(a) A building had been constructed within the front setback of the allotment; and

(b) A front and side fence had been erected which exceeded the height limitations specified by the Building Regulations 2018 (the Building Work).

1. The Applicant refused to give access to the MBS to conduct an inspection of the Building Work.
2. On 3 September 2024, the MBS issued a Building Notice alleging that contrary to Section 16(1) of the Act, the following building work had been carried out on the Subject Land without a building permit -

(a) Construction of a building within the front setback of the allotment of the site;

(b) Construction of a front and side fence incorporating gates and a vehicular roller door on the intersecting street alignments (front and side) exceeding the exemption criteria under Schedule 3 of the Building Regulations 2018 (the Regulations);

(c) The fence exceeds 1000mm in height above the footpath when within 9 metres of a point of intersection of street allotments; and

(d) The fence exceeds a height mm of 1500 (the Building Notice).

1. The Building Notice required the Applicant to show cause by 5.00pm on 16 October 2024 why she should not be required to demolish the shed and the fence.

1. In an undated document entitled 'Applicant's Response of Reply' she states:

(a) The complaint made to Council originated from my next-door neighbour ... The Complaint appears to be personal rather than based on actual concerns about compliance.

(b) On 18 July 2024, Council officers ... arrived without prior appointment, demanding to inspect my shed. I declined. I had already reviewed Council guidelines and confirmed with the shed supplier that no permit was required ...

(c) On 19 July 2024,I received written confirmation from Council that no permit was required for the shed ...

(d) A week later, I received a call from Council officer Nikki Babatsikos advising a permit was required for the shed, contradicting the earlier written advice. ...

(e) On 20 August, I received a Notice Before Entry and Search that also raised new concerns regarding my fence extensions and roller door - matters not previously discussed. ... There is no reason to 'search'.

(f) ... the trees surrounding the shed ... provide adequate coverage. The shed is clearly not visible from the street, and no permit should be required for existing trees...

(g) ... My property still has more open garden space than surrounding townhouses.

(h) Apart from the neighbour who submitted the complaint, other residents have expressed support or indifference to the shed. ...

(i) Council's website does not clearly state the criteria for requiring a permit, and residents are advised to call if unsure. The shed, fence and roller door are on private land, poses no risk to the public, and is not accessible to them (sic).

(j) The conflicting information from Council has created confusion and stress. ... I cannot justify paying more than the shed's value to obtain further reports when the matter appears to be driven by a single neighbour's vendetta.

1. On 31 October 2024, the MBS made a building order which stated that:

The building/land is a danger to the life, safety or health of any member of the public or of any person using the building in that:

The building work has been carried out on the land without a building permit being issued and in force contrary to section 16(1) of the Building Act 1993 (Vic)

1. The Building Order required the Applicant by 2.00pm on 3 February 2025 to:

(a) Demolish the shed located within the front setback of the allotment;

(b) Demolish the front and side fence incorporating;

1. The gates and vehicular roller door on intersecting street alignments;
2. The section of the fence exceeding 1000mm in height above the footpath within 9 metres of the intersection of street alignments; and
3. The section of the front fence higher than 1.5 metres.

1. On 29 November 2024, the Applicant filed with the BAB an appeal against the decision to make the Building Order (the Appeal).
2. On 25 May 2025, the BAB issued Directions and Orders requiring the:

(a) Applicant to file with the BAB and serve on the Respondent her Statement of Contentions by 13 June 2025;

(b) The Respondent to file and serve his Statement of Contentions in reply to the Applicant's Statement of Contentions by 27 June 2025; and

(c) The Applicant to file and serve any Statement in Reply to the Respondent's Statement of Contentions by 4 July 2025.

1. The Appeal was listed for hearing on 10 July 2025. On 7 July 2025, the BAB issued Directions and Orders for the proceeding to be determined 'on the papers'.
2. On 15 July 2025, the BAB issued Directions and Orders requiring:

(a) The Applicant to file with the BAB by 23 July 2025:

1. Written confirmation from the Council that a building permit was not required for the shed; and
2. Any written confirmation from the supplier of the shed that a building permit was not required;

(b) The Respondent to file and serve:

1. Any response to documents filed by the Applicant pursuant to para (a)(i); and
2. Any confirmation or communication to the Applicant that the construction of the shed required a building permit.

1. As regards the need to obtain a building permit, the City of Glen Eira website states:

Find out if you need a building permit for building a new dwelling or structure, making changes to an existing building, fences, decks, pools and more.

• Why you need a building permit
• Which building works require a permit?
• Obtaining a building permit
• Is a planning permit also required?
• Need help?

Building permits are issued under the Building Act 1993, while planning permits are issued under the Planning and Environment Act 1987.

You generally need a building permit when you're constructing any new building or changing an existing building. In some cases, you may need a building permit to build a fence or large shed.

The Building Regulations 2018 state that you must receive a valid building permit for certain proposed building works before you start. For more information see Building Regulations 2018 at Victorian legislation.

