When Design & Build meets the Party Wall etc. Act 1996

Peter Maude
Traditional procurement provides the completed design needed for a timely party wall notice to be served. Procurement via the ‘Design & Build’ route can be less straightforward.

The  Party Wall etc. Act 1996 (PWA) provides a framework for what needs to happen when property owners want to undertake specified types of construction work to party walls or in close proximity to the boundary between adjoining properties.

The problem of incomplete design

The PWA sets out the different types of notice that need to be served for differing construction works. For instance, when an owner wishes to undertake excavations within prescribed distances from buildings or structures to the neighbour’s property, they need to serve on the neighbour a ‘Notice of adjacent excavation.’ In order for this notice to be valid, drawings need to be included with the notice showing the position of any new building and the proposed excavation works.

For a traditionally procured project, the design is completed before construction works start on site and the details required for the above notice are generally available. This enables the notice to be served on the neighbour in a timely fashion, avoiding any delays with works commencing.

Design & Build procured projects however face potential problems. The design is not always complete before works commence and may continue to be developed during the construction phase. It may not therefore be possible to serve the notice at project outset.  

The set back in obtaining detailed designs required for a ‘Notice of adjacent excavation’ can then delay the scheme with the resultant increase in costs.

When bad things happen…

The outcome can be bad news for developers and tenants alike. Our team have dealt with situations where the notices required under the PWA have been overlooked altogether, resulting in breach of statute and risk of the neighbour calling a halt to the works. Early communication and service of the notices would have established whether the neighbour was in agreement with the proposed works, enabling the procedures, as set out in the PWA, to be followed in good time.

Where the neighbour is not in agreement with the proposed works, surveyor-led negotiations can typically take around two to three months before an agreement, called an ‘Award’, is put in place between the parties. Each owner then has a 14-day period in which to appeal this agreement in the county court.

Delays and more delays

There are usually cost implications in delaying a building contract. In addition to the construction costs, lenders may make the completion date a condition of financing the scheme and tenants may not be able to take occupation on time if completion is delayed.

Is there a better way?

Most problems stem from a lack of understanding of the PWA timescales. We all understand the timescales for obtaining planning consent, dealing with party wall matters does have similar timescales and should be seen as an equally important step, not something that can be left until the last minute. It’s worth noting that timescales set down in the PWA are prescribed by statute and not flexible.

What can be done in advance of the detailed design?

It is worth inspecting the boundaries to the proposed building site as early as possible, even when the notices cannot be served. A boundary survey report can be prepared, working with the proposed site plans showing the layout of buildings, walls and access roads. This report will highlight areas of the site where the PWA applies and will identify specific issues that the final design should take account of. This can also form the basis of any early discussions with neighbours

The PWA requires notices must be served with the relevant information and as such notices under the PWA could be served before the designs for the whole project has been agreed. 

The design programme must consider the PWA requirements. Some minor changes to the proposed works are possible without having to serve further notices.

Why use a building surveyor?

Faithful+Gould work with leading developers on large Design & Build projects. Early identification of PWA issues is an important part of our support for developers, and our team of building surveyors have a detailed understanding of the relevant issues and nuances. We strive for early collaboration with the design team and consider that this is key to understanding their proposals and assessing the impact of the PWA on the proposed works. At this stage, the proposed works can sometimes be amended, as necessary, to avoid the necessity for any notice required under the PWA and we can often save time and costs by discussing the requirements of the PWA with the design team.

We welcome early discussions with clients proposing construction works to advise on the implications of the PWA with a view to preventing any delays with the commencement of works on site.

 

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