Protection Works – Requirements for Building on the boundary

When planning to carry out building works close to or adjacent to adjoining property boundaries, there may be the requirement to ensure protection work relating to the adjoining property is carried out. This ensures that the adjoining property will  not be affected or damaged by any related building work.

Protection work notices have the potential to significantly delay any build and increase fees and costs which may not have been in the budget.

What are Protection Works?

Protection works are works which must be carried out in order to protect an adjoining property from damage.

When are Protection Works required?

Types of protection works include, but are not limited to:

  • Retaining walls where works have been carried out
  • Underpinning of an adjoining property’s footings and barriers to prevent items, building materials and anything else from falling upon the adjoining property
  • Lateral and vertical support
  • Protection against variation in earth pressures
  • Ground anchors
  • Overhead protection for the adjoining property
  • Any works designed to maintain stability or protect it from damage as a result of the building works

It should be noted that protection works apply to both commercial and residential building projects.

Both the Building Act 1993 combined with the Building Regulations 2018 set out a clear process required when dealing with Protection Works:

What is involved in a Protetction Works Notice?

Pursuant to Section 84 of the Act, if you are required to carry out protection work, you must serve the notice to the adjoining owner and provide the details about the proposed protection work. A building permit may not be issued until the protection works process has been completed with the approval of the building surveyor.

The adjoining owner must respond to the notice within 14 days of the notice being served. They can agree or disagree to the proposed protection work or request further information to be provided.

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

Pursuant to Section 84 of the Act:

The notice must include—

  • prescribed details of the proposed building work as at the date of the notice; and
  • prescribed details of the proposed protection work setting out the nature, location, time and duration of the protection work; and
  • any other prescribed information.

Disputes

The  intention of the protection works and protection works notices system is to avoid lengthly drawn out greivancees or the need for litigation.

Disputes regarding protection works often arise when:

  • Adjoining owners disagree with protection works orders; or
  • There has been damage to the related property however the the relevant building surveyor has not issued a protection works order.

TheBuilding Appeals Board (BAB), is an independent statutory body that exists to make determinations on building control matters, including  protection works applications and appeals.

Parties have appeal rights to the BAB if they are not satisfied with the outcome from the relevant Building Surveyor.

Insurance

Building owners must be made aware of protection works insurance to ensure compliance with the Act, adjoining owners and adjoining occupiers must also understand the rights afforded to them under this legislation.

The building owner should obtain appropriate insurance. The insurance should include the provision 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 BAB will determine the matter; and
  • Ensure all instances regarding potential loss and damages are listed in the policy.

Compensation

Pursuant to Section 98 of the Act, a building owner must compensate any adjoining owner or adjoining occupier for associated inconvenience, loss or damage suffered by the adjoining owner or adjoining occupier in connection with  carrying out of the protection work.

If you are considering  to undertake construction works, have received a protection works order, or require additional information regarding protection works, please please contact our Director, Daniel Oldham on (03) 9640 0002, or via email info@oclawyers.com.au

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