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). Included with the Form 7 were, inter alia:

a) a covering letter dated 17 January 2025 from SDA; > > b) the Form 6; > > c) the Form 7; > > d) a document dated 18 December 2024 prepared by the Interested Parties' builder, SPR Constructions (Vic) Pty Ltd titled 'Protection Work Statement' (Protection Work Statement);[2] > > e) a drawing of, inter alia, the Subject Land and the Adjoining Property, annotated by hand to indicate the proposed protection work; > > f) architectural and engineering drawings.

2. The Protection Work Statement stated that the protection work was to be as follows:

Protection works for demolition overhead will be via scaffold and planks

Demolition to ground and first floor constructions will be done by hand and all bracing to be done will form a safe work site and safe party walls.

Temporary fencing to front and back of property at 547 Royal Parade Parkville and the sideway of 545 Royal Parade Parkville to be installed between 25th February - 25" March

Scaffold for brickwork over the outhouse at 549 Royal Parade Parkville will be installed between 25th March - 25th April 2025

Both properties of 545 & 549 Royal Parade Parkville will be reinstated to the owner's satisfaction

1. 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. The Applicants responded to the Form 7 with a Form 8 dated 24 January 2025 (Form 8), wherein they stated that they disagreed with the proposed protection work and also requested further information.
3. The Applicants gave the following reasons for their response in the Form 8:[3]

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

• Neither the protection work proposed nor the decision made by Shane Merrick (RBS) is for the protection of my property.
• The decision dated 18 December 2024 will have a significant and detrimental impact on my property, which include quality of life, privacy, security, safety, physical and mental health, for the lengthy duration of the work and beyond.
• Therefore, I must formally, and in the strongest possible terms, object to this decision made by Shane Merrick (RBS) dated 18 December 2024.
• Shane Merrick (RBS) failed to correctly comply with VBA protocol.
• Therefore the protection work notice issued by Shane Merrick (RBS) on 18 December 2024 could be construed to be made in bad faith.

• Please provide all documents you have relied upon to arrive at the Protection Work Decision dated 18 December 2024.
• Including but not limited to file notes, working documents, methodology and professional advice that you relied upon from properly qualified experts.
• Provide the flow chart that you established for 549 Royal Parade Parkville to impose your Protection Work Decision and the method to be used for the protection work.
• Provide your delegated obligations in issuing the decision for protection work whilst complying with your mandatory Surveyor's Code of Conduct obligation.
• Without all of the requested documentation I will be further disadvantaged if any consultation should be requested by any party.

1. As a result of the response provided by the Applicant in the Form 8, the RBS requested further information from the Interested Parties. That further information was provided in the form of:

a) a drawing dated 21 February 2025 titled 'Proposed Protection Works Method Statement Explanatory Diagrams'.[4] > > b) a document dated 20 February 2025 titled 'Protection Work - Working Method Description' on SPR Constructions (Vic) Pty Ltd letter head (Method Statement).[5]

2. In summary, the Method Statement required the protection of the roof of the lean-to at the rear part of the Adjoining Property to be achieved by the installation of a protective sheet 'to catch the droppings of mortar or small chips from the brick work' during construction of the New Wall.[6] The remaining statements contained in the Method Statement concern the new Wall to be constructed, which concerns building work rather than protection work.
3. Following receipt of the further information, the RBS determined, pursuant to s 87 of the Act, that the proposed protection work was adequate in a determination dated 7 March 2025 recorded in a Form 9 (Form 9).[7] The Form 9 noted that access would be required to the Adjoining Property in order to lay the protective ply wood sheeting on the roof of the lean-to.
4. The Applicant appeals the Form 9 to the Building Appeals Board (BAB) pursuant to s 141(a) of the Act.
5. The Applicant has filed and served a Statement of Contentions dated 12 May 2025.[8] The RBS has filed and served a document titled Respondent's Statement of Contentions dated 27 May 2025.[9] The Applicant has filed and served a Reply to Relative [sic] Building Surveyor Response dated 1 June 2025.[10]
6. We have also been provided with correspondence from SDA dated 23 April 2025 on behalf of the Interested Parties (SDA Letter).[11]

