The Ins and Outs of Protection Works
By Stefano Marchesin, Lovegrove Solicitors, Construction and Commercial Lawyers
Protection works are building works that an adjoining property owner must undertake to ensure that your property is protected from dilapidation. There are procedural issues that an adjoining property owner must undertake in a timely manner to receive any benefit from the legislation concerning protection works.
The legislation is found in Part 7 of the Building Act 1993 (Victoria). In layman’s terms the legislation is aimed at regulating the process that begins when a building surveyor deems that Protection Works are require.
The First Most Important thing – Notification, Section 84
An Owner undertaking building works must take steps to ensure that the property of their neighbour is not damaged by the carrying out of the building works. Consequently, the first step is the requirement to notify the adjoining property owners of the Building works.
The Second Most Important thing, Sections 85, 86, 87 and 88.
Under section 85 of the Act, the adjoining owner has 14 days to act on this notice, and may 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 dispute them.
An adjoining owner who wishes to dispute the proposed Protection Works must notify the owner and the Relevant Building Surveyor. The Relevant Building Surveyor must then under section 87 of the Act consider the appropriateness of the proposed Works, and make a determination.
A prudent owner may wish to consult Lovegrove Solicitors to assist in this process, as many times we see protection works notices without sufficient detail.
The owner will breach section 88 of the Act if they begin to carry out Protection Works before the Adjoining Owner has agreed, has been deemed to agree, or before the Relevant Building Surveyor has resolved a dispute over the proposed Works. The Protection Works carried out must always be in accordance with the approved proposal. Breaches under section 88 of the Act can attract significant maximum penalties.
The Third Most Important thing -The Dilapidation Report
An Owner is required to make a survey, also known as a ‘Dilapidation Report’ regarding the adjoining owner’s property before commencement of any Protection Works, and record any existing cracks and defects in the adjoining property. This needs to be signed by both parties, and should not be taken lightly, as the survey will be admissible as evidence of the adjoining property’s condition if there is a later dispute with the adjoining owner.
Responsibilities of Adjoining Owners:
Under section 95 of the Act, the owner is allowed a right to enter the adjoining property between 8am to 6pm to conduct a Dilapidation Report, and subsequently for the purposes of carrying out the approved Protection Works. The owner has a further right to remove furniture which would obstruct carrying out of the works. These rights are only limited by the requirement not to cause damage when entering adjoining property, and the requirement to give at least 24 hours notice. The adjoining owner will commit an offence under s96 of the Act if they prohibit or hinder the work of the owner exercising these rights.
Expenses Incurred by Adjoining Owner:
The owner is liable to pay the adjoining owner for all costs and expenses incurred in assessing the proposed Protection Works, and in supervising their carrying out. These costs must be necessarily incurred, and agreed to by the owner. In the event of a dispute regarding whether these costs have been necessarily incurred, the Building Appeals Board will make a determination.
Under section 98 of the Act, an owner must also compensate an adjoining owner for inconvenience, loss or damage suffered by the adjoining owner in connection with the carrying out of the Protection Works.
The Building Commission has the power to order Emergency Protection Works upon the application of an owner or adjoining owner.
Relevant Building Surveyor must provide plans drawings and specifications:
The Relevant Building Surveyor is required under section 92 of the Act to provide any plans, drawings or specifications for the proposed building works to the adjoining owner upon request.
The Fourth Most Important thing – Insurance
Building work that falls within the scope of the Protection Works Notice is not permitted to be carried out until appropriate Protection Works Insurance is in place. This can manifest in a situation where a flurry of work is taking place on a subject site, which may or may not pertain to the Protection Works Notice, resulting in worried and confused Adjoining Owners. The best course of action is for an Adjoining Owner to take note of the relevant sections of the Act and make the appropriate enquiries. If matters do not add up, then legal advice should be sought immediately to preserve the Adjoining Owners position against potential loss and damage from the Protection Works. Note that the insurance must cover the adjoining property owner for a period of 12 months after the completion of the building works.
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© Lovegrove Solicitors 2013