Protection Works Notice
Part 7 of the Building Act 1993 (Vic) (“the Act”) encompasses the law associated with Protection Works, which is work undertaken for the benefit and protection of an adjoining property owner. The need for protection works arise out of the Building Regulations 2006 (Vic) (“the Regulations”) and may be required before or during the carrying out of building work for which a building permit is required.
Issuing the Notice
A Protection Works Notice (“PWN”) is issued under section 84 of the Act by the owner of the property undertaking the building works to the owner of the adjoining property owner. The PWN is basically an advertisement that must include the details of the building work, details of the protection work and any further relevant details to the works.
No works can be undertaken whatsoever until 14 days have lapsed (see section 85 of the Act). If the adjoining property owner does not provide a response to the PWN within this time then section 85 of the Act automatically deems agreement on behalf of neighbouring owner.
IF as the adjoining property owner you have any hesitations or unanswered questions with respect to the works, no matter how contentious or impertinent you believe they may be, you should never let a PWN lapse without a response. In addition to this, if you are unsure whatsoever as to your rights and obligations, you should seek the expertise of a construction lawyer at this stage.
Responding to the Notice
There are three ways in which you can respond to a protection works notices as set out in section 85 of the Act:
1. Agree to the proposed protection work;
2. Disagree with the proposed protection work, providing reasons; and
3. Request further information
If the adjoining owner chooses to take the action of either option 2 or 3 of the above, section 87 of the Act will be invoked. This section puts the onus on the Relevant Building Surveyor of the works to make a determination about the ‘appropriateness or otherwise of the work’.
Costs Associated with Responding
Throughout the Relevant Building Surveyors ‘determination’ process and even in deciding how to respond to a protection works notice an adjoining owner will most likely incur costs. These costs will primarily be legal costs, being for advice and acting in the matter on the adjoining owners behalf. Other common costs incurred are those associated with engaging experts, such as engineers or builders to evaluate the two properties in their existing condition and the proposed works.
Unfortunately, none of the above are ‘small change’ type transactions, which not only seems unfair, but is unreasonable to expect a person to cover such costs purely based on the fact that their neighbour wants to build a house or do works to an existing one.
Section 97 entitles the adjoining owner to recover such costs, as mentioned above, from the owner. The recovery of the costs can be agreed by the two parties, or in the absence of any agreement, the adjoining owner can apply to the Building Appeals Board under part 10 of the Act.
If the adjoining owner can justify that the expenses were necessary in assessing the proposed protection works and the supervision of the carrying out of the protection works, then the Building Appeals Board have the power to determine that the costs be paid by the owner.
If you have been issued with a protection works notice or have recently had to incur costs as a result of responding to a protection works notice then you are well within your rights to attempt to have these costs recovered from the owner. We recommend you seek the services of an experience and trusted construction lawyer adept at dealing with such matters.