Party Wall etc. Act 1996 – Service after work has commenced can prove to be futile!

Unless there is damage caused to or on an Adjoining Owners land, when works are nearing completion, there is little benefit in appointing and paying for surveyors and issuing party wall notification at this point.  This is because the works ‘have already taken place’, (or mostly), so the remaining provisions that can be included in a Party Wall Award, at this late stage, will be extremely limited

Source: http://www.martinsurveying.co.uk/

The requirements of the Party Wall etc. Act 1996 often come as a surprise for those who propose to undertake works to domestic buildings as well as those who propose works to commercial buildings in England and Wales.  Given that the provisions of the Party Wall Act have now been in existence for the best part of 18 years it is equally surprising that there still seems to be a general lack of awareness of the requirements of the Act, something that I considered in last week's article (link).  The amount of Building Owners (a term used under the Act to describe the party who is undertaking the work), who choose to ignore the Act, whether through ignorance (which is no defence in law!) or a genuine desire to cut corners to save on time and expense, never ceases to amaze me. If the main purpose of the Act is to prevent and resolve disputes it seems a contradiction in terms that many of my appointments under the Party Wall etc. Act, were usually made when a dispute had already occurred! (at this stage the dispute was a dispute in general terms and not a Party Wall dispute).

For the purposes of this article I will refer to the domestic client, someone who in most cases (but not all), will have very little construction knowledge and will rely on others to point them in the right direction.  For many in this situation the first port of call may be to contact a Contractor to come a long to give them some initial advice as well as an indication of likely costs, a ball park figure if you like. I can remember a number of situations where I had been appointed by a Building Owner as Party Wall Surveyor after works had commenced, where for whatever reason they had been made aware that they should have notified their Adjoining Owners (a term used under the Act to describe the party who is affected the work), but had not been advised of this by their Contractor.

Source: http://www.mnasurveyors.co.uk/

The impact of the dealing with the Party Wall Act retrospectively (after work has already commenced) can vary for the Building Owner depending on whether any damage has occurred on the Adjoining Owners land (which is one of the main reasons that brings the Party Wall Act to the attention of the Building Owner), and how advanced the works are.  In the first case of damage occurring before party wall notification has been served, an Adjoining Owner will need to rely on common law rights and may seek an injunction in the County Courts to have the works stopped. The Adjoining Owner will not be able to rely on the provisions of the Party Wall Act at this point because the Act has not been initiated, which only happens when notification is served.

In the situation where works are well advanced and sometimes nearing completion, it is worth thinking about the benefits of issuing party wall notification as well as the production of a Party Wall Award (sets out the terms and conditions for the proposed works, including costs/fees).  One of the key reasons for the introduction of the Party Wall Act was to enable Building Owners to undertake work and give Adjoining Owners confidence that the works would be carried out in an appropriate manner and any damages caused on the Adjoining Owners land, in respect of the notifiable work would be rectified. Unless there is damage caused on an Adjoining Owners land, when works are nearing completion, there is little benefit in appointing and paying for surveyors and issuing party wall notification at this point.  This is because the works ‘have already taken place’, (or mostly), so the remaining provisions that can be included in a Party Wall Award, at this late stage, will be extremely limited.  An Adjoining Owner should not be given the impression that they can solely use the provisions of the Act as a way of disrupting the Building Owner and making them incur excessive expense (the Act also provides for the Building Owner to meet the reasonable fees of an Adjoining Owners Surveyor, if appointed), unless of course damage has occurred as a result of any works that may be notifiable.

If it is realised that a Building Owner has failed to serve Party Wall notification and works have been completed and an Adjoining Owner is not satisfied with the standard or quality of the works then they can scrutinise Building Regulations and Planning Permission requirements (if applicable) to confirm that these have been complied with and also consider areas of common law such as negligence, nuisance and trespass etc, if they have suffered damage or disruption. I have previously been approached by a number of people in this very situation where they have been told to insist that their neighbour issues Party Wall notification, after work had already commenced.  For the reasons explained above, this is a pointless exercise and very poor advice. Once works are complete an Adjoining Owner should seek a common law remedy if they feel they have a justified grievance with their neighbour. They cannot rely on the provisions of an Act that has not been initiated in the first place!  

It is worth noting that for the purposes of this article I have used the terms Building Owner and Adjoining Owner throughout.  Whereas these roles only exist once the Party Wall Act is initiated through the service of notices, these terms have been used to explain the relationship between those who may have work undertaken and those who may be affected by these works.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Party Wall etc. Act 1996 – Much more than just Party Walls!

