An owner (or a builder on behalf of an owner) must get consent from the owner of adjoining land, before doing anything that may affect the land (or that might affect the neighbour).
If there is a likelihood that the building work may require access to a neighbour's land, or if there may be a need to remove a fence or any other structure, owners should be advised and consent obtained as early as possible.
If consent cannot be obtained, a court order can be applied for. Court orders are administered by the relevant Magistrates Court.
Consent is require for work that:
- Encroaches into other land (ref: Building Act 2011, section 76)
- Adversely affects other land (ref: Building Act 2011, section 77)
- Requires temporary or permanent protection structures to be placed on other land (ref: Building Act 2011, section 78)
- Affects the structural, waterproofing, or noise insulation capacity of a party wall, substantial dividing fence or retaining wall (ref: Building Act 2011, section 79)
- Involves the removal of dividing fences (ref: Building Act 2011, section 80)
- Requires access to other land for construction purposes (ref: Building Act 2011, section 81).
A person responsible for work must seek the consent of each affected owner by giving them the applicable approved notice and request for consent form. There are two types:
|Notifiable Event||Form No.||Form Name|
|1 and 2||BA20||Notice and request for consent to encroach or adversely affect|
|3 to 6||BA20A||Notice and request for consent (response notice): Protection structures, party walls, removal of fences, access to land|
The form should be completed by the person responsible for the work and include:
- 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
- Copies of plans and specifications and any technical certificates that show how the work will affect other land.
A copy of the signed form, or a copy of a court order from a Magistrate, should accompany any building or demolition permit application where the work being proposed will adversely affect or encroach on any adjoining land.
Each affected owner of other land has 28 days after the notice is given in which to respond, or to 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 then has an additional 14 days to respond.
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 the Department of Mines, Industry and Regulation where the builder is registered under the Building Services (Registration) Act 2011.
For more information visit the Department of Mines, Industry and Regulation website.