Commercial and domestic properties
Concerns about neighbour’s works
It is not uncommon for a property owner (‘Adjoining Owner’) to experience anxiety when a neighbour (‘Owner’) has proposed:
- the construction of a new building on adjacent vacant land; or
- the demolition or partial demolition of a building on adjacent land followed by the construction of a new building or extension works to an existing building;
close to the common boundary of the properties involved because of concerns of damage to the Adjacent Owner’s property.
Protection available to adjoining owners
The Building Act 1993 (Act) sets out the protection procedures and the rights of an Adjoining owner.
Notice of Protection Work
The Owner must give the Adjoining Owner notice of proposed works to protect the Adjoining Owner’s property (‘Protection Works Proposal’) when the Owner proposes works on or near the boundary between properties.
There is a short time limit for the Adjoining Owner to respond to the Protection Work Proposal otherwise the Adjoining Owner may lose the right to have a say in whether the works described in the Protection Work Proposal is adequate.
A building surveyor can determine any dispute relating to the Protection Work Proposals and the surveyor’s determination can also be reviewed by the Building Appeals Board through an appeal.
Owner’s obligations
Under the Act the Owner:
- must have insurance cover in place for damage by the proposed Protection Work and any liabilities to be incurred to adjoining occupiers and members of the public; and
- must arrange for a condition report of the Adjoining Owner’s property to be carried out by the Owner (in a form agreed to by the Owner and the Adjoining Owner).
Any building works proposed by the Owner as described in the Protection Work Proposal cannot be commenced unless these requirements are met.
Disputes regarding the level of the insurance and a provision of a condition report can be adjudicated by the Building Appeals Board.
As a result of a recent decision of the Building Appeals Board involving a dispute over the adequacy of an insurance policy proposed by an Owner, it is unlikely that there is any policy that is currently being offered by the insurance industry that meets the requirements of the Building Appeals Board and the Act.
This is primarily because the policies contain exclusions for events which, according to the Building Appeals Board and the Act should, in fact, be insured against.
The effect — it could delay works
This means that building works proposed by Owners near or on boundaries between properties that affect Adjoining Owners may not be able to be commenced without breaching the Act. A building project may therefore be delayed if an Adjoining Owner validly objects to the insurances the Owner or builder propose to take out regarding a Protection Works Proposal.
More information
To find out more on the issue of possible solutions, or if you have a dispute of a Protection Works issue, please contact a member of our Property team on (03) 8600 8888.
Note: This update is a guide only and is not intended to constitute legal advice.