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- Herausgeber: John Wiley & Sons
- Kategorie: Fachliteratur
- Sprache: Englisch
An accessible roadmap to the complexities of party wall disputes
Party Wall Disputes: The Party Wall etc. Act 1996 and Beyond - Legal Coherence and Dispute Management meets the need for a roadmap to the main areas of law and fact relevant to party wall disputes:
- Statutes, including a detailed analysis of the Party Wall etc. Act 1996 and other relevant legislation,
- Property rights, such as rights of way, rights of support, drainage rights and rights linked to easements,
- Torts, such as nuisance related to noise and vibration and breaches of rights to light, and
- Factual matters, such as structural issues.
In addition, this book maps out the available dispute management options under the Party Wall etc. Act 1996, in court as well as alternative dispute resolution methods (arbitration, mediation, medi-arb, expert determination and early neutral evaluation). The result is an invaluable resource for lawyers, party wall surveyors, construction professionals, academics and property owners who encounter or are interested in party wall disputes.
“I can say with confidence that Dr Lintott has done the professions both of the law and of surveying in particular, as well as property owners, a great service in providing something of a stocktake…, where the tectonic plates of title, use of land, statute and common law, easements, planning and construction codes, rights, liabilities and obligations all meet. … She is mindful of the reality that party wall practice is ultimately driven by mutual proprietorial and essentially practical considerations …”
—THE EARL OF LYTTON
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Veröffentlichungsjahr: 2025
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Table of Contents
Cover
Table of Contents
Title Page
Copyright Page
Dedication
About the Author
Foreword
Preface
Glossary of Definitions
1 Introduction
1.1 The Aim of This Book
1.2 Chapter Breakdown
2 What Is a Party Wall?
2.1 Introduction
2.2 Definitions of ‘Party Wall'
2.3 Party Fence Wall
2.4 Party Structures
2.5 Excavations
2.6 Special Foundations
2.7 Conclusion
3 Statutory Rights – Party Wall etc. Act 1996
3.1 History behind the Party Wall etc. Act 1996
3.2 The Purposes of and Main Areas Covered by the Party Wall etc. Act 1996
3.3 Areas of Uncertainty
3.4 Rights and Obligations of the Parties Under the Party Wall etc. Act 1996
77
3.5 Party Wall etc. Act 1996 (Electronic Communication) Order 2016 (SI 2016/335)
3.6 Conclusion
4 Disputes Related To Party Walls
4.1 Introduction
4.2 Notices and the Dispute Resolution Procedure Under the Party Wall etc. Act 1996
4.3 When a Dispute Arises Under the Party Wall etc. Act 1996
4.4 Notice Procedure
4.5 Party Wall Dispute Resolution Procedure Under the Party Wall etc. Act 1996
4.6 Other Forms of Dispute Resolution in the Context of Party Wall Disputes
4.7 Conclusion
5 Other Statutory Rights Relevant To Party Walls
5.1 Introduction
5.2 Access to Neighbouring Land Act 1992
5.3 Boundary Determination and Related Legislation in the Context of Party Walls
5.4 Property Boundaries (Resolution of Disputes) Bill [HL] 2019–2020
5.5 Human Rights Act 1998
5.6 Environmental Protection Act 1990 and Control of Pollution Act 1974
5.7 Crossrail Act 2008, High Speed Rail (London – West Midlands) Act 2017 and High Speed Rail (West Midlands – Crewe) Act 2021
5.8 Conclusion
6 Proprietary Rights in Land – Easements
6.1 Introduction – Easements
6.2 Easements – Right of Way
6.3 Easements – Right of Support
6.4 Easements – Rights to Drainage
6.5 Linked to Easements – Are There Rights or Obligations to Repair a Party Wall?
6.6 Conclusion
7 Torts – Common Law Nuisance
7.1 Introduction
7.2 The Meaning of Common Law Nuisance
7.3 Noise, Including Control of Construction Noise, Sound Proofing and Vibration
7.4 Rights to Light
8 Structural Issues
9 Conclusion
Bibliography
Index
End User License Agreement
List of Illustrations
Chapter 2
Diagram 2.1 Example of types of party walls in a building.
25
Diagram 2.2 Type A Wall forming part of one building.
28
Diagram 2.3 Type A Wall forming part of two buildings.
29
Diagram 2.4 Type B Wall.
30
Diagram 2.5 Party fence wall (Part 1).
38
Diagram 2.6 Party fence wall (Part 2).
39
Diagram 2.7 Party structures.
42
Diagram 2.8 Excavation – three metres from adjoining owner’s structure.
43
Diagram 2.9 Excavation – six metres from adjoining owner’s structure.
44
Chapter 4
Diagram 4.10 Party wall notices mechanism for building owners.
Diagram 4.11 Party wall notices mechanism for adjoining owners.
Chapter 5
Diagram 5.1
Burlington Property Co Ltd v Odeon Theatres Ltd
.
276
Chapter 6
Diagram 6.1
Marchant v Capital & Counties
.
Diagram 6.2
Ray v Fairway Motors (Barnstable)
.
Diagram 6.3
Barry v Minturn
.
418
Chapter 7
Diagram 7.1 Sets of tests in flats with a separating floor and party wall.
47
...
Diagram 7.2 Sets of tests in flats with separating floors.
479
Diagram 7.3 Sets of tests in dwelling‐houses with party walls but no separat...
Diagram 7.4
Matania v National Provincial Bank Ltd
.
491
Diagram 7.5
Video London Sound Studios Ltd v Asticus (GMS) Ltd and Keltbray
...
Diagram 7.6
Weston v Arnold
.
565
Chapter 8
Diagram 8.1 New structure cantilevered fully over a party wall.
584
Diagram 8.2 New structure cantilevered over party wall, up to boundary line.
