Protection Work Disputes
Building Act 1993 (Vic)
Protection work (i.e. protection of neighbouring buildings whilst construction work is being undertaken) has been a common feature of urban construction for some time, due to the fact that medium to high rise construction, by its nature, has an obvious potential to adversely affect adjoining properties if the risk is not managed appropriately.
However, it has now become common for parts of suburban homes to be built close to (or even on) property boundaries, meaning that there can be a real risk that adjoining properties might be adversely affected by the work.
Ultimately, the Relevant Building Surveyor must decide whether adjoining properties are required to be protected or not. In doing so, they must consider the matters set out in Regulation 112. This consideration usually occurs when a building permit is applied for, but it can occur at any time.1
If the RBS determines that protection work is required, then the owner of the building site must serve a Form 7 (as well as a number of documents prescribed by the Regulations) on any adjoining owners identified by the RBS as being at risk, and the process set out in Part 7 of the Building Act 1993 is enlivened. There are also addittional requirements under Part 7, including obtaining a dilapidation report (s 94) of the adjoining property, and insurance (s 93) for an agreed amount, prior to commencing any protection work.
CONSIDER PROTECTION WORK WHEN NEGOTIATING A BUILDING CONTRACT
The Building Act 1993 was drafted at time when “protection work” was perhaps less common in a suburban context. It imposes obligations on the “owner” of land (who is not usually the builder).
As such, it is important that both owners and builders discuss their legal obligations in terms of protection work at the time the building contract is negotiated. Many standard form building contracts do not adequately deal with who will be responsible for preparing and serving protection work notices, or who is responsible for paying expenses/compensation to adjoining owners if required.
(Although it is not part of the protection work process, if the proposed construction involves building on a boundary, it is also important to negotiate who will be responsible for compliance with the Fences Act procedures for removal or replacement of the boundary fence.)
SERVING A PROTECTION WORK NOTICE (fORM 7)
Owners who have been required to serve a protection work notice should always get independent legal advice before serving a notice, as serving a Form 7 Notice has legal and cost consequences.
DISPUTES
If disputes arise, they are usually ventilated at the Building Appeals Board.
However, the Board does not have jurisdiction to deal with Fences Act matters – which are the jurisdiction of the Magistrates Court.2
Francke Lawyers are experienced advisers and able to assist you. Contact us to find out how we can help.
FOOTNOTES
- For example in DIHAB Pty Ltd v Shaw [2020] VBAB 39 the Board explained at [53] “Section 84 of the Act, read in conjunction with r 111(3) of the Regulations, makes it clear that a relevant building surveyor has jurisdiction to reassess the need for protection work after building works have commenced, even if the relevant building surveyor had originally determined, during the permit approval stage, that protection work was not necessary. In most cases, that power will be exercised where site conditions change, necessitating the need for protection work or additional protection work. ↩︎
- E.g. see Berry v Babic [2023] VBAB 34, paragraph 10(e) ↩︎
