...however if there is any distrubtion (sic) the adjoining property owner will be notified.

1. The Applicant referred a matter pursuant to s 155 of the Building Act 1993 (Act) and made application pursuant to s 159 of the Act to the Building Appeals Board (BAB).
2. A hearing of the matter and the application was conducted on 28 February 2025.
3. Following the hearing we concluded a site inspection was appropriate. The technical members of the panel attended the Building Site and Adjoining Property for this purpose on 13 March 2025. A record of the site inspection was sent to the parties.
4. We have had regard to the material filed by the parties and to the observations made at the site inspection in considering the matter and application before us.

1. The following sections of the Act are relevant to a consideration of this matter.

(a) permanent or temporary work of -

(i) underpinning, including the provision of vertical support, lateral support, protection against variation in earth pressures, provision of ground anchors and other support for adjoining property; or

(ii) shoring up of adjoining property; or

(iii) overhead protection for adjoining property; or

(iv) other work designed to maintain the stability of adjoining property or to protect adjoining property from damage from building work; or

(b) any work or use of equipment necessary for the provision, maintenance and removal of work referred to in paragraph (a) -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.

Section 98

An owner must compensate any adjoining owner or adjoining occupier for inconvenience, loss or damage suffered by the adjoining owner or adjoining occupier in connection with the carrying out of protection work under this Part.

Section 155

Other disputes between owners and adjoining owners

If an owner and adjoining owner cannot agree in relation to a matter arising under Part 7, and the Building Appeals Board does not have jurisdiction to deal with that matter under any other provision of this Part, either of them may refer the matter to the Building Appeals Board.

Section 159

An adjoining owner who suffers inconvenience, loss or damage during the carrying out of protection work under Part 7 may apply to the Building Appeals Board for an order determining the amount (if any) of compensation for that inconvenience, loss or damage.

THE SUBMISSIONS OF THE APPLICANT (in summary form)

1. The Applicant provided the following submissions:

(a) The Adjoining Property has been damaged as a result of inadequate protection work during the construction of the new garage on the Building Site.

(b) The excavation and removal of a quantity of soil prior to pouring the garage's concrete floor created subsidence that loosened the pavers on the Adjoining Property and the issues to the boundary fence.

(c) The fence was newly constructed in or around March/April 2022. The Applicant disagrees it was in poor condition prior to the building work. It was designed to have removable panels to assist in the construction. However, the panels were not removed.

(d) The Interested Party agreed to fix pavers but not the fence. However, additional works are required to fix the paving and the parties have not agreed to the works or compensation.

1. The Applicant relies on expert witness report dated 28 May 2024 from Mr Kyle of Quest Associates (Quest Report). The purpose of the expert report is to identify damage from building work. The Quest Report provided the following calculation of loss:

(a) existing timber fence $5,605.00

(b) newly constructed pavers $1,590.00

(c) Markup 32% (inc supervision $2,302.40

1. The Applicant also claims following costs associated with bringing the claim to the BAB:

(a) Filing fees $1,315.87

(b) Title Searches $ 59.95

(c) Quest Report fee $3,600.00

(d) Legal Fees $7,712.48

(a) The new garden shed is 5,000mm wide x 9,500mm long with a maximum wall height of 3,600mm with a 10 degree roof pitch. It was built within 200mm of the share boundary between both properties and includes an internal mezzanine floor level.

(b) The new garden shed was built with a surrounding retaining wall which runs along the entire perimeter of the shared eastern boundary of the new garden shed including the front concrete landing which is built over the top of a 100mm thick concrete reinforced slab and associated footing along the same shared boundary.

(c) As part of the works, the timber boundary fence has clearly shifted. The plinth has shifted from the timber palings. The expert opines this is due to lack of adequate support during construction.

(d) The 'as installed' pavers at the property were affected as a result of construction activity. There is evidence of lippage and settlement of the external pavers as a result of construction of the new garden shed immediately adjacent. The change in levels recorded was 17mm. A gap between the paver and the timber fencing has occurred. The widest gap is 55mm.

