RESPONDENT Jason Singh (relevant building surveyor)

INTERESTED PARTIES Rajat Paul and Amisha Paul (Building Site owners)

ADJOINING PROPERTY 98 Argyle Way, Wantirna South

BEFORE Members P Chau (panel chair) and P Mullholland

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

Is the Respondent jurisdictionally empowered to make a determination under s 87 of the Building Act 1993 given that the scope of the building work has been amended and the Respondent has determined to withdraw the 'Form 6 - Determination that protection work is required?

The answer to that question and determination of the BAB is "No."

1. The proceeding is adjourned to an administrative mention on Friday 5 September 2025, by which time the parties are required to advise the Registrar, having regard to this decision including the reasons for this decision, as to whether, in the interests of justice, the appeal should be withdrawn and the proceeding be discontinued.
2. Costs reserved until after a final disposition of the proceeding is made.

_______________________ ________________________

1. On 29 January 2025, Rajat Paul and Amisha Paul (Interested Parties), via their demolition contractor and agent, Farah Merho of Demolition Masters (Agent), applied to Jason Singh (Respondent), the relevant building surveyor, for a building permit (Original Permit Application) to demolish the entire building situated at 100 Argyle Way, Wantirna South (Subject Land).
2. In considering the Original Permit Application, the Respondent determined that protection work was required to protect the neighbouring property at 98 Argyle Way, Wantirna South (the Adjoining Property), which is owned by Wei Huang (Applicant).
3. Accordingly, on 7 February 2025, the Respondent issued to the Interested Parties a Form 6 Determination that Protection Work is Required (Initial Determination) pursuant to reg 111(4) of the Building Regulations 2018 (Regulations) to protect the Adjoining Property.
4. Determination 5 of the Initial Determination specifically noted that the proposed building work that gave rise to the need for protection work to protect the Adjoining Property was the "[d]emolition of masonry garage wall [Garage Wall] 180mm off the title boundary on the northern side boundary" of the Subject Land.
5. No other building work was determined to give rise to a need for protection works to protect the Adjoining Property, despite the rest of the building being demolished.
6. As a result of the Initial Determination, Part 7 of the Building Act 1993 (Vic) (Act) was triggered, which required the Interested Parties to issue a Form 7 protection work notice to the Applicant.
7. On 7 February 2025, the Interested Parties, via its Agent, issued to the Applicant a Form 7 Protection Work Notice pursuant to regulation 113 of the Regulations to the Adjoining Owner (Form 7 Protection Notice), specifically stating:

a) the proposed building work was the "[d]emolition of masonry garage wall 180mm off the title boundary on the northern side boundary;" and > > b) the proposed protection work consisted of manual demolition by hand of the Garage Wall and the installation of temporary fencing

1. Similar to the Initial Determination, no other proposed building work was referred to in the Form 7 Protection Notice.
2. On 16 February 2025, the Applicant issued to the Agent a Form 8 Protection Work Response Notice pursuant to reg 114 of the Regulations (Form 8 Protection Response):

a) disagreeing with the Proposed Protection Work; and > > b) requesting further information.

3. Subsequently, there were a series of correspondence and discussions between the Applicant and the Interested Parties; the Applicant and the Respondent; as well as between the Interested Parties and the Respondent regarding the Proposed Protection Work.
4. Relevantly, on 13 March 2025, the Respondent decided and informed the Applicant that the Interested Parties had changed their building work and that the demolition of the Garage Wall, which was the only works the subject of the Protection Work Determination, was no longer required (Purported Determination), that is, the Garage Wall was being retained by the Interested Parties (Building Works Change).
5. In the Purported Determination, it specifically stated:

a) "[d]ue to this design change, protection works are no longer deemed required"; and > > b) the demolition of other structures not part of the Protection Works Determination would not adversely affect the Adjoining Property.

6. What then followed was a series of further correspondence, which can be characterised as disputation between the parties and which included various civil engineering reports being commissioned and provided by:

a) the Interested Parties, which in summary supported the fact that as the Garage Wall was being retained, no protection work would be required to protect the Adjoining Property; and > > b) the Applicant, which in summary: > > 1. questioned why the remaining building works would not require protection of the Adjoining Property; > 2. asserted risks to the Adjoining Property remained with the other building works; and > 3. asserted that the propping of the Garage Wall itself was protection works.

7. On 18 March 2025, the Respondent issued an amended building permit (Amended Building Permit) granting a permit for the demolition of a dwelling, outbuildings and propping works to the garage wall. (Amended Building Works)"
8. No protection work was required by the RBS for the Amended Building Works nor was a further From 6 issued by the RBS for the Amended Building Works.
9. On 22 March 2025, the Applicant appealed under s 141(c) of the Building Act to the Building Appeals Board (BAB), seeking a determination of the BAB in place of the Applicant's assertion that the Respondent had failed or refused to make a determination or declaration in response to the Applicant's Protection Response.
10. On 6 May 2025, the BAB issued directions and orders that an e-hearing be held to hear a preliminary question of "whether the Respondent is jurisdictionally empowered to make a determination under s 87 of the Building Act 1993 given that the scope of the building work has been amended and the Respondent has determined to withdraw the 'Form 6 - Determination that protection work is required' (Preliminary Question).
11. The hearing of the Preliminary Question was held on 22 May 2025.

1. We have considered the parties' oral and written submissions and the materials filed with the BAB.
2. We have also had regard to:

a) the Act and the Regulations; and > > b) the second reading speech by the then Minister for Planning, Mr Maclellan when the Act was read a second time on 11 November 1993 (Reading Speech);

as they all are relevant in regard to protection work determined under the Act.