Diagram 8.3
Hughes v Percival
.
591
Guide
Cover Page
Table of Contents
Title Page
Copyright Page
Dedication
About the Author
Foreword
Preface
Glossary of Definitions
Begin Reading
Index
WILEY END USER LICENSE AGREEMENT
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Party Wall Disputes: The Party Wall etc. Act 1996 and Beyond
Legal Coherence and Dispute Management
Dr Laura Lintott, LLM PLP (BPP), MA (Oxon), PhD (Cantab), FCIArb
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Library of Congress Cataloging‐in‐Publication Data Applied forHardback ISBN: 9781394274963
Cover design by Dr Laura Lintott FCIArb and image by Alexander Lintott
Dedication
With thanks to those set out below for their comments, time, insights and inspirational and tireless support.
My Family;
Professor Martin Dixon KC (Hon), MA (Oxon), PhD (Cantab), FAcSS, Honorary Bencher of Lincoln's Inn, for his kind guidance throughout my PhD time and thereafter;
The Earl of Lytton for his open‐mindedness and kind thirst for discussion;
Professor Renato Nazzini for his support and kind counsel;
Nicholas Isaac KC for his kind wisdom;
Tom Owen KC, MA (Cantab), for his friendship, gentle humanity and wit;
Dr David Sawtell, MA (Cantab), MPhil (Cantab), MSc (KCL), PhD (Cantab), FCIArb, for reaching out when he did;
Dr Paul Sayer for his warm patience and guidance;
HHJ David Grant for his patience and approachability;
Dr Alexander Wray for his sharp eye and friendship;
As well a number of party wall surveyors, lawyers and friends.
The copyright of this book rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This book may not be reproduced without the prior written consent of the author.
Any quotations, diagrams and illustrations from other works referred to in this book are accompanied by full acknowledgements. Should any book or article be published based on this book by its author, copyright permissions will need to be sought where relevant.
Disclaimer: Any information provided in this book is informal only and is not binding on any person. You may therefore wish to seek your own legal advice on the matter. Any references to the law are up to 29 February 2024.
About the Author
Dr Laura Lintott, LLM PLP (BPP), MA (Oxon), PhD (Cantab), FCIArb is a Solicitor Advocate and International Arbitrator in London. She has extensive experience leading on complex international and domestic construction disputes. Laura is a Fellow of the Chartered Institute of Arbitrators and Visiting Fellow at King’s College London where she joined the Centre of Construction Law & Dispute Resolution’s Taskforce, which responded to the Law Commission’s two consultations regarding Arbitration Act 1996 reforms reflected in the Arbitration Bill noted in the King’s Speech in 2024. The Arbitration Act 2025 then received Royal Assent on 24 February 2025. Laura contributed a chapter to the book The History of the Technology and Construction Court on its 150th Anniversary, edited by Sir Peter Coulson and Dr David Sawtell. She is a frequent panellist/(podcast) speaker and publishes regularly in numerous journals and periodicals.
Foreword
Party wall practice and procedure occupies a complex niche in the spectrum of professional practice. Born of necessity after the Great Fire of London in 1666, it had become a tool of regulatory control by 1939 as part of the London Building Act. Part regulation to ensure best practice, part an ordering of ownership rights in areas of common interest and use, it incorporates notions of construction technology, an understanding of boundaries and their importance and resolution of disputes under a statutory umbrella.
And it was the transition from the local London Acts to a nationally applicable statutory process in which it was my great privilege to have a hand in. Translation from local metropolitan to national application was not entirely straightforward, not least because the conventions, assumptions and circumstances moved from a well‐understood and to some extent standardised Inner London environment, to a far wider geographical area in which all manner of different situations might arise. Notable lacunae were a better definition of ‘surveyor’ and the loss of a sanction for failing to serve a notice before embarking on notifiable works, issues that remain for a future reform.
Coming to the matter as I do with the scars of parliamentary debate and procedure that accompanied my efforts to take the then Party Wall Etc Bill through its stages in the House of Lords where it began its passage, I must firstly pay tribute to those expert practitioners on whose shoulders I stood and most particularly those of the late John Anstey FRICS. Among parliamentary colleagues, the Earl of Kinnoull, Lord Dubs, Paul Beresford and Paul Everall deserve particular mention here.
But here and now in what I am certain will become a seminal treatise on the subject of party wall legislation and procedure it gives me great pleasure to preface the remarks of a legal expert in this area. Some 28 years after the Party Wall etc. Act 1996 came into force, it is indeed time for a review – a retrospective on what has happened since and forward thinking on where things might go from here.
Although I would never count myself as an expert on party walls, I can say with confidence that Dr Lintott has done the professions both of the law and of surveying in particular, as well as property owners, a great service in providing something of a stocktake, taking us to the heart of what ownership means in legal and practical terms, setting out the inevitable brokerage that professionals need to engage where the tectonic plates of title, use of land, statute and common law, easements, planning and construction codes, rights, liabilities and obligations all meet. In all of this the practicalities of give and take, essential where there are common (and potentially conflicting) interests with shared usage of physical features and defined proximity to neighbours, are not lost. In our increasingly densely developed built environments this continues to underpin one of the slickest and securest of property markets in the world. In terms of global competition and attraction this matters hugely to our national wealth and to the rules‐based system. Dr Lintott’s book is a very useful consolidation of matters of law, fact and dispute resolution options relevant to party wall disputes.
She is mindful of the reality that party wall practice is ultimately driven by mutual proprietorial and essentially practical considerations, by function of walls and other party structures, and within defined proximity, the effects on neighbours she points out that it relies hugely on the broader knowledge and competence of professionals and their assessment of practical implications of a building owner’s proposed works and the logical means of resolving any differences that arise. Further she highlights that fomenting differences where they do not need to arise, failure to offer viable workarounds where these exist and standing on principle rather than on best and most cost‐efficient practical outcomes are matters every professional should strive to avoid. She also appreciates the fundamentally facilitative nature of party wall procedures and practice and the importance of the informal tribunal created under the dispute resolution procedures of s.10.