THE SUBMISSIONS OF THE RESPONDENTS (in summary form)

1. The Respondents provided the following submissions in support of their position:

(a) The Respondents do not accept the fence has shifted as a result of works to any significant degree. Further they do not accept the Applicant's paving or any other property has been damaged or moved as a result of the works.

(b) The Respondents say the proceedings are motivated by discontent at seeing the garage wall.

(c) The fence was replaced due to its failure in a storm. Further, the remaining section of fence is old and weathered. The Respondents wrote to the Applicant's solicitors on 3 April 2023 to seek independent cost for the fence work. The Respondents did not receive a response. The Respondents further rely on the Fences Act 1968 noting the failure to provide opportunity to obtain a quotation means that they cannot give her notice.

(d) The Respondents were not in attendance during any discussions between the Applicant and Interested Party and cannot assist in relation to what offers may have been made.

(e) The Respondents deny that the fence was not propped or supported as the photographs were taken prior to works commencing. They further alleged the altered photographs depicting horizontal lines in the Quest Report are misleading. The Respondents enclose photographs from site inspections demonstrating propping did occur.

(f) The scope of works for rectification is excessive. They do not accept it would take 4 hours to move outdoor furniture back in place.

(g) The Applicant's referral of a matter pursuant to s 155 of the Act relates not to protection work but an allegation that a breach of an agreement under the protection notice caused damage to the Adjoining Property.

(h) The Applicant has not provided evidence of the costs claimed in relation to filing fees, certificate of title, Quest Report fee or legal fees. Further, the Applicant has acknowledged drafting up the points of claim herself. The legal fees incurred, have occurred prior to the proceedings being commenced.

(i) The Respondents seek their costs for arranging the Interested Party to deal with this matter in the sum of $3,150 and the Engineering Report fee of $1,980.

(j) The Respondents have attempted to resolve this matter with the Applicant.

1. The Respondents have enclosed a site inspection report dated 17 December 2024 from Adams Structural and Civil Engineering (Adams Report). The Adams Report provides the following:

(a) The height of the timber fence is not vastly different to the pre-work height. There are no measurements provided to support the measurements as being different.

(b) Photographs of the fence during construction demonstrating propping to the timber fence occurred. There is no evidence the timber fence has dropped.

(c) The Adam's Report reviewed photographs of the pavers. There are no pre-construction photographs for comparison. The pavers are believed to be on natural ground rather than supported on concrete paving slab. Depending on the level of compaction and material under the pavers, it is common to expect ground movement to loosely installed pavers over time. Stormwater will enter the gaps between the pavers and cause subsidence or movement over time. The Adams Report concluded that it was not the works at the Building Site which caused movement.

THE SUBMISSIONS OF THE INTERESTED PARTY (in summary form)

1. The Interested Party provided the following information:

(a) There is an unsubstantiated claim for damage to the Applicant's pavers.

(b) There is a claim for replacement of the boundary fence which does not form part of the contract with the Respondents. There is no movement in the fence and independent engineering inspection confirm there is no subsidence, the Interested Party has made an offer to replace this section of the fence.

(c) The Interested Party has offered to complete the minor works to the fence and pavers or settle the amount of $4,000 to undertake the works independently.

(d) The Quest Report's costing is inflated. The Interested Party states the current costs for timber paling fencing is around $165 per linear metre which would allow for replacement of approximately 33 lineal metres of fence and not the 4-5 metres in question.

(e) The Interested Party considers the claim vexatious and will seek its own costs of being a party to the proceedings.

1. We note an email dated 20 March 2023[3] from the Interested Party to the Applicant's legal representative indicates dilapidation photographs are available. However, a request from the BAB for this information confirmed no building survey or dilapidation study had been completed.

1. The Applicant provided the following submissions in response to the Respondents:

(a) If the builder has carried out the required protection work, removal and replacement of the fence, then the damage to the pavers would have been noted and measures to prevent it could have occurred. This may have included building a retaining wall of sufficient height along the entire length and more of the shared boundary where the garage was to be sited.

(b) During the construction she noted movement in the backyard pavers and paling fence. It is her assertion that both of these conditions have arisen as a direct consequence of the builder failing to prevent backyard soil and underpinnings from slipping into the Building Site.

