Posted: Tuesday, 6 February 2018 @ 14:49
Prior to 1996 there
was no regulation outside of London which gave a statutory mechanism for resolving
building issues with Party Walls and other structures against a boundary.
Party Walls I mean walls and structures which are shared by adjoining properties
or built on or near the boundary line.
The Act of 1996
changed all of that, giving statutory strength to common law rights and adding
some new rights and obligations.
The Act provides a
mechanism to ensure that adjoining owners can undertake building works to party
structures, as well as construct new structures close to neighbouring walls, provided
a notice procedure is followed.
Reasonable rights of access are also granted to
enable the work to be done. But reasonable efforts must be made to minimize disruption
and any damage done must be made good.
If any building owner,
and there is a wide definition of that, intends to carry out building work
- Work on an
existing wall or structure shared with another property.
- Building a
free-standing wall or a wall of a building up to or astride the boundary.
near a neighbouring building
they must find out if
the intended work is governed by the Act. If it does, then there is a procedure
for notifying all parties, certain rights attached to the work, and a dispute
I will now look in
greater detail to the 3 scenarios mentioned above. But first I should point out
that “building work” does not include minor work unless it endangers the integrity
of the structure. So, wiring work, re-plastering walls, and fixing for example
units to wall, would not usually count.
1. Work to an existing Party Wall or structure: this gives a building owner the right
to do various work, including demolishing and re-building a Party Wall,
underpinning, protection work, raising the height or increasing the width of
the Party Wall, and for example inserting a structural beam or installing a damp
Before starting on this work the Building Owner must give notice to all
adjoining owners affected. Failure to do this could result in the adjoining owners
obtaining a court injunction stopping the work.
Best practice must always be to engage in a discussion with the adjoining
owners well in advance, giving them full details and plans of the proposed
works, including the proposed start date, to try to head off any flash points.
The notice required by the Act must be in writing and served on all the adjoining
owners at least 2 months before the
planned starting date for the building works.
The adjoining owners can give their consent in writing and may also agree an
earlier start date. They may also dissent.
If they dissent or do nothing for 14
days, then the dispute resolution process comes into play. There is also a
procedure allowing the adjoining owners to give a counter notice if they wish
work to be undertaken for their own benefit.
The dispute process is to agree either to appoint an independent “Agreed
Surveyor” to draw up an impartial Award, or if that is not possible to each
appoint a surveyor, and between them they will appoint an additional independent
surveyor to deal with issues where they cannot reach agreement. The Award will
set out in detail the work to be carried out, say when and how it will be
carried out, specify additional work such as protection work, contain a record
of exiting condition to assist with identifying new damage caused by the work,
and allow access for surveyors.
Access: an adjoining owner must when necessary allow workmen and surveyors and
architects for example to their property to undertake and check the work. But
14 days written notice must be given. It is a criminal offence to refuse or obstruct
Rights: adjoining owners have certain rights, some already mentioned, such as to
appoint their own surveyor, require reasonable measures to be taken to protect
their property, not to suffer unnecessary inconvenience, and to be compensated
for any loss or damage.
2. New building at or astride the boundary line: again, the notice procedure mentioned above must be followed. Note that there
is no right to build astride the boundary without the adjoining owner’s
permission, and whilst footings for building up to the boundary line may extend
under the neighbour’s land there is no right to place reinforced concrete under
the neighbour’s land without their express permission.
For this type of work the notice has to be served at least one month before the planned start date.
For access and rights, see above.
The dispute resolution process is the same as outlined above.
3. Excavating within 3 metres or 6 metres of a
neighbouring building or structure, depending on the depth of the hole/foundations.
This involves excavation work,
or excavation and construction of foundations for a new building or structure.
If the work is within 3 metres of the neighbouring owner’s building or
structure, and the work will go deeper than the heighbour’s foundations, then
notice has to be given.
work is within 6 metres, if the work will cut a line drawn downwards at an
angle of 45 degrees from the bottom of the neighbour’s foundations, then notice
must be given.
The same time and other provisions and dispute resolution process apply as per
the work to existing party wall or structure as mentioned above. For this work the notice in writing must be
given at least one month before the
planned start date.
The dangers for building
owners who ignore the Act and start work are well illustrated by the recent case
of Peabody Trust v Brecher in the Technology and Construction Court. The
Brechers did give the necessary notice under the Act, but then failed to comply
with the procedures and went ahead with works causing damage to the Peabody’s
property at a time when no Award had been made in the dispute resolution procedure.
Peabody went to court 3 times, and on the last occasion in November 2017
obtained a final injunction preventing any work covered by the Act unless and
until either an Award had been made or Peabody’s consent had been given and
requiring the Brechers to give Access to Peabody’s surveyors.
Blog by Nigel Musgrove
Nigel has been providing dispute resolution advice as a solicitor for over 35 years. As well as advising SMEs and business owners on disputes he also offers a specialist licensing law service. View profile
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