pyramus and thisbe ebook

The Pyramus & Thisbe Club

PROMOTING EXCELLENCE IN PARTY WALL PRACTICE

www.partywalls.org.uk

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CONTENTS

History of The Pyramus & Thisbe Club

The story of Pyramus and Thisbe

The purpose of The Pyramus & Thisbe Club

Successive amendments to

The Party Wall Act

CASE STUDY: Gyle Thompson and others v.

Wall Street (Properties) Limited

CASE STUDY: Crossrail and the Party Wall Act

Lords a Leaping. The Subterranean

Development Bill

Third Surveyor Referrals

A History of Party Wall Legislation

EXHIBITION: Party Walls at The British Museum

Property Boundaries

(resolution of disputes) Bill

Trespass Matters

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Welcome to The Pyramus &

Thisbe Club

This e-Book introduces The Pyramus & Thisbe Cluband provides an insight into its history,composition and objectives.

The Pyramus & Thisbe Club is a Learned Society.The Club’s membership, currently in the order of1000 strong, is drawn from professionals with aninterest in the law and practice of party wallmatters under the Party Wall etc. Act 1996. Forthose not familiar with the Act, it confers rightsover party structures and provides a framework forthe settlement of disputes between neighbours, by surveyors’ award.

In the following pages you will find articles aboutthe history of the Club, how the Club was (socuriously) named and the development of partywall legislation in England and Wales. There is areport on the law case that was the spark for theClub’s inception, Gyle-Thompson v Wall Streetand an insight into the nature of party walls.

The Pyramus & Thisbe Club is regarded as theleading authority on party wall practice. Membersof the Club are currently advising Parliament onBills concerning subterranean development andproperty boundaries. Overseas governments havealso sought advice from the Club.

The Club’s motto, taken from Shakespeare’s ‘A Midsummer Night’s Dream, is, “The wall isdown that parted their fathers.” The Club also usesthe strap line “Promoting excellence in party wallpractice.” This objective has always been andremains, central to the work of The Pyramus &Thisbe Club.

David Moon DipBS FRICSNational Chairman

Thisbe, by John WilliamWaterhouse, 1909. 3

WELCOMEwww.partywalls.org.uk

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HISTORYwww.partywalls.org.uk


The Pyramus & Thisbe Club was founded in1974 at the instigation of the late John Anstey,following widespread misreporting of the case ofGyle-Thompson v Wall Street (1973). The Clubwas formed to exchange news and opinionsabout interesting party wall cases. The originalmembership of 46 active party wall surveyorsagreed to meet quarterly and these early meetingstook place at the Little Ship Club in the City ofLondon. Membership grew but was then limited to100 and the Club moved its meetings to The CafeRoyal in Regent Street.

The Club takes its name from Shakespeare’sPyramus and Thisbe, the lovers in “A MidsummerNight’s Dream” who whispered through a chink ina wall. The Club’s motto, a quotation from theplay, is “The wall is down that parted their fathers.”The Club’s quarterly newsletter is “Whispers.”

Until 1997, the Club’s activities were confined toinner London, where the London Building Acts(Amendment) Act 1939 applied only to party wallsin the former LCC area. In 1993 a Club workingparty began drafting a Parliamentary Private Bill forEngland and Wales. The Bill which was sponsoredthrough Parliament by The Earl of Lytton (now apast chairman of the Club) received Governmentsupport and became the Party Wall etc. Act 1996.It came into force in July 1997.

The Club’s pivotal role in framing the Act wasacknowledged by The Earl of Kinnoull during thedebate following the Bill’s second reading in theHouse of Lords, when he said of the Club, “I knowthat that club of professionals has done tremendouswork. I pay particular tribute to its chairman,John Anstey, who, like other colleagues has beenactive in helping to draft the Bill.”

The Pyramus & Thisbe Club continues tomaintain relationships with Government andParliament. Members of the Club have formedadvisory panels to consider the Subterranean

Development Bill and the Property Boundaries(Resolution of Disputes) Bill. The Club has assistedthe Government in producing a guide to the Actand Club members have advised overseasgovernments on party wall and neighbourly matters.

In a 2008 case in Romford County Court, His Honour Judge Platt acknowledged the Club’smembers when he said, “It is a tribute to thesurveyor’s profession as a whole and to themembers of The Pyramus & Thisbe Club inparticular that issues over party walls havegenerally been resolved by a pragmatic andcooperative approach to the provisions of the Actand consequently appeals to the County Courthave been extremely rare.”

The Club’s membership is drawn from a mixture ofsurveyors, architects, engineers, other constructionprofessionals and lawyers, all of whom have aninterest in party wall matters.Today there are some1000 members practising throughout England andWales. The only qualification for membership is aserious professional interest in the subject and awillingness to disseminate information amongfellow members about difficult or interesting cases.

The Club is a non profit-making organisation andhas acquired the status of a Learned Society. Itpromotes the highest standards of professionalconduct among its members. The Club haspublished a two volume “Collected Papers” fromthe first 20 years of its proceedings and “The PartyWall Act Explained” written by the members ofthe original working party, now in its second,revised edition.

This year, the Club celebrates its 40th anniversary.


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WHAT WE DO

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The purpose of The Pyramus

& Thisbe Club

Since its formation in 1974, The Pyramus &ThisbeClub has remained as a Club for the purpose ofeducating its members and disseminating bestpractice. At that time it was apparent that throughcases that had been decided in Court, surveyorshad different opinions about how the party wallAct should be interpreted and how the role of asurveyor should be undertaken. It was clear thatthere was a relatively poor level of knowledgeabout this legislation.

The Pyramus &Thisbe Club was originally limitedto 100 members who joined by invitation, formedof surveyors who had the greatest interest andinvolvement in this area of surveying. In the 1980sthe number of members was expanded and as theClub gained in stature and relevance within theprofession, the limit on membership was removedto better fulfil the primary role.

Party wall surveyors previously dealt with legislationin Central London only under the London BuildingActs (amendment) Act 1939. Since 1997 and theimplementation of the Party Wall etc Act 1996,throughout England & Wales, the practice of partywall surveying has spread nationwide and ThePyramus &Thisbe Club has expanded with that.The original club is now the London Branch andthere are branches throughout the country, Branchesmeet 4 times a year at a main event, whether alunch breakfast or evening meeting at whichmembers are able to meet over food and drink anddiscuss a related subject. In addition, branches puton other events, such as one day conferences orevening talks or discussion sessions.

In accordance with the original ethos of the Club,members are encouraged to behave professionally,fairly and impartially, as expected of party wallsurveyors. Whilst the majority of members arechartered Building Surveyors, Club members doinclude surveyors from other disciplines, architects,engineers and lawyers.

Members of the Club are regularly consulted bythe RICS as well as by government departments,MPs and Peers. The Club was instrumental inwriting the Party Wall etc Act 1996 and morerecently has been involved with writing theSubterranean Development Bill which is currentlywith the House of Lords and the Property Boundary(Resolution of Disputes) Bill which is with theHouse of Commons. The Club includes thesurveyors considered to be leading experts in thefield and those most selected as Third Surveyor toresolve items of dispute between appointedsurveyors. In 2013 the Club achieved the covetedLearned Society status that recognises the valuethat it provides to education of surveyors and thegeneral public.

As The Pyramus &Thisbe Club is not a validationorganisation, its members are not subject to anentrance examination, or a minimum standard ofknowledge. Members with an interest in thesubject are encouraged to join, so that they canenhance their knowledge within the Clubenvironment. Property Owners are best advised toconsult The Pyramus &Thisbe Club on selecting aSurveyor. The Club membership registry identifiesprofessional qualifications of its members. BuildingOwners and Adjoining Owners are encouraged tomake contact with Club members in their area andto satisfy themselves that the surveyor in questionis a suitable one for their project, both inknowledge and experience but also in being of anappropriate level for the detail of work which isproposed. They should then find that they have asurveyor with sufficient knowledge, skill andprofessionalism to undertake the role correctlyand impartially.

