1. As a result of the Form 6, the Interested Parties' architect, Sally Draper Architects (SDA), served on the Applicant a Form 7 dated 20 January 2025 setting out the proposed protection work (Form 7). The Applicant responded to the Form 7 with a Form 8 dated 24 January 2025 (Form 8), wherein she stated that she disagreed with the proposed protection work and also requested further information. The principal area of concern in relation to the required protection work is in respect of the construction of a new brick wall on top of an existing brick wall on or adjacent to the boundary between the two properties towards the rear of the properties (New Wall).
2. After requesting and receiving further information, the RBS made a determination dated 7 March 2025 pursuant to s 87 of the Act that the proposed protection work was appropriate (Original Form 9).
3. In Building Appeals Board (BAB) case no. 456547, the Applicant appealed against the Original Form 9 (the 456547 Proceeding). In the 456547 Proceeding, we determined, relevantly:
   1. We find that the proposed protection work involving the placement of ply sheeting on the roof of the lean-to is an appropriate solution to the risk of debris falling onto that roof during the carrying out of the Building Work. However, we also find that an assessment should be carried out to determine whether any measures are required to protect the flue from the hot water system on the Adjoining Property from damage. Further, consideration should be given as to whether the ply sheeting needs to be secured in any way to prevent it becoming dislodged in high winds.

1. In our view the protection work should address the overhead protection of the Adjoining Property more broadly, rather than just in the area of the roof to the lean-to. In particular, it should address the Applicant's concerns about the protection of people using the open space at the rear of the Adjoining Property. It appears that such protection can be achieved by the installation of a vertical or near-vertical barrier on or adjacent to the boundary. For this reason, pursuant to s 149(1)(d)(ii) we will set aside the Form 9 and remit the decision to the RBS for reconsideration taking account of our recommendation as set out in this paragraph.
2. It appears that following the orders setting aside the Original Form 9 in the 456547 proceeding, the Interested Parties' agents prepared a revised Form 7 dated 3 July 2025 (revised Form 7), a document titled 'Protection Work - Working Method Description' dated 1 July 2025 prepared by SPR Constructions (Vic) Pty Ltd (Revised Protection Work Statement), and a drawing dated 2 July 2025 titled 'Proposed Protection Works Method Statement Explanatory Diagrams'. The Revised Protection Work Statement stated as follows:

Note: Clause references refer to the Determination & Orders

of BAB Appeal Case Number 456574 determined on 27/06/2025.

The building of the first-floor boundary wall at 547 Royal Parade Parkville would be built in such a way as to avoid the need to work in the neighbouring property at 549 Royal Parade Parkville.

1. To minimise disruption to the adjoining owner, protective sheets will be laid on the lean-to roof instead of the protective scaffold initially proposed. Access for approximately 30mns would be required to 549 Royal Parade Parkville to lay 2 sheets of ply on the lean-to roof as protection to catch the droppings of mortar or small chips from the brick work. If access is not granted, we would endeavour to undertake the work as cleanly as possible but cannot guarantee no mortar or chip droppings.

• Sandbags will be used to secure the ply sheets from high winds.
• A protective metal mesh cage will be installed to protect the flue and be secured to the ply sheets

• A framed vertical barrier will be installed to provide overhead protection in the area west of 549s lean-to

roof in the zone of works above existing wall height. A ply sheet covering will be installed from within 547

brick wall works, with a shadecloth covering elsewhere. The barrier will be installed from within 547 boundary.

1. Once the protection is installed, the timber stud wall on the first floor would be built from within 547 Royal Parade. Initially every 2nd stud will be left out to allow access for bricklayers.
2. The stud wall will be raised and temporary propping installed to brace the wall from 547's existing structure, within the site boundary.
3. The brickwork would be laid overhand on to a protective damp proof course, and progressively tied into the timber stud frame with brick ties. As the courses are laid additional ties will also be fitted for final tieback to the studs to be installed later.
4. To avoid the potential for damage to the party wall, a construction joint will be formed at the junction between the existing party wall and the new brickwork wall. Expansion ties and flexible sealant will be installed within the boundary of 547.
5. Once the brickwork is completed, the additional studs will be installed and the additional brick ties fixed to the studs.
6. Once the timber framing is completed and tied into the final structure, the temporary propping will be removed.
7. Final access for approximately 30mins would be required to 549 Royal Parade Parkville to retrieve protection and allow clean up.
8. In response to the revised Form 7, the Applicant provided a Form 8 Protection Work Response Notice dated 9 July 2025 (July Form 8), in which she disagreed with the protection work set out in the revised Form 7, and also requested further information. The July Form 8 provided the following reasons why the Applicant disagreed with the revised Form 7, and set out the additional information sought as follows:

