A dilapidation report is a dated record of the condition of a property you are not building on, taken before your work starts, and compared against the same property when the work finishes. On a site with a basement, a shared wall or a kerb you are about to truck 400 loads of spoil across, it tends to be the only document that can answer the question that actually matters later: was that crack there before.
Before considering a dilapidation report as your protection against an adjoining owner’s claim, you’ll need professional advice from a construction or property lawyer, and from a structural or geotechnical engineer. The lawyer works out who carries the liability on your particular facts, whether the obligation sits in your consent, in a state Act, or only in the contract you are about to sign, and whether the report you are commissioning is admissible evidence or just photographs. The engineer decides which properties fall inside the zone of influence and what has to be measured rather than photographed. The consequences land on you, not on them: a support claim from next door can stop the excavation, hold the certificate, and sit on the balance sheet for years after practical completion, and in some states the insurance obligation is written onto the owner rather than the builder. This guide is written to make that conversation shorter and sharper. It does not replace it, and the questions worth asking are set out near the end.
Section numbers, timeframes and process steps below were current at the date of writing and they move. Each is linked to the primary source, which is where to confirm the position for your own site before you rely on it.
What does a dilapidation report actually do?
It creates a baseline, and nothing else. A dilapidation report records condition at a moment in time. It does not certify that the neighbour’s building is sound, it does not approve your excavation, and it is not a warranty to anybody.
That distinction shows up in the way councils write conditions. In a North Sydney Council consent for work adjoining a semi-detached dwelling, the conditions of development approval separate the two jobs completely. One condition requires a dilapidation survey of the adjoining property “detailing the physical condition of those properties, both internally and externally”, prepared by “an appropriately qualified person”, with a copy given to the owner of the adjoining property. A separate condition requires “a report from an appropriately qualified and practising structural engineer” certifying the structural adequacy of that same adjoining property. Two reports, two authors, two purposes. Treating the dilapidation survey as though it also discharges the structural question is a common and expensive conflation.
The practical value of the baseline is asymmetric, and it may not run the way developers expect. A good report rarely stops a claim being made. What it tends to do is reduce a claim from “your excavation destroyed my house” to an argument about a measurable change in one crack over a known period, which is a far smaller number and a far shorter dispute.
When is a dilapidation report required, and when is it just sensible?
There are generally three separate triggers, and they are often confused with each other.
The first is a condition of development consent or development approval, which is how most of these reports get commissioned in New South Wales and Queensland. The second is a statutory regime that applies to building work affecting adjoining land regardless of what the planning consent says, which is the position in Victoria and Western Australia. The third is your own risk management, which applies everywhere and is the only trigger that covers the properties nobody conditioned you to survey.
The three can all apply to one site. A Melbourne townhouse job can be inside the protection work regime, conditioned by the planning permit, and still need a survey of a third property the building surveyor never mentioned because that is where the retaining wall leans.
New South Wales: the consent condition and the duty of support
In New South Wales the survey obligation generally arrives through conditions of development consent rather than through a building Act, and it usually arrives with a deadline tied to the construction certificate.
North Sydney Council’s conditions of development approval for a Miller Street project show how the two limbs tend to be worded. The public infrastructure limb requires a dilapidation report recording the “pre-developed condition of the existing public infrastructure in the vicinity of the development site”, including a photographic record, prepared by “a suitably qualified consultant” and provided to the principal certifier “for approval prior to the issue of any Construction Certificate”, with a copy lodged with the council. The private property limb, where a consent includes one, requires the adjoining owner survey described above, on the same pre-certificate timing. Councils word these differently, so the condition on your own consent is the one that governs, but the shape tends to hold: two limbs, pre-certificate, and a nominated recipient.
Underneath the condition sits the liability the report is really about. Section 177 of the Conveyancing Act 1919 (NSW), inserted by the Conveyancing Amendment (Law of Support) Act 2000 (NSW), states that “For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land”, and that a person “has a duty of care not to do anything on or in relation to land (the supporting land) that removes the support provided by the supporting land to any other land (the supported land)”. Two features of that section tend to matter to developers more than the headline.
The first is subsection (4). The duty “does not extend to any support that is provided by a building or structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state formerly provided”. Support coming from your neighbour’s structure, rather than from the ground, generally sits outside the statutory duty, which pushes that part of the argument back into ordinary negligence and into the contract.
The second is subsections (5) to (7). The duty “may be excluded or modified by express agreement” between the person on whom it lies and the person to whom it is owed, that agreement binds a successor in title where it is “embodied in a registered easement for removal of support”, and the right to agree to removal of support “is a right of the kind that is capable of being created by an easement”. That is a negotiating lever that exists on paper on every site with a shared boundary, and it is a question for the lawyer rather than a step in a checklist. The same section also records, at subsection (8), that the common law action in nuisance for removal of support is abolished.
