What is the Party Wall etc. Act 1996?
The Party Wall etc. Act 1996 (“the Act”) was introduced because some building works by a building owner can cause damage to adjoining buildings and interrupt the adjoining owner's use and enjoyment of the party wall or structure.
The Act provides a dispute resolution procedure to protect the interests of the adjoining owner, while giving the building owner the rights needed to carry out the works. The terms “building owner” and “adjoining owner” are defined in the Act.
The Act explains exactly the type of works that fall within its remit, the dispute resolution process and the role of the party wall surveyor or surveyors.
When does the Act apply?
Party wall issues have become a hot topic over recent years, especially in London, where there has been a rise in mega-basements being built under multi-million pound properties in Kensington and Chelsea. The works often include huge underground extensions to create extra space to accommodate private cinemas, spas and swimming pools. However, the excavation can cause noise, dust and possibly even affect the structural integrity of adjoining properties.
The Act is not limited, though, to these types of developments or merely properties in London. Any prospective home owner or developer who proposes to carry out building works, no matter how large or small, should consider whether the Act applies to any proposed development plans, even if it is simply to rule it out.
As with planning permission or building regulations approval, early consideration of whether the Act applies is important. It may simply be a case of discounting that it applies, however, failure to recognise that the Act applies to certain building works can lead to delay, unnecessary expense and potentially issues with onward sale, if it has not been complied with.
What works fall under the Act apply?
Whilst it will depend on the facts of each development, broadly speaking, the Act provides a framework to enable neighbours who share a boundary to carry out building works, which involve:
works to an existing party fence wall or party structure;
building a new party wall or a wall adjacent to its side of the boundary;
building within three or six metres of the adjoining owner's walls or buildings if the works involve excavation works below the foundation level of neighbouring buildings or structures.
If the works fall under the Act, what next?
The first step is always to seek professional advice. It is worth asking your architect for an initial view (and sometimes they can design out works falling under the Act) but do not assume that your architect will flag this issue up to you.
Once you have a scope of works for your proposed development you can engage a party wall surveyor to advise on whether any of those works fall within the Act. If they do, a notice, or notices, will need to be served on the adjoining owner.
An important point to remember is that once a surveyor is appointed under the Act they have a duty to act in an entirely impartial manner. Even if you disagree with the party wall surveyor, once they have been appointed that appointment cannot be rescinded unless the surveyor in question declares himself incapable of acting or dies.
What is a Party Wall Award?
If any of the proposed works fall within any of the categories under the Act, it will be necessary to serve a notice or notices on the adjoining owner. In simple terms, unless the owner consents to the works it will set in motion a train of procedures referring the matter to party wall surveyors for determination.
The parties can either agree one surveyor or each appoint a surveyor, who will then collectively appoint a third surveyor to determine any points that the two surveyors do not agree on.
Ultimately, the surveyor, or surveyors, will embody their decision in an Award, which will usually:
govern the extent of the building owner’s works;
set out the manner in which the building owner’s works are to be carried out; and
document the original condition of the adjoining owner’s land, in case the building owner’s works cause damage.
The Award, once issued, is binding unless it is appealed to the County Court within 14 days of it being served. The time-limit cannot be extended, so if you are unhappy with the Award you must obtain legal advice quickly, otherwise you will lose the opportunity to challenge it.
What can I do if my neighbour fails to comply with the Act?
There are a number of potential aspects to this, because a building owner may fail to serve a notice, or may carry out works outside the scope of the Award. Alternatively, an adjoining owner may refuse access to enable the works to be carried out.
The appropriate course of action in any of the above situations is to seek legal advice. The best way to proceed will depend on the facts of each case. However, you may want to issue a court claim if damage has been caused and/or obtain an injunction to either stop the works in breach of the Act, or to get access to carry out the works set out in an Award.
If you have any questions about party walls, please get in touch with Helen Hill on 0113 297 3770 or at firstname.lastname@example.org.