The scope for agreement in statutory party wall procedures

Chynoweth, P

Abstract

Statutory party wall procedures are now an almost inevitable feature of city centre construction projects. They involve the service of notices and the appointment of surveyors who publish awards to resolve a variety of construction-related issues affecting structures in boundary locations. They are part of a statutory code which has operated under the London Building Acts since 1855 and which was extended to the whole of England and Wales by the Party Wall etc Act 1996.
The statutory procedures apply to construction operations in three different situations. They are most frequently encountered where works ('party wall works') are carried out to a party wall or other shared boundary structure. They also apply to the erection of a new boundary structure ('line of junction works') and to excavations which have the potential to interfere with the stability of an adjacent building or structure ('adjacent excavations').
There are minor differences between the procedures in each of these three situations. However, they all commence with the service, by a property owner wishing to undertake the work (the 'building owner'), of an originating notice on an adjoining owner whose property will be affected by it. The adjoining owner can respond in a number of different ways but in most cases a dispute will arise between the parties within the meaning of the legislation. Although there is then scope for this to be resolved by a single agreed surveyor the parties will usually each appoint a surveyor and the two surveyors will publish a joint award which will regulate the conduct of the works.
Despite the existence of this procedural framework it is common for the parties, or their surveyors, to depart from it by agreement. This may sometimes involve reaching an agreement to undertake the works entirely outside the statutory framework. More frequently, it will involve an agreement, or series of agreements, about the future conduct of the statutory procedures which may be at variance with the strict wording of the legislation. The motivation for the agreement may lie in a wish to avoid the delays and costs associated with the statutory framework. Alternatively, it may arise from a reluctance to institute a formal dispute resolution procedure in situations where, in reality, a situation of amity exists between the parties.
Agreements typically arise in four different contexts. Firstly, as stated above, the parties may seek to exclude the Act entirely by concluding an agreement which pre-empts the service of an originating notice. Secondly, in circumstances where an originating notice has already been served, they may seek to avoid the need for surveyors to produce an award by themselves reaching agreement about the nature and conduct of the works. Thirdly, where works have commenced in breach of the Act, the parties sometimes seek to regularise the situation by agreeing on the retrospective operation of the statutory machinery. Finally, and most frequently, the parties or their surveyors may agree that variations can be made to the nature of the proposed work.
Although these practices have become commonplace it is unclear whether the Act anticipates that the parties and their surveyors should be free to contract in and out of its provisions at will. This article therefore explores the extent to which they are free to do so. It examines each of the four practices in turn and considers the validity of the agreements reached in each case.

Citation

Chynoweth, P. (2004). The scope for agreement in statutory party wall procedures. Construction Law Journal, 20(6), 319-332

• Journal Article Type: Article
• Publication Date: Jan 1, 2004
• Deposit Date: Oct 3, 2007
• Publicly Available Date: Apr 5, 2016
• Journal: Construction Law Journal
• Print ISSN: 0267-2359
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Volume: 20
• Issue: 6
• Pages: 319-332