Victoria: the survey is statutory, and it gates the start of work
Victoria is the state where the condition survey stops being good practice and becomes a precondition to starting. The Building Act 1993 (Vic) runs a protection work regime at sections 84 to 94, under which the relevant building surveyor decides whether protection work is required, and the owner then has to deal with the adjoining owner before the work begins.
Bayside City Council’s summary of the process sets out the obligations that follow. The owner proposing the work issues a protection work notice to the neighbour explaining what is required and why, and seeking agreement. The neighbour must “respond to the protection work notice within 14 days”, and may agree, disagree, or request further information. The owner “must obtain a contract of insurance”. The owner “must prepare a survey of the neighbour’s property”, and the neighbour “must help prepare it before work starts”. The owner pays all associated expenses, and the neighbour may seek reimbursement of reasonable expenses incurred protecting their interests.
The section headings track that sequence: notice of building work to be given (section 84), the adjoining owner’s obligation to respond (section 85), the effect of disagreement or a request for further information (section 87), work not to be carried out until protection requirements are met (section 88), the adjoining owner’s right to inspect plans (section 92), the owner’s obligation to arrange insurance cover (section 93), and survey of adjoining property (section 94).
Section 88 is the one that belongs in the programme rather than the compliance folder. Where protection work is required, the sequence in front of the first excavator is a notice, a response window, a survey, and an insurance contract, and a disagreement does not pause the clock politely.
Disputes do not go back to the building surveyor. The Building Appeals Board hears dispute and compensation proceedings under Division 3 of Part 10 of the Act, and the list of what it determines reads like a list of where these jobs go wrong: emergency protection work (section 151), insurance (section 152), surveys of adjoining property (section 153), costs of supervising protection work (section 154), and other matters under Part 7 including the costs of assessing proposed protection work (section 155). An adjoining owner who suffers inconvenience, loss or damage during protection work may apply to the Board “for an order determining the amount (if any) of compensation” under section 159, and an unpaid determination may be enforced under clause 19 of Schedule 3 “as if it were a court judgment or order”. A Victorian developer reading that list is reading the real risk register for a boundary excavation.
Western Australia: a notifiable event, a notice, and a survey you can ask for
Western Australia also legislates the relationship, and it does something the other states do not: it defines the survey. In the Building Act 2011 (WA), “survey” means “a survey for the purpose of recording the condition of land”, and the notice machinery is built around it.
Part 6 of the Act deals with work affecting other land. There is to be no encroachment without consent or a court order (section 76), other land is not to be adversely affected without consent or a court order (section 77), no protection structure may be placed in or on other land without consent or an order except where it is urgently needed to prevent imminent collapse or damage (section 78), and there is no access to other land without consent and notification (section 81). Where a notifiable event is reasonably likely, the person responsible for the work must give notice in the approved form to each owner of the affected land and seek consent (section 84), with the consolidation published on the state legislation site setting a $10,000 fine for failing to do so. Under section 85(2) that notice “may request that a survey of the affected land be conducted” and seek consent for a person to enter the land to carry it out.
If consent does not come, there is a timetable rather than a stalemate. The person responsible may apply to the Magistrates Court where consent has not been given within 28 days of the notice, or within 14 days after further information is supplied in response to a request (section 86), and the court may order that a survey be conducted and specify the access times (section 86(2)(f)). Expenses of surveys and protection structures generally fall on the person responsible for the work unless otherwise agreed (section 90), and liability for loss or damage is preserved (section 91).
That version was the consolidation available on the state legislation site at the date of writing. Section numbering in Western Australia has moved before, so confirm the current consolidation before you serve anything.
South Australia: twenty business days, and no survey in the Act
South Australia’s regime is about notice and access rather than condition. Under the Planning, Development and Infrastructure Act 2016 (SA), as summarised by the Legal Services Commission of South Australia, an owner must serve a notice of intention on the owner of affected land “at least 20 business days before the building work starts” in the prescribed form (section 139). A party wall “cannot be built without the written consent of the adjoining owner” (section 147), written notice is required before party wall rights are exercised unless the adjoining owner consents in writing (section 148(4)), and written notice of the proposed date and time is required before entering adjoining land (section 149(2)). Where access to neighbouring land is requested and the adjoining owner does not respond within “10 business days”, the applicant may apply to the Environment, Resources and Development Court (section 140).
