PP 2010/148

The Party Wall etc Act 1996 came into force in England and Wales on 1 July 1997. It is modelled on provisions contained in the London Building Acts 1930 to 1939 and sets out rules and requirements that must be followed before landowners embark on building works that will affect neighbouring land. The legislation applies to work affecting party walls and structures and to construction on boundaries. In addition, to safeguard adjoining buildings, landowners must serve notice before carrying out certain types of excavation work near their boundaries. Kaye v Lawrence [2010] EWHC 2678 (TCC); [2010] PLSCS 275 raised an important new question concerning the effect of section 12 of the Act. This requires landowners to provide security for expenses before undertaking work if they are requested to do so by their neighbours. In other words, landowners may be required to set aside an agreed sum of money, or to provide a bond, to safeguard their neighbours against any expenses arising in the event, for example, of the landowner disappearing before the work is finished and/or that construction work grinds to a halt. The parties asked the court to decide whether a neighbour can request security for expenses if the landowner is carrying out excavation work on its own land. The landowner relied on guidance produced by the Pyramus & Thisbe Club (a society for professionals specialising in party wall issues) suggesting that security is available only where a landowner intends to carry out work on his neighbour’s land.  The judge disagreed with the guidance. He decided that section 12 applies in all cases where a landowner exercises rights under the 1996 Act. He noted that the 1996 Act creates new rights, which do not exist at common law, permitting landowners to carry out work on land belonging to their neighbours. However, it also governs a landowner’s common law right to carry out excavation work on its land within 3-6m of the boundary (depending on the depth of the excavations). The judge did not believe that it would be proper to distinguish between rights created by the 1996 Act and those that exist at common law but are regulated by the 1996 Act. Excavations within 3-6m of the boundary would be as likely to cause loss or damage, so as to justify the provision of security, as other works In cases where work is being carried out under different provisions of the 1996 Act, it would be nonsensical to provide security for some of the work only (especially since liability for loss or damage extends to all work). Party wall surveyors will be disappointed to hear that the judge did not decide how much security was required in this particular case, but they will none the less be interested to hear that section 12 appears to be wider in scope than experts had previously believed. Allyson Colby is a property law consultant