(c) The Interested Party admitted liability for some of the damage.

(d) The Respondents admit at some point before or during the construction of their garage commencing, there was a time when the common boundary fence was not adequately propped up. The Respondents have not provided dates or evidence that the props were applied to the fence. The Applicant does agree that the props were installed at some stage to the fence.

(e) The pavers are laid on a bed of sand which provide a permeable surface to allow water to drain through the pavers and into the ground. The pavers were laid in March 2017 and go for a distance of 24 metres. The last 6 metres have become dislodged due to the construction of the garage.

(f) The Adams Report author did not inspect her property.

(g) The fence is serviceable. The current condition of the old section of paling fence is a direct consequence of the builder choosing not to install the necessary protection work.

(h) The Interested Party admitted partial liability for the damages. The Applicant rejected both the offer to fix damage and the cash offer.

1. The Applicant filed an email trail between herself and the First Interested Party. We note the email dated 26 September 2022 provided the Applicant's position in relation to a settlement (see page 138).
2. The Applicant has further produced evidence of the items claimed by way of invoice documentation.

1. We note the Applicant makes a claim for loss or damage to the fencing and paving.
2. There are further claims for costs which include items such as filing fees. We made remarks regarding this issue at the e-hearing about the difference between costs of the hearing and compensation sought under s 155 and 159 of the Act. The BAB does not determine costs of a hearing until the substantive matters have been dealt with. We have detailed our reasons more fully below.
3. We consider it useful to address the following in our findings:

(a) Compensation claims under s 155 of the and 159 of the Act;

(b) The protection work relevant to a compensation claim;

(c) Weather the Applicant has established the claim for damage to fencing; and

(d) Weather the Applicant established the claim for damage to the paving?

Compensation claims made under ss 155 and 159 of the Act

1. We will outline the scope of the compensation provisions of the Act to assist in defining what compensation may be claimed under s 155 and 159 of the act.
2. Section 98 of the Act provides that:

An owner must compensate any adjoining owner or adjoining occupier for inconvenience, loss or damage suffered by the adjoining owner or adjoining occupier in connection with the carrying out of protection work under this Part [7].

If an owner and adjoining owner cannot agree in relation to a matter arising under Part 7, and the Building Appeals Board does not have jurisdiction to deal with that matter under any other provision of this Part, either of them may refer the matter to the Building Appeals Board.

An adjoining owner who suffers inconvenience, loss or damage during the carrying out of protection work under Part 7 may apply to the Building Appeals Board for an order determining the amount (if any) of compensation for that inconvenience, loss or damage.

1. We accept that a dispute may be referred under s 155 of the Act rather than an application made under s 159 of the Act when the inconvenience, loss or damage is claimed 'in connection with the carrying out of protection work' rather than 'during the carrying out of protection work' as stated under s 159 of the Act. Section 98 of the Act imposes statutory liability on the owner to compensate the adjoining owner for inconvenience, loss or damage 'in connection with the carrying out of protection work'. This permits, in our view, a referral to the BAB under s 155 of the Act in circumstances where an owner or adjoining cannot agree in relation to compensation for inconvenience, loss or damage 'in connection with the carrying out of protection work'. This is so as the wording 'in connection with' found under s 155 of the Act may be distinguished from the word 'during' found under s 159 of the Act.
2. The question then becomes, what is considered 'in connection with' the carrying out of protection work. The determination in KSJAD Nominees Pty Ltd v Goubran & Anor [2022] VBAB is of assistance here. In it, the following was stated:

59. In my view, the words in connection with do no more than broaden the circumstances where compensation can be claimed to include situations where the carrying out of protection work has not been executed properly, wholly, or where there has been a complete failure to carry out protection work when it should have been carried out. This is consistent with the observations of the Board in Wilkins & Anor v Malsons International Pty Ltd [2021] 60 where Member McFadzean observed:

VI. The expression 'in connection with' in 98 of the Act is a broad term, that should be interpreted in a practical manner, that reflects (amongst other matters, that protection work is meant to protect an adjoining owner from risks of significant damage, which may arise as a result of building work on the subject property.

