1. At the hearing, the Respondent elaborated, explaining that protection work is required because the wall of the garage on the Adjoining Property is constructed on[5] the common boundary and constructing the new wall (Subject Wall) on[6] the eastern boundary of the Building Site may undermine the garage on the Adjoining Property (which is constructed on bored piers).
2. We also observe that the Subject Wall is in fact proposed to be longer than the wall of the garage on the Adjoining Property, also sitting alongside a rainwater tank (which is located behind the garage) on the Adjoining Property.

1. The Revised Proposed Protection Work comprises:

(a) the Subject Wall will be setback 150 millimetres from the boundary;

(b) the Subject Wall will be constructed on a 400-millimetre-thick edge beam (Edge Beam);

(c) the Edge Beam is to be bedded in soil identified as 'Grey Silty Sand' (Founding Material);

(d) once the Founding Material is reached, the remainder of the excavation will be done by hand;

(e) the bottom of the Edge Beam will be at RL 76.15, which is 200 millimetres above the bottom of the bored piers of the footing system of the building on the Adjoining Property;

(f) after the excavation is completed, the soil between (and alongside) the bored piers will be supported by 19-millimetre-thick plywood (Temporary Retaining Wall) supported by star pickets driven to a depth of 1300 millimetres; and

(g) the Edge Beam will then be poured against the Temporary Retaining Wall, which will then be left in place (and become lost formwork).

1. Before turning to the grounds on which the Applicants relied to argue that the Revised Proposed Protection Work is not appropriate, it is convenient to address their argument about the validity of the Form 7.

1. The Applicants submitted that the Form 9 determination:[7]

must be quashed due to material technical deficiencies, procedural deficiencies, conflicts within supporting documentation and as it was predicated on a defective and outdated Form 7 notice.

1. The argument that the Form 7 was 'defective and outdated' was based on the Applicants':

(a) observation that after they responded to the Form 7, various changes were made to the proposed protection work and those changes:

materially altered the nature, scope, and engineering configuration of the proposed protection work.

These changes involved substantial amendments to design drawings and technical documentation ... and collectively amount to a new or significantly revised protection work proposal.

The failure to issue and serve a revised Form 7 to reflect these amendments constitutes a breach of mandatory procedural requirements under the VBA Practice Notes and undermines the procedural integrity of the determination process.

A declaration that the Form 7 served by the respondent is invalid for failure to include prescribed information and failure to re-serve upon material amendment.

1. As we understand it, the Applicants do not claim that 'prescribed information' was omitted from the Form 7 at the time it was provided to them.
2. We have reviewed the documentation and are satisfied that, when it was served on the Applicants, the Form 7 contained all required information.
3. What is clear is that the nature of the protection work changed, in response to concerns raised by the Applicants, after the Form 7 was served on them.
4. And, as we understand the argument, the Applicants suggest that the Form 7 then became invalid because a mandatory requirement arose at that point, requiring the Revised Proposed Protection Work to be presented to them by re-service on them of a new form 7 (and accompanying materials).
5. The Applicants filed and relied on a Victorian Building Authority[8] (VBA) practice note entitled Protection Work PW 02, Protection Work Process (Practice Note).
6. In our experience, practice notes usually do not contain 'mandatory procedural requirements'.[9]
7. And, we note that the Practice Note is not available on the Building and Plumbing Commission's[10] website.
8. That said, we have located an 'Approved Statement' issued by the VBA[11] in June 2018, which contains the same passage on which the Applicants relied (with added emphasis):

If the RBS is not satisfied that the prescribed information was provided in the Form 7 notice, including that the proposed protection work is not detailed adequately in plans and specifications provided with the Form 7 notice, the RBS should request additional information. The RBS should also require the owner to revise the Form 7 notice and re-serve it on the adjoining owner...

