Building work can sometimes adversely affect adjoining properties. Therefore, owners proposing to build have an obligation under the Victorian Building Act (VBA) to protect adjoining properties from potential damage. If the building work is close to an adjoining property, protection work may be required to ensure that the adjoining property is not damaged.
A “Protection Works Agreement” is a formal agreement between the property owner (or their agent) and the owner of the adjoining property. The requirement for this agreement is determined by the Building Surveyor during the building permit application process. The protection works agreement process is as follows:
A. The building surveyor will issue a “Building Permit Checklist” outlining the additional information that is required before the building permit can be issued. The protection works agreement, when required, will be outlined in this checklist, as well as the reason why the protection agreement is required.
B. Most building surveyors have standard “protection work notices” that can be used during the agreement process such as:
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An introduction letter = which outlines the basic details of the property, the proposed works and brief details of the protection works process.
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A “Protection Works Notice” (Form 3) = which outlines all the specific details of the property, the owner and the builder, the adjoining owners and all the specific details of the proposed protection works to be carried out. The “Form 3” also lists all the documents that have been provided to the adjoining owner such as architectural plans, engineering plans, survey plans, soil report and photographs.
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A “Protection Works Response Notice” (Form 4) = which is a response notice to be completed by the adjoining property owner stating that they either agree or disagree to the proposed protection works or request further information to be provided.
Note: The Form 4 must be returned within 14 days and failure to respond is taken as an agreement to the proposed protection works by the building surveyor.
The types of building works that will require a protection works agreement are:
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Building along a property boundary line (especially if the existing fence needs to be removed)
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Building close to a “significant tree” in the adjoining property.
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Building a basement or any large excavation close to the property boundary or adjoining building.
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Building up to or close to a Council laneway or side street.
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Building up to or close to an adjoining building (especially if the proposed new building will be higher than the existing adjoining building).
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If a temporary fence or hoarding will encroach into an adjoining property.
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If access is required into or through an adjoining property by tradesmen to carry out any proposed building works.
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If scaffolding needs to be installed onto the adjoining properties land.
The builder carrying out all the protection works must have the correct insurance that will specifically cover the cost of any damage to adjoining property. However, the ultimate responsibility for this insurance falls onto the property owner (see Part 7 of the VBA).
Any costs associated with carrying out the protection works (including consultants fees from engineers, building surveyors or land surveyors) must be paid by the property owner doing the building works. The adjoining property owner has the right to engage their own independent consultants during this process and these costs must also be paid by the property owner. From my experience, these protection works negotiations often become quite complicated, time consuming and costly, especially in the established inner-city suburbs. Therefore, this process is best done by an experience builder who has specific experience organizing protection works agreements and all the associated documents.
