Building work has been carried out for the construction of a steel framed structure on the northern allotment boundary without a required building permit.

1. Following a number of representations made on behalf of the Applicant, the Respondent extended the show cause period of the building notice on six separate occasions with the final date for compliance with the requirements of the notice being 30 November 2022.
2. On 7 December 2022, the Respondent made a building order on the Applicant pursuant to s 111 of the Act. The building order required that -

by 5:00pm on 6 February 2023, the owner of the building must carry out building work to demolish the steel framed structure on the northern allotment boundary constructed without a required building permit.

1. Following the making of the building order by the Respondent, the Applicant commenced an appeal dated 5 January 2023, pursuant to Section 142(2)(a) of the Building Act 1993 (the Act), against the making of the building order.
2. On 16 May 2023, the hearing of the appeal was stayed due to an unrelated matter where there was an appeal to the Court of Appeal relating to the scope of building orders under the Act. On 19 January 2024 the stay was lifted.

1. On 5 January 2023, the Applicant initiated proceedings appealing the making of the order pursuant to section 142(2)(a) of the Act.
2. The Applicant submitted that the Screen:

(a) did not require a planning permit;

(b) has received certificates of compliance for the purposes of the Act; and

(c) is consistent with the Minister's Guideline MG-12 - Siting and Design of Single Dwellings issued June 2006 (MG-12).

Issues for consideration by the Building Appeals Board (BAB)

1. The Applicant raised three issues for consideration by the BAB:

(a) is there compliance with MG-12, relevantly, having regard to:

(i) whether the setback of the Screen will be more appropriate taking into account the prevailing setback of existing buildings on nearby allotments;

(ii) whether the setback is more appropriate taking into account the preferred character of the area;

(iii) whether the Screen impacts on a secluded private open space of the Adjoining Property;

(iv) whether the setback is consistent with any neighbourhood character objectives, policies or statements in the Stonnington Planning Scheme;

(b) how should the BAB approach the claimed security issues arising from the location of the screen; and

(c) should the Screen remain in place, given the relevant circumstances.

(a) relied upon the expert report of Glossop Town Planning dated April 2023;

(b) submitted that the setback of the Screen is appropriate within the context of its locality; and

(c) submitted that the Screen results in an acceptable amenity outcome having regard to neighbourhood character issues.

1. The Applicant noted that the security issues that were raised by the Consulate in relation to the Screen were not supported by expert opinion.
2. The Applicant noted that, to the extent that the BAB may find that security is an issue that is relevant for consideration in the proceeding, the north side of the screen could be clad so that it is not climbable.
3. The Applicant further noted that she would be pleased to discuss further with the Interested Party how such cladding could be designed and resolved.[1]
4. The Applicant submits that she should be entitled to retain the screen and that the order should be cancelled.

1. The MBS submits that the relevant process was not followed and the Applicant failed to obtain a building permit for the Screen and also failed to seek report and consent to the design of the Screen from the Council. The Applicant in 2018 was aware that the proposal would not be supported at 1.8 m from the allotment boundary, after seeking input from the Consulate, yet proceeded to construct the projector screen 0.2 m from the allotment boundary.
2. If the correct process to obtain Council's report and consent had been followed, the application for report and consent would have been accompanied by comments from the affected adjoining property owner.
3. If comments did not accompany the application, Council would have advertised the design to the owners of the affected adjoining allotment.
4. If a submission were received regarding the detriment suffered by the Consulate, Council would have carefully considered those concerns and it would have refused to issue a report and consent.
5. The Applicant has, in part, based its submissions for retention of the proposed Screen on the setback and height of the privacy screen not resulting in any significant impact on the amenity of the adjoining property.
6. The MBS noted that, consistently with the submissions of the Consulate, there were amenity impacts on the Consulate due to the Screen reducing the level of security for the Consulate and the Screen's visual impact.
7. The MBS also submitted that the height of the proposed screen far exceeds the height of a screen that would adequately prevent 'overlooking' consistent with reg 84 of the Regulations (overlooking).
8. The proposed 6.8 m high screen exceeds the setback specified in reg 90 of the Regulations (1.96 m) by 1.76 m.
9. Applying the matters outlined in MG-12:

(a) the setback of the Screen will not be more appropriate taking into account the prevailing setback of existing buildings on nearby allotments;

(b) the setback is not more appropriate taking into account the preferred character of the area, where it has been identified in the relevant planning scheme;

(c) the slope of the allotment and/or existing retaining walls or fences do not reduce the effective height of the building, in fact as noted by the Applicant, the ground level on the Adjoining Property is lower, which is increasing the effective height of the Screen when viewed from that allotment;

