Melbourne has a rapidly growing population and high density living is proliferating, along with construction activity in close proximity neighbourhoods.
Close proximity construction often poses risks to the construction integrity of adjoining properties, so it is critical that a protection works regime is in place to minimise deleterious construction-related impacts upon adjoining properties.
The Building Act 1993 contains a dedicated chapter, Part 7, that regulates the protection works regime. I happen to know a bit about this Act as I was the lawyer engaged by the then-government to advise of the development of this Act of Parliament.
In circumstances where the relevant building surveyor (“the RBS”) requires protection works, he/she will require protection works notices to be served upon the adjoining property owner. Although the building surveyor has the discretion to choose either to apply or not to apply the protection works regime, the RBS should exercise that discretion carefully and responsibly, for if it is reasonable to suspect that a negative impact may be visited upon the adjoining property as a result of construction works. It would be a very brave building surveyor to turn a blind eye to the protection works requirements under the legislation.
There is, however, one exception to the carrying out of protection works and this is where none of the work will be used “on, over, under, or in the air space of the adjoining property” (Regulation 603) and compliance certificates are given to the RBS from two separate engineers verifying design integrity and compliance with the Act. Further, the RBS has to be satisfied that the proposed work won’t have a deleterious impact upon the adjoining property.
The statutory regime provides that a protection works notice will provide details of the protection works proposal. If the recipient (i.e. the neighbour or the neighbours) are intent on objecting to the protection works proposal, a written response must be forthcoming within 14 days, failing which consent is deemed. The adjoining owner is also at liberty to ask for further information. If the protection works recipient neglects or chooses not to reply within 14 days, approval for fear of labouring the point is deemed and the horse will have bolted in terms of the taking issue of the protection works proposal.
If the adjoining property owner disagrees with the proposal, it is incumbent upon the objector to provide reasons that form the basis of the objection. Very close regard must be had to the statutory provisions in Part 7. A dilapidation report must be made to serve as a record of existing conditions; this is a prudent requirement for all concerned as it provides an evidential “before and after look” lest there be any disagreement as regards the condition or state of the property post construction.
The owner must also provide protection works insurance to the adjoining owner before any protection works commences. The insurance has to cater for the potential indemnification for any adjoining property damage or liabilities that may be visited upon by adjoining occupants or members of the public emanating from the building work.
The protection works proposal should also include supporting documentation and expert opinion on why the protection works proposal would indeed pose no risk to adjoining property owners. Typically, engineers are engaged to provide some advice on point and protection works engineering drawings and computations are given to the adjoining owners and the RBS.
The Building Act allows adjoining property owners to seek their own technical advice on point and pursuant to section 98 of the Act, the owner (i.e. the person intent on carrying out the building works) is required to compensate the adjoining property owners for any expenses that are consumed in the supervision of, or the monitoring of the protection works regime.
Once satisfied that the protection works regime is sound and the legal requirements of Part 7 have been ticked off, the RBS must issue a determination. If either party is unhappy with the determination, they are at liberty to appeal the determination to the Building Appeals Board. As the Act provides that adjoining owners can be reimbursed for supervision costs the deployment of construction lawyers and technical experts tend to be claimable, so it is prudent to utilise same.