APPLICANTS Adam Irving and Beatrice Romano (Adjoining Property owners)

RESPONDENT Chaminda Gamage (relevant building surveyor)

INTERESTED PARTY Naveen Verma (Subject Land owner)

RELEVANT MUNICIPALITY Port Phillip City Council

BEFORE Members J Shaw (panel chair), P Irwin and J Gaffney

CITATION Irving & Anor v Gamage [2025] VBAB 59

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 issue the Form 9 determination made by the Respondent under section 87 of the Act as to the appropriateness of protection work dated 6 December 2024 (the Determination) is quashed.
2. Pursuant to s 149(4) of the Act, the Determination 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]

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1. The Applicants are the owners of the land at 5 Hotham Grove, Ripponlea, Victoria (Adjoining Property).
2. The Adjoining Property adjoins 3 Hotham Grove, Ripponlea (Subject Land) to its west. The Subject Land is owned by the Interested Party, and building work, involving the construction of, inter alia, two dwellings is being carried out on it (Building Work).
3. The Respondent (RBS) is the relevant building surveyor appointed pursuant to the Building Act 1993 (Act) for the Building Work.
4. In December 2023, pursuant to reg 111 of the Building Regulations 2018 (Regulations) the RBS determined that protection work was required to be undertaken in respect of the Building Work to protect the Adjoining Property from damage, and the RBS stated that he issued a Form 6 on 5 December 2023 (First Form 6). The First Form 6 is not before us.
5. The RBS submitted that in response to the First Form 6, the Interested Party served a protection work notice in the form of a Form 7 on the Applicants on 29 December 2023 (First Form 7). The Applicants deny having received the First Form 7, and submit that the Interested Party posted it to them at the Adjoining Property when in fact that property was tenanted and they were living elsewhere.
6. The Applicants submit that because they did not receive the First Form 7, they did not respond to it. In any event, because no response to the First Form 7 was received, the RBS issued a building permit for the Building Work on 20 March 2024 (Building Permit) on the basis that, pursuant to s 85(2) of the Act, the Applicants were taken to have agreed to the proposed protection work.
7. The Applicants submit that they have requested the RBS to provide them with a copy of the First Form 7 and the documents associated with this, but that the RBS has failed to provide those documents. The RBS submitted that the reason he had not provided the documents was because the Interested Party had stated that they had been served on the Applicants, notwithstanding that the Applicants say they had never received the documents.
8. In the hearing, the RBS stated that he would provide the Applicants with the First Form 7 and associated documents, and in that respect we note the RBS's obligations pursuant to s 92 of the Act.
9. It appears that the protection work required by the First Form 7 included the construction of a retaining wall in the form of a slab upstand, adjacent to the boundary with the Adjoining Property as shown on structural engineering drawings prepared by ARX Consulting Engineers and noted as revision 'A' (Revision A drawings).
10. The RBS submitted that when his office was informed that the Building Work had reached a mandatory notification stage prior to pouring the footings, he contracted a registered building inspector to inspect the Building Work, and that he subsequently received a certificate from that inspector pursuant to s 238 of the Act. It appears, however, that the certificate issued by the inspector was inaccurate, because the protection work required by the Building Permit had not been carried out.
11. The protection work approved as part of the Building Permit was not constructed, and in particular no retaining wall has been built adjacent to the boundary with the Adjoining Property. The Applicants submit that the failure to provide the required protection work has resulted in damage to the Adjoining Property. Relief related to such allegations is not part of this appeal.
12. Further, it has been apparent since at least 25 October 2024, being the date that the Applicants obtained a survey of the boundary between the Adjoining Property and the Subject Land (Survey), that the concrete that has been constructed as part of the Building Work encroaches onto the Adjoining Property.
13. After the RBS became aware that the protection work had not been carried out, he issued a second Form 6 determination dated 19 September 2024 requiring protection work to be carried out (Second Form 6). The RBS also stated that he had issued at least one building notice and building order pursuant to Part 8 of the Act requiring the Interested Party to rectify certain issues, but none of those documents have been provided to us.
14. In response to the Second Form 6, the Interested Party issued a further protection work notice dated 25 September 2024 (Second Form 7), which relied on a revised set of structural engineering drawings prepared by ARX Consulting Engineers noted as revision B (Revision B drawings).
15. By notice dated 7 October 2024, the Applicants stated that they disagreed with the proposed protection work set out in the Second Form 7 (Form 8).
16. As a result of the Form 8, pursuant to s 87 of the Act the RBS was required to determine the appropriateness or otherwise of the proposed protection work. The RBS issued his determination pursuant to s 87 of the Act on 6 December 2024 (the Determination), whereby he determined that the proposed protection work is appropriate. This determination is now appealed to the BAB pursuant to s 141(a) of the Act
17. The RBS, in oral evidence to the BAB, confirmed that he no longer considers the protection works endorsed by the Determination to be appropriate due to changes in circumstances since the date of the Determination.
18. The RBS confirmed that he had not withdrawn the Determination as he believed it was necessary for the BAB's determination to be completed.