B. Disagree with the proposed protection work for the following reasons:

• Neither the protection work proposed not the decision made by Shane Merrick (RBS) is for the protection of my property.
• Therefore, I must formally, and in the strongest possible terms, object to this decision made by Shane Merrick (RBS) dated 3 July 2025.
• Shane Merrick (RBS) failed to correctly comply with the VBA protocol.
• Furthermore the protection work notice issued by Shane Merrick (RBS) on 3 July 2025 must be construed to be in bad faith.

• Provide all the documents you have relied upon to arrive at the proposed protection work described in your form 6 and form 7 dated 3 July 2025.
• Including but not limited to file notes, working documents methodology and professional advice that you have requested from properly qualified experts.
• Without all the documents requested I will be further disadvantaged if any consultation should be requested by any party.

1. It appears that the RBS made two determinations pursuant to s 87 of the Act - one dated 7 July 2025 (7 July Form 9), and another dated 10 July 2025 (10 July Form 9). In both determinations, the RBS determined that the proposed protection work is appropriate.
2. The Applicant appeals pursuant to s 141(a) of the Act.

1. In the Applicant's Statement of Contention dated 14 September 2025, the Applicant submits that the 'decision contained in the [7 July Form 9] raises a fundamental question as to the validity of the administrative process by which it was issued'. The Applicant submits that because the Original Form 9 had been set aside in the 456547 Proceeding, the 'process...is deemed never to have existed in law'. Further, the Applicant submits that the Respondent has failed to identify a legal basis upon which he purported to reinstate a process previously quashed.'
2. These submissions appear to misunderstand the nature of the orders made in the 456547 proceeding. In the 456547 proceeding, the decision of the RBS as recorded in the Original Form 9 was set aside and remitted back to the RBS for reconsideration in accordance with the recommendations made in the 456547 proceeding. That order was made pursuant to s 149(1)(d)(ii) of the Act. It was not an order to, for example, quash the decision under appeal under s 149(1)(b).
3. In the context of an arbitration award being set aside by a Court, Murphy J explained that the arbitrator would no longer be functus officio in Alvaro v Temple:[2]

[68] An order for setting aside or remitter revives the jurisdiction of the original arbitrator to the extent that the order, on its proper construction, so provides: Interbulk Ltd v Aiden Shipping Co Ltd (The "Vimeira" (No 1)) [1985] 2 Lloyd's Rep 410.

[69] There is Australian authority to the effect that if an award is ordered to be wholly set aside, then absent any other indication in the order, the award is deprived of all legal effect, the arbitrator reverts to his status immediately before the award was determined, the arbitrator is no longer functus officio, and the arbitrator thus remains seized of the reference: Re Scibilia & Lejo Holdings Pty Ltd Arbitration [1985] 1 Qd R 94 at 97 and 102.

1. In our view, these principles are equally applicable to the power of the BAB to set aside and remit the RBS's decision required pursuant to s 87 of the Act. Once the Form 8 was served on 24 January 2025 disagreeing with the proposed protection work in the Form 7, the RBS was required, pursuant to s 87(1) of the Act, to 'examine the proposal for protection work and determine the appropriateness or otherwise of the work'. That determination was made in the Original Form 9.
2. Because the Original Form 9 was set aside in the 456547 proceeding and remitted back to the RBS for reconsideration, there was no requirement for the entire protection work process to commence again. Using the language of Murphy J in Alvaro v Temple,[3] the RBS 'reverts to his status immediately before' he made the original determination pursuant to s 87 of the Act as recorded in the Original Form 9. The effect of remitting the decision to the RBS was to require him to reconsider it, and decide again pursuant to s 87 of the Act.
3. While the revised Form 7 and associated documents make changes to the proposed protection work to take into account the recommendations made in the 456547 proceeding, our view is that this additional information does not have the effect of re-commencing the protection work process under Part 7 of the Act. It provides the RBS with additional information in respect of the proposed protection work in order for him to reconsider the decision as required by the orders in the 456547 proceeding.
4. As such, we find that the 7 July Form 9 was a valid exercise of the RBS's power pursuant to s 87 of the Act after the Original Form 9 had been set aside and remitted to him in the 456547 proceeding. By reason of s 87(3) of the Act, there was no obligation on the part of the RBS to give the Applicant a 'hearing' in respect of that additional information.
5. It appears the RBS intended to withdraw the 7 July Form 9 and replace it with the 10 July Form 9 as a consequence of having received representations from the Applicant in the form of the July Form 8. In this respect we note the RBS's submission in his Statement of Contentions dated 19 September 2025 that:

