The Party Wall etc Act 1996 is a useful piece of legislation which allows a building owner to do works affecting a party wall, provided he follows the relevant procedure.
by Sophie Schultz
20 May 2010
The need to obtain a party wall award may seem yet another burden for a busy facilities manager planning works but the Party Wall etc Act 1996 (the Act) is a useful piece of legislation which allows a building owner to do works affecting a party wall, provided he follows the relevant procedure.
The Act has its origins in legislation adopted to make rebuilding London easier following the Great Fire in 1666. Until the Act extended these principles nationwide in 1997, in many parts of the country there could be real difficulties if works affected a party wall, because of the need to obtain neighbour's consent.
The Act provides a simple procedure for authorising work affecting party walls and gives the building owner useful rights, such as rights of access onto the neighbour's land. The dispute resolution procedure puts decisions entirely in the hands of surveyors and thereby prevents a neighbour from being able to manipulate the process to hold a building owner to ransom.
At the same time, by restricting the building owner's ability to carry out works until after compliance with the statutory procedure, the Act protects the neighbour. The surveyors' input helps to ensure that the building owner takes appropriate precautions and obligations are placed on building owners to avoid causing unnecessary inconvenience and make good damage. Usually, the award will require the building owner to meet the neighbour's costs.
When does the Act apply?
While the definitions are complex and specialist advice should be taken, broadly-speaking, the following types of works may engage the Act:
works affecting walls situated on or alongside boundaries
excavations within a horizontal distance of either 3m or 6m of a neighbour's structure which extend below a certain depth, assessed by reference to the depth of the neighbour's foundations.
The latter restriction helps to ensure that appropriate protections are adopted (see example in boxed text).
A further, sometimes overlooked, type of work covered by the Act is works affecting floors and ceilings, where a floor partition or other structure separates buildings (or parts of buildings) which are approached by separate staircases or entrances. An example would be office premises above a shop which have their own entrance at street level.
A building owner proposing to carry out works should consider at an early stage whether the Act may apply. This may not be immediately obvious (see boxed text). Consultation with a specialist party wall surveyor is essential.
If the Act applies, one or two months' notice must be given to the neighbour, depending on the type of works. If the neighbour consents to the works, the works can go ahead on expiry of the notice period (or, by agreement, sooner). More normally, a "deemed dispute" arises whereby surveyors determine the nature and manner of the works and any related matters.
The dispute resolution procedure is a key strength of the Act and ensures that disputes are decided quickly and fairly. The parties' input is limited to selecting a surveyor at the outset. The matter is then out of the parties' hands. The surveyors do not take instructions from the parties but rather act impartially in reaching a decision. The surveyors' award is conclusive unless appealed within 14 days (therefore legal advice must be taken quickly if you want to challenge an award).
If works are being carried out in contravention of the Act, the neighbour can apply for an injunction to halt the works. Any costs incurred need to be dealt with via the court process and cannot form part of a subsequent award (Reeves v Blake  EWCA Civ 611).
If unauthorised works cause damage, the neighbour can sue in the courts for compensation. The neighbour will have a claim for breach of statutory duty (for the failure to comply with the Act), as well as any other causes of action that may apply, such as nuisance, negligence or trespass (Crowley v Rushmoor Borough Council  EWHC 2237). By contrast, where there is an award, the neighbour can apply to the court for an injunction to enforce compliance with the award. However, any new issues which arise (including compensation payable for damage to the neighbour's property) should be referred exclusively to the surveyors for a further award (Rodriguez v Sokal  EWHC 2005).
Of course, it may be unclear whether damage is due to works covered by the award or other works on the site, so legal advice may still be necessary.
Limits of the Act
The Act cannot be used to authorise interference with an easement, for example if the erection of a wall will interfere with a right of way. In such circumstances, the building owner is back into the realm of needing express consent.
A salutary lesson
The recent case of Crowley v Rushmoor Borough Council  EWHC 2337 is a good example of the problems the Party Wall Act is designed to prevent.
The Council decided to remove a planter against the side wall of a house and repave the area. Unbeknown to the council, the house had in fact originally been semi-detached and its side wall was constructed as an internal party wall, with shallow foundations. The removal of the planter (which had been supporting the wall) and the excavations for the paving (which extended beneath the level of the foundations) caused the house to collapse.
The court commented that there was a strict duty to comply with the Act, even if it is unclear at the outset whether it applies. If the proper procedures had been followed, investigations would have identified the need to take protective measures.
Sophie Schultz is a senior associate in the real estate litigation group at Allen & Overy