If you are planning to carry out building work on your property, you may be required to carry out protection work to adjoining properties to ensure that they are not affected or damaged by your proposed building work.
What are protection works?
Protection works are works which must be carried out in order to protect an adjoining property from damage.
The Building Act 1993 (Vic) (the Building Act) broadly defines ‘adjoining property’ as:
‘… land, including any street, highway, lane, footway, square, alley and right of way, situated in relation to the site on which building work is to occur as to be at risk of significant damage from the building work’.
Examples of protection works include, but are not limited to:
Underpinning of adjoining property footings;
Erecting retaining walls where works have been carried out;
Overhead protection for adjoining property; and
Other work designed to maintain the stability of adjoining property from damage from building work.
Protection works apply to both commercial and residential building projects.
When are protection works required?
The Building Act imposes an obligation on parties carrying out construction works to their property to protect the adjoining property from any potential damage which is likely to arise as a direct result of the building works.
When applying for a building permit, the building owner is required to provide detailed information about the building work to the relevant building surveyor. The relevant building surveyor will review the information and determines whether protection works are required.
If protection works are ordered by the relevant building surveyor, the building owner must carry out the protection works as required by Regulation 602 of the Building Regulations 2006.
There is also an obligation under section 92 of the Building Act requiring the relevant building surveyor to provide any plans, drawings or specifications for the proposed building works to the adjoining owner upon request.
Protection works notices
If protection works are required, a notice detailing the proposed works must be served on both the relevant building surveyor and the adjoining owner pursuant to section 84 of the Building Act.
The adjoining owner has 14 days to respond to the notice pursuant to section 85 of the Building Act. If they do not respond within this timeframe, they are deemed to have consented to the protection works.
If the adjoining owner agrees or is deemed to have agreed to the proposed protection works, the building owner may proceed to carry out the works after obtaining any necessary permits or approvals.
If the adjoining owner responds within 14 days, disputing the works in the notice, the matter is then referred to the relevant building surveyor who must then consider the works and make a determination pursuant to section 87 of the Building Act.
No works may be commenced without the consent of the adjoining owner pursuant to section 88 of the Building Act. Once consent has been obtained, the building owner gains a right of entry into the adjoining property for the purpose of undertaking the protection works. The adjoining owner must not prohibit or restrict access to their land insofar as entry is necessary to allow the building owner to undertake the protection works.
The adjoining owner must obtain a dilapidation report prior to the protection works commencement pursuant to section 95 of the Building Act, at their own cost.
The building owner must ensure that upon the consent or approval of the protection works, that insurance is obtained pursuant to section 93 of the Building Act.
Building owners should note that a standard Construction and Public Liability policy will not normally provide the minimum cover required.
Protection works must not be commenced until insurance has been obtained, and the following cover provided for:
Damage to the adjoining property;
Agreed to by all parties;
All works for a period of 12 months after its completion;
If there is a dispute, the Building Appeals Board will determine the matter; and
Ensure all instances regarding potential loss and damages are listed in the policy.
A key aim of the protection works and protection works notices scheme is to avoid long complaints processes or litigation.
Notwithstanding this, disputes regarding protection works often arise when:
Adjoining owners disagree with protection works orders; or
There has been damage to the relevant property but the relevant building surveyor has not issued a protection works order.
The relevant building surveyor’s decision may be referred to the Building Appeals Board in an attempt to find a resolution.
A decision of the Building Appeals Board may be appealed to the Supreme Court of Victoria, however potential applicants should note that this process may be costly and lengthy.
If you are proposing to carry out construction works, have received a protection works order or would like more information regarding protection works, please contact Urban Lawyers today.