APPLICANTS Nicole Rowe and Cliff Rowe (Subject Land owners)

CITATION Rowe & Anor v Knox City Council [2025] VBAB 131

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, Knox City Council dated 26 June 2025 refusing consent to construct a front fence height of 1800mm in lieu of 1200mm 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. On 23 April 2025, Nicole Rowe and Cliff Rowe (the Applicants) applied for the consent of the Respondent, Knox City Council, (the Council) to a building permit application for a proposed design in respect of a front fence to be constructed at 52 David Street, Knoxfield (the Subject Land).
2. The front fence would have a height of 1800mm in lieu of 1200mm 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 26 June 2025 the Council refused consent, reasoning that:
   • The proposed front fence does not comply with Decision Guideline Item A of Siting Requirement 16 (Minister's Guideline MG‐12), as it is intended to form part of a swimming pool/spa safety barrier.
   • The proposal fails to satisfy Decision Guideline Item C of Siting Requirement 16 (Minister's Guideline MG‐12). The proposed fence height is inconsistent with the Design Guidelines outlined in Clause 22.07‐4 of the Knox City Council Planning Scheme, which encourages the use of "no, low or transparent front fencing."
   • The proposal does not meet Decision Guideline Item D of Siting Requirement 16 (Minister's Guideline MG‐12), as the design and height of the proposed front fence are not in keeping with the prevailing character of front fences of neighbouring properties.
2. On 29 June 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 the papers' on 28 August 2025.
4. I have considered the parties' written submissions and the material filed with the BAB. I have also had regard to the applicable Decision Guidelines set out under the Minister's Guideline MG-12 (MG-12), given it is a relevant consideration for the BAB to consider. Based on these considerations I make the following findings.
5. The objective of Siting requirement 16: Front fence height in MG-12 is to ensure front fence design respects the existing or preferred character of the neighbourhood.
6. The proposed front fence is primarily required as a pool safety fence for a plunge pool in front of the house. The Applicants submitted that the plunge pool is to be in the front garden of the house due to access limitations to the rear garden area.
7. The Applicants submitted that the fence will occupy about one third of the frontage (6m of 20m) with the balance of the frontage having no fence. I find that a solid, 1.8m high front fence, even for 6m of the 20m frontage, fails to meet the objective of Siting requirement 16 and is inconsistent with prevailing fence heights, setbacks and fence designs in the area.
8. I find in relation to the decision guidelines in MG-12 as follows:

a) the fence is primarily for pool safety rather than noise intrusion. > > b) the fence will result in a disruption of the streetscape, as the streetscape comprises no front fences and front fences lower than 1.8m. > > c) the fence height, setback and design is inconsistent with relevant neighbourhood character objectives, policies or statements in Clause 22.07-4 of the Knox Planning Scheme which provides for no, low or transparent fencing. > > d) the fence will not be more appropriate taking into account the prevailing heights, setbacks and design of existing front fences on nearby allotments; and > > e) the slope of the allotment and or existing retaining walls or fences does not reduce the effective height of the fence.

9. As the proposed fence does not meet the objective of Siting requirement 16 nor any of the decision guidelines in MG-12, the decision of the Council is affirmed.