APPLICANTS Daniel Brown and Jennifer Brown (Subject Land owners)

RESPONDENT Andrew Herbig (relevant building surveyor for Building Permit No. 2960734439628)

INTERESTED PARTY Michael Kunze (relevant building surveyor for Building Permit No. 6069654613481)

BEFORE Members J Shaw (panel chair) and H Van Ravenstein

CITATION Brown & Anor v Herbig [2025] VBAB 110

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

1. Pursuant to s 149(1)(b) of the Building Act 1993 (the Act), the decision of the Respondent to serve a building notice dated 18 February 2025 (Building Notice) is quashed.
2. Pursuant to s 149(4) of the Act, the Building Notice is cancelled.
3. 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.[1]

_______________________ ________________________

1. The Applicants own the land at 21 Mystic Lane, Bright (Subject Land).
2. In 2024, the Applicants wanted to carry out the following building work on the Subject Land:

a) carry out alterations and additions to the existing house on the Subject Land (Alterations); and > > b) have a pre-fabricated shed constructed on the Subject Land (Shed).

3. By a document titled 'Appointment of Private Building Surveyor' dated 17 July 2024,[2] the Respondent, Mr Herbig, was appointed as private building surveyor in respect of the Alterations and therefore became the relevant building surveyor (RBS) for that building work. While Mr Herbig's appointment in respect of the Alterations is not in doubt, there is a question as to whether he was also appointed, in July 2024, as the RBS in respect of the Shed.
4. A document titled 'Letter of Appointment' dated 11 September 2024 purported to appoint the Interested Party, Mr Kunze, as the RBS in respect of the Shed.[3]
5. It is this question as to whether Mr Herbig was also appointed as the RBS for the Shed that has led to the current proceeding. The relevant chronology is set out below, however Mr Herbig considered that he was the RBS for the Shed as well as the Alterations and therefore was surprised to find that the Shed had been constructed when he came to carry out the final inspection of the Alterations. As a result of finding that the Shed had been constructed, he served a building notice dated 18 February 2025 under s 106 of the Act (Building Notice)[4] on the Applicants, alleging that the Shed had been constructed in circumstances where he, as the RBS for that building work, had not received an application for a building permit for that work.
6. The Applicants submit that Mr Herbig was never appointed as the RBS for the Shed, and that Mr Kunze had been appointed to that role on 11 September 2024. Further, they submit that Mr Kunze had issued a building permit for the Shed, and that it had been constructed in accordance with that permit. Consequently, they submit that Mr Herbig does not have the power to serve the Building Notice, and as a result that the Building Notice should be cancelled.
7. The Applicants appealed to the Building Appeals Board (BAB) pursuant to s 142(1)(a) of the Building Act 1993 (Act) against Mr Herbig's decision to serve the Building Notice. The appeal was referred to us to determine

whether the Respondent was retained as a relevant building surveyor in respect of the garage outbuilding structure; and by extension, whether there has been as dual appointment of private building surveyors.[5]

1. As will be seen from our Reasons, we determine that Mr Herbig was not appointed RBS in respect of the Shed, and as such there has not been a dual appointment of private building surveyors. Given this conclusion, it is appropriate that the decision to serve the Building Notice is quashed and the Building Notice itself is cancelled, thereby disposing of the appeal.

1. The contract between the Applicants and their builder for the Alterations was dated 15 July 2024 and had a contract price of $133,590.31 (Contract Price).[6]
2. As noted above, the Applicants signed a document titled 'Appointment of Private Building Surveyor' dated 17 July 2024 appointing Mr Herbig private building surveyor in respect of 'alterations to existing dwelling' (First Herbig Appointment).[7] Mr Herbig states that this document was received by him on 26 July 2024.
3. The Applicants' builder, Greg Lingham, applied to Mr Herbig for a building permit by an application dated 22 July 2024 (First Alterations Application).[8] Mr Herbig states that he received this document on 26 July 2024. In that application, the nature of the building work was described as 'internal alterations to dwelling, newshed [sic], relocated carport' and the cost of the building work was stated to be $133,590.31.
4. However, on 27 July 2024, Mr Herbig states that he received a further document titled 'Appointment of Private Building Surveyor' (Second Herbig Appointment).[9] This document was also signed by the Applicants, and was also dated 17 July 2024. However, the description provided of the proposed building work to which the appointment related was:

Alterations to existing dwelling, relocated carport & new shed.

1. It is apparent that the Second Herbig Appointment is the same document as the First Herbig Appointment, except that the words 'relocated carport & new shed' have been added to the Second Herbig Appointment.
2. Also on 27 July 2024, Mr Herbig sent a letter to the Applicants confirming his appointment as the relevant building surveyor for:[10]

Alterations to Existing Dwelling, New Shed & Carport

1. By letter dated 30 July 2024, Mr Herbig notified the Municipal Building Surveyor of the Alpine Shire Council pursuant to s 80 of the Act that he had been appointed the RBS for the 'Alterations to Existing Dwelling, New Shed & Carport' on the Subject Land.[11]
2. As noted above, on 11 September 2024, Mr Kunze was appointed as the RBS for the Shed.
3. On 13 September 2024, Mr Herbig states that he received a revised application for a building permit from Mr Lingham. That application is also dated 22 July 2024, it also states that the contract price for the building work is $133,590.31, but states that the nature of the building work is 'internal alterations to existing dwelling' (Second Alterations Application).[12]
4. Mr Kunze issued a building permit for the Shed on 30 September 2024 (Shed Building Permit).[13] Accompanying the Shed Building Permit is a site photo that shows the Shed and the existing house on the Subject Land.[14]
5. Mr Herbig issued the building permit for the Alterations on 30 October 2024 (Alterations Building Permit).[15] Accompanying the Alterations Building Permit is a site photo that shows the existing house on the Subject Land but omits the Shed.[16] The Alterations Building Permit states that the cost of the building work is $133,590.00.

