Party Wall Act 1996

Citation

Lewis, P. (2009), "Party Wall Act 1996", Strategic Direction, Vol. 25 No. 5. https://doi.org/10.1108/sd.2009.05625eab.002

Party Wall Act 1996

Article Type: Corporate law outlook From: Strategic Direction, Volume 25, Issue 5

Paul Lewis is a partner in the commercial litigation department at Leeds and Bradford based law firm, Gordons LLP. UK

The Party Wall Act of 1996 (“the Act”) provides a statutory framework to facilitate building development when one adjoining owner seeks to excavate, strengthen, repair and/or develop their own land, which may destabilise their neighbour’s property or interfere with existing joint structures, including vertical and horizontal partitions. The Act also provides a dispute resolution procedure involving the appointment of independent surveyors. The Act applies equally to large commercial developments or small residential dwellings.

The Act – 10 years on

The Act is certainly not the best drafted piece of legislation ever to emerge from Parliament but the Common Law Rules that it “relaxed” and/or complimented were far more restrictive in nature, thereby discouraging or inhibiting development as consent was previously required to enter a neighbour’s land to carry out works in close proximity, or to work on joint party structures.

Notice provisions (S1, 2, 3 and 6)

The legislation provides for notices to be served by building owners when they want to:

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  Excavate on their own land to a depth below their neighbour’s foundations within 3 metres or 6 metres (S.6).

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  Build on their own land right up to the boundary line, but where the subterranean footings/foundations encroach on the neighbouring land or build on the line of junction itself, previously un-built on (S.1).

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  Build on the boundary line itself where already built on and carry out works affecting a party wall structure, whether to strengthen its load bearing capacity, to accommodate an owner’s intended development (including underpinning, thickening or raising) or to put right a defect or want of repair (S.2 and 3). (Written consent or compliance with a statutory notice can negate this requirement).

The statutory notice procedure can only be initiated by a notice from a landowner who intends to carry out the work and not the neighbour. It is a breach of statutory duty not to serve a notice in circumstances where The Act clearly applies.

Appointment of surveyors (S10) – dispute resolution

The Act provides for a single surveyor to be appointed by the adjoining owners or two surveyors to be appointed (one for each party) and for a third surveyor to be appointed to resolve disputes if the two surveyors cannot agree. In a strict legal sense, the appointed surveyors do not act as arbitrators or adjudicators and they make “Awards”, which does not require them to act judicially or to give reasons for any Award. However, the Act provides for an appeal system to the County Court and through to the Court of Appeal if required, if a party wishes to challenge a surveyor’s “Award” on its merits.

Most common disputes

Dispute 1

The building owner refuses to comply with, or is unaware of, the provisions of the Act and begins work on excavations or on party wall structures without serving the requisite Statutory Notices.

Remedy

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  First of all, always try to talk to the building owner and try and persuade him to immediately cease work and agree to abide by the Act procedure, which is in everyone’s best interest.

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  The Building owner should then retrospectively serve the requisite notice and the parties can agree one surveyor, or appoint independent surveyors, who can appoint a third surveyor if necessary under the Dispute Resolution procedure (S10) to make an Award.

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  If the building owner refuses to co-operate, apply to Court for a restraining injunction to prevent the works continuing. The Court will have to decide whether the proposed works fall outside the Act.

Dispute 2

The building owner carries out and completes work in breach of the Act, but believes he has caused no damage to the neighbouring property.

Remedy

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  The building owner who has carried out the works should invoke the procedures within the Act and retrospectively serve a Party Structure Notice and seek an Award through the appointed surveyor scheme.

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  In the event that the adjoining neighbour can show damage has been caused to his property, then apply to Court claiming breach of statutory duty, damages and injunctive relief to put right the damage plus costs (Roadrunner Properties Ltd v. Dean [2003] EWCA CIV 1816).

Dispute 3

The Act award is in place, but the building owner then carries out additional works also regulated by the Act but not provided for in the Award.

Remedy

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  Application to Court for interim relief by way of injunction.

Dispute 4

The neighbouring land owner is looking for a ransom payment and is unreasonably objecting to works being carried out and is slowing the process down by appointing an unco-operative surveyor, who either refuses to act or neglects to act.

Remedy

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  Section 10(6) and Section 10(7) of the Act deals with each of these scenarios and in certain circumstances permits a defaulting surveyor to be superseded. The other party’s surveyor can then proceed on his own without fear of challenge.

Dispute 5

The adjoining neighbour will not let the building neighbour or his agents enter his land or remain on his land to carry out works in accordance with the Act.

Remedy

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  Section 16 of the Act makes it a criminal offence to obstruct in this way.

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  Civil remedies still apply.

Dispute 6

The building owner wants to strengthen a party wall to include deepening foundations in order to build a four storey building replacing an existing 2 metre boundary wall. Does The Act allow the building owner to come onto the neighbour’s land to build the four storey building?

Remedy

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  The building owner is only permitted to enter their neighbours land for the purpose of “executing any work in pursuance of the Act” (S.8). In this case, to strengthen the foundations and rebuild the wall to its original height. There is no absolute right to enter in respect of unrelated work even if it is part of the same project. Agreement should therefore be reached as early as possible between neighbours if the project requires construction works which fall outside of the Act.

Dispute 7

The building owner is refusing to pay any compensation and damages awarded by the independent surveyor and is refusing to make good damage caused to the adjoining property.

Remedy

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  Treat the award as a debt and pursue the matter through the County Courts.

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  Apply to the Magistrates’ Court for a summary procedure as the Magistrates’ Court has power to award costs and payment may be enforced by a Distress Warrant (S.17).

Dispute 8

The adjoining building owner has a Party Wall Act Award and is carrying out the works, but he is causing a nuisance with the dust, vibration and noise and is working anti-social hours not referred to in the Award. He is also interfering with easements and mutual rights of support and rights of light.

Remedy

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  The Act does not extinguish other civil rights and therefore all the usual civil remedies remain intact to apply to the Court for injunctions and damages if required.

Dispute 9

The neighbouring owner does not agree with the Party Wall Act surveyor’s award and the building owner intends to carry on regardless.

Remedy

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  Appeal the Award under S10(17) within 14 days. Apply under Court Procedural Rules (CPR Part 52 to the County Court). A recent decision suggests that an application to the Court can also deal with the substance of the award itself on its merits and any arguments as to the validity of the award.

Dispute 10

The adjoining building owner/neighbour is refusing to pay solicitors and barristers fees associated with an award under the Act.

Remedy

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  Section 10(13) provides that such fees can be ordered within an Award, providing they relate to the giving of advice in connection with the resolution of disputes, which is governed by Section 10 of the Act. Such an award can be enforced through the Courts.

Conclusion

Every surveyor I meet would like to rewrite at least part of the Act, as more surveyors Awards are being referred to the courts. Nevertheless, whilst not perfect, the Act has survived ten years on the statute books and is clearly here to stay.

Gordons LLP regularly advises on commercial litigation. If you wish to discuss the issues outlined in this article, or any issues around commercial litigation, please contact Paul Lewis on 0113 227 0271 or e-mail: paul.lewis@gordonsllp.com

Acknowledgements

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