APPEAL - Appeal made under s 144(1)(a) of the Building Act 1993 against the refusal of the Council under reg 89 of the Building Regulations 2018 to consent to a proposed 2-metre-high solid timber front fence, instead of the allowable height of 1.5 metres - Minister's Guideline MG-12: Siting and Design of Single Dwellings considered and applied.

APPLICANTS Karl Bax and Virginia Bax (Subject Land owners)

BEFORE Members P Chau (panel chair) and E Braslis

CITATION Bax & Anor v Frankston City Council [2025] VBAB 68

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

1. Pursuant to s 149(1)(d) of the Building Act 1993 (the Building Act), the decision of the Respondent, Frankston City Council, refusing consent to a proposed 1.88-metre-high solid timber front fence, instead of the allowable height of 1.5 metres, as required under reg 89 of the Building Regulations 2018 (the Regulations) is set-aside.
2. Pursuant to s 149(1)(d)(i) of the Building Act, the decision set-aside by Order 1 of these orders is substituted with the BAB's own decision consenting to a front fence with posts of 2 metres high and infill panels of 1.88 metres high, in lieu of 1.5 metres, as required under reg 89 of the Regulations.
3. 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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For the Respondent Andre Brewer (delegate of council)

1. On 10 July 2024, Karl Bax and Virginia Bax (the Applicants) applied for the consent (RAC Application) of the Respondent, Frankston City Council, (the Council) to a building permit application for a proposed design in respect of a front fence (Proposed Fence) to be built at 170 Fortescue Avenue, Seaford (the Subject Land).
2. The Proposed Fence would:

(a) be 2m high in lieu of 1.5m required under reg 89 of the Building Regulations 2018 (the Regulations); and

(b) consist of 8 posts at 2m high and infill panels at 1.88m high.

The report and consent of the relevant council must be obtained to an application for a building permit in relation to a design that does not comply with this regulation.

1. On 10 October 2024 the Council refused consent, reasoning that:
   1. the proposed 2 metre high fence does not reflect the prevailing height within the street, where no or low style front fencing is the predominant feature, and
   2. the fence height will result in a disruption of the streetscape, and
   3. the proposed front fence height and design does not align with the Neighbourhood Character statement outlined in Seaford 4 of the relevant planning scheme.
2. On 4 November 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).
3. The Appeal was heard on 20 February 2025.
4. We have considered the parties' oral and written submissions and the material filed with the BAB.
5. We have also had regard to the applicable Decision Guidelines set out under the Minister's Guideline MG-12 (MG12) and in particular, Siting Requirement 16: Front fence Height (MG12-16), given it is a relevant consideration for the BAB to consider.
6. Based on these considerations we make the following findings.

1. MG12-16(a) requires a reporting authority to consider whether the Proposed Fence is required for the minimisation of noise intrusion.
2. Although we accept the Respondent's contention that Fortescue Avenue is not a major thoroughfare, we also accept the Applicant's contention that there is material additional noise due to it being on the route of Bus 780, particularly when compared to an average two-lane suburban street, without public transport.
3. Bus 780's current online timetable indicates that it travels up and down Fortescue Avenue 41 times each weekday, 29 times on Saturdays and 27 times on Sundays.
4. This represents 261 passes a week or 13,572 passes a year, which is material additional traffic and noise compared to an average, two-lane suburban street.
5. Accordingly, on the balance of probabilities, we find that sub-clause MG12-16(a) does apply as the additional height of the Proposed Fence, in particular the additional infill panel height of 0.38m above the required 1.5m height, will minimise noise intrusion into the Subject Land from the frequent, daily bus traffic as well as other traffic.

1. MG12-16(b) requires a reporting authority to consider whether the Proposed Fence height will not result in a disruption of the streetscape.
2. In relation to this sub-clause MG12-16(b), the Respondent provided a street analysis of 24 allotments near the Subject Land, being 6 either side of the Subject Land, and 12 closest houses across the street from the Subject Land.
3. Using the Respondent's analysis, it shows that:

(a) 13 allotments have no fence or fences below 1.5 metres, representing 58% of the allotments surveyed;

(b) 11 have fences above 1.5 metres, representing 42% of the allotments surveyed;

(c) 2 fences directly opposite the Subject Land are above 1.837 metres;

(d) 4 fences in close proximity to the Subject Land, being houses numbered 160 to 166, have fences above 1.577m and of these, houses numbered 164 and 162 have 1.844m and 1.81m high fences respectively; and

(e) houses numbered 180 and 160 have bus stops in front and these houses have front fences of 1.673m and 1.654m high respectively.