1. The issue to be determined in this appeal is whether Mr Herbig was appointed as the relevant building surveyor for the Shed. There is no dispute that each of the Alterations and the Shed was constructed with a building permit being in place. However, if Mr Herbig was the RBS for the Shed, then the Shed Building Permit should have been issued by him and not Mr Kunze.
2. As is clear from the chronology set out above, the confusion arises principally from the Second Herbig Appointment which states that Mr Herbig has been appointed RBS in respect of the Shed as well as the Alterations.
3. In the directions hearing in the BAB held on 20 May 2025, the Applicants stated that they had only signed the First Herbig Appointment, and that their builder, Mr Lingham, had added the words 'relocated carport & new shed' to the already signed document without their knowledge. At the same directions hearing, Mr Herbig acknowledged that the additional words 'may' have been added by Mr Lingham without knowledge of the Applicants, but that he, Mr Herbig, had accepted the document from Mr Lingham as agent of the Applicants in good faith, and consequently he considered that he had been duly appointed as the RBS for the Shed.
4. In accordance with orders made by the BAB on 4 June 2025, the Applicants filed and served evidence relevant to the above appointment documents. By an affidavit affirmed by Daniel Brown, the First Applicant, on 17 June 2025 (Brown Affidavit),[17] Mr Brown sets out his explanation for the differences between the First Herbig Appointment and the Second Herbig Appointment. Mr Brown states:

On the 17" July 2024, my wife, Jennifer Brown, and | signed a pre-filled form, provided by our builder, Greg Lingham (trading as Altered Dimensions), appointing Andrew Herbig as a Private Building Surveyor for "Alterations to Existing Dwelling" (filed as Attachment 3 to the Statement of Contentions I submitted to the BAB on 17/3/25).

This is the only form we, the owners, signed regarding Andrew Herbig's appointment as a PBS.

There is no mention of a shed in the form we signed to appoint Andrew Herbig.

We never signed any documentation to appoint Andrew Herbig as the building surveyor for a shed.

Altered Dimensions was not contracted to undertake any building work outside our existing dwelling.

Andrew Herbig issued me a Building Notice regarding my shed on the 18" February 2025. I discussed the matter with Greg Lingham, the builder who had worked on our existing dwelling. We were both confused as to why Andrew Herbig believed he had been appointed as a PBS for the shed.

On the 19th February 2025 I located the original, and only, form my wife and I had signed appointing Andrew Herbig as a PBS and sent a photo of the form to Greg Lingham. Greg asked to meet with me in person to discuss the matter on the 3 March 2025. At this meeting Greg advised me that on the 26" July 2024 he modified the appointment form my wife and I signed and dated on the 17" July 2024 and emailed it to Andrew Herbig without our knowledge or consent. Greg has provided a statement affirming this in Exhibit 1.

1. Exhibit 1 to the Brown Affidavit is an email to Mr Brown from Mr Lingham.[18] It states:

Further to our conversation regarding your appointment of the Private Building Surveyor Andrew Herbig of Impact Building Approvals.

I completed the details on the original form and emailed it to you on the 15/7/2025 for you and Jenny to sign, it was returned on the 17/7/2025. At that point I had only included the Alterations to Existing Dwelling, as the proposed building works on the form. This form was sent to Impact Building Approvals on the 24/7/2025.

I received a request for information letter from Impact Building Approvals on the 26/7/2025 requesting that the Private Building Surveyor Appointment form did not include all of the proposed building work. It requested the property owner to update to include all of the proposed works forming part of the application for a building permit. As I believed it was just a formality I updated and returned the form on the 26/7/2025 to Impact Building Approvals without you or Jenny's knowledge or consent.

Once again I apologies for doing, that and all the drama it has caused.

1. On the basis of the Brown Affidavit, we are satisfied that the Applicants signed the First Herbig Appointment, and that they were unaware of the additions made to the Second Herbig Appointment.
2. Section 78(1A) of the Act provides, inter alia, that a builder who has entered into a major domestic building contract 'must not appoint a private building surveyor on behalf of the owner of the land on which the domestic building work is to be carried out'. As such, it was not open to Mr Lingham to appoint Mr Herbig as the RBS for the Shed.
3. Further, each of the First Alterations Application, the Second Alterations Application and the Alterations Building Permit stated the value of the Alterations to be the same as the Contract Price, and Mr Lingham was only appointed under the contract to construct the Alterations.
4. For these reasons we find that Mr Herbig was only appointed the RBS for the Alterations, and not for the Shed.
5. Further, it follows, and we find, that Mr Kunze was appointed RBS for the Shed.
6. Accordingly, we find that there was no dual appointment of private building surveyors in respect of the Shed.
7. Section 107(1) of the Act provides that a private building surveyor may only serve a building notice under division 2 of Part 8 of the Act in respect of a building in relation to which the private building surveyor has been appointed to carry out a function under the Act. As Mr Herbig was not appointed as the RBS for the Shed, he did not have the power to cause a building notice pursuant to s 106 of the Act to be served on the Applicants.
8. Therefore, pursuant to s 149(1)(b) of the Act, we will quash the decision of Mr Herbig to serve the Building Notice on the Applicants. Further, pursuant to s 149(4) of the Act, the Building Notice will be cancelled.

[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'.

[5] Directions and Orders of the Building Appeals Board dated 4 June 2025.