62m in height and the last property is 1.82 metres in height. This makes four of the six properties between 1.82-2.1m in height.
3. In our view there is a mixture of front fence heights and construction type contained within Henry Street Oakleigh. The front fence heights range from approximately 2.1m to 0.5m (excluding the Subject Land).
4. On one side of 27 Henry Street (to the right if facing the property) the fence heights are smaller. However, the properties to the left (if facing the property) and across the road have substantial height with several being greater than 1.7m.
5. The property immediately adjacent to the Subject Land has a fence height of approximately 2m. Across the road at 28 Henry Street the fence height appears to be between 1.82-1.9m. There are further two corner properties with high fences. Whilst we note these are not front fences per se, we still consider that these fences have an impact on the streetscape. This criterion only seeks an assessment of the streetscape rather than front fences specifically.
6. The corner property immediately adjacent to the Subject Land has a high timber fence that is broken up by solid masonry and steel garage door entryway. This masonry is higher again than the Subject Land's front fence.
7. We are satisfied that the fence does not disrupt the streetscape and that this criterion is met. This is particularly given the appearance of a 'step down' from the masonry of the garage door immediately adjacent and the number of higher fences in close proximity to the Subject Land.

c. the fence height, setback and design are consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme

1. The neighbourhood character objective notes front fences should not exceed 1.2m. the Applicants have noted that 'should' is not in the imperative form of 'must'.
2. The Applicants have also noted that the front fence replaces the prior fence and should not be seen as a new development.
3. We note that a new fence could be seen as a new development but acknowledge that the neighbourhood character does appear to focus more on the dwelling and landscaping than the front fence.
4. We have further reviewed Near Maps to see the difference between the old and new fence. The old fence was of a similar height, but appeared taller due to the heavy vegetation which grew over the fence. The old fence was significantly more opaque than the current fence which has visible gaps in the palings. The current fence, with 13% transparency and natural materials, reduces visual bulk and allows views to the dwelling and garden.
5. The neighbourhood character objective further states new development should contribute to the preferred garden city character through well landscaped and spacious gardens that include canopy trees. Further, there is a preference for generous front and side setbacks, landscaping in the front setback and breaks and recesses in the built form.
6. The front fence has 13% transparency which creates breaks to the built form. The dwelling on the Subject Land is further substantially visible above the fence line and through the fence.
7. The Applicants have further undertaken landscaping within the front set back which includes trees. We are satisfied that the fence height, setback and design are consistent with the neighbourhood character objectives and that this criterion is met.

d. the fence will be more appropriate taking into account the prevailing heights, setbacks and design of existing front fences on nearby allotments

1. We have already noted the number of front fences with a similar height to the front fence on the Subject Land above in this determination.
2. We have noted the mixture of front fence styles in the street. We also accept the transparency of other front fences may be higher than the as built front fence on the Subject Land. However, there is no prescriptive requirement as to transparency and the Building Order was for the height and not the transparency of the front fence.
3. We further do not consider that there is one dominant design or style in the street. There are timber fences, brick and iron fences, brick fences and a general mixture of styles.
4. The as built fence is the same height as other timber and brick front fences in the street.
5. Given this, we consider that this criterion of the MG-12 guidelines is met.

e. the slope of the allotment and or existing retaining walls or fences reduce the effective height of the wall

1. The Applicants have submitted that the front fence is approximately 2.1m in height at the southern end where it ties into the neighbour's tall fencing and garage and then decreases to a medium height of 1.7m (at north end) which is more in keeping with the northern end of the street where fences are predominantly medium/low in height. This may also be the reason why the fence does not substantially block the view of the dwelling on the Subject Land.
2. However, we were not provided with sufficient measurements to make a determination on this particular criterion. We were not provided with the gradient or slope of the land on which the front fence is located.
3. While it is possible that this criterion applies, it has not been demonstrated to our satisfaction.

1. Based on the material provided, the Respondent had grounds to issue the Building Order. However, the BAB hears this matter de novo which means it is a fresh review, and the BAB can take into account material that was not before the original decision maker.
2. The Respondent has, appropriately in our view, confirmed that it no longer has concerns regarding the construction of the front fence which eliminates the need to retain Building Order conditions 3.2 and 3.3.
3. In reviewing condition 1.2 and 3.1 relating to compliance with Regulation 89, we find that the as-built fence satisfies the objectives and criteria of Minister's Guideline MG12, and that its height is appropriate in the context of the site, the streetscape, and the neighbourhood character. Given this we do not agree that this condition should have been imposed.
4. The engineering report provided confirms that the fence complies with the structural provisions of the Building Code of Australia (Volume 2), including Regulation 10. This supports the conclusion that the fence is safe, stable, and fit for its intended use.

[1] This proceeding was stayed for a considerable period at the request of the Applicants in order to await the outcome of a modification application also commenced by the Applicants pursuant to s 160(2) of the Building Act 1993 that was germane to this appeal.

[2] The Building Appeals Board may inform itself in any manner it thinks fit pursuant to Clause 15(b) of Schedule 3 to the Building Act 1993.