Protection works

This is going to be an atypical post, both in its verbosity and its lack of specific relevance to Port Melbourne (although the amount of building going on here, and the wafer thin proximity between houses, means that there is a higher than average chance of relevance). Some might even describe it as a rant.

It is presented here to aid other residents of Victoria who find themselves in the situation of being served a "protection works notice" as a result of proposed construction on adjoining land, as there is a dearth of useful information around on this subject, and these pages rank relatively highly in search engines. It does however include some information for Port Phillip locals on what they might expect from their council, should they encounter difficulties.

Protection Works are a term defined within Victoria's Building Act 1993 which defines a process for builders to gain access to "adjoining owner's" land for the purposes of protecting said property from construction work, whilst simultaneously enshrining certain rights for those owners. As an affected neighbour this sounds like good stuff, however the process has serious limitations which are well worth being aware of...
So you've had the letter saying that a building permit has been issued. You've probably been to inspect the plans. If you're fortunate enough to know the owner of the adjoining land, you may well even have had discussions about how it's going to impact you. You know that for the foreseeable future you're going to be woken up by banging and crashing from the early hours and that there is going to be parking havoc thanks to lorries and skips and contractor's utes. This is the inevitable truth when significant construction work occurs on your doorstep. It is just a fact of life.

However beware that as an adjoining owner (typically where the proposed building is within a metre of your title boundary), this may not be the limit of your disturbance. If you're unlucky your property can become an annex of the building site, with builders turning up unannounced, digging up your land, using your utilities, all while claiming innocence. The bad news if this happens is that, even though the development is nothing to do with you, you are likely to have to expend time, money and stress to resolve it. Fortunately there is some legislation to draw upon, but unfortunately it's some way off perfect.

The Building Act 1993 is a weighty document covering a broad spectrum of building law (it is complemented by the Building Regulations 2006 which further describe the responsibilities of the 'relevant building surveyor'). Both pieces of legislation are overseen by the Building Commission (yep, the Building Commission with all the corruption problems!). Part 7 of the act covers the protection of adjoining property, where the relevant building surveyor has deemed it necessary. The official source of information can be found here, and Practice Note 2006-20 in particular provides useful clarifications (once you realise that they're split into two emphases of the same sections of the act), however the process can be summarised as follows:

1. Owner serves notice of intended protection works [sect 84]
2. Adjoining owner responds either to agree, disagree or request further information [sect 85]
3. Owner arranges insurance cover against damage to adjoining property [sect 93]
4. Owner performs a dilapidation survey to adjoining owner's satisfaction [sect 94]
5. Owner performs protection work on adjoining property (subject to restrictions) [sect 95]
6. Owner pays adjoining owner for any expenses related to the protection work [sect 97]
7. Owner compensates adjoining owner for inconvenience, loss or damage suffered [sect 98]

Most of these regulations are accompanied by a penalty for non-compliance. These can amount to up to 500 penalty units in the case of a natural person, or 2500 penalty units in the case of a body corporate. The monetary value of these units is defined by the Monetary Units Act 2004, and in this case equates to up to $60,000 or $300,000 respectively (for the 2011-12 financial year).

At first glance this seems to provide pretty comprehensive protection, however in reality there are pitfalls for the adjoining owner in all of these stages, as described in some detail below.

1. Protection Works Notice [sect 84]
The Building Commission provides a template for the Protection Works Notice form, but provides no guidance as to the level of detail to expect in the description of the protection works. There is just a single sentence suggesting that it should include the "nature, location, time and duration of protection works". It is important to note that whilst the onus is on the relevant building surveyor to determine that protection works of some form are required, there appears to be no onus on them at this stage to validate that the protection works actually proposed are appropriate and appropriately specified. Here is the description from the notice I received:

"Complete construction and Design serve the adjoining owners with protections work notice to allow the demolition of existing wall [sic] on boundary in close proximity to their dwellings as per attached plans. Complete Construction & Design proposes to erect a fence with shade cloth in order to protect the external cladding of your property during the construction period. The protection works notice is also to allow the excavation of footing and construction of a new wall to the boundary as per plans. It should take about 7 working days to complete."

The second sentence seems reasonable enough, although I would later regret not establishing the exact location of the fencing and the phase of the construction for which it would be present. The first and third sentences however are the real problem; as they are nothing to do with protection, and all to do with gaining access for regular building work. I mistakenly thought that this risk was mitigated by the final sentence; truth be told, I didn't really mind what work was done if it was only going to take 7 days - however the act defines no penalty for works (conforming to the notice) taking excessively longer than estimated.

For the record, the Building Act actually defines protection work as:

(a)  permanent or temporary work of-

• underpinning, including the provision of vertical support, lateral support, protection against variation in earth pressures, provision of ground anchors and other support for adjoining property; or
• shoring up of adjoining property; or
• overhead protection for adjoining property; or
• other work designed to maintain the stability of adjoining property or to protect adjoining property from damage from building work; or

(b)  any work or use of equipment necessary for the provision, maintenance and removal of work referred to in paragraph (a) whether or not the work or equipment is carried out or used on, over, under or in the air space above the land on which the building work is or is to be carried out or the adjoining property.

