CITATION Wu v Whitehorse City Council [2025] VBAB 80

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, Whitehorse City Council, dated 3 March 2025, refusing consent to a front fence that is within 3.0 metres of the street alignment at the front of the allotment to have a maximum height of 1.8 metres in lieu 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]

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1. On 28 January 2025, Yunuo Wu (the Applicant) applied for the consent of the Respondent, Whitehorse City Council (the Council) to a building permit application for a proposed design in respect of a front fence to be built at 57 Eley Road, Box Hill South (the Subject Land).
2. The front fence would be built within 3.0 metres of the street alignment at the front of the allotment with a maximum height of 1.8 metres in lieu of 1.2m as required under reg 89 of the 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 3 March 2025, the Council refused consent, reasoning that:

Council has utilised the Ministers Guidelines to conduct this assessment and the following determinations are provided:

1. the fence is required for the minimisation of noise intrusion; and - The proposed fence is located on residential street, which the requirements for noise minimisation is not applicable
2. the fence height will result in a disruption of the streetscape; and
3. 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

The City of Whitehorse's Housing & Neighbourhood Character Review (Garden Suburban Precinct 4) contains the following preferred neighbourhood character points:

To retain views to dwellings and gardens, and complement the predominant style of front boundary delineation in the street. and

Provide a low or open style front fence up to 1.2m in height, and constructed of materials appropriate to the dwelling style.

1. the fence will not be more appropriate taking into account the prevailing heights, setbacks and design of existing front fences on nearby allotments; or
2. the slope of the allotment and or existing retaining walls or fences reduce the effective height of the wall. - Not applicable

1. On 30 March 2025, the Applicant appealed the decision under s 144(1)(a) of the Building Act 1993 to the Building Appeals Board (BAB).
2. The Appeal was dealt with 'on the papers' on 15 May 2025
3. 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, given it is a relevant consideration for the BAB to consider. Based on these considerations I make the following findings.
4. Ministerial Guidelines are put in place to ensure that due consideration is given to report and consent applications, however, in some respects they also allow for discretion when determining such applications, as there are many situations when the elements of a property or neighbourhood are not necessarily uniform or there are particular needs that support variations.
5. In addition to the Ministerial Guidelines, there are a limited number of municipalities in the state, in which the Minister of the day, in effect, amended those guidelines to be more restrictive by way of a Neighbourhood Character Statement. In the case of Whitehouse Council, based on adopted Neighbourhood Character Studies and Statements, a particular provision has been changed in relation to the construction of front fences, placing additional restrictions on the maximum height of 1.2m rather than 1.5m which would normally be permitted. The rationale was that the Council and its community wished to maintain and enhance the open front yards of its community.
6. Therefore, having regard to the Minister's consideration to introduce this requirement, I have considered that the construction of such a fence, regardless of the inclusion of the open paling design, will not maintain the existing neighbourhood character or the preferred character as set out in the adopted studies and will disrupt the existing streetscape which is primarily characterised by open front yards.

[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'.