Alistair Redler BSc FRICS

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ABOUT US

Who we areThe story of Pyramus and Thisbe originated in themists of time. Ovid recorded it as a tale told byone of the daughters of Minyas while the womenspun and threaded. It is a simple story of love,misunderstanding and disaster. The couple, thoughforbidden to see each other, fall in love through acrack in the party wall between their families’houses. They decide to meet one night in a quietspot outside town. Thisbe arrived first and whilstwaiting for Pyramus was frightened by a lion who,having recently eaten, went of the stream to drink.On scurrying away, Thisbe dropped her shawl,which the lion found, played with, and tore,leaving on it bloody stains from his gory mealbefore departing. Whilst Thisbe was still hidingPyramus turned up, found the bloody and ravagedshawl and, believing the worst, stabbed himself,unable to continue life without his love. Thisbethen arrived and, being of similar passion, alsostabbed herself whilst embracing her love. Therelevance of this tale to Party Wall Surveyors is inthe detail, in the message, and possibly in theresult:-

According to Ovid

“the lofty party wall between Pyramus andThisbe’s houses was of brick and was said tohave been built by Semiramis”.

Semiramis was not proud of his creation since

“the crack developed in the party wall whenit was being built”

As all P&T members can confirm by experience,

“this fault had gone unnoticed for long years”

This is a clear case of a latent defect, which thelovers had no intention of disclosing to the respective owners. Not only did they talk throughthe wall but they could feel each other’s breath and

“oft times wished enough that they couldembrace”

Thus the adjoining occupiers have very different viewsof the defect from those of the Adjoining Owners.

The deceased Poet Laureate, Ted Hughes, alsowrote an interpretation of this tragic tale and tohim it was the very mud-brick city of Babylonand the crack was

“a result of earth tremors”

As a justifiable ground-movement claim, therewould, in the eyes of a 20th-century and street-wisepoet, seem little point in raising the matter of theunreliable Semiramis and the crack which only thekids had noticed. In Hughes’ version, whilst thelovers also wished the crack to widen for thepurpose of embracing, they also feared that too largecrack would bring in the Surveyors, loss adjustersand contractors and thus part the lovers utterly.

“But in this tiny crack may our great loves,

Invisibly to us, meet and mingle!

Then each would kiss the crack in the coldplaster.”

As every schoolboy knows, William Shakespeareselected Nick Bottom and Francis Flute for therespective Pyramus and Thisbe roles in his rusticinterpretation of Ovid, and it is to his Master Snoutthat all Party Wall Surveyors should bow and bethankful. it was Master Snout who stated

“In this same interlude it doth befall

That I, one Snout by name, present a wall…

And such a wall, as I would have you think

That in it crannied hole or chink”

You will recall that Wall held his fingers thus andthus performed the task of

“that vile Wall which did these lovers sunder”


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And after his brief performance…

“my part discharged so;

and, being done, thus Wall

away doth go.” (exit)

The story (Soap?) proceeds and Thisbe dies.

Moonshine and Lion are left to bury the dead

“Ay and Wall too” says Demetrius

Bottom (starting up) says

“No, I assure you: the wall is down thatparted their fathers”

Thus we have our motto.

It took the deaths of both owners’ children to bringdown the wall between forbidding parents. Whilstthe party wall divides, faults or changes to theparty wall can result in the bringing together ofdisputing parties and it is here that the true role ofthe Party Wall Surveyor lies. The late John Ansteycontinually advocated as desirable use of theAgreed Surveyor, the truly arbitrary agent, and it isthe lesson of Pyramus and Thisbe and MasterSnout the tinker that should be ever with us in our dealings. To administer the Act, to impartially actthrough the wall and our

“…part discharged so;

and, being done, thus Wall

away doth go.” (exit)

Martin O’Shea AADipl RIBA MFPWS


Notes on the definition ofparty wall in successive Actsby Lawrance Hurst BSc FCGI CEng FICE FIStructE FBEng with

assistance from Robin Ainsworth BSc(Hons) FRICS FBEng FFPWS

The 1667 Rebuilding Act following the great firewas the first Act to mention party walls althoughthey had been a legal requirement since theAssize of Henry Fitz-Ailwyn in 1189. Clause viiiof the 1667 Act included the words:

Act for Rebuilding the City of London

(18 & 19 Car.2 Ch. viii)

That there shall be Party-walls and Party-piers, set out equally on each Builder'sGround, to be built up by the First Beginnerof such Building; and that convenientToothing be left in the Front-wall by the saidFirst Builder, for the better joining of the nextHouse that shall be built to the same:

and the words ‘party wall’ continued to be used insuccessive Acts, but it does not seem to have beenthe practice of including definitions in Acts untilQueen Victoria’s reign when ‘party wall’ wasdefined for the first time, in the 1844 Act, whichincluded the following clauses.

Metropolitan Building Act 1844

(7 & 8 Vic. Ch. lxxxiv)in clause 2

The Term ‘external Wall’ to apply to everyouter Wall of Buildings now built or hereafterto be built, which (excepting the Footingthereof on one Side) shall stand wholly uponGround of the Owner of such Buildings, andshall not be used or intended to be used as aParty Wall under the Definition herein-aftercontained, whether the same shall adjoin ornot to other outer or to Party Walls

The Term ‘Party Wall’ to apply to every Wallwhich shall be used, or be built in order to beused, as a Separation of Two or moreBuildings with a view to the Occupation

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WHAT IS A PARTY WALL?www.partywalls.org.uk

thereof by different Families, or which shallbe actually occupied by different Families,and also every Wall which shall stand uponGround not wholly belonging to the sameOwner to a greater Extent than theProjection of its Footing on one Side:

Clauses in later Acts read as follows:

Metropolitan Building Act 1855

(18 & 19 Vic. Ch. cxxii)in clause 3

‘External wall’ shall apply to every outerwall or vertical enclosure of any building notbeing a party wall:

‘Party wall’ shall apply to every wall used orbuilt in order to be used as a separation ofany building from any other building, with aview to the same being occupied by differentpersons:

‘Cross wall’ shall apply to every wall used orbuilt in order to be used as a separation ofone part of any building from another partof the same building, such building beingwholly in one occupation:

‘Party structure’ shall include party walls,and also partitions, arches, floors, and otherstructures separating buildings, stories, orrooms which belong to different owners, orwhich are approached by distinct staircasesor separate entrances from without:

London Building Act, 1894

(57 & 58 Vic. Ch. cxiii)

15. The expression ‘external wall’ means anouter wall or vertical enclosure of anybuilding not being a party wall.

“The external parts of premises are those which form

the enclosure of them beyond which no part of them

extends, and it is immaterial whether those parts are

exposed to the atmosphere or rest upon and adjoin some

other building, which forms no part of the premises let.”

Green v. Eales (1841), 2 Q.B. (A. & E.) 225.

16. The expression ‘party wall’ means:

(a) A wall forming part of a building, andused or constructed to be used for separationof ad-joining buildings belonging to different owners, or occupied, or constructed, or adapted,to be occupied by different persons; or

(b) A wall forming part of a building and standing to a greater extent than the projectionof the footings on lands of different owners.A wall has been held to be a ‘party wall’ to such height as

it belongs in common to two buildings, and to cease to

be a "party wall" for the rest of its height. Western v.

Arnold (1872), L.R. 8, Ch. 10, 84; 43 L. J. (Ch.) 123.

17. The expression ‘cross wall’ means a wallused, or constructed to be used, in any partof its height as an inner wall of a building forseparation of one part from another part ofthe building, that building being wholly in, orbeing constructed or adapted to be wholly in,one occupation.

18. The expression ‘party fence wall’ means awall used, or constructed to be used, as a separation of adjoining lands of different owners, and standing on lands of differentowners, and not being part of a building, butdoes not include a wall constructed on theland of one owner, the footings of whichproject into the land of another owner.

19. The expression ‘party arch’ means anarch separating adjoining buildings, storeys,

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or rooms belonging to different owners, oroccupied, or constructed, or adapted to beoccupied by different persons, or separatinga building from a public way or a privateway leading to premises in other occupation.

