To enable assessment of the proposed protection work, adequate documentation and supporting details were requested.

1. By an undated letter to the Applicant, the Interested Parties advised that their engineers had inspected the east, west, north and south retaining walls, the underground car park floor and columns and were deemed to be structurally sound. The letter also provided details of the proposed protection work.
2. On 18 December 2024, the RBS issued a Notice of Determination that the proposed protection work was appropriate (the Determination).
3. On 30 December 2024, the Applicant filed with the BAB a Notice of Appeal against the Determination.
4. On 20 January 2025, BAB issued Directions and Orders requiring -

(i) The BDD Engineering Pty Ltd Memorandum dated 13 November 2024 arising from its inspection of the Building Site on 15 August 2024;

(ii) Copies of the most recent engineering computations relating to the proposed protection work and building work;

(iii) Copy of any Regulation 126 Certificate of Compliance relating to the proposed protection work; and

(iv) A response to the matters set out in the letter from the Applicant to the Interested Parties dated 28 November 2024 in respect of the appropriateness of the proposed protection work;

(b) The Applicant to file and serve its Statement of Contentions;

(c) The Respondent to file and serve his Statement of Contentions;

(d) The Interested Parties to file and serve their Statement of Contentions (if any); and

(e) The Applicant to file and serve its Statement of Reply (if any).

13. At the request of the Applicant, on 4 February 2025 John Kotowskyj, a consulting engineer, inspected the retaining wall at the rear of the Adjoining Property to assess any possible impact on its footings.

1. In his report dated 7 February 2025 (the Kotowskyj Report), stated -

The retaining wall waterproofing has failed as has the retaining wall along the Southern boundary and the drainage appear nonfunctioning. Judging by the workmanship in this location and the issues present along the southern boundary we can conclude that the wall has not been constructed to the Design Engineers specifications, safe work practices or general good workmanship practices.

Along the Southern boundary the wall has failed and can be considered "not safe".

Along the Western boundary - due to the failure of the waterproofing and inadequate or nonfunctioning drainage the internal steel to the wall is now exposed to ground water and corrosion - over time this can result in the failure of the wall which subsequently will impact on the building at No 48 Spalding Ave through loss of lateral soil support. Poor drainage and

retention of water behind the wall can also lead to issues with footings and pavements.

We can conclude that the Western boundary retaining wall has failed water proofing and drainage. The section to the South west corner that is currently not connected to the floor slab is potentially not safe as it has not been designed to act as a cantilever retaining wall and is not bonded at the South West corner - the temporary prop in this area should not be relied upon.

Any localized failure will impact the adjoining building floor slab via possible loss of support.

The Southern boundary retaining wall has failed and is a potential safety issue - the Building Surveyor or possibly work safe should be made aware of the situation and install protection works.

The subject site owner/builder should seek Structural Engineers rectification advice prior to proceeding any further.

Please note that the BDD Engineering (Structural Engineering firm for this project) memo issued 13/11/2024 to "Just continue on" should not be followed under any circumstances.

1. In a Memorandum to the Interested Parties dated 6 March 2025 (the BDD Memorandum 13), Theo Balabas of BDD Engineering Pty Ltd stated -

Re: Proposed Community Hall at 53-55 Auburn Avenue, Sunshine North

We have redesigned the building and suspended ground floor slab adjacent to the southern basement wall to alleviate significant vertical loading on the southern boundary wall.

The clockwork piers that are in reasonable condition are taking most of the load as well as the cantilevered concrete band beam.

Once the slab has been installed at ground floor the block work wall will be locked at the top laterally.

We need the ground floor slab installed as a matter of urgency in order to lock in the wall with the slab.

To remove the wall and rebuild it is not practical as it will compromise the neighboring properties.

Once the wall is locked and stabilized, we can further assess and strengthen accordingly from inside the property of No. 53-55 Auburn Avenue Sunshine Basement structure.

