APPLICANTS Karla Martinez and Cesar Funez (Subject Landowners)

RESPONDENT Theo Alexopoulos (relevant building surveyor)

FIRST INTERESTED PARTY Myfanwy Warhurst (Adjoining Landowner)

SECOND INTERESTED PARTY Municipal Building Surveyor, Nillumbik Shire Council

SUBJECT LAND 51 Kangaroo Ground-Warrandyte Road, North Warrandyte 3113

CITATION Martinez & Anor v Alexopoulos [2025] VBAB 97

1. Having regard to the findings set out in the Reasons accompanying this determination, the answer to the preliminary question set out under Order 2 of the orders of the Building Appeals Board dated 14 March 2025 is:

The natural ground level of the Subject Land at the highest part of the building structure erected on the Subject Land is at a reduced level (RL) of 71.17 m.

1. By 11 August 2025, the parties may file any further material in answer to the question:

(a) What is the height of the building structure erected on the Subject Land (either as-constructed or as-designed), having regard to the natural ground level at the highest part of the building structure being RL 71.17?

1. Subject to either party requesting a further oral hearing, the Building Appeals Board will determine the appeal proceedings based on the material filed and evidence given to date.
2. Liberty to apply.
3. Costs reserved.

_______________________ ________________________

For the Applicant Mr K Ioulianou, solicitor on 23 January and 19 June 2025.

For the Respondent In person on 23 January and 19 June 2025.

For the First Interested Party No appearance on 23 January 2025.

For the Second Interested Party No appearance on 23 January 2025.

1. The Applicants are the registered proprietors of the subject land located at 51 Kangaroo Ground-Warrandyte Road, North Warrandyte (the Subject land).
2. The Respondent is the relevant building surveyor appointed by the Applicants in relation to the construction of a Class 1a building and associated works on the Subject Land (the Building).
3. The First Interested Party is the registered proprietor of an adjoining property (the Adjoining Land Owner) located at 49 Kangaroo Ground-Warrandyte Road, North Warrandyte (the Adjoining Property).
4. On 17 June 2024, the Respondent issued a building notice numbered NT-20240037 (the Building Notice), which stated in part:

The following building work has been carried out on the building without a building permit as required by the Building Act 1993.

The building work in contravention of Section 16 of the Building Act 1993 is the roof cladding to the prayer room, associated home office and balcony on the second-floor level of the building.

Under section 108 of the Building Act 1993, you are required to show cause within 30 days of the date of service of this notice-

Why you should not be required to carry out the building work, protection work or work required by the Building Regulations 208 [sic] identified in this notice in relation to the building.

1. Remove roof cladding from the prayer room, associated home office and balcony on the second floor level of the building.
2. On 17 June 2024, the Respondent also made a building order to stop work (OD-20240028) (the Building Order). The Building Order repeated that building work has been carried out in contravention of the Building Act 1993 (the Act) and ordered:

1. By 6:00 PM 19/06/2024, the owner must stop the following building work on the building located at 51 Kangaroo Ground-Warrandyte Road Warrandyte North:

(a) Works relating to roof cladding of the prayer room, associated home office and balcony on the second floor level of the building.

1. By email correspondence dated 28 June 2024, the Applicants requested that the Respondent cancel the Building Notice and the Building Order. The basis for the request for cancellation was that the Form 1 Application for a Building Permit and Form 2 Building Permit did not exclude the installation of the second storey roof and/or roof cladding.
2. The Respondent did not cancel the Building Notice or the Building Order. Consequently, on 12 July 2024, the Applicants commenced three appeals in the Building Appeals Board (the BAB) against the Respondent's refusal to cancel the building order;[1] and the failure within a reasonable time to cancel the Building Notice[2] and Building Order[3] (the Stop Work Appeals).