20. The expression ‘party structure’ means aparty wall, and also a partition floor orother structure separating vertically orhorizontally buildings, storeys, or roomsapproached by distinct staircases orseparate entrances from without.

London Building Act, 1930

(20 & 21 Geo. 5. Ch. clviii)

‘party arch’ means an arch separating adjoining buildings storeys or roomsbelonging to different owners or occupied orconstructed or adapted to be occupied bydifferent persons or separating a buildingfrom a public way or a private way leadingto premises in other occupation;

‘party fence wall’ means a wall used or constructed to be used as a separation of adjoining lands of different owners andstanding on lands of different owners andnot being part of a building but does notinclude a wall constructed on the land of oneowner the footings of which project into theland of another owner;

‘party structure’ means a party wall and a partition floor or other structure separating vertically or horizontally building, storeys orrooms approached by distinct staircases or separate entrances from without;

‘party wall’ means:

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(a) a wall forming part of a building andused or constructed to be used for separationof adjoining buildings belonging to differentowners or occupied or constructed or adaptedto be occupied by different persons; or

(6) a wall forming part of a building andstanding to a greater extent than the projectionof the footings on lands of different owners;

London Building Acts (Amendment) Act, 1939

(2 & 3 Geo. 6. Ch. xcvii.)

‘party fence wall’ means a wall (not beingpart of a building) which stands on lands ofdifferent owners and is used or constructedto be used for separating such adjoininglands but does not include a wall constructedon the land of one owner the artificiallyformed support of which projects into theland of another owner;

‘party structure’ means a party wall and alsoa floor partition or other structure separatingbuildings or parts of buildings approachedsolely by separate staircases or separateentrances from without;


(i) a wall which forms part of a building andstands on lands of different owners to agreater extent than the projection of anyartificially formed support on which the wallrests; and

(ii) so much of a wall not being a wallreferred to in the foregoing paragraph (i)as separates buildings belonging to differentowners;

Party Wall etc. Act 1996

(41 Eliz. II. Ch. xv.)

‘party fence wall’ means a wall (not beingpart of a building) which stands on lands ofdifferent owners and is used or constructedto be used for separating such adjoininglands, but does not include a wall constructedon the land of one owner the artificiallyformed support of which projects into theland of another owner;

‘party structure’ means a party wall and alsoa floor partition or other structure separatingbuildings or parts of buildings approachedsolely by separate staircases or separateentrances;


(a) a wall which forms part of a buildingand stands on lands of different owners to agreater extent than the projection of anyartificially formed support on which thewall rests; and

(b) so much of a wall not being a wallreferred to in paragraph (a) above as separatesbuildings belonging to different owners;

Summary

In 1844 and 1855, the primary definition of aparty wall was a separating wall, with, almost asan afterthought in 1844 but omitted in 1855, awall astride the boundary.

In 1894, we have (a) & (b) definitions, still with theprimary definition being a separating wall, butnow with a definite alternative of a wall astridethe boundary.

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In 1930, we have basically the same as in 1894.

In 1939 the alternatives were reversed, theseparating function definition now being restrictedto “so much of a wall”, however this was for thepurposes of Part VI only, an alternative definitionapplying to the rest of the 1939 Act, where “somuch of a wall… together with the remainder (ifany) of the wall vertically above such before-mentioned portion of the wall” applied for allother purposes.

In 1996, the primary definition of ‘a wall astridethe boundary’ was retained and the 1939 Part VIdefinition wording was repeated for separatingwalls.

Common Law Influence

Banister Fletcher (5th Edn 1914) includes areference to a law case in 1872 (Weston v Arnold,under the Bristol Improvement Acts 1840 & 1847)in which it was decided that a wall was only aparty wall “to such height as it belongs in commonto two buildings, but to cease to be a ‘party wall’for the rest of its height.” This judgement of courseapplied to the 1855 Act in force at that time, whena party wall was only defined as a separating wall,the alternative of a wall astride the boundaryhaving been omitted from that Act and might nothave been generally applicable as it was under theBristol Acts, but has been referred to in the recentTCC judgement – Jones v Ruth – and its applicationconfirmed, as outlined in the postscript below.

It is interesting to note that this 1872 judgement,effectively of “so much of a wall”, as enacted in1939 and 1996, was not confirmed in the 1894Act so did not statutorily apply from 1894 to 1939.Thus, between 1855 and 1894, when there was noalternative definition of a wall standing on thelands of different owners, the whole/full height of

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105) had been built; on the adjoining owner’s sidewith its external face on the centre line of the twobrick thick wall below. Flues from fireplaces in thebuilding owner's house (no 103) were incorporatedin that wall, above his original roof, up to stacks atparapet level. The Judgement includes the following:

As to the dividing walls between 103 and 105 thefollowing declarations are made:

a) The gable wall of 105 not enclosed by thechimney of 103 and the basement ground and firstfloors of 103 are and were in the ownership of 105.

b) The garden walls dividing 103 and 105 arewholly the property of 105 the claimants.

which confirms that the adjoining owner’s gablewall, above the original roof of the buildingowner’s house, cannot be interpreted as a raisingon the party wall with a right to enclose, as mostparty wall surveyors would have held before thisJudgment, but is an external wall in its own right.

Lawrance Hurst BSc FCGI CEng FICE FIStructE FBEngRobin Ainsworth BSc(Hons) FRICS FBEng FFPWS

any wall built as a separating wall was included inthe definition of a party wall regardless of wherethe boundary lay, and from 1894 to 1939 the sameapplied where the dividing party wall stood on theland of only one owner.

Food For Thought

So if you are concerned with PWeA works to abuilding in the old LCC area dating from between1855 and 1939, or perhaps between 1894 (bearingin mind the 1872 judgment) and 1939, there wasnothing to say that it was not the whole/full heightof a separating wall on the land of one owner“used or constructed to be used for separation ofadjoining buildings belonging to different ownersor occupied or constructed or adapted to beoccupied by different persons” that was defined asa party wall. It could be implied therefore that thenon-owner of the wall may have had a statutoryright to enclose on previously non-enclosed areaswithout needing the consent of the owner onwhose land the wall stands, presumably withpayment under the equivalent of what is nows11(11) of the 1996 Act.

I wonder, when considering party walls builtbetween those dates, does that right continuetoday, or does the current PWeA type (b) definitionof a ‘party wall’ retrospectively over-ride the factthat historically the full height/whole of such wallswere by definition ‘party walls’?

Postscript

In the recent TCC judgement – Jones v Ruth –where Mr Ruth, the building owner, of a twostorey terrace house (no 103), enclosed on thegable wall of Ms Jones’ adjoining three storeyhouse (no 105) and the Judge held that this was atrespass. The party wall in the basements andlower storeys is two bricks thick, off which the onebrick thick gable wall of the adjoining house (no

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The Pyramus & Thisbe ClubGyle-Thompson and others v Wall Street

(Properties) Limited

By Donald Ensom FRICS

A summary of this case is as follows:-

Defendants, owner of warehouse, one wall ofwhich formed the rear boundary of houses erectedby Plaintiffs. Warehouse being demolished forredevelopment of site for housing. The wall wasapproximately 38ft high and the Building Ownerswished to reduce the height to a much lower level.Notice served under Section 47 on the 22ndFebruary 1972; works described as “the partial

demolition and rebuilding of the present warehousewall in connecting it with the new premises to beerected behind it on out side”. This particularNotice was served on eleven house owners butmatters between Building Owners and AdjoiningOwners in all but three of the cases were settledby negotiation and can be ignored.

Adjoining Owner’s Surveyor maintained that theAct did not authorise demolition and rebuilding toa lower height.

The warehouse having been virtually demolished,the stability of the wall caused anxiety and theBuilding Owner’s Surveyor served Notice that theBuilding Owner would require to enter on thegardens and shore up the wall.

Further attempts were made by negotiation toresolve the problem of the reduction in height of thewall. An Award was signed relating to the shoring.

Negotiations having come to naught the ThirdSurveyor was called in and the three Surveyors meton the 18th December 1972. The Third Surveyordetermined that the three Surveyors had no powerto act as the Notice of the 22nd February wasmore than 6 months old (Section 47(3)).

