Client access to building site
May 05, 2020
HIA Workplace Services gets many questions from members about client and their agents rights to access a building site. With the COVID-19 pandemic adding more complexity to this issue it is a good time for a refresher on this issue.
It is particularly important to appreciate that maintaining a safe workplace is difficult if your client or their agents are allowed uncontrolled access to a building site. A client and their agent should not be getting access to the property without supervision so that the builder can comply with their obligations under OH&S laws and their contractual obligation to keep the site secure.
The Domestic Building Contracts Act 1995 has two sections that regulate owners and builders rights with respect to control and access to a building site. Section 17 states that a domestic building contract cannot give the builder a greater right to occupy a building site than that of a contractual licensee. In simple terms, this means that the builder is not a tenant and not entitled to exclusive possession of the building site. This does not mean that the owner has a right to occupy the site themselves or access the site whenever they wish. The contractual licence contained in the domestic building contract can control the owner’s access to the site. Such controls, provided that they are reasonable and necessary, are legitimate to ensure the builder complies with all legal obligations.
Section 19 of the Act states that a “builder must permit the building owner (or a person authorised by the building owner) to have reasonable access to the building site and to view any part of the building works”. The section also states that a person exercising this right of access must not interfere with the carrying out of the building works. This section of the Act is often referred to by owners, building consultants and lawyers when asserting that the owner has the right to access the land. Often such assertions are made without consideration of what is meant by reasonable access. Since a builder is responsible for the safety and security of the building site it is reasonable for the owner or the agent to be supervised when they visit the site and for the duration of that visit be to be limited in time. Time and number of people attending restrictions are especially important at the moment with the COVID-19 pandemic restrictions in place.
Therefore any assertions by an owner or their agent that they can enter a building site whenever they wish are misconceived. As are assertions that the owner or their agent is entitled to enter the site without supervision or stay as long as they wish. So are assertions that the client merely needs to give notice of their intention and they can enter whenever they wish.
Warning – Owner doing own work on site or getting a key or access code
The above advice becomes problematic if the builder has agreed to let the owner, or a trade engaged by the owner, do work on the site while the builder is still working on the site. Such arrangements are strongly discouraged as they leave the builder exposed to responsibility for the owner or their trades activities without the builder having the power to manage the situation or be paid for taking on this responsibility. Arguably if the builder has allowed the owner to carry out their own work then the owner can argue that it is reasonable to access the site for the purpose of this work. It becomes very difficult for the builder to prove that the owner is not accessing the site for this reason. The only way to mitigate this risk is to have special conditions drafted by lawyer to control when and how the owner can have access to carry out building work. You also need to check that your insurance cover will apply if you allow the owner or their own trades carry out work on the building site.
Finally, if you let the client have a key or access code to the building site then arguments about reasonable access become irrelevant. In this scenario the owner and their agent can practically enter whenever they wish and the builder takes on the risk of the safety or security of the site being compromised. If you agree to such an arrangement with the owner you should check that your insurance cover protects you if the property is damaged or the owner or another person injured while they visit the building site.
For further advice, please speak to a HIA Workplace Adviser on 1300 650 620.