Access Via the Party Wall etc Act 1996.
In this blog post I will be discussing what access means within the Party Wall etc Act 1996, what sections of the Act are relevant to Access, the common issues and considerations with the Right of Access and ultimately how Access can be achieved under the Party Wall etc Act 1996.
When discussing access under the Party Wall etc Act 1996, the main section that deals solely with access is Section 8 of the Party Wall Act. A Building owner, his servants, agents, and workmen may during usual 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. Whilst the wording of the Act may seem intrusive, this is usually coordinated by an appointed Party Wall Surveyor. Section 8 goes into further detail with the actions to take should access be refused or closed. Note that Section 8 of the Party Wall Act is usually initiated by providing the relevant party with a notice informing them of the required access which is usually provided at least 14 days in advance.
Typically, Section 1 of the Party Wall etc Act 1996 has access provisions that are applicable. More specifically, Subsection 1(2) – ‘To build a Party Wall or Party Fence wall astride the Line of Junction’ & 1(5) – To build a new wall up to the Line of Junction but wholly on the Building Owner’s land’. Under both these phases of work, the building owner is afforded access rights. This means that during the build phase of an extension or works in a garden, the building owner’s contractor is given access for a controlled amount of time usually set by the appointed Party Wall Surveyor. This typically means that the area alongside where the flank wall or Party Wall is being built up to; the surrounding area of the adjoining owner's land can be temporarily cleared for a set amount of time. For good measure, there is usually a clause within the Party Wall Award which goes into detail about the amount of time access should be limited to (Typically 4-6 weeks is suitable for these types of work). A detailed description of how much space should be provided for access with clear measurements, details of how the proposed area of access is to be protected usually through hoardings and sheeting, that (if relevant) is to be removed from the proposed area of access and how it is to be removed and stored. This can include anything from a fence panel, plants, pots, or any items belonging to the adjoining owner. Following this, there will also be provisions advising how everything is to be put back in its original state (if possible) following the completion of works.
One of the main reasons the building owner has the Right of Access is to allow for the wall to be built in the safest and most efficient way possible, this way all parties including the contractor have a clear route to achieve the final build. This also benefits the adjoining owner as the access allows the contractor to complete the work neatly with no spillages. Ultimately this portion of the wall will be facing the adjoining owner’s land, so it is in their best interest to have this wall completed so that it is structurally sound and completed neatly. Refusing access means that the contractor is unable to build up the wall from the adjoining owner’s side preventing them from applying a neat decorative finish to the face of the wall that will be directly facing the adjoining owner. Instead, the contractor will have to complete this using the overhand method which often leads to rough pointing and overspills
Aside from Section 1 works, a building owner may need to do some work at roof level. Whilst this doesn’t fall under Section 1, it still usually triggers the Party Wall etc Act 1996 as these types of work are usually notifiable under the Act. If the surveyor decides that access over the adjoining owner’s roof is necessary, then this can be achieved with the use of Cantilevered Scaffolding through a platform that angles out from the main structure of the scaffolding. This allows the contractor to gain access to the adjoining owner's roof space without interfering with their roof structure which further minimises the chance of any damage occurring to the neighbour’s property. It may be necessary for some circumstances for a Section 8 notice to be issued for the raising of a Party Wall at roof level due to the close proximity of the junction between the two properties.
How Can Access be Governed?
Similarly, to what has been described above, usually access is governed by the Act through relevant clauses. These clauses will allow the building owner to go ahead with their lawful works whilst also ensuring that no damage or unreasonable inconvenience is being caused to the Adjoining Owner.
The adjoining owner will have to surrender a portion of their land for a set amount of time that the appointed surveyor will determine is fair, the appointed surveyor may also touch on actions the building owner or their contractor will need to take to ensure all reasonable precaution has been taken, this includes the temporary removal of items but also the erection of hoarding, how the hoarding is to be placed, the position it is to be place in, the dimensions of the hoarding and consideration to the formation and erection of it taking into account the operational use of the adjoining owners property. Hoarding should not be placed in such a way it prevents a door or window to be operated properly.
It is important for the appointed surveyor to assess and consider these points and include it as part of the Party Wall Award and to include the reinstatement of everything after the completion of works. By doing this, this avoids any doubt and confusion between the owners and reduces the chances of conflict as a clear set of rules and instructions are being laid out from the offset. It is important to do this before any works commence as the works cannot be policed by the appointed Party Wall Surveyor. By setting these rules and clauses to follow they can govern the notifiable works effectively. This also allows for any concerns or issues that my arise during or after the works to be addressed by the appointed surveyor.
What Can be done if Access is Refused?
For most projects, it is generally agreed that where required some form of access may take place amongst adjoining owners without much issue. However, there are some Instances for whatever reason that this is restricted or completely refused despite all legal aspects of the process being followed. This can cause delays and further disagreements between all parties involved. As described above in Section 8(1), this can be taken a step further in Section 8(2) when access is outright refused. ‘If the premises are closed, the building owner, his agents and workmen may, if accompanied by a constable or other police officer, break open any fences or doors in order to enter the premises’. This forcibly allows the building owner and their workmen to complete the relevant aspects of the notifiable work as per the Party Wall Agreement in a lawful manner.
Whilst Section 8(2) is an arm of the law and allows the building owner a passage to achieve the completion of their works if access is being refused by the adjoining owner; often it isn’t seen as a practical way to progress matters and can aggravate the situation and relationship between the two owners. Instead through discussion and usually compromises, both owners can come to a resolution. In cases where the adjoining owner is refusing access no matter what and the access aspect of the work is only relevant to the decorative finish facing the adjoining owner; the building owner will often compromise and allow for their wall to be erected without access, this means that the wall facing the adjoining owner won’t have a decorative finish and ultimately negatively impacts the adjoining owner anyway. The structural integrity of the work can still be fulfilled without access. There are however instances where access is imperative for the progress of the works. In these cases, it may seem appropriate to exercise the building owner's rights under Section 8(2) of the Party Wall etc Act 1996.
It is important to consider that whilst the Building Owner is afforded the Right of Access for the notifiable works, this cannot be extended beyond the completion of the works meaning that once the notifiable works have been completed, the building owner doesn’t have the Right of Access for maintenance of their new structure or repair works and therefore will have to come to an arrangement with the adjoining owner to work around this in a civil way. This should also be considered throughout the design phase of the project.