On the 20th December new Notices were servedunder Section 47(1) which relied on the provisionsof 46(1)(k) and the works stated were “thedemolition of the existing party fence wall and itsreplacement with a party fence wall 19ft. high inaccordance with the Architect’s drawing shown toyou previously”. The Notices were addressed tothe individual house owners.

The two Surveyors again could not agree andreferred the matter to the Third Surveyor. A meetingtook place on the 18th January 1973 and on the2nd March 1973 the Building Owner’s Surveyorand the Third Surveyor under the powers of Section55(1) issued an Award, the substance of which wasthat the Building Owner was permitted to takedown the wall and rebuild it to a height of 19ft.

CASE STUDYGyle-Thompson and others v Wall Street (Properties) Limited

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Demolition commenced on the 17th March, whichwas one day after the 14 days allowed for anappeal in the County Court and a 14 days restrictionwhich was set out in the Award. Demolition wasstopped initially by the intervention of the policeand subsequently by an injunction.

The Adjoining Owner then took the case to Courtand claimed that the Award was null and void.During the case it was agreed that the only Section46 rights which were relevant were:

A right to make good underpin thicken or repair ordemolish and rebuild a party structure or partyfence wall in any case where such work isnecessary on account of defect or want of repairof the party structure or party fence wall; and

A right to raise a party fence wall to raise and useas a party wall and a party fence wall or todemolish a party fence wall and rebuild it as aparty fence wall or as a party wall.

Adjoining Owners’ Counsel argued that 46(1) didnot confer any specific right to reduce the heightof a party fence wall and that had it been intendedthat this right exist the Act would have said so.Counsel for the Building Owner submitted that byimplication of 46(1)(k) did confer the right and thatif this right did not exist there was no purpose inconferring a right to demolish and rebuild if theformer wall could not be changed because therewas already a power in 46(1) to demolish andrebuild where the structure was defective and thatno-one would want to take down and rebuild tothe same height unless the wall were defective.

The Judge did not accept this argument, butsuggested that someone might want to rebuild aparty fence wall in more durable or appropriatematerials or to renew it before it started todevelop defects!

Whatever the Judge’s reasoning he neverthelessheld that there was no right to demolish andrebuild to a lesser height.

The judgement then went into a second majorpoint, as to whether the Appeal was in the rightCourt, i.e. should it have been in the CountyCourt. The arguments here are in my view strictlylegal and of no real relevance to party wallpractice and, therefore, I have not gone into detail.

Having found that the Appeal was correctly in theHigh Court, the Judge stated that on those twopoints alone the Adjoining Owner succeeded butthen went on to deal with some proceduralobjections. These were:

That the December 1972 Notices were not servedon the Plaintiffs but on the Adjoining Owner’sSurveyor who had not been given authority toaccept service. You will see above that the Noticeswere addressed to the individual owners.

That the Adjoining Owners’ Surveyor was notappointed by them to be their Surveyor. It isbelieved that the Judge did not see the Notice ofAppointment dated 3rd September 1972 whichstated “I hereby appoint Mr. V. F. Johnson, FRICS,FIArb., as my Surveyor in connection with theabove matter, the Notice being headed with thetitle of the Act and the words “Party Wall between51 Paulton Square and the premises known as 57& 63 Old Church Street, S. W. 3.”.

That the Award was not delivered until 20th March1973, when a copy was handed to the Plaintiff’sSolicitors i.e. after demolition had commenced(see above that the Award was signed on the 2ndMarch 1973). He did, however, state that theAdjoining Owners on the 26th January fullyreporting on the proposed Award and advisingthem of their right to Appeal.

Donald Ensom FRICS

Sadly, Donald Ensom, who was a foundingmember of the Club, passed away last year

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Crossrail and the Party Wall ActIntroduction and summary of Crossrail’s works

This paper explores the use of the Party Wall etc.Act, 1996 on the Crossrail project and takes as acase study, the Eastern Ticket Hall of Bond StreetStation.

On this site, Crossrail’s work consists in brief of thedemolition of the existing buildings, the excavationof the station box and the construction of a singlestorey ticket hall for passengers to enter, purchasetickets and descend to the trains. The site will beleft by Crossrail as seen below for its previousowner to buy back for future development of theMasterplan Scheme.

At the time of writing, the demolition of theadjoining building is complete. The perimetersecant wall, constructed with contiguous pilingand bearing piling; the TBM (tunnel boringmachine) tunnelling are all complete; the SCL(spray concrete lined) tunnel enlargement forconstruction of platforms, crossovers and stationbox excavation works are all in progress.

This paper will briefly report on the sophisticatedmonitoring and settlement compensation systemswhich are available to twenty-first century

designers to ensure that complex civil engineeringprojects can continue to take place in the world’sbusiest cities without causing excessive damage toneighbouring buildings.

There is no other building with a Grade II* listingstatus across the whole of the Crossrail projectwhich is so close to an adjacent deep excavationas 20 Hanover Square. The photograph belowshows the adjoining building on the far side ofthe site and illustrates its proximity to the civilengineering works.

CASE STUDYCrossrail and the Party Wall Act

20 Hanover Square at top of photograph

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Brief History of Crossrail

In 1974, the transport committee, headed by SirDavid Barren recommended running British Railrolling stock in tunnels from Paddington toLiverpool Street. When the project is delivered in2018, it will link the West End, City and CanaryWharf for the first time, and the rail capacity ofLondon will increase by a tenth overnight.

Notices Normally Required under the Party

Wall Act

A building owner must serve a notice on theadjoining owner in order to carry out definednotifiable works. The obligation to serve noticeunder section 6 does not just extend to excavationsfor foundations, but for deep excavations such astunnels as well. The fact that the excavation doesnot start at the surface is not material; it is theremoval of the ground support, upon which theadjoining owner has a right to rely for support ofhis / her building which makes the work notifiable.

There is an option open to an adjoining owner to‘consent’ to the notified works. In practice consentis rare, particularly with owners of commercialproperties, and in the case of Crossrail, consent toworks was received in less than 2% of cases.

The Building Owner

Crossrail Limited comprises Transport for Londonand the Secretary of State for Transport and thesite was purchased by The Secretary of State forTransport.

The Crossrail Act and the Disapplication of the

Party Wall Act

To increase speed of construction, several piecesof legislation have been disapplied. This followsthe success of the Channel Tunnel Rail Link Act1996 which employed the same method prior tothe construction of the Channel Tunnel Rail Link,now known as High Speed 1(HS1).

It is the requirement to serve notices forexcavations which led to the disapplication ofsection 6 of the Party Wall Act. This type ofinfrastructure development would be slowedinexorably if awards were awaited prior tocommencing work. There would be literally tens ofthousands of owners along its 118 km length, 21km of which are tunnels, all requiring awards to beagreed before any tunnelling could take place.

To convince parliament that a key piece ofprotective legislation can be disapplied, a robustalternative must stand in its place. CrossrailInformation Paper D12 – Ground Settlementoutlines mitigating measures proposed byCrossrail to protect buildings which are predictedto be within areas of high levels of settlement asshown on the ‘zone of influence’. Differentactivities will cause different ground movement.For example, demolition may cause ground heaveas the ground is ‘unloaded’; tunnelling with atunnel boring machine (TBM) can cause a rippleeffect and settlement of the ground is calculatedusing a formula based on the area of the face ofthe cutting shield. In general, greater movementis likely in close proximity to the works, inparticular the tunnelling.

Vulnerable buildings within high contour values ofthe zone of influence are identified, assessed andcategorised according to their risk of damage dueto predicted movement. Those with a high riskcategory are subject to further assessment. Theadjoining building in this case study was given aPhase 3, Iteration 2 assessment, an in-depthstructural assessment due to its proximity to thetunnelling works, its heritage status, its age andconstruction. Following this assessment it wasconsidered prudent to follow the most stringentsettlement mitigation practice and a dedicatedgrout shaft was built from which controlled heavecould be directed.