It is easy to see how the Party Wall etc. Act can be mis-interpreted, particularly by members of the public, just by the nature of it's title.  For those who work in the property professions and interact with the Act on a regular basis there will be generally less confusion, however in my experience this is not always the case! 

Source: http://www.cwcpartywalls.co.uk/

Although there is a lot of information available about the Party Wall etc. Act 1996 (the Act), and its implications, it appears that there is equally as much misunderstanding or even ignorance about the Act, particularly from members of the public in relation to if and when the Act may apply.  This article is therefore primarily aimed at those with little to no knowledge of the Act, however others may also find it of interest. 

Awareness of statutory approvals such as Planning Permission and Building Regulations approval seems to be improving, however, the existence let alone the requirements of the Act, often comes as a complete surprise to many. If you are proposing certain types of work on your land or too your property then you may be required to ‘notify’ your neighbour under the Act.  It is worth pointing out at this point that the requirements and procedures within the Act are completely separate to other statutory permissions such as Building Regulations and Planning Permission.  On a number of occasions I have been informed by householders that they were either not made aware of the requirements of the Act by their advisors or that they thought that they had obtained all of the relevant permissions because they had Planning and Building Regulations Approvals, which is completely incorrect.

If you are proposing any work to your land or property it is worth undertaking a little research to establish if the work falls under the scope of the Act and therefore will require notification to your neighbour/s (something referred to as Adjoining Owner/s under the Act).  As you would expect, I would always advise you to seek professional advice to confirm whether notification under the Act is required and if so help to guide you through the process, however, nowadays, with the raft of information available on-line, there is no reason why you shouldn't undertake your own research to give you a better understanding of the Act.  The Department for Communities and Local Government have produced an excellent explanatory booklet, which explains the Act in a clear understandable manner and provides a really good starting point, particularly for those with little or no knowledge of the Act.  You will find a copy of the booklet by clicking on this (link).

You may be surprised by the range of different types of work that are notifiable under the Act, which you will see are not just restricted to a party wall itself. The Department for Communities and Local Government booklet defines a party wall as, ‘a wall is a "party wall" if it stands astride the boundary of land belonging to two (or more) different owner’. The booklet then provides some illustrations to demonstrate this point.  It is interesting to note that the definition of a party wall is not just restricted to a wall inside a building, but can also relate to external walls also, such as boundary walls.  The Act uses the term ‘Party Fence Walls’ to describe walls that are not part of an actual building itself, however may still require notification under the Act for works to, or in close proximity to them. 

Source: http://www.mypropertyguide.co.uk/

The term ‘etc’ in the title of the Act is also significant. Three innocent little letters (etc.), however the implications of the term denote that the scope of the Act is much wider than just party walls.  In fact some works that require excavations near neighbouring buildings may also require notification under the Act. Section 6 of the Act requires notification of excavations within 3 metres (refer to diagram above) or within 6 metres of a neighbour's building or structure based upon the following criteria: 

‘excavate, or excavate and construct foundations for a new building orstructure, within 3 metres of a neighbouring owner’s building or structure, where that work will go deeper than the neighbour’s foundations;

or excavate, or excavate for and construct foundations for a new building or structure, within 6 metres of a neighbouring owner’s building or structure, where that work will cut a line drawn downwards at 45° from the bottom of the neighbour’s foundations’

The six metre ‘rule’ is a little more complicated to understand (see the diagram below) than the three metre ‘rule’ and usually relates to deeper excavations such as piled foundations and the like.  It is also worth noting that the six metre rule can affect more than one adjoining owner, depending upon the depth of excavation and the proximity of adjacent buildings and structures.  In order to establish how many adjoining owners may be affected in any instance by the six metre ‘rule’ it will be necessary to take measurements and produce a section drawing which will detail the depth of the proposed excavation and the location and proximity of adjacent structures and buildings.  Professional expertise is highly likely to be needed to take measurements and further investigations such as trial holes to establish existing foundation depths, to be able to produce a section drawings. This will help to establish if and how many adjoining owners will be affected.

Source: http://www.mypropertyguide.co.uk/

Another term used within the Act is ‘Party Structure’.  This again suggests that the Act does not relate exclusively to party walls.  In fact there are a number of notices that may be issued under the Act, one of which is a Party Structure Notice.  The reason the notice is not entitled a Party Wall Notice, is that this would be misleading and not account for any works other those to Party Walls.  Party structures are generally party walls however can also be defined as dividing structures such as floors and other partitions, however it is very rare that these structures are subject to party wall notification.

