Protection Work Process

PRACTICE NOTE 20-2018

This updates the previous Practice Note-20-2017 Protection work provisions and
issued September 2017. definitions
Requirements relating to protection of adjoining
Purpose property are contained in Part 7 of the Act and
The purpose of this practice note is to provide Division 1 of Part 7 of the Regulations.
guidance to building practitioners on the The following terms are defined in the Act:
protection work process.
Adjoining owner
Background The owner of an adjoining property.
An owner is entitled to carry out building work
on their land. However, sometimes that work has Adjoining property
the potential to cause damage to adjoining Land (including any street, highway, lane,
property. Processes for the protection of footway, square, alley, and right of way) situated
adjoining property from the risk of significant in relation to the site on which building work is to
damage are provided for under the Building Act be carried out, so as to be at risk of significant
1993 (the Act). damage from that building work.

Examples of when adjoining property can be Building Appeals Board

affected are when building work involves The Building Appeals Board (BAB) under Part 10
excavations, changes to footings, where the of the Act.
building work is adjacent to boundary walls, and
where there is a risk of building materials or Owner
equipment falling across boundaries during the In relation to a building, means the owner of the
construction process. land on which the building is situated.
The Act provides that where there is a risk of Protection work
significant damage to adjoining property from Work that may include, however, is not limited
building work, the adjoining owner must be to:
consulted about proposed work or other actions
that will be undertaken to protect their property. • Underpinning, including vertical support,
lateral support, protection against
The relevant building surveyor (RBS) plays a variation in earth pressures, ground
central role in overseeing the consultation anchors and other support for the
process and ensuring that proposed protection adjoining property;
work is adequate. The independence of the RBS • Shoring up of the adjoining property
is critical to their role in the process. (which may include retaining walls and
There are mechanisms for owners and adjoining bored piers);
owners to appeal to the Building Appeals Board • Overhead protection for adjoining
against decisions of the RBS. The BAB can also property;
determine disputes between owners and • Other work designed to maintain the
adjoining owners about protection work matters. stability of adjoining property or to protect
it from damage from building work;
• Any work or use of equipment necessary
for the provision, maintenance and
removal of work referred to above,

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• whether or not the work or equipment is It is prudent for an owner to discuss proposed
carried out or used on, over, under, or in building work with adjoining owners and reach
the air space above the land on which the agreement about any access that may be
building work is, or is to be carried out, or required before finalising their application for a
the adjoining property. building permit. If a building permit is issued and
access required over, or on, adjoining property
Common types of protection work include:
cannot be agreed, the building design may need
• retaining walls; to be changed and a variation to the building
• bored piers; work may be required. This can cause delays and
• a gantry or other overhead barriers to frustration.
prevent material from falling on a roof or
other part of the adjoining property; Fences and protection work
• propping of party walls or common walls;
Building work on boundaries may involve the
• underpinning of existing footings.
demolition of walls which give rise to the
requirement for a new fence between
The distinction between protection properties. Work may also involve the
work and building work construction of new walls on boundaries which
Protection work is work to protect an adjoining requires the removal of an existing fence.
property. It can be done on an adjoining property The removal and replacement of fences is not
or on the building site where the building work is protection work and is subject to the Fences Act
occurring, or both. Where protection work needs 1968. More information about rights and
to be done on the adjoining property, the Act obligations of owners under the Fences Act can
allows for access to the adjoining property to be found at
undertake the required protection work (section http://www.justice.vic.gov.au/home/justice+syst
95 of the Act). em/laws+and+regulation/civil+law/fencing+law+i
Building work is the work being done that gives n+victoria
rise to the need for protection work. Building
work can only be done within the boundaries of Overview of the role of the RBS
the building site for which a building permit is The role and responsibilities of the RBS in
issued. relation to protection work are summarised as
Sometimes building work is designed in a way follows:
which requires access to adjoining property to • To determine whether protection work is
carry out the building work. For example, required as part of the assessment of a
building materials may need to be lifted onto the building permit or at any time during the
building site with a crane that must swing over construction phase when it becomes
adjoining property; or the preferred construction apparent that protection work may be
of masonry walls on boundaries is to construct or required;
finish them from outside the property boundary • To document their determination that
of the building site. protection work is required;
Where the construction process requires access • To review protection work notices
to the building site via an adjoining property, this exchanged between the owner and the
is not protection work. The protection work adjoining owner;
process does not entitle an owner to access an • To assess whether the proposed protection
adjoining property to undertake building work. work is adequate;
Access to an adjoining property to conduct • To create the required records relating to
building work must be arranged by agreement the above actions throughout the process
with the owner of the adjoining property. • To lodge documents with the relevant
council as required by section 30 or 73
and regulations 44 or 203;
• To participate in any appeals or other

