Your home, your neighbours and Protection Works.
It’s easy to get swept up in the excitement of building your own home, and sometimes that means you can forget things like ensuring your works do not impact on your adjoining neighbours. This article takes a look at the steps that you should follow to ensure you comply with the Protection Works provisions in Part 7 of the Building Act, in order to keep everyone in the street happy.
A builder will apply for a build permit prior to any building works commencing on your property. In doing so, the registered building surveyor (“RBS”) will review all the necessary documents to ensure your project complies with the legislations and other requirements. Your RBS will also confirm whether you will need protection works of your adjoining neighbour’s property. If the RBS does determine that you need Protection Works, then the RBS will provide a Form 6 (Determination Notice). Once you receive the Determination Notice, you (or your agent) will be required to serve the Form 7 (Protection Works Notice) on your neighbour. At the same time you provide the Form 7, you should also provide three (3) copies of the Form 8 Notice (Protection Works Response), the VBA Statement and supporting plans and documentation. It is important to ensure you serve these documents effectively on your adjoining neighbour.
It is usually at this point that you’ll be able to determine if the matter will be straight forward, or potentially head towards a dispute. Why do I say that? Because it is at this point that the neighbour may object to the Protection Works, or they could request further information, which may slow down your project. The RBS then must determine whether your adjoining neighbour’s response is appropriate and reasonable (Form 9 – Notice of Determination). If they determine your neighbour’s response is appropriate and reasonable, your Protection Works may need to be altered, or alternatively they may review whether your Protection Works are appropriate and comply with the requirements. If you or your neighbour disagree with the RBS’s determination, then you or your neighbour may apply to the Building Appeals Board (“BAB”) to have the matter heard and determined by the BAB.
Now that you’ve got your head around all of that, there are a few final steps. You must ensure you have completed a survey of the adjoining property. This is sometimes also known as a ‘dilapidation report’. The purpose of the survey is to show any existing damage prior to the Protection Works commencing. That way, if the adjoining neighbour makes a claim against you for damage caused by your building works, the parties would rely on the survey to establish liability. The survey should contain photos of all the adjoining property that is in question (from all angles). It is important to note that the survey must be signed or acknowledged by both you and your adjoining neighbour, which if the parties cannot agree, will result in a dispute between the parties being referred to the BAB.
In addition to the survey of the adjoining property, you are also required to obtain insurance of the Protection Works which recognise the interest of your adjoining neighbour and also protects the interest of the neighbour (and the public) during the works and for a period of a further 12-months following the completion of the Protection Works.
Finally, you should be aware that you are required to compensate your adjoining neighbour for their costs and expenses to assess your proposed Protection Works. There is no limit to this ‘compensation’ but it should be limited to costs and expenses that are reasonable and necessary, although this is a subjective test.
Protection Works is quite a complex area of law, but hopefully the above (and the flow chart) provide you with some guidance. Spectrum Lawyers is always available to assist you in Protection Work applications or objections.
Find our comprehensive flow chart here: Protections-Works_Social-Media_A4
Contact us if you’d like to learn more.