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A schedule of condition is undertaken of allbuildings estimated to be subject to 10 mm ofsettlement or more and relevant buildings have theopportunity to enter into a Deed of Settlementwith Crossrail.

March 2007 Undertaking and Re-application of

the Act for Section 6 works

In March 2007 an undertaking was signedbetween the Secretary of State for Transport andthe freeholder of 20 Hanover Square whicheffectively reinstated the rights of the freeholder tothe benefit of section 6 of the Party Wall Act. It isworth noting that there is but one property andone freeholder across the whole 118 km of theCrossrail project which has an undertakingreinstating these benefits.

Compulsory Purchase and Masterplan Scheme

The Crossrail Act gives Crossrail the power tocompulsorily purchase properties which arestrategically advantageous to the infrastructureproject. The entire block, comprising 21 propertiesof which 20 Hanover Square was one, was wholly

owned by the same freeholder. The two buildingscompulsorily purchased by Crossrail were to thenorth-west corner of the block. When Crossrail’sworks are complete, the long term intention of thenow adjoining freeholder is to buy back the sitewith the completed single storey ticket hall and toconstruct a nine storey commercial building ontop of it. This, together with open public spaces atground floor is called the Masterplan Scheme.

English Heritage

All proposed work to the adjoining building iscarefully controlled due to its Grade II* listing.Westminster City Council’s conservation officerswork closely with English Heritage in approvingproposals. For minor repair works, the general ruleis that these should be carried out in ‘like for like’materials, including lath and plaster which wasfound in several of the walls.

A distinctive feature of the building is theornamental plaster dome over the supportedcantilevered stone staircase. The circular domefeatures plaster eagles and cameos to the squinches,gold edged and tasselled drapery to the supportingarches, hexagon and rose inset decorativecircumference to the glass dome and egg anddart cornices.

Movement Monitoring

Baseline readings of the adjoining building weretaken for 1 year prior to demolition. Horizontalnorth-south (x axis), east-west (y axis) and verticalmovement or settlement (z axis) of a building canbe monitored using a wide range of equipment ofvarying precision. As demolition progressed andthe party wall became exposed, targets were fittedto the party wall itself.

Additional monitoring was required for theexcavation works; the full range of monitoring ofthe adjoining building is set out below:


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Contours of the zone of influence with mauveshowing the compensation grouting ‘array’. Thesite is white, with the adjoining building to thesouth. Grout shafts are seen as small white circles.


• Tilt meters connected to a mains supply canshow real time north/south and east/westmovement over a period of time and are used asa reliable early warning system for differentialsettlement

• Invar scales are narrow 600mm long ‘bar codes’read manually

• Precise Levelling Points (PLP)

• Automated Total Stations (ATMs) which readgeodetic prisms fixed to adjoining buildings inreal time

• Hydrostatic levelling cells (HLCs) detect verticalground movement and differential settlement;a whole terrace of buildings can be linked inthis way

• Inclinometers are used to detect lateraldeflection of piles

Vibration monitoring

Vibration is not permanent movement, itterminates once the activity stops. Nevertheless,the damage it causes can be permanent. Buildings

can withstand a higher level of vibration or peakparticle velocity (PPV) than people, who canexperience feelings of nausea with even moderatevibration levels. High vibration levels can arisefrom demolition works, and transmitted toadjoining buildings, particularly if they areconnected. In this case, the adjoining propertywas separated by a sheet of compressiblehardboard which went some way to mitigating thetransference of vibration, but it was patchy inplaces and in fact a great deal of vibration was felt.

Compensation Grouting and Grout Shafts

A proven method of limiting settlement is withcompensation grouting. This methodology wassuccessfully used in the Jubilee Line Tunnelconstruction when the Big Ben bell tower wasprevented from collapse with compensationgrouting. Grouting is pumped under pressure intothe ground beneath the vulnerable building. It canbe accurately targeted and will cause a controlledheave of the ground but it can only be used in claysoils. Shafts approximately 20 metres deep havebeen strategically positioned within the zone ofinfluence. When settlement is detected by themonitoring instrumentation, grout is pumpedalong the length of the “Tubes a Manchettes” tothe area where it is needed.

The Role of the Checking Engineer

When the building owner’s proposals arecomplex, the appointed surveyor is advised tonominate a checking engineer to review thebuilding owner’s engineer’s proposals with respectto party wall matters and to advise accordingly.In the case of the demolition phase, the checkingengineer’s role was traditional and the two engineersliaised closely to develop and agree the scheme.The design was CAT III checked by an independentengineer not associated with the Crossrail projectand the agreed scheme was incorporated in aparty wall award.

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When it came to the tunnelling phase, essentiallycivil engineering proposals, the checkingengineer’s role became primarily to ensure theprotection of the adjoining building. Prior to theappointment of the tunnelling contractor,Crossrail’s designs were already well advanced.The contractor’s engineers worked with Crossrail’sin-house engineers to develop the proposals andwork could not start on site until Crossrail’sengineers had signed off the scheme. Designswere CAT III checked by two independentengineers and presented to the checking engineeras confirmation of due diligence.

Conclusion

The Party Wall experience on this particular sitehas (so far) been one of respectful co-operation.The reason for this is largely because both thebuilding owner and the adjoining freehold ownershave a twin goal which they wish to reach withminimum damage to the adjoining ownersproperty, minimum disruption to the occupyingtenants (which you will recall have no rights in theUndertaking) and in the shortest possible timeframe.

Shirley Waldron RIBAReproduced with kind permission of Crossrail Limited


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This shows the site with secant piled retaining walland the adjoining building hatched.

These 2 photographs show the site post-demolitionwith the temporary steels and weatherproofingfixed to the party wall


ARTICLEFor Whispers. Summer 2012

The Subterranean Development Bill

Some time ago Lord Selsdon, whom I know in aprofessional capacity, began a series of conversationswith me about subterranean development. InDecember 2011, the Subterranean DevelopmentBill began its passage through parliament.

The Club has played a leading role in drafting theBill. An advisory panel was set up for the purpose.I first of all approached Lawrance Hurst for someurgent engineering wisdom. The other membersof the National Management Team, John Lynn,Graham North and Alistair Redler were recruited.David Reynolds, as incumbent London Chairman,Robin Ainsworth, who was the Club’s liaison withthe Office of the Deputy Prime Minister werepressed into service and of course John Lytton,our own parliamentary expert.

Hugh St John joined us as geotechnical expert.Most recently, Richard Grove joined, having beenasked to advise the Belgravia Residents Association.

Work started on an amendment to the Localism Bill.Lord Selsdon’s was one of a number of amendmentsrelating to basement developments. He was lateroffered parliamentary time to introduce a billdedicated to subterranean development as a privatemembers bill. This is the bill that was first read inparliament on December, 8th. The bill, togetherwith its explanatory note prepared by LordSelsdon, is now on the Club’s website. Discussionis invited. Comments should be forwarded [email protected].

The advisory panel set out to avoid measurestoo draconian and prohibitive and very quicklyrealised that dispute resolution provisions in theParty Wall etc Act 1996 were ideally suited to anew bill governing subterranean development. Ascurrently drafted, the bill follows the principlesenshrined in the 1996 Act. It does introduce atighter definition of “surveyor” and incorporatespenalties if it is ignored.

The bill could not pass through all of the stagesnecessary before receiving royal assent duringthe last parliament. It may be reintroduced in thecurrent parliament. Ultimately, it may not becomelaw at all or it may be reinstated within theLocalism Bill or conceivably as an amendment tothe Party Wall Act. However, during the debatefollowing the Bill’s second reading, it becameclear that the Government does not favour newprimary legislation, particularly in light of currentinitiatives to cut down on “red tape”. Regulatorsare currently assessing the Bill to report toministers on whether the Bill’s provisions can beintroduced via existing regulatory frameworks. AsI write this review, they have yet to report.