Of course, there are many areas where party wall services could be improved: the definition of ‘Surveyor’ for instance; better and more specific training and possibly accreditation of practitioners and, as Dr Lintott suggests, express dispute avoidance provisions, and for lawyers, a more focussed and dedicated area of legal practice drawing together the many threads she identifies.
From my observation, it is fair to say that from the earliest days of its parliamentary process, there have been attacks on the fundamental premise, philosophy and process as represented by the Party Wall etc. Act 1996 and arguably of all its antecedent processes and precedents under the London Building Acts; some legal views held the Party Wall etc. Act 1996 to be offensive to the concept of title, that matters touching and concerning this core tenet of property ownership might be left to ‘mere’ surveyors – and these without any requirement for relevant knowledge and training at that! It was observed that appointed surveyors do not have any regulated functions in this respect though of course prior to 1997 scores of practitioners had decades of highly successful party wall practice behind them. On the other side were loft conversion and other specialist construction concerns which objected to the very idea that property owners might not have absolute and unfettered rights to do what they liked within the confines of their own property.
It may be that this consideration led to HS2 legislation dis‐applying significant parts of the Party Wall etc. Act 1996 but seemingly the intention to reduce bureaucracy in public infrastructure schemes was also attended by a fundamental misunderstanding of what party wall procedure actually entailed.
Dr. Lintott ends by suggesting that a more focussed and integrated approach to the various interactions is now necessary; as one of those one time general practice surveyors who definitely learned much about party walls ‘on the hoof’ but having had a broad spectrum of property practice and experience, I can attest to the risks that a too narrow focus in professional expertise is indeed the potential enemy of something as interactive as party wall practice.
John Anstey was a wonderful raconteur of odd‐ball situations he had encountered in professional practice, including the occasion when during foundation work, the neighbour’s basement kitchen was inadvertently filled with fast setting concrete slurry! Fortunately, the surveying profession has risen to the challenge with some outstanding professionals in the field, many of whom recognise that accreditation is the way forward to secure public confidence, consistency of service and effective delivery.
In all this, practitioners would be wise to study carefully this timely reminder of just how many allied moving parts may be involved on the fringes of party wall practice which the Pyramus and Thisbe Learned Society and the Faculty of Party Wall Surveyors have been at pains to promote and reinforce. But ultimately it remains the case that the procedures under the Party Wall etc. Act 1996 are very narrowly defined so knowledge of scope and limitations and of the other areas the unwary practitioner might inadvertently stray into should at very least provide a timely route map to navigating the minefield.
January 2024The Earl of Lytton
Preface
Throughout my career, I have worked as a construction disputes solicitor in private practice, which encompasses a rich mix of international arbitration, domestic litigation, mediation, expert determination and importantly advisory work to achieve dispute prevention, mitigation or settlement. In parallel, I wrote my PhD Thesis at the University of Cambridge (where I also took on teaching responsibilities), which formed the basis of this book. Additionally, I became a Visiting Lecturer and subsequently a Visiting Fellow at King’s College London, where I am active at the time of writing this book. I teach on the MSc Construction Law and Dispute Resolution course, while working as a Solicitor Advocate and International Arbitrator in London. I also joined the Centre of Construction Law & Dispute Resolution’s Taskforce, which responded to the Law Commission’s two consultations regarding Arbitration Act 1996 reforms reflected in the Arbitration Bill noted in the King’s Speech in 2024. The Arbitration Act 2025 then received Royal Assent on 24 February 2025. In 2024, I became a Fellow of the Chartered Institute of Arbitrators.
Over the years, both in my professional and private life, I have witnessed clients and friends experiencing adversity linked to party walls, with potential or actual related disputes arising out of these. Helping to mitigate such disputes has been a very rewarding experience and the aim of this book is to share with others the results of my PhD research and experience in this area.
Party wall disputes can escalate quickly. Once such a dispute starts, it is rare for the parties thereafter to be able to live harmoniously next to each other, especially after a court decision is served. This book therefore sets out a range of legal and factual issues, including and going beyond the Party Wall etc. Act 1996 (PWA 1996), to consider before and during a party wall dispute, including dispute resolution avenues that are available to the parties. These include the notice mechanism under the PWA 1996. They also include alternative dispute resolution methods in situations where: (i) the building owner fails to serve an appropriate party wall notice before starting the relevant works, as the PWA 1996 will not apply and the parties will need to go to court if a dispute arises; (ii) the building owner does serve the relevant notice under the PWA 1996, but the party wall award is appealed, and the parties end up in court as a result; or (iii) the building owner and adjoining owner enter into a contract choosing an alternative dispute resolution method to use should a dispute arise – if a dispute is settled, there is no dispute to apply the notice mechanism to under the PWA 1996 (you will see the relevant case law on this specific point in Chapter IV explaining why/how such an agreement can come about and what its effects are). In such situations, to save money, time and emotion, parties can avoid going to court or stop court proceedings by agreeing to pursue an alternative dispute resolution avenue such as settlement negotiation discussions between the parties (with or without lawyers), early neutral evaluation, mediation, medi‐arb, arbitration, adjudication or expert determination.
As a disputes lawyer, I have seen how negative emotion can lead to the destruction of oneself and of others. On a more positive note, I have also witnessed how the conscious decision to collaborate, empathise with the other side and look beyond the immediate goals and emotions to reach a compromise can salvage seemingly unsolvable situations. Where there is a will, there is a way. It sometimes takes one person to turn things around, be it the legal representative, party wall surveyor or one of the parties or experts. That one person with a calm and positive attitude and openness to new solutions often has the power to motivate others to pause and think how to bring a gloomy dispute to an end, where everyone can feel like they have gained something. Let us all be that person.