VII. The concept of 'carrying out' of protection work should be interpreted in a holistic manner, which has regard to the work that is undertaken, and the work that is not undertaken. It is analogous to assessing whether a person carried out their work in a professional manner - such an assessment would address what the person did, as well as what actions they failed to do.

1. Section 155 is often used to assist a claim under section 98 of the Act to cover the broader term of 'in connection with' which is used under section 98 but not under section 159 of the Act.
2. In order to determine whether any compensation should be awarded under section 159 of the Act, it is necessary to identify what protection work was carried out under Part 7 of the Act.
3. Accordingly, we will review the Form 6 and Form 7 documents to identify what protection work was to be undertaken before considering any compensation amount claimed.
4. In considering a claim under sections 155 and 159 of the Act, the BAB must be satisfied that the amount claimed arises from loss, damage or inconvenience which occurs in connection with or during the carrying out of protection work.
5. There is a distinction between compensation claimed under sections 155 and 159 of the Act. Section 155 permits a claim for compensation for loss, damage or inconvenience which occurs in connection with protection work whilst s 159 permits a compensation claim for costs which arise during the carrying out of protection work. A claim for costs of the hearing is a separate action from both ss 155 and 159 of the Act.
6. We have noted that some of the costs claimed appear to be costs of the hearing. The BAB's Practice Note 9A - 2023 provides guidance in respect of applications for costs of and incidental to the proceeding of the BAB. The Practice Note defines those costs as usually meaning:

[M]oney paid or liabilities incurred for professional legal services and out-of-pocket disbursements or expenses, such as filing fees, expert witness fees, et cetera, where directly related to the proceeding before the Board.

1. The Applicant has claimed costs under sections 155 and 159 of the Act which are losses incurred in bringing this matter to hearing at the BAB. We note this is a common occurrence and make no adverse finding as a result of such a claim.
2. The cost of the proceeding cannot be claimed under section 159 of the Act as this post-dates the protection work and is not a loss, damage or inconvenience which arose in connection with or during the carrying out of protection work. An application for costs of the proceeding to be paid by the other party may be made under Sch 3, cl 16 to the Act. Given this, the BAB cannot award the following costs claimed by the Applicant:

(a) Filing fees $1,315.87

(b) Title Searches $ 59.95

1. We note the Quest Report fee of $3,600 and Legal Fees of $7,712.48 have occurred after the completion of any protection or building work.
2. The Quest Report and legal fees appear to have been generated in connection with making a claim rather than in connection with the carrying out of any protection or building work. Given this, there is no causal connection the BAB can validly draw to incorporate such costs into the compensation requested under s 155 and 159 of the Act.

The protection work relevant to a compensation claim

1. As noted above, the compensation claimed by the Adjoining Owner must have a connection with protection work.
2. We note the definition of protection work contained in the Act has been extracted and provided above.
3. The BAB has reviewed the Form 7[4] in this matter and have particularly noted the following details were provided under details of proposed protection work:

The boundary fence to the east side of 14 Vonadawn Avenue, Ringwood East will need to be removed and replaced to complete the work.....The only access in which we will need to gain access to the adjoining property is when the boundary fence is removed and replaced.

1. There was no protection work listed for preventing subsidence or land slippage at the Adjoining Property. The parties have discussed the propping of the fence, and there are some photographs which showed it occurred even though this was not listed as a protection work. It appears some actions were taken to protect the Adjoining Property which were not recorded in the Form 7. However, the material before the BAB demonstrates the only listed protection work was simply not undertaken by removing and replacing the fence as outlined in the Form 7 document.
2. In our view the insufficient or uncompleted protection work could still be captured under s 155 and 159 of the Act based on the wording of the relevant provisions (s 98, 155 and 159 of the Act).
3. We further note that there was no protection work applied to prevent land slippage or subsidence from the Adjoining Property. This is notwithstanding that the Form 6 confirmed that the building work which gave rise to the protection work:

....is the construction of a retaining wall and fence on boundary. Reconstruction to shed. Reconstruction to shed [sic]

1. We consider that a claim could potentially succeed under s 155 of the Act if the protection work for the proposed construction of the retaining wall and any excavation required for the fencing or shed was insufficient. This is because insufficient protection work would still have a connection to protection work and is broader than the compensation claimable under s 159 of the Act. We further note that the definition of protection work under limb (b) in the Act includes whether or not the work is carried out.
2. We also confirm that the definition of protection work under the Act does not confine the scope of protection works to those listed in the protection work notice.[5]
3. Accordingly, if loss or damage has occurred in relation to any failure arising from or in connection with the protection work, then a claim may still be made.

