VIC – Building owners, builders, developers or architects may have dealt with what is known as protection works or protection of adjoining property under the building regulations. The Building Regulations 2006 and Building Act 1993 legislate the protection of the adjoining property owner’s building or property during certain proposed building works when determined to be reviewed by the relevant building surveyor under Regulation 602. Building works can sometimes adversely affect adjoining properties including any street, highway, footway and square; the building regulations provides statutory obligations to allow for this.
Protection of Adjoining Property: Building Regulations
Responsibility for assessing whether the ABS determination protection of adjoining property protection works are required for certain building works lies with the relevant building surveyor for the project under the building regulations. The building surveyor will consider the impact of the new works associated with adjoining property, building and public protection. Examples of building work that will invoke protection of adjoining property notification procedures under the building regulations include:
- Retaining walls in close proximity to the property boundary.
- Bulk excavation works in close proximity to the property boundary.
- Structures proposed to be built right up the boundary.
- Underpinning or footing works that may undermine the adjoining owners footings, property, footpaths, or garden beds.
- The placement of anchor fixings that go under adjoining properties.
- New works that are supported by an existing common party wall.
- Structures in close proximity to the property boundary line and that are being built higher than the existing adjoining structures.
- Demolition works in close proximity to the boundary (requiring a demolition permit).
- Access to the adjoining property for the construction of works associated with the protection works.
- Work next to a public space (public protection).
Protection of Adjoining Property Notices
You must consult with your building surveyor at an early stage of building design to ensure no unnecessary delays are incurred when protection of adjoining property protection works are involved under the building regulations.
The notification process uses two forms specified in the Building Regulations 2006 for protection of adjoining property (Forms 3 and 4) and these are served from the owner or their agent to the adjoining owner(s) and relevant building surveyor. Under the building regulations, the Form 3 Protection Work Notice sets out the nature, location, time and duration of the proposed protection works. The Form 4 ‘Protection Works Response Notice’ is where the adjoining owner responds to the Form 3.
It has three options of reply:
- Agree to the proposed protection works.
- Disagree to the proposed protection works.
- Request for more information on the protection works.
A completed Form 4 must be returned within 14 days or the adjoining owner is deemed to have agreed to the protection works. Issuing the forms by registered mail establishes the date in which these documents were served. It is important to verify that the protection works notices are served on the correct owners of a property.
The building surveyor will examine the proposal for protection of adjoining property protection works on receipt of the Form 4 made under the Building Regulations 2006 and make a determination if the adjoining owner disagrees or requests for more information. The adjoining owner has 14 days to appeal to the Building Appeals Board against this protection works determination of the building surveyor under the Building Act 1993.
Protection of Adjoining Property: Dilapidation Audit
When approval of the protection works has been established, whether by agreement or appeal outcome, a signed survey report (dilapidation audit) of the adjoining property must be conducted to record any defects prior to commencing any protection works. If parties cannot agree on the adequacy of the survey or access for the survey, the matter may be referred to the Building Appeals Board.
The adjoining property can only only be accessed between the hours of 8.00am and 6.00pm (unless otherwise agreed) provided notice has been given not less than 24 hours prior to the visit. It is in breach of the Building Act 1993 to refuse access to the owner if notice has been given 24 hours prior.
Protection of Adjoining Property: Insurances & Costs
The relevant insurance cover for the protection of adjoining property protection works must be obtained before the commencement of protection works under the building regulations; and this cover must continue for a period of 12 months after the completion of the necessary protection work. The policy must cover any damage that may emanate from such work that may affect adjoining owners or members of the public. The amount of cover must be determined by agreement between the owner and the adjoining owners.
Adjoining owners have a right to claim for any costs incurred that are associated with the assessment of proposed protection works and in the supervision of the carrying out of protection work as required. If the parties cannot agree on the costs the matter may be referred to the Building Appeals Board.
Owners or adjoining owners who consider that emergency work is required may apply to the Building Commission. The Commission can direct the owner to carry out emergency work.
Protection of Adjoining Property: As Built Drawings
The owner must serve on the adjoining owner and relevant building surveyor a complete set of plans, drawings and specifications showing the protection work which has actually been carried out in respect of the adjoining property no later than 2 months after the completion of any protection works, under the building regulations and protection of adjoining property legislation.
The general misconception of protection works is that it delays the smooth running of obtaining a building permit. Protection works is a simple but yet effective way of maintaining the safety of the public and property on a job-by-job assessment where different considerations are necessary.