Party Wall Counter Notices
Party Wall Counter Notices are rarely used, indeed I should point out that despite having undertaken over 1500 party wall matters I have yet to receive a counter notice and so what follows is my understanding of the process rather than my comments being based upon any practical experience.
Counter Notices:
Section 4 of the Party Wall etc Act allows for Adjoining Owners to serve on the Building Owner a counter notice requiring then to undertake a certain function. I would point out at this stage that Section 4 provides the explanation of why the notice periods are two months in respect of a party structure notice yet only one month in respect of a line of junction notice under Section 1 and an excavation notice under Section 6. The reason is that the additional month allows for the initial month to be used by the Adjoining Owner to consider whether they wish to serve a counter notice.
Bearing the above in mind it therefore follows that a counter notice can only be issued in response to a Party Structure notice and cannot be served following a Section 1 or Section 6 notice.
The Act is quite clear in this point as it states in Section 4(1) “An Adjoining Owner may, having been served with a party structure notice serve on the Building Owner a notice(in this Act referred to as a “counter notice”)”
In paragraph 4(1) subsection (a) it describes the requirement that the Adjoining Owner could request that the Building Owner build in or on the wall or structure to which the party structure notice relates such chimney copings, breasts, jambs or flues, piers or recesses as may be reasonably required for the convenience of the Adjoining Owner. It also makes provision that a counter notice can request the Building Owner to install special foundations to a greater depth than proposed and or be constructed to be of sufficient strength for any intended building by the Adjoining Owner.
Adjoining Owners and their surveyors should be aware that such additional works will typically be at the cost of the Adjoining Owner and the mechanism for this is dealt with in Section 11. Accordingly it would be a foolish Adjoining Owner who sought to use a counter notice to frustrate or otherwise obfuscate the Building Owners proposed works!
If you have any questions relating to the circumstances in which a counter notice may be appropriate, please get in touch
Who can serve a counter notice?
As I understand, these matters are typically resolved by surveyors as part of their approach to the Award and are therefore determined under the provisions of Section 10. Practitioners should also be aware that it is the role of the Adjoining Owner rather than their surveyor to serve the counter notice on the building Owner and so where Surveyors are asked to undertake this function I would take a very close look at your appointment letter to ascertain jurisdiction before agreeing to do so.
In any event the preparation and service of the notice will be required to be undertaken as detailed in the Act.
Whilst it seems obvious based on the wording of the Act, parties should be aware that a Counter notice can only be issued following the service of a party wall notice and that the Adjoining Owner cannot rely on any potential benefit of a counter notice without an initial notice first having been served.
Counter Notice Case Law
This aspect was explored in the 2015 case of Bridgland v Earlsmead Estates Ltd which was concerned with two adjoining commercial properties. Earlsmead demolished their unit without having first served a party structure notice under the 1996 Act. Bridgland, as a result, suffered some damage and water ingress issues at their property and sought to claim from Earlsmead. Part of their proposed action revolved around their contention that had they been served with a party wall notice that they would have served a counter notice requiring the Building owner to undertake the works in such a way as to prevent damp. In essence they wanted to claim on the basis that they had been denied the opportunity of serving a counter notice. This argument was struck out by the judge as a counter notice cannot legitimately specify the manner in which proposed works can be carried out but rather simply request that they be carried out. Indeed if you look at section 4(2a) it states that the counter notice shall specify the works required by the notice to be executed. No mention at all of the method by which they are to be undertaken.
Ensure the Party Wall Counter Notices are valid
The party wall counter notices need to be reasonably detailed and should include plans, sections and particulars of the required works. This is important as it may otherwise delay the Building Owner unreasonably in respect of their development plans. In my opinion a poor quality counter notice which does not provide sufficient detail may not require the Building Owner to undertake the works as it could fall into one of the three valid reasons why the Building Owner need not comply, that we will visit in the following paragraph.
Assuming a valid counter notice has been served within the requisite one month period from the service of the party structure notice by the Building Owner, the Building Owner is obliged to undertake those works unless they can demonstrate one of three scenarios namely undertaking the works requested by the Adjoining Owner would be injurious to him, that undertaking the requested works of the Adjoining Owner would cause unnecessary inconvenience to him or that the requested works would cause unnecessary delay in the execution of the works initially proposed by the party structure notice.
Party Wall Counter Notices Disputes:
Clearly the foregoing three circumstances could result in a dispute between the parties and that being the case, the matter can be referred to the Surveyors for determination under Section 10 of the Act as Section 5 includes a provision that where consent to the party wall counter notices is not provided within 14 days, a dispute is deemed to have arisen. Of course it is open to the Building Owner to subsequently consent to the counter notice but a failure to do so within the requiste 14 day period will initiate the dispute resolution section of the Act.
Based on my experience the service of party wall counter notices is not a common occurrence however practitioners should be familiar with the circumstances under which a notice can be served and their role thereafter.
Find out about Graham Kinnear Property Consultant – specialist party wall surveyors
Party Wall Surveyors are regularly engaged where work is to be carried out to a wall shared with another owner. Also where excavation is due to take place within 3 or sometimes six metres of a neighbouring building.
Demystify Party Wall Surveyors
To try and demystify the works of party wall surveyors we have decided to provide a mini series of informative blogs. This is the first one and we hope you are suitably interested to read the next one!
By way of an introduction, Graham Kinnear Property Consultant provide a party wall service to both domestic and commercial property throughout England and Wales. (It should be noted that the Act does not apply in Scotland). Headquartered in Kent we also have offices in London, Hertfordshire, Bedfordshire, Buckinghamshire, Oxfordshire, Staffordshire and Cambridgeshire.
Qualified Party Wall Surveyors
All of our surveyors are qualified in this field either via the Royal Institution of Chartered Surveyors or via the Faculty of Party Wall Surveyors, with some of us holding qualifications with both organisations. Some of our team are also qualified with the Chartered Association of Building Engineers and the Chartered Institute of Building.
So to start our party wall journey let us first consider the works which may invoke the Party Wall Etc Act 1996.
Works covered by Party Wall Surveyors
Party Wall Surveyors should be engaged if you are proposing to build a new wall on or astride what we surveyors term the line of junction but what you will probably call the boundary line. In such circumstances you are obliged to serve the neighbour with what is called a Line of Junction Notice or a Section 1 Notice. This is often the case if you are proposing to construct a rear extension to your premises and wish to maximize the space available.
Party Wall Surveyors should also be involved if you are planning to undertake work to a wall which is shared by your neighbour. This could include raising the wall up, removing a chimney breast from the shared wall, inserting beams into the wall (for example to support the floor for a loft conversion) or to remove something which is overhanging the wall which impedes your building plans. In these circumstances you would be obliged to serve your neighbour with what is called either a Section 3 Notice or a Party Structure Notice.
The final circumstance where Party Wall Surveyors may be required is if you propose to excavate ground within 3 metres of your neighbours building and that those excavations are likely to be lower than the depth of their foundations. In such circumstances a Section 6 notice, which is also known as a 3 metre notice would be required. The excavations could relate to the placing of foundations or drainage or indeed the creation of a basement level. The notice is required in respect of the excavation, rather than the works which require the excavation.
It may be the case that you are proposing a rear extension on the boundary line, the removal of a chimney breast and the conversion of your loft space. This being the case you would have to serve all of the above noted notices upon your neighbour.
Still need help?
If you are unsure whether the Party Wall Etc Act applies to your proposed works then please email us or contact us on 01843 583000 and one of our surveyors will assist you with an initial review of your proposals, free of charge and without obligation. Alternatively click here for further information.
