• On 17 July 2023, the RBS issued his Form 6;
• On 11 August 2023, Mirvac (developer) served the RBS and adjoining owners with its Form 7;
• On 7 September 2023, the RBS received a Form 8 dated 5 September 2024 from the adjoining owner, Mr Tran;
• On 18 September 2023, the RBS issued a building permit for soldier pile installation and capping beam construction;
• On 16 November 2023, Mr Tran appealed to the BAB alleging the failure or refusal of the RBS to make a determination under s87 of the Building Act 1993 (Act)
• On 18 December 2023, Mirvac was added as a party to the appeal

Mr Tran submitted that the Form 7 notice was invalid and his Form 8 was therefore served within the 14 day period in s 85(1) of the Act, therefore requiring the RBS to make a determination under s 87 of the Act. In doing so, he identified the following deficiencies in Mirvac’s Form 7 notice:

(a) the Form 7 was not filled in with his name and address; and
(b) the Form 7 did not set out details of his land or Mirvac’s land and was unsigned

The Court proceeded to quashed the BAB’s determination, and found:

• the Form 7 notice was substantially complete and valid and Mr Tran’s Form 8 notice was not served within the 14 day period. The RBS was therefore not empowered to make a determination under s 87(1) and he did not, as it was deemed accepted by Mr Tran by reason of s 85(2) of the Act. The BAB therefore also did not have jurisdiction to hear the appeal; and

• The BAB denied Mirvac natural justice. The Court was of the view that if Mirvac had been notified that the Board intended to determine the validity of the Form 7 notice, it would have made comprehensive submissions to the Board on this issue

Garde J found at [85] and [91]:

“I conclude that it is not a purpose of the Act or the regulations to invalidate a substantially complete protection work notice merely because some information required by s 84, r 113 or Form 7 is omitted. The protection work notice provided by Mirvac was comprehensive and omitted relatively minor information in the context of an array of detailed accompanying technical reports and plans, supported by advisory correspondence and contact information, and a correctly addressed and signed envelope…..

….. Where there are omissions or deficiencies, the relevant building surveyor, if he or she considers it appropriate, can exercise the powers in s 87 of the Act and obtain additional information. Likewise, the Board can exercise its own powers and obtain additional information should that be needed.”