Common works that you may need a building permit for, but is not limited to, include:

• Construction of a new building or structure
• Additions and Alterations to dwellings and other buildings
• Re-blocking or restumping of an existing building
• Retaining walls
• Carports / garages
• Verandas, decks and pergolas
• Swimming pools/spas and safety barriers
• Sheds, gazebos, shipping containers or like structures
• Most fences, for more information see Fencing regulations - Glen Eira City Council | Glen Eira City Council

1. Section 16(1) of the Act states:

A person must not carry out building work unless a building permit in relation to the work has been issued and is in force under this Act.

Penalty 500 penalty units, in the case of a natural person.

1. In s 3:

building work means work for or in connection with the construction, demolition or removal of a building.

building includes a structure, temporary building, temporary structure and any part of a building or structure.

1. Regulation 74 (Minimum street setbacks) of the Regulations states:

(2) ... a building must be set back from a street alignment not less than the distance specified in respect of that alignment in Table 74.

Minimum setback from front street alignment

Minimum setback from side street alignment

Existing dwellings on adjoining allotments facing the same street

The average distance of the setbacks of the front walls of the existing buildings on the adjoining allotments facing the front street, or 9 m, whichever is the lesser

Existing dwelling on one adjoining allotment facing the same street and no building on the other adjoining allotment facing the same street

The same distance as the setback of the front wall of the existing building on the adjoining allotment facing the same street, or 9 m, whichever is the lesser

No existing dwellings on adjoining allotments facing the same street

If there is a building on the adjoining allotment facing the same street

The same distance as the setback of the front wall of the existing building on the adjoining allotment facing the front street, or 9 m, whichever is the lesser

The same distance as the setback of the front wall of the existing building on the adjoining allotment facing the side street or 2 m, whichever is the lesser

If there is no building on the adjoining allotment facing the same street

1. 20. Regulation 79 (Side and rear setbacks) states:

(1) If -

(a) an allotment is in a zone of a planning scheme specified in Schedule 6; and

(b) a schedule to that zone in the planning scheme specifies minimum setbacks from side and rear boundaries -

a building on the allotment must be set back from a side or rear boundary not less than the relevant setback specified in that schedule.

(2) If subregulation (1) does not apply, a building must be set back from a side or rear boundary not less than the distance specified in respect of that boundary in Table 79.

Minimum setback from side or rear boundary at that point

1 m plus an additional distance calculated at the rate of 300 mm for every metre of height over 3·6 m

2 m plus an additional distance calculated at the rate of 1 m for every metre of height over 6·9 m

(3) The following may encroach into the setback distance required by subregulation (1) or (2) -

(a) landings with an area of not more than 2 m 2 and less than 1 m in height;

(b) unroofed stairways and ramps;

(c) pergolas;

(d) shade sails;

(e) eaves, fascia and gutters, if the encroachment is not more than 600 mm;

(f) carports that comply with regulation 80.

(4) The following may encroach into the setback distance required by subregulation (1) or (2) by not more than 500 mm -

(a) porches and verandas;

(b) masonry chimneys;

(c) sunblinds;

(d) permanent and fixed screens referred to in regulation 84(5)(d) or (6);

(e) flues, pipes and rainwater heads;

(f) domestic fuel tanks and water tanks;

(g) heating and cooling equipment and other services.

(5) This regulation does not apply to a wall that complies with regulation 80.

(6) 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. (Emphasis added)

THE APPLICANT'S STATEMENT OF CONTENTIONS (IN SUMMARY)

(a) Over 24 years her property has been subjected to ongoing damage and safety concerns due to a large Council tree;

(b) There have been multiple security incidents including cars broken into, her letterbox stolen twice and cars sideswiped;

(c) Housing development within 50 metres of her dwelling has resulted in increased traffic and cars parked on the street, residents not using their garage or driveways and increased foot traffic;

(d) Strangers enter her property without authorization;

(e) There are privacy and security issues due to the proximity to a park;

(f) she has experienced bullying and harassment from Council employees;

(g) she proceeded with the construction of the shed after checking the council website and consultation with a person that a permit was not required due to it being only 6m² in size;

(h) Fence extensions were built after checking the Council website and receiving two to three quotations from fencing companies that no permit was required; and

(i) The roller door is more than 9 m from the street corner and has been reinforced at the base of posts and concreted 600 mm deep providing security without breaching corner visibility.

(a) Council has neglected its responsibility to manage the tree properly on or near Council property, which has resulted in damage and personal risk;

(b) Easy unauthorised access to her property by anyone while boundaries were insecure is unlawful and creates further security risks;

(c) Council communication has been misleading regarding requirements to inspect her property and permits (shed and fencing) leading to unnecessary distress, financial cost and delay;

(d) The Council has acted contrary to its own stated support for small businesses, particularly in how it handled the issue of the construction of a shed not for business use; and

(e) Bullying and harassment by Council officers particularly in line with behaviours cited in Councils "standard" emails, represents misconduct requiring investigation and remedy

1. The Applicant submits that the issues for determination by the BAB are whether:

(a) The Council has failed in its duty to maintain trees and foot paths and ensure resident safety;

(b) The Council's inconsistent or unclear communication regarding permits for sheds and fencing caused to the Applicant; and

(c) Whether the Applicant has been subject to misconduct, intimidation or unfair treatment by Council representatives

(a) Exemption from building work or confirmation in writing that no permit is required shared, fence extension and roller door;

(b) A formal investigation into the conduct of relevant Council employees and an understanding that they should not act like police and treat people in a more appropriate way; and

(c) Remediation of damage caused by the tree including repairs to the footpath and appropriate ongoing tree management.