1. Presently, there are several active matters before the BAB commenced by the Applicants relating to the Building. Case number 456239 and 456353 comprise modification applications made under s 160 of the Act (the Modification Applications). They concern siting and building height restrictions and largely touch upon questions raised by the Respondent and/or the Adjoining Landowner over the height of the as-constructed Building. Specifically, whether the height of the Building exceeds the permissible height limit of 9 m measured from natural ground level. That question is complicated by the subsidiary question as to what is the natural ground level?
2. Given that the height of the Building could, conceivably, affect the interests of the Adjoining Landowner, the BAB found that the Adjoining Landowner was a person concerned, for the purposes of cl 13, sch 3 to the Act and was joined as an interested party to the Modification Applications, pursuant to cl 14, sch 3 to that Act. By that step, the Adjoining Landowner could actively participate in the Modification Applications, and specifically advance material in answer to the question of what the natural ground level of the building site is.
3. The Stop Work Appeals were originally listed for hearing commencing on 16 January 2025. However, at a directions hearing on 16 December 2024, all parties either submitted or conceded that the Stop Work Appeals and the Modification Applications touched upon, in varying degrees, the question of what the natural ground level of the building site is. Consequently, the parties submitted or conceded that the question of what the natural ground level of the building site is should first be determined as part of the Modification Applications, as the answer to that question may narrow the scope of the Stop Work Appeals.
4. Consequently, by orders dated 17 December 2024, the BAB vacated the hearing of the Stop Work Appeals, then listed for 16 January 2025. The Modification Applications were subsequently listed to be heard and determined on 13 February 2025. The hearing and determination of the Stop Work Appeals were effectively stayed pending the outcome of the Modification Applications.
5. However, by correspondence dated 17 December 2024, the Applicants advised the BAB that:

This case [the Stop Work Appeals] is to continue unchanged as the Stop Works Order is unrelated to any of the modification matters.

1. In response to the Applicants' correspondence dated 17 December 2024, the Registry of the BAB, by correspondence dated 20 December 2024, advised all parties to the Stop Work Appeals, that the orders that sequenced the Stop Work Appeals to follow the determination of the Modification Applications was agreed or conceded by all parties at the directions hearing on 16 December 2024.
2. In response to that correspondence, the Applicants, by further correspondence dated 20 December 2024, advised that the legal representative who represented them in the Modification Applications had no authority to represent them in the Stop Work Appeals. Consequently, they contended that the legal representative was not authorised to consent or to concede to an order that the Modification Applications be heard and determined before the hearing and determination of the Stop Work Appeals. The Applicants further agitated for the hearing of the Stop Work Appeals to be relisted and heard before the hearing or determination of the Modification Applications and requested that the Stop Work Appeals be listed for an urgent directions hearing to enable them to discuss the matter further.
3. On 10 January 2025, the Stop Work Appeals were listed for a directions hearing. At the conclusion of that directions hearing, orders were made to relist the Stop Work Appeals for hearing on 23 January 2025, based on the Applicant's contention that the subject matter of those proceedings were unrelated to any of the modification matters.
4. The Stop Work Appeals were heard on 23 January 2025. At that time, the only parties to those proceedings were the Applicants and the Respondent, given that the subject matter was confined to the question whether building work had been undertaken without a valid building permit. In other words, the Stop Work Appeals proceeded on the basis that the question of what the natural ground level of the building site is would not be dealt with in those proceedings.
5. However, the evidence lead by the Applicants during the Stop Work Appeals moved well beyond the question whether building work had been undertaken without a valid building permit. The evidence of Mr Shane Leonard, the consultant building surveyor retained by the Applicants, touched upon the question of what the natural ground level of the building is. That evidence was lead without giving the Adjoining Landowner an opportunity to cross-examine Mr Leonard or to lead evidence on that question. Further, following the hearing on 19 June 2025, the Applicants filed the following additional material:

(a) a Plan of Feature Survey by MJ Reddie Surveys Pty Ltd, file number 8120 dated 22 September 2011 ('the Reddie Survey 2011') prepared prior to the construction of the Building on the Subject Land;

(b) a Plan of Survey by Raven Land Surveyors, reference 9737-04-9-A dated 16 November 2024 ('Raven Survey 2024');

(c) a Plan of Survey by Raven Land Surveyors, reference 9737019A, dated 22 June 2023 ('Raven Survey 2023');

(d) a Plan of Partial Feature, Level, and Re-establishment Survey by Lawlor & Loy Vic Pty Ltd, reference 9136 dated 9 February 2024 ('Lawlor Survey 2024') prepared whilst the Building was under construction;

(e) a Planning Permit, number 505/2016/05P issued by the Nillumbik Shire Council' ('the Council') on 15 January 2018 ('Planning Permit');

(f) a drawing prepared by the Applicants purporting to set out the height of the Building;

(g) A drawing prepared by the Applicants purporting to depict the setback of the Building; and

(h) a drawing prepared by the Applicants regarding the natural ground level.