1. For the reasons set out below, we reject the Applicants' arguments that the Form 7 was 'defective and outdated' and we decline to quash the Respondent's decision on that basis.[12]

1. First, what is described in the passage from the Approved Statement and the Practice Note (above) is not what happened in this case.
2. The Respondent made it clear that he was satisfied that the proposed protection work was adequately detailed and all of the changes that led to the Revised Proposed Protection Work were changes that the Interested Party made voluntarily in an effort to appease the Applicants.
3. Second, it is clear, by the use of the word 'should', that neither the Approved Statement nor the Practice Note purports to record or create a 'mandatory procedural requirement'.
4. Third, we doubt the VBA had the power to make a practice note with mandatory requirements.
5. Fourth, (noting that the Applicants did not cite any provision of the Act in support of this argument) we are not satisfied that any provision of the Act requires a revised form 7 to be re-served when proposed protection work is altered (whether in response to an indication by the relevant building surveyor or in response to concerns raised by an owner of adjoining property).
6. While it might (in some circumstances) be prudent (and therefore recommended) to do so, it is not, in our view, a mandatory requirement.
7. Finally, the Act[13] requires us to:

proceed with as little formality and technicality and with as much expedition as the requirements of this Act and the regulations and the proper consideration of the matter before it permit;

1. The matter before us is consideration of whether the Revised Proposed Protection Work is appropriate, and we are not assisted in determining that question by resorting to exotic legalese regarding the formalities of the process followed.
2. We are satisfied that the steps taken satisfied the minimum legal requirements, and there is no impediment to us 'standing in the shoes of' the Respondent and determining afresh whether the Revised Proposed Protection Work is appropriate.
3. We also find that we do not have the power to make a 'declaration'.
4. Before turning to the merits of the determination, we consider a number of matters raised by the Applicants that are not before us.

1. The Applicants' submissions refer to a number of matters that could not be (and, we record, were not) considered in this proceeding.

Building Permit BSU46641/9290728139949, issued on 10 July 2024, was granted before protection work maters were resolved, in contravention of the Building Act 1993 constitutes a breach of mandatory procedures under VBA Practice Notes. The ongoing delay and lack of agreement on essential protection measures have undermined the insurance provisions now aged over twelve months thereby rendering the permit procedurally deficient and legally unsound.

The Building Permit BSU46641/9290728139949 should be revoked on grounds of procedural impropriety, absence of lawful preconditions for commencement and undermining of the insurance provisions.

1. We do not find that a building permit cannot be issued before protection work matters are resolved.
2. Section 88(1) of the Act provides (with added emphasis):

An owner who is required by the building regulations to carry out protection work in respect of an adjoining property must not carry out building work giving rise to that requirement until:

(a) the adjoining owner agrees or is taken to have agree to the protection work; or

(b) the matter is determined by the relevant building surveyor under this Part; or

(c) in the case of an appeal to the Building Appeals Board in relation to the matter, the matter is determined by the Building Appeals Board.

1. The thing that must not be done is the building work giving rise to the requirement, not the issuing of a building permit.
2. This suggests that a building permit can be issued authorising construction of a building, and it is only the 'building work giving rise to' the requirement for protection work which must not be carried out until protection work is resolved.
3. As noted above, the 'building work giving rise to' the requirement for protection work is the construction of the Subject Wall on[14] the boundary between the Building Site and the Adjoining Property.
4. There was some dispute between the parties as to whether any building work associated with the construction of the Subject Wall had already commenced; the Applicants alleged that it had, and the Interested Party claimed otherwise.
5. Ultimately, we have determined that we do not need to make any findings about this matter, particularly as, on 1 May 2025, the Interested Party gave an undertaking (which no party has alleged has been contravened) to the BAB, to the effect that:

until this matter is resolved, no building work will be carried out within two metres of the boundary between the Building Site and the Adjoining Property.

1. We also confirm the BAB does not have the power to 'revoke' a building permit.

Protection work insurance and dilapidation survey

1. The Applicants claimed that, after they commenced these proceedings:

construction activities persisted unabated and in the absence of a dilapidation survey to document pre-existing site conditions contrary to best practice and protective obligations.

1.1 Permit Issued Without Precondition Fulfilment

• No dilapidation survey (eventually dated 12 March 2025);
• No insurance in place (acquired only 3 March 2025).
• No agreed protection works in place

• Works commenced in September 2024 [unit 3A] and again on 27 February 2025 near the boundary.
• The permit is not staged, despite construction occurring in segments
• WAK Consulting has raised concerns on 5 August 2024 (pp. 2-3) about the legitimacy of the permit and insurance. The permit is now over a year old and procedurally stale.
• These facts demonstrate a substantial failure to comply with statutory conditions and undermine the legal foundation of the permit and the RBS's determination.
• The Building Permit BSU46641/9290728139949 should be cancelled especially due to the undermining of insurance provisions.