(d) the building does not abut a side or rear lane;

(e) the building is not opposite an existing wall built to, or within, 150mm of the boundary;

(f) the setback will result in a significant impact on the amenity of the secluded private open space of an existing dwelling on a nearby allotment; and

(g) no building envelope has been approved under a planning scheme or planning permit and/or included in an agreement under s 173 of the Planning and Environment Act 1987; and

(h) the setback will not result in a disruption of the streetscape; and

(i) the setback is inconsistent with the relevant neighbourhood character objective, policy or statement set out in the relevant planning scheme. The subject allotment is located within the Garden Estate Neighbourhood Precinct. The preferred character of the precinct is to be achieved by maintaining and reinforcing the rhythm of spacing between and around buildings through planting around the perimeter of site. The size and form of the Screen is inconsistent with this preferred character.

1. On 4 June 2019, following a meeting between the Consulate and Mr Rostein (husband of the Applicant), the Consulate sent a letter to Mr Rostein that reaffirmed the position that the Consulate would not support the proposed projector screen.
2. At the time, the Consulate understood that the Applicant's application for the projector screen was discontinued.
3. It appears that, in December 2021, the Applicant constructed the Screen in a similar location and with similar dimensions as the 2018 outdoor projector screen proposal, without a building permit required by the Regulations and the Act.
4. On 8 December 2021, the Council inspected the Subject Land and issued Building Notice BENF21/0264. The Building Notice required the Applicant to show cause why they should not be required to remove the Screen.
5. On 26 December 2021, the Consulate sent a letter to the Applicant requesting the Screen be removed. The Consulate's security team was concerned that the Screen increased security risks to the Consulate, including the risk of intrusions to the Consulate's residence.
6. The Screen required a building permit in accordance with the Regulations and the Act.
7. The Applicant constructed the Screen:

(a) without the required building permit;

(b) in non-compliance with the setback distance requirements provided in reg 90 of the Regulations; and

(c) knowing that the Consulate did not support the proposed works.

1. Section 16 of the Act creates an offence for carrying out building work, unless the work is carried out in accordance with the Act, Regulations and a building permit.
2. In the decision in Torcasio v City of Glen Eira[2], the BAB held that:
   1. There are significant penalties which may be imposed if a person is found guilty of breaching s 16 of the Building Act 1993. This reflects the gravitas of that provision and the importance of compliance.
   2. It is the Board's view that the purpose and objects of the Building Act 1993 are undermined if building work, undertaken without a building permit, was permitted to stand. In the present case, allowing the appeal effectively avoids having to comply with s 16 of Building Act 1993. Absent any special circumstances, this is not a desirable outcome.
3. Similarly, the BAB In the matter of 113 Stoney Creek Road, Beaconsfield[3] determined that:
   1. We are of the view that undertaking work contrary to a building permit, that is undertaking illegal unapproved work is not a sound reason to modify the building regulations as it is not in the public interest to retrospectively approve unlawfully constructed building work. This view is consistent with the position taken in BAB matter 441802 - 7 Rosella Street, Murrumbeena.
4. The Consulate submitted that these cases are relevant to the BAB's consideration of the matters before it in this proceeding.
5. The Consulate disagreed with the Applicant's assertion that the Screen satisfied MG-12. MG-12 provides that a reporting authority may provide its consent to an application for a building permit for a single dwelling if, amongst other things:

a) the setback will be more appropriate taking into account the prevailing setback of existing buildings on nearby allotments; or > > b) the setback will be more appropriate taking into account the preferred character of the area, where it has been identified in the relevant planning scheme; or

1. the setback is consistent with any relevant neighbourhood character objective, policy or the statement set out in the relevant planning scheme.

1. The Consulate noted that the Applicant's submissions referred to clause 22.23 of the Stonnington Planning Scheme (Planning Scheme) with respect to neighbourhood character policy.
2. Clause 22.23 provides the neighbourhood character policy for the Subject Land and Adjoining Property. The objectives of Clause 22.23 are:
   • ● To ensure that development (including subdivision) and works contribute to the preferred character of the area.
   • ● To ensure that development (including subdivision) and works reflect the intention of the statement of preferred neighbourhood character and design guidelines for each precinct.
3. The Subject Land and Adjoining Property are situated within the 'Garden Estate (GE) Precinct'.
4. The character statement for the Precinct Garden Estate seeks the following:

Precinct Statement of preferred neighbourhood character

The Garden Estate character precinct comprises large, high quality buildings set within spacious, landscaped gardens. Generous front and side setbacks allow space for substantial planting and canopy trees, which reinforces the leafy character of the precinct and contributes to the Yarra River landscape setting. New buildings or additions offer innovative and contemporary design responses while complementing the key aspects of building form and scale of the precinct.

