We have planning permission to build two new houses on an infill site which has existing residential properties on each side and to the rear. The boundaries are defined by wooden fencing, some in very poor condition. It's a fairly tight site and we will be building up to about a metre from each side boundary - and the adjoining properties are also close to the boundaries. Other than planning and building control, are there any other legal obligations we need to be aware of?
Under section 6 of the Party Wall Act 1996 if your development is going to involve either:
- building foundations deeper than those of the adjoining owner's building, within three metres of that building; or
- building foundations within six metres of the adjoining owner's building, if those foundations will bisect a line drawn at 45% downwards from the adjoining owner's foundations,
then, in either case, the Act requires you to serve a written notice on the adjoining owner, at least one month before you start work.
The notice must give details of the works which you plan to carry out, with drawings and sections, and must also detail any strengthening or underpinning work that you intend to carry out to the adjoining owner's building. The adjoining owner can require you to carry out any necessary strengthening or underpinning work.
The adjoining owner then has 14 days in which consent to your proposals. If he does not consent within this period, there is a deemed dispute between the parties, which is to be dealt with under section 10 of the Act. This provides for the appointment of one or more party wall surveyors who are charged with producing an award which determines the right to carry out work, the time and manner of executing that work, and any related matters.
The Act provides that if any damage is caused by your work, then you are responsible for it. It is therefore good practice, whether or not party wall surveyors are involved, for a schedule of condition to be prepared for each adjoining property, in order to avoid unnecessary arguments as regards the extent of damage: unscrupulous adjoining owners do sometimes see development work on adjoining land as a blank cheque for the repair of existing cracks!
Although it does not apply in your case, the Party Wall Act also sets out detailed rules which apply where a development involves work to walls and structures which are actually on the boundary line.
As well as under the Party Wall Act, you are liable at common law for any damage that is caused by your work to the adjoining properties, including their gardens and fences.
You also need to be aware of the law of nuisance. In certain circumstances, noise, dust and other inconvenience caused by your building work can be actionable. However, the scope for this is significantly reduced by case law: you are expected to minimise noise, dust and other inconvenience by using the best modern construction practices, and if you do so you are unlikely to face legal proceedings.
In any event, it's always good practice to discuss the works with the neighbours, explaining that there will be an inevitable minimum amount of disruption, that you will put right any damage caused, and so on.
This article by David Johnson was first published in Professional Housebuilder in November 2012.