I have a client whose next-door neighbour is happy with my client’s proposed works to his property, but my client knows from past experience that the Party Wall etc. Act 1996 (PWA 1996) may affect him. Because my client and the neighbour agree what will be done, how it will be done and when it will be done, do they still need to use the Act’s machinery?
No contracting out of the PWA 1996
If the PWA 1996 applies to your client’s proposed works, he cannot agree with his neighbour to somehow “contract out” of it. Either the Act applies, or it does not. Assuming it does, your client should take the precautionary step of complying with it. The parties’ informal or formal agreement may be recorded in a form that complies with the Act. This could help your client if, unfortunately, he does fall out with his neighbour over the works, if there is a change of ownership next door, or if your client wants to sell his property.
How the PWA 1996 works in practice
To explain how the PWA 1996 operates, it may be helpful to work through two examples. These examples assume that your client is the sole building owner of his property, and the neighbour he is dealing with is the sole adjoining owner of the affected property (section 20, PWA 1996).
Erecting a new building or structure
In this example, your client plans to erect a building or structure within three metres of his neighbour’s buildings or structures, and that building or structure will require foundations deeper than those of his neighbour’s (section 6(1), PWA 1996).
Your client must follow the procedure set out in section 6; it is not enough simply to reach an agreement with his neighbour, even if that agreement is in writing.
Your client must serve a notice on his neighbour at least one month before starting to excavate. That notice must state whether your client proposes to underpin or otherwise strengthen his neighbour’s foundations, and must show:
- The site and depth of any excavation your client proposes to make.
- The site of your client’s proposed building or structure.
Your client’s neighbour may consent to the notice within 14 days of receiving it, so, if your client has agreed how to proceed with his neighbour, he should consider whether it is appropriate for him and his neighbour to agree the form of notice and the form of consent, and then simply exchange them (sections 6(5) – 6(7), PWA 1996).
Note that your client must begin his works within 12 months and must “prosecute” his works “with due diligence” (section 6(8), PWA 1996).
Upgrading a garden wall
In this example, your client needs to repair a crumbling garden wall, which is a party fence wall (section 20, PWA 1996). To keep the example simple, he intends to rebuild the wall “as is”.
Your client has the right to carry out these works under section 2(2)(l) of the PWA 1996.
On the face of it, section 3(1) of the Act requires your client to serve a party structure notice on his neighbour.
However, usefully for your client, section 3(3) of the PWA 1996 goes on to say that:
“Nothing in this section shall –
(a) prevent a building owner from exercising with the consent in writing of the adjoining owners and of the adjoining occupiers any right conferred on him by section 2…” [emphasis added]
In other words, for some types of works, while still complying with the PWA 1996, written consent from the adjoining owner (without the official form of notice) can suffice.
What other works fall within the “written consent” exception?
Although our simple example upgrades a garden wall, section 2 identifies many other works that are commonly undertaken by owners of properties. For example:
- Underpinning and other support works.
- Cutting into the wall for any reason (like to insert a damp proof course).
Forewarned is forearmed
The PWA 1996 has its advocates and its detractors. Whichever camp you fall into, it does contain some quirks and traps for the unwary, and this article can only scratch the surface. Don’t try and avoid the Act: perhaps better to read it carefully and use it fully.