THE RESPONDENT'S STATEMENT OF CONTENTIONS (IN SUMMARY)

1. The Respondent submits that the Applicant's Statement of Contentions focuses on issues not relevant to building legislation matters such as the large Council tree outside her property and security concerns.
2. The Respondent further submits that:

(a) The shed is not 6m² but has an approximate building area of 72m², which does not meet the exemption criteria under Schedule 3, item 1(a) to the Regulations;

(b) The Council's website does not refer to a 6m² building permit exemption for outbuildings;

(c) Matthew Storey was a planning enforcement officer regarding matters relating to the Planning and Environment Act 1987;

(d) The fact that a planning permit may not have been required does not obviate the need to obtain a building permit under s 16(1) of the Act;

(e) The shed as constructed is associated with multiple siting non compliances under Part 5 of the Regulations, including but not limited to:

• Regulation 74 - Minimum street setback

The shed is visually dominant and obtrusive in the immediate streetscape. There are no examples of buildings in the immediate streetscape with a front setback of 0.5 metres

• Regulation 76 - Site coverage

The approximate site coverage of 65% on the allotment is not in keeping with the immediate streetscape and neighbouring allotments.

The building impacts negatively on the neighbourhood character and amenity of reduced open space on the allotment.

There is no evidence that the shed complies with the National Construction Code and the relevant Australian Standards regarding but not limited structure (footings and framing), fire safety and stormwater drainage.

(f) Council's website for fencing regulations should be used as a guide only and it is the responsibility of the landowner to seek professional advice from a building consultant to verify if the proposed building work is exempt from Sch 3 to the Regulations.

(g) The front and corner fences exceed the height limitations listed in the guidance material on the Council's website, and the fences including the roller door do not meet the exemption criteria under Sch 3, item 10(b) and (d) of the Regulations.

(h) The fences including the roller door are associated with multiple siting non-compliances under Part 5 of the Regulations including but not limited to:

• Regulation 89 - Front fence height

Having regard to Ministers Guideline 12 (MG-12) there are no front fences in the immediate street scape with a prevailing height ranging from 2.3 to 3.5 metres.

• Regulation 92 - Fences on intersecting Street alignments

The corner fence does not achieve a 3.0 metres x 3.0 metres splay as required Council's Traffic Engineering Department.

The design of the fence will cause to pedestrians, cyclists and motor vehicle traffic.

There is no evidence to suggest that the front and side fences including the roller door comply with the National Construction Code and the relevant Australian Standards regarding, but not limited to, structure and footings.

THE RESPONDENT'S REPLY TO THE APPLICANT (IN SUMMARY)

1. Council's letter to the Applicant dated 19 July 2024, does not relate to building legislation matters and specifically references "Requirements for Planning Permit".
2. Council's Building Department did not provide any written confirmation that a building permit was not required for the shed and the front/corner fences.
3. The Applicant states 'I was informed that recent regulations had changed'. However, she submits, no recent changes have occurred to Sch 3 to the Regulations.

1. We have reviewed the parties' Statement of Contentions, Contentions in Reply and all other material filed in the proceeding.
2. We do not accept the Applicant's Contentions for the following reasons:

(a) The construction of the shed and the fence is building work as defined under Section 3 of the Act and therefore requires a building permit under Section 16(1) of the Act.

(b) The Section titled 'Do I need a building permit?' on the Council's website clearly states that 'Almost all building works require a permit' including shed and most fences,

(c) There is no evidence the Applicant sought confirmation with the Council's Building Department or a private building surveyor that a building permit was not required for the construction of the shed or the fence.

(d) Mr Storey was the Senior Planning Officer in the Council's Planning Department and was not a member of the Building Department.

(e) His letter to the Applicant dated 19 July 2019 is headed 'Requirements for Planning Permit' and simply states that:

Under the neighbourhood Residential Zone, the use of the Land as (sic) a does not require a Planning Permit if it meets the requirements of 52.17 (the Scheme) (Emphasis added)

(f) The Applicant's contention that Mr Storey's letter that a building permit was not required for the construction of the shed and the fence is incorrect. The letter contains no reference to building permit requirements.

(g) The Applicant did not provide any evidence to support her claim that she received two to three quotations from fencing companies advising her that no building permit was required.

(h) The shed and the fence have been constructed in breach of regs 74, 76, 89 and 92 of the Regulations.

(i) The shed and fence are also in breach of section 16(1) of the Act.

33. The decision to make the Building Order 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'.