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They’re working next door, but who is protecting your property? Knowing the law, writes Andrew Whitelaw, can help protect you when the builders start making a racket
Waking up to the sound of an excavator or crane base arriving at the neighbours’ place can often raise concerns about what might happen to your own property while building works are being carried out.
What if your property is damaged? How will it be fixed, and who is liable?
Alternatively, you may be about to embark on building the great Australian home yourself and need to protect the foundations and buildings next door. What are your obligations?
In Victoria, for example, the Building Act 1993 devotes an entire section to “protection works” and sets out several critical requirements and obligations that must be fulfilled.
The purpose of protection works is to “protect” an adjoining property from potential damage during building operations; to record the current state of the adjoining property before they are undertaken; to ensure insurance is in place; and to allow for compensation to an adjoining owner should any damage occur.
Protection works vary and may include permanent or temporary work such as underpinning, vertical or lateral support, shoring up, overhead protection or any other work designed to maintain stability or to protect the adjoining property.
Those who might be affected by protection works include the owner of the land on which the works are to be undertaken, the owner of a building (if different from the owner of the land) and the adjoining property’s owner.
‘Adjoining property’ may include a street, highway, lane, footpath, square or alley so situated that any building works carried out next door could cause significant damage.
So, when are protection works required? Again, in Victoria, they must be provided before and during any building work, but only if required by the Relevant Building Surveyor (RBS).
The RBS therefore has a critical role to play and must make a decision on whether building works will cause or have the potential to cause damage to an adjoining property.
If protection works are required, the owner must serve a ‘Form 3 Notice’ under the Victorian Building Act, setting out details of the proposed building works and protection work, including their nature, location, time and duration.
The adjoining owner has 14 days in which to respond, via a ‘Form 4’, by agreeing, disagreeing, or requesting further information. Failure to respond in time is deemed to indicate acceptance.
An adjoining owner may need to engage an engineer or building consultant to determine if the proposed protection works are adequate and to ensure the property will be protected. If the parties cannot agree, an application can be made to the Building Appeals Board for a determination.
Importantly, under the Act, before any protection works can be carried out, a contract of insurance must be obtained for an agreed sum by the owner of the land on which the building works are to be done.
The insurance policy must specifically insure the adjoining owner’s property. The parties must also inspect the adjoining property together and sign a report which identifies any pre-existing damage.
An alternative to protection works is “dual certification”. If the RBS is satisfied the building works will not adversely affect the stability of, or cause damage to the adjoining property, the owner before the commencement of building works may provide the RBS with certificates from the engineer who designed the building works and from an “independent” engineer, certifying the structural design complies with the Act and regulations.
Even if protection works are not required but the property next door is damaged, the affected owners can bring a legal claim for trespass, negligence and for the costs of rectifying any damage.
Andrew Whitelaw is a building and construction lawyer at TressCox Lawyers