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INTRODUCTION

The Party Wall etc Act 1996 came into effect on 1 September 1997. The new Act imposes on the
whole of England and Wales the party wall procedures which have existed under the London
Building Acts since 1844. It provides building owners with certain rights and obligations in relation
to party walls and similar structures and – importantly - introduces new obligations on anyone
digging an excavation near (can be up to 6 m away, see below) another owner's building.

Notices must be served and procedures followed. There are provisions for compensation, for
rights of entry and for the safeguarding of some existing easements. The Act lays down strict
procedures for the resolution of disputes and it provides for the appointment of a surveyor or
surveyors who have the power to resolve problems.

Appendix A of this TRM contains a document which specialist surveying and design consultancy GIA
have kindly allowed us to reproduce. This provides some further details of the legislation, as well as
issues relating to over-sailing of tower cranes into the air space of an adjoining owner and the
Access to Neighbouring Land Act 1992.

APPLICATION OF THE ACT

The arrangement of sections in the Act is as follows:

Construction and repair of walls on line of junction

Section 1 New building on line of junction
Section 2 Repair etc of party wall: rights of owner
Section 3 Party structure notices
Section 4 Counter notices
Section 5 Disputes arising under sections 3 and 4

Adjacent excavation and construction

Section 6 Adjacent excavation and construction

Rights etc
Section 7 Compensation etc
Section 8 Rights of entry
Section 9 Easements

Resolution of disputes
Section 10 Resolution of disputes

Expenses
Section 11 Expenses
Section 12 Security for expenses
Section 13 Account for work carried out
Section 14 Settlement of account

Miscellaneous
Section 15 Service of notices
Section 16 Offences

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Section 17 Recovery of sums

Section 18 Exception in case of temples etc
Section 19 The Crown
Section 20 Interpretation
Section 21 Other statutory provisions

General
Section 22 Short title, commencement and extent

A building owner may wish to demolish and/or develop the site which may change the height,
depth or load on a party wall. Under Section 7 of the Act, the building owner may exercise a right
to carry out this work but the building owner:

• must not cause any unnecessary inconvenience to an adjoining owner or occupier

• must compensate any adjoining owner or occupier for any loss or damage as a result of work
carried out
• must, with the construction team, design and execute the proposals so that damage is
minimised.

Under the Act, the building owner is required to serve a notice to the adjoining building owner if:

• work is to be carried out on a wall separating premises

• it is intended to build within 3 metres of the adjacent building and to a level lower than the
bottom of the adjacent foundations (three metre notice - see figure 1)
• it is intended to build within 6 metres of the adjacent foundations to a depth defined in the Act
(six metre notice - see figure 2).

The building owner's surveyor should provide details of the works, including strengthening of
foundations, that are proposed in order to safeguard the adjacent buildings.

Figure 1 - Three metre notice diagram

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Figure 2 - Six metre notice diagram

PARTY WALL AWARDS

The Party Wall Award, drawn up by the appointed surveyors, is concerned with defining the
condition of the party wall and the adjacent building(s) prior to commencement of works and
defining the responsibilities of the building owner to the adjoining owner or occupier. This
document is best drawn up by experienced surveyors or building professionals. Surveyors will
test and police the technical proposals made by the building owner’s construction team. The
costs of professional advice and the surveyors’ fees are borne by the building owner.

The process of drawing up a Party Wall Award normally involves:

• Structural survey and assessment

The nature and construction of the party wall must be established before the building owner’s
proposals can proceed. This may require opening up or excavation of trial pits to establish:
− thickness and construction of party wall
− bonding between the party wall and the external and internal walls
− flues within the thickness of the wall
− decay, embedded timbers, fire damage
− partially removed chimney breasts
− bonding of chimney breasts to the party wall
− verticality of the party wall
− connection of the wall to the respective buildings

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− ability of the adjoining owner’s building to restrain the wall if demolition of adjacent
structure is proposed
− depth, projection and construction of footings
− bearing stratum, type and strength
− water-table level
− underground services, tunnels etc
− foundation decay
− whether the foundation can carry extra load

• Submission of proposals to the adjoining owner

Once the nature and condition of the party wall and supporting structures are known, the following
issues can be considered:
− effect of vibrations
− effect of loading/unloading (heave/settlement)
− stability during and after construction
− shoring anchorages and effectiveness
− effect on skin walls, flues, overhangs etc
− weather protection, during and after construction
− damp penetration
− air rights for cranes
− access to adjoining land
− rights of light
− means of escape
− stability of excavations
− rights of support
− method statement.

