More Ins and Outs of Protection Works: Double Certification
By Stefano Marchesin, Lovegrove Solicitors, Construction and Commercial Lawyers
The legal process for protection works fosters inclusion and exchange between the adjoining property owner and the owner undertaking building works. For example, it is a legal requirement to notify the adjoining owner of the building works, and the adjoining owner has 14 days to respond with a yes, no or further information request about the building works. If no response is received by the owner undertaking building works, the proposed protection works are deemed to have been accepted by the adjoining owner.
The adjoining owner has the right to have a say about the proposed protection works, which makes sense. For example, an adjoining owner can request further information, receive the information and dispute the method of protection works, and require the builder to resubmit a Protection Works Notice. But sometimes this process can cause delays where there is friction between the adjoining property owner and the owner undertaking building works – the process can loop and repeat.
However, the relevant legislation has foreseen this issue of loop and repeat and the owner undertaking building works has a circuit breaker in Building Regulations 2006 (Vic) clause 603(b)(i)(ii),(c) and (d), which allows the proposed building works to be undertaken under what is colloquially known as the double certification scheme, or legally as “Exceptions to carrying out protection work”. This legislation allows the owner undertaking building works to seek:
(i) a certificate under section 238 of the Building Act (Vic) 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
(ii) a further certificate under section 238 of the Building Act (Vic) from an independent engineer 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
(c) the relevant building surveyor is satisfied that the building work will not adversely affect the stability of, or cause damage to, the adjoining property; and
(d) before carrying out the building work, the owner provides the adjoining owner with a copy of the certificates provided under paragraph (b), and all documents referred to in the certificates (including design drawings).
This allows the relevant building surveyor to make a determination on the issue of the potential protection works, allowing the carrying out of building works, bur without requiring the Protection Works Notice procedure to be followed. If the adjoining owner still disputes the decision, they can refer the matter to the Building Appeals Board by way of section 155 of the Building Act (Vic).
Building Regulations section 603 allows for a determination by the relevant building surveyor by way of consensus between independent engineers. The consensus must be to the effect that if a certain design is followed, the adjoining property will be adequately protected. This legislative provision can be used as a circuit breaker when an adjoining property owner is unreasonably withholding consent to proposed protection works, or protection works issues.
This article is a simple overview of the issue of proposed protection works consent issues with the adjoining owner and does not constitute legal advice. For legal advice on complex or simple protection works issues, either for the adjoining owner or builder, contact us at Lovegrove Solicitors.
The Lovegrove Smith & Cotton E-Library is a free online resource of articles, which puts a wealth of information at your finger tips. The articles in the E-Library have been written by lawyers and a number of them have been published in the Australian, The Age and the Herald Sun. Some of the articles date back to the 1990’s. To access click here.
© Lovegrove Smith & Cotton 2014