Monday, July 16, 2012

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:/
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.

1 comment:

  1. Sorry but I'm afraid I can't agree with your 2nd paragraph.

    Whilst the Party Wall etc. Act 1996 is ostensibly simple to read it also a minefield for the unwary. Reading and understanding are very different in the context of this Act which is why party wall surveyors and specialist barristers at the top of the profession still cannot agree upon the correct interpretation of many aspects of it 16 years after it became law.

    Until the Courts decide who is right and who is wrong on those issues, surveyors appointed under the Act are working blind, albeit their experience and pragmatism mostly provide equitable solutions to what is, after all a dispute resolution procedure.

    A (mostly) prescriptive piece of legislation it may be but get wrong any of the things you need to know but the Act doesn't say, and the process can collapse like a pack of cards leaving someone to pick up a very expensive tab.