The adjoining owner’s surveyor may instruct an engineer to check the proposals. T he engineer
would be expected to:
− visit site
− establish how the proposals may affect the party wall or the adjoining owner’s building
− comment on the adequacy of the proposals to minimise damage
− make detailed checks and calculations of the proposals
− visit site during the works to confirm general adherence with the agreed designs and
method statements.

• Preparation of a Schedule of Conditions

A schedule of conditions covering all areas of the building likely to be affected by the proposed
works should be prepared by the building owner’s surveyor and should be submitted to the
adjoining owner for comment/approval.

• Movement monitoring

It may be appropriate to monitor the party wall and adjoining buildings. The building owner’s
surveyor/engineer should submit proposals to the adjoining owner for comment/approval.

• WSP involvement

As building professionals, we will need to ensure that clients, when they are the Building Owner,
are aware of the Act so that its implications can be considered at an early stage in the
commission.

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Fees and expenses incurred by the Adjoining Owner’s advisers are normally defrayed by the
Building Owner, but it is important for amounts to be shown in the Party Wall Award document or
similar written notices/agreement correspondence (this will normally be recognised as evidence in
a Magistrate’s Court).

The implications of Party Wall Works should be carefully described and detailed in the building
contract.

Although a Schedule of Conditions is not required by the Act, it would be unwise to proceed with
the works without such a document in place and also supported by photographs.

• Documentation

There are no special forms to be used under the Act, but suggested models that may be
photocopied and adapted to suit the specific situation are given in The Party Wall Act Explained
published by the Pyramus & Thisbe Club, these include:
− Suggested Letters of Appointment of Surveyors
− Line of Junction Notice
− Party Wall Notice
− Acknowledgement of Party Wall Notice
− Three metre/ six metre notice
− Acknowledgement of three metre/six metre notice.

REFERENCES AND FURTHER READING

The Party Wall etc Act 1996, HMSO (www.hmso.gov.uk/acts.htm)

The Party Wall etc Act 1996 – explanatory booklet, 36 pp, ODPM (free download from
www.odpm.gov.uk/buildingregulations/partywallact)
A readily accessible starting point.

The Party Wall Act Explained, The Pyramus & Thisbe Club (referred to as 'The Green Book').

Party wall legislation and procedure – a guidance note, published by RICS.

Architect's Guide to Job Administration, Party Wall etc Act 1996, published by RIBA.

Engaging an Architect: Guidance for clients on party wall procedures, The Party Wall etc Act
1996, published by RIBA.

KEYWORDS

Building regulations; legislation; party walls.

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Author: unknown, rev 6 reviewed by Tony Ferguson, London

Sponsor: Group Technical Centre

Revision record
11/97 Revision 5.
2/05 Revision 6, additional references.
9/09 Revision 7 Appendix A added.

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Appendix A

WSP Group
The Law of Boundary and Party Walls
The general principle of land ownership in England can be summed up by the statement “Cuius est solum ejus
est usque ad coelum et ad inferos” (whose is the soil, his it is even to Heaven and to the middle of the Earth).

This principle still holds true but is subject to various statutory and particular rights.

The law regarding party walls is now reflected in the form of statutory rights and duties across all of England
and Wales. Up until July 1997 only the London Metropolitan Area had a specific statute relating to party walls,
namely the London Building Acts (Amendment) Act 1939. This has now changed with the enactment of the
Party Wall etc Act 1996.

However the law in relation to boundary walls is not specifically covered in the new Act and it is important to
appreciate the difference between the two types of walls which can therefore exist where land of Adjoining
Owners meet.

Party Wall etc. Act 1996

The Act which provides the legislation concerning party walls in England and Wales is the Party Wall etc Act
1996.

The Act is concerned with the rights and duties of Building and Adjoining Owners in relation to “party walls,
and excavation and construction in proximity to certain buildings or structures; and for connected purposes”.