David Moon DipBS FRICSChairman, The Pyramus & Thisbe ClubChairman, Advisory Panel for the SubterraneanDevelopment Bill

Lords-a-leaping

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It was an honour and a privilege to be invited tospeak at the P&T London Conference on 22ndMarch 2012 on the subject of “The Role of theThird Surveyor”. These words are not a repeat ofmy talk but part of some of the issues I covered.

I am told that I am often nominated and occasionallyselected to act as Third Surveyor but of course thenumber of times one is nominated or selected isnot known unless there is a matter in dispute whichhas to be determined. Fortunately the number ofreferrals are, what one might consider, to be relativelysmall bearing in mind the vast number of PartyWall Awards which are agreed across London (andEngland & Wales) and the times that one may benominated or selected as Third Surveyor.

The vast majority of Party Wall Surveyors will avoidreferring matters to the Third Surveyor as often apragmatic and sensible approach avoids such asituation arising. Having said this, there are occasionswhere there is a professional difference of opinionand two Surveyors are simply unable to agree. Thereis no reason why two Surveyors, acting independently– as they must – should fall out on a personal leveljust because they disagree on a point.

However, sadly this is not always the case. Toooften I see correspondence between Surveyorswhich contains personal invective, insults andreference to matters which are not relevant to thepoints they are discussing and trying to agree.

I would urge all Party Wall Surveyors to keep theirdiscussions and deliberations on matters arisingout of Notices to those issues which are relevant tothe dispute arising from the Notices and not getsidetracked into personal attacks or worse still,siding with one of the owners because they areunder pressure to do so.

I am pleased to say that the vast majority of Party WallSurveyors manage to avoid falling into those traps.

We all, on occasions, have moments in our workingday where we may feel our opposite numbers arebeing unreasonable or plainly daft and are temptedto respond in a very personal way. I know I do andI am sure, if you are honest, you do too.

What I try to do in that situation is to dictate areply and then sleep on the matter only to find thatthe following day I have calmed down a little andwill edit my response in a way that it relates solelyto the pertinent issues at hand.

As part of my research for the London Conference,I reviewed all of the Third Surveyor referrals madeto me over the last 3 years to see what was thesubject matter or matters referred and whichrequired determination. I have not includedgeneral enquiries or matters which were referredto me and then I did not need to make an award.In other words the subject matter which Surveyorswere unable to agree between them and they were:-

i. Agreeing the extent of damage caused 28%to an adjoining property.

ii. The amount of the Adjoining Owner’s 20%Surveyor’s fees.

iii. The amount of a financial payment to 17%an Adjoining Owner in lieu of damage being made good under s.11(8).

ARTICLEThird Surveyor Referrals. 14.06.2012

Third Surveyor Referrals

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Graham North FRICS MCIArb

iv. Miscellaneous – e.g. can stacks be 11%removed from party walls.

v. Organising Security for Expenses 10%accounts.

vi. Claims for compensation for loss 9%under s.7(2).

vii. Invited to make an award with 5%either the Building Owner’s or Adjoining Owner’s Surveyor.

The first thing which struck me is that the mostcontentious is not fees!

The second thing that surprised me was that I hadnot appreciated how many times Surveyors hadbeen unable to agree upon the extent of damagewhich had been caused to an adjoining property.More often than not, this came about as a result ofthe Schedule of Condition being poorly prepared,lacking in detail or failing to cover a sufficient areaof the adjoining property, taking into account theextent of the Building Owner’s works.

For example, with the number of basement anddouble basement excavations being undertakenover the last couple of years, I would often see theSchedule of Condition limited to the party wallonly and barely into the depth of the room letalone the rest of the property.

Movement then occurs to that adjoining propertyto both the party wall and the other areas of thebuilding, only for the Building Owner’s Surveyorto argue that some of those cracks away from theparty wall existed all along. If that were the case,why didn’t the Surveyors include it?

I would suggest that all Surveyors considerextending their condition surveys to other parts ofthe adjoining property where there are extensiveworks proposed next door. The additional timespent in extending the Schedule of Condition (and

after all you are at the property anyway so what isan extra half an hour or hour of time?) is timeextremely well spent compared to the time that isexpended in arguing over whether or not cracksexisted before the excavation took place.

So once again it boils down to the age old commentthat the Schedule of Condition, despite not being a“legal requirement”, nor is it mentioned in theParty Wall Act, is probably the most important partof the process when looking at the matters whichgive rise to a dispute.

The issue of fees is always a challenging subject. Ido not think that anyone begrudges another Surveyorfrom earning a reasonable fee for doing a properjob in accordance with the Act and as required byappointed Surveyors as far as case law is concerned.However, there are occasions where an AdjoiningOwner’s Surveyor seems to spend an inordinateamount of time at a high hourly rate for dealingwith matters which really should not take that long.

By way of an example, a Surveyor who describeshimself as knowledgeable and experienced andlooking to charge somewhere between £150-£200per hour should not then claim to spend 2 hourslooking at a draft Award and expect to be paid forit. There are of course very rare occasions whereenormous detail is required in an Award whichmay justify an hour or so’s time in commenting onthe Award (and when I say this I am excludingconsideration of drawings and Method Statementsetc.) but I fail to see how an experiencedpractitioner should take more than 30-60 minutesin commenting upon an Award.

When I am asked to determine what a reasonablefee for an Adjoining Owner’s Surveyor should be, Ilook at the information that has been provided andconsider what a reasonable Surveyor should spendin terms of time in dealing with the matter. Havingsaid this, often a Building Owner’s Surveyor fails tofulfil his role properly and sends poor informationto his opposite number without looking at that

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information or drip feeds every piece ofinformation through such that the AdjoiningOwner’s Surveyor has no choice but to keeplooking at the information and thus spend moretime on the matter.

Sometimes the Building Owner’s Surveyor behavesin this way because they have quoted a very lowfee for acting for the Building Owner and theywant to leave all the work to be done by theiropposite number. In that situation, it is onlyreasonable that the Adjoining Owner’s Surveyor’sfees should be higher than what might haveotherwise been anticipated if the Building Owner’sSurveyor has failed to do his job properly.

Building Owner’s Surveyors should not simply bea post box for the transfer of information from theDesign Team to the Adjoining Owner’s Surveyor.The Building Owner’s Surveyor has the same dutyand responsibility to be impartial and independentand comment upon the proposals as the AdjoiningOwner’s Surveyor.

The Surveyors should bring “value” to the process.More often than not that is what we do but justoccasionally Surveyors lose sight of this and aresidetracked into running up high fees. The amountof the Party Wall Surveyors’ fee can sometimes bemore than a third of the total cost of the works.

This must be avoided.

The comment by one Judge in a case concerningthe amount of a Party Wall Surveyor’s fees foracting as an Agreed Surveyor, and which was beingcontested by one of the owners makes the point:-

“The complaint is that he made a three coursebanquet out of what should have been a snack.”

Once the Third Surveyor has made an award, and Igenerally make my award and send it to theSurveyors for them to serve on their respectiveowners and for those Surveyors to ensure that their

owners are aware of their rights of appeal, onedoes not hear too much more unless the Awardhas been appealed and even them I am only toldafter the Appeal has been heard!

One such case was Sokal v Rodrigues 2008 whereone of the four awards that I made as ThirdSurveyor ended up in the Court of Appeal. One ofthe grounds for the Appeal was that I acted beyondmy authority in determining whether the AdjoiningOwner’s property had suffered damage arisingfrom works before notice had been served for thatwork. I took the view that it was in the interest ofboth owners for the Surveyors to determine thatparticular matter and if they were unable to do sothen the matter would come to me fordetermination. It did and I awarded that no suchdamage had arisen only to find (fortunately) thatthe Court of Appeal agreed that I had authority tomake such a determination.

For those of you who may have had the misfortuneto attend one of my talks on the subject, you willknow that I am very keen on the Party Wall Surveyorstaking an active role in determining matters betweenowners and not for Surveyors to avoid dealing withmatters because they claim it is beyond their“authority”. After all, if the Party Wall Surveyors donot deal with those matters, who is going to?

I think the courts are looking for Surveyors toresolve these matters as efficiently andeconomically as possible. Matters referred to thecourts in time-consuming litigation is not aneconomic way to resolve disputes.

