APPLICANTS John Barbaro and Sarah Tucci (Subject Land owners)

SUBJECT LAND 97 Rim Cross Drive, Avondale Heights

BEFORE Members E Braslis (Panel Chair), M Patterson

CITATION Barbaro & Anor v Moonee Valley City Council [2025] VBAB 101

Having considered all the submissions and information placed before it, the Building Appeals Board (BAB) determines that:

1. Pursuant to s 149(1)(a) of the Building Act 1993 (the Building Act), the decision of the Respondent, the Moonee Valley City Council dated 29 August 2024 refusing consent to a demountable spa to be built over an easement instead of as required under reg 130 of the Building Regulations 2018 (the Regulations) is affirmed.
2. Pursuant to sch 3, cl 16(3) to the Building Act, liberty to apply on the question of costs, subject to such liberty being exercised within 14 days of the date of this determination.[1]

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1. On or before 29 August 2025, John Barbaro and Sarah Tucci (the Applicants) applied for the report and consent of the Respondent, Moonee Valley City Council (the Council) for a building permit application in respect of a spa to be erected/built at 97 Rim Cross Drive, Avondale Heights (the Subject Land).
2. The spa would be built over an easement vested in the Council and therefore required report and consent of Council under reg 130 of the Building Regulations 2018 (the Regulations).
3. Under regulation 130 of the Regulations:

The report and consent of the relevant service council must be obtained to an application for a building permit to construct a building over an easement vested in that service authority.

1. On 29 August 2024 the Council refused consent, reasoning that:

I noted that Council has a 300mm drain installed within this easement E-2 and the existing Council drain is vested in and under the care, management and control of Council pursuant to section 198 of the Local Government Act 1989. As such, it is Council's position that the existing Council drain creates statutory easement rights to which Council's BOE Policy applies.

1. On 25 September 2024, the Applicants appealed the decision (the Appeal) under s 144(1)(a) of the Building Act 1993 (Building Act) to the Building Appeals Board (BAB).
2. The Appeal was heard 'on the papers' on 27 June 2025.
3. We have considered the parties' written submissions and the material filed with the BAB. Based on these considerations we make the following findings.
4. Councils across the State have policies in place to assist in the administration of 'building over easements'. Such policies assist land owners when contemplating any building works over or nearby easements, as well as assist the relevant authority when considering applications for report and consent.
5. Easements are generally put in place to ensure that the relevant authority can access property to construct or maintain infrastructure. In this case, the sewerage and drainage infrastructure is existing and is underground.
6. It appears that the Council has had to consider a retrospective building over easements application on this property previously. The application related to an existing deck that was constructed without a permit. That structure was subsequently granted consent.
7. The proposition now, is to consent to the installation of a spa, which, if approved mean that the whole of the approximately 3.5m wide easement along the wide of the rear of the property is built over.
8. The deck, spa and surrounding hardstand, raises concerns as to the ability of Council to readily gain access to the easement.
9. The cumulative impact of this secondary consent is considered inappropriate and therefore, the appeal is refused and the determination of the Council affirmed.

[1] Clause 17 of Schedule 3 to the Building Act 1993 provides: 'Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs'.