APPLICANTS Elise Maynard and Damien Drew (Adjoining Property owner)

RESPONDENTS Jill Deklerk and Jean Deklerk (Building Site owners)

BEFORE Members J Shaw (panel chair), J Clampett and P Paras

CITATION Maynard & Anor v Deklerk & Anor [2025] VBAB 82

Having considered all the submissions and information placed before it, the Building Appeals Board (BAB) determines and orders pursuant to s 161 of the Building Act 1993 (the Act), as follows:

1. The BAB finds that the party wall between 45 Connolly Avenue, Coburg and 47 Connolly Avenue, Coburg (Party Wall) is required to have a fire resistance level (FRL) of 60/60/60.
2. The BAB finds that the Party Wall is required to be constructed in accordance with:

(a) the National Construction Code, 2019 edition, Volume 2 (NCC 2019 Volume 2) to the extent that the Party Wall is affected by the building work carried out in around 2020 on 45 Connolly Avenue, Coburg to create the attic storage room, as well as any further building work required to be carried out as a result of this finding; and

(b) in particular, Part 3.8.6, Sound Insulation, of the NCC 2019 Volume 2 to the extent that the Party Wall is affected by the building work at 45 Connolly Avenue, Coburg.

1. The parties may, by 11 July 2025, file with the BAB and serve on the other party submissions of no more that 6 A4 pages and other documentation relevant to building work referred to in such submissions regarding:

(a) the precise scope of building work required to be carried out to give effect to the findings in orders 1 and 2 above;

(b) relevant design documentation such as drawings, computations, performance solutions and certification for such building work;

(c) the cost of such building work;

(d) how much of the cost of the building work is to be met by each of the owners; and

(e) the timing of such building work.

1. The proceeding is to be determined 'on the papers' on or after 14 July 2025 subject to the BAB ordering otherwise or a party requesting an oral hearing to be convened in lieu thereof.
2. Liberty to apply, including in relation to the time required to comply with these orders.
3. Costs reserved.

_______________________ ________________________

For the Respondent In person and Ghazi Zoghaib, solicitor for Respondents

1. The Applicants own the dwelling at 47 Connolly Avenue, Coburg (No. 47).
2. The Respondents own the dwelling at 45 Connolly Avenue (No. 45).
3. No. 45 and No. 47 are semi-detached single-storey brick houses built in around the 1950s. They share a party wall which consists of a double skin cavity brick wall from foundation level to around the level of the ceiling in No. 47, and then continues to roof level as a single skin of brickwork on the No. 45 side (Party Wall).
4. In around 2020, the Respondents had building work carried out in No. 45, which included the construction of a room in the attic space (Building Work). In order to construct this room, two new LVL beams, approximately 240 mm x 40 mm, were installed at around ceiling level, and these beams bear onto the brick skin of the party wall on No. 45's side. (Beams). The ends of the Beams bear on the full width of the brickwork skin, such that their ends are visible from within the attic space of No. 47. Unfortunately, the Respondents did not obtain a building permit for the Building Work - they say that their builder erroneously informed them that a building permit was not required, and that they relied on that advice. As a consequence of not having obtained a building permit, the Building Work was carried out without the knowledge of the Applicants, and, on the assumption that a building surveyor would have required protection work to be carried out under Part 7 of the Building Act 1993 (Act), the Applicants did not have the opportunity to assess proposed protection work or the Building Work. Indeed, notwithstanding that the Building Work was carried out in 2020, the Applicants were not aware that the Beams had penetrated the brickwork of the Party Wall until they observed it from their attic space in 2022.
5. As a result of the Beams having penetrated the Party Wall, the Applicants submit that the required fire separation between No. 45 and No. 47 has been compromised. Further, they submit that as a result of the Building Work having been carried out in 2020, it was required to comply with the sound insulation requirements of the Building Code of Australia (BCA), specifically the requirements of Part 3.8.6 of Volume 2 of the National Construction Code, 2019 edition (NCC 2019 Volume 2).
6. The Applicants and the Respondents have not been able to agree what, if any, measures are required to be undertaken on the Party Wall in respect of the matters identified above about the fire separation and sound insulation requirements for the Party Wall. Consequently, the Applicants have referred the matter to the Building Appeals Board (BAB) pursuant to s 158 of the Act for the BAB to consider and determine:

(a) the construction of the Party Wall; and

(b) how much of the cost of construction of the Party Wall is to be met by each of the owners.

1. Further, as a result of the Municipal Building Surveyor for Merri-Bek City Council (MBS) having been made aware of the Building Work, the Respondents have had served on them:

(a) a building order to stop building work dated 22 July 2024 pursuant to s 112 of the Act;

(b) an emergency order dated 22 July 2024 pursuant to s 102 of the Act;

(c) a building notice dated 22 July 2024 pursuant to s 106 of the Act; and

(d) a building order dated 8 November 2024 pursuant to s 111 of the Act (Building Order).