Working in private practice alongside my academic and teaching endeavours has taught me to question long‐established rules and principles, discuss and collaboratively challenge current practices with the intention of encouraging progress. Most things should be questioned from time to time, to enable practices to develop and improve outcomes.
Collaborative dialogue can speed up progress while instilling joy into people’s lives. Prejudice, conscious and unconscious bias, fear of the unknown, personal interest and also fatigue all stand in the way of experiencing progress in a collaborative, exciting and accelerated manner. Everyone has a choice to listen and respectfully respond, support or try something else of their own. Success can grow exponentially through meaningful collaboration. Improvement is a never‐ending process and should be encouraged. Attempts at improvement may not always be perfect but without such attempts, there is no progress. The main thing is to keep on trying.
Working on this book has motivated me to collaborate with lawyers, party wall surveyors, academics and friends, to ask questions, reflect on some current set views and procedures and seek new helpful approaches. I have been fortunate to meet enlightened lawyers and party wall surveyors with brilliant insights and open minds. I do not have all the answers; therefore, I would like to encourage readers of this book to continue going with time and keep developing solutions that can help those in difficult situations prevent, mitigate, settle or manage any party wall disputes they find themselves in.
The evolution of the law cannot be stopped. It is fascinating to watch its transformations and rewarding to be part of the process when it takes positive turns. This book recognises the importance and value that both lawyers and party wall surveyors bring to the table and embraces cooperation between the two professions which is in the best interest of the clients who need their help.
This book also emphasises the need to think contextually, to take into consideration areas of law and fact that go well beyond the PWA 1996, in order to be well informed and to choose a path forward that may not have been apparent at first glance. Knowing when to stop escalating a dispute that is disadvantageous from commercial, emotional and time perspectives for either/any of the parties involved is a true skill and is not easy when embroiled in a dispute. This is where third parties can help (lawyers, party wall surveyors, mediators etc.).
This book does not replace the need to consult a lawyer. If you are reading this book as someone who is facing a party wall dispute, I encourage you to seek legal advice in good time, which may prevent having to spend much more substantial sums later down the line.
I do hope you will enjoy reading this book and that it will give you some comfort should you be facing a party wall dispute yourself. I also hope this book will spark more curiosity in this highly relevant area of law. Most importantly, I wish you all the success in preventing or amicably resolving party wall disputes, be it in your private or professional life.
The electronic version of this book will feature colour diagrams.
All the best!
Dr Laura Lintott, LLM PLP (BPP), MA (Oxon), PhD (Cantab), FCIArb
Glossary of Definitions
1939 Act
London Building Act 1930 and London Building Acts (Amendment) Act 1939, together
39HP
39 Headfort Place, London SW1X 7DE (
Wellington Properties Limited v The Trustees of the Will of the Second Duke of Westminster, Grosvenor Estate Belgravia
) [2018] EWHC 3048 (Ch)
ADR
Alternative dispute resolution
ANLA 1992
Access to Neighbouring Land Act 1992
Approved Document E
Guidance issued by the Secretary of State for the purposes of giving practical advice as to the requirements of Schedule 1 to, and Regulation 7 of, the Building Regulations 2010 (SI 2010/2214) for England and Wales (HM Government, ‘Resistance to the passage of sound – Approved Document E’ (2003 edn incorporating 2004, 2010, 2013 and 2015 amendments))
Bill
Property Boundaries (Resolution of Disputes) Bill [HL] 2019‐20
BRE
Building Research Establishment
BRE Guide
Building Research Establishment guidelines
Building Regulations
Building Regulations 2010 (SI 2010/2214)
Convention
European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, Rome, 4 November 1950)
COPA 1974
Control of Pollution Act 1974
CPR
Civil Procedure Rules (The White Book Service 2024 (Sweet & Maxwell, 2024))
DCLG
The Department for Communities and Local Governments
DCLG's Explanatory Booklet
DCLG’s explanatory booklet (with the latest version from May 2016) on the PWA 1996,
https://www.gov.uk/government/publications/preventing‐and‐resolving‐disputes‐in‐relation‐to‐party‐walls/the‐party‐wall‐etc‐act‐1996‐explanatory‐booklet
EPA 1990
Environmental Protection Act 1990
First Protocol
First Protocol to the Convention
FPMA 1774
Fires Prevention (Metropolis) Act 1774
HHJ
His or Her Honour Judge
HRA 1998
Human Rights Act 1998
HS2 Legislation
High Speed Rail (London – West Midlands) Act 2017 and High Speed Rail (West Midlands – Crewe) Act 2021
LRR 2003
Land Registration Rules 2003/1417
LRA 2002
Land Registration Act 2002
LPA 1925
Law of Property Act 1925
Order
Party Wall etc. Act 1996 (Electronic Communication) Order 2016 (SI 2016/335)
PA 1832
Prescription Act 1832
Protocol
A protocol issued by senior members of the legal and surveying professions, in connection with disputes between neighbours and the location of boundaries between their respective land (S Tozer, G Fetherstonhaugh QC, J Karas QC, N Cheffings and M Ditchburn, ‘Protocol for disputes between neighbours about the location of their boundary (The Boundary Disputes Protocol)’ (2017),
https://www.propertyprotocols.co.uk/the‐boundary‐disputes‐protocol
)
PWA 1996
Party Walls etc. Act 1996
RICS
Royal Institute of Chartered Surveyors
VSC
Vertical Sky Component
WP
Without prejudice
WPSATC
Without prejudice save as to costs
1Introduction
1.1 The Aim of This Book
Party walls are like salt. Many of us may not be consciously thinking about them, but most of us are affected by them. This book is meant to be a connecting point for members of the public, party wall surveyors, lawyers, academics and anyone interested or involved in party wall disputes. The aim is a collaborative approach with one goal in mind – to help parties in party wall disputes save emotion, time and money.
