�Wang v Lewis [2025] VBAB 54;

INTERESTED PARTIES Yiyin Wang and Ancheng Zhang (Adjoining Property owners)

BEFORE Members J Shaw (panel chair) and E Morrison

Having considered all the submissions and information placed before it, the Building Appeals Board (the BAB) determines that:

1. Pursuant to s 149(1)(d) of the Building Act 1993 (the Act), the decision of the Respondent to refuse to cancel the building order dated 25 August 2024 (Building Order) is set aside and the BAB substitutes its own decision as follows:

(a) the application to cancel the Building Order in respect of the order to construct a retaining wall on or adjacent to the boundary between 14 William Street, Box Hill, Victoria, and 20 William Street, Box Hill, Victoria (retaining wall), is refused.

(b) the application to cancel the Building Order in respect of the order to reinstate the common boundary fence between 14 William Street, Box Hill, Victoria and 20 William Street, Box Hill, Victoria (boundary fence), is accepted.

(c) by reason of (a) and (b) above, and pursuant to s 149(4) of the Act, the Building Order:

(i) in respect of the order requiring the construction of the retaining wall is affirmed;

(ii) in respect of the order requiring the reinstatement of the boundary fence is cancelled.

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.

_______________________ ________________________

For the Applicant In person and Mr G Everest (assisting the Applicant)

1. The Applicant is the owner of the land at 14 William Street, Box Hill, Victoria (Subject Land).
2. The Respondent (RBS) is the relevant building surveyor appointed to carry out building surveying services for the construction of a two-storey house with garage on the Subject Land (Building Work).
3. The Interested Parties are the owners of 20 William Street, Box Hill (Adjoining Property), which adjoins the Subject Land on its northern boundary.
4. The RBS issued a building permit dated 18 February 2021 for the carrying out of the Building Work (Building Permit), and subsequent to the Building Work having been carried out, he issued an occupancy permit dated 13 March 2022 (Occupancy Permit).
5. On 25 August 2024, the RBS made a Building Order - Minor Work pursuant to s 113 of the Building Act 1993 (Act) (Building Order) requiring the Applicant to: 'complete works to the retaining wall' and 'reinstate the common boundary fence between 14 & 20 William Street Box Hill'.
6. By email dated 10 September 2024, the Applicant requested the RBS to cancel the Building Order, notwithstanding that she had not carried out the matters required by it. In that email, the Applicant stated that her request to cancel relied on two matters:

1. No retaining wall located in 14 William St Box Hill

1. Temporary fence has been erected by the adjoining owner, which is not my belonging.
2. The RBS refused to cancel the Building Order.
3. Pursuant to s 142(2)(c) of the Act, the Applicant appeals against the RBS's refusal to cancel the Building Order.

(a) the construction of a small retaining wall adjacent to the boundary with the Adjoining Property; and

(b) reinstatement of the common boundary fence between the Subject Land and the Adjoining Property.

1. The Applicant submits the that the retaining wall ordered to be constructed in the Building Order is not required by the Building Permit, and given that the Occupancy Permit was issued in March 2022, she should not be required to construct it.
2. The RBS, on the other hand, submits that the Building Work was constructed at a level approximately 480mm higher than permitted by the Building Permit. As a result of the Building Work having been constructed too high, he has determined that a small retaining wall is required adjacent to the boundary with the Adjoining Property.
3. During the hearing the Applicant conceded that the Building Work had been constructed higher than permitted by the Building Permit. However, she submitted that it was not possible to construct a retaining wall on the Subject Land as a result of that land being higher than the land on the Adjoining Property.
4. We reject the submissions made by the Applicant. It is clear that the Building Work was constructed higher than permitted by the Building Permit. A retaining wall is required to be constructed as a result. Therefore, we find that it was appropriate for the RBS to issue the Building Order ordering the construction of that retaining wall which is only required as result of the failure to construct the Building Work in accordance with the Building Permit. As the retaining wall has not yet been constructed, the Building Order should not be cancelled to the extent that it deals with the retaining wall.
5. We should also mention the Fences Act 1968 (the Fences Act), because it is relevant to the second issue ordered in the Building Order. The definition of 'fence' in the Fences Act specifically excludes 'any retaining wall'.[1] Therefore, the Fences Act does not cover the construction of the retaining wall ordered by the RBS in the Building Order.
6. Therefore, the Applicant's appeal against the RBS's refusal to cancel the Building Order in respect of the retaining wall is refused.

