Party Wall Act... do I need to serve notice?!

[^woody^]

In most cases, is only worth a building owner serving notice if he needs access. Otherwise, again in most cases, he just opens himself up to extreme (unecessary?) costs from a vindictive neighbour.

Otherwise keep the wall and footings back off the boundary line, for an easy life.

It's not helped by the fact that many people are ignorant of what the Act is for, and people disgruntled by a planning decision or PD rights, think that they can change things or just get their own back by frustrating their neighbour.

It's a bad Act open to abuse, for often little purpose. Keep it at arm's length.

 

[Lacuna]

I'll go along with that. If you don't get on with your neighbours, it's a toss up. Build the wall a little back from the boundary so you don't need to serve notice and your neighbour can't insist on the appointment of surveyors but the wall will have to be built overhand to avoid trespassing. Serve notice and your neighbour can force you to appoint and pay for a surveyor or surveyors. There is barely anything to be disputed as your design is already neighbour friendly in Party Wall Act terms and it should be very straightforward but an objectionable neighbour and/or greedy surveyor can overcomplicate it and make it costly for you. It's very hit and miss I'm afraid. As I said before talk everything through with next door first and try to get them onside. Then, you can decide whether to serve notice or not depending on their reaction.

 

[wessex101]

Just to nit pick on Lacuna's otherwise excellent previous post.

Section 8 right of access is not necessarily an automatic right. The clause includes the word "necessary", this has been used to argue that certain works such as erecting scaffolding for example was not "necessary" and therefore did not fall within right of access.

So keep it friendly, don't go steaming in thinking you can impose your will on your poor neighbours. As Woody suggested above it can get messy when you've got a disgruntled neighbour with an axe to grind. But the Act can be your friend in this situation (albeit quite an expensive friend) allowing you to proceed with the work and possibly get access to your neighbours garden and cast foundations on their property when they would rather move heaven and earth to stop your build dead in it's tracks.

 

[wessex101]

One other point. I personally have a great dislike of setting an extension back from the boundary with semi-detached properties. How many times have we seen neighbouring properties with extensions and a silly little gap between them. I hate that!

Far better to build up to the boundary rather than just close to it and talk to neighbour to see if they are likely to build an extension in the future and then get agreement to build a new party wall astride the boundary.

 

[Lacuna]

Not quite Wessex101. Section 8(1) says:

'A building owner, his servants, agents and workmen may during usual working hours enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act and may remove any furniture or fittings or take any other action necessary for that purpose.'

The 'necessary' aspect only applies to 'action' other than entering & remaining to execute the work i.e. connected with doing something to enable the access required to be gained. Akin to, but different from, removing furniture or fittings. If the work requires scaffolding, that is part and parcel of it's execution. 'The Law & Practice of Party Walls' by Nick Isaac, barrister confirms this view (Para 14-07). Any surveyor who argues differently or who claims the the adjoining owner is entitled to payment for the scaffolding being there, is wrong. Regrettably there are many party wall surveyors who don't know the Act as well as they should.

What is true is that the scaffolding may only be used to build the wall and not for constructing any associated roof structure/cladding or eaves detail, not that the latter applies here as MrHockin already has that sussed.

 

[wessex101]

I think we are actually agreeing. I don't do as much party wall work as I used too so sometimes my memory gets a bit fuzzy but going back through my books and journals they seem to put a lot of emphasis on the word "necessary" especially P&T so I stick by my assertion. Is it "necessary" to erect scaffold on the neighbours land if the wall could be built overhand or a cantivered scaffold erected off the building owner's property. Obviously if a scaffold could be erected on the neighbours property without causing too much inconvenience then it should not become an issue. One of the dangers of these forums is people take the advice too literally without doing any background reading, so if you say they have right of access (which they do) they will assume that gives them the right to occupy the neighbour's garden for the duration of the project, erecting scaffolding willy nilly, storing materials, mixing cement etc. etc.

I like to place a test of reasonableness on my party wall jobs. So for instance giving the builder a few days access to build the flank wall would be reasonable. Digging up the neighbours flower bed of prize petunias or erecting a scaffold on their patio for half the summer would not be reasonable. If I was acting in those cases I would suggest to the building owner to modify their method statement/design to find a different way of doing it to avoid undue inconvenience for the neighbour.

 

[^woody^]

One other point. I personally have a great dislike of setting an extension back from the boundary

It's down to the designer to design the eaves or parapet detail, so that the wall gets as close as possible to the boundary.

In many cases though, the neighbours would rather have you around to lay bricks and point up nicely, rather than see a load of snots on smudged up horrible blockwork - party wall award or not.

 

[Lacuna]

Wessex101. We are agreeing - the building owner cannot do anything that causes the neighbour unnecessary inconvenience and that would include wrecking their garden, So, no storage of materials, no siting the cement mixer on the neighbours land, limitations on how long the scaffold will be there for and the times it may be used etc. That is why I said earlier that the who, what, why, when, where and how of access needs to be discussed at the outset. However, necessity/reasonableness cuts both ways. If notice is served the building owner has a right of access to build the wall and can exercise it within reason. Neither the neighbour nor his surveyor can dictate that the wall is built overhand nor that it is done from a more complex scaffold than is needed where such requirements would be unreasonable. Both those things said, the neighbour is entitled to have his property (inc. planting and hard landscaping) suitably protected from damage. If damage is caused, the building owner is liable to compensate the neighbour for it and surveyors can be appointed to quantify it if the owners can't agree, even if they weren't engaged in the first place.

The PWeA does qualify some things in terms of necessity but in other instances it doesn't and what the P&T say isn't always correct. Thankfully, the new edition of the Green Book makes corrections where several points of their interpretation of the Act were found to be wrong in law. Even then, it has taken a still more recent party wall case to clarify that 'unnecessary inconvenience' only applies to the time and manner of doing works and not the effect of those works on the neighbour once built.

 

[wessex101]

By the way, welcome to the forum. We could do with a few more party wall experts. Saves me from arguing with Woody all the time.

 

[MrHockin]

Guys, I've been away for a few days so haven't managed to check the thread. Thank you for all of your replies, it's great to get some advice from folk who have been down this path many times before! I shall be dropping in to see my neighbour early next week with the plans, and I'll ask how she would prefer the wall to be finished on her side; I'll also let her know that I'll be replacing the 'scabby' looking boundary wall with a nice new fence for the rest of the boundary, that might persuade her to go along with things I have neighbours on the back end of my garden who will also be affected by an outbuilding (office & workshop/shed/cave), but they don't move in until next weekend, so that'll be a nice 'welcome' for them!