Building & Construction
5. Common Issues
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 23 Jun 2015
- Building and construction disputes are common and can cover many issues.
- It may be that the work on your land affects your neighbours or others in the vicinity and this can lead to disputes.
- In some circumstances you will not be given a permit or approval to commence building until your neighbours have given their consent. This is the case where your work will encroach onto their land or when it will adversely impact their property by:
- affecting the stability of their property or land; or
- damage their building or drainage system.
- In other circumstances your building permit may be authorised but you may still need to seek consent from your neighbours prior to various stages such as:
- before erecting protective barriers that go beyond your land;
- party walls such as dividing fences or shared walls; or
- removing fences.
- In these scenarios you need to notify the affected neighbours and provide them with a form obtained from your local council requesting their consent.
- If their consent is not given you cannot proceed.
- However if you believe they are withholding consent unreasonably you can seek court orders allowing the construction to continue.
- Delays are another common source of building and construction disputes.
- There are many reasons why construction may be delayed. Delay may be due to:
- weather;
- public holidays;
- delayed supply of material;
- illness; or
- other obstacles such as legal barriers in the form of problems with acquiring permits or neighbour consent.
- Your contract must make provision for foreseeable delays. The builder is required to include a rough estimate of expected days delay for weather and other foreseeable circumstances. This is called a buffer. If an amount of time is not possible to estimate a buffer should still be included in the contract accompanied by a statement that the amount of delay is unquantifiable and the reasons why.
- In some circumstances unreasonable delay may allow a party to terminate the contract or seek damages.
- Delays will not be considered unreasonable if the builder could not have foreseen the circumstances causing the delay and they arose outside the control of the builder.
- Many building and construction disputes arise from defects in building work or materials.
- If you believe there is a defect in your building or you have been accused of causing defects in your building work it may be prudent to try and resolve the issue informally.
- You should make a complaint in writing detailing the defects. Keep a record of all correspondence between yourself and the builder. A lawyer can help you draft your complaint if you are not confident that you will express yourself clearly or cover all the details. Our free Find a Lawyer directory provides contact details for lawyers who may suit your needs.
- You should strongly consider hiring an independent building inspector to assess the work to determine whether you have a reasonable case.
- If you believe that you have sufficient evidence that the works are defective and you have been unsuccessful in resolving these issues with the builder you can make a complaint under the Australian Consumer Law.
- Disputes may also arise when a party does not abide by their obligations under the contract. For example many building contracts specify that the builder is to have sole control over the site during the construction process. This may be varied where an owner wishes to complete some of the work themselves in order to save costs. If the owner then gives instructions to the builder’s subcontractors very complex disputes can arise.
- It is important for builders to give clear written instructions to subcontractors and ensure that any contrary instructions are not acted on without the builder’s written authority.
- It is also important for owners to ensure that any changes are requested from the builder in writing and that you receive written acknowledgment from the builder.
- Clear communication throughout the construction process will save you both time and money when disputes arise.
- Building and construction disputes can be very complex, costly, time consuming and have far-reaching consequences such as preventing you from occupying your home and requiring you to find alternative accommodation.
- Engaging a lawyer early in the dispute and instructing them to assist you in pursuing alternative dispute resolution processes such as negotiation and mediation can be much more effective than litigation. If litigation does become necessary they will already be familiar with your claim and can assist you in preparing the matter for presentation to a court or tribunal.
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