1. It is clear from the above documents that the Stop Work Appeals focused heavily on determining the natural ground level and Building height. Those documents said very little in answer to the question whether building work was undertaken without building approval.
2. By correspondence dated 12 February 2025, the Adjoining Landowner raised concern over the sequencing of the matters and specifically, that the hearing of the Stop Work Appeals had canvassed the question of what the natural ground level of the building site is, without giving the Adjoining Landowner an opportunity to be heard on that question.
3. Consequently, the Stop Work Appeals were listed for a directions hearing on 14 March 2025. The Adjoining Landowner and the municipal building surveyor were given leave to appear at that directions hearing, essentially to give them an opportunity to make submissions as to whether they should be joined as interested parties to the Stop Work Appeals.
4. Mr Loulianou, a solicitor, appeared on behalf of the Applicants at that directions hearing. He conceded that the determination of what the natural ground level of the building site is could materially affect the Adjoining Landowner's interests. That statement was reinforced by the municipal building surveyor, who submitted that the answer to that question was of public interest and therefore also affected the interests of the municipal building surveyor.
5. Having regard to the submissions made by the parties during the directions hearing on 14 March 2025, the BAB found that both the Adjoining Landowner and the municipal building surveyor were parties concerned for the purposes of cl 13, sch 3 to the Act and were therefore joined as interested parties to the Stop Work Appeals pursuant to cl 14, sch 3 to that Act.
6. Further orders were made at the conclusion of that directions hearing that:

1. Subject to these orders, these proceedings are reopened.

1. By 4 April 2025, the Interested Parties must file with the BAB and serve on each other and the other parties any written submissions or expert reports in answer to the following question:

What is the natural ground level or how should the natural ground level be measured of the Building Site?

1. By 11 April 2025, the Applicants and the Respondent must file with the BAB and serve on each other and the other parties any written submissions in reply.
2. By 28 March 2025, the Interested Parties must give notice in writing to the BAB and the other parties of their intention (if any) to cross-examine Mr Shane Leonard in respect of the matters raised in his report dated 17 January 2025 and/or the evidence given by him at the hearing conducted on 30 January 2025 [sic], in which case:

(a) I direct the Registrar to list these proceedings for further hearing before the presiding panel for the sole purpose of allowing the Interested Parties to cross-examine Mr Leonard in accordance with these orders and for the Applicants to re-examine Mr Leonard, should they so choose; and

(b) the applicants must arrange for Mr Leonard to attend the hearing for the purpose of cross examination and re-examination only.

1. I further direct the Registrar to make the BAB's file of this proceeding (including the audio recording of the hearing on 30 January 2025 [sic] available to the Interested Parties.[4]
2. In our view, the trajectory of these proceedings has clearly changed course from when the Stop Work Appeals were first listed for hearing. The central question now under consideration is set out in the orders referred to above; namely, what is the natural ground level of the building site, relevant to the highest point of the Building structure?
3. Although that question seems remote to the initial enquiry as to whether building work had been undertaken without building approval, we consider it still to be relevant in determining the Stop Work Appeals. For example, if it is established that the roof structure and associated roof cladding was undertaken without building approval, then the question arises whether that element of the Building should be demolished and removed, as foreshadowed in the show cause Building Notice or alternatively, left in situ, notwithstanding that it may not have building approval. Central to answering that question is whether the Building has been constructed within permissible building heights, as that factor may impact on whether it is reasonable in the circumstances to quash or set aside the Building Order, which would allow building works to continue.
4. Consequently, what follows are our observations and findings in answer to the question what is the natural ground level of the building site, relevant to the highest point of the Building structure?

