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What to do when not all the Works are covered by the Act

Sunday, 14th June 2020 | by: Justin Burns

Party wall procedures are built around a sequence laid down in the Act – the proposed work must be a right provided, those works must be formally notified to any affected adjoining owners and if the notices are dissented to, surveyors must be appointed to draw up an award authorising the works.

Occasionally a building owner will desire access to undertake works close to the boundary but that work will not be a right under the Act and therefore the right of access does not apply either. If those works are substantial, such as the demolition of an existing building, a bespoke access licence will generally be the best solution but sometimes the access is to undertake works ancillary to those covered by the Act. It’s that scenario that I wanted to look at in this post. Two common scenrios come to mind.

The first is where the building owner is adding a rear extension but the flank wall is set back slightly from the boundary. This may be to ensure that a gutter does not project over the boundary (having a gutter face an adjoining owner’s property is not generally a great idea due to long term maintenance issues), to allow space for overhanging eaves or due to some misguided notion that it’s ‘neighbourly’ to keep an extension slightly back from the boundary.

If I’m involved in a project at an early stage, I’ll flag this future difficulty when first reviewing the drawings and suggest that the flank wall is moved to the boundary to secure a right of access. However, it’s not unusual to agree and serve award authorising the excavation of foundations close to the boundary but where the wall that’s to be constructed upon those foundations is not covered by the Act as it set back slightly.

Walls can be built over hand but it’s very difficult to point them in that way; especially if it’s a more intricate type of pointing such as weathered and struck. Having access not only benefits the building owner In that the wall of their extension can be properly pointed and therefore weatherproof but also the adjoining owner as it is they that will be looking at the wall in the future. Although access in this scenario is not covered by the Act, I would not want to leave it as a loose end. Although not obliged to do so, it makes sense for the surveyors to assist the owners as they are the ones with the professional experience.

The other scenario is where the steel beams being cut into the party wall as part of a loft conversion are covered by the Act but the construction of the rear dormer, due to being set back slightly from the party wall, is not. Dormers of this type are invariably tiled and with the cheek of the dormer generally ending up close to the boundary to ensure the maximum internal space access over the adjoining owner’s roof will be necessary to apply those tiles. Left to their own devices, the builders will likely just help themselves to access with none of the necessary safeguards in place.

The best way of addressing this is for the surveyors to speak to both owners, explain the scenario and get their agreement in principle. Agreement from the adjoining owner tends to be forthcoming when it is explained that access is only being granted if safeguards such as a security hoarding, protection for paving or the use of a bespoke roof ladder are in place.

What has been agreed can be confirmed in the cover letter or email when serving the party wall award or included within the award itself so long as it’s made clear that these are matters outside of the Act which have been agreed directly between the owners. The current RICS template award actually includes a section where agreements of this type can be recorded.

If you find yourself in this situation or require advice on any party wall matter you are welcome to call us on 020 8546 7211 or contact us via email.