Party walls affect most of those who live in residential buildings, work in commercial buildings and/or manage commercial properties. Party wall disputes can be unnecessarily costly (e.g. performing unapproved works, having to tear a wall down, expenses linked to litigation, etc.) and time‐consuming due to the lack of a clear structure on how to deal with them and a lack of awareness of which areas of law and fact are relevant to them as the Party Wall etc. Act 1996 (PWA 1996) is only one piece of the puzzle. This can result in a negative impact on individuals, families and companies, causing them emotional and financial hardship, particularly where parties have been neighbouring landowners for decades and where breakdown of their relationship can leave one or both parties with no other choice but to sell their respective properties (possibly at a lower than market rate to expedite the sale). Where party wall disputes end up in court, this is often unnecessary and places a burden on the court system.
In an ideal world, parties to party wall disputes would adhere to the statutory provisions of the PWA 1996 whereby the building owner serves the appropriate party wall notice before starting any works affecting the adjoining owner in scope of the PWA 1996. This ensures that both the building owner and the adjoining owner can enjoy the rights conferred by the PWA 1996. The advantage is then that the parties can benefit from one of the main purposes of the PWA 1996, namely resolving their party wall dispute under the PWA 1996 outside of court. Should a dispute arise, parties would appoint a party wall surveyor(s) to render an award, hopefully resolving such a dispute. While such an award can be appealed in court, parties still have the option to agree to try and negotiate a settlement by way of alternative dispute resolution (ADR), for example through mediation. In such a case, parties would agree to suspend court proceedings, and if they agree on a settlement, court proceedings can be formally brought to an end. However, the option of ADR is open at any point in time, prior to as well as during court proceedings. The parties even have the possibility by agreement to ensure that the dispute resolution procedure in Section 10 of the PWA 1996 is not engaged and pursue a form of ADR instead of the mechanism prescribed under the PWA 1996.1 However, this is not always appropriate, and parties should consider seeking impartial advice from lawyers as well as party wall surveyors prior to taking such a step.
Where the building owner fails to serve an appropriate party wall notice, the PWA 1996 will not apply. This is where again ADR, as an alternative to litigation, is a desirable way forward, as it can preserve or repair relationships between landowners who are in party wall disputes, who are by definition literal next‐door neighbours, and save the parties’ time and money. Party wall disputes tend to be particularly painful and can often be disproportionately expensive because feelings can run so high. Agreement is therefore to be encouraged, for example, with the assistance of a party wall surveyor, mediator or adjudicator. There is a repetitive pattern of how party wall disputes can arise, how they may be mismanaged by not complying with the relevant legislation and failing to seek guidance from surveyors and lawyers – resulting in a negative impact on people’s wellbeing and lives. The repetitive pattern of party wall disputes, however, gives rise to a solution – systematisation of recurrent issues and recognition of warning signs prior to disputes arising. This in turn gives rise to the potential for dispute prevention if well managed and the provision of a selection of potential dispute resolution solutions.
The purpose of this book is to take a holistic view of party wall matters. The aim is therefore to not only analyse the PWA 1996 but also look far beyond it – to bring together those areas of law and fact that are most relevant to, and frequently encountered in, party wall disputes; provide a more comprehensive understanding of party wall disputes; and help resolve such disputes in a practical and effective way.
This book analyses points of friction between owners or occupiers of neighbouring properties linked by party walls. At first glance, issues connected to party walls would seem to be regulated by the PWA 1996. While the PWA 1996 focuses on party walls and attempts to provide a notice dispute resolution mechanism in relation to disputes arising out of them, it is very narrow in its scope and does not consider crucial areas of law and fact. It also is not helpful where the building owner fails to trigger the notice dispute management mechanism created by the PWA 1996 (statutory breach). Additionally, the PWA 1996 does not compel parties to consider the range of other available out‐of‐court dispute resolution mechanisms, which are further discussed in this book, which provide cost‐ and time‐efficient alternative avenues for disputants. ADR is supported by courts.
Having said that, the PWA 1996 does contribute with some positives, including the unification of previous legislation now applied nationwide and, in particular, the notice dispute resolution mechanism for the parties to attempt to resolve disputes out of court. This addresses disputes where an adjoining owner explicitly does not agree with the building owner’s proposed works or does not respond to a notice by the building owner relating to such works, or where the building owner does not respond to the adjoining owner’s counter‐notice. The surveyor’s award then focuses on works that fall under the PWA 1996. The award does not, however, go beyond the PWA 1996. Effective use of the PWA 1996 can be achieved only if done in the context of other legal and factual areas and with the right collaborative guidance from party wall surveyors (within their PWA 1996 jurisdiction) and legal professionals.
One of the main issues is that there is a need for a contextual approach, which is rarely undertaken, that recognises the multifaceted nature of party wall disputes. The dispute resolution process dealing with the layered and sometimes intertwined areas of law and fact behind party wall disputes can be highly contentious, if not acrimonious. Courts are unnecessarily burdened with party wall disputes that could and should be resolved out of court.
