We’ve Had an Injunction Placed on our Works

by The Party Wall Surveyor

Question

I’m hoping you can advise us on the next steps in our dispute with the next door neighbours as the solicitors involved seemed to be milking us all without any intention of closing the issue down. 

Despite having a planning permission to demolish our house, we came to a halt 3 and a half months ago as our next door neighbour took us to court.  They tried to overturn our planning permission and sabotage it from the first day when we applied to extend and when they failed, they found a way through Party Wall Act to stop us from building. As soon as the Court received the case, they placed an injunction on our project instructing a third party wall surveyor to give his opinion. 

The problem started when we applied for an extension to our house.  The next door neighbour complained but the planning department dismissed it.  We got our permission :) However, once we started getting quotes and opinions from builders, it became apparent that demolishing the existing house would be a better option than extending it, but still building within the original planning permission.  The neighbours used this as another opportunity to complain but again they failed in their attempt. 

A year before the building works started, we approached a Party Wall Surveyor and asked him to represent us. This Surveyor wrote back saying that as he knows the next door neighbours and that he is aware they are against our plans, he cannot represent us.  However, he decided to represent the neighbours.  We employed another surveyor to represent us.  After nearly 13 months and numerous queries (some were completely irrelevant to our party wall) we sent a Party Wall notice in early December for the jointly owned party fence wall to next door to sign, also informing them that due to Christmas holiday season we would like to complete the foundations before Christmas.

When this fence wall, which by the way was damaged in a few places and in a poor state, was discussed we offered to replace it with a new one. However, the next door neighbours refused that offer but asked us to fix it.  We could not understand their reasoning but nevertheless agreed to repair it just to avoid further prolonging.  When they got the Notice, their comment was they did not care what we wanted to do by Christmas and that the wall should be underpinned and in such way that it is done in three stages.  Please note that this wall starts at some 10cm and rises to about 60 cm as it goes down the hill.  Also this wall never had any underpinning. The builder carried on working against their plans and on 19th December completed the foundations as well as the underpinning of the garden wall.

The communication between surveyors was happening without our knowledge.  The only time we knew about the dispute regarding the party wall and underpinning was when our Surveyor called us to say that the Neighbour’s Surveyor called complaining that the builders are pouring concrete and yet the Notice had not been signed. By this time, it was all complete and our Surveyor told us that given that the foundations are complete now the Party Wall matter is no longer relevant. 

After the holidays, the builders return to site and started building walls. The neighbours employed solicitors stating that we did not do underpinning and that we stop the works next to the party wall or else they would start the proceedings against us. We told the builders to stop the works next to the party wall and also agreed with our surveyor to seek a third surveyor’s opinion.  The meeting with three surveyors was due to take place but the day before the neighbours took us to courts. 

The judge appointed a 3rd surveyor who came to inspect the site and concluded that the underpinning was unnecessary and also stated that the court injunction was unjustified. He also stated that as our new foundations are deeper than the original the party wall has a better support than before. 

The neighbours then gave us an ultimatum that if we do not pay their expenses (£13k at that point, two months ago!) they would appeal against the 3rd Surveyor’s findings. 

We believe that their concern was never the wall itself and all their doings were to prevent us from building in the first place.  As such, we did not take them up on their “generous” offer. 

To make things worse, apparently their solicitor used the wrong form for the appeal as well as referred to the 3rd surveyor as a defendant and correcting this took another month! 

I was hoping that given that they would allow us to continue with works if we paid their legal costs, we can argue that we should carry on with the works and then argue legal costs afterwards.

You see, apart from the immense stress this is causing us and our young children,. Our concern is that the whole court case may take another few months (maybe even years) given the laid back attitude from solicitors. 

The costs are spiraling out of proportion, we are put under immense stress, our children have been affected by the whole situation by living in a temporary accommodation without access to their books and toys and without a prospect of moving back to our home. We have financial costs of rented accommodation, storage costs etc, not to mention legal fees. The wall would cost some £700 to replace and even if some cracks appear in the near future, fixing it would cost approximately £200 and yet between us we have spent some £25 000 without achieving anything. And the costs will get even higher if we go to courts again.

Answer

I’m confused by your email, especially this section: 

We employed another surveyor to represent us.  After nearly 13 months and numerous queries (some were completely irrelevant to our party wall) we sent a Party Wall notice in early December (1st or 2nd) for the jointly owned party fence wall to next door to sign, also informing them that due to Christmas holiday season we would like to complete the foundations before Christmas. 

The party wall notice would have to have been served prior to either party appointing surveyors. At first I thought you meant the Party Wall Award rather than the notice but that doesn’t make sense either as the owners do not sign the award; only the surveyors do.  

If you can clarify this for me I will work through the rest of you email.

Follow-up

I’m sorry for confusing all those technical terms – they are still rocket science for me :-( 

I just clarified with my husband the sequence of events in terms of notices/agreements… apparently the Party Wall Notice was served for the house demolition and apparently that was fine. But then after we got the permission to demolish the house in November 2008, the Neighbours’ surveyor asked for a Party Wall Notice for the Party Fence Wall.  