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proceedings before the BAB as the category of engineer, class of engineer

required; (civil), certifying that the structural design
• To monitor the carrying out of the of the building work complies with the Act
protection work at mandatory and Regulations;
inspections or at any other time as • any other matter the RBS considers
relevant.
required and take any necessary action
if there is any danger to life or Other matters the RBS should consider are soil
property; reports, local soil conditions, sloping sites, the
• To act independently at all times to location of drains or other underground services,
proposed methods for ensuring stability of
assist owners and adjoining owners
excavations (such as battering or ‘hit and miss’
through the process.
methods).

When is protection work required? “Adjoining property” as defined in the Act refers
to property being put at risk of ‘significant
Protection work is only required when the RBS damage’ from building work.
determines that it is necessary (regulation 111).
The term ‘significant damage’ is not defined in
When assessing an application for a building the Act. When considering whether there could
permit, the RBS must consider whether be ‘significant damage’ to adjoining property the
protection work is required. RBS should have regard to potential damage to
Some building practitioners think that protection buildings, driveways, paving, gardens, other
work is required based on a general rule such as structures and to potential soil subsidence on the
‘a one metre rule’. The perception is that adjoining land.
anytime building work occurs within 1 metre of a
boundary protection work is required. Documenting a determination to require
protection work
This type of approach is simplistic. No two
developments are the same and protection work The RBS’s determination to require protection
must be determined on a case by case basis. work must be set out using Determination that
Protection Work is Required (Form 6) in Schedule
Regulation 112 sets out the matters the RBS
4 to the Building Regulations (regulation 111(4)).
must consider in determining if protection work
is required. They are: Within 7 days of making the determination, a
copy of the Form 6 must be provided to the
• the allotment plan provided with the
applicant for the building permit and, if the
application for building permit under
applicant is not the owner, the owner (regulation
regulation 25 or 26;
111(5)).
• specifications that describe materials and
methods to be used in the proposed Protection work notices
building work;
• any demolition required as part of the Having decided that protection work is required,
proposed building work; the RBS sets in motion a process that provides
• any excavation required as part of the both the owner and adjoining owner with certain
proposed building work; rights and obligations under the legislation. It is
• any proposed building work in relation to critical that the administrative process is carried
party walls and retaining walls; out correctly for those rights to be exercised.
• the nature and likely extent of any damage The process is summarised as follows:
or other adverse effect on the stability or
otherwise of any adjoining property that • section 84 of the Act requires the
may be caused by the proposed building owner to serve the adjoining owner
work; with a notice in the form of Protection
• any certificate under section 238 of the Act Work Notice (Form 7) (regulation 113);
from a registered building practitioner in

