The party wall legislation has been with us for some years now. However, with development firmly back on the agenda, Katie Hogan gives us a timely reminder of its main provisions.

The Party Wall etc. Act 1996 introduced legislation to help people who had been badly affected by building works to party boundary walls and who did not live in London - so were not afforded protection by London Buildings Acts. Put simply, it enabled the whole country to enjoy the same party wall regime that London has had since 1844.

The Act dates back to 1666, when the great fire of London swept through the city and put an end to the plague. It was also the cause of this important piece of property legislation, a special instruction from the Privy Council on 8 May 1667, which laid down procedures to be followed when rebuilding the numerous party walls – walls which are technically half one side of the boundary and half the other.

The London Buildings Act 1939 is its successor today. But it was the Earl of Lytton who was the force behind extending the party wall legislation and it was his Private Member’s Bill that became the Party Wall etc. Act 1996, which came into force on 31 March 1997.

Framework

The Act provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings. The provisions deal with three aspects of party walls and structures:

  1. building new party walls;
  2. repair and other work to party walls; and
  3. excavations close to party boundaries.

The Act applies to both existing and new walls, but what is a ‘wall’ is not defined by the Act. This means that whether or not a boundary is a ‘wall’ is a matter of fact. What you would think of as traditional walls built of brick, concrete or stone are probably going to be accepted as ‘walls’.

More flimsy structures - such as wooden fencing, post and wire fencing and the like - will probably not be considered to be walls by the Act. Certainly hedges and other living structures will not. This does not mean that these cannot be covered by some other means, such as deeds.

Section 1 - new party walls

A building owner must give adjoining owners one month’s notice of an intention to build a new wall or party fence wall on the line of the boundary. The notice should indicate the desire to build and describe the intended wall. Unless the adjoining owners dissent (or are deemed to have dissented), the wall can then be built to straddle the boundary. The neighbouring parties bear the cost in proportions related to their respective use or expected use of the wall.

Section 2 - repair and other work to party walls

A building owner is allowed to:

  • underpin, thicken and raise a party wall;
  • demolish and rebuild or repair party walls; and
  • demolish and rebuild to greater strengthen a party wall.

The moral must be to scan the list when practically any operation is contemplated.

The Act also allows for a party wall or fence to be reduced in height subject to conditions and specifically allows for cutting into a party wall to install a damp proof course and/or flashings. However, if a party wall is to remain exposed where it had not been before, then adequate weathering must be provided and any damage must be made good.

Excavations close to party boundaries

Notice is required where:

  • the new wall or structure lies within three metres of a neighbour’s building and will extend below the bottom of the foundations of the adjoining owner’s building or structure; or
  • the new wall or structure lies within six metres of a neighbour’s building and the excavation passes through a 45 degree line drawn from the base of the adjoining’s owner’s foundations in line with the plane of the external face of the external wall of the adjoining owner’s building or structure.

Procedure

At least two months’ notice must be given in the case of works to a party wall, while only one month’s notice is required for excavations for foundations.

Detailed drawings must be attached to a notice if excavation works are proposed or if the foundations to a party wall have reinforcement in them and are known as ‘special foundations’. If no drawings are attached, the notice is automatically invalid.

If the adjoining owner fails to respond within 14 days, they are deemed to have dissented. However, the adjoining owners can respond with a counter notice.

Rights of the parties

The Act contains general provisions in relation to this, but some of the most important are:

  • The building owner shall not cause unnecessary inconvenience to any adjoining owner or occupier and shall compensate for any loss or damage resulting from their work.
  • All works must comply with statutory requirements.
  • A building owner and his agent have the rights to enter the land or premises of the adjoining owner to execute work under the Act, remove furniture or fittings or take other action necessary to achieve this, provided 14 days’ notice has been served.

Dissenting to the work

If the adjoining owners and occupiers do nothing, they are deemed to have dissented. Alternatively, they may specifically dissent.

In either case, the building owner and the adjoining owners would need to appoint a surveyor who would settle the dispute by making an ‘award’ which is fair and impartial to both parties. Both parties can appoint the same surveyor to act or they can each appoint their own, in which case these two surveyors must agree a third.

The award is conclusive and cannot be questioned in any court unless the building owner or the adjoining owner appeals to the county court against it. The county court may rescind or modify the award or make an order for costs.

The Act sets out who pays what, although generally the building owner pays all the expenses, unless the adjoining owner has benefitted from the works carried out, in which case the expenses are shared.

Final word

Overall, the Act brings the benefits of inner London legislation to the rest of England of Wales, ensuring that building works to adjoining properties can go ahead speedily whilst also making sure that the adjoining owners are properly protected.