Another issue is that a layperson may conclude that, in applying the PWA 1996 themselves, the PWA 1996 will provide a sensible and safe guidance for the party to deal with a party wall dispute on their own, without consulting a legal professional. Unfortunately, this is a misleading impression that the PWA 1996 can create, which can lead to a situation detrimental to the parties trying to solve party wall disputes on their own rather than referring to legal specialists in this area (however, there are not many party wall specialists available on the legal services market at the time of writing this book) and by failing to consider points of law and fact crucial to their dispute. In addition, the profession of party wall surveyors is not regulated, which means that there can be a great spectrum in terms of quality of any party wall award under the PWA 1996. Keep in mind that party wall disputes can be affected by issues outside the scope of the PWA 1996 (and therefore outside of a party wall surveyor’s jurisdiction). Therefore, advice from both a party wall surveyor and lawyer is something parties should consider. The party wall surveyor can render an award under the PWA 1996 if appointed to do so. However, a legal specialist can advise on the PWA 1996 as well as further issues, which are discussed in this book (such as other pieces of legislation, tortious matters or proprietary rights – and how these areas coexist with the PWA 1996), how to appeal an award in court, and which form of ADR is appropriate in any given case and strategically when. Party wall surveyors should explain the limitations of their jurisdiction to the parties. Ideally, party wall surveyors and lawyers will assist the parties, in spirit of collaboration between the two professions, to reach an amicable solution between the disputants.
A fascinating aspect of the PWA 1996 is that it was introduced as a Private Member’s Bill in the House of Lords by the Earl of Lytton. Considering that Private Member’s Bills seldom materialise into actual legislation, this is a substantial achievement. This book therefore also explores how and why sufficient parliamentary time was found for the measure to pass into law.
As noted above, party wall disputes often touch on other areas of statute law that can impact each other (for example, the Access to Neighbouring Land Act 1992, the Land Registration Act 2002 or the Human Rights Act 1998), property rights (such as rights of way, rights of support, drainage rights or rights linked to easements) and tort (such as nuisance related to noise and vibration, or breaches of rights to light). In addition to areas of law, there are factual matters that also need to be considered in the context of party wall disputes and include structural issues (such as cracks in party walls, subsidence, underpinning, thickening, raising, repairing, cutting into a party wall, increasing or decreasing its height, exposing a party wall or demolishing it and fully rebuilding it).
There is a need for a new approach to party wall disputes, as they should no longer be viewed as peripheral issues linked to property, construction or commercial disputes and projects. There is a lack of a specialism primarily focusing on party wall disputes as a valid and complex legal area of its own merit. Party wall disputes require a multifaceted approach.
As the range of issues linked to party walls and related dispute management is currently fragmented, there is a necessity to connect the different areas of law and fact related to party walls, analyse how and why they are relevant and determine how disputes emanating out of them can be better managed, ensuring that relevant legal principles are assessed and adhered to, giving clarity to courts and relevant parties. Providing such clarity and mapping out the area of party wall matters, bringing in different elements of the law and fact, means creating a separate party wall discipline of its own, which is one of the aims of this book.
This book also presents dispute management and resolution options, including a strategy analysis to be applied prior to a dispute arising, as well as settlement negotiation, surveyor’s award, mediation, expert determination, litigation, etc. This book advocates for a pragmatic cost‐ and time‐effective dispute resolution approach, out of court where possible (considering the common disproportionality between the value in dispute and costs/time connected to litigation in party wall disputes).
The new approach in this book calls for a reform of the party wall dispute resolution system. By setting out links between different legal areas as well as factual issues, it becomes possible to systematise issues surrounding party walls so that they become predictable and therefore more manageable. This in turn results in greater efficiency and effectiveness in party wall dispute prevention, management and resolution. This book provides different perspectives when it comes to party wall disputes and, in some cases, even offers a choice of which areas of law/issues to prioritise to achieve a more favourable dispute outcome.
Parties do not always have to resort to court proceedings if they are not happy with an award under the PWA 1996 or circumstances linked to other areas of law and can try other options to address the dispute. Chapter IV on dispute resolution analyses dispute management under the PWA 1996 but also practical aspects of party wall disputes and other dispute resolution avenues (ADR). It gives solutions and options as to how parties can resolve party wall disputes outside of court. Factors reflected include awareness of and sensitivity towards relationships between neighbours, and the time and cost involved in party wall disputes, which are all valid considerations for parties to party wall disputes when deciding how to manage and address such disputes.
Although the complexity of party wall disputes is addressed in this book, the simple and most common reason as to why party wall disputes arise is often the basic right, need and emotion behind preserving the landowner's or occupier's territory and to not negatively impact on the adjoining land.
As noted above, the purpose of this book is to carve out a distinct party wall discipline of its own, a subcategory of neighbourly matters. This is to offer coherence, providing an overview of a range of factors that need to be taken into consideration when it comes to party wall disputes. It is to serve as an inspiration to investigate alternative methods of dispute resolution to preserve neighbourly relationships and save cost and time.
Some of the case law discussed in this book predates the PWA 1996. This is because the PWA 1996 reflects its legislative predecessors, with only a few significant changes, as the main aim was to extend the legislative application to the whole of England and Wales. The case law preceding the PWA 1996 assists in giving a fuller context/picture of the area of party walls when touching on other areas of law and/or interpretation of the PWA 1996. Case law predating when the PWA 1996 was enacted also provides a rich spectrum of examples showing how the law around party walls has developed.
The forerunner of the Party Wall Act 1996 was the London Building (Amendment) Act 1939. Between s.46 and s.56, the 1939 Act contained detailed provisions whereby a building owner who wanted to carry out works in or around a party structure was obliged to give notice in writing, and thereafter any differences between the owners would be resolved in the first instance either by one surveyor, or by a surveyor appointed by each party and a third surveyor. The 1939 Act was considered to have worked well in London, and eventually it was decided to extend the regime across the country. Hence the Party Wall Act, which mirrors the essential features of the 1939 Act (although some of its provisions are different).2
1.2 Chapter Breakdown
The book is divided into chapters ranging from an introduction to the topic, through identifying the issues linked to party walls and grouping them by relevant type of law and fact, to dispute resolution and management options. The analysis sets out the topic of party walls and focuses on the immediate issues emanating from party wall disputes. It investigates dispute management and resolution options. It shows the wide spectrum of legal and factual issues surrounding party walls and the appropriate dispute resolution management, avenues, process and solutions.
