Ignoring the Party Wall Act and Injunctions

by The Party Wall Surveyor

Question

Having read the questions & answers on your website it seems quite clear that I must invoke the Party Wall Act as I will be excavating within 3m of our neighbour’s property and below the level of their foundations. However, I would like to ask that is the Act relevant to all buildings such as conservatories, garages etc.?

Also should I wish not to serve the notice how difficult is it for the neighbours to obtain an injunction against us to stop the work? The reason I ask is that they have already objected to the planning permission and I’m confident that they will be awkward should I serve the notice. This could result in expensive legal costs (at our expense) as they will probably want to use their own surveyor (once again just to be difficult). Obviously the necessary planning permission and building regulations will be obtained and adhered to throughout the build.

Answer

All solid buildings on their own foundations are classed as adjoining structures so that would normally include conservatories and garages.

I would not advise you to commence work without serving notice if the work comes within the scope of the Act. There should be no legal fees involved; just the surveyors’ fees if your neighbour dissents. If he is concerned about the works your neighbour has a right to dissent and appoint a surveyor of his choice so I don’t think I would agree that he is being awkward.

To answer your specific query about injunctions, a recent case (Udall v. Dutton) reiterated the criteria which should be met for an interim injunction to be granted: 

  1. That there is a serious issue to be tried
  2. That the balance of convenience favours the grant of an injunction; and
  3. That damages would not be an adequate remedy

You could try serving the notice yourself and waiting for a response, if your neighbour appoints a surveyor you could ask that surveyor to act for both of you. Your neighbour may be happy with that arrangement as he will get the surveyor of his choice, you should be reassured by the fact that appointed surveyors are obliged to act impartially and you would only pay one fee.

Follow-up

I fully appreciate the act and why it has to be used if we were actually working on the Party Wall itself. However, what I don’t agree with is that we are somewhat forced to use the act when in our circumstances, I believe that it’s not really necessary. I understand that it’s mainly to safeguard the adjacent structure and also to a point us, so if any alleged damage did occur this would be relatively to simple to ascertain whether our excavating was to blame or not. 

Someone has suggested that my neighbour and I could have an agreement in simple letter form assuming we both sign agreeing to the terms i.e. in the unlikely event of damage being caused we would make good afterwards at our expense. If I thought we could come to some amicable agreement I would be more than happy as this would obviously save us a considerable amount of money.

Having subsequently looked on the internet it does seem that opinions are much divided whether the Party Wall Act really does what its supposed to do. Having read the Udall v Dutton case this is definitely an eye opener but the end result does just seem to be a one off. Various cases on the internet suggest that to get an injunction is extremely costly, time consuming and stressful and in most cases is not successful. It’s my understanding that the adjacent owner would have to instruct a surveyor and solicitor at their own cost as the act has not been officially served.

The reason I asked about a conservatory as this is what we will be excavating adjacent to and as these are normally exempt from Building Regulations and are often deemed not to be a permanent structure/building I was rather hoping to find some kind of ‘loop hole’ in the law/act! It would be interesting to know if anyone has actually contested the Act for these reasons or any others come to that.

Answer

Neighbours are free to ignore the Act if they choose and make a private agreement but from what you say your neighbour is unlikely to agree to that. The type of undertaking that you suggest would not provide any additional assurance as you would be responsible for damage caused by your works anyway. It could be argued that such an agreement may undermine the Adjoining Owner’s common law rights. You may want to read up on The Roadrunner Properties Limited v (1) John Dean (2) Suffolk and Essex Joinery Limited [2003] case. There is a summary here.

I think you have spent too much time reading horror stories about costs on forums – referrals to the Third Surveyor are relatively rare as most surveyors are far more interested in reaching a reasonable agreement. I work in outer London and fees quoted to Building Owners for a straightforward matter involving 2 owners average around £700 plus VAT. The fee for acting as the Agreed Surveyor should not be much more than that because although it does involve a second visit at the end of the works the preparation of the Award is less time consuming.

People who’ve had a bad experience are far more likely to write about it on a forum. I can tell you from experience that although not perfect the Act works very well in practice and has helped to resolve numerous disputes that would otherwise have ended up in court.

Follow-up

Do you think the point I made regarding a Conservatory not being a permanent structure actually has any clout?

Lastly, assuming we don’t comply with the act and the foundations are excavated, filled and then built on but without any objections from the neighbour or any subsequent damage, what are the neighbour’s rights if say 6 months later they then decide that the Party Wall Act should have been in place?

How would this affect us and the work already completed so far. Also if we had a private agreement from the start from what you have said I’m assuming that this would basically have no real meaning and would in fact need to be superseded by the Party Wall Act.

Answer

Unless the conservatory is made from timber I’d say that it would be considered to be a permanent structure under the Act.

Not knowing the details of what you are building it is difficult to answer the second part of your question. So long as you have all the necessary consents in place and the work progresses without damage the matter would be at an end once the work was complete. Should your neighbours decide to enforce their rights they would have to do it before the work was completed.