The Party Wall Act – Common Misunderstandings

Friday, 11th December 2020 | by: Peter Barry

The Party Wall etc. Act 1996 has been with us for almost twenty-five years but it is still clear that the public has, at best, a tenuous grip on its details. I have outlined a few of the most common misunderstandings below:

  1. My extension will be on my own land so the Act does not apply.

Section 6 of the Party Wall Act covers adjacent excavations. In practical terms that means if you are digging within your own boundaries, the Act recognises that there is a potential risk to your neighbour’s foundations. To fall within the scope of the Act, your proposed works must include excavation within 3 metres of either a neighbouring or shared structure and to a greater depth than the base of the foundations to that structure (this is extended to 6 metres if your foundations are particularly deep – such as piled foundations).

  1. My neighbour has consented so I don’t have to serve a Party Wall Notice.

Consent cannot be given under the Act until notice is served. Even if your neighbour has indicated that they will consent you should still serve the notice – they will then have 14 days in which to confirm their consent in writing. This will ensure that the adjoining owners’ rights are unaffected if damage occurs and they wish to appoint a surveyor later in the process.

  1. The best way to deal with a neighbour that has gone ahead with their work without serving notice is to produce a retrospective award.

The Party wall Act includes no provision for notices to be served or awards to be made retrospectively. In previous cases, the courts have confirmed that work can be authorised retrospectively but only if the surveyors feel that it is capable of being authorised – that won’t be the case if it has caused damage. If a neighbour has already completed the notifiable part of their work it will be a matter of dealing with any consequences – such as damage to the adjoining owner’s property. If the neighbours cannot agree it will have to be settled in court.

  1. An Adjoining Owner can stop their neighbour from encroaching over the boundary with their foundations.

A building owner can build right up to the boundary line and project their footings beyond it if they can show that it is necessary. Whenever I tell an adjoining owner this their next question is always “What if I want to build an extension in the future?”

If they were to build a similar extension in the future they would have the right to cut off the part of their neighbour’s foundations that project; subject to serving the appropriate notice or connect on to them.

In situations such as this, it is best for the neighbours to reach agreement to build a single wall astride the boundary and use it as a party wall between the extensions – although that is easier said than done.

  1. An Adjoining Owner can refuse their neighbour access to carry out their works.

Section 8 of the Party Wall Act deals with access. Depending upon the nature of the work access is permitted subject to a 14 day notice period. It must be shown that there is provision for access under the Act (it only applies to certain kinds of work) and that it is necessary but if the answer to both questions is ‘Yes’ then it must be granted.

A Building Owner wishing to enforce their right of access over a non-compliant neighbour need not bother with court. In one of the more colourful sections of the Act the Building Owner is given the right to “break open any fences or doors in order to enter the premises… if accompanied by a constable or other police officer”.

  1. My neighbour didn’t reply to my notice so I am free to start work.

The 14 day period referred to in Section 5 of the Act is the time in which the adjoining owner has to consent. If they do not consent by the end of the 14 day period they are deemed to have dissented and must appoint a party wall surveyor. If they fail to appoint a surveyor with 10 days of a further reminder being sent the Building Owner must appoint somebody on their behalf.

  1. That a party wall award covers all of the works being undertaken.

The Act is very specific on the rights it provides and therefore the works that can be authorised in a party wall award. These are set out in sections 1, 2 & 6 of the Act. An owner might be constructing a large rear extension but if it is set back slightly from the boundary it is only the excavation of the foundations that will be covered in the award.

This has 2 practical implications once works starts on-site; the working hours included in the award only apply to works covered by the Act (Local Authority hours apply to the other works) and appointed surveyors can only determine matters relating to those works.

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