Protection Works Notices

Formal validity matters when it comes to Protection Works Notices

In a recent Kellehers Australia (KA) case before the Building Appeals Board (VBAB), a litany of procedural flaws by a Registered Building Surveyor (RBS) relating to protection works were regarded as integral to the valid issue of a building permit. The VBAB accepted KA’s submission that Notices issues by the RBS were invalid and should be quashed, granting liberty to apply for costs.

Protection Works

Protection Works are designed to protect adjoining property from the impacts of proposed building or construction works. Works, in this context, can involve underpinning to building foundations, earthworks or above-ground structures designed to maintain the stability of adjoining property and to protect it against potential adverse effects, including on groundwater or soil profile.

In closely settled cities and regional settlements, protection works are routinely required. For obvious reasons, they are also an essential step to avoid damage to existing buildings, landslip, and safety risks.

Building Appeals Board

In Victoria, the Building Act 1993 (Act) and the Building Regulations 2018 (Regs) establish a procedure for managing protection works that the RBS must apply, culminating in a decision about the adequacy of proposed protection works in the prescribed form (Determination).

Where disputes arise about a Determination, an adjoining owner may apply to VBAB to review it and may seek orders that VBAB quash the Determination. In hearing an application, VBAB may inform itself in any manner it thinks fit and must proceed with ‘as little formality and technicality as required for the proper consideration of the matter’[i]. VBAB’s flexible powers to hear matters before it means it often ‘looks beyond’ strict procedural compliance to the substance of the dispute in the interests of efficient justice and dispute resolution.

While parties ordinarily bear their own costs, VBAB is empowered to make costs orders where it considers it just.

Validity of Protection Works Notices

Despite VBAB’s inclination to look beyond ‘technicality’, in the recent decision in Kelly v Milner,[ii] VBAB found that substantial divergence by an RBS from established statutory procedure can invalidate a consequent RBS Determination. In other words, where the actual procedure adopted by the RBS ‘diverged materially and substantially’ from that prescribed by the Act and Regs, the actual forms used may no longer be characterised as having ‘the same effect of the prescribed forms’[iii].

In reaching this conclusion, VBAB applied findings in an earlier VBAB decision in Tao & Anor v Tsimiklis (Tao)[iv]. In Tao, deficiency at the commencement of the protection works process invalidated the subsequent protection works process in its entirety.

In the recent Kelly decision, VBAB critiqued the decision-making process of the RBS and described the multiple errors, mistakes, and flaws in the forms, documents and materials provided to the adjoining owner throughout the protection works process. These issues are included as an endnote.

Importantly, VBAB noted that, had the adjoining owner not applied for review of the RBS’ determination, the errors, mistakes, and flaws in the forms, documents and materials would have had the likely consequence that any building permit issued as a result would have been unlawful[v].

Clearly, invalidity in a building permit as issued has potential to expose the builder, developer, or owner, and also other impacted parties, including potentially the municipal Council, to liability for loss, damage or economic loss.

Conclusion

The recent VBAB decisions in Kelly and Tao emphasize how non-compliance can invalidate the ultimate decision of an RBS and highlight the importance of engaging a suitably qualified, experienced, and independent RBS. Lax, incompetent or biased practice on the part of an RBS risks invalidating the entire protection works process, including a building permit subsequently issued, and exposes a builder, developer or owner to liability.

Kelly and Tao also bring to focus the problems of outsourcing building permit approvals in the building industry. The statutory responsibilities of the RBS are significant. Failure in regulatory compliance and competency, in the manner recently considered by BAB, represents an ongoing issue for the building industry, its regulatory authorities and the Victorian government.

KELLEHERS AUSTRALIA PTY LTD

18 May 2022

This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.

[i] Clause 15 of Schedule 3, Building Act 1993 (Vic) provides that the Building Appeals Board:

may proceed by accepting written submissions or by conducting a hearing; and
may inform itself in any manner it thinks fit; and
is bound by the rules of natural justice; and
is not bound by any rule or practice as to evidence; and
may conduct a proceeding in private if it considers it in the public interest or the interest of justice to do so, but must otherwise hold its hearing in public; and
must 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; and
may proceed with the hearing in the absence of a party to the proceeding if it is satisfied that the party has been given reasonable notice of the date, time and place of the hearing; and
may at any time adjourn the proceeding; and
may deal with proceedings or classes of proceedings together if it is satisfied that they relate to the same parties, the same building, land or building work or the same or related subject-matter; and
may seek the independent advice of a person to assist it in dealing with the proceeding.