16. The hearing of the Appeal took place on 20 March 2025.

17. On 27 March 2025, BAB issued Directions and Orders -

(a) Requiring the Interested Parties to file and serve a timeline of the building work that has taken place on the Building Site;

(b) Requiring the Applicant to file and serve a statement of the implications of the manner in which the Form 7 was served;

(c) Requiring the Respondent to file and serve -

(i) A timeline of determinations and decisions made with respect to the building work that has taken place on the Building Site;

(ii) Copies of building permits, , building notices, building orders or written directions to fix or other enforcement documentation issued by the Respondent in respect of the Building Site;

(iii) Copies of inspection reports;

(iv) Copies of any structural engineering reports or advice depended upon with regard to the western boundary retaining wall;

(v) Details of matters the Respondent considered pursuant to reg 112 prior to issue of a Form 6 for the building work, in particular the nature and likely extent of any damage or other adverse effect on the stability or otherwise of an adjoining property that may be caused by the proposed building work;

(vi) Confirmation as to the status of the building work in progress within the Adjoining Property at or just prior to the issue of the Form 6 dated 17 November 2024;

(vii) Details of the matters considered prior to issue of the Form 9 Determination, noting the queries and concerns raised in the Form 8 Response Notice by the Applicant;

(viii) Clarification as to the rectification works carried out to the retaining wall following the receipt of the letter from the Victorian Building Authority dated 20 February 2020, including copies of engineering advice, design, building permits or any other relevant material demonstrating how the Respondent was satisfied that the wall rectification work was complete, and the wall was considered to meet the approved building permit documentation.

(d) Requiring the parties to file and serve submissions in reply (if any) to the material filed as listed above; and

(e) That the BAB will conduct an inspection of the Building Site and the Adjoining Property at 2pm on 2 April 2025.

THE APPLICANT'S STATEMENT OF CONTENTIONS (IN SUMMARY FORM)

1. 18. The Applicant submits that the BDD Memorandum is inadequate in that -

(a) There is no mention of defects or the repercussions of improper building work, therefore a proper inspection was not conducted; and

(b) Mr Kotowskyj suggests that the advice in that Memorandum should not be followed.

1. The Kotowskyj Report identified multiple defects in the retaining wall and highlights the potential to undermine the integrity of the building on the Adjoining Property and concludes that rectification of the retaining wall is required before any further building work is undertaken on the Building Site. Therefore, the RBS's Determination was clearly made on misleading grounds.
2. Furthermore, due to unresolved issues with the retaining walls, no building work has taken place on the Building Site since 2020. The RBS, an engineer and the Victorian Building Authority (the VBA) concluded that remedial work proposed to ensure the retaining walls are compliant. That remedial work has not been carried out and the RBS's Determination conflicts with these previous findings.
3. Finally, the process for protection work as outlined in Part 7 of the Act has not been followed.

THE RESPONDENT'S STATEMENT OF CONTENTIONS (IN SUMMARY FORM)

(a) The Determination was made in accordance with the legislative requirements and based on the technical evidence available at the time; and

(b) The Applicant's objections primarily relate to the overall development rather than the specific proposed protection work under assessment; and

(c) A request for further information from the Interested Parties was issued on 2 December 2024 to which they responded on 10 December 2024. The response formed part of his assessment and was considered in the Determination.

THE INTERESTED PARTIES' STATEMENT OF CONTENTIONS (IN SUMMARY FORM)

(a) Sebastian Gissara, the Director of the Applicant, has trespassed onto the Building Site to inspect the Building Work without permission;

(b) Due to hindrances from the Applicant and unnecessary restrictions placed on the Building Work, it has been five years since any work has been undertaken;

(c) With no protective works in place, the western wall on the Building Site has been damaged by the Applicant's building work;

(d) The Applicant has been served with a Form 7 on three occasions and has objected to each Notice. The Applicant did not serve a Form 7 in respect of the building work undertaken on the Adjoining Property abutting the Building Site;

(e) The Kotowskyj Report states that -

the retaining wall along the Southern boundary has bowed significantly along its length - approx. 250mm at the worst point.

