Protection Works & Double Certification Explained

Protection Works & Double Certification Explained

29 Apr 2019

Lovegrove & Cotton – Construction and Planning Lawyers

Protection Works, as per Part 7 of the Building Act 1993, are carried out when the Relevant Building Surveyor for a building project deems that the adjoining property may be affected by the proposed works. The VBA may also declare, under section 89, that emergency protection work is required for an adjoining property. Part 7 of the Act serves to ensure that owners proposing to carry out building works on their own property ensure that neighbouring properties a protected throughout the process.

This is particularly pertinent regarding Works close to common boundaries and Works that require access in to a neighbouring property. Section 95 of the Building Act 1993, provides that if Protection Works are to be carried out by an owner or its agent on the adjoining property, and 24 hours’ notice is provided prior to entering the adjoining property to carry out protection works, the adjoining owner must allow access to their property. The section on point is below.

Entry on adjoining property

  • An owner or the agent of an owner may enter between the hours of 8 a.m. and 6 p.m. on, over, under or into the air space above any adjoining property—
  • to carry out any survey under section 94; or
  • to carry out the protection work required by the building regulations and agreed or taken to be agreed to or determined under this Part.
  • The owner must give the adjoining owner not less than 24 hours’ notice or such other notice as may be agreed between the parties, before the owner or the owner’s agent enters an adjoining property under subsection (1).

Penalty:     50 penalty units, in the case of a natural person;

250 penalty units, in the case of a body corporate.

  • In the course of carrying out any protection work under this Part, an owner may without doing any unnecessary damage remove any furniture or fittings in the adjoining property which obstruct the carrying out of the work.

It follows that adjoining owners have the right to have very active input and participation regarding the “belts and braces” that shape the Protection Works to be carried out on their property, including the right to reject the Protection Works Notice if reasonably satisfied that there are omissions or matters of import that are not taken on board. The adjoining owner may also request that the owner or its agent resubmit an amended Protection Works Notice.

This engagement between the owner carrying out the works and the adjoining owner throughout the process of carrying out protection works is regulated under Part 7 of the Victorian Building Act. This Part sets out the mandatory elements that are necessary for the carrying out of building works, namely:-

  • Protection Works Notices must be served by the owner or its agent upon the adjoining owner or its agent.
  • A protection works response must be served by the adjoining owner or their agent upon the owner whom is proposing the protection works.
  • A dilapidation report as provided by section 94. This is a survey of the condition of the adjoining property prior to the building work. The survey is conducted by the owner carrying out works and is an agreed record by both parties regarding the condition and status of the property.
  • Protection Works Insurance, as provided by section 93 of the Building Act 1993. It is the responsibility of the owner to procure this insurance cover.

The Victorian Supreme Court case, You v Thomas [2014], sheds light on the nature of the intricacies of the cover:-

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”

“I have come to the conclusion that an insurance contract wherein the adjoining owner is not named as the insured will not, for that reason alone, fail to comply with s 93(1)(a). That section requires there to be a contract of insurance indemnifying the insured against damage by the protection work to the adjoining property. Its purpose is the protection of the adjoining owner against loss. An insurance contract upon which the adjoining owner was unable to recover would necessarily fail to comply with s 93(1)(a), for it would not in effect indemnify the adjoining owner against loss. In my opinion, s 93(1)(a) requires that the adjoining owner be insured under the contract.”

“… by operation of ss 20 and 48(1) of the Insurance Contract Act 1984, a person may be insured under a contract without being explicitly named as the insured.”

It follows that the insurance cover must then:-

  • Indemnify the insured for losses that may be occasioned by any liability to the third party;
  • Such losses will be damage and liabilities that emanate from the carrying out of protection works where such losses impact upon the adjoining property;
  • Needless to say, the party indemnified will be the property owner.

It is very important that the representatives of the adjoining owner are provided with a copy of the current insurance cover on point.

The Role of the Relevant Building Surveyor (RBS) in the Protection Works Process

Section 87 of the Building Act 1993 provides that on receipt of a Protection Works Response Notice from the adjoining owner, the RBS will examine the appropriateness of the proposed protection works and make a determination. The RBS may ask the owner carrying out building work for further information prior to making a determination. The RBS will then approve or refuse the proposed protection works as provided by section 87 subsection 4.

Appeal Rights under Part 7 of the Victorian Building Act 1993

Section 141 of the Victorian Building Act 1993 provides that an owner or an adjoining owner may appeal a determination made by the RBS under section 97 to the Building Appeals Board (BAB). An owner or adjoining owner may also appeal a declaration made under section 89 by the VBA regarding emergency protection works to the BAB. If an appeal is made to the BAB, building work must not be carried out until that appeal has been determined by the BAB.