1. The following provisions of the Building Regulations 2018 (Vic) (the Regulations) are relevant.

(a) a building (other than a wall or fence) at any point, means the vertical distance between natural ground level and the top of the roof covering; and

(b) a wall at any point, means the vertical distance between the natural ground level at the base of the wall and the point at which the outer wall intersects the plane of the top of the roof covering or the top of the parapet, whichever is higher; and

(c) a fence at any point, means the vertical distance between the natural ground level at the base of the fence and the top of the fence.

1. As indicated above, at the initial hearing on 23 January 2025 the BAB only heard expert evidence from Mr Shane Leonard. In that regard, Mr Leonard adopted and relied upon his expert report dated 17 January 2025. Insofar as his evidence concerns determining the natural ground level, he stated, in part:

4.1.1.1 The Property allotment faces Warrandyte - Kangaroo Ground Road and for the purposes of nomenclature I have adopted the front boundary as the east boundary.

4.1.1.2 The site is situated upon a very steep gradient with an approximate fall of 11.20 m from the east to west boundary (front to rear) and a cross fall from north to south of approximately 2.3 m (right to left when standing in the street facing the Property).

4.1.1.3 It is also very clear that there has been significant excavation on the Property below the natural ground level (NGL), and evidence that the property to the south has also lowered the NGL from its original state as survey by M.J. Reddie Surveys Pty Ltd on 22 September 2011 (the Reddie Survey 2011). I have attached a copy of this survey at Appendix C with a marked-up location of the highest roof structure overlayed.

4.1.1.4 The highest portion of the structure occurs at approximately 25 m from the east boundary of the Property and is at RL 79.5. It is clear that this part of the structure sits over an area that has been previously excavated by approximately 2.0 m below NGL to cite the original dwelling at a relatively [sic] level (RL) ≈ 70.3.

4.1.1.5 Whilst there is no definition of NGL or a regulatory prescribed methodology to determine NGL it is commonplace and considered standard practice for the NGL to be measured as the average between the two opposing boundaries RL's falling at a constant gradient. That is to say, the centre of the site between the opposing boundaries would be equal to the average of the boundaries RL's. In this particular case the NGL at the point directly below the highest part of the structure would be calculated as follows, noting the highest point is not exactly in the centre of the site from north to south: -

• Gradient = RL 72.3 (North) - RL 70.2 (South) = 2.1 m fall over 20.12 m run (width of the Property) = 1.04.
• 9.31 m run (distance off south boundary) over a gradient of 1.04 = 0.97 m
• Height of NGL at 9.31 m off south boundary = RL 70.2 + 0.97 m = RL 71.17

4.1.1.6 NGL being at RL 71.17 and the highest point of the structure being at RL 79.5 confirms the structure is within maximum permitted overall height of 9.0 m

4.1.1.7 Regarding the wall heights and boundary setbacks noting that the property to the south has been further excavated below the NGL established in September 2011, I am of the view that the site-specific wall heights and required setbacks are either compliant with regulation 75 (2) (b) of the Building Regulations 2018 (the Regulations) or the recent Building Appeals Board (BAB) determination in respect to this issue. I have enclosed a copy of a diagram prepared by the owner which I confirm is an accurate record of the site's conditions (see Appendix D).:

4.1.1.8 It is my opinion that the buildings overall height is less than 9.0 m and the walls adjacent to the southern boundary are compliant with the Regulations or as modified by the BAB.

1. At the hearing on 19 June 2025, the Adjoining Landowner relied upon an expert report prepared by Mr Brian Steendyk, architect, dated 28 April 2025. Mr Steendyk also gave oral evidence during that second hearing, reinforcing the points made in his report.
2. Although Mr Steendyk disagreed that the height of the Building is within the permissible 9 m height restriction, he did not challenge the accuracy of the Reddie Survey 2011, save and except that he was of the view that it was of limited relevance because:

... the Reddie survey drawing has been prepared in a manner that does not establish the title boundaries and therefore the location of the contours is incorrect to the boundary. When cross checked to other survey drawings it is evident that the boundaries are up to 450 mm out and this may affect where the contours sit on the Land when then extracted and used on development drawings. Correct contours are necessary to ensure that the building will be compliant with the Building permit, Planning permit and the Nillumbik Planning Scheme.[5]