In Section 20 of the Act, two definitions of a party wall are given. A party wall is either:

a) A wall which forms part of a building and stands on lands of different owners to a greater extent than
the projection of any artificially formed support on which the wall rests.

Or
b) So much of a wall – not being referred to in the foregoing paragraph (a) – as separates buildings
belonging to different owners.

The Act deals mainly with three areas relating to party structures, under three separate sections.

(i) Section 1

The rights of owners of adjoining lands where the junction line has either not been built on or only to
the extent of a boundary wall (eg: garden wall).

(ii) Section 2

The rights of owners of adjoining lands where the line of junction has been built on whether this be a
boundary wall or party wall.

(iii) Section 6

Where excavations are to be undertaken close to the land of an Adjoining Owner and where such
excavations are intended to be extended deeper than the level of the Adjoining Owner’s foundations.

SECTION 1

When considering commercial properties, this will probably be the least commonly used of the three sections.

to:

a) Build de novo a party wall or party fence wall on the boundary line, if so permitted by his neighbour; or, if
forced by the neighbour, to build wholly on his land.

b) Build a wall wholly on his land, but with the face of that wall built up to the junction line.

If in either of these cases the Building Owner is to build on his own land, then after one month’s notice, he can
enter onto the Adjoining Owner’s land where necessary and place footings, projections etc… on that land.

If the Adjoining Owner consents to the erection of a party structure then the wall position and defrayment of
costs is to be determined between the two Owners.
SECTION 2

This section sets out the rights available to owners in relation to party structures and external walls of a
building. It is likely to be the most used of the three sections.

These rights include the right to:

a) Underpin, thicken or raise a party structure, party fence wall or external wall adjacent to a party structure or
party fence wall.

b) Demolish a party structure which is of inappropriate height or strength, subject to the height not being
less than either two metres where the wall is not used by the Adjoining Owner to any greater extent than
a boundary wall or the height currently enclosed upon by the building of an Adjoining Owner.

c) Cut into the party structure.

d) Cut away any projections from the party structure, party fence wall or boundary wall which lies on or over
the land of the Building Owner. Projections could include cornices, chimney breasts, flues, jambs and
footings.

e) Cut away or demolish such parts of a wall or building of an adjoining owner which overhang the Building
Owner’s land, to enable a vertical wall to be raised.

f) Execute any necessary works which may be required as a result of connecting a party structure with the
premises adjoining it.

g) Raise a party fence wall, to use as a party wall or a party fence wall, or demolish a party fence wall and
rebuild it as a party fence wall or as a party wall.

h) Expose a party structure hitherto enclosed, subject to providing adequate weathering.

These rights are given subject to serving a Party Structure Notice upon the relevant Adjoining Owners. This
process is explained below.

PARTY STRUCTURE NOTICES

The provisions for servings Notices upon an Adjoining Owner are set out in Section 3 of the Act. Before
exercising any rights under Section 2 of the Act the Building Owner is required to serve a Notice upon the
Adjoining Owner stating:

(i) Name and address of Building Owner

(ii) Nature and particulars of the proposed work

(iii) Date on which proposed work begins.

The Notice needs to be:

a) Served at least two months before the date on which the proposed work will be done.

b) Effective in two ways. That is:

(i) The work must begin within twelve months from the date of the concluded award
 (ii) The work should be prosecuted with due diligence.

If one or either of these two stipulations are not fulfilled the Notice shall cease to have effect.

Nothing in this section (Section 3) prevents a Building Owner exercising rights under the Section 2 with the
consent in writing from the Adjoining Owner. Where a Party Structure Notice is served the Adjoining Owner
may respond, in writing, serving what is known as a “Counter Notice”.

COUNTER NOTICES

Section 4 of the Act deals with the serving of Counter Notices. A Counter Notice would require the Building
Owner to undertake further or different works to the party structure for the convenience of the Adjoining
Owner. If it is a detailed counter-notice it should specify the works and enclose plans and sections where
appropriate. It needs to be served within one month of the date of the Party Structure Notice. The Building
Owner is required to comply with this counter-notice unless its contents would cause him unnecessary
inconvenience or distress or be otherwise injurious. The defrayment of costs would be agreed between the
two Owners based on the use made by the Adjoining Owner.