Chapter I is an introduction to the book, formulating a party wall area of its own, providing a systematisation of most pertinent issues and assisting in efficient and effective party wall dispute resolution. It explains how this book is connecting different areas of law and fact related to party wall disputes. It shows how it aims to help members of the public to save money and time in such disputes by strategic preparation and planning leading to early settlement. The introduction sets out the benefits of this book to a) practitioners by explaining the need to look beyond and above one specific area of law/fact and the importance of contextual thinking; b) academics by uncovering an independent new multifaceted area of party walls and related disputes; and c) the public, by suggesting where to get the right information and advice from to pragmatically prevent or solve party wall disputes (and not to be misled by considering the PWA 1996 as the only legislation to refer to).
Chapter II sets out what party walls are in the first place in connection with different pieces of legislation and case law. It also discusses the way in which the PWA 1996 distinguishes between party walls, party fence walls and party structures, as well as the main types of party walls. This is illustrated with examples from the Department for Communities and Local Government, ‘Party Wall etc. Act 1996: Explanatory Booklet’3 that was produced to assist with interpreting the PWA 1996. The chapter also touches on excavations and special foundations.
Chapter III deals with the PWA 1996. It focuses only on issues linked to party walls to the extent to which the limited framework provided by the PWA 1996 applies. It gives a historical overview of the legislative developments leading to the inception of the PWA 1996 and explains the main areas covered by the PWA 1996 as well as rights and obligations of the parties connected to party walls.
Chapter IV analyses the different dispute resolution avenues that are most relevant to party walls. It explains the notice dispute resolution mechanism in relation to party wall disputes under the PWA 1996. Then the chapter proceeds to analyse additional forms of dispute resolution as to party walls that are available to parties. The chapter also discusses the strategy behind the decision‐making process as to which dispute resolution avenue is necessary or possible and approaches that parties to party wall disputes may find most beneficial in the context of their circumstances in terms of emotion, cost and time. The aim is to show what options are available to those affected by current and/or potential disputes arising out of issues linked to party walls.
Chapter V looks at other areas of statute law that had or have an active interface with the PWA 1996. This includes the Access to Neighbouring Land Act 1992 (ANLA 1992). The ANLA 1992 is relevant to this book as it gives limited right of access to a neighbour’s land to carry out ‘basic preservation works’. The question is whether this is relevant to party walls. Prior to the ANLA 1992 having been passed, adjoining property owners had virtually no right to go onto their neighbour’s land unless an express easement had been granted, such as a right to maintain drains, pipes and wires. The ANLA 1992 is therefore discussed in this book as well, and whether it dovetails with the PWA 1996.
In connection with this, practical considerations are analysed that are relevant to party walls, such as scaffolding and crane oversail and their potential interactions with party walls.
The Land Registration Act 2002 in the context of boundary determination is also discussed. The chapter explains what this involves, what the general boundaries rule is and the rules for fixing boundaries under the two Land Registration Acts. In addition, in the context of boundary determination, Chapter V explains what role the Law of Property Act 1925 plays. Tangible case law examples are used to show the connection between the aforementioned issues and party walls.
The chapter analyses the Property Boundaries (Resolution of Disputes) Bill (Bill). While there is no certainty that the Bill will progress through Parliament, it is still relevant to this book as the Bill aims to set out a clear dispute resolution structure in relation to the location or placement of boundaries and private rights of way regarding an estate in land title without having to go to court. It is a piece of legislation modelled on the PWA 1996.
Chapter V also discusses the Human Rights Act 1998 together with the European Convention of Human Rights as it touches on the landowner's or land occupier's right to a fair trial and the right to respect for private and family life, both relevant in the context of party walls.
Chapter V further considers the Control of Pollution Act 1974 and the Environmental Protection Act 1990, from which local authority environmental departments derive powers to deal with certain issues that can be linked to party walls, such as potential nuisance, dust and deposits from construction sites.
The Crossrail Act 2008, the High Speed Rail (London – West Midlands) Act 2017 and the High Speed Rail (West Midlands – Crewe) Act 2021 are also touched upon as they, in some respects, override the PWA 1996.
All of these pieces of legislation are relevant to party walls as they either interact with, amend, complement or coexist in parallel with the PWA 1996.
Chapter VI analyses proprietary rights in land (with a focus on easements). Proprietary rights govern parties’ ability to use and enjoy both land in their physical possession and land in the physical possession of others. This is highly relevant to, and can be interlinked with, party walls.
Chapter VI focuses primarily on the rights set out below.
The right of way with which party walls can interfere/coexist.
The right of support (also covering weather protection and excavations), highly relevant to party walls, which can either require or provide support. This in turn leads to related rights of the landowners/occupiers with an interest in the relevant party walls.
Drainage rights.
Whether there are ancillary rights or obligations to repair a party wall and by whom.
Chapter VI highlights a number of cases together with clear images of situations where proprietary rights in land affect party walls and vice versa.
Chapter VII explores further aspects of relevance to party walls from the tortious perspective. It initially explains the meaning of common law nuisance before analysing examples of nuisance relevant to party walls, such as noise nuisance (including control of construction noise, soundproofing and vibration) and interference with rights to light. Examples of implications for party walls and related disputes stemming from tort are illustrated by way of case law.
Chapter VIII focuses on factual issues related to party walls and structural issues specifically. These include, for example, cracks in party walls, subsidence, underpinning, thickening, raising, repairing, cutting into party walls, increasing or decreasing party wall height, exposing party walls or demolishing these and fully rebuilding them.