Where adjoining the Yarra, buildings address both the street and the River. While many properties have high front fences, these are designed to incorporate some visually permeable elements or landscaping.

Areas within a Residential Growth or Mixed-Use Zone or within a substantial change area will accommodate more development with a more compact setting but with space for canopy trees and other vegetation and high quality, responsive design.

1. The design guidelines for the Garden Estate Precinct are provided at Clause 22.23-4 of the Planning Scheme.
2. Row four of the Garden Estate Precinct design guidelines is reproduced below (emphasis added in bold):

To encourage a high quality of building detailing that references, without mimicking, the details of buildings in the area.

New buildings should respond to the streetscape character in an innovative and contemporary manner.

Articulate the facades of buildings with the use of recesses, verandahs, balconies, window openings and variations in materials and colours.

Building materials, finishes and colours that are in stark contrast with the character of the streetscape.

1. The Consulate, with supporting photographs, submitted that the Consulate enjoys a well landscaped, spacious and highly vegetative garden consistent with the Garden Estate Precinct.

1. The Screen is 6.8 m high, 6.5 m wide and within 1960 mm from the boundary fence. The Consulate submitted that the Screen has a blank solid façade on the side which faces the swimming pool in the Subject Land and a black steel frame on the other side, which faces the Adjoining Property.
2. Therefore, the Screen presents an unarticulated structure that the Planning Scheme states should be avoided in the Garden Estate precinct.
3. In addition, the Consulate submitted that the Screen creates significant visual bulk and has a high visual impact on the spacious, well landscaped gardens of the Adjoining Property. Therefore, the Screen is in stark contrast with the character of the neighbourhood for the Garden Precinct which the Planning Scheme states should also be avoided in the Garden Estate precinct.
4. Therefore, the Screen is not consistent with the neighbourhood character policy provided in Clause 22.23 of the Planning Scheme.

1. The letter from Retrospective Building Solutions engaged by the Applicant provided that:

Building Regulations 2018/Stonnington Planning Scheme - the structure is considered a privacy screen and within the context of Part 5 of the Building Regulations 2018 is subject to the requirements of Regulation 90 which requires the 6800mm high screen to be sited 1960mm from the northern property alignment which bounds the tennis court on the adjoining property. As the privacy screen is sited less than the required setback a request will be made for the favourable comments of the Municipal Building Surveyor to permit the structure to maintain its as constructed configuration.

1. The pictures and drawings in the Consulate's submission show that the Screen is very close to the shared fence between the Subject Land and the Adjoining Property.
2. The Consulate objected to the reduction in the setbacks because it would cause an unreasonable detriment to amenity and increased risk to property.

1. The Consulate submitted that the large dimensions and bleak appearance of the Screen creates a visual bulk from the Adjoining Property's serene gardens and private outdoor recreational and entertaining space.
2. Therefore the Screen causes a significant and unreasonable reduction in the amenity of the private gardens of the Adjoining Property taking into account the preferred character of the area, as required by MG-12.

1. The Consulate also submitted that the close proximity of a large screen to the shared fence increases the risk of damage to the Consulate's property and people enjoying the gardens because the Screen could become damaged, unstable or broken and fall onto the Consulate's property.

1. The Consulate frequently hosts diplomatic events and international dignitaries at its residence. The Consulate also undertakes work at its residence that is highly confidential in nature and often involves sensitive information regarding foreign affairs and diplomatic relations.
2. Therefore, the Consulate takes all measures necessary to eliminate, or reduce as far as practicable, security risks to the Adjoining Property.
3. The Consulate submitted that the Screen increases the security risks to the Consulate because the Screen allows strangers to easily enter into the Consulate's residence by using its supports as a scaffold.
4. This is particularly concerning because the Consulate has experienced several intrusions in the past. For example:

(a) in January 2019, a security report indicated that an intruder entered the Consulate's backyard by crossing over the fence of the Subject Land where the Steel Frame Structure is now located; and

(b) in May 2019, an intruder climbed a fence and entered into the Consulate's backyard.

1. Paragraph 7 of the Applicant's Statement of Contentions states:

By way of a letter dated 13 May 2022, the Council confirmed that a planning permit is not required for the Privacy Screen based on the information submitted to the Council by the Client's town planning consultant, Louis Petrentsis of Priority Planning Pty Ltd.

