THE SUBMISSIONS OF THE APPLICANT (in summary form)

1. In summary, the protection work proposed are inadequate and there is insufficient detail about the works proposed to fully inform the scope of the necessary protection work.

THE SUBMISSIONS OF THE RESPONDENT (in summary form)

1. The protection works proposed are adequate and that the BAB should uphold the Respondent's decision.

THE SUBMISSIONS OF THE INTERESTED PARTY (in summary form)

1. The Interested Party has followed due process and provided adequate protection and was willing to provide further detail as and if required.

1. On 14 November 2024 the matter was heard at an e-hearing taking submissions and questions and answers regarding the outstanding concerns of the Applicant.
2. The Interested Party was responsive but not able to adequately inform us at the hearing with respect to specific issues raised.
3. As a consequence of the above, we determined to inspect the Building Site and the Adjoining Property and provided an opportunity, via a Direction and Order, for the parties to make further submissions.
4. On 6 December, 2024, the BAB issued a Direction and Order (the 'D&O') to all parties providing the opportunity for further submissions. Specified issues were listed from paragraph 1 of that order with requests for further information from the Interested Party. The D&O allowed for submissions in reply.
5. On 17 December 2024, panel member Member Irwin inspected both sites on behalf of the panel and gained a greater understanding of the relationship between the sites and the nature of property at risk of damage. The observations were shared with the panel.
6. On 5 March 2025, we re-convened a hearing to finalise the matter on the papers.
7. A key purpose of us seeking the information post the November hearing was to better understand the nature of proposed building work, the corresponding nature of risk of damage to the adjoining property and in turn the nature of necessary protection work to mitigate the risks. This would enable us to make an appropriate determination.
8. Where the information was fully informative we may have been able to uphold or vary the Respondent's Form 6 Determination or, in the alternative, remit the decision to the Respondent under s 149 of the Building Act. As set out in our findings below, we considered that none of these options were practicable due to lack of adequate information, leading us to the decision to quash the Form 9 determination.

1. We find that after considering all the submissions and evidence, together with having conducted the viewing, that neither the proposed building work or the scope and program of proposed Protection Work were adequately documented, definitively detailed to allow it to be fully understood by us. Given this, it is not possible for us to uphold the Respondent's s 87 determination as appropriate or to substitute the determination with our own. In particular we note the following matters remain vague or uncertain. This list should not be read as a complete record of protection work issues to resolve in any future proposal. The issues are presented as examples of reasons for our decision and are not intended as detailed guidance or advice for the parties.

(a) The land surveyor's re-establishment survey (Re-establishment Survey) of the Building Site including the Boundary and adjacent features of the Adjoining Land was required to be provided. We consider it is necessary to know the proximity and orientation of existing and proposed built structures and proposed protection work in relation to the boundary. It may also be important to know the positions and dimensions of any party wall easements. The document submitted and said to be a survey by the Interested Party is the 'Neighbourhood and Site Description plan' of Di Mase Berry & Co Pty Ltd, ref: 13845, dated 11 July 2017. We find this document not be adequate. It does not show with sufficient certainty the existing structures' positions in relation to the boundary and includes a disclaimer that it should not be used for working or construction drawings. No evidence has been presented to us to confirm that conditions have not changed in the 7 years since the 2017 plan. Easements are not shown despite there being evidence of significant easements applying to the lots including references elsewhere to party walls.

(b) In our D&O we requested confirmation of whether this survey has been depended upon in the specification of the building work and protection work and in the building permit application. The Interested party confirmed that it had and the other parties did not contest this. We thus accept this evidence that despite the survey explicitly stating it should not be relied upon for the setout of the proposed building work, it had been.

(c) In our D&O we requested adequate drawings or diagrams (such as marked up drawings) indicating the heights and extents of masonry walls to be constructed facing and adjacent the boundary and the types of walls in question (eg: double cavity masonry, double solid masonry, brick veneer etc). The latest information submitted to us includes the unattributed illustrations of 9 December 2024 submitted as Appendix A by the Interested Party. This and previously submitted information is, in our view, incomplete. It is unclear to us what the material/s and type/s of construction proposed for the second residence's western wall facing the boundary will be. A courtyard wall, apparently on or astride the boundary is indicated and illustrated to be double cavity brickwork, 2.8m high. We find, in the absence of details to show otherwise, that a wall of this nature would be structurally unsound unless additionally reinforced (which is not indicated). We consider that this may be a protection work matter as if it was attempted to be built as shown it would be susceptible to collapse into the Adjoining Property and could cause damage to the Adjoining Property.

(d) Given the lack of certainly regarding the second residence boundary wall construction we cannot know, with sufficient certainty, that adequate protection work had been specified. For example, if the ground floor wall is to be brick veneer, a method of ensuring the stability of the brick skin during construction would be required.

(e) Screening has been proposed as a form of proposed protection work for work proposed to be undertaken at heights. Illustrations provided indicate generally suitable arrangements but the method of support for the upper level fall protection screens is not defined. Also, it is unclear when the screens are to be installed and removed. For these reasons we consider the details regarding the proposed screens are inadequate.

(f) The boundary facing wall of the existing outbuilding of the Adjoining Property is to be re-lined to protect it from long term damage as it will become an external exposed wall. This is protection work. A generally suitable arrangement has been illustrated but no properly detailed and specified working drawings have been provided. The top (east) and north edge capping arrangements have only been illustrated indicatively. The elements proposed to ensure the weather-tightness of this wall are important aspects of the proposed protection work and we consider the extent, size and details of the capping requires further clarification/confirmation.

(g) There is a lack of clarity about which versions of drawings are to be endorsed for permit and depended upon for protection qorks specifications. Several versions of both architectural and structural drawings have been submitted and not all are consistent with the details on the December schematic submissions (c) above. For example, first floor wall alignments appear to differ.

(h) During the inspection of the Building Site, it was noted that timber retaining walls are located on the Adjoining Property immediately adjacent to the boundary and are holding garden beds. It appears that these may require Protection Work to mitigate the risk of damage. No evidence or details have been provided to us either describing such protection work or confirming that none are required. We further note the Applicant's concern that projection may be required for these garden beds.

[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'.