1. Critically, however, Mr Steendyk did not challenge the general methodology adopted by Mr Leonard to calculate natural ground level, which assumes a straight line between reduced levels (RLs) across the site through a point where the building structure is at its highest and from which maximum building height can then be measured. As indicated above, Mr Steendyk's challenge to the evidence of Mr Leonard focused on Mr Leonard's use of the Reddie Survey 2011 juxtapositioned against architectural drawings. Mr Steendyk contended that this methodology erroneously assumed that the title boundaries on both drawings were the same, which Mr Steendyk opined was not the case.
2. The MBS called no expert evidence but filed written submissions dated 8 April 2025, which stated, in part:
   1. The question of what constitutes natural ground level ("NGL") is a question of law that turns on the particular facts.
   2. There is no available evidence before the Board to suggest the Building Site has undergone historical excavations that might warrant any assessment of the terms "natural" and "pre-existing" to be explored as potentially separate or discrete considerations at least in this case.
   3. Therefore, it is respectfully submitted that the NGL is for the Board to ascertain the existing level(s) of the ground prior to the Applicant's commencement of any excavations or alterations to the topography of the Building Site (carried out in furtherance of this current development).
   4. The MBS submits that the best evidence available regarding the NGL is found in the land surveyors report of MJ Reddie prepared in September 2011 extracted below:

1. The MBS adopts this report as his position concerning the question of what constitutes the NGL at the Building Site.
2. Mr Leonard was extensively cross-examined by Mr Nick Crawford, the solicitor engaged by the Adjoining Landowner. He was challenged on the accuracy of relying upon the Reddie Survey 2011 in circumstances where the boundaries could be 450 mm out. Mr Leonard conceded that it was possible that the boundaries were not exactly aligned with the Reddie Survey and this could possibly result in the contours relied upon not being accurately aligned with the architectural drawings and the position of the Building. However, Mr Leonard stated that his calculations were conservative and that the approach which he took resulted in a higher natural ground level than what was reasonably likely to be the case. He said that realigning the actual title boundaries as shown in Mr Steendyk's marked up version of the Reddie Survey is unlikely to have any material difference to his calculation of the natural ground level.

1. Given that the two expert witnesses advanced differing opinions on critical matters, it is necessary to determine which of the differing opinions should be accepted. Ordinarily, that task requires an examination of the qualifications of each of the experts, their experience, their independence and to a lesser extent, how they presented their evidence.
2. During cross-examination Mr Steendyk conceded that he had both a personal and business relationship with the Adjoining Landowner and was, in fact, the architect retained for the construction of the Adjoining Landowner's proposed dwelling on the Adjoining Land. It was put to Mr Steendyk that in circumstances where he had a personal relationship with the Adjoining Landowner, his independence and objectivity was compromised. Mr Steendyk denied that he was unable to give independent and objective opinion evidence.
3. We accept that Mr Steendyk is qualified to give expert opinion evidence. His qualifications and industry experience set out in his curriculum vitae clearly show this to be the case. However, it is trite to say that close personal relationships sometimes obscure objectivity. In our view, Mr Steendyk presented as an evasive witness who was not willing to make concessions, even when it was clear that a concession should be made. For example, when questioned as to his independence, he repeatedly refused to answer questions concerning his relationship with the Adjoining Landowner, suggesting that it was irrelevant. However, we do not accept that disclosure of a personal relationship between an expert witness, held out to be independent, and the person relying upon that expert witness, is irrelevant. In our view, the existence of a personal relationship, particularly in circumstances where that was not disclosed in the expert report and where the witness is reluctant to make any concession or avoids relevant questions, may lead the decision-maker to doubt whether the expert opinion evidence is truly independent and objective.
4. We observed Mr Steendyk's responses during cross-examination to be evasive and combative, suggesting a tendency to advocate for the Adjoining Landowner, rather than to provide independent and impartial expert opinion evidence. In our view, this diminished the reliability of his evidence and affects the weight to be given to it.
5. In contrast, we found the expert evidence of Mr Leonard to be objective and balanced. For example, Mr Leonard accepted that there may be some shortcomings in his conclusions, albeit that he opined that those shortcomings would not materially affect the substance of his report. Nevertheless, Mr Leonard did not avoid questions or engage in argument during cross-examination but rather, remained composed and in our view, objective and independent. Mr Leonard responded to questions in a measured and consistent manner. While his demeanour was reserved, his oral evidence generally aligned with his written report.
6. In our view, the less than 'arm's-length' relationship between Mr Steendyk and the Adjoining Landowner, coupled with Mr Steendyk's sometimes evasive and combative answers to questions asked during cross-examination, undermine his credibility as an expert witness in this case. Although we have carefully considered both the written and oral evidence given by each expert witness, we find that where there is a direct conflict between their opinions, Mr Leonard's evidence is to be preferred.

