It can be confusing and leave you unsure how to respond when you receive a Notice advising that your neighbour intends to carry out works which might affect the party wall or site boundary between you, or risk movement to your foundations. You have the option to consent, or dissent to such Notice (not responding for 14 days is deemed as dissent). If you consent, this means there is no dispute between you, a formal Award is not necessary, and your neighbour may proceed with the work – whilst you still enjoy the protection of the Act. If you dissent, that means you dispute something about what is proposed or it is unclear and you need assistance with understanding it from a professional.
There are 3 types of Notice you might receive;
Line of Junction Notice (section 1 of the Party Wall Act);
This is where your neighbour proposes building on a boundary which currently has no building or “party fence wall” (shared boundary wall) touching it. For example there might be a fence or (unshared) boundary wall on it. The neighbour should give you 1 month’s notice before starting their work, during which if you have any specific dispute then you should raise it and an Award might be needed to resolve that. If you do nothing the neighbour may proceed after a month – there is no “deemed dissent” with this type of Notice.
Party Structure Notice (section 3 of the Party Wall Act);
This relates to work in connection with specific listed types of work to an existing party wall which you share with your neighbour – usually work which poses a risk of damage to the wall affecting your side of it, or presents the possibility of interference with you. If you don’t respond, a “deemed dispute” arises and the neighbour may not proceed with the work until an Award is made. You may still consent to the work at any time (as things become clearer for example) – at which point the need for an Award falls away.
Notice of Adjacent Excavations (section 6 of the Party Wall Act);
This applies where your neighbour is carrying out excavations which fall within specified parameters of distance away from your foundation and depth of excavation (3m and 6m Notices). It gives both parties the right to insist on underpinning (or otherwise strengthening or safeguarding) your foundation (where necessary) at the expense or your neighbour. If no such protection work is considered necessary (because perhaps the risk posed is low) then you should consent. Again, lack of response will result in a ‘deemed dispute” arising – and triggering the need for a costly formal Award.
It is of course important to respect and maintain good neighbourly relations, and you should be aware that an Award (made by a single jointly-appointed “Agreed Surveyor”) may cost as much as £1,000. If two separate surveyors make the Award it might well cost over £2,000. There are other options which cost much less or even nothing (see below – conditional consent and party wall agreements).
Awards are necessary and appropriate where the work is complex or risky, and surveyors can draft one unique to your circumstances which serves to protect you (where such protection is needed). They are limited in their scope though, and cannot apply to work which is outside the coverage of the Act – only to the work specified in the Notice(s). Many people think that an Award might exercise a degree of control over the whole project next door, but this is not the case at all.
Where works are simple and low-risk, consent is often the more appropriate and expected response. Choosing to appoint your own separate surveyor could well result in your being required to pay some or all of those costs (as in the recent landmark legal case of Amir-Siddique v Kowaliw).
Who pays for what is entirely a matter for the surveyor(s) to decide between them, and if they think that some costs were unreasonably or unnecessarily incurred they might well decide that the party who chose to incur those should pay them. The Government’s Explanatory Booklet on the 1996 Act advises adjoining owners that;
“It is preferable that the owners reach agreement between themselves wherever possible without the need to activate the dispute resolution procedure……If you disagree with the work described in a notice under the Act it may be helpful to explain why. The Building Owner can then consider your objection and perhaps amend his proposal. Agreement might then be reached, without the need to use the formal dispute resolution procedure…. Where the proposed works are minor and/or not intrusive on your building or land, you may have only minor objections that you cannot agree or perhaps simply want some assurance that the correct procedures are followed. In these circumstances, and particularly in residential circumstances where surveyor’s fees would significantly increase the project costs, the appointment of an agreed surveyor to resolve the dispute is preferable, especially if the proposed surveyor is not involved in your neighbour’s project.”
As you can see, dispute is considered as a position last resort. Surveyors charged with making an Award bear this in mind when deciding whether each party has acted reasonably, and look to see that this official governmental advice has been followed in all cases. If you are told that your surveyor’s fees will be paid by your neighbour, check that your neighbour’s surveyor agrees with that – they might not, in which case the Award will most likely not include anything for your surveyor’s fees – leaving it as a matter to be resolved separately.
It is reassuring to know that even if you consent, the Act still gives you protection as in the event of a dispute arising later you may still use the Party Wall Act (if you wish) to have that dispute resolved. You may appoint a surveyor at that stage to act for you. Alternatively, you may use common law proceedings to resolve such a dispute (county court hearing or arbitration etc.).
Conditional consent and informal party wall agreements
You can make your consent conditional if you wish. Perhaps you don’t want to make your neighbour incur the cost (and delay) of a formal Award, but there are things you would like put in place (perhaps a property inspection to check for and record any existing damage). Your neighbours may well be happier to agree to such conditions than to incur the cost of having a formal Award made by surveyors. An informal agreement between neighbours such as this known as a “party wall agreement”, as opposed to an “Award” which is more formal legal document and is made by independent and impartial surveyor(s) in cases where disputes need resolving by third parties. An “agreement” can take any form – written, verbal or just conditions stated on the consent form.
An inspection and record of the condition of the property before work starts is often useful (in avoiding later disputes), and this can be carried out by the neighbours themselves, or by an independent third party if the neighbours agree to who will pay for that. Where an Award is necessary, the inspection is usually carried out by the surveyors making it and the cost borne by the Building Owner. This is one reason that costs of Awards are high.
In cases where the two party-appointed surveyors don’t agree on which neighbour should pay some of the costs, the Award would probably be made without including those disputed costs (so that the work can proceed without delay) and the disagreement over the costs can be resolved another way instead, whilst the work is progressing. Delaying an Award because of disagreement over fees cannot be used as leverage in the dispute. Dispute resolution options could be negotiation, arbitration or referral to the “Third Surveyor”. Costs for a referral could be awarded against either or both parties as the Third Surveyor sees fit.
Any Award can be appealed (at the county court) within a 14 day period, but again costs follow the decision so an appeal can be costly and risky.
An “enabling” Act
The Party Wall Act is often referred to as an “enabling” Act because its purpose is to enable people to carry out building work on jointly-owned party walls (sometimes using neighbours’ property for access) – matters which would normally be considered a trespass, but are specifically allowed for by the Act for practicality and ease of construction. It does this whilst still endeavouring to ensure that the risk and inconvenience to the neighbour is minimised as far as is reasonable in the eyes of the surveyor making the Award. It is not there to be used as a way of hindering the neighbour’s construction project or making it more costly for them. Nor as a way of generating fees for surveyors!
We offer completely independent and impartial Risk & Applicability Assessments on projects. We will assess the construction proposals, and in some cases have a video call with the client to look at the site and boundaries. We then produce a written report outlining the level of risk (including any suggestions for reducing the risk), and advise on what Notices might be required. Our fee for this is £225 + vat. If we are subsequently involved in making an Award, then we will offset that cost against our fee for making the Award (as the work is part of what is involved in a standard Party Wall Award fee anyway).