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The Right to Damage Other People's Property in England and Wales by carrying out party wall and foundation works notifiable under the Party Wall etc Act

Based on a Short Article initially written for the Pyramus & Thisbe Club

David A Bowden
February 12, 1996
Revised December 10, 1998

The legislation that is Part VI of the London Building Acts (Amendment) Act, 1939, as amended, (and now the Party Wall etc
Act, 1996,) is a straightforward expropriation of basic property rights in order to facilitate the continued maintenance and
redevelopment of the centre of one of the world's oldest large cities (and now all of England and Wales) and has continued
through several reincarnations over the last century with little variation.

Essentially it takes away the rights in the ownership of a party wall from each of the adjoining owners and gives in return
specific rights over the totality of the wall, and to an extent over the other's land beyond the wall subject only to complying
with certain procedures.

The rights given by the Acts  supercede any common law rights (see footnote (1)), but not agreements between the owners.

Inter alia, the Acts give the right to underpin (2)  a party wall.

This is subject to very few conditions, assuming the procedure (of service of notice, and either written agreement or the
appointment of surveyors and the obtaining of, paying for, and complying with an award, etc) to have been followed. The
conditions, which are mainly for the protection of the adjoining owner during the works, include not causing any unnecessary
inconvenience (3), compensating for any loss or damage (4), and making and maintaining hoardings etc where the adjoining
land or building is laid open.

In the absence of written agreement between the owners, the surveyors have to settle by award any matter in dispute between
the owners (5) arising from the notice, and the award may determine the right to execute and the time and manner of executing
any work and generally any matter arising out of or incidental to the difference (6), now always referred to as a dispute in the
'96 Act. If the surveyors fail to act in the making of an award within the time laid down, then it is open to one or other of
them, or one of the owners, to approach the third surveyor and ask him to make the award. He then has to do so within
fourteen days (7) but with no specific time limit under the '96 Act. Parliament did not intend to allow much delay in the
exercise of these statutory rights. The right of appeal it gave is limited by the Acts (8) and even more so by subsequent
legislation (9).

The surveyors are arbitrators (10) and their function is to administer the provisions of the Acts. They have no right to attempt
to change what the judiciary might think Parliament intended.

The Acts are pretty nasty. They give the right to go onto other people's land (11), moving furniture and fittings and even
breaking in to do so, if necessary, thereby removing a basic human right in property. The mention of inconvenience only
being restricted to the extent that it is unnecessary (12) shows that our dear leaders presumed that inconvenience would be
caused and reduced the adjoining owner's cause of action to just so much of it as is unnecessary, although the '96 Act does
give a right to compensation, but only for loss or damage.

I think there are only two questions, firstly whether knowing that damage would be caused by the underpinning could make
the carrying out of it unnecessarily inconvenient, and secondly whether the need for the underpinning indicated a defect or
want of repair rendering its cost partly the responsibility (13) of the adjoining owner.

This first must be a question of degree, but some minor cracking could hardly be regarded as unnecessarily inconvenient
relative to the greater inconvenience that could be suffered by both owners through inadequate support of their buildings by
the party wall. I suppose the surveyors might need to satisfy themselves as to the necessity of the underpinning, but then I
think they would be entering that grey world ultra vires the Acts, the proper domain of the legal profession.

The second would follow from the facts, which might upset the adjoining owner even more, but it should be remembered that
both owners have the same rights under the Acts, applying as they do to everyone except some royalty and certain other
established entities.

The surveyors would no doubt determine that, within reason, any resultant damage be repaired, and they should take account
of the anticipated damage when determining the manner of the execution of the underpinning, but I do not see that they,
humbly administering the Acts in determining the time and manner of the carrying out of works under them, and perhaps a
little more arrogantly determining the amount of their fees (14), can do anything but facilitate a building owner in his exercise
of the rights given him by the same higher authority that gives us our work.

Under Section 46 of the '39 Act or Section 2 of the '96 Act, a building owner would, therefore, have the right to cause
damage.

However, piling, for the foundations of an independent building, is governed by a whole different set of rules with a
completely different basis to them.