1. The term natural ground level is a term that is commonly referred to when assessing compliance with the Building Act and the Regulations. Although the term is not expressly defined in the Building Act, the Regulations, or the Building Code of Australia (the BCA), establishing natural ground level is essential for determining building heights and ensuring alignment with applicable legislation and standards. The natural ground level of a building site provides a critical reference point for establishing building heights, setbacks, and other regulatory requirements.
2. Although the Building Act does not define natural ground level, the Regulations offer some context. Regulation 5 of the Regulations defines "height" in relation to buildings, walls, and fences by referencing natural ground level as the baseline for these measurements. Specifically, the height of a building is measured from the natural ground level to the top of the roof covering, and the same principle applies to walls and fences.
3. In the absence of a formal definition, the Victorian Building Authority now trading as the Building and Plumbing Commission ('the BPC') provides guidance in Practice Note 47-2018 (PN 47), which states:

... subject allotment has undergone a cut and fill or other earthworks.

Natural ground level may be taken as being any line across the allotment that connects any two points, either within the allotment, or on adjoining allotments, that can be reasonably regarded as being natural ground level.

...

Where a new sub-division has been subject to 'reshaping' earthworks, the new levels can be taken as the natural ground level provided that adjoining allotments have also been subject to the same earthworks or are at the same level...

1. The BPC has updated PN 47, with Practice Note SI01 Siting of Class 1 single dwellings, Class 10a buildings and fences dated 26 July 2024 (PN SI-01), which defines natural ground level as:

Natural ground level is not defined in the Regulations. It can be difficult to ascertain the natural ground level when the subject allotment has undergone a cut and fill or other earthworks. Natural ground level may be taken as being any line across the allotment that connects any two points, either within the allotment, or on adjoining allotments, that can be reasonably regarded as being natural ground level_._

1. While PN 47 and PN SI-01 offer some guidance, those practice notes have no legislative force.
2. We further note that there are several decisions of the courts and the Victorian Civil and Administrative Tribunal which consider how natural ground level should be defined or measured.

1. Several cases provide guidance on how to define the term natural ground level and its application in building height assessments.
2. In Shire of Gisborne v King (King),[6] Nathan J examined whether changes to land caused by mining or bushfires meant it was no longer in its natural state. The court ruled that "natural conditions or topography" refers to the state of the land immediately before an application is made, regardless of prior industrial or environmental alterations. Nathan J stated:

An issue arises in this case as to the meaning of the term 'alteration to the natural conditions or the topography'. Does the topography mean the configuration of the land prior to European settlement? And what of the effect or alterations to that natural configuration brought about by mining, or other forms of industry which might have changed the shape of the land? In this case much of the ground surface has been altered by industrial intervention to which I have already referred. Much of the sub-soil was brought to the surface by shaft goldmining and then stored in mullock heaps, some of which appears to have spread over the ground surface in a form of slurry in the intervening century. Other segments of the land have been cut by deep clefts as a result of slate mining and yet other portions have been altered by tracks presumably constructed and used to extract timber and provide access to the various mines. The question is of relevance because King contends that he was doing nothing more than either renovating or rehabilitating existing tracks or levelling pre-existing mullock heaps. In one part of the borrow area (ibid) he contended he removed overburden from previous mining activity in order to display the 'natural' surface of the land, that is, that level which pre-dated European intervention. To my mind the term 'alteration to the natural conditions or topography' means that the surface or topography which must not be disturbed is that which immediately pre-dates the making of the application. That is, the configuration of the land, whether disturbed or otherwise as a result of prior European industrial, pastoral or mining activities, but being that which exists at the time an application is made. This conclusion bears the merit of commonsense. There will be many applications to rectify the results of extractive industries or neglect, so as to either restore the land to its pre-European shape or else render it productive in some other way.[7]

