Protect the Price of Your Property: Are Protection Works Infringing on Your Rights as an Adjoining Owner?
Alex Milne, July 2012
Adjoining owners are often the forgotten parties when building works are underway, however they may never forget the harrowing experience which being an adjoining owner can involve. However there is one person who cannot afford to forget an adjoining owner: the relevant building surveyor.
Beginning in the planning application stage, adjoining owners can face concerns that a neighbouring development will diminish the amenity of their own property, and the flow on loss of value. Concerns about overshadowing, loss of privacy, and loss of view are frequently a concern brought to us by adjoining owners who engage our planning specialists to help them prepare objections to developments proposed on neighbouring properties.
However even once all of the planning aspects are worked through and set in stone, adjoining owners still face the challenge of living next door to a building site for potentially up to two years. Whilst the actual developer may live on the other side of the suburb, or even the other side of the world, the adjoining owner suffers the regular noise and visual pollution which can accompany a building site. After months of disruption to their ordinary lives, an adjoining owner’s prize is often that their property less enjoyable to live in, and worth less money.
Whilst not much can be done to ease these hardships, at least the integrity of the adjoining owner’s property has some protection enshrined in part 7 of the Building Act 1993.
Section 84 of the Act compels the owner of the property on which building works are to occur to serve a Protection Works Notice on an adjoining owner if the Building Regulations 2006 require them to carry out protection works.
The Regulations state that protection works must be provided in respect of an adjoining property before and during the carrying out of the building works if required by the relevant building surveyor.
Effectively then the relevant building surveyor is the one who must determine whether protection works are necessary to the adjoining property.
The only way that an owner can proceed without the relevant surveyor making the decision, is if the owner follows the double certification procedure under regulation 603. The owner must provide a certificate from the qualified and registered engineer who designed the building stating that the design complies with the Act and the Regulations. They must obtain a further certificate from an independent engineer who is suitably qualified and registered. Even then the relevant building surveyor must be satisfied that the building work will not affect the stability of, or cause damage to the adjoining property.
In one matter which our firm has conduct of, an adjoining owner faced a situation where the relevant building surveyor had not ordered their neighbour to undertake any protection works. This was despite the fact that three quarters of a the neighbour’s property was being demolished and rebuilt, immediately on the other side of a party wall connected to our client’s property. Unsurprisingly, during the course of the demolition works, very significant structural damage was occasioned to our client’s property.
It was interesting to investigate the remedies which an adjoining owner has to hand in this situation. Firstly there is the obvious remedy against the neighbour personally, for damage caused as a result of a nuisance or negligent act stemming from the neighbour’s property.
Of course the neighbour may well join the builder into the proceeding, and may claim that the builder is partly or fully responsible for the damage caused, as they were the party which physically committed the acts leading to the damage.
Finally liability may rest in the relevant building surveyor themselves. The relevant building surveyor is the one tasked with determining whether protection of the adjoining property is required. He/she is the party that has the power to require protection works where he/she deems that the proposed construction may cause damage to the adjoining property. This statutory grant of power arguably leads to a duty of care owed by a relevant building surveyor in favour of an adjoining owner.
If a case were run against the relevant building surveyor one might argue that the statutory grant of power to the building surveyor ultimately means that there is a proximate relationship between the building surveyor and the adjoining owner, such that the building surveyor can be found to have acted negligently if he/she doesn’t exercise due care in ensuring the protection of the adjoining property.
It is not at all hard to imagine a court finding that such a duty exists. Courts have previously declared that a building surveyor owes a duty to an owner to perform his/her statutory duties with due care. This duty have even been extended to include subsequent owners of the property.
In that it seems likely that a relevant building surveyor could be found to have a duty of care towards adjoining owners, there seems to be a need for building surveyors to take their responsibilities under regulations 602 and 603 extremely seriously. Yet it seems to me that these responsibilities may be little understood by some building surveyors, and many may be unaware of the potential consequences of taking a protection works decision lightly.
Engineers who engage in the process of double certification should also be mindful of the fact that potentially they may face liability, although the scope of any duty of care they are under would be much narrower, as they are not specifically tasked with protection the adjoining property.
The current matter referred to above illustrates the point that where somebody takes a shortcut on protection works, the fallout can be large and scattered. In this case it is foreseeable that all parties including the property owner, the builder, the building surveyor and the adjoining owner will be significantly worse off because of the failure to undertake protection works.
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.
