APPLICANTS Piyan Shen and Ning Kang (Adjoining Property owners)

RESPONDENT Adnan Ramadan (relevant building surveyor)

INTERESTED PARTY David Chen (Subject Land owner)

ADJOINING PROPERTY 8 Stroma Avenue, Balwyn North

BEFORE Members H Hodges (panel chair), M Otteren and P Irwin

CITATION Shen & Anor v Ramadan [2025] VBAB 93

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 a Form 9 determination dated 27 March 2025 is quashed.
2. 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]

_______________________ ________________________

1. The Applicants are the owners of 8 Stroma Avenue, Balwyn North (Adjoining Property).
2. The Interested Party is the owner of 6 Stroma Avenue (Subject Land)
3. The Respondent is the relevant building surveyor appointed to building work at the Subject Land to perform functions pursuant to the Building Act 1993 (Act).
4. On 23 December 2024, the Respondent issued a Form 6 determination determining that protection work was required for the Adjoining Property. The proposed building work that gave rise to the need for protection work was listed as 'Construction of a Double Storey Dwelling & Associated Garage (1ai, 10a)'.
5. On 29 December 2024, the Interested Party signed a Form 7 which identified the damage that could be caused to the adjoining property as 'Risk to soil erosion, collapse of soil and water damage if not appropriately designed by engineer'. The details of the nature of protection work was listed as:

Build according to structured (sic) engineering certified plans attached.

1. On 14 January 2025, the Applicants responded stated they disagreed with the protection work and requested further information.
2. There is a further Form 7 dated 4 February 2025 which provides the same description of protection work but then contains the following additional information:
   1. 45-degree excavation not affecting your soil
   2. Hit and miss where all holes are drilled, and posts are installed. Your soil would barely be affected by each hole.
   3. Soil removed where your soil would be affected, then the sleepers are installed holding your soil in place.
   4. Process is repeated till (sic) all sleepers are in place, agi pipe is also laid along the whole retaining wall to ensure moisture is drained away.
   5. The soil will be backfilled to fill the gap between the retaining wall and your soil.
3. On 16 February 2025, the Applicants signed a Form 8 disagreeing with the proposed protection work.
4. On 27 March 2025, the Respondent issued a determination (Form 9) pursuant to s 87 of the Building Act 1993 (Act). This states that he received the owner's proposal for protection work on 10 January 2025 and examined same. He considered the proposal for protection work was appropriate.
5. On or about 8 April 2025, the Applicants appealed the Form 9 pursuant to s 141(a) of the Act to the Building Appeals Board (BAB).
6. On 5 June 2025, after some administrative Directions and Orders, the BAB considered the appeal 'on the papers'.

1. The following provision of the Act is relevant to a consideration of this appeal:

87 Effect of disagreement or request for further information

(1) On receipt of a notice under section 85(1)(b), the relevant building surveyor must examine the proposal for protection work and determine the appropriateness or otherwise of the work.

(2) If the relevant building surveyor considers it appropriate in the case of a notice under section 85(1)(b)(ii), the relevant building surveyor -

(a) may ask the owner to give more information before making a determination under subsection (1); and

(b) if more information is requested, must make a copy of that information available to the adjoining owner.

(3) In determining a matter under this section, the relevant building surveyor may make any inquiries he or she thinks fit but is not required to give any person a hearing.

(4) The relevant building surveyor must give the owner and the adjoining owner notice in writing of a determination under this section.

1. The following regulations of the Building Regulations 2018 (Regulations) are also relevant to a consideration of this matter:

(1) The notice required to be served by the owner on the adjoining owner and the relevant building surveyor by section 84 of the Act must be in the form of Form 7 and must be accompanied by the following -

(a) any determination of the relevant building surveyor made under regulation 111;

(b) 3 copies of the notice required to be given by the adjoining owner to the owner under section 85 of the Act;

(c) a statement in a form approved by the Authority, that explains the operation of the protection work process under the Act and these Regulations and the procedure for the resolution of disputes relating to protection work;

(d) plans and specifications for any building work, building or structure that may affect the adjoining property and that contain sufficient detail to show how the proposed building work will affect the adjoining property;

(e) plans and specifications for the proposed protection work that contain sufficient detail to show how the protection work will protect the adjoining property from the effects identified in paragraph (d);

(f) one copy of an allotment plan complying with regulation 25(1)(d).

(2) For the purposes of section 84(2) of the Act -

(a) the prescribed details of the proposed building work are -

(i) the relevant details set out in Form 7; and

(ii) the details in the documents required under subregulation (1)(d); and

(b) the prescribed details of the proposed protection work are -

(i) the relevant details set out in Form 7; and

(ii) the details in the documents required under subregulation (1)(e); and

(c) the prescribed information is any information set out in Form 7 that is not a prescribed detail under paragraph (a) or (b).

