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Protection Work Notice

Protection Work Notice and How to Respond to it

Quick Tip:  If you have received a Protection of Work Notice, consult a building and construction expert lawyer AS SOON AS POSSIBLE (and no later than 14 days after receiving the notice), to help protect your rights and property.  In most cases, the out of pocket costs of consulting a legal professional will be nil, as The Building Act 1993 (Vic) empowers you to recover these (and other) expenses from the one undertaking the building works.

Have you received a Protection Work Notice?

In the realm of construction and property development, the well-being of neighboring properties is a crucial consideration. The concept of protection works emerges as a mechanism to ensure that adjoining properties remain unharmed amidst building endeavours.

Understanding Protection Works

Protection works, in the context of construction, refer to a set of necessary actions undertaken to safeguard adjoining properties from potential damage resulting from building work. The Building Act 1993 (Vic) defines an adjoining property as land that stands at risk of substantial damage due to building activities. This definition encompasses not only adjacent land but also public spaces like streets, lanes, and walkways.

A range of activities falls under the umbrella of protection works, including but not limited to:

1. Underpinning of footings of adjoining properties to ensure stability.
2. Construction of retaining walls to counteract the effects of building work.
3. Provision of overhead protection for adjacent properties.
4. Implementation of measures to maintain overall stability and integrity of adjoining properties in the face of building work.

It is noteworthy that protection works are applicable to both commercial and residential construction projects, underscoring their universality and importance.

The Imperative of Protection Works

The mandate for protection works is driven by the Building Act itself. Those embarking on construction undertakings are legally obligated to ensure that neighboring properties are safeguarded against any foreseeable damage arising from their building activities. Consequently, individuals seeking a building permit are required to furnish comprehensive information about their project to the relevant building surveyor. This information forms the basis upon which the necessity of protection works is determined.

Protection Works Notices: Navigating the Terrain

1. Issuance of Notices: When protection works are deemed necessary, a Protection Works Notice (PWN) is dispatched under section 84 of the Building Act. This notice serves as a formal communication, outlining the particulars of the proposed protection work and its implications. The notice is directed to both the relevant building surveyor and the owner of the adjoining property.

2. Adjoining Owner’s Response: The adjoining property owner has a span of 14 days to respond to the Protection Works Notice as stipulated by section 85 of the Building Act. Failure to respond within this timeframe signifies implied consent to the protection works. However, prudence dictates that the adjoining owner should never allow a Protection Works Notice to lapse without a response. To understand how you should respond to protect your property, seeking legal counsel or consulting a construction lawyer is a recommended step.

3. Response Avenues: Section 85 delineates three avenues for the adjoining owner’s response:
Agreement: The adjoining owner agrees to the proposed protection works.
Disagreement with Reasons: The adjoining owner disagrees with the proposed protection works and provides reasons.
Further Information Request: The adjoining owner seeks additional information to make an informed decision.

4. Escalation to Building Surveyor: Should the adjoining owner opt for disagreement or request further information, section 87 comes into play. The responsibility of determining the appropriateness of the protection works falls upon the Relevant Building Surveyor (RBS). Their evaluation is pivotal in resolving any contentions.

5. Insurance Coverage: Upon obtaining consent or approval for protection works, the building owner must secure insurance in line with section 93 of the Building Act. It is imperative to note that a standard Construction and Public Liability policy might not suffice; the policy must encompass the specified coverage, including damage to the adjoining property and potential disputes.

Addressing Disputes: An Ounce of Prevention

The protection works framework is devised to preempt lengthy complaints processes and legal wrangling. Nonetheless, disputes can arise, often stemming from disagreements with protection works orders or instances where damage occurs without the issuance of a protection works order by the relevant building surveyor.

Protection Works Agreements: The Key Steps

1. Building Permit Checklist: During the building permit application process, the building surveyor will outline the necessity for a Protection Works Agreement (PWA) in a Building Permit Checklist. This checklist encompasses the rationale behind the required agreement.

2. Formal Communication: A Protection Works Agreement entails several forms of communication, including:
Introduction Letter: A preliminary letter detailing the property particulars, proposed works, and an overview of the protection works process.
Protection Works Notice (Form 7): A comprehensive document outlining property details, owner information, builder information, proposed protection works specifics, and a list of provided documents.
Protection Works Response Notice (Form 8): An adjoining owner’s response notice, indicating agreement, disagreement, or a request for additional information. Failure to respond within 14 days implies agreement.

Types of Building Work Requiring Protection Works Agreements

1. Proximity to Boundaries: Construction along property boundary lines, especially if existing fences need removal.
2. Significant Trees: Building close to significant trees on adjoining property.
3. Basements and Excavations: Construction of basements or extensive excavations near property boundaries or adjoining buildings.
4. Council Laneways and Streets: Building adjacent to Council laneways or side streets.
5. Vertical Building Expansion: Construction close to or above existing adjoining buildings.
6. Temporary Encroachments: Temporary fences or hoardings encroaching into adjoining properties.
7. Trade Access: Requirement for tradesmen to access or traverse adjoining property for building work.
8. Scaffolding Installation: Installation of scaffolding on adjoining property.

Ensuring Adequate Insurance and Survey

1. Insurance Obligation: The building owner is mandated to procure insurance covering potential damage resulting from protection works. Standard policies might fall short; tailored coverage is essential.

2. Survey of Adjoining Property: Collaborate with the adjoining property owner to prepare a detailed survey documenting existing cracks and defects. This serves as a benchmark to assess changes resulting from protection works.

Cost Considerations

1. Incurring Costs: Throughout the protection works determination process, both legal costs and expert engagement expenses are likely to be incurred by the adjoining owner.

2. Expense Recovery: Section 97 of the Act empowers the adjoining owner to recover expenses from the owner undertaking the building works. This includes costs associated with legal counsel, specialist consultations, and on-site supervision.

Conclusion

Protection Works Notices serve as a pivotal instrument in maintaining harmonious relationships between property owners engaged in construction endeavors and their adjoining neighbors. By understanding the intricacies of protection works, responding judiciously to notices, and collaborating effectively, parties can navigate this intricate landscape while safeguarding their rights and interests. Engaging professional legal counsel and seeking expert guidance is recommended to navigate the complexities of protection works agreements, ensuring a seamless journey toward mutually beneficial outcomes.

About Leonard Warren
Leonard A. Warren is an expert in litigation and resolving commercial disputes. He has over 25 years of experience helping clients achieve a successful result in disputes involving a diverse array of areas including property, mortgages and securities, building and construction, commercial and residential leases, contracts, negligence, defamation, debt collection, insolvency and bankruptcy, directors' duties, and professional conduct matters. He has acted for clients in the High Court, Federal Court, Federal Circuit Court, Supreme Court of Victoria (including Court of Appeal), County Court of Victoria, Melbourne Magistrates' Court and VCAT and in private arbitration. Leonard also has experience in a diverse array of mediation settings, including judicial and private mediation, DBDRV, and Victorian Small Business Commission. Leonard is the founder and Principal of L A Warren Lawyers.

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