LADBROKE ASSOCIATION

The conservation society for the Ladbroke Conservation Area of the

Royal Borough of Kensington and Chelsea

   

 

 

 

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BASEMENT DEVELOPMENT

 

PARTY WALL AWARDS

for basement development

 

THE PARTY WALL ETC. ACT 1996 and PARTY WALL AWARDS

These pages are intended to provide notes on the Party Wall etc. Act and party wall awards as they apply to basement extensions. It is important, however, that people take their own professional advice.

 

 

We would welcome comments, and suggestions on how we could make these pages more useful. Contact.

 

General background

 

   The present Act is the successor to a long line of statutes. It was based directly on earlier legislation applying to London only (the London Building Acts (Amendment) Act 1939, which itself succeeded various previous Acts dating back to one passed in 1667 to facilitate the reconstruction of London after the Great Fire).

   Like its predecessors, the Party Wall etc. Act 1996 was intended not to prevent people from doing what they want on their own land, but to facilitate development by giving the person doing the building works certain rights to encroach on their neighbour’s land or building, while providing some basic protection to owners and occupants of adjacent properties. In recent years, the problems caused by development in residential areas have increased significantly, especially in densely populated urban areas, with bigger, noisier and more potentially damaging building works (such as basement excavations and complete refurbishments of whole houses) causing major nuisance to neighbours on a regular basis. Many would say that the Act is no longer suitable for current circumstances and that far more protection should be given to the owners and occupiers of adjoining premises. But until legislative changes are made, it is the framework within which everybody has to work.

The full text of the Act can be found online at:

http://www.legislation.gov.uk/ukpga/1996/40/introduction.

   The Department for Communities and Local Government (DCLG) has published a useful explanatory booklet on the Act, and numerous firms of surveyors have put their own guidance on the web, no doubt hoping to attract custom.

 

Party wall notices

 

   The Party Wall Act etc.1996 gives the owner of a building (“known in the Act as “the building owner”) the right to undertake a variety of works on or near the party wall. These include excavations within certain distances of the neighbour’s property – for further details see the DCLG’s explanatory booklet. But the person undertaking works is required to notify the “adjoining owners” (as the immediate neighbours are known in the Act) by serving a “party wall notice” on them before the work begins. This must be done one or two months before the works start, depending on the type of works.

   There is no set form for the party wall notice. But it must give the building owner’s name and address; the address of the building where the works are to take place; a full description of the works; and the date on which it is intended to start them.

   On receiving a party wall notice, the adjoining owner has three possible courses of action:

  • To reply in writing within 14 days agreeing to the proposed works, in which case they can go ahead without further ado. This is normally only appropriate for minor or very straightforward works. 
  • To reply in writing within 14 days “dissenting” from the proposed works; or
  • To do nothing.

 

   If after 14 days the adjoining owner has either dissented in writing or not replied, a “dispute” under the Act is deemed to have arisen. The term “dissent” is somewhat misleading, as in fact there is little or nothing that the adjoining owner can do to prevent the works going ahead. But the existence of a “dispute” means that a “party wall award” (often known as a party wall agreement) must be put in place before the works can begin.

  A good “building owner” will normally be in contact their next door neighbours well in advance about their works, so the notice should not come as a surprise. But if you know that your neighbour is intending basement works, it may be worth reminding them that you are expecting a party wall notice. And if you are likely to be away for a long period, it is worth making sure that your post is checked.

    If the property is empty, or the owner is not known, it is sufficient for the building owner to address the notice to “the owner”, adding the address of the premises, and to fix the notification to a conspicuous part of the premises. So owners of empty premises or those inhabited by tenants should make sure that arrangements are in place to inform them about such notices.

   If the adjoining owner has dissented or not replied, he is then likely to receive a letter formally calling upon him to appoint a surveyor. This should not be ignored, as after 10 days the neighbour doing the works can appoint a surveyor to act on the adjoining owner’s behalf.

 

Appointing a surveyor

 

   The building owner or their representative may suggest that the adjoining owner should appoint the same surveyor as that chosen by the building owner. This is suitable for minor works. But for a basement excavation, the adjoining owners are well advised to appoint their own surveyors (although it may make sense for adjoining owners to ask one surveyor to act for all of them).

   As to finding a good surveyor, the Royal Institute of Chartered Surveyors [www.rics.org] and the Faculty of Party Wall Surveyors [www.fpws.org.uk] can provide lists of local surveyors. There are also firms of specialist party wall surveyors who write round offering their services as soon as planning permission is given for any works. These may be perfectly good; but, as for other professionals, a word of mouth recommendation is usually the best way of finding the right person. We think that it is important to find a surveyor who has had previous experience of dealing with basement excavations.