1. Using the above analysis, if the Proposed Fence is allowed, in our opinion, it would not disrupt the streetscape as it would represent nearly a majority of fences that are higher than 1.5 metres in the part of Fortescue Avenue between Buna Avenue and Boonong Avenue.
2. That is, the Subject Land would be the twelfth allotment out of Council's 25 surveyed allotments that would have a fence higher than 1.5m.
3. Accordingly, on the balance of probabilities, we find that sub-clause MG-12-16(b) does apply, as the Proposed Fence's height would not result in a disruption of the streetscape within the vicinity of the Subject Land.

MG12-16(c) - Consistency with Neighbourhood Character Objective

1. MG12-16(c) requires a reporting authority to consider whether the Proposed Fence height, setback and design is consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme.
2. In relation to this sub-clause MG12-16(c), the Respondent helpfully referred the BAB to the Seaford 4 Neighbourhood Character Precinct Design Guidelines and in particular, the guideline dealing with front boundary treatments, which states:

(a) the objective as being to maintain the openness of the streetscape;

(b) the design response to be to provide no or low, open style front fences, other than on heavily trafficked roads; and

(c) avoid high, solid front fencing.

1. The Respondent submitted that although "heavily trafficked" is not a defined term, its transport planners consider "heavily trafficked" to mean more than 6000 cars a day.
2. The BAB considers this to be an extremely high bar, as it would mean over 6 cars every minute if calculated within a 16 hour, active, daily period.
3. On the balance of probabilities, we find that the use of Fortescue Avenue as a public transport route for Bus 780 does mean Fortescue Avenue is heavily trafficked, when compared to the average street within the Seaford 4 Neighbourhood Character Precinct.
4. Accordingly, we find that sub-clause MG-12-16(b) does apply, as the Proposed Fence's height, setback and design is consistent with the relevant neighbourhood character objective contained in Seaford 4 Neighbourhood Character Precinct's Design Guidelines.

MG12-16(d) - Consistency with prevailing existing front fences

1. MG12-16(d) requires a reporting authority to consider whether the Proposed Fence is more appropriate taking into account the prevailing height, setback and design of existing front fences.
2. As set out in our consideration of MG12-16(b), we find that the height of the Proposed Fence is aligned with prevailing fence heights, given 11 out of 24 allotments surveyed by the Respondent in the vicinity of the Subject Land were over 1.5 m high, with 6 higher than 1.8 metres.
3. In terms of design, both the Respondent and the Applicant provided existing examples of fences along Fortescue Avenue that had high, solid infill panels and high solid posts, as well as existing examples of fences with low and open designs.
4. Some were timber fences with no gaps, others had gaps and some had brick piers with colorbond® infill. Some had horizontal panels, others had vertical panels and some had rendered brick whereas others had exposed brickwork.
5. Accordingly, we find there is no prevailing design within the 24 allotments surveyed by the Respondent.
6. In terms of setback, all the examples of existing fences provided by the Respondent and the Applicant were set on the front boundary line of properties, which is similar to the Proposed Fence's setback.
7. Accordingly, we find that sub-clause MG-12-16(d) does apply, as the Proposed Fence's height, setback and design is consistent with our finding of the prevailing height, setback and design of existing front fences on nearby allotments.

1. MG12-16(e) requires a reporting authority to consider whether the slope of the allotment and/or existing retaining walls or fences reduces the effective height of the Proposed Fence.
2. In that regard, although there is a front to back slope to the allotment, there an immaterial side-to-side slope.
3. As there is also no existing retaining walls or fences on the allotment, we concur with the Respondent and find that that Mg12-16(e) is not applicable as there is no slope or existing retaining wall or fences to consider.

1. In conclusion, the BAB finds that the Proposed Fence meets the criteria set out in MG132-16(a) to (d), and accordingly, we determine that:

(a) the decision of the Respondent to refuse consent to the Proposed Fence be set aside; and

(b) consent be given to the Applicant's to build a solid front fence with posts of 2 metres high and infill panels of 1.88 metres high, in lieu of 1.5 metres, as required under reg 89 of the Regulations.

[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'.