Protection Works Explained – the Building Act 1993
By 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
- 95(1)(b) amended by No. 21/2017 s. 99.
- to carry out the protection work required by the building regulations and agreed or taken to be agreed to or determined under this Part.
- 95(2) amended by Nos 33/2010 s. 22, 21/2017 s. 17(1).
- 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 works and the adjoining owner throughout the process of Protection Works is regulated under Part 7 of the Victorian Building Act, and the Part sets out mandatory elements that are requisite for building work to commence. Namely:-
- The issue of Protection Works Notices that must be served by the owner or its agent upon the adjoining owner or its agent.
- Protection Work Response Notices that must be served by the adjoining owner or its agent upon the owner carrying out works or its agent.
- 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 in company with the adjoining owner and is an agreed record by both parties as to the condition of the property. The survey may be admissible as evidence in the event of a dispute.
- Protection Works Insurance, as provided by section 93, which is the responsibility of the owner carrying out works
- As per the Victorian Supreme Court case, You v Thomas ,
“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.”
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
- 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
The “Adjoining Owner Participation Circumvention Method”: Double Certification
There is a way by which the owner carrying out works may circumvent the aforementioned consultative process. This process is generally referred to as double certification. Regulation 603 of the Building Regulations 2006 sets out circumstances under which the Protection Works process may be bypassed. Regulation 603 is extracted below:-
Exceptions to carrying out protection work
(a) no buildings are to be erected or building work is to be carried out or equipment is to be used on, over, under, or in the air space of the adjoining property; and
(b) before commencing the building work the owner provides the relevant building surveyor with—
i. a certificate under section 238 of the Act 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 Act 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.
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 engineer, the other an independent engineer) to provide certificates to the Relevant Building Surveyor certifying that the work is compliant with section 238 of the Building Act (VIC) 1993. Thereafter, the RBS may determine that protection works work may commence.
This process may be used even after Protection Works Notices have been issued, provided that the RBS is satisfied that Reg. 603 has been complied with in its entirety. Nevertheless, if the protection works review process has commenced with Forms 3 and 4 issued, a withdrawal from this process by an owner may be contentious. An example of when an adjoining owner may be aggrieved by this action could be when they have incurred out-of-pocket expenses in circumstances where the adjoining owner has retained an engineer who has subsequently reviewed proposed protection work.
Appeal Rights – The Circumvention Route
Whilst an adjoining owner holds the right to appeal determinations by an RBS under regulation 603 of the Building Regulations 2006, there is little chance of success in overturning the double certification in circumstances where that compliance certificates have been issued by two civil engineers.
Furthermore, despite subsection c) of Regulation 603, the Regulation does not make a building Surveyor liable for damage to the adjoining property given that Section 128 of the Victorian Building Act 1993 exonerates a building surveyor from liability if the building surveyor relies upon compliance certificates issued in good faith by registered building practitioners. However, there is precedent case law that shows that the immunity provided by Section 128 is no exoneration carte blanche – it’s no “get out of jail card”. The case in question is Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liquidation) and Others  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 the onus is still on the building surveyor to closely and meticulously scrutinise building plans.
What is the Remedy at Law for Damage?
The process of double certification does not include a mandatory insurance regime. However, building practitioners are by law required to be insured so an engineer would be accountable at law and insured for negligence. Therefore an adjoining owner would be able to sue the engineer for any negligence associated with compromised protection works that emanate from engineering neglect.
Law suits are not cure-alls as one has to spend money to ‘engineer’ accountability which ironically goes against the grain of that which was intended and indeed underpinned the philosophy of Part 7 prior to the 2006 regulations.
The fundamental take out is this: Protection Works under Part 7 of the Building Act 1993 is an inherently consultative process and double certification is not. It is reasonable to deduce that there is a negative impact upon adjoining owners when they are taken ‘out of the loop’, as it were. It is clear that adjoining owners have an interest in the process and have an interest in being consulted. Kim Lovegrove RML, FAIB of Lovegrove & Cotton, having been heavily involved as instructing officer to parliamentary counsel on development of the Building Act, attests to the fact that the original protection works framework was divined to provide heavy, if not intrusive, input into the protection works consultative dynamic. After all, the adjoining property owner, i.e. the party not carrying out the work the subject of the building permit is the party that can be adversely affected. It is therefore puzzling that the “circumvention route” ousts the jurisdiction and participation of those whom would be adversely affected in the event of compromised construction outcome.
Whilst one would always expect an engineer invested with the responsibility of issuing compliance certificates to be truly independent, this may not always be the case. As under the double certification regime, engineers are instructed by the owner/developer and remunerated by same, there may be concern regarding instances where there exists an established professional relationship between a particular engineer and an owner/developer.
Practical Considerations and the Mileage in using Construction Lawyers
Under the current regulatory regime, construction lawyers often are retained by property owners and adjoining property owners to coordinate the Protection Works process insofar as it relates to Part 7 of the Building Act 1993. A construction lawyer should know of well-regarded engineers or geotechnical engineers who can competently assess engineering computations. Construction lawyers will also be able to negotiate the adjoining owner’s costs associated with ‘assessing’ and ‘supervising’ protection works. Experienced building lawyers will also be able to check and scrutinise the Protection Works Insurance to ensure it is compliant with the Building Act 1993. Moreover, construction lawyers will check that the Relevant Building Surveyor has regard to their obligations and that probity rigours are visited upon the builder, the constructor and associated practitioners. In short, a construction lawyer can check all the boxes are ticked throughout both Protection Works and double certification processes. It follows that there is mileage in retaining a construction lawyer that the consumer knows is on top of the Building Act 1993 building protection works provisions.
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 firstname.lastname@example.org.