Adjacent Excavation and Construction
Section 6 of the party wall act covers excavation and construction within specified distances of an adjoining owner’s property. These works are regulated by depth, by proximity and by reference of a notional 45” plane extending outwards and downwards from the existing foundations. The purpose is to protect existing structures. This clause also sets timescales for dealing with works, so the building owner must proceed with despatch or start the process again.”[The Earl of Lytton]
Section 6(1) provides that section 6 applies to a building owner who intends to excavate or put up a building structure that when measured horizontally is within 3 metres of any part of an adjoining owners land or building and such proposals will also include an excavation that is deeper than the existing foundations of the adjoining owners building or structure.
Section 6(2) provides that section 6 also applies to a building owner who intends to excavate and/or build any structure that will meet a plane drawn downwards in the direction of the excavation, building or structure of the building owner at an angle of 45 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 face of the external wall of the building or structure of the adjoining owner, that is within 6 metres measured horizontally from any part of a building or structure belonging to an adjoining owner. A plane is (lookup)
Section 6(3) provides that a building owner must pay to underpin, safeguard or strengthen the foundations of a building or structure of an adjoining owner if an adjoining owner so requires this to be done. It should be noted that a building owner may if they so choose, do this of their own.
Section 6(4) provides that any buildings or structures that are within the specified distances under section 6 are automatically deemed as adjoining owners.
Section 6(5) provides that a building owner who intends to carry out any of the specified works under this section, must, at least one month prior to commencement of the works serve a notice on all adjoining owners stating what works s/he intends to carry out and whether there is an intention to underpin, strengthen or safeguard the foundations of the works being proposed.
Section 6(6) provides what should be served with the notice under subsection (5) above. The party wall notice must include a copy of the plans showing both the depth and whether a structure shall be erected.
Section 6(7) provides that an adjoining owner has fourteen days from service of the notice to respond to the building owner, failure of which will deem the adjoining owner to have entered into a dispute with the building owner.
It should be noted that the date of service will be determined in accordance with the way in which the building owner served the notice. The most common way is by post. In law, service is deemed to have taken place two (working) days after it is posted. It can also be stuck to a door, delivered by hand, posted to the last known address or emailed. However, an adjoining owner must give permission to accept notice served by an email, without which, service will not be deemed to have taken place. With regard to delivery by hand, service is deemed on delivery. When stuck to a door, service is deemed to have taken place the following day.
Icon Surveyors would advise a building owner to send a party wall notice by recorded delivery. That way, there is a paper trail should any disputes relating to service, arise. We would always recommend a building owner to discuss their building proposals with all and/or any adjoining owner before service of any notice required by the Act. Whether that be in writing or in person, whilst discussing the proposals, a building owner can ask the adjoining owner if they will accept notice via email. We would recommend that a building owner confirms the service by way of email when sending the notice. For example, “as per our correspondence and/or verbally agreed on (date) I (name of address of building owner) hereby serve you with a notice in accordance with section (1, 3, or 6 ) of the Party Wall Etc. Act 1996.”
Section 6(8) provides that a building owner has twelve months from the date of service to commence with the works, failure of which will deem the notice to have lapsed and the whole procedure of service of a section 6 notice will have to be started from the beginning.
Section 6(9) provides that a building owner must at the request of any adjoining owner, provide on completion of any of the works executed under section 6, such adjoining owners with particulars including any plans and sections of the works.
Section 6(10) provides that a building owner whose works have caused any damage or injury to any adjoining owner will be liable to rectify the damage and/or pay compensation to the adjoining owner for any injury that can be reasonably deduced from the works carried out.
Should any part of this section of the Act affect any of our readers, please feel free to contact Icon Surveyors, we are always happy to discuss any matters of concern you may have.
Note*: This blog is not an authoritative interpretation of the law; it is intended as a general guide.