Too Little too Late? The Standing of Adjoining Property Owners Under The Victorian Building ACT?
By Hamish Singh, Lovegrove & Cotton.
As we know, disputes between neighbours occur fairly frequently.
Many such matters relate to overlooking and overshadowing, building too close to boundaries, overhanging tree branches, excessive noise emanating from air-conditioning units, and community objection to development that may have the potential to cause adverse amenity impacts.
In addition, land disputes over fencing, waste management and easements are also a source of concern for adjoining owners.
However, the Building Act 1993 (Vic) (the Act) does not explicitly provide an avenue for redress for adjoining owners, unless it relates to the protection works requirements set out in Part 7 of the Act.
Protecting adjoining Property under the Act
It is not uncommon for adjoining property to be affected by building works on the subject land. Prior to commencement, a ‘protection works notice’ under section 84 of the Act may be issued to serve notice of works to protect an adjoining owner’s property.
Protection work is defined in the Act as temporary or permanent work to protect an adjoining property, including such matters as underpinning, provision of ground anchors, shoring up of the adjoining property, overhead protection, or other work designed to maintain the stability of adjoining property or protect it from damage from building work.
An owner on whose property building works are to be carried out has an obligation under the Act to protect adjoining or neighboring properties from potential damage.
The Act defines adjoining property as:
Adjoining property means land, including any street, highway, lane, footway, square, alley and right of way, situated in relation to the site on which building work is to occur so as to be at risk of significant damage from the building work.
Given the typical circumstances where domestic building work may commence, it is not unusual that the owner may be required to carry out protection work to minimize potential damage to an adjoining property.
What obligations and rights does an adjoining owner have under the Act?
The Relevant Building Surveyor (RBS) must determine if the adjoining property needs protection during the proposed building works. Section 84 of the Act then allows for the service of a ‘protection works notice’ on the adjoining owner by the site owner, if the RBS determines protection works are required in accordance with the building regulations.
If a notice has been served, then the adjoining owner must respond to the notice within 14 days, pursuant to section 85 of the Act. If the adjoining owner fails to give a notice in response to the owner within the required time they may be deemed to have agreed to the proposed protection work.
If the adjoining owner agrees or is deemed to have agreed to the proposed protection work, the owner may proceed to carry out the protection work after obtaining any necessary permits and/or approvals.
Part 7 of the Act therefore affords adjoining owners with a right to participate in the protection works process, if the proposed building works are likely to have an effect on their property.
However, the Act manifests a clear intention to limit the rights and standing of an adjoining owner in regard to the decisions and discretions that may be exercised by the RBS.
This is evidenced by the lack of a statutory duty to oversee rectification work of the builder if the builder on the subject land builds defectively so as to affect an adjoining owner, for example where the proposed building work did not require protection works notices to be served, but there has been an inadvertent concrete overspill onto a neighbour’s land.
While there is no specific statutory duty for the RBS to, say, reply to letters from an adjoining owner about such defective building, they would be wise to do what they can to direct a builder to rectify if such problems come to their attention.
In regard to the protection works process in Part 7 of the Act, the adjoining owner has an ability to respond to a protection works notice by agreeing or disagreeing with the proposed protection work or requiring more information to be given. They are given an ability to inspect plans of such works and can claim from the site owner all costs and expenses necessarily incurred by the adjoining owner in assessing proposed protection work and in supervising the protection work.
Therefore, whilst adjoining owners clearly have standing under Part 7 of the Act, and have defined rights at an earlier stage during the Planning Permit process, their rights and standing are curtailed in respect to other aspects of the Building Act, for example in regard to applications for a Building Permit, and the issue of Building Notices or Building Orders by the RBS. This is true whether a Council Building Surveyor is in the role of RBS, or whether it is a private Building Surveyor acting.
Case On point
In Keller, Hans & Conrad, Doris v City of Sandringham & Ors [Bayside City Council]  1 VR 356; 8 VAR 377, the case concerned a dispute involving an adjoining owner and the owner of the subject land, being a former tennis great. The controversial domestic building works were about to proceed under a Building Permit that had been granted to the site owner.
Justice Batt observed at 45 “the scheme of the legislation in question here manifests a clear intention to exclude an obligation to observe any of the rules of natural justice towards adjoining owners in respect of either of the kinds of applications made by the second and third respondents.”
The contrast between the provisions relating to protection work and those relating to permits according to Justice Batt “could not be more marked” at paragraph 48 and further at 49 “…the contrast with an adjoining owner’s rights on planning applications is also marked.”
Ordinarily he said, it would be in keeping with custom to accord parties affected by a decision some form of procedural fairness, and in particular a “hearing” in some form or other.
We note that in some cases involving overlooking/ overshadowing, or building to close to a boundary, adjoining owners have been allowed to “have their say” at the Building Appeals Board, on the basis of procedural fairness or natural justice. However, if the appeal involves such matters as a Building Order issued by an RBS to the owner, the adjoining owner is highly unlikely to be allowed to be joined to the proceeding as a party. This is because the determination is in regard to the statutory rights and obligations of the site owner only, flowing as they do from the original Building Permit.
Justice Batt went to examine s49 (1). S19, s20, s.52 (1) (a) and s52 (1) (d), 87(1) (e) and 89(1) of the Planning and Environment Act, where under that Act owners of property are afforded greater rights to oppose applications or to appeal decisions.
Other sections of significance in the Building Act that reinforce this theme of limited standing, include s24 (1) (c) (requiring consent from a reporting authority, but not from an adjoining owner) and s25 (requiring notification of reasons only in the case of refusal of a permit and then only to the applicant).