For the uninitiated, being served with a Form 3 "Protection Work Notice" can be confusing. We have endeavoured to provide a short explanation of what "Protection work" actually is, and the process involved.
If a building permit is required, then before it is granted, one of the things that the Relevant Building Surveyor (RBS) must consider is whether the work could adversely impact adjoining owners.
If the RBS considers that it will, they must require that the owner of the development site (the developer) protect the adjoining owner's property in some way. This work is "protection work".
The process involves:
- giving notice to the adjoining owner detailing the building work, and how it is proposed to protect their property (Form 3);
- giving them the opportunity to get their own independent legal and building advice (at the cost of the developer – section 97);
- either agree or disagree with what is proposed (Form 4).
If there is disagreement, the RBS then makes a decision as to what is appropriate. If either party is unhappy with the decision, they can appeal to the Building Appeals Board (BAB).
Once the "protection work" is either agreed upon, or finally determined (whether by the RBS or BAB), the work must be undertaken before the developer can proceed with the building work (unless the developer decides it is too expensive, in which case he can start the whole process again, as explained by Digby J in Colonial Range v CES-Queen  VSC 317). However, for the adjoining owner, they are bound by the decision and must allow the "protection work" to be done, and for example, it is an offence to refuse access (section 96 Building Act).
If damage, inconvenience, or loss occurs to their property either during, or in connection with the protection work, they are entitled to compensation (sections 98 and 159 Building Act).
So, what's the problem?
The problem is that the concept of "protection work" is not necessarily intuitive, and very much depends on the individual circumstances of the build. The VBA practice note is helpful, though at 21 pages, isn't quite to the point.
It is our opinion that any work that:
- is done in the way it is done because the builder is trying to protect the adjoining property; and
- is done this way because the RBS required that the adjoining property be protected,
is protection work.
Thus, protection work can include excavation and work that would otherwise be considered "building work" if it is done in a way so as to protect the adjoining property. A good example of this is "hit and miss" excavation. There might be no underpinning of the adjoining property's footings, and no barriers or propping required, but in light of the work method employed, the excavation itself is "protection work".
The takeaway is that clear communication between the adjoining owner, developer and building surveyor is key to identifying what is actually occurring and why.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.