Building work being undertaken may adversely affect neighbouring properties and adjoining land. This work may include the construction, erection, assembly or placement of buildings or incidental structures, site work and demolition work.
If not managed correctly, building or associated work that does affect adjoining land can result in ongoing disputes between neighbours. It can also mean builders and their workers are unsure of their responsibilities.
The Building Act sets out circumstances that require those who are proposing to do building work that is reasonably likely to affect adjoining land to obtain consent of the affected adjoining land owner and provide notice before commencing the proposed work. These circumstances (points 1-6 below) are known as notifiable events for the purposes of providing notification.
In most instances when consent is required, it can be obtained during the course of the building process when relevant work is to be undertaken and is outside of the building permit process (points 3-6 below). The exceptions are when work is likely to either encroach or adversely affect other land (points 1 and 2 below).
Consent required before a permit issued
The first two circumstances will require the adjoining land owners’ consent prior to a building permit being granted by a permit authority, which in most cases is the relevant local government:
This is where an application for a building permit indicates the proposed building or incidental structure will encroach onto adjoining land. This also applies to an existing encroachment onto adjoining land that is included in an application for a building approval certificate or occupancy permit associated with unauthorised works. In this circumstance, the consent of the adjoining owner/s will be required prior to granting the building approval certificate or occupancy permit.
- Adversely affecting an adjoining property
This is where the proposed design indicates that the building, when completed, will:
- reduce the stability, bearing capacity of the land or a building or structure on the land;
- damage a building or structure on the adjoining land; or
- change the natural site drainage that reduces the effectiveness of the drainage on the land or existing or future buildings or structures on the land.
Consent will also be required if a triggering event occurs after the permit has been granted.
Consent required outside of the permit process
The other four circumstances that may require the adjoining land owners’ consent, although this is not required as part of the permit process, are:
- Protection structures
This is when a temporary or permanent protection structure is placed beyond the boundaries of the land on which work is being carried out.
- Party walls etc
This affects the structural, water-proofing or noise insulation capacity of a party wall, a substantial dividing fence or a boundary retaining wall that protects adjoining land.
- Removal of fences etc
This is when boundary structures such as fences or gates are removed.
- Access to adjoining land
This is when building workers access adjoining land for the work or to conduct a survey in relation to the work.
While notification is always required, consent in point 5 above is not required if a building permit is, in effect, for construction of a close wall (zero lot wall) that requires the removal of a fence. The builder is permitted to remove the portion of fence necessary to build what has been approved without consent. The person responsible for constructing the close wall should give at least seven business days’ notice to the affected adjoining owners before removing the fence.
Consent described in point 6 above is not required if the land is vacant or unoccupied.
In certain circumstances, where the work needs to be done as a matter of urgency, consent or a court order is not needed prior to the work. However, the person responsible for the work must notify affected adjoining land owners of the work and the reasons for it as soon as practicable after it is done.
There are two forms for giving notice and requesting consent:
- BA20 – To be used when points 1 and 2 listed above apply. The form must be provided to the permit authority as part of a permit application. This form can also be used when a triggering event occurs after a permit is issued.
- BA20A – To be used when points 3-6 above apply and consent is required, after the building permit is granted.
While it is not ideal, consent can also be in the form of an exchange of letters or emails, however this must contain all the information prescribed on the relevant form including a clear description of the works proposed, how the land will be affected and when and details of the person responsible for the work.
How to obtain or give consent
The builder, owner or other worker proposing works on adjoining property must first give the affected owner an official Building Commission Form BA20 or BA20A. The owner has a 28 day period in which to give written consent.
What if consent is refused?
If consent is not given, the person responsible for the work can seek a court order through the Magistrates Court. If a court order is issued, both you as the adjoining owner and the person responsible for the work must adhere to the provisions of the court order. If neither consent is given nor a court order issued, the work affecting other land cannot proceed.
What if a builder starts work prior to obtaining consent?
Local governments can enforce non-compliance with these requirements. If consent is not obtained, affected owners should contact their local government. A penalty of up to $25,000 applies for non-compliance under the Building Act.
A builder may attach to a building permit application a written statement that the permit authority may take into account for the purposes of satisfying itself that the application meets the requirements of section 20(1)(g) and (h) of the Building Act 2011 and regulation 16(3)(a) of the Building Regulations 2012.
The statement can be signed by:
- a building practitioner registered under section 17 of the Building Services (Registration) Act 2011;
- a building surveyor as defined in section 3 of the Building Act and regulation 5 of the Building Regulations;
- an architect registered under section 29 of the Architects Act 2004; or
- a professional engineer as defined in Part A1, Volume One and Part 1.1 of Volume Two of the National Construction Code Series (Building Code of Australia).
The statement should set out that the following will not occur in respect of the building or incidental structure which is the subject of the application:
- part of the building or structure will be placed into, onto or over land beyond the boundaries of the work area; or
- land beyond the boundaries of the work area will be adversely affected.