Another case where my Award as the ThirdSurveyor was appealed is the county courtJudgement of Kremer v Loost 1997 (under theLondon Building Acts (Amendment) Act 1939)where I was asked to determine a number ofmatters including whether:-

The Building Owner’s Surveyor (who was also theBuilding Owner’s Architect) could fulfil the role of

ARTICLEThird Surveyor Referrals. 14.06.2012

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the Architect and the Party Wall Surveyor i.e. wasthere a conflict of interest?

The Building Owner (who was the leaseholderwishing to add an extra floor to the top floor flat)should name the freeholder as the joint BuildingOwner in the Notice?

I should have waited for the Adjoining Owner’sSurveyor to return from holiday for furtherSubmissions?

His Honour Judge Cowell considered the appealto the Award and said the following:-

“A number of cases have been cited to me whichshow what a third surveyor cannot do, and ofcourse it is quite clear in all those cases that hecould not decide on matters which were not inany way within the sections of the Building Act.But it seems to me that the matters really could notstart without a decision on those two fundamentalmatters (whether the Surveyor was properlyappointed and whether the freeholder should beenjoined in the Notice) and he (the third surveyor)was bound to decide it and, as I have indicated, itseems to me that he was simply right.”

My answer to each was:-

Yes.

No.

No (because I had received enough informationalready).

Whilst this was a case under the old procedures,the principles remain true for the current Act.

I finished my presentation to the LondonConference with my favourite quote from Hamlet,as befitting a Club which has a quote fromMidsummer Night’s Dream as its motto, thatreflects my approach and is one which I think

should apply to all appointed Surveyors under theAct, not just the Third Surveyor:-

(Polonius to Laertes)

“This above all: to thine own self be true,

And it must follow, as the night the day,

Thou canst not then be false to any man.”

Hamlet Act I, Scene III

If all Surveyors stick to this maxim, then theyshouldn’t go too far wrong.

Graham North FRICS MCIArb14 June 2012

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A stain glass window representation of Polonius.


A History of Party Wall

LegislationAs presented by Lawrance Hurst BSc FCGI CEng FICE FIStructE

FBEng to The Pyramus & Thisbe Club on 21st March 1997

As you know, party walls come in two sorts – wallsastride the boundary, which do not necessarilyneed to be used by the buildings on both sides,and walls on one side of the boundary which areused by the buildings on both sides. But you maynot know that until 1939 the latter was thedominant and primary definition, and henceuntil then it can be inferred that, at least from thepoint of view of party wall legislation, the actualposition of the boundary was less important thanthe use of the wall. The change in the separationdefinition when it became secondary in 1939 isalso interesting. The 1930 definition reads:

“a wall forming part of a building and usedor constructed to be used for separation ofadjoining buildings belonging to differentowners or occupied or constructed oradapted to be occupied by different persons”

You will realise that this is very different from the44(ii) definition in the 1939 Act, repeated in thenew Act, which is only “so much of a wall…”

and I suggest the change was made because thecomprehensive legislation which first appeared in1856 had resulted in most buildings in the area towhich the Act applied being by then constructedor reconstructed with walls astride the boundaryand hence that was the most important definition.The actual use is still important, whichever thesort of party wall, but the emphasis is now moreon where the actual boundary line runs. It will beinteresting to see which of the definitions wehave now had in London since 1939 becomesmost important in construction which has notbeen built with party wall legislation in force, orat least in mind.

Reflection on this change prompted me to look backthrough the party wall provisions in earlier Acts andnow I will share with you some of my findings.

The earliest reference to walls in London betweenbuildings and to disputes between neighbours,goes back to the legal date “beyond which noman can remember”, i.e. time immemorial, inthe year King Richard 1st was crowned – 3rdSeptember 1189. At that time Henry Fitz-Ailwynwas Mayor of London, and his Assize ordained,amongst other things, provisions:

“for the allaying of the contentions that attimes arise between neighbours in the citytouching boundaries made or to be madebetween the lands”

Now, some eight hundred and eight years later, theParty Wall etc. Act 1996 will extend those provisionsto the rest of the country.

Henry Fitz-Ailwyn’s Assize required each neighbourto give one foot and a half of his land on which theyshall build at their joint costs “a stone wall threefeet in thickness and sixteen feet in height”

Arches for cupboards or larders could beincorporated providing they were no more thanone foot deep i.e. they could not encroach beyondthe centre line. If one neighbour could not affordto build his half of the wall he was required to givethree feet of his land for the wall to be built at thecost of the other, but, in exchange for effectivelymoving the boundary, he could use the wall tobear his joists and enclose his building.

The Assize also contained clauses relating to rightsof light, drainage and other neighbourly matters.Disputes, when the neighbour objected to someaspect of the building in course of erectionadjoining his ground, were referred to the Mayorassisted by the twelve elected men who formedthe Assize, for adjudication.

PARTY WALL

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The reason given for requiring a stone wallbetween adjoining lands was to reduce the risk ofspread of fire, and indeed the Assize mentions thefire of 1136 which broke out at London Bridge,destroyed St Paul’s and other buildings, as far as St.Clement Danes’ Church, and the houses built ofwood covered with straw or stubble and the likewhich burnt so easily. This theme, of incombustibleconstruction to reduce the risk of spread of fire,was the reason for party wall legislation until the19th century, and indeed of course for otherregulations that sought to control buildingconstruction.

I say sought to control building constructionbecause that aspect of legislation seems to havesuffered, perhaps not for eight hundred and eightyears but for 700 or 750 from lack of enforcementmeasures. I say this because the legislation wasregularly reiterated in London, and of course theAct of 1667, following the great fire of London in1666 which I think first actually calls them “partywalls”, said much the same things as had beensaid nearly 480 years earlier. It also definedvarious sorts of buildings and specified both wallthicknesses and sizes of floor timbers. Once againthe adjoining owner was not allowed to use thewall until he had contributed to the cost. Wagesand costs of materials were to be reasonable, and,presumably to help overcome the shortage oflabour, foreigners were to be treated as freemanfor several years. This Act uniquely included aprovision entirely unrelated to building, whichhas been allowed to lapse. I refer to therequirement for the 2nd September

“to be yearly for ever hereafter observed asa day of public fasting and humiliation inthe City and Liberties – to divert the likecalamity for the time to come”

London however was not alone in sufferingdisastrous fires, other local Act relating to specificfires were made for:

Norwich in 1534, relating somewhattardily to a fire in 1508

Edinburgh in 1618 (fire in 1584)

Northampton in 1675 (September last)

Warwick in 1694 (5th September last)

Tiverton in 1731 (5th June, 1731)

Blandford Forum in 1731 (4th June, 1731)

(May and early June must have been a particularlyhot and dry period in the West Country in 1731)

Wareham in 1673 (25th July, 1762)

and Chudleigh in 1808 (22nd May, 1807)

and most of these refer to straw roofs, some ofthem to thatched walls, and to non-combustiblereconstruction.

It is interesting to note that, notwithstanding thelack of party wall legislation throughout thecountry, the indications are that we have beenbuilding with effective fire breaks for many years.This conclusion emerges from a comparison withan American experience where throughout thenineteenth and early 20th centuries disastrousfires laid waste large areas of their cities.

You must of course remember that fire resistance,as we now understand it, is a comparativelymodern term and indeed relating it to a durationof so many hours or half hours dates from thelate 1940’s.

Before 1900, the expression was ‘fireproof’ whichgenerally meant nothing more than non-combustible,as in the fireproof warehouses and mills of thenorth of England with brick jack arch floors on castiron beams and columns, enclosed with brick walls.

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But to revert to party walls, and to the history ofthe London legislation.

In 1724 workmen appointed by both owners indispute were required to give evidence to theJustices who issued an Award. So we come for thefirst time to an Award, but it is still in the hands ofthe lawyers and is really no advance on HenryFitz-Ailwyn’s Assize. We need to wait until 1772,when the two adjoining owners in dispute aboutrebuilding a defective party wall served Notices ina form set out in the Act and each appointed

“two surveyors or able workmen”

to award on the matter. Now it is out of the handsof lawyers and in the hands of surveyors, withsmall s’s or able workmen, who could even beengineers! but still only in connection with defectivewalls. At that time then the third surveyor (or ableworkman) was the fifth!

