Section 11: Work affecting other land
A person responsible for building or demolition work must ensure that the work does not affect land beyond the boundaries of the works land. However there may be the potential for this to occur in certain circumstances, for example where work is on small sized lots or where construction is close to boundaries.
The Building Act ensures communication occurs between adjoining owners by requiring persons responsible for work to obtain adjoining owners’ consent, or a court order, before commencing any building or demolition work that will likely affect other land. Part 6 of the Building Act sets out the circumstances (“notifiable events”) that require such consent. These are outlined in 1 to 6 below and summarised in the “snapshot” table toward the end of this section.
Notifiable events 1 and 2 require consent or court order before a demolition or building permit is granted.
If the work does not require a demolition or building permit, consent or court order is still required before carrying out work that may affect other land.
1. Encroachment (s. 76)
The person responsible for work cannot extend a building or incidental structure onto adjoining land without consent or court order unless the encroachment is:
- a minor encroachment (as prescribed in r. 45A); or
- is exempt (as prescribed in r. 45B).
Any encroachment relating to Crown land that is not prescribed in r. 45A requires the consent of the Minister for Lands.
2. Adversely affecting other land (s. 77)
It is an offence for a person responsible for work to adversely affect land beyond the boundaries without consent or court order. Adversely affecting land includes:
- reducing the stability, bearing capacity of the land or a building or structure on the land;
- damaging a building or structure on the adjoining land; or
- changing the natural site drainage that reduces the effectiveness of the drainage on the land or existing or future buildings or structures on the land.
Notifiable events 3 to 6 may require consent or court order before carrying out work that may affect other land (these requirements are not tied to the permit process).
3. Placing a protection structure beyond the boundary (s. 78)
The person responsible for the work cannot extend a temporary or permanent protection structure beyond the boundaries into adjoining land without consent or court order. If the protection structure is required to prevent imminent collapse, or damage to, any land or building, consent or a court order is not required.
Further to obtaining consent or court order, the person responsible for the work must notify each affected owner as soon as possible, even if the protection structure is temporary. The permit authority must be notified of the placement of a permanent protection structure for their building records.
4. Affecting party walls etc. (s. 79)
The person responsible for this work cannot affect the structural, waterproofing or noise insulation capacity of a party wall; a substantial dividing fence or boundary retaining wall that protects land beyond the boundaries without consent or court order.
5. Removing fences or gates (s. 80)
The person responsible for work cannot remove a fence, gate or other barrier on or beyond the boundaries of the works land without consent or court order. The person responsible for the work must ensure that where necessary a temporary barrier is erected, which is adequate and suitable having regard to the use of that other land.
Consent 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 – this does not prevent a person exercising rights under other laws.
Further to obtaining consent or court order, the person responsible for constructing the close wall should, before removing a fence, give at least seven business days’ notice of the proposed removal to the affected adjoining owners and to at least one adult occupier of the land if the land is not occupied by any of its owners. The permit authority must be notified where the work is demolition work that would require a demolition permit.
6. Accessing other land (s. 81)
The person responsible for work must ensure that in doing the work a person does not go on other land without the consent of the owner of the land or a court order; except where it is necessary to prevent imminent collapse, or damage to, any land or building or structure. For the purposes of the Building Act, consent is not required if the other land is vacant land, or any building on that land is vacant – this does not prevent a person exercising rights under other laws.
Further to obtaining consent or court order, the person responsible for the work must ensure that each owner of the affected adjoining land and at least one adult occupier of the land (if the land is not occupied by any of its owners), is given reasonable notice of each 24 hour period during which the land will be accessed.
In certain circumstances where the work needs to be done as a matter of urgency, to prevent imminent collapse of any land, building or structure on the land, consent or a court order is not needed before that work is carried out. However, the person responsible for the work must notify the affected adjoining land owners of the work and the reasons for it, as soon as practicable after it is done. You may need to also notify the permit authority.
How to obtain or give consent
A person responsible for work seeks the consent of each affected owner by giving them an approved Building and Energy form. There are two different consent forms depending on the notifiable event:
|Notifiable event no.
|1 and 2
|Notice and request for consent to encroach or adversely affect
|3 to 6
|Notice and request for consent (response notice) - protection structures, party walls, removal of fences, access to land
The notice and request for consent form should be completed by the person responsible for the work and have:
- a clear description of the works proposed;
- a clear description of how other land will be affected and when;
- details of the person responsible for the work; and
- copies of plans and specifications and any technical certificates that show how the work will affect other land.
There are clear timeframes for decisions to be made.
Each affected owner of other land has 28 days after the notice is given in which to respond or request further information from the person responsible for work. Where it is not clear how other land will be affected, an owner can ask the person responsible for the work for clarification and further information within the 28 day period. This may include time to discuss the proposed works in order to reach agreement. After the further information or clarification is provided, the affected owner has 14 days to respond.
A snapshot of notifiable event requirements
|Notice and request for consent form no.
|Consent/court order required
|Encroachment (s. 76)
|Adversely affecting other lands (s. 77)
|Protection structure on other land (s. 78)
|Affecting party walls (s. 79)
|Removing fences etc (s. 80)
|Accessing other land (s. 81)
*Nos. 1 and 2
Where it is proposed for a part of a building or incidental structure to be placed (encroach) beyond the boundaries of the work land or if the building work may adversely affect other land evidence of consent or court order must be submitted as part of the relevant building or demolition permit application.
Where it may have been unlikely at the permit stage for the building or incidental structure to encroach on other land or building work to adversely affect other land but comes to light during construction then consent or court order must be obtained before carrying out that work. NB: This may also require amendments to the building permit record.
Consent or court order is not required if a building permit is in effect for the construction of a close wall that requires the removal of a fence or gate etc. However, notification requirements apply. Please note: This does not prevent an affected owner exercising their rights under other laws.
Work affecting other land provisions apply even if a building or demolition permit is not required
Application for court order
The person responsible for the works who gives a notice to the adjoining owner/s of the affected land may apply to the Magistrates Court for an order as follows:
|Reason for seeking a court order
|The consent sought in the notice is refused
|Any time after the refusal is given
|If the consent sought in the notice is neither refused nor given, and no request for further information is made within the 28 day period after the notice is given
|After that period has expired
|If the person responsible for the works provides further information in response to a request from the adjoining owner/s of the affected land
|14 days after the information is provided
Court orders are administered by the relevant Magistrates Court visit www.magistratescourt.wa.gov.au
What if a builder starts work prior to obtaining consent?
If consent is not obtained and the person responsible for the work starts work that may affect adjoining land, the owners of that land should discuss the matters with the person responsible for the work to identify the extent of works and whether or not the works are notifiable events. The permit authority can be contacted to consider any enforcement matters that they may wish to investigate. If it was found that the builder did not obtain consent or a court order for a notifiable event, the affected owner may wish to consider lodging a disciplinary complaint with Building and Energy where the builder is registered under the Building Services (Registration) Act 2011.
Steps to follow if building or demolition work is likely to affect other land