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• Section 85 of the Act requires the adjoining information about the proposed protection work
owner to respond to the owner’s notice in including:
the form of a Protection Work Response
• the determination of the RBS set out in the
Notice (Form 8) notice (regulation 114);
Form 6;
• the RBS must consider the Form 7 and
• 3 copies of the Form 8 notice (or, if the
Form 8 and determine whether the
adjoining owner consents to receiving the
proposed protection work is appropriate
information electronically, 1 copy);
(section 87(1));
• a statement in the form approved by the
• if agreement has not been reached
Authority that explains the protection work
between the owner and adjoining owner,
process;
the RBS must follow the procedure in
• plans and specifications with sufficient
section 87 before making a determination.
detail to show how the proposed building
work will affect the adjoining property;
Independent role of the RBS • plans and specifications with sufficient
The RBS acts as an independent decision maker detail to show how the proposed
in the protection work process. protection work will protect the adjoining
property;
The RBS must not prepare the Form 7 for the
• an allotment plan complying with
owner or ‘approve’ the proposed protection regulation 25(1)(d).
work before the notice is given to the adjoining
owner. If the RBS is not satisfied that the prescribed
information was provided in the Form 7,
The RBS should discuss the reasons for requiring including that the proposed protection work is
protection work with the owner or their agent, not detailed adequately in plans and
so they can formulate the proposed protection specifications provided with the Form 7, the RBS
work and provide the details required in the should request additional information. The RBS
Form 7. should also require the owner to revise the Form
If there has been no response to the Form 7 7 and re-serve it on the adjoining owner.
notice from the adjoining owner, the RBS must Where the adjoining owner disagrees with the
satisfy themselves that the adjoining owner has proposed protection work, or requires more
been properly served. Section 236 sets out ways information, the RBS must take the actions set
in which notices may be served under the Act. out in section 87 of the Act.
The RBS should ask how the notice was served
and consider contacting the adjoining owner to If a request for information is made by the
make sure they have received the Form 7 notice. adjoining owner, the RBS must consider if the
request is reasonable; and if it is:
If the adjoining owner agrees to the protection
work, the RBS must not assume that the • make a request to the owner for that
proposed protection work is appropriate. The information; and
RBS must review the proposed protection work, • provide the information to the adjoining
satisfy themselves that: owner.
• the work is actually protection work; and If the RBS considers the request for information
• it is appropriate to protect the adjoining is not reasonable, they should advise the
property, and adjoining owner of that decision in writing
• make a decision on whether to approve including the reasons for that decision. The RBS
the building permit. can then make any other inquiries they think fit
(section 87(3)) and proceed to make their
If the RBS is not satisfied with the proposed determination under section 87(1).
protection work, they should refuse to issue the
building permit until a revised proposal is made.
Regulation 113 provides that the Form 7
prepared by the owner must contain detailed

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Making a determination Requiring Protection Work after

The determination made must be in the form of works have commenced
Notice of Determination under section 87 of the There may be situations where damage to
Act (Form 9). adjoining property is not foreseen based on the
The RBS must give a copy the Form 9 notice to building permit application but circumstances
the owner and adjoining owner. change making protection work necessary. This
can occur when there are unexpected site
The notice may be given by: conditions or where the builder does not follow
• sending by ordinary post; the building permit.
• delivering the notice to the person; The swift and effective action of the RBS is
• leaving the notice at the person’s address critical when the need for protection work arises
with a person aged 16 years or over, and unexpectedly during construction.
apparently residing at that address; or
• by email or facsimile, but only if the person In these cases, the RBS should inspect the site
receiving the determination has agreed in without delay and determine whether protection
writing to accept service via email or work is required. The RBS may need to issue a
facsimile. direction to fix (Part 4), or stop the building work
from proceeding and/or require work to make
When protection work has been required as part the site or adjoining property safe (Part 8).
of a building permit, the RBS should consider
whether there needs to be inspections of the A building order to stop building work can be
building work in addition to the prescribed issued by the RBS where the building work
mandatory inspections. If inspections are contravenes the Act or Regulations, or is a
appropriate, the RBS can put conditions on the danger to life, safety or health of a person, or
building permit that require the builder to call for affects the support of an adjoining property
inspections at specified stages of the work (section 112).
(Refer to Practice Note 69-2018 on mandatory It is not appropriate to issue a building order to
notification stages and inspection of building stop building work where the owner has failed to
work). comply with administrative provisions contained
in sections 93-100 of the Act.
Appeals against a section 87 If the RBS issues a building order to stop building
determination work, they may exempt any part of the work
from the building order if it is in the interests of
The owner or adjoining owner have 14 days from safety or security of the building; the public; or to
the day after a determination under section 87 prevent a nuisance (section 112(6)). If an
has been given to both the owner and the exemption is given under section 112(6), this can
adjoining owner to lodge an appeal against the allow urgent work to be carried out. However,
determination with the BAB. the RBS should only require works necessary to
If the RBS’s determination is challenged by an make the site and any adjoining property safe
appeal to the BAB, then the RBS should provide and stable. The RBS should then promptly make
the BAB with whatever evidence and/or a determination that protection work is required
information as necessary or requested by the (recording this in a Form 6) so that the protection
BAB. work process can be followed.
The RBS must not act as an arbiter where there is The RBS must inform the MBS immediately if
disagreement between the owner and an they consider that the condition of the site
adjoining owner. If there is a dispute between presents an emergency. Upon being notified, the
the parties the RBS should refer the parties to MBS or their delegate will inspect the site,
Part 10 of the Act regarding their appeal rights immediately assess the situation and determine
and ability to have a dispute considered by the if an emergency order should be made, or other
BAB. action should be taken.