1. Pursuant to s 141(a) of the Act, the Applicant, as the owner of the Adjoining Property, may appeal to the BAB against the determination made by the RBS pursuant to s 87 of the Act as to the appropriateness of protection work.
2. Pursuant to s 148 of the Act, the hearing before the BAB is in the nature of a re-hearing, and we can take account of material that was not before the RBS when he made the Form 9.
3. The Applicant submits that the proposed protection work, consisting of the ply wood sheeting to be placed on the roof of the lean-to at the rear of the Adjoining Property is inadequate because, inter alia:

a) It fails to protect people from any falling debris during the construction of the New Wall;[12] > > b) The proposed protection work does not address any dust issues;[13] > > c) No physical barrier along the boundary is proposed.[14]

4. The Applicant submits that the protection work should consist of a vertical barrier along the boundary to prevent debris during the carrying out of the Building Work from falling into the Adjoining Property.[15]
5. The Applicant also makes a number of allegations to submit that the RBS has breached the Code of Conduct for Building Surveyors. We note that the BAB is not a disciplinary tribunal and does not have the jurisdiction to consider these allegations made by the Applicant. Therefore, we will make no findings in respect of them.
6. The Respondent submits that the proposed protection work is sufficient to protect the Adjoining Property from falling debris during the carrying out of the Building Work, and that the Method Statement sets out the manner in which the Building Work will be carried out without the need to access the Adjoining Property. The Respondent also refers to the required insurance being in place, and the fact that the Building Work is to be carried out by an experienced builder.
7. In her Reply, the Applicant reiterates her concerns and also refers to the need to account for the flue in the lean-to roof when the ply sheeting is laid. Further, she expressed concerns about the security of the ply sheeting in high winds and the lack of specification of that sheeting.
8. We note that the principal construction activity giving rise to the need for protection work appears to be the construction of the New Wall. We also note that the Method Statement sets out a method of constructing the New Wall without the need to access the Adjoining Property.
9. 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.
10. However, we understand the concerns of the Applicant about debris falling into the Adjoining Property and potentially harming people or causing damage to areas adjacent to the lean-to. In this regard we note that the definition of 'protection work' in s 3 of the Act includes:

(iii) overhead protection for adjoining property; ...

1. We also note that the SDA Letter refers to discussions between the Applicant and the Interested Parties concerning the installation of a vertical barrier on or adjacent to the boundary between the properties to address the concern of overhead protection to the Adjoining Property in an area wider than the roof of the lean-to.
2. 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.
3. Further, the Applicant submitted that the facts of this matter are similar to those in Janney & Anor v Steller Works Pty Ltd (Janney).[16] We do not consider that Janney is relevant to the fact in this matter. Janney was concerned with the trespass of an overhead crane which was being used to carry out building work. It was not concerned with protection work under Part 7 of the Act. The definition of 'protection work' in s 3 of the Act concludes with the statement that the protection work means the work set out:

whether or not the work or equipment is carried out or used on, over, under or in the air space above the land on which the building work is or is to be carried out or the adjoining property;

1. Further, s 95(1) of the Act provides:

(1) An owner or the agent of an owner may enter between the hours of 8 a.m. and 6 p.m. on, over, under or into the air space above any adjoining property -

(a) to carry out any survey under section 94; or

(b) to carry out the protection work required by the building regulations and agreed or taken to be agreed to or determined under this Part.

1. Section 96 of the Act provides:

If notice of entry has been given in accordance with section 95(2), the adjoining owner or the adjoining occupier must not -

(a) refuse to admit the owner or the owner's agents to the adjoining property in accordance with the notice for the purpose of carrying out the survey or protection work; or

(b) obstruct or hinder the owner or the owner's agents in carrying out the survey or protection work on, over, under or in the air space above the adjoining property.

1. These provisions indicate that protection work under Part 7 of the Act may be carried out 'on, over, under or in the air space above the adjoining property'. As such, the common law principles set out in Janney in respect of the carrying out of building work must be understood in relation to the statutory regime under Part 7 of the Act in respect of protection work.

[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'.

[12] Applicant's Statement of Contentions, [3], TB 64 and [11], TB 65.

[16] [2017] VSC 363.