1. The Respondents' solicitor stated to us that the orders referred to in (a) and (b) above had been cancelled.
2. The Building Order ordered the Respondents to demolish and remove the Building Work by 15 December 2024. This date for compliance with the Building Order has been extended by the MBS to 10 July 2025.
3. The Respondents have not yet complied with the Building Order. Instead, they stated that they are in the process of applying for a building permit to carry out work necessary to bring the Building Work into compliance with NCC 2019 Volume 2. They stated that they have engaged a private building surveyor (PBS), and that they made an application to the PBS in January 2025 for a building permit. On the assumption that they receive a building permit, they intend to provide that permit and the associated documentation to the MBS, and seek cancellation of the Building Order pursuant to s 116 of the Act.
4. As part of the documentation provided to the PBS with the application for a building permit, the Respondents provided:

(a) a design drawing of the 'Proposed Attic' at No. 45 dated April 2023 prepared by Scenic Design and Drafting Pty Ltd (Scenic Drawing);[1]

(b) structural engineering drawings numbered S101, S201, S202 and S401 dated 24 April 2024 prepared by Tebbs Engineering;[2]

(c) Certificate of Compliance for Proposed Building Work dated 12 September 2024 prepared by James Jonathan of Tebbs Pty Ltd;[3]

(d) Fire Engineering Performance Based Design Brief dated 19 November 2024 prepared by DDEG (Fire) (DDEG) (Fire PBDB).[4]

1. The Fire PBDB is marked 'not for construction', and the 'conclusion' expressed in section 4.1.10 is expressed to be a 'Preliminary Conclusion'.[5]
2. There are several issues to note in respect of the above documents that are relevant to the Party Wall:

(a) the Scenic Drawing contains a note with an arrow to the ends of the Beams exposed within No. 47 stating:

Provide 50mm thick Bradford Fireseal insulation batts to seal the cavity wall at the ends of timber beam penetrations including the original hanging beams.

(this is referred to below as the Scenic fire specification)

(b) the Scenic Drawing contains no sound insulation treatment for the Party Wall;

(c) the Fire PBDB purports to provide a BCA performance solution with respect to the Beams penetrating the Party Wall, such that the Beams would be permitted to be retained in their current state, provided that all gaps between the timber and the masonry are sealed with a fire rated sealant (DDEG Performance Solution).[6]

1. As noted above the two issues that have been referred to the BAB are in respect of the fire separation and sound insulation requirements of the Party Wall. While the construction required to fulfil any such requirements may overlap, we will consider the requirements separately.

1. The Applicants and Respondents agree that a fire resistance level (FRL) of 60/60/60 is required for the Party Wall. We accept that an FRL of 60/60/60 needs to be achieved.
2. There is disagreement between the parties as to how the required FRL is to be achieved. The Respondents submit that the DDEG Performance Solution demonstrates that the Beams comply with the fire separation requirements of the BCA in their current state, with some minor additional work being carried out as set out in the Fire PBDB. However, the Respondents also submitted that the Scenic Drawing was provided to DDEG prior to preparation of the Fire PBDB, and that the matters contained on the Scenic Drawing, including the Scenic fire specification, are matters that DDEG considered when preparing the Fire PBDB, and therefore the DDEG Performance Solution should be understood to incorporate the Scenic fire specification. Notwithstanding this submission, it is not clear to us that the Scenic fire specification does in fact form part of the DDEG Performance Solution, although Table 3 of the Fire PBDB states that the report is 'based on information contained in', inter alia, the Scenic Drawing. This issue must be clarified.
3. The Applicants submit that the required fire separation should be achieved with a solution that also achieves compliance with the sound insulation requirements of Part 3.8.6 of the NCC 2019 Volume 2. Therefore, the Applicants have provided a drawing AA-03 dated 5 June 2025 that shows a 'Proposed Section B.B' indicating what they consider should be done to deal with both the fire and acoustic issues (Applicants' Proposal). Essentially, the Applicants' Proposal requires the construction of:

(a) 2 x 13mm Gyprock Fyrcheck plasterboard to the face of the single skin of the Party Wall from within the No. 47 attic space;

(b) 70mm x 45mm studs in front of the plasterboard referred to in (a) above with R2.0 insulation;

(c) 2 x 13mm Gyprock Fyrcheck plasterboard attached to the studs referred to in (b) above, extending 400mm into the cavity of the Party Wall to cover the Beams; and

(d) non-combustible insulation blown into the Party Wall cavity below the ceiling level.

1. The Applicants stated that their proposal was adopted from the 'Gyprock Residential Installation Guide - Class 1 and 10 Buildings' and the CSR 'Design Guide - Fire Acoustic and Thermal, Timber Framed Wall Systems'. However, they also submitted that 'adjustments' to the Applicants' Proposal 'are likely required once the Fire and Acoustic Engineer's [sic] complete their review'.[7]
2. As can be seen, the Applicants' Proposal is undertaken from the No. 47 attic space. The Applicants submit that the Respondents should pay them the cost of the Applicants' Proposal, so that the Applicants can have that work carried out. They submit that this is the appropriate course of action to adopt because of the long period of time since the Building Work was carried out, and because, so they submit, the Respondents do not appear to have any sense of urgency to have the issues addressed.
3. We consider the submissions as to the work required below.