In summary it is easy to see how the Act can be misinterpreted, particularly by members of the public, just by the nature of it's title.  For those who work in the property professions and interact with the Act on a regular basis there will be generally less confusion, however in my experience this is not always the case!  As notification under the Act may be required for a whole range of different types of work, as defined in section 1, 2 & 6 of the Act, all construction professionals, regardless of discipline should have a good understanding of the Act including it’s procedures.

In next week’s article I discuss retrospective party wall notification and in future articles I will consider different types of notifiable works in more detail, as well as tackle the thorny issue of fees under the Act. 

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Party Wall etc. Act 1996 - It's my party and I'll comply if I want too (or so some think!)

The main purpose of the Party Wall etc. Act 1996 is to prevent and resolve disputes, however, it seems a little strange that most of my appointments under the Act were usually made when a dispute had already occurred!

Source: http:/www.curchodandco.com

Anyone who deals with law will know that reading legislation can often be cumbersome, time consuming and often difficult to understand and interpret.  This is not the case however with the Party Wall etc. Act 1996  which is one of the most simple and prescriptive pieces of legislation that you could hope to read.   The guidance (link above) from the Department of Communities and Local Government, describes the purpose of the Act as  'providing a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings'

The amount of Building Owners (a term used under the Act to describe the party who is undertaking the work), who choose to ignore the Act, whether through ignorance (which is no defence in law!) or a genuine desire to cut corners to save on time and expense, never ceases to amaze me. If the main purpose of the Act is to prevent and resolve disputes it seems a contradiction in terms that many of my appointments under the Party Wall etc. Act were usually made when a dispute had already occurred! (at this stage the dispute was in general terms and not a Party Wall dispute). The scenario below is a recent post on the Building Magazine Forum  and is typical of situations that I have been appointed to deal with on numerous occasions:

Have lived in current house for 4 years, it's a semi and the other half changed hands last year. New neighbour promptly guts house, relocates bathroom from side of property to rear. Digs deep holes in garden for sewerage but doesn't fill holes in. Moves into home in November.

January applies for planning for two storey side extension, single back extension and front porch. This would take it from 3 beds to 5 beds! Planners refuse but give permission on second application on scaled down side extension with only an a increase to 4 beds. He started 'official' work in April just after receiving permission however had dug front porch foundations before Christmas along with making the 'sewer' holes out the back into bigger foundation shaped holes!

Now my problem. His rear foundations are several feet below my land and right against my fence which is approx a foot from my conservatory. Yesterday I noticed that in fence is leaning and on inspecting it I discover it's floating! as the land my side has started to fall into his excavations. This is happening along about ten foot of the fence starting at the house. He has tied rope to the fence to try to hold it up right but it's not working.

Looking down from an above window I can see gaps appearing in the lead flashing of my conservatory on that side so am worried that his deep excavations, which have been open for some nine months, are damaging my property. First step will be to speak with him but what should I be asking he do? Do I need a Surveyor to check there is no damage?

Also the front porch he's built was supposed to be a lean to roof but he's built it as a ridge roof and water is now pouring onto my house and land. I've spoken to him about this and he plans to put guttering up 'sometime'.

Can he just change his plans like this?

Anyone who is affected by a 'Building Owner's' work as described above, where Party Wall Notices should have been issued but have not, cannot claim any benefits under the Act, because the provisions within the Act cannot be utilised until correct notification has been issued (the Act is then initialised).  Below is the response I posted to the above scenario:

I agree that the Party Wall etc. Act should apply, and your neighbour obviously has not notified you. Seek the advice of a Surveyor immediately. If you're property is being significantly affected in the way you suggest then the work next door needs to be stop immediately and possibly temporary support of your property needs to be undertaken.

If your neighbour refuses to stop work, then you can apply for a County Court injunction to enforce this. Once works are stopped your neighbour should then issue Party Wall notification, for which you will have a number of options. One such option will be that you dissent (do not agree) with the works and in which case you have the option to appoint your own surveyor, who's 'reasonable fees' must be met by your neighbour.

Your surveyor will then work with your neighbour's surveyor and agree a Party Wall Award which will include details about how the works should be completed and what should be done to rectify any damage. The award will be agreed before works re-commence and will give you the comfort of knowing that the works will be completed appropriately and if any damage is caused it will be dealt with.