For clarity, the form 9 being appealed is dated 10.07.25 and was issued after receipt of the form 8 response from the applicant.

1. There is no dispute that the Applicant and the Interested Parties received the 10 July Form 9. Notwithstanding that the RBS was not obliged to provide a hearing to the Applicant,[4] we are of the view, and find, that the 10 July Form 9 replaced the 7 July Form 9, and also was a valid exercise of the RBS's powers pursuant to s 87 of the Act following the orders made in the 456547 proceeding.
2. However, if we are wrong about the effect of the revised Form 7, and if, contrary to our findings above, it did recommence the protection work process, then we make the following alternative findings. In response to the revised Form 7, the Applicant served the July Form 8. Although the 7 July Form 9 appears to have been made prior to receipt by the RBS of the July Form 8, the RBS rectified any prejudice to the Applicant by taking into account the July Form 8 and thereafter making the 10 July Form 9. We find in those circumstances that the 10 July Form 9 replaced the 7 July Form 9, that it was a valid exercise of the RBS's power pursuant to s 87 of the Act.
3. We also note that each of the 7 July Form 9 and the 10 July Form 9 come to the same conclusion in respect of the proposed protection work, namely that it is appropriate.
4. In respect of the substantive issues raised objecting to the 10 July Form 9, the Applicant submits, inter alia, that:

(a) amendments made to the protection work set out in the revised Form 7 are 'minor', and the proposed protection work does not adequately protect those accessing the rear entrance, laundry, toilet, or clothesline and back yard from items falling from the building work;

(b) the proposed protection work set out in the revised Form 7 fails to protect against silica dust, falling object and 'hazards arising over the extended construction period';

(c) reliance on access to the Applicant's lean-to roof for the installation of ply sheeting and sandbags should not be permitted as 'safer and more appropriate methods exist';

(d) the Interested Parties and the RBS have ignored alternative proposals submitted by the Applicant 'involving steel props and sliding track to mount the ply sheets with catch trays on the 547 side of the boundary wall, which would provide a genuine physical barrier and better compliance with OH&S and WorkSafe requirements'.

1. In the RBS's Statement of Contentions dated 19 September 2025, the RBS submits inter alia that:

(a) silica dust will be mitigated by cutting and mixing works being done outside the first floor level with appropriate equipment such as a wet saw;

(b) vertical ply sheeting proposed by the Interested Parties will act as sufficient protection against falling debris;

(c) there should be no reduced enjoyment for the Applicant of her property 'outside of what any standard building works may cause for a very limited time'.

1. The RBS also submits that the proposed protection work adequately minimises the risk of damage to the Applicant's property, and notes that the mandatory inspection requirements provided by the Act will 'ensure that the works are checked at the required stages to ensure building compliance and safe practices. The method includes building the brick wall after a timber frame has been constructed and inspected. This timber frame will be used to attach the bricks via brick ties...'.
2. We accept the submissions made by the Respondent. The extent of building work required on or adjacent to the Adjoining Property is limited to the New Wall. As we found in the 456547 proceeding, generally the protection work the subject of the Original Form 7 was appropriate, with the exceptions set out in the reasons accompanying that determination. We find that the revisions to the proposed protection work as set out in the revised Form 7, and as recorded in the 10 July Form 9, are appropriate to protect the Adjoining Property from the risk of significant damage.
3. Therefore, the decision of the RBS as set out in the 10 July Form 9 will be affirmed.

[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'.

[2] [2009] WASC 205, [68-69], cited with approval in ABB Service Pty Ltd v Pyrmont Light Rail Company Ltd [2010] NSWSC 831; (2010) 77 NSWLR 321, [96].

[4] See s 87(3) of the Act.