1. The Applicants submit that because the Building Work was carried out in 2020, it must comply with the requirements of NCC 2019 Volume 2, and specifically that it must comply with the sound insulation requirements of Part 3.8.6. They submit that because the Building Work included work on the Party Wall, the Party Wall must also be brought into compliance with Part 3.8.6 of NCC 2019 Volume 2.
2. The Respondents submitted that they did not know what sound insulation requirements applied to the Party Wall as a result of the Building Work. They also submitted that issues relating to sound insulation could be dealt with after other compliance issues that are the subject of the current material before the PBS, while maintaining that it was likely that no additional acoustic treatment of the Party Wall would be required.
3. Regulation 233(1) of the Building Regulations 2018 (Regulations) provides:

Building work to alter an existing building must comply with these Regulations.

1. The Building Work, being work to alter No. 45, falls within reg 233(1) of the Regulations, and therefore must comply with the Regulations. Regulation 10 of the Regulations makes the BCA part of the Regulations. The definitions of the 'BCA' and the 'Building Code of Australia' in, respectively, the Regulations and the Act, make it clear that the National Construction Code Volumes 1 and 2 constitute the BCA. As the Building Work was carried out in 2020, the version of the BCA that applies is the 2019 edition. Consequently, the Building Work is required to comply with the NCC 2019 Volume 2.
2. Given that Part 3.8.6 of the NCC 2019 Volume 2 forms part of the BCA, we find that the Party Wall must be constructed, to the extent that it is affected by the Building Work, in accordance with these provisions, noting that both No. 45 and No. 47 are Class 1 buildings pursuant to the BCA.
3. Further, given this conclusion, compliance with Part 3.8.6 of the NCC 2019 Volume 2 needs to form part of the application for the building permit currently before the PBS.

1. We will make orders reflecting our findings that the Party Wall must be constructed:

(a) with an FRL of 60/60/60; and

(b) to the extent that the Building Work affects it, in accordance with the sound insulation requirements contained in Part 3.8.6 of NCC 2019 Volume 2.

1. However, the precise scope of building work that needs to be carried out is less clear. As noted, the Applicants accept that the Applicants' Proposal needs to be reviewed by fire and acoustic engineers. Further, the Scenic fire specification appears to address the required fire separation, but the Fire PBDB needs to confirm that this is the case. The Fire PBDB also needs to provide a conclusion as to the work required to achieve the required fire separation, as well as a clear statement that upon completion of the specified work that the Party Wall will comply with NCC 2019 Volume. The Fire PBDB in its current state is not acceptable because of the matters set out in paragraph 12 above.
2. Therefore, we will make orders that allow the parties to file and serve further submissions as to the precise scope of works required to achieve our findings in respect of the construction of the Party Wall. Any submissions provided should also address the costs and the proportions in which the parties should bear those costs. In preparing such submissions, the parties should take into account the following matters:

(a) the building work required to achieve the required fire separation should not affect or limit the usage in the future of the attic space in No. 47;

(b) while clause 3.8.6.3(a) of the NCC 2019 Volume 2 sets out two alternative methods of complying with Part 3.8.6 of NCC 2019 Volume 2, we note that it may well be more economical to comply with the requirements in clause 3.8.6.3(a)(ii) than using results from laboratory experiments;

(c) the building work required to achieve the required fire separation and the required sound insulation could be combined, as is the case in the Applicants' Proposal, or could be dealt with separately. Further, the required sound insulation is likely to be able to be constructed on either side of the Party Wall. However, we note that the cause of the requirement for the Party Wall to comply with the NCC 2019 Volume 2 is the Building Work, and therefore prima facie it appears to us logical that this work be carried out on No. 45 by the Respondents;

(d) the costs provided by the Applicants in support of the Applicants' Proposal include costs associated with obtaining performance solutions pursuant to the BCA. It appears to us that it may not be necessary to obtain performance solutions in order to demonstrate compliance with the NCC 2019 Volume 2;

(e) submissions should also address the proposed timing of the building work.

1. After submissions have been filed and served, the matter will be set down for a hearing 'on the papers' unless a party requests a further oral hearing.
2. Given our findings, we encourage the parties to consult with each other in respect of the building work required. It is unfortunate that the Building Work was carried out without a building permit, because the application for such a permit is likely to have prevented the issues that are the subject of this proceeding. We urge the parties to recognise that the period of time taken so far to resolve these issues about the Party Wall is significant, and the solutions to achieve compliance should be relatively straightforward.

[3] Noting that it appears that much of the building work certified was carried out as part of the Building Work, and therefore is not 'proposed'.