1. We note that the Respondents or their agent failed to meet their obligations under s 94 of the Act to obtain a building survey. Had the Respondents done so, then the BAB would have had complete evidence of the state of the Adjoining Property prior to the protection work and building work to compare to the current state of the fence.
2. We must therefore weigh the evidence and determine on the balance of probabilities if we consider the damage has occurred and, if so, whether the damage arose in connection with the carrying out of protection work.
3. As noted we attended on site to review the fence and we have circulated to the parties our observations. Those observations included:

(a) The fenceposts appeared plumb to vertical

(b) The fence rails and posts were in excellent condition

(c) The fence rails and posts were well supported and connected

(d) The fence appeared stable and withstood the application of cautious lateral force by hand.

(e) The fence was adjacent to the building works and appeared to have been installed on the subject matter property below the plinth rather than on the plinth of the fence. The original fence outline was clear due to the unpainted areas of the plinth. There was a 60mm gap between the original plinth of the fence and the fence next to the building work.

1. We consider that if the fence had dropped due to destabilised foundations arising from the building or the failure to conduct protection work that this should have been evident through a less than plumb appearance, destabilisation of the fence visible through the application of manual lateral force and disconnected/unsupported fence rails and posts. None of these factors were present during the onsite inspection of the fence.
2. Given this, we are unable to confirm that the fence has in fact sustained damage as a result of either building work or arising in connection with the protection work. For this reason, we refuse the claim for compensation arising from the fence.

1. The BAB's onsite inspection noted the following observations:

(a) Pavers were visibly uneven varying between -14.5mm and more than +23.5mm

(b) Paver alignment to the fence was varied

(c) There was evidence that the base under the pavers had deteriorated and there were gaps evident underneath.

1. We accept that the work alongside this area of the Adjoining Property and failure of any protection work to prevent landslip, may have caused the unevenness of the pavers and deteriorating base of the pavers. The Applicant provided photographs prior to the protection work and building work being undertaken and the pavers were in a more aligned condition. There is no building survey to record to contradict the evidence produced by the Applicant.
2. We acknowledge that the pavers may have been vulnerable to the damage viewed due to the construction method used for their installation. However, protection work is supposed to prevent damage to the Adjoining Property in its pre-protection work condition. There is no evidence that the pre-protection work or building work paving condition was anything but level.
3. We also note that the Interested Party, in our view, reasonably accepted he would be prepared to cover the cost of rectifying the pavers in the sum of $1,590.[6] We note and accept the Interested Party's objection to the 30% markup recommended by the Applicant's expert. The Interested Party noted that he considered the industry would use a markup of 15-20%[7] and the Applicant's expert did not produce data to confirm the industry would apply a 30% markup to the rectification work. The Applicant further did not provide a market rate quotation to support the 30% markup requested. We consider that the objection to the markup is valid. Based on our experience it is more common to see a markup of 15-20%. We will apply a 15% markup based on the small nature of the job.
4. We have calculated the cost of reinstating the pavers including markup and GST as follows:

1. We note that under the Act, the Respondents are normally the party responsible for the costs claimed in accordance with compensation claims made. We accept that there appears to be an agreement between the Respondents and Interested Party to pay the costs. However, we are required to make the order for payment of costs against the Respondents due to the wording of the Act. We note that if the Applicant receives payment of the costs ordered in the sum of $2,011.35 from the Interested Party on behalf of the Respondents that this would still discharge the order we have made.

[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'.

[3] See page 231 of the e-brief material

[5] See Leahy & Anor v Railway Ave Pty Ltd [2021] VBAB 86 [56].

[6] See e-hearing recording at time 38:04

[7] See e-hearing recording time stamp 39:30