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Party Wall Act 1996
Excavation near Neighbouring buildings
What does the Act say if I want to excavate near neighbouring buildings?
If you plan to:
a) excavate, or construct foundations for a new building or structure, within 3 metres of a neighbouring owner’s building or structure where that work will go deeper than the neighbour’s foundations (see diagram 6);
OR
b) excavate, or construct foundations for a new building or structure, within 6 metres of a neighbouring owner’s building or structure where that work will cut a line drawn downwards at 45 degrees from the bottom of the neighbour’s foundations (see diagram 7).
you must inform the adjoining owner by serving notice. The notice must also state whether propose to strengthen or safeguard the foundations of the building or structure belonging to the adjoining owner. The notice must be accompanied by plans.
The Act contains no enforcement procedures for failure to serve a notice. However, if you start work without having first given notice in the proper way, adjoining owners may seek to stop your work through a court injunction or seek other legal redress.
How long in advance do I have to serve the notice?
At least one month be3fore the planned starting date for the excavation. The notice is only valid for a year, so do not serve it too long before you wish to start.
What happens after I serve the notice?
If the adjoining owner gives a notice within 14 days agreeing to the excavation, the work (as agreed) may go ahead. If the adjoining owner does not respond, or objects to the proposed work, a dispute is regarded as having arisen.
After the work has been completed, the adjoining owner may request particulars of the work, including plans and sections.
What happens if there is a disagreement with my Neighbour?
The best way of settling any point of difference is by friendly discussion with your neighbour. Agreements should always be put in writing.
If you cannot reach an agreement with your neighbour, the next best thing is to appoint, jointly, what the Act calls an “agreed surveyor” to draw up an “award”. The agreed surveyor should preferably not be the same person that you intend to supervise your building work.
Alternatively, each neighbour can appoint a surveyor to draw up the award together. The two surveyors will nominate a third surveyor who would be called in only if the two surveyors cannot agree.
In all cases, surveyors appointed under the dispute resolution procedure of the Act to draw up an award must behave impartially and consider the interests of both neighbours. They do not act as advocates for each side.
Who can I appoint as a surveyor in the event of a dispute?
The term “surveyor” is defined in the Act as any person who is not a party to the matter. This means that you can appoint almost anyone you like to act in this capacity. However, some people are obviously more suitable than others. You may wish to look for a qualified building professional with some experience or knowledge of party wall matters.
What does the surveyor do?
The surveyor will prepare an “award”. This is a document which:
a) sets out the work that will be carried out;
b) says when and how the work is to be carried out
c) records the condition of next door before the work begins;
d) allows access for the surveyors to inspect the work.
It is a good idea to keep a copy of the award with your property deeds.
Who pays the surveyors fees?
The surveyor will decide who pays the fees for drawing up the award and for checking that the work has been carried out in accordance with the award. Usually the owner who first planned the work will pay all costs associated with drawing up the award.
Is the surveyors award final?
Either side has 14 days to appeal to the county court against an award. An appeal should only be made to the county court if an owner believes that the surveyors have acted beyond their powers.
Who pays for
the building works?
The general principle in the Act is that the building owner who initiated the work pays for it. However, there are cases where the adjoining owner may pay part of the cost, for example:
a) where work to the party wall is needed because of defects or lack of repair for which the adjoining building owner may be responsible.
b) Where the adjoining owner requests that additional work should be done.
Where the dispute resolution procedure is called upon, the award may deal with apportionment of the costs of the work. The dispute procedure may be used specifically to resolve the question of costs.
What happens if the neighbours won’t cooperate?
If a dispute has arisen and the neighbouring owner refuses to appoint a surveyor under the dispute resolution procedure, you can appoint a second surveyor on his behalf, so that the procedure can go ahead.
What about access to neighbouring property?
Under the Act, an adjoining occupier must, when necessary, let in your workmen, your own surveyor or architect etc., and any surveyors appointed as part of the dispute resolution procedure. You must give the adjoining owner and occupier notice of your intention to exercise these rights of entry. The Act says that 14 days notice must usually be given.
It is an offence, which can be prosecuted in the magistrates court, to refuse entry to or obstruct someone who is entitled to enter the premises under the Act, if the offender knows that he person is entitled to be there.
If the adjoining property is empty, your workmen, surveyor etc., may enter the premises if they are accompanied by a police officer.