Monday, February 22, 2016

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

The main purpose of the Party Wall etc. Act is to prevent and resolve disputes, however many of my appointments under the Act occurred when a dispute arose after works had commenced

Anyone who deals with law will know that reading legislation can often be cumbersome, time consuming and sometimes difficult to understand and interpret.  This is not the case however with the Party Wall etc. Act 1996 (Link) which is one of the less detailed, but most 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 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 from a few years ago was posted on the Building Magazine Forum is typical of situations that I have been appointed to deal with on numerous occasions. The posting is published exactly as it was written by the person who posted it, so the grammar is not perfect;

‘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 your property is being significantly affected in the way you suggest then the work next door needs to be stopped immediately and possibly temporary support of your property may need 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. Also, if  the building work is well advanced then retrospective issuing of notices may have a limited effect.  In this scenario a neighbour can always decide to exercise their common law rights, possibly in negligence, trespass, nuisance etc, depending on the circumstances of individual cases.

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!

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