Section 50 of the '39 Act and Section 6 of the '96 Act require that where a building owner proposes to carry out work on his
own land that might affect an adjoining owner's building (by virtue of involving excavation to specified depths within
specified distances), he should first serve notice. In serving a foundation notice the building owner does not claim the right
under whichever Act to do the work, but notifies the adjoining owner of his intent. This gives the adjoining owner the
opportunity of claiming his right under that Act to have (or not have) underpinning or other safeguarding at the building
owner's expense. Under the '96 Act, a dispute will arise by default. The building owner has to send drawings with the notice
and has to state the depth to which he proposes to excavate. This is to assist the adjoining owner in making his decision. It is
only here that a dispute can arise to be settled by appointed surveyors.

No right to do the work is given to the building owner by either Act, although he is given certain rights over the adjoining
land for such ancillary work as erecting scaffoldings, and he is also given the right, after a determination by appointed
surveyors if necessary, to enter the adjoining owner's land to underpin or otherwise safeguard the adjoining owner's building
whether either owner likes it or not.

The only way a building owner could have the right to pile or excavate whilst causing damage would be if the adjoining
owner were unable to stop him either by persuading the surveyors to award that so much underpinning be done as to render
the proposed foundations uneconomic, if such were fair, thereby encouraging an alternative solution, or by obtaining an
injunction restraining the building owner from carrying out the work on the basis that damage would inevitably be caused to
his property. But this would be to accept the law of the jungle, which, although apparently generally acceptable under
international law (15), is not acceptable behaviour in England and Wales.

The adjoining owner has a basic right to support of his land from the building owner's land at common law and as the Act
does not give the right to excavate, it cannot be argued that the building owner has been given the right to cause damage that
might inevitably follow from infringing the right of support.

Whilst the court might agree that the Act anticipates that damage would be caused by works under Section 50 of the '39 Act
and Section 6 of the '96 Act, and makes allowance for it by providing a framework under which an adjoining owner can have
his building strengthened, I do not think it could agree that this would exclude an adjoining owner's basic right to an
injunction to protect his property.

It is, perhaps, interesting that the Acts only refer to an adjoining owner's building or structure, and not to his land. I think this
must be because whilst an adjoining owner has a natural right to support to his land he would, in the natural course of events,
only acquire a right to the support of his building after twenty years (16) and, during this period, unless the excavation work
were carried out without due care, the adjoining owner would have no claim against the building owner (unless, perhaps, he
were the Coal Board) if damage were to be occasioned to his building as a result of the excavation works per se.

Therefore, a building owner can have no right to excavate for piles where the adjoining building is independent, or
independent or other wise under the '96 Act, and would only have the right to do so if he could show that he had the right
under Section 46 of the '39 Act or Section 2 of the '96 Act (underpinning or some such of a party wall).
 
 

Footnotes:

1    Standard Bank of British South Africa v Stokes 1878
2    Section 46 (1) (a) and (e) of the 39 Act, Section 2 (2) (a) of the 96 Act
3    Section 51 (1) of the 39 Act, Section 7 (1) of the 96 Act
4    Section 7 (2) of the 96 Act
5    Section 55 (i) of the 39 Act, Section 10 (12) of the 96 Act
6    Section 55 (k) of the 39 Act, Section 10 (12) of the 96 Act
7    Section 55 (j) of the 39 Act
8    Section 55 (m) of the 39 Act, Section 10 (16) and (17) of the 96 Act
9    Arbitration Act 1950 s31, Supreme Court Act 1981 s18, Arbitration Act 1996 s70
10  Selby v Whitbread & Co 1917
11  Section 53 of the 39 Act, Section 8 of the 96 Act
12  Section 51 (1) of the 39 Act, Section 7 of the 96 Act
13  Section 56 (1) (a) of the 39 Act, Section 11 (4) of the 96 Act
14  This one must be common knowledge
15  United States of America v Col Gaddafi c1986 for example
16  Dalton v Angus 1877-81

©David A Bowden, 1996, 1998, 1999

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Web site first opened November 1997
Last updated June 1999