APPLICANTS Gurleen Marwaha and Hemant Marwaha (Subject Land owner)

CITATION Marwaha & Anor v Monash City Council [2025] VBAB 84

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, Monash City Council refusing consent to a front fence with a height of 1.5m in lieu of a front fence height of 1.2m as required under reg 89 of the Building Regulations 2018 (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 Respondent Mr T Nuttall and Mr B Vergara (delegates of council)

1. On 7 January 2025, Gurleen Marwaha and Hemant Marwaha (the Applicants) applied for the consent (RAC Application) of the Respondent, Monash City Council (the Council) to a building permit application for a proposed design in respect of a front fence (Proposed Fence) to be built at 24 Olive Avenue, Mount Waverley (the Subject Land).
2. The Proposed Fence would be a metal infill front fence and gates having a maximum height of 1.5m in lieu of a front fence height of 1.2m required under reg 89 of the Building Regulations 2018 (the Regulations).
3. Under reg 89 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 this regulation.

1. On 10 February 2025, the Council refused consent, reasoning that:
   1. It is considered that the maximum fence height 1.5m does not take into account the prevailing heights of existing front fences within the immediate neighbourhood.
   2. The proposal does not comply with matters set out in the Ministers Guidelines.
   3. The height of the proposed front fence will likely result in the disruption of the streetscape.
2. On 3 March 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).
3. The Appeal was heard on 1 May 2025.
4. We have considered the parties' oral and written submissions and the material filed with the BAB.
5. We have also had regard to the applicable Decision Guidelines set out under the Minister's Guideline MG-12 (MG12) and in particular, Siting Requirement 16: Front fence Height (MG12-16), given it is a relevant consideration for the BAB to consider.
6. Based on these considerations we make the following findings.

1. MG12-16(a) requires a reporting authority to consider whether the Proposed Fence is required for the minimisation of noise intrusion.
2. In that regard, although we find that the Subject Land is within a neighbourhood that is proximate to the major thoroughfares, being Monash Freeway, Waverley Road and Huntingdale Road, the evidence by both parties indicates the Subject Land:

(a) is not bounded by these thoroughfares;

(b) in the case of Huntingdale Road, is nearly 100 metres away to the West; and

(c) in the case of Monash Freeway and Waverley Road, over 200 metres away to the South and North respectively.

1. Olive Avenue, which is where the Subject Land is situated, on the evidence of the parties, is an average, two-lane suburban street and with no other unique noise issues, such as being a route for buses.
2. The Applicant's evidence indicates they are seeking to reduce the ambient noise from the major thoroughfares, rather than direct traffic noise from Olive Avenue.
3. Relatedly, the design of the Proposed Fence consists substantially of open, wrought iron infill panels, which would prevent minimal noise intrusion, if any, from both direct and ambient noise.
4. In addition, the Applicants noted that the more sensitive rooms, being bedrooms are located on the first floor of the dwelling. It is unclear how the Proposed Fence on the ground would prevent noise intrusion from either direct or ambient noise into those rooms on the first floor.
5. Accordingly, on the balance of probabilities, we find that sub-clause MG12-16(a) does not apply as the additional height of the Proposed Fence of 0.3m above the required 1.2m height, will not and is not required to minimise noise intrusion into the Subject Land.

1. MG12-16(b) requires a reporting authority to consider whether the Proposed Fence height will result in a disruption of the streetscape.
2. In relation to this sub-clause MG12-16(b), the Respondent provided a fencing analysis of 16 allotments near the Subject Land, being 3 and 5 allotments either side of the Subject Land, and 6 closest allotments across the street from the Subject Land.
3. The Respondent's analysis indicates that:

(a) 13 out of the 16 allotments either have no fences or fences well below 1.2 metres, with the highest being at 1.1 metre; and

(b) of the 3 other fences above 1.2 metres, only two are above 1.5 metres, with the remaining fence 1.3 metres in height.

1. Using the above analysis, if the Proposed Fence is allowed, in our opinion, the height would disrupt the streetscape given a substantial majority of fences near the Subject Land are well below 1.2 metres in height.
2. Accordingly, on the balance of probabilities, we find that sub-clause MG-12-16(b) does apply, as the Proposed Fence's height would result in a disruption of the streetscape within the vicinity of the Subject Land.

MG12-16(c) - Consistency with Neighbourhood Character Objective

1. MG12-16(c) requires a reporting authority to consider whether the Proposed Fence height, setback and design is consistent with any relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme.
2. In that regard, the Applicant's position was the fences height, setback and design are consistent with the general neighbourhood character of the area, though they did not refer to any specific objective, policy or statement in the Council's planning scheme for the area.
3. Similarly, the Respondent's position was that there is no relevant neighbourhood character objective, and as such, in its view MG12-16(c) is not applicable.
4. Clause 15.01-5L - Monash Preferred Neighbourhood Character Statement (Cl15.01-5L) in the Monash City Planning Scheme contains specific objectives, statements and guidelines about front fences in all areas within Monash as well as specific guidelines about Garden City Suburbs Northern Areas, which the Subject Land is situated.[2]
5. Clause 15.01-5L relevantly provides as follows:

This policy applies to applications for development in a residential zone on land as shown on the Monash preferred neighbourhood character areas map forming part of this clause.

To build upon the important contribution that landscaping makes to the garden city character of Monash, and preserve and enhance the treed character.

• Maintain the character of open streetscapes and the pattern of low fencing [emphasis added].
• Retain views of the building from the street.

• Providing no front fence where that is characteristic of more than 75 percent of properties [emphasis added] in the immediate neighbourhood (immediate neighbourhood is the five properties on either side of a development site on both sides of the street including intersections).

1. Given the prevailing character of fencing of nearby and adjoining properties to the Subject Land is one of low (up to approximately 1.1metre) or no fencing, the Proposed Fence at 1.5 metres would appear inconsistent with both the existing and preferred character in the street.
2. Accordingly, on the balance of probabilities, we find that sub-clause MG-12-16(b) does not apply, as the Proposed Fence's height is not consistent with Clause 15.01-5L.
3. Having found that the Proposed Fence and its height do not meet any of the mandatory criteria of MG12-16(a), MG12-16(b) and MG12-16(c), it is unnecessary to consider the remaining discretionary criteria of MG12-16(d) and MG12-16(e).
4. In conclusion, we find that the Proposed Fence's height do not meet MG12-16 and accordingly, the Council's decision 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'.

[2] Monash Residential Character Areas Map, clause 15.01-5L - Monash Preferred Neighbourhood Character Statement, Monash City Planning Scheme.