Protection work requirements of the Building Act 1993

Protection Works, under 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 protect from damage properties belonging to their neighbours.

This is particularly pertinent regarding Works close to common boundaries and Works that require access into a neighbouring property. s95 of the Building Act 1993, provides that if Protection Works are to be carried out by an owner or their agent on the adjoining property, that 24 hours’ notice is provided prior to entering the adjoining property to do this. The adjoining owner must allow access to their property. The section on point is below:

Entry on adjoining property

The Building Act 1993 s95 states:

“(1) 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—

(a) to carry out any survey under section 94; or

95(1)(b) amended by No. 21/2017 s. 99.

(b) 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).

(2) 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.

(3) In the course of carrying out any protection work under section subsection 3, an owner may without doing any unnecessary damage remove any furniture or fittings from the adjoining property which obstruct the carrying out of the work.“

It follows that adjoining owners have the right to 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 importance that are not taken on board. The adjoining owner may also request that the owner or their agent resubmit an amended Protection Works Notice.

The interaction between the owner carrying out Works and the adjoining owner is regulated under Part 7 of the Victorian Building Act, and this 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 it’s agent upon the adjoining owner or it’s agent.
• Protection Work Response Notices that must be served by the adjoining owner or it’s agent upon the owner carrying out works or it’s 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

Per a 2014 Victorian Supreme Court case [1]:

“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. It’s 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 Building Act 1993 (Vic) 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

Appeal Rights

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 from registered building practitioners. S128 and does not provide a carte blanche statutory immunity as reliance has to be in good faith. The onus is still on the building surveyor to closely and meticulously scrutinize the building plans.

What is the Remedy at Law for Damage?

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.

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 may well know of well-regarded engineers or geotechnical engineers who can competently assess engineering computations. Experienced construction lawyers will be able to negotiate the adjoining owner’s costs associated with ‘assessing’ and ‘supervising’ protection works.

Experienced building lawyers will 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.

Expenses Incurred by Adjoining Owner and Compensation Powers

Under s98 of the Building Act, an owner is liable to compensate any adjoining owner for “inconvenience, loss or damage suffered” by the adjoining owner in connection with the carrying out of the Protection Works. Typically the sort of costs that are claimed by way of loss and inconvenience are costs associated with deploying technical experts to ensure that the protection works proposal and associated documentation do in fact provide suitable safeguards against negative building works impacts. Typically legal fees associated with verifying compliance claims are claimed too and ordinarily reimbursed. This is standard practice but the legislation does not state that there is an as of right to entitlement to reimbursement of legal fees.

While parties ordinarily bear their own costs, the Building Appeals Board is empowered to make costs orders where it considers it just.  

Conclusion

The protection works regime was established to ensure that building works carried out proximate to an adjoining property which may negativity impact upon the structural integrity of the immediately adjoining property were regulated. The Victorian protection works scheme is relatively unique to Victoria and it is a proactive system that is designed to avoid protracted litigation that would in other unregulated circumstances involve issues of trespass law.

It legally behoves adjoining property owners to co-operate in a protection works setting likewise it behoves those carrying out the building work to fully comply with the regulations when protection works considerations are in play.

As there is a protection works insurance requirement and as there are a set of legislative requirements that are specific to the protection works dynamic which dictate rigorous compliance, the use of construction lawyers to advise on point is prudent.

By Lovegrove and Cotton lawyers.

Disclaimer

This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact a construction law firm. The experienced team at Lovegrove & Cotton can help property owners and building practitioners resolve any type of building dispute.

References:

[1] You v Thomas [2014] VSC 255.