1. There are several aspects of the Building Work the subject of this appeal that are concerning:
   1. It is unclear as to whether the Applicants were in fact served with the First Form 7. The RBS relied on a copy of the registered post envelope addressed to the Applicants at the Adjoining Property for evidence of service, and submits that this complies with s 236 of the Act. Without making a finding as to whether service pursuant to s 236 pf the Act was effected, we note that s 236(1)(c) of the Act allows service to be given by sending the document 'by post addressed to the person at the person's usual or last known place of residence or business...'. We are not convinced that simply sending the First Form 7 to the Adjoining Property without making any enquiries to establish whether that property was the Applicants' usual or last known place of residence or business' is effective service under s 236 of the Act.
   2. The protection work required by the First Form 7 was recorded in, inter alia, the Revision A drawings. In respect of the retaining wall required to be constructed on the boundary between the Adjoining Property and the Subject Land, those drawings simply showed the final result to be achieved. They did not specify the method of construction, and in particular, they did not provide any protection work to protect the Adjoining Property from damage while the retaining wall was being constructed. For example, it would have been appropriate to include measures to control excavation collapse and contain concrete poured within the subject land. The RBS did not submit that there were any documents that would have provided this missing information. It is apparent to us, therefore, that the protection work required by the First Form 7 was inadequate.
   3. Notwithstanding our concerns in paragraph (b) above, the protection work required by the First Form 7 was not carried out. This is a failure of the builder carrying out the Building Work, and also of the RBS's inspector who inspected the Building Work.
   4. The failure to provide protection work required by the First Form 7 resulted in the Second Form 6, the Second Form 7, the Form 8 and the Determination. As noted, the Second Form 7 relies on the Revision B drawings. The Revision B drawings, like the Revision A drawings, do not provide any details or notes about the method of construction. Indeed, the timber frame that is to be supported by the missing retaining wall has been constructed, and appears to require temporary support above the slab to allow the construction of the retaining wall. No details associated with this are shown on the Revision B drawings. Further, although the Second Form 7 was served prior to the Survey having been carried out for the Applicants, the Revision B drawings take no account of the encroachment onto the Adjoining Property.
2. The RBS concedes that the protection work proposed by the Second Form 7 and approved in the Determination is not appropriate, because it fails to account for the encroachment of the Building Work onto the Adjoining Property, and it fails to provide any details about protection work required to construct the retaining wall or otherwise protect the Adjoining Property from damage. It also fails to specify how the retaining wall is to be constructed below the existing timber frame.
3. As a result of the RBS accepting that the protection work approved by the Determination is inappropriate, the Interested Party has had a further set of structural engineering drawings prepared by ARX Consulting Engineers, marked revision 'C' (Revision C drawings).
4. The details shown on the Revision C drawings have not been completed, and have not been approved by the RBS. However, we note that the Revision C drawings do not resolve the issues identified with respect to the Revision A and Revision B drawings, in that they do not consider the encroachment onto the Adjoining Property, and lack any information about the method of construction and any protection work required during construction.
5. For the above reasons, the Determination will be quashed pursuant to s 149(1)(b) of the Act.

[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'.