Insights Library
The Protection Works ‘Cheat Sheet’
This article provides a brief overview and ‘cheat sheet’ of what to do when you receive notice that your neighbour intends to build, and if those works put your property at risk of damage.
The statutory regime offers property owners various protections in this circumstance, but few property owners properly understand their rights.
Part 7 of the Building Act 1993 (Vic) (“Building Act”) and Building Regulations 2018 (Vic) (“Building Regulations”) sets out the legislative requirements that must be complied with when a relevant building surveyor determines that protection work is required to ensure the safety and protection from damage of an adjoining property next to a building site.
Pursuant to section 84 of the Building Act, if it is determined that protection work is required, which the surveyor must decide when determining whether to issue a building permit, the owner of the building site (or its agent) must provide written notice to the adjoining property owner detailing the proposed building work as at the date of the notice, the proposed protection work (that is, the works that it proposes to undertake to ensure the adjoining property is adequately protected) which includes the nature, location, time and duration of the protection work and any other prescribed information. The written notice must be in the form of a Form 7 Protection Work Notice (“Form 7”) and must be accompanied with the documents that are outlined at regulation 113 of the Building Regulations. The Form 7 may be lawfully served by post, so if you believe your neighbour intends to build, you should ensure you regularly check your letter box so as not to miss service of important documents.
The adjoining property owner then has 14 days from the date of service of the Form 7 to give the building site owner and relevant building surveyor a notice, in the form of a Form 8 Protection Work Response Notice (“Form 8”), either agreeing to the proposed protection work, disagreeing with the proposed protection work or requiring further information to enable the protection work proposal to be considered and determined by the relevant building surveyor.
An adjoining property owner is entitled to obtain legal and engineering advice to confirm the sufficiency of the proposed protection work prior to responding to the Form 7 and the building site owner is responsible for reimbursing the adjoining property owner for the costs necessarily incurred in assessing the Form 7 pursuant to section 97 of the Building Act. It is therefore imperative that the adjoining property owner obtains this advice as soon as possible after being served with a Form 7 to ensure that a responsive Form 8 is served within the 14-day statutory response period. The building site owner is responsible for the costs of the assessment, and it is usually critical that an engineer review the proposal. An adjoining property owner who fails to respond to a Form 7 within 14-days is taken to have automatically agreed to the proposed protection work contained in the Form 7. Accordingly, to avoid the acceptance of an unsatisfactory Form 7, it is important that an adjoining property owner promptly seeks the necessary advice to confirm the sufficiency of the proposed protection work and responds to the Form 7 within the specified timeframe.
If the adjoining property owner agrees to the proposed protection work, then the building site owner can proceed with carrying out the protection work (and its underlying building permit is usually then issued). However, prior to the commencement of any protection work of the adjoining property, the building site owner must still arrange for a valid contract of insurance that covers the adjoining property against any damage by the proposed protection work in accordance with section 93 of the Building Act and must also arrange for a full and adequate survey of the adjoining property which accurately records, in writing, the present condition of the adjoining property in accordance with section 94 of the Building Act. In our experience, the relevant and required insurance is often unlawful and does not provide appropriate coverage, it is therefore important to seek advice on the adequacy of the insurance coverage. It is also noted that the amount of such coverage must be agreed between the neighbouring landowners, this too is often overlooked.
If the adjoining property owner disagrees with the proposed protection work or requests further information to enable the protection work proposal to be considered, then the building site owner cannot proceed with the protection work until it is agreed. If agreement cannot be reached, the relevant building surveyor must examine the appropriateness of the protection work and issue a Form 9 Notice of Determination (“Form 9”) under section 87 of the Building Act determining its appropriateness or otherwise. If a Form 9 is issued and the adjoining property owner disputes the determination, the adjoining property owner can appeal the determination within 14 days to the Building Appeals Board in accordance with section 141(a) of the Building Act where the matters in dispute can be ventilated before the Board.
Protection work matters can be complex and require expert advice. Best Hooper’s Dispute Resolution team has extensive experience in representing both building site owners and adjoining property owners in relation to such matters. If you are involved in a protection work matter and require expert legal advice, please contact us.
The information contained in this article is general in nature and is not legal advice.
