Protection of adjoining property is a mechanism prescribed in Victorian building legislation to reduce the risk of building work on one property or allotment causing significant damage to adjoining properties. On a fairness level, it makes sense. Why should building work on another property be allowed to cause significant damage to your property?
When correctly followed and administered, the protection work process can be collaborative and result in good outcomes for all parties, helping to mitigate damage to buildings and avoid costly and time-consuming litigation.
When incorrectly followed, the protection work process can lead to significant delays to building projects, damage to property and expensive, drawn-out legal proceedings.
This Insights article offers some explanation on key components of the protection work process in the form a Q&A.
Why have I received a protection work notice?
If you have received a protection work notice, it is because building work is proposed on neighbouring properties that has the potential to cause significant damage to your property.
What is protection work?
Protection work is defined in the Building Act 1993 as:
- permanent or temporary work of—
- underpinning, including the provision of vertical support, lateral support, protection against variation in earth pressures, provision of ground anchors and other support for adjoining property; or
- shoring up of adjoining property; or
- overhead protection for adjoining property; or
- other work designed to maintain the stability of adjoining property or to protect adjoining property from damage from building work; or
- any work or use of equipment necessary for the provision, maintenance and removal of work referred to in paragraph (a)—
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.
When is protection work required?
Where a relevant building surveyor (RBS) is assessing an application for a building permit and they form the view that the proposed building work has the potential to cause significant damage to an adjoining property, then the building surveyor will, or should, determine that protection work is required to protect the adjoining property from damage. Where it is determined to be required, the building surveyor must issue a Form 6 – determination that protection work is required.
When deciding whether protection work is required, the RBS must consider such matters as proximity of building work to boundaries, any demolition that is required, any excavations that are required and the likelihood and extent of damage to your property.
What happens when the RBS determines that protection work is required?
The owner of the allotment where the building works are proposed is required to serve a protection work notice, along with other specific information, on you as the adjoining the owner.
The protection work notice must be in the form of a Form 7 as prescribed in the Building Regulations 2018 and must be accompanied by the information prescribed in Regulation 113 of the Building Regulations 2018. If these requirements are not met, then the service of the protection work notice is invalid and it must be re-served.
What should I do now?
On receiving a protection work notice, Section 85 of the Building Act 1993 outlines you have 14 days to provide a response. Your response must be in the form of a Form 8 – protection work response notice. Your response can:
- agree to the proposed protection work; or
- disagree to the proposed protection work; or
- request that more information be provided so that the RBS can consider it.
What if I agree with the proposed protection work?
If you have assessed the proposed protection work and are satisfied, you should complete the Form 8 – protection work response notice and return to the adjoining owner advising that you agree with the proposed protection work. This then allows the building permit to be issued and the protection work and building work can proceed.
What if I disagree with the proposed protection work?
If you have assessed the proposed protection work and are not satisfied, you should complete the Form 8 – protection work response notice and return to the adjoining owner advising that you disagree with the proposed protection work.
If you disagree, that does not necessarily mean that the protection work will not proceed. Once you disagree, it is then up to the RBS to decide (determine) whether or not the proposed protection work is appropriate. Once the RBS has made their decision, they are required to give notice in writing, in the form of a Form 9 – Notice of determination under Section 87 of the Act.
What if I request more information?
If you have assessed the proposed protection work and you feel that further information is required, you should complete the Form 8 – protection work response notice and return to the adjoining owner advising that you require further information with the proposed protection work. This then causes the RBS to have to assess and come to a decision as to the appropriateness of the protection work. Once the RBS has made their decision, they are required to give notice in writing, in the form of a Form 9 – Notice of determination under Section 87 of the Act.
What if I don’t respond to the protection work notice?
Assuming the protection work notice was correctly served, if you do not respond within 14 days, you are deemed to have consented to the protection works as outlined.
What if I disagree with the decision of the RBS?
If you disagree with the determination of the RBS, you have the right to appeal that decision to the Building Appeals Board (BAB) within 14 days of receiving the Form 9 – Notice of determination under Section 87 of the Act. Appeal rights are lost after the 14-day period has expired.
Since protection work notices are legal documents, the language they use can occasionally be confronting and they may use building industry terms with which you are unfamiliar.
As such, professional advice from a registered building surveyor is strongly recommended, as this will ensure that you are being provided with the appropriate advice to assess the protection works and more likely to result in a favourable outcome.
The team at Ryan Building Consulting can assist you with understanding and interpreting the protection work notice, assessing whether the proposed protection work is adequate to protect your property from significant damage and ensuring that protection work process is being properly administered.
Contact us today to discuss your protection work notice and the ways that we can assist.