Protection of adjoining property

This process is specifically documented in both the Victorian (Vic) and Northern Territory (NT) Building Acts. Tasmania has a specific section, s57, of the Building Act 2016 that requires an Adjoining Owners consent when dealing with Party Structures (ie shared walls or supporting structures). This process however is less formal than the Vic and NT provisions.

In all jurisdictions the provision to have the matter heard by an independent party exists should agreement not be reached by the parties. Also refer to the section Jurisdictions that do not have protection work legislation for matters that should be considered in those jurisdictions.

The important aspects of the legislation, where it applies, are based around the definition of adjoining property and when protection is required to be provided to the adjoining property.

Adjoining property

The definition of adjoining property is set out in the Building Act (Vic) 1993 as:

Land (including any street, highway, lane, footway, square, alley and right of way) which is so situated in relation to the site on which building work is to be carried out as to be at risk of significant damage from the building work.

The NT Building Act 1993 has a similar definition however there is no reference to ‘risk of significant damage’ to the adjoining property and simply states:

Adjoining property, in relation to building work, means a property (including a street) that is next to, or near, the land on which the building work is to be carried out.

It is important to note the definition of adjoining property in the Vic Building Act requires the assessment of whether the proposed building work will create a ‘risk of significant damage’ to the adjoining property. It is the role of the authority (relevant building surveyor/certifier) responsible for issuing the building permit/consent to determine this risk. Refer examples below:

• Example 1: The proposed construction of a slab edge beam 400mm in depth adjacent to an adjoining owner’s garden bed is unlikely to cause significant damage and the authority may determine no protection work is necessary.
• Example 2: Where soil anchors are proposed to support basement construction and the anchors breach the title boundary it would be appropriate to determine protection works are required.

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What are protection works

Protection work provides protection to adjoining property from damage. Protection work is not limited to but may include:

• underpinning of footings, including vertical support, lateral support, protection against variation in earth pressures, ground anchors, bored piers, and other means of support for the adjoining property
• shoring up, propping and overhead protection such as gantries or barriers to prevent materials from falling on the roof of an adjoining property
• other work designed to maintain the stability of adjoining property from damage from building work.

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Protection works process

The process outlined in both the Vic and NT legislation is very similar and follows a specific procedure with legislated timelines.

Once the authority determines that protection works are required, the following procedure must be followed:

1. Service of a protection works notice (PWN) by the owner of the proposed building work (owner) upon the adjoining owner (adjoining owner) by a lawful means (ordinary post). This process is often carried out by the design team or contractor on behalf of the owner as their agent. Written authorisation for a person to act on behalf of the owner must be sought before commencing the PWN process.
2. The PWN must contain the nature, location, time and duration of the proposed protection work and sufficient information for the adjoining owner to reasonably assess the proposed protection works as being appropriate or inappropriate (see note 1 below, for a list of typical information). The adjoining owner has 14 days from receipt of the PWN to either consent to the protection works, refuse the protection works or request further information in relation to the protection works. If no response is made by the adjoining owner in the prescribed period, it is taken that the adjoining owner has agreed to the protection works.
3. If consent is given and the authority consider the protection works are reasonable, then the building permit/consent can proceed.
4. In the event of refusal of the protection works or a request for further information the authority must make a determination as to the appropriateness of the protection work.
5. The authority may ask for further information which it must share with the adjoining owner however is not required to give any party a further hearing.
6. Once the authority determines whether the protection work is appropriate or inappropriate, either the owner or adjoining owner have a 14-day period to lodge the matter for review with the appropriate Board/Tribunal of the authorities’ decision. If there is no review lodged within this period, the authorities’ decision stands.
7. In the event a review of the authorities’ decision is made then the matter will be subsequently heard, and the Boards/Tribunals decision becomes final.

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Note 1: Typical information required to be served in a PWN

• General architectural drawings or the proposed building work
• Structural drawings including the method of construction of basements and support of surrounding soil
• Geotechnical report
• Structural computations
• Land survey of the adjoining title interface
• Independent certification of structural design by a third-party structural engineer
• Details of proposed overhead protection works, ie decking out of adjoining roof structure, scaffolding flies and other catch deck, supported with structural design documentation and certification
• Schedule of timing and details of necessary access to the adjoining property for the purposes of constructing protection work

Other matters that are required under the legislation

Outside of the protection works process the legislation also requires an owner to fulfill the following obligations:

Have a contract of insurance

The owner having building work done must ensure that a contract of insurance
is in force against potential damage caused by the proposed protection work to the adjoining property.

The insurance policy must protect the adjoining property, occupiers and the general public during the works for a period of 12 months following completion of the work.