DISPUTES RELATING TO SECTIONS 2 AND 3

In accordance with Section 5 of the new Act, if an owner on whom a Party Structure Notices has been served
does not express consent to it within fourteen days, he is deemed by the Act to have dissented from the
Notice. When a counter-notice or a Party Structure Notice is dissented to, then a Difference is deemed to have
arisen. Silence is deemed dissent.

It is this Difference which requires resolution through Agreement, normally in the form of a Party Wall Award.
This is discussed later on in this Document under the heading “Resolution of Disputes”.

SECTION 6

This section is entitled “Adjacent Excavation and Construction”. This section is mainly concerned with the
following situations where, in the words of the Act:

“(1) (a) a Building Owner proposes to excavate for and erect a building or structure, within a distance of
three metres measured horizontally from any part of a building or structure of an adjoining owner;
and

(b) any part of the proposed excavation, building or structure will within those three metres extend to a
lower level than the level of the bottom of the foundations of the building or structure of the
Adjoining Owner.

(2) This section also applies where

(a) a Building Owner proposes to excavate, or excavate for and erect a building or structure, within a
distance of six metres measured horizontally from any part of a building or structure of an adjoining
owner; and

(b) any part of the propose excavation, building or structure will within those six metres meet a plane
drawn downwards in the direction of the excavation, building or structure of the building owner at
an angle of forty-five degrees to the horizontal from the line formed by the intersection of the plane
of the level of the bottom of the foundations of the building or structure of the Adjoining Owner with
the plane of the external wall of the building or structure of the Adjoining Owner.”
The two situations where Notices must be served by a Building Owner are illustrated below:
The Building Owner has the right and can be obliged, under this section of the Act, to underpin, safeguard or
otherwise strengthen the foundations of the Adjoining Owner.

There are certain conditions which must be observed when serving Section 6 Notices:

(i) The Notices must be served, in writing, at least one month before it is intended to carry out
the works to which the Notice relates.

(ii) The Notice must be confirmed whether there is intention to underpin, safeguard or otherwise
strengthen the foundation of the adjoining building.

(iii) The Notice must be accompanied by plans and sections indicating:

a) the site of the building or structure proposed.

b) The site depth to which the proposals are to be excavated.

COUNTER-NOTICES

Within fourteen days after the date of the Section 6 Notice, the Adjoining Owner may serve a form of counter
notice in writing on the Building Owner that either:

• He disputes the necessity of or (as the case may be)

• He requires the underpinning or strengthening or safeguarding of the foundations of his building.

If the Adjoining Owner serves such a Notice, then a Difference is deemed to have arisen. Silence is deemed
dissent.

COMPENSATION

Section 7 of the new Act states that the Building Owner should not cause unnecessary inconvenience to the
Adjoining Owner in exercising his rights.

Furthermore, this section then states:

“The Building Owner shall compensate any Adjoining Owner and any adjoining occupier for any loss or damage
which may result to any of them by reason of any work executed in pursuance of this Act.”

Finally if the Building Owner lays open adjoining land or building he shall “at his own expense make and
maintain so long as may be necessary a proper hoarding, shoring or fans to temporary construction for the
protection of the adjoining land or building and the security of any adjoining occupier.”.

RIGHTS OF ENTRY

Section 8 provides the Building Owner with an absolute right of entry on the terms of sub-section (1) of this
Section:
“A Building Owner, his servants, agents and workmen may during usual working hours enter and remain on any land
or premises for the purpose of executing any work in pursuance of this act and may remove any furniture or fittings or
take any other action necessary for that purpose.”

However, sub-sections 3 and 4 state that Notice must be given to the Adjoining Owner, notice being fourteen
days before access is needed unless there is an emergency.

RESOLUTION OF DISPUTES

It will have been noted that under Sections 1, 3 and 6 that where the Adjoining Owner is not prepared to
consent to the Building Owner’s proposals then, in the words of the Act, a Dispute is deemed to have arisen.

It is the resolution of this Dispute that involves Surveyors.

Where a Dispute is deemed to have arisen either

a) both parties shall concur in the appointment of an “agreed surveyor”, or

b) each party shall appoint their own Surveyor to represent them.

