Protection Works Disputes

In this article, we will delve into the following key topics:

1. What is a Protection Work Notice;
2. When is protection work required;
3. The need for protection works;
4. Types of building work requiring works agreements;
5. If protection work is necessary;
6. Costs associated with protection work;
7. Disputes regarding protection work; and
8. Legal guidance for protection works notices.

What is a protection work notice?

When doing building work, landowners have a responsibility to make sure that nearby properties are sufficiently safeguarded. This is something that developers, building experts, and property owners should be aware of.

when is protection work required?

All property owners intending to undertake building work are required by the Building Act 1993 to ensure that any nearby properties are safeguarded against potential harm. If there is a risk of severe damage, the property owner must consult with the owner of an adjoining property.

Adjoining properties can include land such as highways, streets, and sidewalks, which are situated near the site of which building work is to be conducted to be at risk of considerable damage from the building work.

the need for protection works:

When a building permit application is submitted, a suitable building surveyor will determine if protection work is necessary. The surveyor has to be given comprehensive information about the planned work to be done by the landowner or their agent. The surveyor then undertakes a pivotal role in assessing if protective work is necessary and supervises the process of consultation and the sufficiency of any necessary work.

Following section 84 of the Building Act, the owner of the building site or its agent shall give written notice to the owner of the adjoining property, detailing the proposed building work as of the notice date, the proposed protection works, the nature, location, time, duration of the protection work, and any other prescribed information. The surveyor shall make this determination when deciding whether to issue a building permit.

Types of building work requiring works agreements:

1. Proximity to Boundaries: Buildings that are near property boundaries, particularly if fences are already in place and need to be removed;
2. Notable Trees: Constructing near noteworthy trees on neighbouring land;
3. Excavations and basement construction: excavating a large area or building adjacent to a property boundary;
4. Council Laneways and Streets: Buildings next to side streets or council laneways;
5. Vertical Building Expansion: Buildings constructed adjacent to or above already-existing structures;
6. Temporary Encroachments: Short-term hoardings or fences that extend into nearby homes;
7. Trade Access: Need for contractors to enter or pass through adjacent land to perform construction work; and
8. Installation of Scaffolding: Scaffolding is installed on the property next door.

If the protection work is necessary:

If protection work is necessary, the owner must provide the neighbouring owner with a Protection Work Notice, in the form of Form 7, outlining the intended building work and protection work proposal, along with any technical information and the applicable time limit.

Section 87 of the Building Act, gives the adjoining owner 14 days from the date of notice service to agree, disapprove, or request more information using Form 8. The failure of the side to respond within the allotted 14 days will be seen as an agreement.

Following section 93 of the Building Act, the owner shall, if the neighbouring owner consents, get all necessary permits or permissions for the work and arrange insurance coverage for both the building work and the bordering property before the work commences. The owner of the adjacent property and the owner of the property must agree on this insurance amount. For a full year after the work is finished, the insurance policy must safeguard the surrounding property, the occupants, and the public.

The type of risk that the adjacent property is exposed to and the type of building work that needs to be done will determine the kind of protection works that are needed. The following categories of protective works may need to be implemented:

1. shoring up and ground anchoring adjacent property;
2. supporting the current footings;
3. supporting structures such as barriers and footings;
4. building bored piers and retaining walls;
5. provide vertical and lateral support;
6. overhead defence for the property next door; and
7. safeguards against fluctuations in earth pressure.

Costs associated:

The cost of conducting the work and any other reasonable costs incurred by an adjoining owner to adequately protect its interests in evaluating the proposal and supervising or monitoring the protection work are all paid for by the property owner concerning the protection work notice.

Disputes:

If an adjoining owner objects to the proposed protection work, they have 14 days from the day the Protection Work Notice was served to notify both the owner and the appropriate building surveyor.
After considering the objection and the suggested work, the relevant building surveyor must decide whether or not they are appropriate and give the parties a written decision.

The building site owner cannot move forward with the protection work unless it is agreed upon if the owner of the adjacent property objects to the proposed protection work or asks for more information to allow the protection work proposal to be evaluated. If a consensus cannot be achieved, the relevant building surveyor is required to assess whether the protection work is appropriate and, following section 87 of the Building Act, to issue a Form 9 Notice of Determination (“Form 9”). According to section 141(a) of the Building Act, if Form 9 is issued and the owner of the adjacent property disputes the determination, they have 14 days to appeal the decision to the Building Appeals Board, where the Board can hear arguments on the subject.

In the event of a dispute, legal representation is strongly advised.

Legal Guidance:

When planning any building projects, it is important to consider the possibility that a Protection Work Notice might be needed. Failure to abide by a protection work notice may result in serious liabilities for the party exposed as well as an increased risk of harm and damage to life and property.

For help with the protection notice dispute, contact us at 03 8400 0100 or admin@elaminelaw.com.au.