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Party Wall etc Act 1996 - making sure of your foundations

There are likely to be few solicitors specialising in property litigation that have not fielded an urgent call from a client with a neighbour embarking on unauthorised party wall works.  The difficultly in advising clients in such a situation is that the Party Wall etc Act 1996 (“the Act”) does not expressly (1) require use of the Act’s procedure or (2) provide a remedy for failure to do so.
An anxious client is likely to want to stop / injunct the neighbour’s work before any (more) damage is done and will need a cause of action to do so if the neighbour will not co-operate.  In many instances the client will have a claim in nuisance (i.e. noise, dust, vibration), trespass, negligence or for interference with a right / easement of support. 

But what if (1) the client learns of a neighbour’s proposed work prior to the commencement of work (i.e. no damage or trespass yet occurred) or (2) the neighbour is carrying out excavation work entirely on their own land that does not interfere with a right of support? In that situation you would want  to assert breach of statutory duty so that absence of a direct common law cause of action need not trouble you or the client.

In Crowley v Rushmoor BC [2009] EWHC 2237 the High Court ruled that a failure to serve a party wall notice pursuant to the Act is a breach of statutory duty.  Although this had always been arguable, it is not expressly provided for by the Act and this was the first authoritative decision on the point (an earlier County Court decision went the other way).  It is, however, only a first instance decision and its reasoning is somewhat unsatisfactory.  It follows although it is binding authority at County Court and High Court level, there is a real risk that it does not represent the law as the Court of Appeal or Supreme Court might see it.  That makes advising clients rather tricky: the law says the client has a remedy but the law might be wrong!

If faced with a client complaining of work affecting a party wall or of a neighbour carrying out excavations that might be within the 3 and/or 6 metre rules:

1. Establish each party’s property and its value and, as far as possible, the nature and extent of the works. Consider instructing a surveyor and contacting the local planning department.

2. Identify any possible common law causes of action (trespass, nuisance, negligence, interference with easements?) and take instructions as to any adverse impact the work has had or will likely have (photographs and expert evidence)

3. Write to the building owner (the client may try face to face) seeking answers to detailed, specific questions and indicate that silence will likely lead to the issue of proceedings.

4. Sit down and think hard about causes of action.  Ideally you will not run breach of statutory duty alone (see above) but if there is no option ensure the client is fully informed of the risk.

5. If pre-action communication with the neighbour does not bring about suspension of the work pending compliance with the Act, apply for an injunction.  If work progressing and the need for an injunction is considered urgent, give short notice and attend at Court a.s.a.p.

6. Warn the client that costs may be irrecoverable where proceedings (or threatened proceedings) are settled by the neighbour giving an undertaking.