It is uncommon for an “agreed surveyor” to be selected but where it does occur he effectively acts as a single
arbitrator between the two parties.

THE DUTIES OF THE SURVEYORS

The Act states that there are certain duties that the Owners’ Surveyors must fulfil. These duties include those
listed below.

a) The two Surveyors shall select a Third Surveyor. If a Surveyor after ten days Written notice refuses or
neglects to appoint a Third Surveyor, then either party may apply tot he Appointing Officer (ie: in practice,
obtain a selection through the Local Authority) who would then have the authority to appoint a Third
Surveyor.

b) If either of the Surveyors refuses or for ten days after a written request by either party neglects to act, the
Surveyor of the other party may proceed ex-parte and anything that he does after that time will be treated
as if he were an “agreed surveyor”.

c) To settle the Difference by Award. The Award would relate to the basis of the Difference, ie: the Notices
under Section 1, 2 or 6 which, it will be remembered, indicate the nature of the proposals.

The Award document is usually comprised of three parts:

 (i) Cross-covenants between the two Owners, although there will be more given by the Building
Owner to the Adjoining Owner because the former is undertaking the works.

(ii) Schedule of Condition.

(iii) Details of the proposals. These are likely to be in the form of method statements, temporary
works details and drawings on the proposals.

The Award will determine the time and manner of executing the rights given under the Act, and should be
sent to (served on) each party once agreed.

d) The Surveyors’ duty is to the Act, and not to the benefit of their respective Appointing Owners. They do
not have a “client” relationship: their interest lies in justice being served between the two parties and
hence the Act does not refer to the parties of the Surveyors’ “clients”.

RIGHTS AND DUTIES OF APPOINTING OWNERS

The two Appointing Owners (the parties of the Difference) also have rights and duties once the Difference has
arisen.

a) If either party refuses or ten days after a written request by the other party neglects to appoint a Surveyor,
the other party may appoint one on his behalf.

b) Either party or the Appointing Surveyor may apply to the Third Surveyor to make an Award if the two
Appointed Surveyors are in dispute, who will settle the matter by means of an Award.

c) Either of the parties can within fourteen days of the serving of the Award, appeal to the County Court
against its contents.

The County Court can either:

• Modify or rescind the Award as it thinks fit.

• Allow the appeal to be taken to the high Court, subject to the appellant meeting certain financial
obligations if he is unsuccessful.

In practice when each party appoints his surveyor it is usual to also provide the Surveyor with the authority to
action points (a) and (b).
Expenses

There are several sub-sections under Sections 11 and 12 of the Act relating to expenses. It is advisable to read
them carefully when the consideration of costs and their apportionment arises. The Act refers to:

• Defective party structures

• The extent of the use of the party structure

• Laying open party structures

• Monies in lieu of making good

• Special foundations

• Demolition/Rebuilding of party structures

Section 12 specifically refers to “Security for Expenses”. Under this section the Adjoining Owner has the right to
seek monies in advance of work being started by the Building Owner to provide security. There are further
counter-provisions which the Adjoining Owner may have to adhere to if so required by the Building Owner. If
not, the requirement for security shall cease to have effect.

Offences

Section 16 provides for situations which are offences against the Act and are punishable on summary
conviction to a fine. The Act should be read to understand the extent of the offences.

Miscellaneous

Amongst other provisions please also note the following definitions under Section 20 of the Act

(i) “Owner”

This includes:

“(a) a person in receipt of, or entitled to receive, the whole or part of the rents or profits of land;

(b) a person in possession of land, otherwise than as a mortgagee or as a tenant from year to year or for
a lesser term or as a tenant at will;

(c) a purchaser of an interest in land under a contract for purchase or under an agreement for a lease,
otherwise than under an agreement for a tenancy from year to year or for a lesser term”.
(ii) “Building Owner”

This “means an owner of land who is desirous of exercising rights under this Act”.

(iii) “Adjoining Owner” and “Adjoining Occupier”

These “respectively mean any owner and any occupier of land, buildings, storeys or rooms adjoining those of
the building owner and for the purposes only of section 6 within the distances specified in that section.”