1. The stated objectives of the Act are set out in section 4, which include:

a) to protect the safety and health of people who use buildings;

e) to facilitate the cost effective construction and maintenance of buildings; and

g) to aid the achievement of an efficient and competitive building industry.

1. The Reading Speech also reinforced the efficiency objectives of the Act and specifically dealt with protection work, as it specifically stated:

a) the non-legalistic approach of the former building referees boards will be, and must be continued [by the newly formed BAB]"[1]; and > > b) "an enhanced version of the existing building referees boards will replace the current more expensive arbitrator system of resolving disputes ... where protection works are deemed necessary for properties adjoining proposed building works.

2. Under the umbrella of these stated objectives, the protection work provisions of the Act are set out in:

a) Part 7 - Protection of Adjoining Property of the Act; and > > b) Part 7 - Protection of Adjoining Property and the Public of the Regulations.

3. As the Applicant rightly submits, reg 111 of the Regulations deals with the Respondent's initial protection work obligations including:

a) reg 111(2) which requires the Respondent to determine whether protection work is require as a result of proposed building work when deciding an application for a building permit for that work; > > b) reg 111(3) which allows the Respondent to make a determination at any time; and > > c) make a determination in the prescribed form of Form 6.

4. Reg 112 of the Regulations then sets out the various factors and criteria that the Respondent must have regard to when determining whether protection work is required.
5. The Respondent in issuing the Initial Determination correctly discharged his duties under regs 111 and 112 when he determined protection work was required due to the demolition of the Garage Wall, which was the only proposed building work it considered required protection work given the Garage Wall's proximity to the Adjoining Property.
6. Having issued the Initial Determination, it was then incumbent on the Interested Parties and the Applicant to abide by Part 7 of the Act which they both respectively discharged by:

a) serving the Form 7 Protection Notice as required by section 84 of the Act; and > > b) give the Form 8 Protection Response as required by section 85 of the Act, disagreeing with the Proposed Protection Work.

7. Due to the Applicant's disagreement set out in its Form 8 Protection Response, section 87 of the Act was triggered, requiring the Respondent to discharge further protection work obligations, including:

a) "must [emphasis added] examine the proposal for protection work and determine the appropriateness or otherwise of the works" once it received the Applicant's Form 8 Protection Response as required by s 87(1); and > > b) "must [emphasis added] give the owner and the adjoining owner notice in writing of a determination under this section" as required by s 87(4).

8. However, although we understand the sentiment in the Applicant's submissions that any further decision about the Proposed Protection Work ought to be resolved by the Respondent issuing a determination under section 87, we do not accept the line of reasoning.
9. Rather, we find that the statutory outcome is that section 87 is in fact no longer applicable once the Interested Parties amended their building work to exclude the Garage Wall.
10. Put in another way, there is no longer any "proposal for protection work" as set out in section 87 as the Interested Parties had effectively abandoned the original scope of the building work for the new, Amended Building Work.
11. As the Respondent determined that the Amended Building Work did not require protection work at all, there is no avenue for the Applicant to appeal this new determination about a new scope of works.
12. Conversely, if the Respondent was required to make a determination under section 87, it would mean the Respondent, the Interested Parties and the Applicant wasting further time, cost and resources to reach a determination about something the Interested Parties are no longer pursuing, which is the original Building Work.
13. This would be contrary to the stated objectives of the Act and the Reading Speech about efficiency and cost effectiveness.
14. The purpose of s 87 is to achieve finality in relation to any current protection work dispute. Once the Interested Parties decided to change the scope of their building work, there was no longer any dispute.
15. It is the BAB's finding that where there are changes to any originally proposed building work, what is required then is a new review of the building work under regulation 111, not a review or determination under the previous application.
16. It is then within the RBS's independent jurisdiction to determine whether any protection work is required for this new building work.
17. This could mean protection work is no longer required as the new building work no longer poses a risk (as is the case here as determined by the Respondent) or conversely, further and additional protection work is required where the amended building work is determined to pose a higher risk.
18. Accordingly, in regard to the Preliminary Question, the BAB determines the answer is "no", the Respondent is not jurisdictionally empowered to make a determination under s 87 once the original building work the subject of the original Form 6 was amended.
19. Although the BAB notes the Applicant may have concerns about the risk in the remaining building work, the correct avenue for the Applicant to raise these issues is not via the protection work regime under ss 84 to 87 of the Act, which is dependent on and only initiated where a relevant building surveyor makes a determination under reg 111 of the Regulations.
20. There was no such determination made for the Amended Building Work.
21. To allow the Applicant to utilise s 87 of the Act to require other protection work to other building work not the subject of any relevant building surveyor's determination creates an additional right not provided for under the protection work regime under Part 7 of the Act.
22. For completeness, we note that this finding does not mean there is no consequence of the original Form 6 issued by the Respondent, and the subsequent Form 7 by the Interested Parties.
23. Although the original building work has changed, there remains the issue that the Applicant has indeed been put through time and expense to review the original Form 6 and Form 7 in order to comply with its obligations under s 85 of the Act.
24. As such, the BAB's position is that s 97 of the Act does apply to the original disputation, which would require the Interested Parties to pay the Applicant all costs and expenses reasonably incurred in assessing the originally proposed protection work the subject of the original Form 7.

[1] Building Bill 1993, Second Reading Speech, Minister Maclellan (Minister for Planning), p1690.