Many of us have heard about or come across “protection work notices”, but what are they, and how can they halt your build or development?
It is very important to understand the concept and potential impact of protection work notices, even if you were lucky enough not having to deal with one in your previous build or development.
Protection work notices have the potential to significantly delay your build and increase your costs. You could end up incurring greater cost which you didn’t budget for, which for developers, could mean it digs into your profit, or in some cases, being sued.
It is crucial to consider all protection work notices, and the costs involved, before you even draft up your plans.
Here are 5 of the key points you need to know about protection work notices:
1. Protection Works – what are they?
The distinction between protection work and building work is very fine, and can often be confused. They are two separate concepts, however are not mutually exclusive. Protection work forms part of the building work.
Specifically, protections works are a bundle of works, which must be carried out in order to protect adjoining properties from damage.
Types of works may include:
- Retaining walls where works have been carried out
- Underpinning of an adjoining property’s footings and barriers to prevent items, building materials and anything else from falling upon the adjoining property
- Lateral and vertical support
- Protection against variation in earth pressures
- Ground anchors
- Overhead protection for the adjoining property
- Any works designed to maintain stability or protect it from damage as a result of the building works
2. Circumstances in which protection works are required:
If protection works are applicable to your development, it is essential to be across your obligations to comply with protection works notices and any potential liabilities which may arise.
As the developer, you have an obligation pursuant to the Building Act 1993 (Vic), to protect adjoining property from potential damage which is likely to arise as a direct result of your building works. Think of it as a principle of reciprocity and respect for others property, you are free to build whatever you want as long as you are respectful and careful not to damage others’ property. Non-compliance with protection works can have disastrous consequences, like parts of the adjoining properties collapsing, which could lead to serious injury or even death.
Your building surveyor should assess whether protection works are necessary after you have applied for a building permit.
3. Avoiding protections works:
If you are adamant and want to avoid performing protection works, it would be best to purchase land that does not require any site cuts which would later on require retaining walls, particularly along the boundaries of the land.
It is advisable to hire a building surveyor who can advise you on things alike. The best time to do this would be after you have drafted plans so that you and your surveyor may consider how the planned development would affect any neighbouring property and the owners and if there are ways you can minimise or obfuscate complying with protection works.
There are other ways in which you can avoid having to comply with a protection works notice, particularly if you avoid intruding into, over or under the adjoining owner’s airspace. If this is the case then you must have the works certified as compliant with the Building Act 1993 (Vic) by your engineer and by an independent engineer and then your relevant building surveyor must be satisfied that the works will not damage or adversely affect the adjoining property.
4. Disputes & Insurance
Disputes may arise when adjoining property owners disagree with protection works orders. Disputes may also arise where damage has occurred to their property but the relevant building surveyor issued no protection works notices. The surveyor’s decision to issue or not to issue a protection works notice can be challenged and the dispute can be referred to the Building Appeals Board (BAB) in attempt to find a resolution to the problem.
A decision made at BAB can be appealed at the Supreme Court, but this will no doubt be very costly and result in major delays and expenses. If you are a smaller developer, these costs are incomprehensible compared to the total cost of your project and the anticipated profit.
Insurance
If you intend to undertake Protection Works, you must ensure, upon the consent or approval of the same, that you comply with the Act and you obtain Protection Works Insurance. You cannot legally proceed with your project until you have received your Protection Works Insurance. Protection Works Insurance must provide for the following cover;
a. Damage to the adjoining property; and
b. Agreed to by all parties; and
c. All works for a period of 12 months after its completion; and
d. If there is a dispute, the Building Appeals Board will determine the matter; and
e. Ensure all instances regarding potential loss and damages is listed in the policy.
Protection Works Insurance is highly specialised and this must be organised as soon as possible so as to not delay your project. The Protection Works Insurance must provide for cover of all liabilities during and 12 months after the work has been completed for the Adjoining Owner and it should note values of the Adjoining Properties such as any damage that may result directly or indirectly for the Protection Works. . You must take out this insurance, this is not the responsibility of your Builder.
5. Serving protection works notice on the surveyor and adjoining owner:
If it is decided the protection works must be carried out, you are required to serve your protection works notice on the relevant building surveyor and the adjoining owner. By doing this, you are seeking consent and advising them of the works that you propose to undertake.
The adjoining owner then has 14 days to respond to your notice and must respond within this timeframe. If they do not respond, yo can assume that they have consented to the protection works (not to be confused with the building works). You may then proceed with your works and the adjoining owner forfeits their right to dispute the notice.
If the adjoining owner does respond within the 14 day period, disputing the works, then it will be referred to the relevant building surveyor who must then consider the works and make a determination.
You must not start any works without the consent of the adjoining owner, or you risk paying hefty penalties and potential legal action.
It is required that the adjoining owner obtain a dilapidation report prior to the commencement of the protection works as well as a surveyor/inspection of their home. This will be at your cost.
Once consent is received to proceed with the protection works, you gain the right to enter the adjoining owners land to conduct your works. The adjoining owners, by consenting to the works, extinguish their right to prohibit you from entering their land, but for this purpose only. You are not licensed to enter their land for any other purpose.
If you would like more information about Protection Works feel free to contact Boutique Lawyers on 1300 556 140 or via our website www.boutiquelawyers.com.au for your free 30 minute consult.