115 Notice of relevant building surveyor determination

A written notice of determination by the relevant building surveyor under section 87 of the Act must -

(a) be in the form of Form 9; and

(b) include a statement informing the recipient of the notice of any right of appeal to the Building Appeals Board under section 141 of the Act; and

(c) include the prescribed appeal period under regulation 271 that applies in relation to that right of appeal; and

(d) be accompanied by the owner's proposal for protection work under section 84 of the Act; and

(e) be accompanied by the adjoining owner's notice under section 85(1)(b) of the Act (if any)

(a) There were three sets of engineering drawings submitted during this process, being revisions A, B & C, ("Plan A", "Plan B" and "Plan C". However, Plan A was the document received by the Applicants with the Form 7 and that relevant for our decision.

(b) The Applicants note that Plan A failed to address potential risks to the foundation of their driveway and there were no protective measures in place to safeguard the structural integrity of the Adjoining Property. Plan A fails to address the geology of the site and serious safety concerns and does not have adequate structural protection of sloped concrete driveway, boundary fence or have regard to soil conditions. Further, Plan A does not meet the requirements of reg 113 of the Building Regulations 2018 (Regulations).

(c) Plan B was provided and incorporated robust structural protection measures but was then retracted. This was despite the alterations being made by an engineer after considering the Applicants' response.

(d) Plan C provides the most protection to the driveway but does not offer adequate mitigation of the excavation risks given the depth required and soil conditions. The proposed building work effectively creates a steep drop or cliff beside a low timber fence less than 1m in height which creates a high risk fall hazard. Not risk mitigation is in place for this. Further, there is no consideration of:

(i) The lateral soil pressure from driveway loadings;

(ii) Undermining of concrete driveway edge;

(iii) Fence stability; or

(iv) Water flow and soil erosion risk due to slope and soil conditions.

(e) The Form 9 approved the Plan A excavation to a depth of 1.4 m on the boundary. There is a threat of undermining of the concrete driveway and there is a lack of protective buffer zone.

(f) There are inadequate engineering solutions. Plan B provided a more robust solution including bored soldier piling and shotcrete but the plan was withdrawn.

(g) Plan C appears to be a minor modification of Plan A which offers little improvement over the original design. The hit and miss method proposed does not provide adequate protection given the excavation depth. The soil conditions also include clay and silt which may not support this method.

(h) There has been a lack of transparency regarding why Plan B was retracted and Plan C chosen.

(i) The Applicants have raised concerns with the professional record of the RBS. We note that this is not evidence of whether the protection work is appropriate and will not consider it further.

1. The Applicants seek a more appropriate protection work plan be provided which includes proper regard to the site conditions.
2. The Applicants would like the Form 9 set aside and consideration given to Plan B or alternatively an effective excavation buffer.

1. The Respondent provided the following submissions:

(a) The buffer zone requested would defeat the purpose of protection work.

(b) The engineering design has taken into account the site conditions, the excavation depth and soil pressures. The hit and miss methodology is appropriate for the circumstances to minimise damage.

(c) The security of the site and fall prevention is not part of protection work.

(d) The agricultural drain and engineer design will mitigate the risk of destabilised soil.

(e) The Interested Party has provided multiple responses to the Applicants' concerns and both Plan A and Plan C were certified by engineers.

THE INTERESTED PARTY'S SUBMISSIONS (in summary form)

1. The Interested Party provided the following submissions:

(a) The Interested Party has engaged with the Applicants in good faith and obtained a protection work consultant, Mr Payne, of Deemed to Perform Consulting. Mr Payne was engaged to ensure all protection measures met appropriate standards. The Applicants refused the updated protection work.

(b) The Applicants have not offered any expert evidence in support of their position.

(c) The Applicants appear to believe protection work must eliminate all risk to the Adjoining Property but the test is whether the protection work is appropriate.

(d) The Interested Party states he issued revised and enhanced plans on multiple occasions. This includes an updated protection work package dated 6 March 2025 which is similar to Plan C but has enhanced clarification and confirmation of compliance with applicable codes.

(e) Plan B was issued in error and promptly withdrawn after updated engineering advice which stated the proposed measures were excessive for the relatively shallow and localised nature of the excavation. Both Plan A and C were certified by registered engineers. Plan C complies with reg 113 of the Regulations.

1. The All Metro Geotech Pty Ltd Report dated 6 May 2024 confirmed the site is classified P per AS 2870 which indicates it as problematic.
2. A report dated 3 March 2025 from Deemed to Comply refers to a sleeper retaining wall setback 200mm with granular backfill and agricultural drainage. The hit and miss sequencing minimising the risk of soil subsidence during excavation. The expert has asked the structural engineer to provide the specific hit miss construction sequencing and computations for the loadings of the retaining wall. The bored pier and shotcrete wall are generally proposed for excavations deeper than 2 metres. The engineer noted structural drawings revision A dated 30 January 2025 and recommended reducing the upright spacings and length of the pans. The retaining wall will be set back approximately 150mm from the allotment boundary with backfill and drainage.

