APPLICANTS Jacqueline Montoya and Jaypee Montoya (Subject Land owners)

SECOND INTERESTED PARTY Alan Tran (Adjoining Land owner of 4 Rosemary Avenue Aintree)

RELIEF SOUGHT To permit the existing northern fence with a maximum height of 2.177m to remain set back 290mm from the northern side boundary of the allotment, instead of being set back from that boundary not less than 1m.

BEFORE Members G Woolcock (panel chair) and A Kong

CITATION In the matter of 2 Rosemary Avenue, Aintree [2025] VBAB 128

1. Having considered all the submissions and information placed before it, the Building Appeals Board, being satisfied that modifying the provision of the regulations is reasonable and not detrimental to the public interest, determines that the application is approved in accordance with the modifications and/or variations specified in the application.
2. For the avoidance of doubt, this determination made under s 161 of the Building Act 1993 must not be construed as an approval or endorsement that is required under any other Act, regulation, control or matter pertaining to the Subject Land to which this determination relates. In particular, the determination should not be taken to authorise any departure from approved documents or other matters that have been or are able to be the subject of other approval procedures pursuant to the Planning and Environment Act 1987 and any other Acts that may have application to the Subject Land.

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1. The fence that is the subject of this application (Subject Fence) is an existing fence that forms part of a swimming pool barrier and is set back 290 mm from the northern side boundary of the allotment.
2. The Applicants have submitted written approval for the design of the Subject Fence from the Woodlea Design Review Panel dated 7 August 2025.

1. The Principal Development Planner of the City of Melton has stated, in a submission dated 25 August 2025, that:

(a) In relation to whether reg 68(1) of the Building Regulations 2018 is applicable to the subject matter of the application, and in particular, whether the planning scheme regulates that matter:

A planning permit is not required to construct a swimming pool, and associated pool fencing.

(b) In relation to whether a relevant restriction exists under the Design Guidelines approved as part of the planning permit for the subdivision:

Council's Town Planning Department is generally not involved with the assessment of applications against the Design Guidelines. I note that the Woodlea Design Review Panel has outlined that swimming pools are not noted in the Design Guidelines.

1. In contrast, the Municipal Building Surveyor of the City of Melton (MBS) states, in a submission dated 28 August 2025, that:

The modification under Section 160 of the Building Act 1993 to vary the requirements of Regulation 90 of the Building Regulations 2018 cannot be issued as the application requires a Planning Permit for the following reasons [summarised below].

1. In summary, the reasons cited by the MBS (Reasons) are:

(a) Lot 29111 (the Subject Land) is burdened by Restriction No. 3, created on registration of the plan of subdivision (PS806991N) on 17 April 2019.

(b) That Restriction requires, amongst other things, that the registered proprietor or proprietors for the time being...shall not construct or allow to be constructed any improvement on any lot:

(i) That is not in accordance with the Design Guidelines approved under PA 2015/5010 unless otherwise approved by the Design Review Panel and Melton City Council; and

(ii) Without obtaining written approval for the design of that improvement from the Design Review Panel, such approval to be obtained even if the design for that improvement complies with the Design Guidelines.

(c) The current Design Guidelines are Woodlea Design and Siting Guidelines - Issue 8.0, July 2025 (the Design Guidelines).

(d) Clause 7.6 of the Design Guidelines imposes various construction requirements on fencing that is required to be constructed to all internal lot boundaries that do not face the street.

(e) The Subject Fence does not meet the requirements of that clause as it has a maximum height that exceeds 1.8 m and it is not of timber paling construction.

(f) This non-compliance with the Decision Guidelines and thus with the Restrictive Covenant on the Certificate of Title results in the need for a planning permit to vary the requirements of clause 7.6 of the Design Guidelines.

(g) An application pursuant to s 160 of the Building Act 1993, to vary the requirements of reg 90 of the Building Regulations 2018 cannot be determined by the Building Appeals Board (BAB) where the matter of non-compliance relates to a Restrictive Covenant on the Certificate of Title.

(h) The BAB do not have the authority to approve this matter as it is to be approved in accordance with a planning permit under the Planning and Environment Act 1987.

1. We accept that, pursuant to reg 68(1) of the Building Regulations 2018 (Regulations), if a planning permit is required for the construction of the Subject Fence and the Melton Planning Scheme regulates the same matter as reg 90(1) of the Regulations, then reg 90(1) does not apply to the construction of the Subject Fence.
2. We find that:

(a) The Reasons cited by the MBS are flawed, as:

(i) The Subject Fence is not a fence constructed to an internal lot boundary, in terms of the description of such fences in the Design Guidelines but is set back 290 mm from an internal lot boundary, and so is presumably, not subject to cl 7.6 of the Design Guidelines.

(ii) The MBS has not given consideration to the statement by the Principal Development Planner of the City of Melton regarding the lack of requirement for a planning permit and council involvement with the assessment of applications against the Design Guidelines.

(iii) The MBS has not considered the written approval of the Design Review Panel.

1. The Subject Fence has the approval of the Woodlea Design Review Panel, even though it is not a boundary fence, and thus meets the terms of Restriction No. 3
2. The Principal Development Planner of the City of Melton has stated that a planning permit is not required for the swimming pool or pool fence.
3. Section 61(4) of the Planning & Environment Act 1987 requires consideration of a covenant before granting a planning permit involving affected work.
4. Based on the evidence submitted, we find that a planning permit is not required in respect of the Subject Fence, and it follows that the BAB has authority to consider the application as reg 68(1) of the Regulations does not apply.
5. The Second Interested Party has confirmed their support for the application in a document dated 4 August 2025.
6. Accordingly, we are satisfied that a modification of reg 90(1) of the Regulations, to grant the relief sought by the Applicant is reasonable and not detrimental to the public interest.