APPEAL - An appeal made under s 144(1)(a) of the Building Act 1993 against the refusal of the Council under reg 92 of the Building Regulations 2018 to consent to permit the construction of a fence with a height of 2.0 metres above footpath level within 9.0 metres of a point of intersection of street alignments, instead of the prescribed maximum height of 1.0 metres.

APPLICANTS Daniel Ferguson and Elysia Ferguson (Subject Land owners)

SUBJECT LAND 10 Saturn Street, Caulfield South

CITATION Ferguson & Anor v Glen Eira City Council [2025] VBAB 45

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

1. In respect of Appeal 1, pursuant to s 149(1)(a) of the Building Act 1993 (the Building Act), the decision of the Respondent, the Glen Eira City Council dated 31 December 2024 refusing consent to a front fence that is within 3.0 metres of the street alignment at the front of the allotment to have a maximum height of 2.0 metres measured above footpath level, instead of the prescribed maximum height of 1.5 metres as required under reg 89 of the Building Regulations 2018 (the Regulations) is affirmed.
2. In respect of Appeal 2, pursuant to s 149(1)(a) of the Building Act, the decision of the Respondent, the Glen Eira City Council dated 31 December 2024 refusing consent to a fence with a height of 2.0 metres above footpath level within 9.0 metres of a point of intersection of street alignments, instead of the prescribed maximum height of 1.0 metres as required under reg 92 of the Regulations is affirmed.
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]

_______________________ ________________________

1. On 9 October 2024, Daniel Ferguson and Elysia Ferguson (the Applicants) applied for the consent of the Respondent, Glen Eira City Council, (the Council) to a building permit application for a proposed design in respect of a front and side fence to be erected/built at 10 Saturn Street, Caulfield South (the Subject Land).
2. The fence would be;
   1. within 3.0 metres of the street alignment at the front of the allotment to have a maximum height of 2.0 metres measured above footpath level, instead of the prescribed maximum height of 1.5 metres as required under reg 89 of the Building Regulations 2018 (the Regulations).
   2. of a height of 2.0 metres above footpath level within 9.0 metres of a point of intersection of street alignments, instead of the prescribed maximum height of 1.0 metres as required under reg 92 of the Regulations.
3. Under regulations 89 and 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 31 December 2024, the Council refused consent, reasoning that:

• the fence will not be more appropriate taking into account the prevailing heights, setbacks and design of existing front fences on nearby allotments;
• the fence height will result in a disruption of the streetscape;
• the fence height, setback and design are not consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme.

In respect of the fence on an intersecting street alignment;

• The design of the fence is such that the risk of injury to the public as a result of the fence will cause undue hazards to pedestrians, cyclists or motor vehicle traffic.

1. On 29 January 2025, the Applicants appealed the decisions (the Appeals) under s 144(1)(a) of the Building Act 1993 (the Building Act) to the Building Appeals Board (the BAB).
2. The Appeal was considered 'on the papers' on 27 March 2025.
3. I have considered the parties' written submissions and the material filed with the BAB. I have also had regard to the applicable Decision Guidelines set out under the Minister's Guideline MG-12, given they are relevant considerations for the BAB to consider. Based on these considerations I make the following findings.

Regulation 89 Appeal

1. In considering the approach to the criteria in Siting requirement 16, I accept and gratefully adopt the comments made in the BAB's decision in Cotsoglou v Maroondah City Council[2] (Cotsoglou) where it was stated:
   1. ...we do not think that respecting neighbourhood character can be achieved in every conceivable instance by only allowing front fences if they are required for the minimisation of noise intrusion.
   2. For that reason, we have approached the objective of Siting Requirement 16 of the Minister's Guideline:

To ensure front fence design respects the existing or preferred character of the neighbourhood.,

from first principles, without placing weight on the 'criteria' set out in relation to that Siting Requirement.[3]

1. I take the view that the existing streetscape in the vicinity of the subject land is relevant to an assessment of the existing character of the neighbourhood.
2. I do not accept the Applicants' submission that the BAB's decision in Boyer v Glen Eira City Council[4] (Boyer) should be taken as a precedent for permitting a 2m high solid fence on the Subject Land as, although Boyer has the same neighbourhood character classification as the subject land, Boyer was concerned with land around 1 km away and in a different streetscape setting to the Subject Land.
3. I accept the Council's evidence regarding the height of front fences in the vicinity of the Subject Land. I find that although there are some examples of fences 2m and over, these are exceptions to the prevailing fence heights and that the proposed fence will not respect the existing character of the neighbourhood.

Regulation 92 Appeal

1. I do not accept the Applicants' contention that a solid 2m high fence with a 2m splay will not impact on the safety of pedestrians and road users, which lacked any expert traffic engineering evidence in support of that contention.
2. Given my findings on the height of the fence, the requirements of Reg 92 will need to be considered in any new design.
3. For the above reasons, I find that the Council's decisions subject to the appeals should 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'.