   Appointments of surveyors must be in writing. This is important because, if they are not properly appointed, the courts could declare the party wall award drawn up by them to be invalid. If each side appoints their own surveyor, the two surveyors must then agree on the appointment of a third surveyor, to act as umpire if they are unable to agree.

   Once a surveyor has been appointed, he cannot be sacked or changed. He may only be replaced if he dies or is unable to act for some other reason (for instance illness or conflict of interest). If one of the surveyors who has been appointed refuses to act, or neglects to act within 10 days of being requested, the Act allows the other surveyor to draw up an Award by himself. So it is important for the adjoining owner to ensure that his surveyor is available to undertake the necessary work.

   For something as complicated as a basement extension, the adjoining owner's surveyor will normally appoint a structural engineer to advise on technical issues.

   The Act does not specifically say who should pay for the surveyors; technically this is something for the surveyors to decide as part of the party wall award. Because it is only fair, however, that the person undertaking the works should meet all the costs associated with them, the surveyors will normally so decide unless there is some specific reason to make a different allocation of costs – for instance if the surveyors decide that the adjoining owner has been making excessive requests for their services, or if the works include elements that benefit the adjoining owner.

  

   The building owner is only liable for the costs of the other side’s surveyor once a “dispute” has arisen. So any work that a surveyor does for the adjoining owner before service of a party wall notice and the establishment of a dispute must be paid for by the adjoining owner. This is unfortunate, as it effectively deprives adjoining owners of advice on the scheme as it develops, unless they are prepared to pay. However, if an adjoining owner knows that a party wall notice is likely to be served soon, there can be advantage in approaching a surveyor (or more than one – “beauty parades” of potential surveyors are increasingly being held for major projects) in advance to establish that he or she can act for them.

   The role of the surveyors falls into two parts. The first is to decide what is reasonable for the building owner to do in pursuit of his rights under the Act; and what is necessary to protect the interests of the adjoining owner, and then to “award” the right for the works to go ahead on that basis (this is the party wall award). The second is to sort out any disputes between the owners as to whether the award is being complied with during the works, and to decide whether there is damage that needs to be put right. The surveyors have wide powers to decide what is appropriate and have indeed been described as akin to a tribunal.

   It is important to realise that, although the surveyors are appointed by the two parties, they are not acting as their agents (and for this reason the surveyors normally call the two parties “appointing owners” rather than “clients”), but as professionals required to act in accordance with the legislation. The aim is that they should be fair to both parties.  In practice, however, a surveyor appointed by one party will normally seek to implement that party’s wishes as far as possible unless these conflict with their duties under the Act.

 

   The surveyors can only deal with problems arising from works covered by the Party Wall etc. Act. So, for instance, if a party wall award has been made because of excavations by the neighbour within the relevant distances, once these excavations are completed the surveyor ceases to have any role bar checking that any damage caused by the excavation has been put right. The surveyors are not empowered to deal with problems arising from other parts of the neighbour’s building project. Nor can the surveyors deal with any dispute or matter arising from any work done before the party wall award was in place.   They can, however, deal with issues that arise after a party wall notice has been served but before the award has been agreed - i.e. if the building owner jumps the gun and starts work early.

 

Party wall awards

 

   Once the surveyors have been appointed, they will draw up a party wall award. This is basically a document that sets what the owner doing the building may do and provides a framework for preventing and resolving disputes that may arise from the works. It is not an agreement between the two owners. It is signed by the surveyors appointed by the two owners, who are acting effectively as a sort of tribunal with a duty to “award” to the two owners certain rights and obligations – hence the rather curious nomenclature, “award” rather than “agreement”. If circumstances change, or new problems arise, or there are disputes on e.g. what damage if any needs repairing on the adjoining owner’s property, the surveyors will make a further “award” in favour of one or other owner (or something in between). There may be several such secondary awards following the “primary award”

   The “awards” are binding on both parties. The Act does contain provisions for either owner to appeal against an award to the County Court, which can rescind or modify it. Any appeal has to be made within 14 days of the conclusion of the award. Court proceedings are however inevitably risky and potentially expensive, so this is an option of last resort.

 

Guide to what can be in a party wall award

   Click here for a guide to what can and can't be in a party wall award. Please note, however, that this is not intended to be professional advice. It is aimed at explaining party wall awards to householders and to give them an idea of what they might discuss with their surveyor. Decisions on what are in party wall awards can only be taken by the party wall surveyors nominated by the two owners.

 

This page last updated 29.4.2016.