Appeal - An appeal made under s 144(1)(a) of the Act by a land owner against the refusal of the council under reg 92 of the Regulations to consent to permit a corner front fence height of 1.50 metres instead of the required 1.0 metre fence height - Minister's Guideline MG-12: Siting and Design of Single Dwellings considered and applied.

APPLICANTS Phillip Bolonis and Brigette Bolonis (Subject Land owners)

CITATION Bolonis & Anor v Hobsons Bay City Council [2025] VBAB 49

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, Hobsons Bay City Council dated 18 December 2024 refusing consent to the following -

a) to permit a front fence height of 1.50 metres in lieu of the required height of 1.20 metres as required under reg 89 of the Building Regulations 2018 (the Regulations) is affirmed. > > b) to permit a corner front fence height of 1.50 metres in lieu of the required 1.0 metre fence height as required under reg 92 of 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]

_______________________ ________________________

For the Applicant Mr A Gunston, building practitioner

For the Respondent Mr M Collard, delegate of the Respondent

1. On 28 October 2024, Mr Phillip Bolonis and Ms Brigette Bolonis (the Applicants) applied for the consent of the Respondent, Hobsons Bay City Council, (the Council) to a building permit application for a proposed design in respect of a front fence to be erected at 37 Tobruk Crescent, Williamstown.
2. The proposed fence would;

a) have a height of 1.50 metres in lieu of the required height of 1.20 metres required under reg 89 of the Building Regulations 2018 (the Regulations); and > > b) the corner would also have a height of 1.50 metres in lieu of the required height of 1.0 metres required under reg 92 of the Regulations.

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 these regulations.

1. On 18 December 2024, the Council refused consent, reasoning that, in accordance with the relevant considerations contained within the Minister's Guideline MG-12 (MG-12):

• is not more appropriate taking into account the prevailing heights, setbacks and design of existing front fences on nearby allotments and;
• the slope of the allotment and or existing retaining walls or fences do not reduce the effective height of the wall; and
• is not required for the minimisation of noise intrusion; and

The location, length and or height of the corner fence -

• is not more appropriate considering the prevailing location, length and or height of boundary fences on nearby allotments; and;
• will result in a significant impact on the amenity of existing dwellings on nearby allotments.

1. On 14 January 2025, 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 13 March 2025.

Regulation 89(1)(b)

1. The Applicants submit that the area has many fences of varying styles exceeding 1.20 metres in height.
2. Given the number of allotments in the street with front fences exceeding the 1.20 metres height requirement, they submit, it is unclear how the approval of a 1.50 metre high fence would be out of character with the streetscape.
3. The Subject Land has a retaining wall along the Tobruk frontage with a varying height of 390mm to 570mm, along Bay Street from 360mm to 420mm and the corner splay joining these boundaries from 390mm to 420mm.These retaining walls do not provide the required security or safety the Applicants contend.
4. The Subject Land has a steep driveway leading to a garage underneath the residence, similar to 31 Tobruk Crescent which has a rendered masonry front fence 1.44 metres in height. The current retaining wall is a falling risk and requires protection by a handrail which, to maintain uniformity, requires a 1.5 metre front fence.
5. Front fence heights ae measured from the street or footpath, and a 1.2 metre fence will look ugly, will not be uniform with internal fence heights, and will be ineffective.
6. A 1.5 metre rendered masonry front fence will provide security, architectural balance with the residence and will not detract from the amenity of the area.

Regulation 92(1)

1. The Applicants submit that the area has low traffic flows. The corner site has a 4.68 metre splay which provides excellent vehicle and pedestrian lines, and a 1.5 metre will not create any traffic or safety issues.
2. Many allotments in the area are bounded by fences more than 1.2 metres in height and a 1.5 metre fence would be an asset to the area.
3. 60 Bayview Road, opposite the Subject Land on the corner of Osborne Street has a 1.12 metre fence, but the corner has no splay and exceeds the 1.0 metre height requirement 9.0 metres from the intersection alignment.
4. The location of the timber paling fence protecting the pool creates compliance issues, but altering the height of this fence would result in compliance issues with Australian Standard 1926 (The Australian Pool Safety Standard).

1. The existing 2.20 metre high timber paling fence along the Bayview Street boundary protects the safety and security of the pool in the side boundary setback and is AS 1926 compliant as is the internal fencing.