These definitions are particularly relevant in determining who can actually serve Notice, who is due the Notice,
who is due the Notice, and how it is served.

Boundary Walls

It was mentioned at the beginning of this Document that two types of wall can divide land and buildings: a
party structure or a boundary wall.

A boundary wall is a wall which does not fall within the two definitions of a party wall. That is, it is a wall wholly
in the ownership or land of one party which is not enclosed upon by the Adjoining Owners.

Boundary walls are not subject to the conditions of the Party Wall etc Act 1996, but neither do they experience
some of the privileges or restrictions given in the Act.

For example, the right exists for both a boundary wall and a party wall to be demolished. The burden placed
on demolishing a party wall is that the right is only given if the wall is of insufficient strength or height and it
must (unless Section 2(m) applies) be rebuilt to at least the same height as it originally stood. A boundary wall
can be permanently demolished with no such restrictions.

Conversely, in relation to party structures, the Act gives rights of access for a Building Owner to enter onto his
neighbour’s land, where necessary, to carry out this work. However it would be trespass, under the Law of Tort
for the owner of a boundary wall to enter onto an Adjoining Owner’s land without the latter’s consent. In
certain circumstances however such access may now be available by virtue of the Access of Neighbouring
Land Act 1992. This is discussed in more detail below.

It will therefore be appreciated that it is important to establish at an early stage that nature of the wall at the
junction between properties.
Schedules of Condition

Whether a proposal involves works under the Party Wall etc Act 1996 or to boundary walls, it is recommended
that a Building Owner or developer arranges for a schedule of condition of those parts of the adjoining
building most likely to be affected, to be recorded.

This is usually undertaken by the Building Owner’s Surveyor and agreed by the Adjoining Owner’s Surveyor, all
at the Building Owner’s expense.

The presence for a schedule of condition, before works start on site, often prevents many disputes from arising,
in relation to claims of damage from an Adjoining Owner.

The schedule records the decorative finish to rooms adjacent to the prospective development site, noting any
existing defects.

Where work is being undertaken under the Act, the two Surveyors usually attach the schedule of condition to
the Party Wall Award. It is then normal procedure to check the schedule against the condition of the adjacent
property on completion of the works.

Access to Neighbouring Land Act 1992

This Act arose as a result of the need for owners of properties to obtain access to their neighbour’s land to
undertake basic preservation works. It was recognised that as consent could be refused, the potential existed
for some adjacent owners to charge an entrance fee or for buildings to decay into disrepair.

Whilst the Act does allow for compensation to be paid to Adjoining Owners, this is normally in circumstances
where the Adjoining Owner is actually inconvenienced as a result of the maintenance works.

The Act only permits access for basic preservation works, and not development.

It does not permit the general oversailing of Tower Cranes (which is considered in the next section) unless
such oversailing is essential for works of basic preservation.

Tower Cranes

This Document began by confirming the basic principle of English Land Law “cuius est solus ejus est usque ad
coelum et ad infernos”.

This statement regarding ownership of land includes all of the air space above a physical plot.

There are certain statutory requirements which override this basic legal concept, such as the Civil Aviation Act,
but there is no Act which permits the oversailing of cranes into the air spaces of an Adjoining Owner, except
where it is essential for preservation (see Access to Neighbouring Land Act 1992).
A developer would therefore be held liable under the Tort of Trespass if he allowed his crane to swing over his
neighbour’s land.

This means that where a development is envisaged two options have to be considered.

a) To avoid cranes overswinging the Adjoining Owner’s land.

b) To approach the Adjoining Owner with a view to obtaining his consent.

It is not always easy, particularly on large developments, to avoid overswinging adjacent land.
One problem is that the jib on tower cranes is required to be free swinging when not in use, thus preventing
the operator from avoiding it oversailing neighbouring land.

If a crane which does not require oversail rights, such as a luffing jib or swan neck is not used the neighbours
consent will have to be sought. If consent is given, this will normally be in the form of a Licence with the
appropriate indemnities.

If the neighbour appreciates the developer’s need to oversail his land, it would not be unusual for some form
of financial considerations to be required in return for the Licence and there is no limit to what can be sought.
This can often take the form of a reciprocal Agreement particularly where commercial premises are involved.