Protection Works matters

In this article, we delve into the following:

• What is a Protection Works Matter;
• When a Protection Works Matter is Required;
• The Process Involved;
• Types of Building Works Requiring Works Agreements;
• Associated Costs;
• Appeals; and
•  

What is a Protection Works Matter:

A building site owner is responsible for ensuring the surrounding properties are adequately protected when construction is set to begin and applies to both commercial and residential properties. To protect the interests of all parties, this entails giving notice, offering insurance, supplying information, and paying any adjacent owners in accordance with the law. ‘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’ is the broad definition of an adjoining property, according to the Building Act 1993 (Vic) (‘Building Act’).

When a Protection Works Matter is Required:

The Building Act requires all property owners planning construction projects to ensure sure adjacent properties are protected. Upon submission of a building permit application, an appropriate building surveyor will ascertain whether protection works are required.

Process

A building surveyor will assess the project scope and whether a protection works notice is required. If the building surveyor determines one is required, the owner of the allotment is required to serve this notice to the adjoining owner. This must be done in Form 7 as prescribed in the Building Regulations 2018 and also be accompanied by information prescribed in Regulation 113 of the Building Regulations and may be served by post. If these requirements are not met, then the service will be deemed inadequate.

From the date of service, the adjoining owner has 14 days to give the building site owner and relevant building surveyor (‘RBS’) a notice, in the form of a Form 8 Protection Work Response Notice either agreeing with the proposed works, disagreeing with the proposed works, or requesting more information. An adjacent owner is entitled to obtain legal advice to confirm the sufficiency of the proposed works, and the site owner is responsible for reimbursing the owner’s costs in assessing the protection works notice. However, there is a 14-day statutory response period and thus the owner must obtain legal advice before this deadline. The requested protective work is automatically approved if no response is received within the allotted 14 days. The owner may move forward with the work if the adjacent owner approves or does not respond within the allocated time. Before beginning development, the owner decides on a sufficient insurance policy to cover any harm to the adjacent property as well as a thorough examination to document the current state of the adjoining property. The adjoining owners must also agree on the insurance amount for the coverage of the other property. If this is not adequately done, it leaves room for liability and therefore it is imperative to seek legal advice before beginning work on the project.

If the adjoining property owner disagrees with the proposed protection works or requests further information, the site owner cannot proceed with the protection work until it is agreed upon. The building surveyor will assess whether the work is acceptable and issue a Form 9, Notice of Determination addressing this appropriateness if a disagreement occurs, and an agreement cannot be reached. According to section 141(a) of the Building Act, the adjoining owner may accept the conditions of dispute after this form has been issued by appealing to the BAB within 14 days.

Types of Building Works Requiring Works Agreements

Protection measures are to be employed to safeguard adjoining properties. Protection works are required for the following:

• Buildings that are near property boundaries, particularly if fences are already in place and need to be removed;
• Constructing near noteworthy trees on neighbouring lands;
• Excavation of a large area or building adjacent to a property boundary;
• Buildings next to side streets or council laneways;
• Buildings constructed adjacent to or above already-existing structures;
• Short-term hoardings or fences that extend into nearby homes;
• Projects that need contractors to enter or pass-through adjacent land to perform construction works; and
• Scaffolding that is installed on the property adjacent to the project.

Please note that this list is not exhaustive. A building surveyor will determine the necessity for protection work notice for your project.

Associated Costs

Under section 97 of the Building Act, the property owner is responsible for encompassing the cost of conducting the work as well as any additional reasonable expenses incurred by an adjacent owner to sufficiently protect its interests in reviewing the proposal and overseeing or monitoring the protection measures. This portion covers the cost of evaluating the planned protection works, including the engineering and legal advice, but not an individual’s loss of income or the cost of any applications to the Building Appeals Board (BAB).

Appeals

Property owners and adjoining owners have the right to appeal the RBS decisions regarding protection works. The BAB will then decide all appeals against the RBS rulings. If there is no other provision in the Building Act that can help resolve the dispute, an appeal to the BAB may also be made on any disputed matters about protection works.

In turn, a party may file an appeal with the Supreme Court on a legal matter if they disagree with the BAB’s ruling on protection works.

Disputes

No work can begin on the project until the protection works are approved. An adjoining owner has fourteen days from the day the protection works notice was served to notify the owner and the RBS if they object to the proposed protection works notice. If no agreement can be reached, the building surveyor must evaluate the objection and determine if the protective work is necessary. Following section 87 of the Building Act, a building surveyor will then issue a Form 9 Notice of Determination. The owner has 14 days from the date this Form is issued to the Building Appeals Board to dispute this judgment. The Building Act requires all property owners planning construction projects to ensure sure adjacent properties are protected. Upon submission of a building permit application, an appropriate building surveyor will ascertain whether protection works are required.

Legal Representation

Protection Works Matters encompass various aspects to safeguard nearby properties of building projects. A skilled legal representative well-versed with the Building Act plays a vital role in clarifying your obligations, ensuring precision with the served notices, and helping you navigate the appeals process when needed. Given the fast-paced nature of protection works matters, coupled with stringent deadlines and legal intricacies, it is crucial to obtain legal advice to ensure that regulatory requirements are met and mitigate any potential disputes.

Contact us today at admin@elaminelaw.com.au or call us at 03 8400 0100 for all your protection works matters.