You have finalised your plans and are ready to sign a domestic building contract. Before construction commences, a requirement often overlooked by property owners is the potential for protection works. If your proposed construction risks damaging the property next door, the Building Act 1993 (Vic) generally requires protection works to be undertaken. We review hundreds of contracts each year at ContractReviews.com.au. Many property owners incorrectly assume their builder automatically handles and pays for all neighbourhood protection requirements.
With housing density increasing across Victoria, building closer to boundaries is common. Recent data shows total dwellings approved rose across Australia, meaning more construction is happening in tight suburban spaces. This proximity increases the likelihood that your project will require formal protection works under the Building Act 1993 (Vic).
What Are Protection Works?
Protection works involve specific construction methods that prevent damage to an adjoining property. The requirement applies to both commercial and residential projects. Common examples include underpinning the neighbour's existing footings when you excavate near their boundary. Underpinning involves excavating below the level of the adjoining property's foundation and installing new concrete supports to stop the neighbouring structure from sinking or cracking.
Other methods include erecting retaining walls, installing overhead barriers to catch falling debris, or placing temporary props to maintain structural stability during the build. The relevant building surveyor determines if these measures are necessary. When your builder applies for a building permit, the surveyor reviews the engineering plans and architectural drawings. The surveyor acts as an independent statutory officer. Their job is to enforce the Building Act, not to save you money or speed up your build. If they decide the neighbouring property is at risk, they will mandate protection works. The statutory framework generally requires that this process be resolved before the main construction proceeds.
Managing Protection Works in Your Domestic Building Contract
When a surveyor mandates these protective measures, the financial and legal burden usually falls on the property owner. Your domestic building contract should clearly outline who is responsible for the administrative process and the physical work. A careful building contract review, which should be conducted with reference to the Domestic Building Contracts Act 1995 (Vic), will reveal whether the quoted price includes potential protection works or if they will be treated as a variation. Variations often lead to price increases. Research into residential building projects shows unexpected site conditions frequently cause cost overruns in construction. Clarifying these terms early helps keep your budget intact.
Standard industry contracts from the Housing Industry Association (HIA) or Master Builders Association (MBA) often place the risk of unknown site conditions on the owner. If the surveyor demands underpinning halfway through excavation, you need to know how the contract calculates the delay costs and the price of the extra work. Sometimes builders include an allowance for protection works as a provisional sum. A provisional sum is an estimate for work where the exact cost is unknown at the time of signing. If the actual cost of the underpinning exceeds the provisional sum, the owner is typically responsible for paying the difference under the terms of the contract.
The Notice Process and Adjoining Owners
The legal rules require strict adherence to timelines. The statutory process requires that a formal Form 3 notice be served on the adjoining owner and the building surveyor. This notice details the proposed protective measures, including engineering drawings and a schedule of works. The adjoining owner then has 14 days to respond using a Form 4 notice. They can agree, disagree, or request more information. If they fail to respond within the 14-day window, the law treats their silence as consent.
Neighbours often dispute the proposed methods. They might demand different engineering solutions or refuse access to their land. They may worry that your excavation will damage their garden or crack their brickwork. If the adjoining owner formally disagrees within the 14 days, the matter goes back to the relevant building surveyor. The surveyor examines the objections, requests further information if needed, and makes a binding determination. The commencement of works is generally restricted until the owner has obtained the required consent or a surveyor's determination.
If either party is unhappy with the surveyor's determination, they can appeal to the Building Appeals Board (BAB). An appeal to the BAB will stop your construction project completely until the board hears the case and makes a ruling. This delay can last months. During this time, your builder might claim extension of time costs under your domestic building contract. You will be paying holding costs on your loan while the site sits empty.
The Role of Dilapidation Reports
A dilapidation report is a detailed photographic and written record of the adjoining property's condition before construction starts. While the law requires this survey, it also provides protection for the property owner. If a neighbour claims your excavation caused a large crack in their living room wall, the dilapidation report provides objective evidence. If the report shows the crack existed before the builder arrived on site, the claim can typically be rejected.
Property owners are typically responsible for arranging and paying for an independent building consultant to conduct this survey. The legislation generally requires that the adjoining owner agree to the contents of the report before protection works can start. If the neighbour refuses to sign off on the report, the relevant building surveyor is typically required to step in to resolve the disagreement.
Gaining Access to Adjoining Land
Executing protection works often requires your builder to physically enter the neighbour's property. The Building Act provides a legal right of access to carry out approved protection works. Builders are generally not permitted to enter the property without following the correct statutory procedures. They are typically required to give the adjoining owner at least 24 hours' written notice before entering the property. The access is strictly limited to what is required to perform the approved works.
Once the work is complete, the builder is generally required to restore the neighbour's land to its previous condition. If the builder damages a garden bed or a driveway while underpinning a wall, the owner is typically responsible for the repair costs under the legislation. This is why having clear terms in your contract about the builder's liability for site damage is necessary.
Insurance and Financial Obligations
Property owners are generally required to obtain specific insurance coverage for the protection works before they begin. This insurance is required to protect the adjoining property against damage and cover any liabilities that might arise. The legislation requires the policy to last for the duration of the protection works and for a full 12 months after the works are completed. It is important not to assume that a builder's standard contract works insurance automatically covers this specific statutory requirement. Owners should verify the insurance details.
The building owner generally bears all costs associated with the protection works. This includes the cost of the works themselves, the insurance premiums, and the adjoining owner's reasonable expenses in assessing the proposal. Adjoining owners regularly hire their own engineers or lawyers to review the Form 3 notices and the proposed engineering plans. You are typically required to pay those reasonable professional fees.
Victorian Construction Law Requirements
The rules surrounding adjoining properties are strict. Failure to follow the correct notice procedures under the Building Act can result in stop-work orders and fines. It also exposes you to civil claims if the neighbouring property suffers damage. Understanding construction law obligations helps you avoid costly mistakes. We often see disputes arise when builders use a traditional building procurement model without properly accounting for boundary issues in the initial pricing. The builder submits a low initial quote to win the job, knowing they will charge a significant variation later when the surveyor inevitably demands protection works.
Before serving notices or agreeing to builder variations, it is important to understand the specific terms of the contract. We provide independent legal reviews for property contracts, commercial leases, and business agreements. Part of Sutton Laurence King Lawyers, we identify unfair terms and missing protections so you can negotiate effectively. Our service operates on fixed fee pricing with a 48-hour turnaround. We review the specific clauses dealing with site conditions, variations, and adjoining property obligations. Knowing your exact legal position allows you to manage the builder and the neighbours without unexpected financial surprises.
This information is general in nature. Contact us for advice specific to your situation.