Chapter IX is the conclusion to this book. It provides a synthesis explaining how the different chapters of the book fit together and what inference this leads to. This includes an assessment of the legal coherence of how party wall disputes are dealt with and the best options in terms of party wall dispute management.
Notes
1
Dillard v F & C Commercial Property Holdings Ltd
[2014] EWHC 1219 QB.
2
Power v Shah
[2023] EWCA Civ 239, 9.
3
(May 2016).
2What Is a Party Wall?
2.1 Introduction
Before one can analyse party wall disputes, and the related legal coherence forming the backbone behind the topic of party walls and related disputes, the first step is to identify what ‘party walls’ are.
Party walls can obstruct a view, limit a source of light, impede a neighbour's airspace or have an impact on the support of neighbouring land or property. Party walls need to be repaired from time to time, so the question arises as to who needs to repair them. This in turn leads to issues about whether it is possible to require a person to repair a party wall. Parties need to be clear on their rights to be able to access the relevant party walls. If a party attempts to access a party wall and wrongfully interferes with the other party's possessory rights in its land, this can lead to trespass. Overgrown roots of a tree can interfere with a party wall. Works on a party wall can cause construction noise and vibration. Alternatively, party walls in buildings may not be insulated enough to prevent certain noises from carrying from one room to another. A party wall is not necessarily visible in its entirety. It can be linked to the ground or to a structure. It can be linked to the ground below the land surface, and it can be impacted by ground conditions.
From the above examples, it is clear that party walls can be at the root of many disputes linking statutory, proprietary, tortious and structural matters. This is simply because of the highly contentious nature of the disputes linked to party walls. When the parties are evaluating which dispute resolution avenue they could or should take, this depends on their personal preference, willingness or necessity to preserve the relationship between the neighbouring landowners, cost and time available and need for clarity, certainty and a binding outcome.
2.2 Definitions of ‘Party Wall'
When it comes to defining what exactly the terminology ‘party wall' means, there is no one clear‐cut definition.4 Before a legal estate in tenancy in common was abolished by the Law of Property Act 1925, in relation to a wall that was owned in common by different owners, each of the owners had generally the right to demolish the wall as long as the intention was to rebuild it again and to do the required repairs and underpinning.5 However, case law made it clear that the provisions of the party wall legislation superseded such common law rights.6 In common law, the terminology ‘party wall’ is not defined and does not have an exact meaning.
According to Megarry & Wade, since 1925,7 the term ‘party wall' may mean any one of the below.8
(i) a wall divided longitudinally into strips, one belonging to each of the neighbouring owners; or
(ii) a wall divided as in (i), but each half being subject to an easement of support in favour of the owner of the other half;
(iii) a wall belonging entirely to one of the adjoining owners, but subject to an easement or right in the other to have it maintained as a dividing wall
.
Prior to 1926 there was a fourth category. There could be a party wall of which the two adjoining owners were tenants in common. The disadvantage of such a wall was that either owner could insist upon partition. Had special provision not been made by statute, all party walls in this category would have become subject to a trust for sale after 1925. It was provided therefore that after 1925 all party walls of this kind, whether created before 1926 or after 1925, should be deemed to be severed vertically, and that the owner of each part should have such rights of support and use over the rest of the wall as were requisite for giving the parties rights similar to those which they would have enjoyed had they been tenants in common of the wall. The practical effect of this provision was to translate all party walls of this kind into the second category listed above.
To elaborate on the terminology in the different categories, ‘longitudinal division into two strips' in (i) above means that the ownership of the party wall is split longitudinally between the two landowners. However, cases of longitudinal division of this kind are rare. The issue with this category is that neither owner has any right of lateral support from one another. This can lead to either owner removing their half of the wall. While having to act with reasonable care, the result may be a structure that is not capable of standing on its own.9
The effect of the Law of Property Act 1925 (Section 38) was that a party wall is not owned in common but longitudinally where each of the parties has an easement of support over each other's property. While party walls fell under the law of co‐ownership or easements of support, they had to be excluded from the statutory trust for sale that was imposed in cases of co‐ownership after 1925.10 There are easements that can affect party walls, which is why a separate Chapter VI is dedicated to easements in connection with party walls.
According to Gale on the Law of Easements:11
A wall could (and still can) be a party‐wall up to a certain point, namely, so far as it divides two buildings of unequal height, and an external wall above that point; and a pilaster or portico, or a fascia, which appears to form an integral portion of one house, may be parcel of and pass on a conveyance of another house. The raising of a party‐wall by one part owner without the consent of the other is a violation of that other’s right of ownership and possession of his half, and is not less so because a private Act provides that it shall be lawful for the owner or part owner of any party‐wall to raise it, provided that the wall when raised will be of the substance required by any byelaw.
The above statement further shows that where a wall is a ‘party wall', it is linked to certain rights and obligations that parties to the party wall must abide by.
As opposed to the definitions addressed above, which focus on ownership, when it comes to the definition of what a ‘party wall' is under the PWA 1996, this definition does not relate to ownership but to the function of the wall. The PWA 1996 applies to England and Wales, and some of its provisions were adopted from legislation specific to Inner London and other parts of the country, which were in existence for a number of years prior to the PWA 1996.12 The PWA 1996 regulates the construction and repair of party walls as well as related dispute resolution within the realms of the PWA 1996.13
Section 20 of the PWA 1996 states:
… ‘party wall’ means –
(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; and
(b) so much of a wall not being a wall referred to in paragraph (a) above as separates buildings belonging to different owners.
As Keating on Construction Contracts says, a party wall always forms part of one or more buildings and where a wall does not stand on the land of both owners, such a wall will constitute a party wall only to the extent that it separates two buildings (as per the definition of Section 20(b) of the PWA 1996).14
