Property owners, building professionals and developers should understand a landowner’s obligation to ensure neighbouring properties are adequately protected when carrying out building work.
As high-density development increases to accommodate an expanding population, the need to consider and budget for the protection of nearby properties when planning building work is critical.
When is protection work required?
The Building Act 1993 (Vic) requires all property owners proposing to carry out building work to ensure that any adjoining property is protected from potential damage. A property owner must consult with the owner of adjoining property if there is a risk of significant damage.
Adjoining property includes ‘land (including any street, highway, lane, footway, square, alley and right of way) which is so situated in relation to the site on which building work is to be carried out as to be at risk of significant damage from the building work’.
Building work means ‘any work for or in connection with the construction, demolition or removal of a building’.
How is the need for protection work determined?
The need for protection work is determined by the relevant building surveyor at the time that an application is lodged for a building permit. The land owner (or agent) must provide the surveyor with detailed information of the proposed work to be carried out.
The surveyor plays a crucial and impartial role in determining the need for protection work and oversees the consultation process and the adequacy of any work required.
A range of matters are considered when determining if protection work is required including, but not limited to, the plans and specifications, the materials and methods to be used for the proposed work, any demolition, excavation and / or construction of party and retaining walls required for the work, and the nature and likely extent of damage on the stability or otherwise of an adjoining property as a result of the proposed building work.
What happens if protection work is necessary?
If protection work is required, an owner must serve a Protection Work Notice on the adjoining owner detailing the proposed building work, and a protection work proposal. The proposal should include the relevant timeframe and duration of the proposed work and be supported with technical details and information to establish that the protection work will eliminate any risk to the adjoining property that might otherwise eventuate.
Within 14 days of service of the notice, the adjoining owner must respond by either agreeing to the proposed protection work, disagreeing, or requesting additional information from the owner.
An adjoining party wishing to dispute the proposed protection work must act promptly as failure to respond to the notice within 14 days constitutes an agreement to the proposed work and the owner may then carry out the work.
If the adjoining owner agrees or does not respond to the Protection Work Notice, then the owner must obtain any necessary permits or approvals for the work and arrange insurance cover for the building work and the adjoining property before commencing.
Insurance must be for a sum agreed between the property owner and adjoining owner, cover the adjoining property for any damage caused by the protection work, and for any liabilities incurred to adjoining occupiers and the general public for the duration of the building work and for 12 months thereafter.
The parties must cooperate in arranging a dilapidation report to identify any defects in the adjoining property and detail its current condition. The report is signed by the parties to acknowledge its present state. The report is used to compare ‘before and after’ defects and may be admitted as evidence in any subsequent proceedings in the event of a dispute.
What type of protection work might be necessary?
The nature of protection work required will depend on the building work to be undertaken and the type of risk to which the adjoining property is exposed. The work may be temporary or permanent and can add considerably to a project’s costs. Examples include:
- ground anchoring and shoring up of adjoining property
- underpinning existing footings
- stabilising works to footings and barriers
- construction of retaining walls and bored piers
- provision of lateral and vertical support
- overhead protection for the adjoining property
- protective works against variation in earth pressures
Unsurprisingly, the property owner / developer is responsible for the direct and incidental costs relating to a Protection Work Notice. This includes the costs of carrying out the actual protection work itself, as well as costs reasonably incurred by an adjoining owner to adequately protect its interests to assess the proposal and supervise or monitor the protection work. These costs can add considerably to a proposed development as the legislation specifically allows an adjoining owner to obtain independent technical advice and to be reasonably compensated for such costs.
Adjoining owners who do not agree to the proposed protection work must notify the owner and relevant building surveyor within 14 days of service of the Protection Work Notice.
The relevant building surveyor must consider the objection and proposed work, determine their appropriateness or otherwise, and provide a written determination to the parties.
Further disputes regarding protection work may need to be referred to the Building Appeals Board. Applications may be made by the owner (or agent), the person or entity carrying out the building work, the adjoining owner, or the relevant building surveyor.
Applications must be carefully prepared with detailed submissions referring to the relevant legislation, the grounds of the application and outlining the preferred outcome. Evidence in the form of drawings, plans, photographs or expert reports should support the application and submissions. Legal advice and guidance are recommended when applying or responding to an application.
Matters before the Building Appeals Board are determined by a panel of members with specialist building and technical knowledge. The panel’s decision is generally binding and may only be appealed at the Supreme Court on a point of law.
The potential for a building project to require a Protection Work Notice should be carefully considered at the planning stage of all building projects. Non-compliance with a Protection Work Notice can expose life and property to risk of injury and damage and may result in substantial liability for the exposed party.
If you are developing property or have been served with a Protection Work Notice, it is prudent to obtain comprehensive technical and legal advice.