The Act also puts the protective obligation squarely on the person building. The owner must “take every precaution to protect the neighbouring land or premises”, must “make good any damage to adjacent premises (including contents)” caused by exercising party wall rights (section 148(3)), and may “still be responsible for damage resulting from negligent building work” even where the notice obligations have been met. What the Act does not do is require a condition survey. In South Australia the twenty business day notice is the statutory step, and the dilapidation report is the developer’s own evidence, which means nobody will remind you to take it.
Queensland: excavation is building work, and the report comes from the conditions
Queensland reaches the same place by a different route. The Building Act 1975 (Qld) brings the earthworks themselves inside the definition of building work: excavating or filling is building work where it “may adversely affect the stability of a building or other structure” (section 5(1)(b)(ii)), and so is supporting land, “whether vertically or laterally”, for building activities (section 5(1)(c)). Section 75 then requires that where soil conditions, ground levels, excavation or filling make it necessary to protect neighbouring land, buildings or structures, “retaining walls must be built, or other suitable methods used, to prevent soil movement”, with drainage provided.
What the Act does not contain is an adjoining owner notice and survey regime of the Victorian or Western Australian kind. In Queensland the dilapidation report generally appears as a condition of the development approval or of an operational work approval, which makes the wording of your own conditions package the controlling document, and makes the pre-start programme gate easier to miss.
Tasmania, the Australian Capital Territory and the Northern Territory
Tasmania legislates protection work. The Building Act 2016 (Tas) defines “protection work” by reference to section 76(1), and the Act also obliges a builder to ensure work does not cause “a nuisance to an adjoining owner” or “damage to infrastructure” (section 45(2)(e)). The detail of the Tasmanian notice and survey process sits in the protection work provisions and in the Director of Building Control’s guidelines, and the building surveyor on the job is the person who can tell you which category of work you are in.
In the Australian Capital Territory the equivalent step tends to run through the site work notice under the Building Act 2004 (ACT), with boundary and common boundary work picked up separately by the Common Boundaries Act 1981 (ACT). In the Northern Territory the mechanism is generally the building permit and the development consent conditions rather than a dedicated protection work regime. In all three, the practical answer is the same as in South Australia: if the Act does not make the survey a step, the only person who will make it a step is you.
New Zealand
New Zealand has no protection work notice regime of the Victorian type, and the condition survey is usually driven by the building consent conditions, by the territorial authority where its own assets are near the work, and by the developer’s own exposure.
Where the neighbour will not allow access, the Property Law Act 2007 (NZ) provides a court route. Section 319 allows an “owner or occupier of land” to “apply to court for order authorising entry onto or over neighbouring land”, and section 320 sets out the powers of the court making such an order. As with the Australian access regimes, the cost of that route is time, which is why it belongs in the programme rather than in the dispute.
What has to be in the report for it to be worth anything?
The answer-first version: measurements, dates, internal coverage, and proof the neighbour received it. Photographs alone generally produce an argument, not a defence.
The council wording is a reasonable minimum specification because it is what somebody will later hold you to. The North Sydney conditions ask for the physical condition of the adjoining properties “both internally and externally”, and for the public infrastructure limb they ask for a photographic record of the pre-developed condition in the vicinity of the site. A report that covers only what the consultant could see from the footpath satisfies neither.
Beyond that minimum, the elements that tend to decide whether a report does any work in a dispute are these. Crack widths recorded as measurements against a dated reference, not described as “minor”. Fixed survey marks or levels on the adjoining structure, so that movement can be quantified later rather than debated from photographs. Clear identification of which properties are inside the scope, which is an engineering question about the zone of influence of the excavation and the dewatering, not an administrative question about which lots share a boundary. Coverage of the things that get forgotten, being retaining walls, driveways, pools, fences, paving, garages and any public infrastructure the condition names. And an acknowledgement trail: the North Sydney condition requires a copy to be given to the owner of the adjoining property, and the record that it was given is as useful as the report.
One trap worth naming. The survey is an evidentiary document, so the identity and independence of the author matters. The conditions above ask for an “appropriately qualified person” and a “suitably qualified consultant” rather than nominating a discipline. In Victoria the Act puts the obligation to prepare the survey on the owner, with the adjoining owner obliged to assist, which is a different allocation again. Who signs it, and whether they would be credible giving evidence about it, is a question for the lawyer before the report is commissioned rather than after it is challenged.
What does the post-construction survey do that the first report cannot?
It converts a record into a comparison, and without it the first report generally proves only that cracks existed, not that they did not change.
