Party wall etc Act 1996 – Special foundations – Basement – Respondents proposing to construct basement extension constructed using reinforced concrete box resting on mass concrete strip foundation – Whether that design involving use of “special foundations” within section 2 of 1996 Act so as to require written consent of appellant adjoining owners under section 7(4) – Surveyor appointed under section 10 of 1996 Act deciding that design not involving special foundations – Appeal dismissed
The respondents planned to enlarge their residential property in London W8 by constructing a new basement and building a rear extension. The proposed works involved underpinning the party walls with reinforced concrete as part of a reinforced concrete basement box, beneath which there was to be an unreinforced or “mass concrete” strip foundation. The use of reinforced concrete in basement extension design allowed for the use of thinner walls or foundations than would be required if unreinforced “mass” concrete were used and therefore helped to maximise the available space.
A surveyor appointed under section 10 of the Party Wall etc Act 1996 was asked to make an award dealing with various matters in dispute between the parties. An issue arose as to whether the basement design involved the use of “special foundations” as defined in section 20 of the 1996 Act, namely foundations “in which an assemblage of beams or rods is employed for the purpose of distributing any load”. If it did, then, by virtue of section 7(4) of the 1996 Act, the respondents could not carry out the works without the appellants’ prior consent in writing. The surveyor decided that the design did not involve special foundations and that, accordingly, the respondents did not need the consent of the adjoining owners to carry out the works in accordance with the design.
The appellants appealed to the court against the surveyor’s award and a preliminary issue was tried as to whether the basement design involved the use of special foundations. The appellants contended that the use of the mass concrete beneath the reinforced concrete box was unnecessary and was merely an artifice to circumvent the effects of section 7(4); they submitted that both the reinforced concrete underpin and the mass concrete strip beneath it should be viewed as together constituting the “foundation”, which therefore contained an assemblage of beams or rods employed for the purpose of distributing load. In the alternative, they argued that the reinforced concrete box, irrespective of the status of the mass concrete strip, constituted a foundation because it distributed load not only to the mass concrete strip immediately beneath the party wall but also to the solid ground on the respondents’ side of that wall.
Held: The preliminary issue was determined accordingly.
(1) Section 7(4) of the 1996 Act imposed a specific restriction on a building owner’s rights with respect to special foundations. It gave to the adjoining owner an absolute veto on any work that constituted “special foundations”, without qualification, and without any requirement not to withhold consent unreasonably. The underlying purpose of the special foundation provision was to ensure that there should be no interference with the future redevelopment of the adjoining owner’s site.
(2) An “‘assemblage of beams or rods’”, when used with concrete, was, in everyday language, reinforced concrete. An adjoining owner could not prevent a basement extension since the right to build such an extension existed in common law as extended and controlled by the 1996 Act. However, an adjoining owner could in effect, insist on the building owner employing mass concrete foundations if the extension was to go ahead.
(3) It was difficult to see what legitimate concern there was in an adjoining owner being protected against special foundations in the context of a basement construction in one of two adjacent domestic dwellings. In that context, the special foundations regime did not appear to protect any significant interest of the adjoining owner.
However, the court would not turn a blind eye where a person deployed an artifice or device purely to circumvent the clear intention of parliament. The use of a mass concrete “pad” or thin blinding layer underneath a reinforced concrete basement construction design would not result in the proposed works falling outside the definition of special foundations. Such a pad was unlikely to be able to withstand the forces imposed by the upward construction of a reinforced concrete wall. Accordingly, if the pad or blinding layer was placed on solid ground, then the concrete box constructed above it would support all the forces imposed from the building above. In such circumstances, neither pad nor blinding layer would qualify as “support” for the purposes of the definition of “foundation” in the 1996 Act; it was the reinforced installation above that would comprise the basement foundations.
(4) The position was different with regard to the basement design in the instant case. That design did not involve the use of an artifice to circumvent the effects of section 7(4). It involved a much more substantial mass concrete strip than a mere pad or blinding layer. The mass concrete formed a self-supporting structure that enabled the use of a particular method of construction. Although it was essentially a temporary works expedient, it nonetheless formed a permanent foundation that was able to provide a considerable level of support. While it might be essential only in its temporary works context, and might represent over-engineering as part of the permanent works, it could not be regarded as an artifice or device on that ground alone.
(5) The reinforced concrete box could not be described as the foundation simply because it distributed load to solid ground including the appellants’ land. While the purpose of a foundation from an engineering perspective might be to distribute load onto the ground, the statutory definition of “foundations” in section 20 of the 1996 Act did not approach the matter from that perspective but simply referred to the ground or artificial support on which the wall rested. Accordingly, the sole consideration was where the wall “rested” and it did not matter where the load was distributed. In the instant case, the wall rested on the mass concrete foundation, which was not a special foundation. While the definition of “special foundations” did refer to the distribution of load, that definition incorporated the word “foundations” and with it the requirement of where a wall “rested”; the distribution of load was mentioned within that context and could not extend to the distribution of load to ground which was not ground on which the wall rested. Accordingly, it was not sufficient for the appellants to demonstrate that loads were distributed to their land from the concrete box passing through the mass concrete foundation, since that foundation was not a special foundation and was free to carry loads onto the land of adjoining owners by virtue of the building owners’ rights under the 1996 Act, without the possibility of veto by the adjoining owners. In any event, the appellants had not shown that any such loads were more than minimal.
It followed that the works being carried out by the respondents did not involve the use of a special foundation for the purposes of the 1996 Act.
Nicholas Isaac (instructed by Morrisons Solicitors, of Woking) appeared for the appellants; Stephen Bickford-Smith (instructed by Gannons Solicitors) appeared for the respondents.
Sally Dobson, barrister