1. At the time the Building Permit was issued, a boundary fence existed on or near the boundary between the Subject Land and the Adjoining Property.
2. The Applicant submits that the Interested Parties removed the existing fence, and installed the temporary fence that now exists. The Interested Parties submit that the Applicant's father removed the existing fence.
3. Without making any finding as to who removed the fence and installed the temporary fence, the current fence along the boundary consists of a temporary panel fence, and a separate 'fence' consisting of roof sheeting has been constructed on the Adjoining Property side of the temporary fence (the temporary fence and the roof sheeting are referred to as the temporary fence).
4. It is apparent that the RBS is concerned about the safety of the temporary fence. Indeed, he submits that 'the fencing as presently manifested on site is a safety risk to the occupants and the public'.
5. The RBS also confirmed that the Building Permit was issued based on the existence of a fence on or adjacent to the boundary between the Subject Land and the Adjoining Property in order to comply with the 'Siting, Design and Access Requirements' contained in Part 5 of the Building Regulations 2018.
6. However, the temporary fence clearly falls within the definitions of 'fence' and 'dividing fence' in the Fences Act. Section 3 of the Fences Act provides:

(a) is located on the common boundary of adjoining lands (whether or not it is continuous or extends along the entire length of the adjoining lands); or

(b) is not located on the common boundary of adjoining lands, but the purpose of which is to separate adjoining lands (whether or not it is continuous or extends along the entire length of the adjoining lands);

fence means a structure, ditch or embankment, or hedge or similar vegetative barrier, that encloses or bounds land, and -

(i) any gate, cattle grid or apparatus necessary for the operation of the fence;

(ii) any foundation or support built solely for the support and maintenance of the fence;

(i) any retaining wall;

(ii) any wall that is part of a house, garage or other building;

1. The Fences Act provides procedures for, inter alia, dealing with the repair and construction of 'dividing fences',[2] including procedures for 'fencing works' and urgent 'fencing works',[3] as well as provision for an application to be made to the Magistrates' Court for appropriate orders.[4] The Fences Act also makes it clear that, as a general principle, the cost of providing a 'sufficient dividing fence' is to be borne equally by the owners of the adjoining properties.
2. Further, s 9(1) of the Fences Act provides that if an owner or person authorised by the owner damages or destroys a dividing fence otherwise than as authorised by that Act, the owner is responsible for the entire cost of works to repair the fence. In addition, s 12(1) of the Fences Act provides that 'fencing works' or any 'subsidiary works' must only be carried out in accordance with a 'fencing notice agreement', an order of the Magistrates' Court, otherwise in accordance with the Fences Act, or in accordance with an agreement between the relevant owners.
3. Notwithstanding the above provisions of the Fences Act, the temporary fence is also a structure which falls within the definition of 'building' in the Act, and it is also classifiable as a class 10b building under the Building Code of Australia. Therefore, there is clearly an issue as to how the Act, and the powers given to the RBS under the Act, interacts with the provisions of the Fences Act,
4. On the basis of the submissions made by the parties, it is clear that there existed a dividing fence between the Subject Land and the Adjoining Property prior to the carrying out of the Building Work. At some stage that fence was removed - either by a person or persons acting on behalf of the Applicant, or by the Interested Parties. That fence has been replaced by the temporary fence, and the temporary fence has been in its current form for a considerable period of time.
5. Further, the Applicant has given a fencing notice dated 28 October 2024 to the Interested Parties under s 13 of the Fences Act.
6. The fence on or adjacent to the boundary between the Subject Land and the Adjoining Property is clearly governed by the Fences Act. If its removal was carried out in contravention of s 12(1) of the Fences Act, or any other provision of that Act, then remedies are available within the Fences Act. Similarly, if the temporary fence is not a 'sufficient dividing fence' as defined in the Fences Act, then procedures for the construction of such a fence are contained in the Fences Act.
7. Without making a finding as to whether it was within the power of the RBS to make the Building Order with respect to the common boundary fence, we consider that to the extent the Building Order deals with this issue, it ought to be cancelled. It is apparent that there is a dispute between the Applicant and the Interested Parties as to the temporary fence, and the Applicant has taken the step of giving a fencing notice under the Fences Act. Given that the Fences Act provides for the resolution of such disputes, including by the Magistrates' Court if necessary, we consider that in the current circumstances it is appropriate that the parties resolve their dispute pursuant to the provisions of the Fences Act.
8. It is clearly of concern that the RBS considers that the temporary fence is a danger to the occupants of the Subject Land and the Adjoining Property. The Applicant and the Interested Parties clearly have duties to ensure that the fence between their properties is safe and does not represent a danger to the life, health or safety of any person. It is also of concern that the temporary fence appears to have been in place for over 2 years, however this gives us some comfort that any danger presented by the temporary fence is not imminent. It is in the interests of both the Applicant and the Interested Parties to have a 'sufficient dividing fence' constructed between their properties. If agreement cannot be reached, then it is open to either party to make an application to the Magistrates' Court in accordance with the Fences Act.
9. Further, in our view it is likely that, should the circumstances set out in s 102 of the Act exist, the Municipal Building Surveyor for Whitehorse City Council would have the power to issue an emergency order under Division 1 of Part 8 of the Act in respect of the dividing fence.
10. For the above reasons, we will cancel the Building Order to the extent that it deals with the temporary fence.
11. In order to give effect to our decisions in respect of the two parts of the Building Order, pursuant to s 149(1)(d) of the Act the Building Order will be set aside and we will substitute our own decision.

[1] Fences Act 1968, s 3, definition of 'fence', (b)(i).

[2] See Fences Act 1969, s 3 for definitions of words and phrases contained in inverted commas.

[3] Fences Act 1969, Part 3, Div. 1 and Div. 2.