1. The Applicants are prepared to renovate and repaint the façade of the dwelling giving it a fresh street appeal and balance including a matching front fence.
2. Permitting a 1.5 metre high front fence will not affect neighbourhood amenity or create adverse traffic impacts but will generate new precedence to the area.

1. The Council submits that in reporting and consenting to an application, Clause 4A of Schedule 2 of the Act requires the Council to -

• Have regard to the Ministerial Guidelines and refuse to consent to an application if it does not comply with any matter set out in the Guidelines;
• Determine if the application will result in a nearby allotment suffering detriment; and
• If so, give the owner of the nearby allotment an opportunity to make a submission as to the possible detriment and consider the submission.

1. Existing fences on the Subject Land and adjoining properties were constructed before the introduction of Neighbourhood Residential Zone 5 of the Hobsons Bay Planning Scheme on 24 February 2022. The maximum front fence height as detailed Schedule 5 of Neighbourhood Residential Zone is 1.2 metres. The traffic noise in the area would not be any different from any usual residential area.
2. The prevailing fence heights are generally below 1.2 metres and the prevailing streetscape is low front fences with visible gardens. The proposed 1.5metre high solid fence would result in disruption of the streetscape.
3. Neighbourhood Residential Zone 5 contains the following objectives -
   • To support visual separation between dwellings;
   • To provided front gardens visible from the street;
   • To provide front and rear setbacks that accommodate canopy trees and a high proportion of permeable area; and
   • To support garages and carports set back behind the dwelling façade.
4. A 1.5 metre front fence will prevent the front garden from being visible from the front street.
5. The existing front fences and fences on corners on adjoining properties are generally low in height. Surrounding fence heights in Tobruk Crescent and Bayview Street show little variation from 1.2 metres.
6. The street frontages along Tobruk Crescent and Bayview are flat and do not reduce the effective height of the fence. The 400 mm of retained soil on 37 Tobruk Crescent increases the effective height of the fence from the footpath and the road.
7. Council determined that the adjoining property owners would not be contacted as they would not suffer any detriment from the proposed front fence.

1. We have considered the parties' oral and written submissions, and the material filed with the BAB. We have also had regard to the applicable Decision Guidelines set out under MG-12, given they are relevant considerations for the BAB to consider. Based on these considerations we make the following findings.
2. The objective of Siting requirement 16: Front fence height in MG-12 is 'to ensure front fence design respects the existing or preferred character of the neighbourhood'.
3. Siting Requirement 16 states that the reporting authority may give its consent if all of criteria a) to c) applies and at least one of the remaining criteria (d and e) apply.
4. The required criteria a) to c) in summary, require consideration to be given as to whether the fence is required for the minimisation of noise intrusion, the fence height will not result in a disruption of the streetscape and the fence height, setback and design are consistent with the any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme.
5. The relevant planning scheme is the Hobsons Bay Planning Scheme (Planning Scheme). In addition to the objectives for Schedule 5 of the Neighbourhood Residential Zone (noted above), the Planning Scheme also sets out a local policy at Clause 15.01-5L titled 'Hobsons Bay preferred neighbourhood character'.
6. A strategy within this policy is to maintain the openness of streetscapes and the visual connection between buildings and the street through the use of low or transparent fences. It also includes the Council's Neighbourhood Character Study 2019 as a policy document.
7. Together with the objectives of Schedule 5 of the Neighbourhood Residential Zone, we find there is a preferred character set out in the Planning Scheme to which the front fence design needs to be respectful of; that is the relevant objective of MG-12.
8. We find the solid design of the front fence together with its height, is not consistent with the objective of providing front gardens that are visible from the street. At the proposed height and solid design, the proposed fence screens or hides views of the garden behind it.
9. Further, it was established during the hearing that it is a relatively quiet street and noise minimisation was not a major concern.
10. Accordingly, in the absence of any evidence we find that that the fence is not required for the minimisation of noise intrusion. In addition, we find the prevailing pattern of front fences in the street, particularly adjoining and near the subject land is that of low, non-existing and/or transparent fences. Whilst there are some examples of taller solid fences, they are not the prevailing design and height.
11. Having regard to the required criteria in the Decision Guidelines, we find that the proposed fence does not satisfy criteria a), b) or c).
12. Furthermore, the proposed fence is not more appropriate taking into account the prevailing heights, setbacks and design of existing front fences on nearby allotments for the reasons noted in the previous paragraphs. For completeness, the slope of the allotment and/or existing retaining walls does not reduce the effective height of the fence when viewed from the street.
13. Accordingly, the decisions of the reporting authority will be 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'.