This is incorrect. Adam Ferguson who conducted measurement for the Interested Parties states -

'From the ground up to 1.5m height, I found the end of the walls to be straight not leaning as much 0.5% or 25mm was the measurements, between the pillars of the wall are 6m long. (sic) These areas are most leaning. Between 1.5% 2.5% and 2mm and 45mm were the gaps. The top of the wall appears to be 100 to 110mm of line, this seemed to be only at the centre of the wall'. (sic); and

(f) The entire western retaining wall was thoroughly waterproofed with AGI pipes in place. Water is seeping because the blocks are unfilled with concrete. The concrete was deliberately left infilled by approximately 50 to 100mm, ensuring the when the slab is poured over and into the edge beam, it will effectively bind and secure the entire structure. The Applicant's wall is only 4 inches from the western retaining wall on the Building Site, but protection work was not undertaken.

THE APPLICANT'S STATEMENT OF REPLY (IN SUMMARY FORM)

(a) If the Respondent had reviewed the Form 7 or the Form 8, he would have concluded that the Applicant has insufficient information to review the proposed protection work;

(b) Not only did the Respondent not require a new Form 7 to be served, but he considered it was appropriate to issue a determination prior to the Applicant receiving adequate information to review the proposed protection work;

(c) The BDD Memorandum 12 was not provided to the Applicant until ordered to do so by the BAB. The Respondent states that this Memorandum formed part of his assessment. In doing so he has failed to comply withs 87(2)(b) of the Act; and

(d) The BDD Memorandum 13 states -

'Once the wall is locked and stabilized, we can further assess and strengthen accordingly'.

It is agreed that the removal and rebuilding of the wall is not practical, but internal strengthening of the wall prior to proceeding with the building works will prevent damage to the Applicant's building.

1. The retaining wall within the zone of influence that could give rise to protection work issues for the Adjoining Property is that on the west boundary of the Building Site that returns around its southwest corner to run east down the south boundary of the Building Site. Although continuous, the two lengths or the retaining wall, the west (the west wall) and south (the south wall), are sometimes referred to separately and this is relevant as most of the issues of concern relate to the south wall.
2. In its current form the retaining wall provides permanent protection to the Adjoining Property. The west wall provides direct protection from ground movement at and adjacent to the eastern boundary of The Adjoining Property and the south wall provides similar indirect protection immediately adjacent to the southeast corner of the Adjoining Property.
3. The retaining wall was constructed in 2014 and/or 2015 and should have been subject to any relevant protection work determinations at that time. BAB does not have jurisdiction to review any prior determinations, and the Applicant has not submitted that these were problematic or at issue.
4. Thus, we are generally accepting that any protection work necessary for the construction of these walls were resolved some 10 years ago.
5. It is possible that a change of circumstances may have required other protection measures relating to the retaining wall. Examples include deterioration of the wall or a change in surrounding conditions. If so, there are a range of administrative measures outside the protection work system, such as notices or orders that may have been appropriate and are outside BAB's jurisdiction in this matter.
6. The Form 6 that initiated the determination under appeal was for Construction of a New Building. There is no evidence before us that this scope of works included any works to the retaining wall other than completion of the connection of the suspended slab that is close to the southern part of the site.
7. Thus, for us to bring the retaining wall into the scope of protection work under appeal we would need to be provided with persuasive evidence that a change of circumstances had occurred to or around the retaining wall such that the Adjoining Property would be at risk of damage during the construction of the new building. For example, if the wall was failing structurally or moving abnormally and compromising protection.
8. Is it appropriate to consider the structural engineering evidence. There are two structural engineers involved who have provided evidence.

(a) John Kotowskyj of John Kotowskyj and Associates (Kotowskyj) who has provided a report dated 7 February 2025 for the Applicant.

(b) Theo Balabas (Balabas) of BDD Engineering Pty Ltd. BDD were the project engineering consultants for the works to the Building Site. Balabas authored two relevant memos of advice; Memo 12 dated 13 November 2024 (Memo 12) and 6 March 2025 (Memo 13).

