Obligations To Protect Adjoining Property

 

Building work may sometimes adversely affect adjoining properties. Owners proposing to build have obligations under the Building Act 1993 (the Act) to protect adjoining property from potential damage.

If building work is close to or adjacent to the adjoining property boundary, protection work may be required to ensure that the adjoining property is not affected.

Under the Victorian Building Act 1993 (the Act) Part 7 deals with the protection of adjoining properties from damage caused by protection works undertaken as part of a construction project.

As does Regulation 602 of the Building Regulations 2006 (the Regulations). Regulation 602 provides the relevant building surveyor (RBS) with the discretion to require protection work in respect of an adjoining property.

Regulation 603 also contains the provisions that relieve an owner from having to provide protection in relation to adjoining property.

Protection work is only required when the relevant building surveyor (RBS) determines that it is necessary.

In some case that the RBS may have no other option than to issue a building order to stop building work where adjoining properties are at risk as a result of the building work or protection work being undertaken.

What is protection work?

Protection work provides protection to adjoining property from damage due to building work. It includes but is not limited to:

  • underpinning of adjoining property footings, including vertical support, lateral support, protection against variation in earth pressures, ground anchors, and other means of support for the adjoining property

  • shoring up of the adjoining property

  • overhead protection for adjoining property

  • other work designed to maintain the stability of adjoining property from damage from building work

  • Other work designed to maintain the stability of adjoining property or to protect it from damage from building

  • work including retaining walls and bored piers.

  • any work or use of equipment necessary for the provision, maintenance and removal of work referred to above, whether or not the work or equipment is carried out or used on, over, under, or in the air space above the land on which the building work is, or is to be carried out, or the adjoining property.

How do you know if protection works is required?

When making an application for a building permit for the proposed building work, the applicant (the building owner or agent of owner) is required to provide detailed information about the building work to the relevant building surveyor. The relevant building surveyor will then determine if protection work is required.

What is Adjoining Property?

 

Adjoining property means 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.

Who determines if protection work is required?

The building surveyor (the issuer of the permit) to determine whether protection work is necessary.

What obligations does a property owner have if Protection Works is required?

Amongst other things Serve a Protection Work Notice on an adjoining owner as per section 84. Building work must not be undertaken until the adjoining owner agrees to the protection work or the relevant building surveyor has made a determination on the protection work.

The adjoining owner must respond to the notice no later than 14 days after the notice has been served. They can agree or disagree to the proposed protection work or require further information to be provided.

An adjoining owner who fails to respond to the notice within the required time is deemed to have agreed to the proposed protection work.

A property owner is required by law to pay expenses necessarily incurred by the adjoining owner in protecting their interests. These costs include specialists’ fees to check protection work documentation and expenses relating to the actual supervision of protection work following commencement on-site. For more information give us a call now.

What if a dispute occurs?

The RBS is unable to act as an advocate for the owner or adjoining owner in the process.

The RBS may be able to offer some guidance, but cannot act as the arbiter where differences of opinion occur between the owner and adjoining owner.  

The appropriate body with jurisdiction to determine these matters is the Building Appeals Board (the BAB), through an application by the owner or the adjoining owner. Alternatively, the owner can seek his or her own legal advice by calling us on (enter phone umber here)

What happens if my neighbour's building is attached illegally to my building, and I am planning to remove/modify this part of the building? Is protection work necessary?

Yes, protection work is necessary. Call us to discuss your rights and obligations.

What should I consider in relation to excavations?

Excavations provide additional difficulties for designers, builders and building surveyors and may present serious impacts on adjoining properties in the event something goes wrong.  

When designing protection work for deep excavations or other excavations that will affect the adjoining property, consideration must be given to a lot of things, call us now to find out more.

Does work to a party wall trigger protection work?

Where the proposed building work involves changes to the structural stability, fire rating, or weatherproofing of the wall, protection work would typically be required. Where work is only for painting and rendering, there is little chance protection work would be necessary, but the RBS may determine otherwise, we can take the guesswork out call us now.

Does underpinning of an adjoining building trigger protection work?

Yes, in all cases; and contrary to some opinions, dual certification pursuant to regulation 603 cannot be used in place of the protection work notice process.

What needs to be included in a Protection Work Notice (Forms 3 & 4)?

To ensure the affected adjoining owner has all the information necessary to make an informed decision on the proposed protection work, the Form 3 needs to include the following:

  • Details of the proposed building work

  • Details of the proposed protection work setting out the nature, location, time and duration of the protection work.

  • For more call us now

Can the RBS prepare and issue the Protection Work Notices (Forms 3 & 4)?

The RBS is not permitted to prepare and/or issue the Protection Work Notice (Forms 3), as defined in the Act. The role of the RBS is to determine whether protection work is required in the first instance, and once the Forms 3 & 4 have been served and responded to, must then determine whether the proposed protection work is adequate or inadequate; for that reason, the RBS must be totally separate and independent from the design process of the protection work.

I am an owner-builder; am I required to have insurance for protection work?

Yes.
 

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