1. However, in the letter dated 13 May 2022, Council also noted that:

... this advice is based on the information as submitted and is preliminary in nature. The advice is provided on an informal basis and other issues may arise when a full assessment is undertaken as part of a formal planning permit application.

1. The Consulate submitted that it was unclear whether the Applicant is planning to lodge a formal planning permit application to Council, which would confirm whether a planning permit is required for the Screen. Until then, the Consulate understands Council's advice from 13 May 2022 remains preliminary in nature and should not be considered as final confirmation that a planning permit is not required.

(a) the Building Order should be affirmed and the Screen must be demolished, and

(b) if the Applicant wants to re-construct the Screen, they must do so in accordance with the required permits and authorisations.

1. Before assessing the terms of MG-12, it is important to outline how the guidelines would have applied if the Applicant followed the required process.
2. In particular, we note that Council could have refused to issue report and consent to the design even if the application was consistent with MG-12. This is because MG-12 sets out requirements that must be satisfied in order for the Council to provide the report and consent. It does not require Council to provide consent if the application is consistent with MG-12.
3. Although MG-12 is not binding on the BAB, the guidelines are given significant weight by the BAB, given that they are reasonable and principled guidelines and it is desirable for the BAB to promote consistency within the decision making framework under the Act. All parties encouraged us to consider and apply MG-12.
4. Further, given conflicting statements regarding the purpose of the Screen, we find that the Screen the subject of the building order was constructed to serve as a cinema screen and was not constructed with the intention that its primary function is a privacy screen. However, for the reasons noted below, we would have affirmed the requirement to demolish the Screen irrespective of whether it was principally built as a screening device or a cinema screen.
5. After careful considerations of all of the submissions of the parties, we have made the following further findings:

a) In accordance with the provisions of s 16 of the Act, the Screen required a building permit be issued prior to the commencement of construction. The failure to have a permit in place prior to commencement therefore contravened the Act. > > b) Section 16(2) of the Act also provides that a person must not carry out building work unless the work is carried out in accordance with this Act, the Regulations and the building permit issued in relation to that work. > > c) The Screen does not comply with the siting requirements of reg 90 of the Regulations and the Screen therefore also contravened the Regulations. This contravention is also a contravention of s 16(2) of the Act. > > d) The certificates are relevant to this case, because the BAB would want to be satisfied that the Screen is safe if it remained in place. However, structural integrity is not the only relevant consideration and the Building Order was not granted on the basis of the Screen being unsafe. > > e) The panel is satisfied that Applicant was aware of the requirement for a building permit to be issued prior to commencing construction and that reg 90 of the Regulations was applicable to the siting of the building work. > > f) The Applicant has not satisfactorily explained why the Screen was constructed without a required building permit. > > g) There is no power for the Council to consider or decide a retrospective application to modify the requirements of reg 90 in relation to the height and setback (siting) of the cinema screen. > > h) Given the flagrant disregard of the regulatory framework, the BAB would have affirmed the requirement to demolish the Screen even if it appeared that the Screen was consistent with MG-12. It would have been contrary to the public interest for the BAB to, in effect, encourage people to intentionally ignore the requirements of the Act and the requirement to apply to Council for a report and consent.

1. However, for the sake of completeness, we have carefully considered MG-12 and their relevance to this case:

(i) The provisions of MG-12 do not apply to the siting of the screen with respect to reg 90. Notwithstanding, we agree that MG-12 provides guidance to this type of structure and that MG-12 is a relevant consideration in considering the appropriateness of the siting of the Screen. > > (ii) we are of the view that the siting and height screen is inconsistent with MG-12, in that: > > 1. the setback of the Screen will not be more appropriate taking into account the prevailing setback of existing buildings on nearby allotments; > 2. the slope of the allotment and or existing retaining walls or fences do not reduce the effective height of the building; > 3. the building does not abut a side or rear lane; > 4. the building is not opposite an existing wall built to or within 150mm of the boundary; > 5. the setback will result in a significant impact on the amenity of the secluded private open space of an existing dwelling on nearby allotments; and > 6. no building envelope that has been approved under a planning scheme or planning permit and or included in an agreement under section 173 of the Planning and Environment Act 1987;

6. The panel finds that the building order dated 7 December 2022 has been issued by the MBS properly and in appropriate circumstances and that it is appropriate to require the Applicant to demolish the Screen.
7. The only aspect of the building order that needs to be changed relates to the date when the works need to be undertaken by the Applicant. The building order should be varied so that the due date for compliance with the building order is 9 May 2025.

[1] The Applicant appropriately acknowledged in the hearing that her engineering reports do not consider the implications of applying the additional weight of cladding to the structure in its existing form.