Gencon's engineering 4th report ... recommends a structural dilapidation survey due to the elevated risk of over-excavation associated with excavation adjacent to EB1. This measure is intended to monitor potential movement and assess any resultant damage.

1. Section 93 of the Act sets out the requirements for insurance cover to be provided where protection work is required.
2. Section 152 of the Act provides the BAB with the jurisdiction to consider and determine any dispute between adjoining owners 'about the nature of cover to be provided' or 'the amount to be insured' under a contract of insurance obtained in compliance with s 93 of the Act.
3. The Applicants have not commenced proceedings under s 152 of the Act.
4. No matters related to insurance were before us.
5. Section 94 of the Act sets out the requirement for dilapidation surveys to be carried out before the commencement of any protection work.
6. Section 153 of the Act provides:

If an owner and an adjoining owner cannot agree about how or when a survey is to be carried out under section 94 or about the adequacy of a survey carried out under that section, either of them may refer the matter to the Building Appeals Board.

1. The Applicants have not referred a matter to the BAB under s 153 of the Act.
2. No matters related to the requirements for a dilapidation survey were before us.
3. We have not made any findings about either protection work insurance or a dilapidation survey.

Retaining wall north and south of boundary wall

1. In their written submissions, the Applicants submitted:

Despite repeated requests, no landscaping drawing has been provided. On the southern side of the proposed eastern wall, the site cut is approximately 0.5 m below the adjoining ground level, resulting in observable erosion within the garden bed and raising legitimate concerns regarding future soil movement and potential cracking of the driveway. Accordingly, a permanent retaining wall of minimum 0.5 m in height is required along the affected 8 m length to mitigate these risks and ensure structural stability of the adjoining property driveway...

A sleeper retaining wall is proposed on the north side of eastern wall, based on a drawing revised prior to the construction of the current adjoining dwelling. The proposed excavation for the retaining wall extends 1.7m deep and 450mm in diameter below a 100mm slab supporting a 2-tonne rainwater tank on the adjoining property. This drawing must be revised to reflect actual neighbouring infrastructure and ensure excavation and batering [sic] are appropriately designed to avoid destabilisation...

1. During the hearing, the Applicants submitted that the retaining wall to the north of the Subject Wall should be concrete.

1. As set out above, the building work giving rise to the need for protection work identified by the Respondent in the Form 6 is:

the construction of a wall on boundary adjacent to the adjoining land...

1. Whether or not the Form 6 should also have identified the construction of retaining walls north and south of the Subject Wall is a question that we cannot consider because the determination in the Form 6 is not reviewable by us in this proceeding.
2. The only way construction of retaining walls north and south of the Subject Wall could be before us is if we determined that they were necessary to protect the Adjoining Property during construction of the Subject Wall.
3. However, that is not the way the Applicants put their case. Their submissions to us were to the effect that the difference in level between the Building Site and the Adjoining Property north and south of the Subject Wall was itself a matter which should be addressed by protection work, including to protect their driveway.
4. That being the case, we do not consider the retaining walls north and south of the Subject Wall are before us.
5. We have not made any findings about how any difference in finished level north and south of the Subject Wall is to be dealt with.

Appropriateness of the Revised Proposed Protection Work

1. The Respondent observed that the Building Site has no significant slope and submitted that the Revised Proposed Protection Work is appropriate to prevent undermining of the garage on the Adjoining Property during construction of the Subject Wall.
2. The Interested Party clarified a number of aspects of the Revised Proposed Protection Work and likewise submitted that what is proposed is appropriate.
3. The Applicants submitted that the Revised Proposed Protection Work is inappropriate, and raised concerns with:

(a) the Temporary Retaining Wall;

(b) site drainage and moisture management;

(c) lack of protection to the garage wall and roof from falling material; and

(d) inadequate protection of their water tank.

1. The Applicants also submitted that the building on the Building Site should be founded on screw piles.
2. Before turning to those matters, we make some observations about the context of this proceeding which have influenced our determination.

1. Regulation 111(1) of the Building Regulations 2018 provides:

Protection work must be provided by the owner, in relation to an adjoining property, before and during the carrying out of any building work, if the relevant building surveyor determines that protection work is required.

1. Section 84(1) of the Act provides:

An owner who is required by the building regulations to carry out protection work in respect of an adjoining property before or during the carrying out of building work for which a building permit is required must, before commencing the building work, serve on the owner of the adjoining property and the relevant building surveyor notice of the proposed building work.

