How Far Can Party Wall Surveyors Go to Protect Adjoining Owners?

Section 7(1) of the Party Wall etc. Act 1996 is clear, adjoining owners and occupiers should not suffer unnecessary inconvenience as a result of works falling within its scope. The skill of a party wall surveyor is in defining that “unnecessary” qualifier in the clause. Building owners must be free to exercise the rights provided by the Act but to what extent should we dictate the manner of the work to make the situation more bearable for adjoining owners and occupiers?

To help examine this dichotomy, I asked our New Business team to note down the main concerns expressed by the adjoining owners who called us in March for advice. This was typically adjoining owners that had received a party wall notice or had become aware that their neighbours were planning works which fall within the scope of the Act. These were the top 10 (in random order):

1. Noise
2. Boundaries
3. Dust
4. Impact on drains
5. Costs
6. Access
7. Risk of damage
8. Security
9. Duration of the works/ Works left unfinished
10. Vans etc. blocking drives

I’ll cover the first 5 of these concerns in this post and the remaining 5 in a follow up post.

Noise

While I’ve not put these concerns in to a “league table”, if I had, noise would be the runaway winner. Whether it’s coping with noise directly or concerns about tenants leaving, it is the thing that generates the most anxiety in the run up to adjacent building works.

Noise is inextricably linked to working hours so I’ll start there before moving on to what additional measures should be considered.

Typically, work is permitted within the hours set out by the Local Authority, which are 8am-6pm on weekdays and 8am-1pm on Saturdays, but the surveyors can amend if necessary to ensure that the works do not cause unnecessary inconvenience. In an ideal world, the adjoining occupiers would be out at work on weekdays but that’s less common in this post-Covid world.

If the adjoining owner’s concerns are very specific, we would encourage discussion between the owners prior to the works commencing. There is a lot that an experienced and skilful project manager can do to limit inconvenience from noise without slowing down the works. This might include warning adjoining occupiers when very noisy work is planned, avoiding noise during sensitive times of the day, such as early morning, and positioning plant away from adjoining properties.

The surveyors can include a clause in the award which allows them to re-visit the working hours if the works are causing unnecessary inconvenience (this encourages the building owner to make every effort to reduce inconvenience). If the adjoining owner is very sensitive to noise, e.g. due to a medical condition or because it is a business premises, the surveyors may be more prescriptive e.g. restricting noisy works to certain parts of the day, but that would be a last resort as it impinges upon the building owner’s rights.

Measures that should be considered before restricting the working hours include the use of mufflers on power tools (say, if an old concrete foundation has to be broken out) or erecting an acoustic hoarding.

A couple of final points relating to noise, if the party wall award is agreed before the notice period has run, the adjoining owner can ask for the works to be delayed to the end of the notice period if it gets them past a sensitive time, such as the run up to an exam. Also, if the building owner requires something that is in the gift of the adjoining owner, such as access outside of the Act or consent for Special Foundations, there’s nothing to stop them including conditions relating to noise control more generally.

Boundaries

While party wall surveyors do not have the power to determine the position of a boundary, they will often include a clause in the award requiring the building owner to confirm the position with the adjoining owner prior to constructing a new wall. This is particularly important where there is some ambiguity about its position – much better to bring this to a head before the wall has been constructed.

I discussed boundaries and how they interact with party wall matters in much more detail in a recent post.

Dust

If dust is emanating from ground-based work (which is not that common as virgin ground is generally moist) a hoarding at the boundary can be used to help contain it within the site. This would typically be approx. 2.4m high and either constructed from an impervious material, such as plywood, or covered with dust proof sheeting. If the dust is from higher level external works, the surveyors should request that the scaffolding is fully encapsulated with sheeting.

Party wall awards typically include a clause requiring the building owner to clean up any dust and dirt that has strayed beyond the boundary from time to time. This would include cleaning cars parked on the adjoining owner’s drive where necessary. However, it’s a difficult clause to enforce as it only relates to dust arising from works authorised by the party wall award and there’s no way to distinguish between that and dust from the works more generally. If a building owner is reduced to arguing about which part of their project is generating the dust, they have clearly decided to be awkward.

On large building projects it may be possible to put damping down arrangements in place or to monitor the dust but that would be considered over the top on a for a residential extension.

Impact on Drains

Party wall surveyors have a duty to protect shared/adjoining owner drains from damage during the works. This might include ensuring that new walls at the boundary bridge over existing drains (with a pair of lintels taking the weight) or that that excavation is undertaken sequentially to reduce the risk of ground movement.

If the risk of damage is significant, such as when there is a deep foundation trench to be excavated alongside a drain, surveyors can recommend that the building owner records the condition of the below ground drainage with a CCTV scan prior to the works and checks it again upon completion. Should a building owner refuse to accept this recommendation, the surveyors would likely assume that there were no issues with the drainage prior to the works.

A build over agreement (from the relevant water authority) will be required when the building works are within 3 metres of, or directly over, a public sewer or drain, or when building over a manhole or inspection chamber. This is separate from the party wall process but provides additional assurance.

Costs

Some adjoining owners are looking for a cast iron guarantee that they will not incur any costs and while that is generally the case there are exceptions. The Act states that it is for the surveyors to determine who pays their fees and there is a rule of thumb (which our surveyors always apply) that it is the owner benefitting from the works who pays the fees relating to the principal party wall award.

Fees arising from subsequent disputes, such as disputes relating to damage etc., will generally be awarded in line with the determination i.e. the party that loses the argument pays (similar to legal fees in court proceedings).

The second part of this post is now live.

If you require advice on how the Act protects adjoining owners, or any party wall related matter, you are welcome to contact us on 020 7183 2578 or via email.