This is where the gap between what you are required to do and what protects you is widest. In the North Sydney consent conditions above, the dilapidation survey of the adjoining private property is required before the construction certificate issues, and no post-construction survey is required at all. The same pattern is common: the condition exists to create the baseline, and the comparison that uses the baseline is left to the parties. A developer who does exactly what the condition says has done half of the work and kept none of the benefit.
The timing considerations tend to be practical rather than legal. Access to the neighbour’s interior is easiest while relations are still ordinary and hardest once a claim has been foreshadowed. The builder’s obligations to make good are live before demobilisation and awkward afterwards. Monitoring data, where settlement markers or vibration monitoring are in place, is only interpretable against the original survey, so the two documents are read together or not at all. And where the work is staged, a mid-stage survey at the end of bulk excavation may separate the excavation contractor’s exposure from the structure contractor’s, which is a question for whoever is drafting the trade packages.
What happens when the neighbour will not let you in?
Every jurisdiction has a route, and every route runs on a court or tribunal timetable, which is the reason this belongs in the programme and not in the dispute.
In New South Wales, the Access to Neighbouring Land Act 2000 (NSW) allows a person who requires access for the purpose of carrying out work on their own land to apply to a Local Court for a neighbouring land access order (section 7), and inspection “for the purpose of ascertaining whether any such work is required” is one of the permitted purposes (section 12(1)(b)), which is how a condition survey fits inside the Act. The applicant “must give at least 21 days notice of the lodging of the application and the terms of any order sought” (section 10(1)). The court may impose conditions that are “reasonably necessary”, including “the taking out of insurance cover by the applicant against such risks” as may be specified (section 16(2)(d)) and reimbursement of the owner’s reasonable expenses (section 16(2)(g)). The applicant must restore the land “so far as is reasonably practicable” and indemnify the owner against damage (section 21), and the court may order compensation for loss, damage or injury arising from the access (section 26(1)). Those section numbers and the 21 day period are taken from the consolidation of the Act published at the NSW legislation site, and the current consolidation there is where to confirm them.
In Western Australia the equivalent is the Magistrates Court application under section 86 of the Building Act 2011 (WA), available where consent has not been given within 28 days, with the court able to order that a survey be conducted and to specify access times. In South Australia it is the Environment, Resources and Development Court after a ten business day silence under section 140 of the Planning, Development and Infrastructure Act 2016 (SA). In Victoria the survey obligation under section 94 of the Building Act 1993 (Vic) carries the adjoining owner’s duty to assist, and a dispute about the survey itself is a Building Appeals Board matter under section 153. In New Zealand it is the court order under section 319 of the Property Law Act 2007 (NZ).
Three lead times therefore belong on the programme before excavation: the notice period, the response window, and the application if the response is no. On a tight site that chain can be the difference between a shoring sequence that works and one that waits.
What does it cost, and where does it sit in the feasibility?
The cost of the surveys themselves is almost never the issue. Market practice tends to put a residential adjoining property survey in the low thousands of dollars per property, rising where internal access to multiple tenancies, a strata building or a commercial fitout is involved, and rising again where levels, crack monitoring or instrumentation are specified rather than photographs. A current fee proposal from the consultant you intend to use is the only reliable number, and the scope, meaning how many properties and whether the post-construction survey is included, moves the fee more than the rate does.
Where the money actually sits in a feasibility is three places away from that fee line. It sits in the pre-start programme, because a notice period and a response window are duration, and duration on a funded site is interest. It sits in the contingency against a support or damage claim, which is an order of magnitude conversation rather than a fee conversation. And it sits in the shoring and protection design, because the choice between a battered excavation and a piled, anchored or underpinned solution is often driven by what you are obliged to protect next door rather than by what is cheapest in the ground. The geotechnical report is where that chain starts, and the gap between the geotechnical assumption and the protection obligation is a classic source of latent condition and extension of time exposure once work is underway.
The relative sizes are worth putting in numbers, and the access timetables supply them. Take a basement site where the neighbour refuses internal access, so the survey waits on the 21 days’ notice the New South Wales access regime requires and then on a Local Court date, and the excavation start moves six weeks. With $8,000,000 drawn at that point, being land, approvals and early works, at an indicative 9 per cent, the interest alone is about $13,800 a week, so the delay costs roughly $83,000. The survey it was waiting on would have cost a few thousand dollars a property. Those figures are illustrative, and the point is the ratio rather than the amounts: the fee is not the exposure, and neither is the report. The duration is.
For the cost plan itself, the survey fees generally sit with the other professional fees, while the protection and monitoring works sit in the construction cost, which is worth separating early because they are approved by different people on different timelines, and the carry across any pre-start delay sits in land holding costs.
