Section 6 and its back-to-front misconception
Updated: Jun 10, 2020
We're talking Section 6(1) of the Party Wall etc Act 1996. Where a Building Owner proposes to excavate within 3 metres of an Adjoining Owner's building or structure and that excavation is to be taken to a lower level than the bottom of the foundations of that Adjoining Owner's building or structure.
What commonly happens is that Building Owners delay and avoid serving Notice for fear of work being stopped by Adjoining Owners or they are worried about the costs involved. For the Adjoining Owner they tend to be overly expectant on receiving Notice earlier than is possible, often way too early in the process.
So we have Building Owners not serving Notice and Adjoining Owners wanting Notice when, arguably, they should really be the other way around.
We need to take a step back and really understand what is being Notified and why? What is the real purpose of Section 6?
Section 6(3) is very clear: "the building owner may......underpin or otherwise strengthen or safeguard the foundations of the building or structure of the adjoining owner so far as may be necessary".
Simple, straight forward and clear. The Building Owner should consider their proposal for the excavations they plan, then ask the question: if I undertake this excavation do I need to access the Adjoining Owner's land or building to underpin, strengthen or safeguard them. If it is necessary then the Building Owner may do this following the Notice that they Serve upon the Adjoining Owner.
That is quite an imposition on an Adjoining Owner, to have someone come onto or into their property and start underpinning or strengthening works. Understandably an Adjoining Owner probably will not want to consent to this and therefore they will appoint a Party Wall Surveyor to consider whether the proposal is "necessary".
But, in many circumstances the Building Owner is confirming in the Notice that they do not consider underpinning, safeguarding or strengtening to be necessary and therefore they will not be exercising any rights in that respect. You would think "good news" for the Adjoining Owner. However, Adjoining Owners still do not consent and are left wondering why underpinning is not being offered by the Building Owner. More often than not, if asked "do you actually want your building underpinned? ", the answer of an Adjoining Owner is a firm "no". This is odd, because what is happening, at the most basic level, is that an Adjoining Owner is objecting to something that is actually offering what they actually prefer.
This is simplified somewhat because, of course, there may well actually be genuine concerns that the Adjoining Owner has, fearing that the Building Owner may cause them damage. We do not therefore criticise Adjoining Owners, it is a natural and common fear, but it does emphasise that perhaps Building Owners could do a much better job at sharing design information at the Notice stage, and explaining, that they have considered the risks and as a result that is why they are not suggesting (or requesting) underpinning or other strengthening.
It then follows that we should look at Adjoining Owners, and why do they often insist on the Act applying and requiring Notices? If the Act is there to allow the Building Owner to come around to the Adjoining Owner's property and undertake works, works that the Adjoining Owner ultimately probably doesn't actually want, then it is all a bit odd. Surely the Adjoining Owner would be best keeping quite, no Notice being served means that no rights are acquired by the Building Owner to touch or affect the Adjoining Owner's property. Both sides in the position that they both want.
This too, of course, is an over-simplification. The more complex concern is : what if it does go wrong, what if damage does arise?. It would be unjust that the Building Owner could cause damage to the Adjoining Owner's property and not be liable, irrespective of the Party Wall etc Act 1996: the fact whether or not Notice is served is not going to change that. The difference is with Notice being served, a mechanism is being put in place for resolving disputes that might arise in the future. That is really the purpose of many Awards that are produced. It is also the reason why many (arguably most) Awards under Section 6 should not be causing significant costs to be incurred.
To see Section 6 of the Party Wall etc Act 1996 working at its best, we recommend that Building Owners should be serving the correct Notices in plenty of time prior to works starting, 3 to 6 months ahead would be reasonable even for simple proposals. Building Owners should not be serving 'cold' standard templates for Notices, those really are quite 'alarming' when landing on the Adjoining Owner's doormat. What the Adjoining Owners are reading from these 'templates' is the Building Owner is proposing to excavate but they are not going to underpin, strengthen or otherwise safeguard the Adjoining Owner's property.... It sounds negative and worrying. What the Notices fail to convey or mention is the reason that they are not underpinning or strengthening is because it really doesn't need it! Of course an Adjoining Owner is going to be alarmed if they do not understand this.
It's all about sharing the right level of information and explanations to reassure others, not put the fear in them. Standard, downloaded, 'template Notices' with no understanding of what is being relayed to Adjoining Owners are the worst for this.
Please talk to us about bespoke Notices and relaying the information to Adjoining Owners for them to understand, not for them to have undue concerns or expectations.