Section 10(12) of the Party Wall etc. Act 1996 confirms that an award may cover the ‘time and manner of executing any work’. As one of the key principles of the Act is to avoid adjoining owners suffering unnecessary inconvenience, it is logical that the appointed surveyor(s) should have this power. This is the relevant clause from the RICS template party wall award (7th Edition):
[If the building owner commences the works, they shall] restrict noisy works to which this award relates to the party wall/party structure/party fence wall to between the hours of [INSERT HOURS]
I should make it clear immediately that ‘the works’ in this case are the works that fall within the scope of the Act and which are being authorised by the award. The remainder of the works will be governed by the relevant Local Authority’s normal working hours for construction sites. Those hours will typically be 8.00am to 6.00pm on weekdays and 8.00am to 1.00pm on Saturdays.
The starting point for the appointed surveyor(s) should be the above Local Authority hours and they should only move away from those if there is a legitimate reason for doing so. Working hours should be considered as part of the surveyors’ overriding duty to allow the works to be undertaken but not in a way that causes unnecessary inconvenience to the adjoining owners (see section 7(1) of the Act).
Adjoining owners are expected to put up with a certain amount of discomfort as the result of a building owners works as that is the nature of construction but if a building owner fails to take all reasonable steps to abate any inconvenience they will become liable to pay compensation. It has been confirmed in case law that ‘all reasonable steps’ is not the same as ‘all possible steps’.
I recently acted for a building owner on a development on the seafront at a popular south-east resort. There were hotels to either side and the works were due to be in progress through the busy summer season. The hoteliers would, I’m sure, have preferred the works to be put on hold over the summer (as happens in some Mediterranean countries) but we reached a compromise whereby noisy works would start later over the summer months. It is important to balance the needs of the adjoining owners against the needs of the building site and each case should be looked at on its own merits.
If the works are particularly noisy, such as requiring the use of pneumatic tools over a sustained period, it may be reasonable to allow the owners to have a break at the weekends or to build in quiet periods on weekdays e.g. 2 hours on, 2 hours off.
As with all breaches of the Act, it is for the owners rather than the surveyors to take enforcement action. This can be problematic in that a project will invariably involve a combination of works that are and are not covered by the Act so as part of any enforcement action the adjoining owner will need to satisfy the court that the noise is emanating from works covered by the Act and that is not always easy.
Despite having no powers of enforcement, the appointed surveyors should attempt to persuade the building owner to comply with the award. I would therefore recommend that adjoining owners contact their surveyor in the first instance to see whether the matter can be resolved without redress to court.