There is an option for you to select an 'Agreed' surveyor, who will act impartially for you and your neighbour, however when I have been called in, in situation like this I often found that relationships between neighbours had become soured and they wanted to appoint separate surveyors.

I would advise you to contact a surveyor immediately who deals with Party Wall issues, who will go through the procedure with you and hopefully explain the above in more detail.

My response focused on the Party Wall issues, however there is also a possible breach of Planning Permission in respect of the porch roof that would need to be investigated.

In conclusion there appears to be a general lack of awareness of the Party Wall etc. Act and it's requirements by members of the public (and their advisers) which through lack of publicity, poor advice or genuine ignorance is not acceptable.  Legislation does not provide a choice, it must be complied with and those who fail to do this must be prepared to face the consequences, so be warned!

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

In the dark about Permitted Development?

Permitted development rights take no account of a neighbour's 'rights to light'.

The UK planning system allows certain types of development to be made without the need to apply to your Local Authority for planning permission, this is referred to as 'Permitted Development'. Information relating to permitted development can be found on the Planning Portal

Planning applications often require professional advice in order to produce drawings, submit the application in the correct format, liaise with the Local Authority, all of which, in addition to the planning fee itself can prove to be expensive. There is also the possibility that the application may receive objections from neighbours/local residents, which will be taken into account by the Local Authority when making a decision on the application. All of this expense, stress and uncertainty can be avoided if the development is deemed to be 'permitted development'.

Whilst the advantages are clear for the party who proposes to undertake a project under permitted development, what about the rights of adjoining owners who may be affected in some way by the proposed development?  For example, take a single storey side extension to a semi detached dwelling.  The extension will be only 1.5 metres from the neighbours external wall (not the boundary), however the height of the extension will be 2.8 metres at the eaves (the junction of the top of the wall and roof).  Although the extension will impact on the available light from the neighbours kitchen windows, this is classified as permitted development. The photograph below shows the new extension on the left hand side.

Permitted development rights take no account of a neighbour's 'rights to light'.  Therefore it is currently acceptable under UK planning laws for a development that does not require planning permission (as it may be permitted development) and is therefore deemed as acceptable, to adversely affect the right of an adjoining owner.  This, surely cannot be acceptable.

Any adjoining owner who is affected in this way will receive little help or guidance from the Local Authority because as far as they are concerned this is permitted development and there is nothing they will do apart from unhelpfully tell you to complain to the Secretary of State. 

All is not completely lost however, as there is a law that may provide a way of  challenging 'loss of light' (Prescription Act 1832).  If a new building limits or reduces the amount of light coming through windows and when measured the level of light falls outside 'acceptable levels', this could then be deemed to be an obstruction. If this is the case then you may be able to take legal action against the party who created the obstruction.

If you think you may have a case in respect of the above you must first think very carefully and weigh up the possible benefits of starting legal proceedings.  Do not be under the impression that if you are successful that your neighbour will be required to remove or make significant alterations to their development.  This is only likely to happen in extreme circumstances where the developer has constructed outside the requirements of permitted development, or has breached other statutory requirements.  The general outcome of cases of this nature is that the development will remain and the court may apportion a certain level of compensation for the general reduction of light.

In conclusion, in certain circumstances permitted development appears to disregard the rights of adjoining owners, and at present there is very little that can be done to stop this happening.  In a 'free' society like the UK this does seem to be unacceptable, and maybe it is now time for permitted development guidelines to be amended to close this loop hole.

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice.

Introduction to Blog

The main purpose of this blog is to provide information relating to common building and property related issues.  This will include subjects relating to Building Defects, Professional Work such as Building Regulation, Planning and the Party Wall etc. Act 1996.

The aim is to post information to help support students and members of the public, as well as to tackle topical issues as they arise.  Also, those undertaking professional qualifications such as Royal Institution of Chartered Surveyors (RICS), Royal Institute of British Architects (RIBA), Chartered Institute of Building (CIOB), Chartered Institute of Architectural Technologists (CIAT), Chartered Institute of Building Services Engineers (CIBSE), Institute of Civil Engineers (ICE) and similar accrediting bodies, may find postings of interest.

I have been working as Chartered Building Surveyor for over 12 years and prior to my current role at Coventry University I worked in Private Professional Practice, dealing with a wide range of professional activities and projects. Even so, information posted on this blog should not be relied upon by any person or any third party without first seeking further professional advice.

If there is a particular topic or problem you would like covered please let me know.