Where dilapidation reports meet the rest of the site risk
The report is one element in a cluster, and the cluster tends to fail at the joins.
The structural and geotechnical advice decides scope. The zone of influence of an excavation, the dewatering drawdown and the vibration envelope are what determine which properties are surveyed, and that is a question for the structural and geotechnical engineers rather than for the consultant taking the photographs. Where ground movement is a genuine risk, settlement markers and vibration monitoring on the adjoining structures run alongside the survey, and the limits that apply generally come from the project’s own noise and vibration management requirements and from the standards referenced in the consent, which is a question to put to the engineer rather than a number to assume.
Shared and boundary structures are their own problem. A party or common wall usually cannot be altered or extended without the adjoining owner’s written consent, and in South Australia the Act makes that explicit for party walls. Where the structure, footing or anchor extends beyond your title, you are in encroachment territory rather than protection work territory, and the Western Australian Act treats encroachment and protection structures as two separate consents for exactly that reason.
Timing is tied to certification. The conditions in the New South Wales example are keyed to the construction certificate, which makes the survey part of the certificate pathway rather than a site activity, and the Victorian regime keys it to the start of work under section 88. Either way the report has to exist before a gate that is already on the critical path, and the time to find out which gate is when the development consent conditions are first read rather than when the certifier asks.
Insurance is the last join, and the one most often assumed. Victoria writes the insurance obligation onto the owner at section 93 and gives the Building Appeals Board jurisdiction over insurance disputes at section 152. That is a different allocation from a contract that leaves adjoining property damage to the builder’s cover, and whether your own construction insurance responds to a support claim from next door, on your facts and in your state, is a question for the broker and the lawyer rather than an assumption to carry into the excavation.
Where developers get caught
Five patterns recur, and none of them are about the quality of the photographs.
The condition is read as the whole obligation. The consent requires a baseline; it rarely requires the comparison that makes the baseline useful, and almost never requires the survey of the property that is not technically adjoining but is inside the zone of influence.
The scope is drawn from the title plan instead of the engineering. Properties diagonally opposite a corner excavation, buildings over a shared basement wall, and public infrastructure named in a separate condition limb are the usual omissions.
Internal access is left until it is needed. The statutory access routes exist, but they run on 21 day notice periods, 28 day consent windows and court lists, and they are slow precisely when the programme is tight.
The pre-start sequence is treated as paperwork rather than duration. In Victoria the notice, the response window, the survey and the insurance contract all sit in front of the work under section 88. On a funded site that is holding cost, not administration.
The report is commissioned to satisfy a certifier rather than to survive a challenge. Measurements, levels, dated references, named authorship and proof of service are what make the difference later, and they cost very little more at the time.
What to ask your lawyer
- On our facts and in this state, does the obligation to survey the adjoining properties come from the consent conditions, from a state Act, or only from our contract, and what is the consequence of getting each one wrong?
- Who carries the exposure for damage to the adjoining property between us, the builder and the subcontractor under the contract we are about to sign, and does that allocation survive a statutory obligation that is written onto the owner?
- Is an easement or express agreement for removal of support worth negotiating with this neighbour before we lodge, and what would we be giving up?
- What is the limitation position on a support or damage claim from next door, and how long after practical completion does this sit on us?
- If the neighbour refuses internal access, which court or tribunal are we in, how long does that route realistically take in this state, and what does the application have to show?
- Does the report as drafted, and the way we are serving it, actually put us in a better evidentiary position, or have we just created a document the other side will use?
What to ask your structural and geotechnical engineer
- Which properties are inside the zone of influence of this excavation, this dewatering and this shoring sequence, and what is that based on?
- What has to be measured rather than photographed, and where do the levels, markers or crack gauges go?
- What protection work does this excavation actually require, and does it involve anything placed on, under or over the neighbour’s land?
- What movement and vibration do you expect at each adjoining structure, what limits apply here, and what happens to the sequence if the monitoring exceeds them?
- Should we survey again at the end of bulk excavation to separate the earthworks exposure from the structure exposure?
- Which parts of the shoring design depend on the condition of the neighbour’s existing footings, and what did you assume about them?
What to ask your certifier or building surveyor
- Which condition on this consent or permit requires the survey, what exactly does it require, and which gate does it hold up?
- In this state, does the protection work or notice regime apply to this work, and if so what is the sequence and the earliest date we can start?
- Who do we have to serve, in what form, and what evidence of service will you want to see?
- Is a post-construction survey required anywhere in the conditions, and if not, do you have any objection to us doing one?
- Does any asset owner, being a rail, water, sewer or road authority, have its own condition survey requirement for this site that sits on top of the council condition?