Legal update: court is left unconvinced by ‘Purdah’ argument in judicial review proceedings
As London property prices continue to climb, home owners and developers are constantly on the lookout for new ways to extract additional value from every square foot. The traditionally favoured methods have been to extend out, or upwards, and statistics show such developments are still booming. In March 2015, City A.M reported that there were over 250 towers of 20-storeys or more going through the planning approval process in London. However, the latest trend in some of London’s most affluent neighbourhoods – where space is at a premium and both practical and planning hurdles prevent major development above – is going underground.
The rise in popularity of 'mega-basements' has coincided with a number of mainstream media reports focussing on disgruntled neighbours, perceived failures of planning authorities and basement-dig horror stories. Whilst the prospect of adding subterranean living space (or even a personal car museum, like one wealthy, Kensington resident) may be appealing, there are a handful of serious pitfalls which must be avoided. This blog aims to flag up some of the key issues when undertaking any works which might impact the structural integrity of your own, or your neighbours, property.
Fortunately, this is an area of the law which is quite well established. The Party Wall etc. Act 1996 (“the Act”) is the most relevant piece of legislation and provides rights to the party carrying out the works, whilst also protecting the neighbour from any damage or adverse effect caused by the carrying out of the works. It is also worth noting that whilst the Act certainly applies to ‘mega-basements’, it is also relevant for more minor works to shared walls, chimney breasts or even garden walls along a boundary line.
Let’s first consider works to your own property.
Works to your own Property
Before any works can commence, notice must be served on any neighbours who may be affected. The notice should include details of the works, as well as the name and address of the person proposing the works and an approximate date on which the works shall commence.
Once notice has been served, the neighbour might consent to the works, refuse consent to the works, or simply not reply to the notice. If there is consent to the works, then it is advisable to appoint a surveyor who can create a Schedule of Condition. This basically means that they will photograph and record the current condition of the property and note any other relevant observations, exercising their professional discretion. After the Schedule of Condition has been created, a Party Wall Agreement can be drawn up and works can begin. The Party Wall Agreement brings together the notice, the consent and the Schedule of Condition into a single, formal legal document.
It can often encourage a neighbour to consent to works and avoid a dispute, if a Schedule of Condition is provided when notice is initially served. This gives a strong indication that the works are being carried out in a professional and proper manner and may provide the neighbour with some reassurance.
Alternatively – and perhaps more commonplace – the neighbour may refuse consent to the works. In this scenario, the neighbour must then appoint a surveyor in an effort to resolve the dispute. The party proposing the works can choose to appoint their own surveyor, but since the building party most often pays the fees for both surveyors, it is best if parties can agree on a single surveyor and avoid doubling expenses.
Once a surveyor has been appointed, they will consider the plans and designs for the works and may suggest amendments or alterations in an attempt to minimise the impact on the neighbouring property. In extreme cases, the surveyor may refuse consent for the works, if it is believed the works pose a threat to the stability or structure of the properties. If the surveyor is satisfied with the proposed works, they will serve a Party Wall Award, giving the go-ahead. Where a Party Wall Award is provided by a surveyor, that same surveyor will also inspect the works at the point of completion. This is the main benefit of a Party Wall Award and such an inspection is not carried out if a neighbour consents to the works initially.
If the neighbour simply does not respond to the notice, the neighbour is deemed to have refused consent once 14 days have passed. At this point, a reminder must be served, providing an additional 10 days for the neighbour to respond. Where there is still no response after the additional 10 days, the party carrying out the works is entitled to appoint a surveyor on behalf of the neighbour and the same process outlined above is followed.
If your neighbour is carrying out works to a Party Wall, or in the proximity of a Party Wall, you should receive notice of the works, as described above.
If you wish to consent to the works, subject to a Schedule of Condition, the Act will afford you protection from any potential structural damage. On the other hand, you may wish to refuse consent and appoint a surveyor to inspect the works. Refusing consent to the works is not required to be protected by the Act; however, as mentioned previously, there is the benefit of the final inspection by the surveyor who issues the Party Wall Award. This may seem like an unnecessary step for minor works, and there is a risk of causing friction with a friendly neighbour, however for more significant works, it may provide additional peace of mind.
If works to a Party Wall are about to start or have already started, without receiving notice, then that may be a cause for concern. In order to be protected by the Act, notice must be served in the manner outlined above. Therefore, if a neighbour does not serve notice and carries out works which cause damage or undermine the structure, there is no immediate legal recourse. In order to avoid such a scenario, it would be best to communicate with the neighbour in the first instance – perhaps they are unaware of the requirement to serve notice. If the neighbour still does not provide notice, then you should seek advice from a surveyor or a solicitor. There is also the final safety net of seeking a court injunction to put a stop to any works being carried out where notice has not been served. Needless to say, court action should be considered as a last resort in these circumstances.
The key thing to remember in respect of works to or around Party Walls is to follow the proper process and ensure that professionals design, oversee and carry out the works. It is important to keep in mind that a neighbour cannot prevent legally permitted and structurally-sound works from taking place. You must follow the procedures put in place by the Act, but so long as you do, you can rest assured that you will be able to enjoy your new extension, ‘mega-basement’ or personal car museum, without the possibility of it falling down around you!
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