(c) The engineers' findings were, in chronological order:

1. Balabas's Memo 12 dated 13th November 2024 did not state the date of the inspection informing it but referred to "earlier this year". He opined that no remedial works were required to the existing basement walls (these appear to include the walls in question). Balabas made no mention of protection work.
2. Kotowskyj does not provide the date he conducted his inspection but there is nothing in the report to suggest it was not shortly prior to the reported date of 7 February 2025. Findings and opinions included:

(a) The opinion that the southern retaining wall had failed, this appears to be based upon his observations that it is bowed around 250mm and not designed for its temporary construction condition of being unsupported at the top.

(b) The identification of issues with water proofing, reinforcement placement and distress at the southwest corner.

(c) the opinion that the southern wall was not safe and that "over time this can result in the failure of the wall which subsequently will impact on the building at No 48 Spalding Ave through loss of lateral soil support" This last finding is relevant as it suggests the issue is not one of protection works during proposed construction but a general long-term risk.

(d) Kotowskyj made no mention of protection work.

1. Balabas's Memo 13 did not state if it was informed by an inspection and, if so, when this occurred. Balbas was not specific regarding structural concerns with the south wall but clearly held some as he recommended the balance of the ground floor be constructed as soon as possible to support the south wall and the wall be further assessed. Again, Balabas made no mention of protection works.

1. The Protection Work the subject of this Appeal relate to the construction of a new building, in particular the 'Construction of Assembly Building (Community Dawah Centre) (7a & 9b & 9b & 10b) - Stage 2 (First Pour to Suspended Slab of Ground Floor)', as noted in Item 4 of the Determination issued by the Respondent.
2. The Determination was dated 7 November 2024 and was issued in relation to Building Permit No. 4003473149526. The Determination relates to the construction of the Ground Floor suspended slab only.
3. The suspended ground floor slab connects to the retaining wall located along the southern and western boundaries of the Building Site, which together creates a retention system for the site. The Determination did not include the retention wall, as this was already subject to a separate determination and application for a Building Permit.
4. We understand that the existing parts of the building, including any protection work required in relation to an existing retaining wall located along the southern and western boundaries, were resolved prior to construction of the retaining walls and do not form part of this Appeal.
5. The Determination identified the adjoining properties to be -

(a) 51 Auburn Avenue, Sunshine North, located directly to the south of the Applicant's property; and

(b) 48 Spalding Avenue Sunshine North, located directly to the west of the Interested Parties' property.

1. The Adjoining Property is owned by the Applicant who is therefore the Adjoining Owner for the purposes of Part 7 of the Act and Part 7 of the Building Regulations 2018 (the Regulations').
2. The Form 7 prepared by the Respondent includes a description noted as 'Details of proposed Building Works' followed by a number of bullet points as 'Details of proposed protection work', including

All works to be done as per drawings prepared by Reference Architectural design. Construction of works/wall on boundary to be done as per the architectural drawings. No part of building work will encroach over the title boundary. The construction of the building footing system is as per the engineer's structural drawings designed by Reference Engineer's design. Any building works will be constructed from within the confined allotment we will notify you for your consent if access is required upon your allotment.

