Legal

Public law matters such as planning and listed building consents are not the only legal issues encountered on regeneration projects. Developers must also pay attention to private law issues arising from interaction with neighbours.

On constrained urban brownfield sites construction work may be necessary up to the boundaries of adjoining properties, which themselves are built up to their own boundaries. Works to existing buildings, including those immediately bordering or structurally part of adjoining properties, may be proposed. Other projects involve excavation works near adjoining buildings.

Historically, the law has adopted a common sense approach to the practical issues arising and recognises the problems relating to party walls.

What is a party wall?

Legislation relating to party walls has existed in London for centuries. The inelegantly named Party Wall Etc Act 1996 describes itself as “an act to make provision in respect of party walls, and excavation and construction in proximity to certain buildings or structures; and for connected purposes”.

A party wall is defined as:

“(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.”

The act also defines and applies to free standing “party fence walls” and “party structures” which include party walls and certain floors in buildings.

What does the Party Wall Act allow you to do?

Subject to notice and resolution of any dispute, the developer may:

• build a party wall or party fence wall on the line of the junction (provided the adjoining owner consents following one month’s notice)
• build a wall on his own land with footings and foundations that project under the adjoining land
• underpin, thicken or raise a party structure, party fence wall or external wall which belongs to the developer and is built against a party structure or party fence wall
• make good, repair, or demolish and rebuild a party structure or party fence wall
• carry out other works as defined within the act.

The act defines the extent of the above rights and how they are exercised. Generally, the developer must pay the costs of any works and compensate adjoining owners and occupiers for any resulting loss or damage.

The developer must pay compensation to the adjoining owners and occupiers for any loss or damage

Notices, counter notices and disputes

In the case of proposed work to an existing party wall, at least two months before exercising their rights, the developer must serve on the adjoining owner a party structure notice stating their name and address, details of the proposed work and the date on which the work will begin.

The adjoining owner can serve a counter notice requiring the proposed works to be varied to include his reasonable requirements.

If the adjoining owner does not serve a notice within 14 days indicating their consent to the proposed works, a dispute is deemed to have arisen. The same applies if a developer does not consent within 14 days to a counter notice.

The act also makes provision for notice to be given in specified circumstances at least one month beforehand where excavation works are to be carried out within three or six metres of an adjoining owner’s building. The developer may be required to strengthen the foundations of the adjoining building. Similar dispute provisions apply.

Where a dispute arises, the parties may either agree the appointment of a single surveyor to resolve the dispute or each appoint their own surveyors who must appoint a third surveyor with the three surveyors resolving the dispute.

The surveyor(s) are required to produce an award settling any matter in dispute, including the right to execute any work and the time and manner of its execution. They may also determine who shall pay their costs. The award is conclusive unless within 14 days of its service either party appeals to the court.

What can go wrong?

• The proposed works may be disputed and the surveyor(s) may support the adjoining owner’s objections.
• Notices may be served too late for the dispute to be resolved before the works are planned to commence.
• There may be disagreement as to whether a particular wall or structure is a party structure.

The cost of failure

It is vital to consider early whether: any new works proposed may result in the formation of a party wall or structure; existing structures on which works are to be carried out fall within the protection of the act; excavations require a three metre or six metre notice. Failure to recognise and deal with these issues could delay the project or, worse still, render it impracticable without changes to the proposed works.