If your neighbour is undertaking building works close to the boundary of your property, the Building Act 1993 (Vic)(Building Act) may require them to carry out ‘protection works’ to ensure your property is not damaged during their works.

Is my neighbour required to protect against damage to my property?

When an owner proposes to undertake building works, they must first decide whether their works require a planning permit, a building permit, or both.

If a building permit is required, the owner must provide detailed information about the proposed works to the relevant building surveyor.  The building surveyor must then determine whether there is a risk of damage being caused to any adjoining properties, and if so, direct the owner to carry out ‘protection works’ in relation to those properties.

The following types of protection works are commonly recommended by building surveyors:

    1. underpinning of footings and other means of support for the land on a neighbouring property;

    2. overhead protection and shoring up; and

    3. retaining walls.

Adjoining property may include streets, lanes, footpaths, alleyways and easements.

Obligations if protection works required

If the building surveyor determines that protection works are necessary, the party required to undertake the protection works must serve a notice (Protection Works Notice) on the adjoining property setting out:

    1. the prescribed details of the proposed building works;

    2. the prescribed details of the proposed protection work including the nature, location, time and duration of the proposed protection works; and

    3. any other prescribed information.[1]

The adjoining owner is then entitled to seek legal, engineering and building advice about the proposed protection works. The costs of obtaining the advice are to be paid by the party serving the Protection Works Notice (discussed further below)[2].

The adjoining owner must respond to the Protection Works Notice within 14 days. This is why it is important to seek professional advice about the proposed protection works as soon as possible. The adjoining owner can either agree or disagree to the proposed protection works.

If the adjoining owner fails to respond to the Protection Works Notice within 14 days, then they are deemed to have agreed to the proposed protection works automatically.

If the protection works are agreed

If the adjoining owner agrees to the proposed protection works, then the party who served the Protection Works Notice may carry out the protection work after obtaining any necessary permits, approvals or insurance.

    • For example, under the Building Act, the party required to undertake the protection works must ensure that a contract of insurance is in force against potential damage caused by the proposed protection works to the adjoining property for a period of at least 12 months following completion of work.

If the protection works are not agreed

If the adjoining owner disagrees with the proposed protection works, or requests further information, the building surveyor must examine the proposed works and determine whether the protection works are appropriate.

The building surveyor must then give the parties written notice of its determination, which can be appealed by the parties within 14 days to the Building Appeals Board. [3] 

Expenses of adjoining owner

Under section 97 of the Building Act, a party required to serve a Protection Works Notice must pay all costs and expenses necessarily incurred by the adjoining owner in assessing or supervising the proposed protection works.[4]  This includes the costs of the adjoining owner in assessing the proposed protection works even if the works do not ultimately proceed.

In Morrison v Architectural Buyers Pty Ltd [2018] VBAB 21, the Building Appeals Board held that section 97 of the Building Act:

    1. does not encompass a person’s loss of income (because loss of income is not a cost or expense incurred);

    2. does not encompass the cost of any application to the Building Appeals Board (because those costs are not incurred in assessing the protection works); and

    3. encompasses the cost of assessing proposed protection works, including obtaining engineering and legal advice regarding the protection works, and in relation to any supplementary building works to the extent they relate to the protection works.

Our firm has significant experience representing builders, building surveyors and adjoining owners in relation to the protection work regime provided by the Building Act.  If you have any queries about a building dispute, please feel free to contact one of our solicitors by phone, email or on LinkedIn.

[1] Building Act 1993 (Vic), s 84(2).
[2] Ibid, s 97.
[3] Ibid, s 87.
[4] Ibid, s 97.