1. In King, Nathan J confirmed natural conditions or topography does not refer to the land's original, pre-European state but rather to its condition immediately before an application is made. Therefore, any assessment of alteration must be based on this most recent state, regardless of prior disturbances.
2. In Mrocki v Bayside CC,[8] (Mroki) the Victorian Civil and Administrative Tribunal (the VCAT) interpreted and assessed the natural ground level, within the context of the Design and Development Overlay Schedule 1 (DDO1) within the Bayside Planning Scheme. The VCAT's analysis was crucial in determining the classification of a building's basement and, consequently, the legality of the proposed development. The VCAT referred to several legal authorities, including King, where Nathan J stated:

To my mind, the term alteration to the natural conditions or topography means that the surface or topography which must not be disturbed is that which immediately predates the making of the application.

1. In Mrocki, the VCAT found that there was no distinction between ground level and natural ground level under the relevant planning scheme, stating:

We consider that there is no difference in meaning between the terms 'ground level' and 'natural ground level' and that the definition of 'ground level' in effect means natural ground level.[9]

1. In Faversham Mews Pty Ltd v Boroondara CC (Faversham),[10] the VCAT considered the meaning of natural ground level in the context of height controls under the relevant planning scheme. The decision in Faversham did not adopt the approach that the existing ground level was the natural ground level for the following reasons:
   1. First, it equates natural level with, in effect, the existing level. If the draftsperson had intended the latter at a specified time (e.g. when the permit application was made), he or she could have included that meaning instead of 'natural'.
   2. Second, the facts and the provision in which the expression NGL arose are different in the cases on which Mr Rantino and Mr Nickas relied. None are 'on all fours' with this proceeding being the construction of a proposed building subject to a GRZ building height control in the circumstances of land with longstanding existing buildings. Care needs to be taken in applying principles or findings borne out of different circumstances.
   3. Third, it overlooks potentially significant disturbances to surface levels when constructing existing or former buildings. This difficulty was acknowledged in Mrocki[11] in which the Tribunal preferred, on grounds of common sense, to find NGL to be the level that existed when the relevant land was created by a two-lot subdivision in 1999 and before the existing dwelling was demolished and construction of a new dwelling started.
   4. Fourth, it could result in manipulation. A person could raise the level of land by fill before making a permit application to propose a higher building than otherwise permitted under the GRZ height control.
2. In Faversham, the VCAT found that the natural ground level is the level before land is disturbed that is, pre-development ground level, however this was subject to two qualifications:

(a) the first qualification was an evidentiary one; and

(b) the second qualification is the need to have regard to the purpose of the relevant provision that relies on natural ground level.

