Too late to Request a Notice?

by The Party Wall Surveyor

Question

Planning permission has been granted and work has commenced on the detached property adjoining ours. Although we were aware of the planning application and consent, we were not notified that work would commence. The work so far has entailed removing an old extension which formed the boundary between the two properties, and the next stage is to dig footings (which I believe is currently in progress), and build a wall up to the first of its two storeys. This information was from our neighbours’ builder, who believed a party wall agreement was in place. We are only recently aware of this legal requirement, and at present it is being steered by our neighbours’ builder, therefore using a specialist known to him.

We were told that the extension was being demolished when it was 50% down, and it was only when the adjoining wall was to be removed that we were involved (by the builder), who said that the wall would be in place at the end of next week. We were not pleased with this as it meant building throughout the school half term and would affect our day to day use of the garden and our main entrance to the house. Verbally, we agreed to the wall being in place by this Friday to retain our privacy and use of our facilities.

Having read through the guidance notes of the regulation, the 3-6metre constraint seems to be relevent. Our footings (pads) are well within the 3 metres from the new footings. The adjacent property is approximately 600 mm lower than ours due to the lie of the land, and not being qualified in structural engineering, I am not sure whether this would present a future problem with either property.

Do you have any recomendations?

Answer

If a 3/6 metre notice was applicable it should have been served 1 month before the work started. If I were you I would request that the owner, rather than the builder serve the notice. If they refuse and proceed with the notifiable work your only remedy will be to apply to the court for an injunction to stop the work while party wall matters are sorted out. You’ll appreciate that that would have to be done quickly as once the excavations are complete you will not be able to obtain an injunction and there are no penalties for non-compliance.

Follow-up

Thank you for your advice yesterday. It seems that the foundations have already been dug and filled, therefore a court injunction would have been too late anyway. I have been visited by the surveyor our neighbour has appointed. He advises that it is too late to serve notice, however he will proceed to ‘produce’ the award, and has suggested that he acts on both parties behalf in order to minimise our neighbour’s costs.

In principle I do not have a problem with this as he knows the area and the make up of the substrate. I am a little concerned that he is also a friend of our neighbour and my concern is that things could be weighted in our neighbour’s favour, He is a Chartered Surveyor, and has agreed that we could appoint our own surveyor at the cost of our neighbour. I do not wish to make anything difficult, but  in your opinion, are we wise agreeing to allow the joint representation?

Answer

The surveyor’s offer makes no sense. The Act is invoked by the serving of notice so without a notice (to which you would have to dissent) you cannot have an award. It is true though that if the excavations have already been completed it is too late to serve notice.  

I would suggest that you just monitor your property over the coming weeks/months to see if any damage occurs.  

The courts have taken a dim view where damage occurs as a result of works which should have been covered by the serving of a notice but weren’t. In those circumstances it would be up to the Building Owner to prove that that damage was not attributable to his work rather than you having to prove that it was.