1. Section 88(1) of the Act provides:

An owner who is required by the building regulations to carry out protection work in respect of an adjoining property must not carry out any building work giving rise to that requirement until -

(a) the adjoining owner agrees or is taken to agree to the protection work; or

(b) the matter is determined by the relevant building surveyor under this Part; or

(c) in the case of an appeal to the Building Appeals Board in relation to the matter, the matter is determined by the Building Appeals Board.

1. Section 88(2) of the Act provides:

The owner must carry out any protection work required by the building regulations -

(a) if the adjoining owner has agreed to the protection work, in accordance with that agreement; or

(b) if the relevant building surveyor has made a determination under this Part in respect of the protection work, in accordance with that determination; or

(c) if the Building Appeals Board has made a determination under Part 10 in respect of the protection work, in accordance with that determination.

1. From the above, it can be seen that the Act seeks to protect the Applicants by requiring the Interested Party to:

(a) specify the nature of protection work to be undertaken;

(b) serve a notice outlining the protection work;

(c) not carry out any building work until protection work is agreed or determined by the BAB; and

(d) carry out the protection work.

1. The Applicants appeared to hold the view that, to be appropriate, the Revised Proposed Protection Work must be perfect, and must guard against every possible risk, regardless of how remote.
2. However, protection work is not the only protection provided to the Applicants by the Act.
3. Section 98 of the Act provides (with added emphasis):

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.

1. As noted by the BAB in Calderazzo v Danks:[15]

Section 98 of the Building Act 1993 provides a mechanism by which an adjoining owner may claim compensation on what is essentially a 'no-fault' basis.

1. Furthermore, the Act contemplates there being no room for dispute as to whether loss or damage pre-dates the building work.
2. Section 94 of the Act provides:

(1) Before the commencement of any protection work, the owner or the owner's agent in company with the adjoining owner or the adjoining owner's agent, must -

(a) make a full and adequate survey of the adjoining property; and

(b) record in writing or by any other means any of the parties desires all existing cracks and defects in the adjoining property.

(2) The record must be signed or otherwise acknowledged as an agreed record of the condition of the adjoining property before the commencement of any protection work.

(3) The record is admissible in evidence in any proceedings relating to the adjoining property and is evidence of the condition of the adjoining property at the time the record was made.[16]

1. Finally, the Act provides for a simple means by which the Applicants will (if damage occurs) be able to obtain any compensation to which they are entitled. This is because s 93(1)(a) of the Act requires the Interested Party to take out 'first party indemnity insurance'[17] on which the Applicants themselves can claim.
2. In this context, we consider the correct approach to be to determine whether what is proposed will provide effective protection against reasonably foreseeable loss or damage.
3. We also proceed on the basis that the Building Work will be carried out by skilled tradespeople in a 'proper and workmanlike way'.
4. We turn now to the concerns raised by the Applicants.

1. The Applicants submitted that, if the Temporary Retaining Wall is left in situ as lost formwork it will:

1. The Applicants also submitted that there is a lack of detail regarding the likely performance of the Temporary Retaining Wall, including a lack of deflection calculations for the face of the wall.
2. Each of these matters is considered below.

1. The Applicants did not rely on any evidence for the assertion that the Temporary Retaining Wall would rot, and nor did they elaborate on what the problems would be if it does.
2. Once the Temporary Retaining Wall has done its job - that is, holding back the soil between and adjacent to the bored piers on which the Applicants' garage is built, each of the two buildings will be self-supporting on their own foundations, and the Temporary Retaining Wall will not have any work to do.
3. We do not consider any issue to arise if it does then rot.
4. We find that this is not a reason to find that the Revised Proposed Protection Work is inappropriate.

1. The Applicants submitted that the presence of the plywood from which the Temporary Retaining Wall is to be constructed will attract termites.
2. Again, the Applicants did not rely on any evidence.
3. The Interested Party submitted that the Applicants' building should have its own termite protection system.
4. We also observe that the boundary fence is a timber fence.
5. We do not see any reason why the Temporary Retaining Wall would create any greater risk of termites than already exists.
6. We find that this is not a reason to find that the Revised Proposed Protection Work is inappropriate.

1. The Applicants claimed that there was insufficient detail provided in relation to deflection calculations for the Temporary Retaining Wall.
2. We note that the Respondent relied on certification provided to him by engineers, whose computations were before us.
3. The Applicants did not call any evidence to contradict the accuracy of the certification.
4. We are satisfied that the Temporary Retaining Wall has been appropriately engineered to perform as required.
5. We find that this is not a reason to find that the Revised Proposed Protection Work is inappropriate.

