APPLICANTS Paul McArd and Amy McArd (Subject Land owners)

SUBJECT LAND 36 Tobruk Crescent, Williamstown

CITATION McArd & Anor v Hobsons Bay City Council [2025] VBAB 104

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 Act), the decision of the Respondent, Hobsons Bay City Council, dated 30 April 2025 refusing consent to the proposed front fence to be constructed at a maximum height of 1.825m instead of 1.2m as required under reg 89 of the Building Regulations 2018 (the Regulations) is affirmed.

1. Pursuant to sch 3, cl 16(3) to the Act, liberty to apply on the question of costs, subject to such liberty being exercised within 14 days from the date of this determination/these determinations.[1]

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1. On 20 March 2025, Paul McArd and Amy McArd (the Applicants) applied for the consent of the Respondent, Hobsons Bay City Council, (the Council) to a building permit application for a proposed design in respect of a front fence to be erected/built at 36 Tobruk Crescent, Williamstown (the Subject Land).
2. The front fence would be constructed at a maximum height of 1.825 m instead of the required 1.2 m 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 30 April 2025 the Council refused consent, reasoning that:

In considering the relevant considerations contained within Minister's Guidelines MG/12:

• the fence is not required for the minimisation of noise intrusion; and
• will result in a disruption to the streetscape; and
• 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, and
• will not be appropriate taking into account the prevailing heights, setbacks and design of existing front fences on nearby allotments; or
• the slope of the allotment and or existing retaining walls or fences do not reduce the effective height of the wall.

1. On 21 May 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 (the BAB).
2. The Appeal was heard 'on the papers' on 17 July 2025.
3. I have considered the parties' written submissions and the material filed in the BAB. I have also had regard to the applicable Decision Guidelines set out under the Minister's Guideline MG-12, given it is a relevant consideration for the BAB to consider.
4. Based on these considerations I make the following findings:
5. The objective of the Guideline Siting Requirement 16 for front fence height is to ensure that the front fence design respects the existing or preferred character of the neighbourhood.
6. The proposed fence is a solid construction and although the Applicants cited some examples of fences of a similar height in the neighbourhood, the predominant character is not one of high solid fences. I find that the height and design of the proposed fence does not meet the objective for front fence height considering the existing character of the neighbourhood.
7. In considering the decision criteria in MG-12:

a) Criterion (a) - the Applicants cited 3 out of the 58 properties in Tobruk Crescent with fences over 1.8m high. Most nearby properties have low or no front fences. I find that the proposed fence will not be more appropriate taking into account the prevailing heights, setbacks and design of existing front fences on nearby allotments. > > b) Criterion (b) Tobruk Crescent is a residential street so the fence is not required for the minimisation of noise intrusion. > > c) Criterion (c) for the reasons stated in paragraph 11.a) above I find that the fence height will result in a disruption of the streetscape. > > d) In respect of Criteria (d) and (e) for Guideline Siting Requirement 16, I find the fence will not be more appropriate taking into account the prevailing heights, setbacks and design of existing front fences on nearby allotments and that effective height of the fence will not be reduced by the slope of the allotment nor by any existing fences or retaining walls.

8. Having regard to the foregoing, I find that the decision of the Council 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'.