1. The BAB is given jurisdiction under s 141(a) of the Act to review the Form 9 decision completed by the relevant building surveyor under s 87 of the Act.
2. We have extracted s 87 of the Act above and note that it requires the relevant building surveyor to examine the proposed protection work.
3. In the current matter, there are two Form 7 documents dated 29 December 2024 and 4 February 2025 respectively. The two Form 8 documents are signed and dated 14 January 2025 and 16 February 2025 respectively.
4. The Form 9 decision states that:
   1. I am the relevant building surveyor appointed on 18/12/2024 under Part 6 of the Building Act 1993 by or on behalf of the owner, David Chen.
   2. On 14/01/2025 I received from the adjoining owner a notice under section 85(1)(b) of the Building Act 1993.
   3. In the adjoining owner's notice, the adjoining owner disagreed with the proposed protection work/required more information to be given to enable the proposal for protection work to be considered by me. I attach a copy of the adjoining owner's notice to this determination.
   4. As a result of the adjoining owner's notice, I am required by the Building Act 1993 to examine the owner's proposal for protection work.
   5. I received the owner's proposal for protection work under section 84 of the Building Act 1993 on 10/01/2025. I attach the owner's proposal for protection work to this determination.
   6. In making this determination, I have examined the owner's proposal for protection work.
   7. After considering all matters required of me under the Building Act 1993 and the Building Regulations 2018, I determine the owner's proposal for protection work is appropriate.
5. The Form 9 makes no reference to the Form 7 document dated 4 February 2025 or the Form 8 dated 16 February 2025. It further particularly references the earlier Form 7 and Form 8. This leads to a conclusion that the Form 9 has not had regard to the updated proposed protection work but rather has made a decision on the earlier Form 7 and Form 8 documents.
6. The RBS has restricted his consideration to an assessment of the appropriateness of protection work outlined in the Form 7 dated 29 December 2024 and the concerns raised in the Form 8 dated 14 January 2025. This also has ramifications for our jurisdiction as we are bound to assess the appropriateness of protection work which was the subject of the Form 9.
7. We note the following set out in the Form 7 dated 29 December 2024:

(a) The Form 7 dated 29 December 2024 provides the following details on protection work:

Build according to structured engineering certified plans attached (sic).

(b) Reg 113(1)(e) of the Regulations (extracted above) requires the Form 7 to include plans and specifications for the proposed protection work that contain sufficient detail to show how the protection work will protect the adjoining property from the effects of building work.

(c) Reg 113(2)(b) confirms the prescribed details of the proposed protection work are the relevant details set out in Form 7 and the documents required under reg 113(1)(e)

(d) The Form 7 enclosed 'Plan A' as the proposed protection work system.

1. Given the above, the BAB has jurisdiction to review the Plan A proposed protection work because this was the protection work proposal enclosed under the Form 7 dated 29 December 2024 and deemed appropriate under the Form 9.
2. We further note that the Form 7 did not actually provide any proposed protection work. It simply attached the structural engineering certified plans. Whilst a method of building construction can also be a protection measure it is not specified how the building method will in fact protect the adjoining property. In this respect, the Form 7 from a procedural view, is inadequate as it does not contain the prescribed information outlined under the regulatory regime of the Act and its Regulations.
3. We further note that it is not our task to assess the protection work outlined in the latter Form 7 and Form 8 documents which amended the proposed protection work to respond to concerns of the Applicants. This may be considered as an acknowledgement that more protection work detail or work was required.
4. We are not satisfied that the proposed protection work will protect the Adjoining Property. Specifically, the protection work, as documented on the Plan A engineering documents has the following deficiencies:
   1. In order for the sleeper retaining wall RW1 to be constructed immediately adjacent to the boundary, a cut close to vertical of up to 1.4m must be established immediately beneath which footing excavations must be drilled up to 1.5m deep. This means local excavations of up to 2.9m. This is a potentially unstable situation, and no geotechnical advice has been provided indicating that it would be stable or that it might require specific works to ensure stability.
   2. Whilst associated documentation refers to staging of (or hit and miss) excavation, the Plan A engineering documents do not require this. At sheet S2.5, they require:

Where retaining walls are proposed in close proximity to existing building (sic) and services, a hit and miss sequence/procedure is to be adopted (contact the relevant engineer in such a case if not shown on these plans).No structural footing shall be undermined during construction.

1. This condition offers no protection for the driveway pavement or otherwise to the adjoining property.

1. Even if a hit and miss sequence was adopted, it would require supporting geotechnical advice and does not obviate the deep cuts what would need to be over 2m long.

1. Whilst there may be other assurances offered in associated documentation, this is insufficient. Protection work must either be documented as submitted on and with the Form 7 or a variation imposed by the Form 9 determination.
2. The above is sufficient for us to conclude that the proposed protection work is not appropriate.
3. We have considered varying the Respondent's decision or replacing it with our own. However, given the lack of geotechnical information, it is not clear what a suitable scheme of protection work may be. Furthermore, to arrive at such a scheme is likely to involve choices and other factors such as construction methods and perhaps alignments. These decisions are best made by those responsible for the project.

[1] Unless the Building Appeals Board otherwise determines, a party to a proceeding before the [BAB] must bear his, her or its own costs (cl 17 of Sch 3 to the Building Act 1993).