The Powers of the Building Appeals Board

The BAB may make determinations regarding:-

  • How and when protection work will be carried out – “emergency protection work”
  • The nature of cover to be provided under a contract of insurance under section 93 and the amount to be insured under that contract
  • How or when a survey is to be carried out under section 94 or the adequacy of a survey carried out under that section
  • The costs and expenses necessarily incurred by the adjoining owner in supervising protection work. These expenses typically include the cost of the adjoining owner’s deployment of engineers that are briefed to examine the protection works documentation and make recommendations pertaining to their adequacy or lack thereof. There is nothing precluding application being made for reimbursement of legal fees incurred. The due diligence, in the writers’ experience, they are typically covered.
  • Other disputes between owners and adjoining owners when they cannot agree in relation to a matter arising under Part 7 of the Building Act 1993

Double Certification

There is an alternative avenue that may be considered by the RBS to the protection works process courtesy of the double certification avenue. Regulation 112 of the Building Regulations 2018 sets out circumstances under which the Protection Works process may be ‘bypassed’. Regulation 112 is extracted below:-

Regulation 112. Matters relevant building surveyor must consider when determining if protection work required

“For the purposes of making a determination under regulation 111, the relevant building surveyor must have regard to—

(g) any certificate under section 238 of the Act from a registered building practitioner in the category of engineer, class of engineer (civil), who designed the building work; and

(h) any certificate under section 238 of the Act from an independent engineer who is a registered building practitioner in the category of engineer, class of engineer (civil), certifying that the structural design of the building work complies with the Act and these Regulations…”

It follows that in circumstances where all works and associated protection works are to the confines of the subject site, an owner or its agent may deploy two civil engineers (one the project designer, the other an independent engineer) to provide compliance certificates to the Relevant Building Surveyor certifying that the work is compliant with the Building Act (VIC) 1993 and the Regulations. Thereafter, the RBS may determine whether protection work is required.

Appeal Rights

Whilst an adjoining owner holds the right to appeal determinations by an RBS under regulation 112 of the Building Regulations 2018, it would be difficult to overturn a double certification in circumstances where compliance certificates that comply with section 238 of the Building Act 1993 have been issued by two registered building practitioners in the category of civil engineering.

However, there is precedent case law that shows that the immunity provided by Section 128 is no exoneration carte blanche. The case in question is Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liq) (No 2) [2001] VSC 279, where the court found that the building surveyor was not entitled to rely on a compliance certificate in good faith after a building inspector did not correctly measure the height of a balustrade which was too low and which the owner had subsequently fallen over. The court found both the building surveyor and the building inspector liable. It follows that a large onus remains with the building surveyor to closely and meticulously scrutinise building plans. As found by his Honour, Eames J at [270-272]:-

in my opinion it is contrary to the requirement of Regulation 15.7(2) for neither the regulations nor the Code provisions to be stated, at all, in the certificate. Given that it is contended on behalf of the surveyors that the scheme of the legislation provided a complete indemnity if they acted on a certificate it seems to me to be logical that as to “the part of the building work” which has been inspected the draftspersons intended that the inspector should specify what sections of the Act, regulations or Code applied.

Given, further, that the surveyor is meant to be an expert as to the legislative provisions (and is much more highly qualified than an inspector) it would be perfectly reasonable that the inspector’s opinion of the relevant provisions should be specified so that they might be checked by the surveyor before acting on the certificate. After all, what service is it for which the surveyor charges his fee – a much larger fee than that of the inspector? The fee charged is for the performance of a duty which under the legislation remains the surveyor’s own obligation, notwithstanding that the mechanical task of inspection may be delegated.

I conclude that the certificate presented by Smith did not comply with the regulations, and on that basis alone the immunity provisions would not apply. However, be I wrong as to that, the very fact that the form was completed in the minimalist manner in which it was would be an important factor in the question whether there was good faith accompanying the reliance on it.”

What is the Remedy at Law for Damage?

Double certification does not necessitate the procuring of protection works insurance specified by section 93 of the Building Act 1993, but this does not mean that there is no capacity to provide indemnification for negligent certification on the part of the engineers by virtue of the fact that they are required by law as registered building practitioners to be insured.

Conclusion

The protection works process under Part 7 of the Building Act 1993 is an inherently consultative process when compared to the double certification avenue, which is not.

Adjoining property owners whom are impacted upon by a protection works dynamic should approach the process with great care and ensure that they avail themselves of the protective mechanisms under the Building Act, which after all were designed to protect them from the negative consequences that may flow from building work carried out in close proximity to their buildings, and moreover that come within the defined parameters of the Building Act. Prudence would always motivate an affected party to engage construction lawyers to provide advice on point and to ensure that the protection works rigours contemplated by the building act are brought to bear at law.

Lovegrove & Cotton Lawyers to the building industry

For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Justin Cotton, likewise, is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Committee, for HIA Victorian Chapter. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.