1. In interpreting the relevant provision of the scheme, Faversham followed well established authority that the preferred construction is one that promotes the purpose of the legislation in question.
2. In the more recent decision of Coda One Pty Ltd v Stonnington CC (Coda),[12] the VCAT, while referring to both King and Mrocki, endorsed the approach to determine natural ground level as outlined in Faversham. That tribunal also observed that determining natural ground level prior to the commencement of earthworks for development may need to rely on incomplete evidence and on inferences, interpolations or extrapolations. It also reaffirmed that natural ground level assessments must consider pre-development topographical conditions.
3. Having regard to the above authorities, we also find that the term 'natural conditions or topography' does not refer to the land's original, pre-European state. Instead, it relates to the condition of the land at its pre-development stage, subject to any evidentiary qualifications and the intended purpose of the provision that relies on the natural ground level.
4. Therefore, the appropriate reference point for measurement is not the level recorded in the survey plans submitted after the completion of the development, that is following the issuance of the building permit. Instead, the relevant reference point is what existed before the commencement of the proposed development, during the design documentation stage. This approach provides a clear and practical framework for ignoring alterations to the landscape while still recognising the historical impact of human activity on the landscape. In short, the pre-development state of the land.
5. There is no evidence before us to suggest that any development or earthworks occurred prior to the commencement of the development consent. Therefore, we find that the Reddie Survey 2011 is the most accurate record of the pre-development state the of the Subject Land, as no other definitive records were provided. This survey formed part of the relevant planning permit, with the relevant RLs clearly documented.
6. The responsible authority approved a set of architectural drawings dated 8 March 2024, which form part of Planning Permit Number 505/2016/05P issued by it. These drawings include site contours with relevant RLs referenced in the Reddie Survey 2011 which can be used to determine the maximum height permitted for the roof and top of the parapet, being 9 m above natural ground level.
7. We note that the written submissions filed on behalf of the Adjoining Landowner take issue with the opinions or assumptions made by Mr Leonard in his expert report. However, we are of the view that the written submissions filed on behalf of the Adjoining Landowner largely deal with the as-constructed or as-designed building height, rather than specifically addressing the question, the subject of this preliminary hearing. For example, at paragraph 63 of the written submissions, the Adjoining Landowner, criticises the approach adopted by the Applicants to calculate building height. The written submissions state, in part:
   1. It is notable, in respect of that plan 3 [prepared by the Applicants], that:
      • there is no ground-level nominated (either at the boundary or at the building);
8. This criticism highlights the importance of establishing what is the natural ground level at a point where the as-constructed building is at its highest. Without that determination, it is difficult, if not impossible, to determine the as-constructed building height.
9. Similarly, paragraph 76 of the Adjoining Landowner's Written Submissions states:
   1. Simply nominating the height on a plan (as contained in the application materials) and stating that it is 'as constructed' does not prove the height of the building. The Application plans do not establish NGL.
10. It is only from paragraph 121 of the Adjoining Landowner's Written Submissions that the question under consideration is specifically or directly dealt with. In our view, those submissions are generally consistent with the conclusions reached by Mr Leonard and by the Second Interested Party; namely, that the best evidence as to the condition of the land pre-development is the Reddie Survey 2011. However, the paragraphs which then follow in the Written Submissions revert to questions concerning the as-constructed or as-designed building height, rather than directly addressing the question what the natural ground level of the building site is.
11. As indicated above, the only material criticism raised by the Adjoining Landowner as to Mr Leonard's evidence concerning that question relates to him using the architectural drawings interposed over the Reddie Survey 2011 to establish where the isolines connect with the highest part of the building, as designed. However, we accept the evidence of Mr Leonard that even if the title boundaries nominated on the Reddie Survey 2011 are not exact, the difference would be minimal and would not significantly affect his calculation of the RL of the natural ground level, measured beneath the highest point of the existing structure.
12. Having considered the relevant legislative provisions, the expert evidence presented, the written submissions and the applicable legal authorities, we find that the most accurate evidence for determining the natural ground level at the highest part of the building structure erected on the Subject Land is the Reddie Survey 2011, as adopted and applied by Mr Leonard in his expert report. In reaching this conclusion, we accept that Mr Leonard adopted a conservative and methodical interpolation of the available survey data. Based on this analysis, we find that the natural ground level is RL 71.17, measured beneath the highest point of the existing structure.
13. We acknowledge Mr Steendyk's concern regarding a possible boundary misalignment and have given this careful consideration. However, in the absence of cogent or persuasive evidence, we are not persuaded that this concern materially affects the reliability or probative value of the Reddie Survey 2011, as adopted and applied by Mr Leonard for the purpose of determining the natural ground level.
14. Accordingly, we find that RL 71.17 represents the most accurate, credible, and defensible determination of the natural ground level at the relevant location. This level shall therefore be used as the reference point for assessing compliance with the maximum applicable building height.

[1] Building Act 1993 (Vic), s 142(2)(c).

[2] Building Act 1993 (Vic), s 142(1)(b)

[3] Building Act 1993 (Vic), s 142(2)(d).

[4] The date of the hearing was 23 January 2025, not 30 January 2025.

[5] Brian Steendyke, Expert Report, 28 April 2025, p 5, [18].

[6] [1994] VicRp 23; [1994] 1 VR 364.

[8] [2015] VCAT 1731.

[10] [2016] VCAT 1954.

[11] [2015] VCAT 1731.

[12] [2024] VCAT 1022.