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Other administration for the RBS commences in accordance with section

94;
The RBS must lodge any determination that
• to ensure that the record of survey is
protection work is required (Form 6), any
signed or otherwise acknowledged as an
protection work notice (Form 7), any protection
agreed record of the condition of the
work response notice (Form 8), and any notice of
adjoining property before the
determination made under section 87 (Form 9),
commencement of protection work;
with the building permit under section 30
• to provide compensation to the adjoining
(regulation 44(1)(d)-(g)) and with the occupancy
owner for necessarily incurred costs and
permit under section 73 of the Act (regulation
expenses, inconvenience, loss or damage
203(e)-(h)).
(section 97 and 98);
Once a notice of intention to commence the • to serve the adjoining owner and the RBS
carrying out of building work is given, the RBS with a complete set of plans, drawings and
must make available to the adjoining owner, on specifications showing the protection work
request and at no cost, drawings and undertaken no later than 2 months after
specifications of the proposed building work the protection work is completed (section
refer to section 92. 101).

Obligations of the owner Entry on adjoining property

The obligations of the owner in relation to Section 95 of the Act provides the owner or an
protection work are summarised as follows: agent of the owner with the ability to enter the
adjoining owner’s property to carry out a survey
• to provide adequate information about the
and any required protection work. Before entry,
proposed building works to the RBS in the
the adjoining owner must be given 24 hours’
building permit application;
notice, unless another time frame as agreed by
• where protection work is required by the
the parties. Entry on the adjoining property for
RBS, to prepare the Form 7 notice;
this purpose is available between the hours of
• to serve the Form 7 notice on the adjoining
8am and 6pm.
owner, with the prescribed documents
under regulation 113, having regard to The right of entry to carry out protection work
section 236 of the Act; does not apply to entry for any other purpose,
• to provide any additional information such as carrying out of building work. Entry for
requested by the RBS; that purpose will require agreement between the
• not to undertake any building work giving builder and adjoining owner.
rise to the requirement for protection
work until— Further Information
o the adjoining owner has agreed to
the protection work;
o the matter is determined by the Want to know more?
RBS; If you have a technical enquiry, please email
o any appeal is determined by the [email protected] or
BAB (section 88(1)). call 1300 815 127.
• to only carry out work in accordance with
the agreement, the RBS’s determination or Victorian Building Authority
the determination of the BAB (section 733 Bourke Street Docklands VIC 3008
88(2)); www.vba.vic.gov.au
• to arrange insurance cover for the
protection work before any protection
work commences in accordance with
section 93 of the Act;
• to arrange for a survey of the adjoining
property before any protection work

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