1. We note that the description of building works as included on the Form 7 does not align with the Determination issued by the Respondent. The works outlined in the Form 7 indicate 'wall on boundary', whilst the Determination states 'First Pour to Suspended Slab of Ground Floor'.
2. Furthermore, 'Details of proposed Protection Works' include the following scope -
   1. All work is intended to take place from within the property boundary - no structures will be encroaching past your property boundary. Access may be required for the construction and brick washing of wall on boundary - where access is required, temporary fencing and mesh for privacy will be erected on the title boundary for safety purposes
   2. If access is required to conduct works on the adjoining land, approximately 1M of builder plastic will lay to the adjoining site during period of construction to protect land from debris.
   3. A temporary fencing or the like will be erected to protect the adjoining property for the duration of works. If the existing fence is to be removed, it will be reinstated after the duration of works.
   4. At no time is any damage to occur to your property while these works are taking place. In the unlikely event damage may occur, it will be reinstated at our cost.
   5. The use of crane lift, scaffolding, tower, boom or pump or similar equipment may be required to occupy your air space. Any use of your air space will be minimized where possible.
   6. The adjoining soil / land will be retained with a piling and retention system as detailed by engineer (refer to construction procedure).
   7. Only trained and experienced operators will be used on the project with rigs that are used to build commercial high-rise projects with minimizing vibrations.
   8. If at any time on site it is evident that the proposed works will cause any possible detriment to your allotment, works will stop, and the design engineer will be engaged to assess the situation
   9. If further remedial works or the like is required, the design engineer shall design the system, and you will be provided to review the design prior to works proceeding.
3. Items i. ii., and v. do not relate to protection work, but relate to trespassing whereby express consent must be sought by an owner to access an adjoining owner's land for the purpose of undertaking building work. Section 95 of the Act only permits an owner to enter an adjoining owner's land to carry out agreed protection work, not to carry out construction work.
4. We consider this is a matter to be resolved between the Applicant and Respondent directly should the need arise.
5. Furthermore, Items vi. and vii. appear to relate to piling works, whereas the Determination relates to the Ground Floor Suspended Slab. Therefore, it is unclear to us why this was included in the Form 7.
6. In relation to Item iii, a fence for protection work does not appear to have been indicated on plans as part of the Form 7 package, nor was a temporary fence along the southern or western boundary observed during our site inspection. It is therefore unclear to us the intention and location of the temporary fence and why this was included in the Form 7.
7. Although Items viii and ix relate to the protection work forming part of the Determination, we consider these items as a general and implied requirement of the Act on an owner carrying out building work subject to the protection of an adjoining property.
8. The Form 7 does not appear to specifically relate to the works forming part of the Respondent's Determination, namely the pour of the Ground Floor Suspended Slab. Notwithstanding, we recognize that the structural design documentation forming part of the Protection Work Notices served includes the details of the Ground Floor Suspended Slab.
9. The Applicant confirmed Protection Work Notices included the Determination, the Form 7, preliminary architectural drawings, structural drawings and Certificate of Currency - Insurance, which Applicant confirmed receipt on the 19 November 2024.
10. The Applicant prepared a response to the Form 7 in a letter dated 28 November 2024; not in the prescribed Form 8 as required by reg 114. Notwithstanding we consider the comments included by the Applicant as part of this Appeal.
11. The Applicant alleges that the Form 7 was invalid for the following reasons -

(a) Incorrect ownership details of 48 Spalding Avenue Sunshine North;

(b) Three copies of the Form 8 were not included;

(c) Commencement, duration and completion date of the works were not stated; and

(d) Only preliminary architectural plans and non-readable paper copies of plans were included.

1. The Applicant then provides a list of information to be provided, including -
   1. Clearly state the nature and methodology of the works that require protection works, the details provided are inadequate for assessment. The form 7 notes 'construction of the building footing system' however the footing system and retaining wall adjoining to 48 Spalding Avenue appears to already have been constructed? Are you implying that there will be remedial works to this footing system and/or retaining walls? If so, provide a clear description and methodology of all building/protection works that will be undertaken for our review including any demolition and how the adjoining property will be affected and protected.
   2. Clearly state the nature and methodology of the works that require protection works, the details provided are inadequate for assessment. The form 7 notes 'construction of the building footing system' however the footing system and retaining wall adjoining to 48 Spalding Avenue appears to already have been constructed? Are you implying that there will be remedial works to this footing system and/or retaining walls? If so, provide a clear description and methodology of all building/protection works that will be undertaken for our review including any demolition and how the adjoining property will be affected and protected.
   3. As our building is currently under construction, access on 48 Spalding Ave or any airspace above will not be permitted.
   4. The Insurance provided is not compliant, please provide a compliant Protection Works Insurance Contract for our review (Contractor or standard construction policy is insufficient)
   5. As stated in the building act 1993, can you confirm that the owners of 53-55 Auburn Ave Sunshine Nth will pay the adjoining owners for all costs incurred in assessing and supervising the protection works.
   6. As stated in the building act 1993, can you confirm that the owners of 53-55 Auburn Ave Sunshine Nth will compensate the adjoining owners for any inconvenience, loss or damage suffered by the adjoining owners.
   7. Can you confirm that all building works along the boundary and protection works will be supervised and inspected by us and our certified representative.
2. We note that although the Form 7 may not have been fully correct, the Applicant nonetheless had the opportunity to respond to the Form 7 by requesting further information.
3. In considering the further information as requested by the Applicant we make the following observations -

