I’m Worried that We’ve Not Followed the Correct Procedures

by The Party Wall Surveyor

Question

We were totally unaware that the side element to our extension works required a party wall notice to our neighbour until a friend of hers advised her and us of this this week.  We started on site last Tuesday and are currently excavating to the rear of our property, the area of concern here is a side extension we have yet to start on.

We will issue her with notice and verbally her and her adviser (an architect and ex-councillor) have said they’ll consent for us to start works early but they wanted to know our plans etc., we are really hoping we can sort it out this week.  My question is can they stop us building the rear section if it has no relevance to the Act?  This extension is within 6m but the foundations won’t be at the 45 angle.

We did have a wall either on the boundary or up to it which is ours, our builder has removed it to gain access to the rear thus opening the side entrance of her house up.  Her adviser also said we should have had her permission for this?  We intend to either replace the wall as it is or put up fencing.  I had made her aware we were doing it and she was fine with it.

I am starting to worry now as I know we have not followed the correct procedure and ignorance isn’t a great reason.  What is the worst that could happen?

Finally, If you are within 3m but don’t believe your foundations are deeper can you simply ignore this act?

Answer

When your neighbour’s advisers say that they will ‘consent for us to start works early’ do they mean that they will consent to the notice or consent to shorten the notice period? If they are only shortening the notice period then you will have to appoint a surveyor and an award will have to be agreed. If they consent to the notice then an award is not required and you will not be liable for any surveyor’s fees.

The parts of your works that do not come within the scope of the Act can be started as soon as you are ready – assuming that you have the relevant Local Authority consents.

Regarding the wall on the boundary – if it is your wall you did not need consent to remove it although you will need to serve notice under Section 1 of the Act it you are replacing it with a new wall on new foundations.

If you are excavating within 3 metres of an Adjoining Owner’s structure but will not be going deeper than the base of their foundations the Act does not apply. If you do not know the depth of your neighbour’s foundations all you can do is make an educated guess based on the age and property type.

There are no penalties for ignoring the Act although you do run the risk of having an injunction placed on your works.

Follow-up

Our neighbour has her friend who is an architect looking at it at present.  They have asked for a site plan, more details on the excavations etc. so our architect asked if they were wanting to go to an award and they have said no.

We have now asked them if we can dig a trial hole to establish the depth of their foundations so that our architect than then draw up the said plan with levels and assure them their foundations will be safe.

I’m glad about being able to start the other work becasue if it does get awkward we may simply not do our side extension and we can therefore withdraw our notice I presume?  This would take any excavation within 3 metres out of the equation.

We are replacing the wall either with the same structure so I imagine it can be built directly on top of the current foundation?  or we will simply replace it with fencing.

I really appreciate your help, this building lark should be left to the professionals it’s far too stressful!

Answer

A trial pit would be a good idea and you are correct to say that you can withdraw the notice if it turns out you will not be excavating deeper than the base of your neighbour’s foundations.

Follow-up

We have done this and whilst we are deeper our architect and her architect, a friend, confirmed that our foundations becuase of the 45 degree line of influence? would not undermine hers.

Our architect has drawn this and emailed them to that affect.  They have now written back and said in the absence of formal notice (we have given notice but he told me not to date it so they could back date it) they agree on the conditions we sign the attached.

The attached was our architect’s drawings, a new drawing done by him that also showed the assumed boundary and the new fence we are to erect at the 5ft 4 height we had verbally agreed on site (the whole reason our neighbour is worried as we have the right to put a 6ft window here).  It also contained a document stating we’ll not cause a nuisance, tidy and leave as we found at the end of the job, be liable for any damage etc.

At the end of the letter he then stated provided we signed and agreed to the details we would not be in dispute.  As he is saying we haven’t even issued them with a notice as far as I can read we can’t be in dispute.

Where would stand legally, this man is a chartered architect and it has nothing to do with the party wall act, they can see the impact there won’t affect them, to them it’s all about fence height.

Incidently it could be 3-4 weeks until we excavate this area.

Answer

The 45 degree rule is only relevant if your foundations are between 3 & 6 metres from your neighbour’s structure. If you are within 3 metres it is simply whether you are deeper or not.

Neighbours are free to agree anything they like outside of the Act but I could not advise you on that I’m afraid.