If the description within the Protection Works Notice appears to include works that are not to do with protection, I strongly recommend responding using the disagreement option.

Incidentally one surveyor I spoke to some time later suggested that the notice ought to include plans, not just of the building work, but also of the protection work. Another gives some more good suggestions on-line of what ought to be included. Regrettably there is no requirement to follow these suggestions.

2. Protection Works Response [sect 85]

Upon receipt of a Protection Works Notice you have 14 calendar days to respond (some of which can easily be lost if you are away, or unable to immediately collect the unexpected registered package from the post office), otherwise you will be deemed to have accepted the notice. This seems be 14 days from when the notice was sent, regardless of when you received it. Your options are to agree, disagree or request further information. You only get one shot; there is no scope for iteration.

In my case the Protection Works Notice was back-dated, and this was later used to suggest that I had taken longer than 14 days to respond. I strongly recommend recording any evidence of when the notice was both sent and received.

The response has to be returned, on a prescribed form, to both the owner's agent and the relevant building surveyor. The Building Commission provides a template for the Protection Works Response notice, but provides no guidance as to appropriate grounds for disagreement or requesting further information. In my case the form had three lines for a response.

So, you have no experience in construction industry, yet now suddenly you have to make a judgement about a statement that has been worded by someone who, shall we say, might not have your best interests at heart ... and has not been vetted by any third party.

With hindsight, the thing to have done would have been to have paid some sort of professional to assess the notice, as section 97 of the act requires the owner to pay "all costs and expenses necessarily incurred by the adjoining owner in assessing proposed protection work". However you may feel that this is excessive, and it's certainly inconvenient ... I couldn't find anyone that advertised this as a service they offered. This is one notable area where relevant information is extremely hard to come by.

Finally the practical difference between disagreeing and requesting further information is slim. In both cases the relevant building surveyor is meant to examine the proposed protection work and provide a written determination (and notify you of a right to appeal). In both cases there is no opportunity to make a further response. If you decide not to pay for professional assessment of the notice, then I would recommend at least requesting further information, to ensure that this check has been performed. However beware of a trick that can (apparently legitimately) be peformed on you at this stage...

The builder may, on receipt of your request for further information, opt to abandon the current notice/response/determination cycle and initiate a new one (without telling you). In my case this came in the form of a letter apparently providing a response to our request for a further information, and a new form asking whether we agreed or disagreed. By unwittingly agreeing to this form, even though it was not accompanied by a new Protection Works Notice, I apparently inadvertently bypassed the building surveyor's determination (and right to appeal)! For the record, the response to your request to further information should come from the relevant building surveyor, and should not seek any further agreement or otherwise.

3. Insurance Cover [sect 93]
The owner must give you a copy of an appropriate contract of insurance before commencing work. I had to ask the builder to give me one, and when it materialised (the day before planned works), it turned out to be far from appropriate (and indeed to have just expired!). For starters the amount of cover is supposed to somehow be agreed with you. This is another area where a lay person is likely to struggle; for what is an appropriate amount? What is the level of risk of damage from the protection works described in two sentences? The Practice Notes give no guidance as to how to reach such an agreement. The builder is likely to try and gloss over this requirement.

Even if you are comfortable with the stated level of cover, unless you are an expert in insurance, how do you know whether the paperwork provided is genuine and adequate? The Building Commission offers no guidance to you on this matter. The relevant building surveyor, who would seem to be ideally placed to confirm adequacy, replied as follows:

"This is something we are unable to answer as the Relevant Building Surveyor. You should contact the insurance provider and confirm that the policy covers the requirements of section 93 of the Building Act"
 
I bet many people, when pressured by builders anxious to commence work, don't feel qualified enough to make a stand on this matter. Luckily I was able to confirm directly with the builder's insurance broker that the cover was not appropriate for section 93.

What is likely to happen if the builder is ignorant of (or feigns ignorance of) this section, is that you receive a copy of their general contract works & liability policy. Despite what they may assure you, this is simply not good enough. The policy must explicitly display your property's address as covered, must include cover for existing structures, and is meant to provide cover for a period of 12 months after completion of the building work. The Practice Notes mention that "it can be difficult for an owner builder to obtain this form of cover, but this is not sufficient reason to proceed without insurance".

4. Dilapidation Survey [sect 94]
The main problem here is that the survey is performed by the builder not, as you might hope, by some independent third party. This is another grey area as, without knowing what sort of damage might typically occur from such construction, and in the absence of examples of suitable survey reports, it is hard to know whether the report given is adequate.

The act states that this should be performed 'in company' with the adjoining owner, but in my case they just took a bunch of photos in my absence which were then agreed by e-mail exchange. This is clearly an appropriate time to be a stickler for detail, although you will likely find that you are pressured to provide agreement as the builder is likely to want to leave performing this survey until immediately prior to work starting.

What may not be obvious at this stage that the builder is not obliged by the act to return your property to its original state (and nor are you obliged to allow them to rectify any damage that they cause). See part 7. Compensation below.

