I Served a Scetion 1 Notice – Can The Adjoining Owner Appoint a Surveyor?

Question

We have a garden wall between our property and the neighbouring property which we believe sits soley on our side of the boundary.  The wall was clearly in place long before the neighbouring property was built and is in dire need of replacement.  When the neighbouring property was built they have built a wall in parts on the other side of our wall and where there wasn’t room have erected fence panels.  In the middle section where the space is very limited fence panels have been placed on top of the wall – this appears to have been part of the original construction of our property as the supports for these panels form part of our wall.

Last year, with no notices either formal or informal, the neighbour decided to replace the fence the entire length of the boundary, which meant that he has replaced panels that are his own as well as the panels in the middle section that look like they should be our responsibilty and has also added new panels where there was no previous fence at one end of the boundary and has used our wall to support these panels.

He was advised by telephone and in writing at the time that the fence should not have been ut on our wall and that the wall was due for replacement which will mean the panels will need to be removed.  Now we are ready to replace the wall we tried to approach him informally to discuss replacement, at our cost including reinstalling the fence correctly, but he has told us to serve formal notices under the party wall act.

We consulted a Party Wall surveyor who has advised that a line of junction notice was appropriate and he has served that notice on our behalf.  The neighbour has responded saying that he believes this is a “party wall matter” and that he wants us to pay his surveyors fees.  Our surveyor has responded to them outlining that a line of junction notice is the appropriate notice under the Party Wall act and has asked on what grounds they feel that it is not the appropriate notice and that we cannot at this stage agree to pay their fees as a line of junction notice doesn’t require us to do so.

They have responded saying they dispute this but given no reason why and have said that as we are “unwilling to be amicable” they have no choice but to apply for an injunction should we start the work which they claim will cost us £15 to £20k.

Is our surveyor correct that it is not sufficient for them to give no reason why they do not accept the line of junction notice and would they really be able to get an injunction on this basis??  We have offered to reimburse reasonable surveyors fee if they appoint one and he subsequently identifies on what grounds our surveyor has served the wrong notice.  Are we being unreasonable?

Answer

If you plan to demolish the wall and build a new one (with new foundations) up to the boundary then a Line of Junction Notice (Section 1) is appropriate. If the work involves you excavating below the base of your neighbour’s foundations then a 3 Metre Notice (section 6(1)) will also be required.

Your neighbour can dissent to either notice without giving a reason and should he do that surveyors must be appointed and an award agreed. Under the Act the surveyors decide who pays their fees but in all normal circumstances that will be the owner undertaking the works.