Introduction
The saying goes that an Englishman’s home is his castle, but this could not be further from the truth when undertaking works of construction to the castle. Not only does a building owner need to satisfy what are often stringent planning issues and obtain planning permission but he will then often need to traverse the intricacies of the Party Wall etc Act 1996 (“the Act”).
Where the Act applies, it is important to comply with the statutory obligations. If a building owner were to proceed with works, or threaten to do so, without complying with the provisions of the Act, he might be committing a trespass or nuisance and he might be faced with an application for an interim injunction to restrain the works pending compliance with the formalities laid down in the Act. The courts tend to have great sympathy for complaints made by adjoining owners where building owners do not comply with their statutory obligations under the Act.
This guide is intended to provide an overview of the Act. It does not cover the many issues or disputes that can arise, some of which will feature in further articles. Disputes can arise at every level, ranging from disputes about whether the Act applies at all, to the validity or the appointment of party wall surveyors, notices and awards, whether a foundation is a special foundation and the proper measure of compensation to mention a few issues.
Does the Act apply?
The Act applies where works are proposed to any structure separating buildings or parts of buildings, boundary walls and excavations near neighbouring buildings. The Act covers:
Whether works fall within the scope of the Act can often be contentious in itself, especially in respect of adjacent excavation where the depth of the adjoining owner’s foundations is often unknown. Some works within a project may fall within the scope of the Act and some works may not.
The purpose of the Act is to give a building owner a statutory right to carry out works which would otherwise be a nuisance or constitute trespass. Where the Act applies, section 8 gives the building owner rights of access over a neighbour’s property to carry out the work thereby avoiding the need either (a) to negotiate an access licence with the neighbour (often incurring a weekly licence fee) or (b) to apply to the court for an access order under the Access to Neighbouring Land Act 1992.
Whilst the Act gives the building owner rights, it is also intended to protect the legitimate interests of the owners or occupiers of adjoining land (called the adjoining owner). Section 7(1) of the Act provides that a building owner shall not exercise his rights in a way that may cause unnecessary inconvenience to an adjoining owner and section 7(2) requires the building owner to compensate the adjoining owner for loss and damage.
The Process
The first step will involve the appointment of a party wall surveyor who will prepare notices to be served upon neighbours. There are different types of party wall notices that can be served depending upon the works in question, and different periods of minimum notice must be given. One month’s notice must be given to build a new wall on the line of junction under section 1 or to carry out adjacent excavation under section 6. Two months’ notice must be given for works that directly affect a party structure under section 2. It is important to serve correct and accurate notices to avoid invalidating the process.
Upon receipt of a party wall notice, the adjoining owner has several options:
Unless the adjoining owner consents to the works, they will probably appoint their own party wall surveyor (the cost of which the building owner will probably have to pay) but they might agree to appoint the building owner’s surveyor (known as an agreed surveyor). If they refuse to appoint a surveyor, the building owner might be able to appoint a surveyor for the adjoining owner. If each party appoints their own surveyor, the two surveyors will select an independent third surveyor whose role will be to determine matters that are referred to them by the other surveyors. Whilst it is usual for the appointed surveyors to refer any disputes to the third surveyor, it is possible for either the building owner or the adjoining owner to refer a matter in dispute directly to the third surveyor.
Party wall surveyors enjoy a unique role. Once appointed or selected, a surveyor’s duty is not primarily to their appointing owner; they are subject to a statutory duty to resolve the dispute and they therefore acts in a quasi-judicial position. A surveyor does not act upon instructions from the owner who appointed him and cannot let his owner’s requests interfere with his statutory duties. An owner cannot rescind the appointment. This can create difficulties, especially where the owner does not agree with steps his surveyor is taking. The only way in which a surveyor can be removed is for the surveyor to deem himself incapable of acting under section 10(5).
The Award
Assuming that the adjoining owner does not consent to the works, the surveyors will need to make a Party Wall Award which sets out rights, obligations and provisions that the surveyors consider necessary to enable the works to proceed. An Award will usually describe the works and contain detail regarding the timing and method of the works, the hours of work, obligations to make good, and deal with any security for expenses that may have been requested and payment of surveyors’ costs. Often an Award will refer to plans and specifications accompanying the Award. Often there will be a schedule of condition of the adjoining owner’s property so that when the works have been completed an assessment can be made of any damage to the adjoining owner’s property.
During the course of the works other Awards may be required to deal with particular issues that arise during the works. When the works have been completed it would be usual for the surveyors to make an Award dealing with any compensation that might be payable to the adjoining owner.
Whilst it is usual for the two appointed surveyors to make Awards, or if they are in dispute, the third surveyor, the Act enables an agreed surveyor to make an Award, a party’s surveyor to make an Award “ex parte” in certain circumstances, two surveyors (which could be either party’s surveyor and the third surveyor) or all three surveyors.
County Court Appeals
Awards are binding upon the parties, however, section 10(17) of the Party Wall Act provides that either party may, within 14 days from the date on which the Award was served, appeal the Award to the County Court. The time limit cannot be extended (and the deadline may be different for each owner depending on when they were served) and so it is important that an aggrieved owner wishing to appeal does so promptly. This is especially so given that a significant amount of work may need to be undertaken by the legal team to prepare the court documentation.
The procedure involves the party completing an Appellant’s Notice and enclosing detailed grounds of appeal. A skeleton argument setting out the facts and law in support of the grounds of appeal must also be filed. The court papers must be served upon the other owner as well as the surveyor(s) who made the decision.
The procedure after issuing the Appellant’s Notice will depend upon (a) whether the applicant seeks a review or a rehearing and (b) the particular court in which the claim is issued since different courts deal with appeals in different ways. A review involves the court simply reviewing the Award and deciding whether the surveyors were right to make the decision based upon the evidence before them. A rehearing involves the court looking at the matter afresh and new evidence not before the surveyors can generally be introduced.
Some courts list what is called a case management conference for the parties to attend so that a timetable for directions/ the steps to be taken to a final hearing can be given. Other courts give standard directions and list the matter for a final hearing without the need for a case management conference.
Even a simple appeal will usually take at least 6 months to reach a final hearing and, usually, the final hearing would be about 12 months after issue. It may be longer in more complicated cases, especially re-hearings where there is a lot of oral evidence. As with any court proceedings, it is possible for the parties to settle the dispute to avoid the need for a final hearing and, indeed, many cases do settle when the parties have received legal advice on their respective positions. The usual rule is that the unsuccessful party in litigation will have to pay the legal costs incurred by the successful party (subject to assessment) and so it is important for parties to understand the strengths and weaknesses of their cases and their exposure.
Whilst it may be the case that an Englishman’s home is his castle, he does not have an unfettered right to undertake works to his castle. Early and constructive dialogue with neighbours is key. The more neighbours know about what a building owner is doing the more likely they are to cooperate with the plans and the more simple the process should be.
Key Contacts
For more information about how we can help you in relation to property disputes or for advice on the Party Wall etc Act 1996 please contact John Turner on 020 7462 6029 or Mark Brassey on 020 7462 6027.