The contract for insurance must cover an amount agreed between the owner and adjoining owner. A copy of the insurance policy must be provided to the adjoining owner before building work starts.

Disputes about the insurance cover can be referred to the relevant Board/Tribunal for a resolution.

Prepare a survey of adjoining property

A survey of the adjoining property must be prepared by the owner with the adjoining owner. The survey should record all existing cracks and defects. This record must be signed or acknowledged as an agreed record of the condition of the adjoining property before the protection work begins.

Disputes about the adequacy of the survey can be referred to the relevant Board/Tribunal for a resolution.

Expenses incurred

A property owner is required by law to pay expenses incurred by the adjoining owner in protecting their interests. These costs include:

• specialists’ fees to check protection work documentation
• costs incurred from a Building Appeals Board appeal
• expenses relating to the actual on-site supervision of protection work once it begins.

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Role of the architect

Where an architect is engaged as a superintendent this role may include the service of PWN’s, arranging insurance, arranging the existing conditions survey of the adjoining property or dealing with claims of compensation from an adjoining owner. These roles however are often delegated to the builder as an owner may authorise anyone to act on their behalf for the purposes of protection work.

Where an architect is not engaged as a superintendent this role may still include the service of PWN’s, arranging insurance or arranging the existing conditions survey of the adjoining property if the owner has delegated their authority to the project architect. However, the project architect’s role is normally to provide sufficient information to show the necessary protection works (eg location of boundary walls, flashing details, etc) for submission to the adjoining owner.

Architect’s documentation when building works abut boundaries should include the following information:

1. Location of the proposed building work and the adjoining owners buildings.
2. Sections through the adjoining boundary conditions, including heights of buildings.
3. Details of any flashings or other waterproofing necessary to protect the adjoining property.
4. The nature of any other protection works deemed necessary. Often this is provided by a structural engineer or in the case of overhead protection a temporary scaffolding engineer.

Refer also Acumen note Working on or near boundaries.

Other specialised documentation or services that may be required in addition to standard services an architect provides will include structural design, computations, geotechnical reports and in certain circumstances weatherproofing expert reports where building work could impose a risk to the adjoining buildings.

Architects should be aware when contracting builders or other consultants that where protection works are to be provided this will entail additional work and potentially the responsibility for securing PWN agreement together with the provision of relevant insurances and existing condition surveys. While each project will have its own set of circumstances it is advised that the owner or owner’s representative confirm what protection work, if any, is required with the relevant authority prior to entering into a contract with a builder.

Depending on the specific circumstances, services to be provided by the architect to execute the completion of the protection works may result in additional works beyond what was agreed within the architect client agreement. Architects should advise their client as early as possible that protection works may be or are likely to be required and provide advice on the likely additional services and costs associated with completing the protection works requirements.

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Including protections works in building contracts

In regard to ensuring that the contract will cover delegation of protection works responsibilities to a builder, it is recommended that the contract refer to the relevant state legislation. In Victoria this would be Part 7 of the Building Act 1993.

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Jurisdictions that do not have protection work legislation

In states and territories that do not have specific protection work legislation the following matters should be considered when constructing near or adjacent to an adjoining property:

1. Will the new construction cause any undermining of the adjoining property foundation system?
2. Will my proposed retention system rely upon anchors penetrating the adjoining owners title?
3. Are the new works likely to interfere with the drainage and stability of the adjoining property, (e.g., work on a party wall, removal of supporting structure or exposing an external wall to the elements?
4. During the process of construction is the adjoining property so situated that materials or other items could fall onto an adjoining property?

If any of the above circumstances arise then careful design by the structural engineer will need to take place and consideration of how any possible damage to the adjoining property can be avoided during and after construction. This may involve negotiating the use of the owner’s land or air rights however this must be carried out at a civil level as the right of no trespass will generally prevail.

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Further resources

Consenting requirements as applicable in the following jurisdictions:

New South Wales

The Environmental Planning and Assessment Regulations (NSW) 2000 – Regulation 98E prescribes a condition for shoring an adjoining owners property. See legislation here.

Tasmania

As mentioned above, Tasmania has a procedure for work on Party Structures. This can be found in s57 and s58 of the Tasmanian Building Act 2016.

Victoria

The Victorian Building Authority require the inclusion of Protection work - approved statement when serving PWN’s.

South Australia/Western Australia

The SA and WA legislation sets down requirements when an adjoining owner must obtain consent for ‘Work affecting other land’, see South Australia and Western Australia

Shane Leonard of Philip Chun kindly prepared the content of this note.