(a) In relation to items i. and ii., considering the Determination related to the Suspended Ground Floor Slab, whilst the Form 7 discussed piling and retention systems, the Form 7 was not clear as to the proposed building work or the proposed protection work.

(b) In relation to item iii, access by an Owner onto an adjoining owner's land is permitted pursuant to section 95 of the Act, but only for the purpose of carrying out protection work. An adjoining owner is permitted to refuse entry for all other reasons, including crane swing and for construction purposes. That said, we do not consider item iii. as a protection work issue, but rather a trespass issue.

(c) Items iv - vii are all items required by the Act to which the owner must adhere and is not required to be confirmed or provided to the adjoining owner as part of a Form 7. These items must either be satisfied prior to commencement of or during the carrying out of protection work. Furthermore, we recognize that the Owner must compensate an Adjoining Owner for any loss suffered in connection with carrying out of protection work.

1. Following the receipt of the letter from the Applicant, the Interested Parties responded to the seven items raised by the Applicant and included updated architectural drawings.
2. The Interested Parties noted the following -
   1. Nature and Methodology of Protection Works

No remedial works to the footing system and /or retaining wall adjoining 48 Spalding Ave will be required.

We acknowledge construction works at 48 Spalding Ave therefore we do not require access and airspace for our building works.

We intend to start work mid December 2024 and hopefully complete 30% of August 2025. Note: The engineers recommend pouring the slab as soon as possible and locking it in.

Already installed and the site will be pumped out (De watered ) as required.

Up to suspended slab the project is subcontracted. Subcontractors Liability attached

1. The responses provided by the Interested Parties, other than to note that a temporary fence will not be required, do not further clarify the protection work applicable to the Suspended Ground Floor Slab,
2. We note however that the response includes details of protection measures for above ground works, such as scaffolding and dust barriers. Above ground works are outside the scope of the Determination issued by the Respondent and we therefore consider this to be subject to a separate Determination by the Respondent.
3. It is unclear to us that noting the Form 7 did not contain clear information as to the methods of protecting the adjoining properties, other than structural plans noting the works to be carried out, how the Respondent concluded that the proposed protection work was appropriate.

1. Noting that the Determination dated 18 December 2024 pre-dates both the Kotowskyj report and Memorandum 13, the Respondent cannot have been fully informed when he made the Determination under appeal.
2. There is sufficient evidence of structural concerns with the retaining wall for the Respondent to seriously consider putting measures in place. These may range from routine inspection and confirmation measures to notices and orders and event emergency provisions.
3. It is not impossible that part of such measures could involve the scope of protection work provided for the Adjoining Property, particularly if structural remedial works are carried out to the wall.
4. Much of the form of appropriate response/s, is outside the scope of BAB's jurisdiction in this Appeal and, although we have ancillary powers, it is generally more efficient for the RBS to advance such matters.
5. We are not persuaded to uphold the RBS's decision due to the engineering inputs that appear to constitute a change in circumstances since the Determination was issued.
6. Therefore, considering all the above comments we will remit the matter to the RBS to reconsider his Determination considering the directions below -

(a) To ensure the integrity of the retaining wall, obtain all and any necessary structural and other professional inputs to confirm a suitable scope of works

(b) In a timely manner, consider the Kotowskyj report and any other relevant independent structural engineering input provided to him by the Applicant.

(c) To ensure that any necessary works are part of the building permit approval process.

(d) To consider such works and the current state of the retaining wall in any review and revision of his Determination.

[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'.