[ii] Kelly v Milner & Ors, BAB Case No. 453895. Determination 12 May 2022.

[iii] Ibid. p 13 [35]-[36].

[iv] [2022] BAB 17 (17 January 2022).

[v] Kelly v Milner, at p.14 [42].

Endnote

In its written judgment, BAB found that the description contained in the Form 7 (as served by the RBS) insufficiently identified the particular work and that this posed a risk of significant damage and did not differentiate this work from other domestic building work, including providing no indication of whether foundation, land, footing, lateral or overhead protection may be required.

It found that descriptions contained in Form 7 of the ‘property’ as being ‘REAR OF 12 (West Side)’ and ‘Street/Road’ as ‘????’ were inadequate and brought into question the validity of the Form 6. It noted that the Form 6 was required to be provided with the Form 7 but had not been and found that the Form 7 served by the RBS did not:

1. match the prescribed form, in that it omitted:

the requirement to respond within 14 days or be deemed to have agreed;
the paragraph requiring the response to be in the form of a Form 8 and served on both RBS and the owner/agent of the development site, in the event or disagreement; and
the information relating to a request for further information;

2. outline the nature of the building work that gave rise to the need for the protection work;

3. contain other relevant details of the actual protection work, time and duration of same or whether and what access was required to the adjoining property; or

4. include key prescribed documents including a diagram or sketch of the proposed protection work, a survey, the VBA Approved Statement, a compliant allotment plan, the Form 6 and insurance details. The address of the RBS was a PO Box.

In addition, BAB observed that the Form 9 ‘contained numerous errors and omissions and was not appropriately served.’

In respect of the RBS’s professional conduct, BAB observed that it is a statutory requirement that the RBS must examine the proposed protection works and review relevant building and structural plans. Based on the RBS’s own evidence, BAB found that it could not be certain that the RBS had done this. It also found that the RBS should have concluded that the Form 7 was non-compliant and required further service of a compliant Form 7 on the adjoining owner.

It found that the RBS did not check the Form 7 for compliance with the Form 6 or ensure it was in the prescribed form and included the prescribed information. It noted that the RBS conceded that, when he received the Form 7 served by builder, he did not check it for compliance and that he also conceded that the Form 7 as served was non-compliant. The Board found that, had the RBS checked the Form 7 and applied ‘the expected knowledge’ of the statutory requirements, he would have rejected it and required a new compliant Form.

On receipt of the Form 8, an RBS is required to examine the protection work proposal and determine its appropriateness or otherwise. BAB found that there was no evidence that the RBS did so. The failure to assess the Form 8, in the Board’s view, prevented the RBS being sure whether the protection works were appropriate. To then proceed to issue a Form 9 was, in its view, inappropriate. It noted that s79 BA prevents a RBS being involved in design.

It noted that the Form 9 appeared to have been issued primarily on the basis the access had been denied by the Adjoining Owner, which was refuted by that Owner. The Board found that ‘by his own admission, this lack of access […] prevented [the RBS] from making a fully informed decisions as to the appropriateness of the proposed protection work.’

The Board found that the Building Surveyor ‘did not understand his responsibilities in relation to the making of the Form 9 or its service‘. It noted that the RBS stated ‘he did not know the Applicant’s address and that it was the builder’s responsibility in the scope of his work to serve the Form 9 on the Applicant […] ‘I’m not the builder’, implying that it was not [his] role, as the RBS, to serve the Form 9.’ The Board found that s87(4) BA requires a RBS to give the owner and the adjoining owner notice in writing of his or determination. It noted that, as the 14-day appeal period applies from service of the Form 9, the RBS in this case could not know, with certainty, when he was able to issue a building permit. The Board noted his comments that he would not have issued a building permit because he required a dilapidation survey and insurance and that no access had occurred – and had included these items as end notes on the Form 7, thus, found that regardless of the end notes, it is ‘the owner’s responsibility to ensure these items are satisfied prior to commencing protection work, and not prior to the building permit being issued.’

KELLEHERS AUSTRALIA PTY LTD

Liability limited by a scheme approved under Professional Standards Legislation

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