5. Protection Work [sect 95]
And so, finally, the protection work begins. The act lays out relatively strict conditions for entry on to your property, but also crucially removes (in section 96) your right to deny it. The builders are meant to give you at least 24 hours notice prior to entry, and supposedly can only enter between 8am and 6pm (this is further restricted by local law at weekends, at least in the City of Port Philip).

The first problem here is that, as the Practice Notes make clear, the relevant building surveyor (who acts as arbiter in sections 84-92 of the act) has no role when it comes to the actual performing of the protection work. The local council has no jurisdiction (unless they are also the relevant building surveyor) and the police aren't interested. So basically there's no one to complain to other than the builders themselves. And builders like to start work at 7am, and would prefer not to have to think ahead just for the benefit of pesky neighbours.

The second problem is that, the Building Act doesn't explicitly deal with the case where protection works are proposed, but then not actually performed. In my case the builder retroactively informed me that the fences (which were in fact the only part of the proposed protection works actually related to protection), were not required after all.

The third, and perhaps most significant problem, is that having agreed to protection work (which you only have one shot at agreeing to), you are legally obliged to provide access. This provides an unscrupulous builder (yes, one or two do exist) with a free pass to make use of your property, not just for protection, but for making his job easier. I dubbed this "non protection work" when it started to actually cause damage. In a pattern that was starting to become familiar, I complained to the registered building surveyor who ignored me, but when pressed told me that it was a civil matter between me and the builder. I asked for advice from Port Phillip council's building helpdesk, and it took them seven weeks to reply (and then only after complaining).

Which brings me back to the estimated duration stated, but not enforced, on the original Protection Works Notice. Three months after the first of "seven working days" of protection works, the builder nonchalantly informed me that he would need four weeks further access for "painting and finishing off details such as flashings etc".

The lesson here is to ensure that the protection works that you agree to up front, are exclusively related to protection (bearing in mind the Building Act's definition). That way when the builder wants to make "non protection works" you don't automatically have to allow access and, as a result, he might try a bit harder to be honourable with you knowing that it makes sense to 'keep you sweet'. If you then refuse such access, he faces having to go to court to obtain it.

6. Expenses [sect 97]
The problems here are as follows:

• without having gone through the process before, you don't know what professional services you should be considering for the protection work as described.
• you'd almost certainly rather not have the hassle and cost of finding appropriate companies to do work which really ought not be unnecessary.
• even if you do find someone qualified to supervise the work, will they be willing to be on-call to attend at 24 hour's notice (as per section 95(2))?
• there is little guidance on what level of costs and expenses are reasonable to claim.
• you are faced with having to fund these expenses until eventually refunded.

It would be really helpful if there were businesses out there that advertised a handy 'protection works assessment and supervision' service. If you are a business offering such a service, feel free to post details in the comments section.

7. Compensation [sect 98]
So the project finally comes to an end and, despite all the so-called "protection work" there's damage to your property. Strictly speaking, the act does not require the builder to rectify damage, instead requiring them to compensate you for the cost of its rectification. This distinction means that you can potentially have damage rectified (most likely to a higher standard) by a different contractor, if by this stage you can face dealing with new contractors. However you may have to pay out for a professional inspection with cost estimates in order to successfully obtain such compensation.

The act also leaves open the possibility of compensation for inconvenience but both it and the Practice Notes decline to offer any guidance of what level of inconvenience might be deemed worthy of compensation, or what level of compensation might be appropriate. I was later told by the Building Appeals Board that there were instances of successful compensation for inconvenience, but that the details of the amounts involved were not published.

The Enforcement Problem
However, in my opinion the biggest problem of all with this law is its approach to enforcement. You might naively believe that if builders start appearing on your property without notice, or outside allotted hours, or to perform work other than protection work, that you can just call someone up to report the 'offence'. Not so.

When I came home one day to find my entrance path unexpectedly dug up, I naturally complained to the builder. When they, somehow, with a straight face, denied any wrong doing I tried contacting the local council, the relevant building surveyor and the Building Commission. The only response I got was from the latter who helpfully stated:

"It’s really difficult to ascertain what is the best course of action to be taken. I can only help you if you decide to lodge an appeal."

If you find yourself in this position you may struggle to believe what follows, but it's true. The Building Commission web-site has a section for consumers, but by this they mean the owners having the building work done. Port Melburnians are fortunate in that they can easily pay the commission a visit (they are located in Docklands), however it seems that the front desk is staffed by receptionists, not by people able to offer technical advice. There is another web-page entitled "How can the commission can help me?", which doesn't really succeed in answering its own question.

It was about this time that the depressing realisation of why builders might show such scant concern about prosecution dawned upon me. For it would appear that the only way for the legal requirements outlined above to be enforced, is for the adjoining owner (who, remember, has nothing to gain from the construction and would much rather get back to their own life) to lodge an 'appeal' with the Building Appeals Board (which has its own share of corruption allegations) - a court-like process that takes 8-10 weeks just to assign a hearing date, and currently charges you at least $284 for the privilege.

And that, is the subject of another equally massive missive to come...

E&OE