Flats and the Party Wall Act – More Work Affecting Party Structures

In the previous post, I looked at which owners should be notified of works directly affecting a party structure (under section 2) when the adjoining property is divided into flats. This post will cover the other two types of work that fall within the scope of the Party Wall etc. Act 1996 (the ‘Act’) from the same point of view.

Section 1 works, covering new building on the line of junction, are relatively straightforward so let’s deal with the first. As section 1 specifically covers ‘new’ walls, the adjoining land to the part of the relevant line of junction will not have been built upon. In a residential setting, that means it will be garden space (or possibly a driveway). Any ‘owner’ with an interest for a term of more than 12 months that includes the relevant section of garden must be notified (as set out in the first part of this short series, that can include the freeholder, long leaseholders but not shorthold tenants).

Section 6 applies where excavation is proposed within 3 metres of any part of a building or structure of an adjoining owner, where the excavation will extend below the level of the base of the adjoining building’s foundations. There is also a 6-metre test where the proposed excavation will intersect a 45-degree plane drawn downwards from the bottom of the adjoining building’s foundations.

The important point for this series is that the Act refers to ‘any part of a building or structure of an adjoining owner’ rather than identifying a particular part of the building or a particular level. It therefore doesn’t tell us which owners within a building divided into flats should be considered when establishing who needs to be notified of the proposed excavation.

The Government’s explanatory booklet says that, for section 6, ‘adjoining owners’ may include owners of buildings or structures within the relevant 3 or 6 metre distances, even where another owner’s land or building separates them from the proposed work. However, it doesn’t address the particular situation where a single building is divided vertically into a number of separate leasehold interests.

Section 6 is also unusual because the distances are specifically required to be measured horizontally. This means that the test isn’t simply concerned with the part of the adjoining building at the same level as the excavation; the excavation may be within the relevant distance of parts of the building several levels above it. The Act does not, however, explain how this should be applied where those different parts of the building are separately owned.

In practice, therefore, there is no clear answer as to how many levels of a block of flats should be included when serving a section 6 notice, and there is currently no relevant case law to resolve the issue.

My advice is therefore to discuss this with your party wall surveyor at an early stage and agree which owners should be notified.

If you require advice on a party wall matter, you are welcome to contact us on 020 7183 2578 or via email.