Protection works, your neighbour is building and your legal fees can be paid

Yesterday, I was considering a protection works notice under the Building Act 1993 (Vic) and of course the Building Regulations 2018 where much of the law is further stipulated.

It reminded me just how tactical this area of law has become.

Why? Let me explain…

In this case the proposed building works were by a boundary and therefore the owner had an obligation to protect the neighbouring property from potential damage.

Simple right!?

BUT in this case and in my experience generally, what is proposed is in many cases insufficient or unnecessarily advantageous to the building owner AND which poses the question - are the protection works sufficient?

Well - it is a very important question.

Neighbouring works, especially substantial works can cause structural and other damage. It is worth ensuring the protection works are sufficient and done properly.

Plus there are some EXTREMELY important protections under the Building Act 1993 that give an adjoining owner access to a specialist building lawyer like me or one of Brockhill & Usherwood Lawyers including Katy Gale or Dimity Maloney.

PLUS access to great experts like any of the building consultants, engineers, plumbers out there who can assist.

Your legal fees can be paid and expert fees…

Here is the POINT!

Section 97 of the Building Act provides that an adjoining owner can have their legal fees paid and experts! Yep, you read that right. It states necessarily incurred fees, see:

BUILDING ACT 1993 - SECT 97 Expenses of adjoining owner

(1) The owner must pay to the adjoining owner all costs and expenses necessarily incurred by the adjoining owner in assessing proposed protection work and in supervising the carrying out of protection work in respect of the adjoining property and—

(a) agreed between the adjoining owner and the owner; or

(b) in the absence of an agreement, determined by the Building Appeals Board under Part 10.

(2) The costs and expenses of an adjoining owner which are agreed or determined may be recovered in a court of competent jurisdiction as a debt due to the adjoining owner.

When building work is close to an adjacent property there is likely to be challenges. Don’t assume the opposite.

Protection work must be provided by the owner, in relation to an adjoining property, before and during the carrying out of any building work, if the relevant building surveyor determines that protection work is required.

My message is this.

Few things in life and especially legal are free. Protection works is one. If you know how to claim.

If a neighbour is commencing works and more importantly when you get a Form 7 served on you.

Or if you are a builder or developer, get advice, it is better to avoid a costly dispute your project is worth it.

REMEMBER that an adjoining owner has only 14 days to respond.

An adjoining owner who fails to give a notice within the required time is taken to have agreed to the proposed protection work.

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• building disputes