Again, it is my misunderstanding (or shall we say lack of knowledge) on all the steps in Party Wall Agreement, but I thought the neighbours had to sign it :(. Well, in any case, if it was for the Neighbours’ Surveyor to sign, he did not.  Instead he asked for underpinning at three different stages.  This is when he replied back saying that he did not care what the builder wants to do in terms of finishing foundations. 

I hope this clarifies the matter.  I’m so confused as to why this whole process is taken out of proportion and I’m sorry for causing further confusion by using the wrong terminology :-(.

Answer

The adjoining owners would only have had to sign the notice acknowledgement if they chose to consent to the works. As they chose to dissent and appoint a surveyor all they had to do was provide you with that surveyor’s details. It would then have been up to the 2 surveyors to agree whether the wall required underpinning.  

If the 2 surveyors had different views and couldn’t agree then the matter should have been referred to the Third Surveyor – that is a surveyor selected at the start of the process to settle disputes. I’m assuming that the height of the wall is not really 10cm as it would have been ridiculous to underpin a wall of that height.  

I must point out that you shouldn’t have commenced the notifiable works until the Party Wall Award had been agreed and served on the 2 owners but having said that your surveyor is correct to say that once the works have been completed it is no longer a party wall matter. It is therefore surprising that the adjoining owners managed to obtain an injunction. As long as the notifiable works are complete there is no chance that a new injunction will be granted.

Follow-up

The injunction was placed upon us back in January as the neighbours claimed that there were some cracks in their pavement.  They then later on withdrew that statement saying they remembered it was due to their burst pipe. They also claimed that their house will slide down the hill as the wall was supporting their house and they were questioning how good the carried out works were. 

We were to bring a third surveyor on site before the court proceedings and all the parties knew about it, but the neigbours took us to court nevertheless. 

The wall (the white structure below the hedge) starts from some 10cm and rises up to some 60cm. The court appointed a third surveyor and the third surveyor ruled in our favour, but the neighbours are appealing and all of this has already taken 3 and a half months and may take another few before another court hearing. 

I was trying to see if there is any way for us to lift the injunction as the matter is dragging on.  The neighbours want us to pay their costs and we disagree with that. Ideally we’d like to lift the injunction and then argue about costs afterwards.

Follow-up

According to the original contract with our Builders, we should have received the keys to move into the house yesterday. Instead, we are the “proud owners” of a foundation with small walls around it, currently being used by hundreds of tadpoles happily swimming around the “pool”.  

As part of the recent communications to our solicitors, I found out that the terminology I used was my interpretation of what happened…sorry. There are “undertakings” that we signed up for….to be honest, the legal matters are not just killing me financially, but mentally too :-( 

On the day of the court hearing, this is what our Barrister agreed with Neighbours’ Barrister and that was ultimately agreed/approved by the Judge:

“Upon the Defendent undertaking, until the trial of this action or futher order of the Court, not to carry out any demolition or constuction work within three meters of the boundary wall shared between (us and neighbours)  save as directed by the third surveyor”

The Interim Order has been granted by the Courts based on neigbours’ evidence  (witness statement) only and we only had a chance to respond to it the day before Court Hearing.

In their statement, the neighbours were:

– Questioning Planning permission

– Claiming damage to their pavement as a result of our works

– Breach of materials approved

We then proved that planning permission was granted. The neigbours withdrew their comments about damage in the additional witness statement. The enforcement inspector visited the site and have not seen any breach of approval conditions since no approval was required for engineered bricks but only for the external surfaces.

As stated above, on the day of the court hearing, we undertook not to carry out constuction work. Considering that we did everything to prove that notifiable work was completed, it is not clear to us why undertaking cannot be lifted.

The Third Surveyor appointed by the Court wrote this in his report: 

” The injunction should not have been served because:

a) there was no reported damage to the Party Fence Wall and Adjoining Owners’ property;

b) the two surveyors were proposing to meet the Project Structural Engineer on site to establish, amongst other things, as to whether the notifiable works had been carried out. The injunction was served before this meeting could take place. If this meeting had taken place before the service of the injunction, then the parties would have been made aware of the same findings listed in the atached report prepared by the Project Structural Engineer. The findings of the Project Structural Engineer are in accord with the points made in a letter from the Building Owners’ Surveyor to the Adjoining Owner’s Surveyor, dated 7 January 2009

c) if the two surveyors had remained in dispute after the proposed site meeting, then the matter should have been referred to the Third Surveyor.” 

The neighours asked us to pay for their costs of £13000 as a condition for them not to appeal.  We did not accept that and they made the appeal on 16 March. However, they used wrong procedure (filled in a wrong form) and also named the Third Surveyor as defendant. 

We have never anticipated that appeal matter and incorrect procedure could have taken this long and do not understand why we cannot take action to remove Undertaking as we are able to prove adequate support! We do not mind to carry on arguing about the costs if we can start with the works now as we cannot accept that Undertakings are there forever.

I just hope we did not make mistake by giving Undertakings if we cannot remove them without neighbours’ consent as suspension of works is the most stressful to us and causing us financial damage.

Answer

While I am sympathetic with your situation it is really beyond the scope of the Party Wall Advice website to provide advice on legal matters – such as how to have the injunction lifted. I would suggest that you follow the advice of your barrister and any direction from the Third Surveyor.