Double Certification versus Protection Works under Part 7 of the Building Act 1993 (Victoria)
Lovegrove Smith & Cotton
An owner undertaking building works needs to ensure that the property of his or her neighbour is not damaged by the carrying out of the building works. Before deciding upon which methodology to adopt, it is paramount to understand how each distinct method works.
Steps involved in Protection Works
According to section 84 of the Building Act 1993 (Victoria) (“the Act”), “an owner who is
required by the building regulations to carry out protection work in respect of an adjoining
property before or during the carrying out of building work for which a building permit is required must, before commencing the building work, serve on the owner of the adjoining property and the relevant building surveyor notice of the proposed building work.”
Under section 85 of the Act, the Adjoining Owner has 14 days to act on this notice and may either agree or disagree with the proposed Protection Works, or require further information from the owner so that the Relevant Building Surveyor can consider the proposal. Failure to dispute the proposed Protection Works within 14 days will mean that the Adjoining Owner is deemed to have agreed, and loses the right to raise a dispute about this prior to the issue of a Building Permit.
The owner will breach section 88 of the Act if they begin Protection Works before the Adjoining Owner has agreed, has been deemed to agree, or before the Relevant Building Surveyor has made a determination about the proposed Works.
Under section 98 of the Act, an owner must compensate an Adjoining Owner for inconvenience, loss or damage suffered by the adjoining owner in connection with the carrying out of the Protection Works.
Steps involved in Double Certification Method
Under Regulation 603 of the Building Regulations 2006 (Victoria) (“the Regulation”), an owner can avoid the requirement to carry out Protection Works in a situation where the proposed building works will not require intrusion into, over and under the Adjoining Owner’s property. In this situation, the Works must be certified as compliant with the Act by the project’s engineer and by a further independent engineer.
According to Regulation 603(b) and (c) of the Regulation, the Relevant Building Surveyor must also be satisfied that the Works will not damage or adversely affect the stability of the adjoining property. Before commencing the building work, the owner must provide the Relevant Building Surveyor with—
- a certificate under section 238 of the Act from the engineer who designed the building work who is a registered building practitioner in the category of engineer, class of civil engineer,
certifying that the structural design of the building work complies with the Act and these Regulations; and
- a further certificate under section 238 of the Act from an independent engineer who is a registered building practitioner in the category of engineer, class of civil engineer, certifying to
the same effect as the first certificate.
Pursuant to Regulation 603(d), before carrying out the building work, the owner must provide the Adjoining Owner with a copy of the certificates mentioned above, and all documents referred to in the certificates.
Should a survey also known as a ‘Dilapidation Report’ of the Adjoining Dwelling be carried out under both methods?
According to section 94 of the Act, before the commencement of any protection work, the owner or
the owner‘s agent in company with the Adjoining Owner or the Adjoining Owner‘s agent, must make a full and adequate survey, also known as a ‘Dilapidation Report’ of the adjoining
property and record in writing or by any other means any of the parties desires all existing cracks and defects in the adjoining property. The record must be signed or otherwise acknowledged as an
agreed record of the condition of the adjoining property before the commencement of any protection work. The record is admissible in evidence in any proceedings relating to the adjoining property and is evidence of the condition of the adjoining property at
the time the record was made.
On the other hand, the Act says nothing about whether a Dilapidation Report is required under the Double Certification Methodology, but it is advisable to organise a survey of the adjoining dwelling prior to carrying out the building work to serve as evidence in case there is a dispute after the building work has been completed (“belt and braces approach”).
Is Protection Works Insurance required?
It is a requirement pursuant to section 93 of the Act that an insurance policy is in place prior to the commencement of Protection Works, although the Act does not specify what type of insurance is required. However, in the Victorian Supreme Court case of You v Thomas , his Honour Justice McMillan stated that “The type of insurance contemplated by s 93(1)(b) of the Act is liability insurance, that is, insurance whereby the insurer undertakes to indemnify the insured for loss suffered as a result of liability to a third party.”
It should be noted that it is not the responsibility of the Adjoining Owner to ensure that appropriate Protection Works Insurance is in place; it is the responsibility of the Owner.
The Protection Works Insurance must provide cover for any liabilities likely to be incurred to an Adjoining Owner during the building work and for a period of 12 months after that
building work is completed. The Insurance is to be taken out by the Owner and not their Builder, as Protection Works Insurance is entirely different to Building Insurance.
The Act does not state that Protection Works insurance is required under the Double Certification methodology but our recommendation would be to put the Protection Works insurance in place to protect the Owner. This is in case the professional indemnification given to the engineers that provide the certification is inadequate, if there is any negligence that flows from the building work to the adjoining property.