The development proposal fails to include a coherent strategy for managing rainwater runoff and subsurface moisture migration. There are no provisions for ground moisture control or cavity drainage between the two properties,

leaving the adjoining structure vulnerable to dampness, water ingress, and associated structural deterioration.

1. They also asserted the Temporary Retaining Wall should have a 'seepage drain' and asserted that water will be 'blocked' between the footings of the buildings.
2. We have some doubt as to whether this is actually a concern with the protection work, as opposed to simply being an attack on the manner of construction of the Building Work.
3. Having regard to the topography of the land, we do not consider there to be any need for any further drainage to be detailed on the plans.
4. We find that this is not a reason to find that the Revised Proposed Protection Work is inappropriate.

(a) their property will not be protected from materials that may fall onto the Adjoining Property while the Subject Wall is being constructed; and

(b) they have been provided with a lack of detail as to when and how the Subject Wall will be constructed.

1. In our view, these things are not properly before us. The Respondent's determination (which is not reviewable by us) was that protection work was required to prevent undermining of the garage on the Adjoining Property.
2. That is what the Revised Proposed Protection Work addresses.
3. Even if these matters were before us:

(a) we would not consider the manner of construction of the Subject Wall to be protection work, rather it is simply a detail which the Interested Party is going to have to work out; and

(b) we would not consider boundary protection to be necessary for the construction of a single-storey wall on a boundary.

1. We find that this is not a reason to find that the Revised Proposed Protection Work is inappropriate.

1. As noted above, the Subject Wall is longer than the wall of the garage on the Adjoining Property.
2. Behind the garage is a concrete slab (which the Applicants indicated they laid themselves, without any building permit being issued)[18] atop which sits a rainwater tank.
3. The Temporary Retaining Wall is proposed to sit alongside both the garage and the rainwater tank on the Adjoining Property.
4. The Applicants submitted that the Temporary Retaining Wall is inadequate to protect the rainwater tank (and the slab on which it sits).
5. There is no evidence before us to suggest that the loads from the rainwater tank would be higher than the loads from the garage.
6. We find that this is not a reason to find that the Revised Proposed Protection Work is inappropriate.

1. The Applicants submitted that the building on the Building Site should be re-designed to be a suspended slab on screw piles and claimed that this is what was actually recommended by the Interested Party's 'own engineer'.
2. The Applicants relied on a response, provided by the engineer in an email dated 5 September 2024, which said:

Worst case, we will have to go with screw piles and suspended slab...

1. Clearly, this is not a 'recommendation', it is a recognition that circumstances may arise ('worst case') which might lead to a need for the Building Work to be constructed on a suspended slab on screw piles.
2. There was no evidence before us to suggest that the 'worst case' alluded to by the engineer had arisen.
3. In determining whether the protection work is appropriate, we do not consider there to be any need for (any part of) the Building Work to be changed to a suspended slab on screw piles.
4. We find that this is not a reason to find that the Revised Proposed Protection Work is inappropriate.

1. We find that the Revised Proposed Protection Work is appropriate.
2. Accordingly, we will affirm the decision made by the Respondent.

[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'.

[2] There was actually a protracted exchange involving multiple forms and various responses, however we do not consider it necessary to record all of the details of that exchange - it is enough to record that there was at least one form 7, one form 8 and one form 9, all of which were provided within prescribed time frames, enlivening the Building Appeals Board's jurisdiction to review the Respondent's decision.

[3] If the Applicants are taken to have agreed to the Revised Proposed Protection Work, the Building Appeals Board cannot review the Respondent's decision.

[4] Set out in directions and orders dated 8 May 2025.

[9] Indeed, we doubt that a practice note could do so.

[10] As the Victorian building regulator is now known.

[12] We also note that we doubt that the Building Appeals Board has the power to make a declaration.

[13] Building Act 1993, sch 3, cl 15(3)(f).

[16] As noted above, whether an adequate survey has been undertaken is not before us.

[17] Colonial Range Pty Ltd v CES Queen (VIC) Pty Ltd [2016] VSCA 328, [73]. As noted above, the question as to whether the insurance that has been obtained is adequate is not before us.

[18] Not that we make any finding that one was necessary.