Building works and developments on or near a boundary between properties in differing ownerships provide an open invitation to numerous and much reported arguments and disputes. The Party Wall etc. Act 1996 (PWA 1996) contains a dispute resolution framework administered by impartial surveyors. It sets out statutory rules and regulations that give notice of proposed works and a procedure for both the building and the adjoining owner to follow before, during and after works are carried out.
This series will highlight common problems that a party wall surveyor experiences, provide practical hints and tips for both building and adjoining owners to assist the process and address some of the key issues we are often asked.
At the outset
It should be made clear to the adjoining owner that the PWA 1996 exists to facilitate and not hinder development and it regulates notifiable works, not the whole development scheme. Equally, the building owner should appreciate that it is often the side effects of a development (like dust, vibration and noise) that irritate adjoining neighbours and, while these are not regulated under the PWA 1996, they are matters that need to be discussed with adjoining owners. Disputes and litigation can be avoided by thoughtful negotiation, which may be conducted by surveyors appointed to give consultancy advice.
The PWA 1996 applies to works on party walls and structures. It does not negate the need for planning permission, building regulation consent or (potentially) listed building consent. The party wall surveyors will be specialists within a team of advisers that may include architects, planners, building and quantity surveyors and valuers.
Appointing a party wall surveyor
At any stage, the building owner and the adjoining owner may each appoint a party wall surveyor to advise and represent them. Alternatively, they may agree to jointly appoint one surveyor to advise them both.
An appointment under the PWA 1996 is made by a formal letter of appointment. Fees for considering the statutory party wall matters are, generally speaking, recoverable from the building owner. Fees for consultancy advice regarding the scope of the PWA 1996 will be payable by the appointing party and will be subject to a separate agreement.
In the case of a dispute, a jointly appointed surveyor may resolve the arguments or the parties’ own surveyors will select a third surveyor to do so.
In each instance, the parties are best advised to instruct surveyors well versed in party walls and the PWA 1996’s procedures. While the idea of potentially having three specialist surveyors on site (in addition to contractors and other advisers) may seem unnecessary, particularly to private individuals arguing about a domestic development, a generalist’s lack of detailed knowledge may increase the risk of a prolonged dispute and substantially increase costs. In particular, the building owner is best advised to instruct a party wall surveyor early and ahead of the development. The surveyor’s practical advice and technical knowledge could save a redesign late in the day.
Appointing a party wall surveyor to provide consultancy advice
A party wall surveyor is well placed to give additional advice to their client on matters outside the scope of the PWA 1996 but connected with the development as a whole. Good, early consultancy advice (particularly for the building owner) will assist to develop a workable strategy and ensure that the right information is obtained from the design team and contractor. This can minimise the risk of costly delays and may be required by, for instance, rights to light insurers.
The client and the surveyor will enter into an agreement for this type of consultancy advice, separate from the appointment under the PWA 1996.
What is a party wall?
The PWA 1996 includes a somewhat baffling description of what a party wall is:
“(a) a wall which forms part of a building and stands on lands of different owners to a greater extent than the projection of any artificially formed support on which the wall rests; and
(b) so much of a wall not being a wall referred to in paragraph (a) above as separates buildings belonging to different owners.”
In simple terms, this usually means there is (or will be) one wall sitting astride a boundary between two adjoining property interests (although the wall may form part of only one building). This is probably best illustrated by diagrams 1 and 2 in the Department for Communities and Local Government’s (DCLG) explanatory booklet.
- Party fence wall is a wall that stands on the boundary, but has no buildings attached to it, like a garden wall.
- Party structure means a party wall and also a floor/ceiling that separates buildings or parts of buildings. The classic example here is of adjoining flats that have their own separate entrances.
In practice, an experienced party wall surveyor should be able to tell if a wall is (or is likely to be) a party wall, even if it is difficult to confirm categorically ownership of the wall.
Who or what is an owner?
Section 20 defines an “owner” broadly to include:
- A person receiving the rents or profits of land.
- A person in possession of land, other than as a mortgagee, a yearly tenant (or less) or a tenant at will.
- A purchaser of an interest in land (under a contract for purchase or under an agreement for a lease).
It goes on to define:
- Building owner as an owner of land who wishes to exercise rights under the PWA 1996.
- Adjoining owner and adjoining occupier as any owner or occupier of land, buildings, storeys or rooms adjoining those of the building owner (or, in relation to excavations under section 6, within the distances specified in that section).
In practice, adjoining ownership is usually identified through the Land Registry, although care must be taken over unregistered leasehold titles of less than seven years. Party wall surveyors will often need to discuss the position with freehold owners and a site visit will usually be required to ascertain the identity of unregistered owners and of occupiers.
Is a party wall notice required and if so, which one?
Whether a party is a building owner (as defined) and needs to give a party wall notice will depend on the type of works that will be carried out. In general, the PWA 1996 applies when the building owner:
- Plans to build a new wall on the boundary between two adjoining property interests. It does not matter whether there is a boundary wall (which is not a party wall) there already. In practice, section 1 notices are comparatively rare.
- Intends to carry out works (under section 2) to an existing wall on a boundary, for example, to underpin, repair, rebuild, cut into or demolish it.
- Proposes to excavate within:
- three metres of the adjoining owner’s buildings, if the proposed foundations would be deeper than the adjoining owner’s foundations (section 6(1)); or
- six metres of the adjoining owner’s buildings if any part of the proposed structures (typically foundations) would be dissected by a line drawn downwards at a 45 degree angle from the nearest part of the adjoining owner’s foundations (section 6(2)).
Again, it may be worth referring to the DCLG’s diagrams to illustrate this.
Notice to be served if the PWA 1996’s provisions come into play
Whenever the provisions of the PWA 1996 come into play, the building owner has to serve notice on any adjoining owner. This notice kick starts the statutory process. It should indicate the building owner’s intention to carry out works and describe them. While the building owner should give as much information as possible to enable the adjoining owner to consider properly the works (and possibly avoid the necessity of a party wall award), attention to detail is paramount in order to avoid errors. Errors might invalidate the notice or a subsequent party wall award. A claim regarding an error should be taken quickly after service of the notice to avoid estoppel arguments.
The length of notice the building owner has to give to the adjoining owner depends on the nature of the works. Thus, the building owner must give at least:
- One month’s notice of any section 1 works (a line of junction notice).
- Two months’ notice of any section 2 works (a party structure notice).
- One month’s notice of any section 6 works (an adjacent excavation notice).
In addition, a section 6 notice requires an accompanying plan and section showing the depth of excavation proposed. Trial holes might first have to be made in order to ascertain the depth of the adjoining owners’ foundations. Alternatively, shallow depths might be assumed and precautionary notices issued in order to engage with the adjoining owner’s party wall surveyor.
The above are minimum timescales. In reality, more time is usually needed.
How should the adjoining owner respond?
Once in receipt of a notice, an adjoining owner should not delay in responding. The adjoining owner has 14 days in which to signify consent. If no consent is given or the adjoining owner dissents to the proposed works, party wall surveyors must be appointed and a party wall award agreed before the works can commence.
All too often a notice runs past its 14-day response period and even beyond the further 10-day period during which the adjoining owner can appoint a surveyor under the PWA 1996. Such delay will enable the building owner to appoint a surveyor to act for the adjoining owner and while that surveyor is impartial, the adjoining owner is often left feeling unrepresented.
What happens next?
The procedure followed by the party wall surveyors and the subsequent party wall award will be the topic of future posts.