Two years later, in 1774, a new Act, because the1772 Act had been “found insufficient to answerthe good purposes intended thereby” – a failurenot exclusive to building legislation – dealt moreextensively with party walls – new ones, defectiveones, intermixed property that is straddling theboundary, timber partitions, and gave owners theright to raise party walls, providing they were ofsufficient fix thickness to comply with the Act. Therequirement for the appointment of two surveyors orable workmen for each side continued, and the Actagain into the standard form of Notice to be used,three months before it was intended to pull downparty walls, party arches, party fence walls or quarterpartitions, when decayed or of insufficient thickeners.

This 1774 Act incidentally required the appointmentof statutory surveyors for the various districts – thebirth of the District Surveyors who served Londonso well until the demise of the GLC.

The 1844 Act defines, for the first time, party wall,external wall, and owner, and includes a right tocarry out

“other necessary works incident to theconnection of the party wall for party fencewall with the premises adjoining”

standard Notice forms are included, but theappointment of surveyors or able workmen is notrepeated from the previous Act – the appeal is nowto the Official Referees, assisted by the DistrictSurveyor – back to Fitz-Ailwyn again! There washowever a right of forced entry for works authorisedby an Award, in cases where it was denied.

I have not discovered if the reason for the short lifeof the 1844 Act was the omission of appointedsurveyors, for it was replaced after only 12 years bythe 1856 Act, but I suspect it may have beenbecause the 1844 Act was so much longer and morecomprehensive than its predecessor and consequentlythe legislators just did not get it quite right.

However before leaving the 1844 Act behind, it isworth remarking on two matters, one of which weshall finally lose on 1st July, the other which hasnever been repeated. The first is a lack of responseresulting in a deemed assent, which applied threemonths after service of a Notice on an adjoiningowner, and also after only seven days in respect ofthe second, unrepeated provision, which entitledthe adjoining owner in receipt of a BuildingNotice to give Notice that the work be delayed

“so as to cause it to be executed at a moreseasonable or more convenient Time inreference to the Business or to the Family ordomestic Arrangements of such adjoiningOwner or his Tenants”.

Just think of the discussion this right could havecaused if it had continued to exist.

That Act also allowed any Party to raise a partyfence wall

“so as to screen from View any offensiveObject or Neighbourhood… but not so as toobstruct the free Circulation of the Air, or to

PARTY WALL

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injure the Property adjoining to or in theNeighbourhood of such Wall.”

Another interesting right which was understandablyquickly allowed to lapse.

The 1855 Act introduces the appointments ofsurveyors in much the same way as we now haveever since in London, that is either the ownerscan agree, or they appoint one Agreed Surveyorto act fairly between them or they each appoint asurveyor who jointly agree on a third, to whomany dispute between the first two will be referred.It also adds the definition of a party structure tothe definitions it repeats from its predecessor, butinterestingly omits a wall astride the boundaryfrom the definition of a party wall-which is only:

“every wall used or built in order to be usedas a separation of any building from anyother building, with a view to the same beingoccupied by different persons”.

The alternative of

“a wall forming part of a building andstanding to a greater extent than theprojection of the footings on lands ofdifferent owners”

was reintroduced in 1894 as sub-paragraph (b),perhaps because of a law case in 1872, when awall was held to be a party wall to such a heightas it belongs in common to two buildings and tocease to be a party wall for the rest of its height.We have then to wait until the 1939 AmendmentAct for the two definitions to be reversed, with thewall astride the boundary taking first place, and asI mentioned at the beginning, for the seconddefinition to be brought into line with the 1872law case.

The 1855 Act also includes the right to cut intoany party structure to cut away a footing or breastetc. in order to erect an external wall against theparty wall and indeed

“to cut away or take down such parts of anywall or building of an adjoining owner asmay be necessary in consequence of suchwall or building overhanging the ground ofthe building owner, in order to erect anupright wall against the same…”,

and continues

“the right to perform any other necessaryworks incident to the connection of the partystructure with the premises adjoining thereto.”

With the exception of minor refinements and ofprovisions relating to excavations within 10 and20 ft. which appeared in the 1894 and 1939 Actsrespectively, and to special foundations whichappeared in the 1939 Act, the 1855 Act effectivelyincluded all the rights and obligations ofneighbouring owners where the line of junction isbuilt on or built beside, and of the procedure forsettling differences that we in London have beenaccustomed to finding in the 1939 Amending Actand the rest of England will soon too becomeaccustomed to find in the new Act. What was notset down in detail however and indeed had notbeen included since 1667 was the procedure andrights where the line of junction is not built on, orbuilt beside, for which we had to wait until 1894.This omission for over 225 years was perhapsbecause the area to which successive Acts appliedwas already fully developed and hence new partywalls or external walls adjacent to the line ofjunction would be unlikely to be required.

You can perhaps now appreciate how theprovisions set out in Part VI, which are so familiarto us in London, developed over the years. Theseprovisions have been refined but largely repeatedverbatim in the new Act and we wait with sometrepidation to see if they are as readily applicableto buildings which do not have 808 years of partywall history behind them.

Lawrance Hurst BSc FCGI CEng FICE FIStructE FBEng

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Party Walls since AD50

The British Museum held an exhibition which rantill 29th September 2013 on:

Life and death

Pompeii and Herculaneum

It has yielded this gem:

As you will know from your history lessons, thevolcano Vesuvius erupted in AD79, burying twocities, Pompeii and Herculaneum and from the1700s archaeological digs have uncovered theburied towns and revealed details of the lives ofthe inhabitants. The marble plaque below wasdiscovered on a wall between two ordinaryhomes in a side street in Herculaneum and givesan insight into the social realities that must havebeen present in every town in every street in theRoman Empire. It gives a glimpse of the propertyownership and influence of freedmen and womenin that society. The marble plaque is inscribed onboth sides; on each side is an inscription.

One side reads:

M. NONI.M.L.DAMA

PARIES.PERPETUUS.PRIVAT(US)

‘This is the wall of Marcus Nonius Dama thefreedman of Marcus, private and in perpetuity’

The other side reads:

IVLIAE PARI(es)

PRIVA(TUS) PERPETUUS

‘This is the wall of Julia, private and in perpetuity’

The man’s inscription explicitly states that he is afreedman, M(arci) L(ibertus); the woman’s givesonly one name, Julia, and no hint of her father’sname, suggesting that she, too is a freed slave. Theplaque probably marks a dispute that was settledby the city magistrates.

Researcher: Shirley Waldron BArch (Hons) DipArch RIBA

EXHIBITIONParty Walls since AD50

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Thanks to all of you who write to your MPsadvising them of this Private Members Bill andasking them to support it. As anticipated, the Billhad its first reading but failed its second. CharlieElphicke MP for Dover and sponsor of the Billaccepted the P&T London Branch’s offer to form a“Practitioners Advisory Group” to examine the Billin greater detail. I decided that the Group shouldcomprise not only member of The Pyramus &Thisbe Club but others as well. Further to this endI invited Alex Frame to represent the Faculty ofParty Wall Surveyors and David Powell as theleading expert in the country on boundary matters.Apart from Alex and David Powell the groupcomprised myself as Chairman, David Moon (asChairman of the National Committee) and DavidHannent (Chartered quantity Surveyor, originatorof the National Schedule of Rates and practitionerin the field of boundary disputes).

The PAG has met on a number of occasions andthe original drafting of the Bill (based upon theParty Wall etc Act 1996) has been developed tothe point where it should be presented it to theMinistry of Justice. Like the Party Wall etc Act1996 the Bill proposes a system of “expert

determination” with a right of appeal. In order tomaintain flexibility and provide a degree ofprotection against future developments we areadvocating secondary legislation based uponschedules and practitioners’ guidance notes.

I do not intend to throw the Bill open to generalconsultation at this stage, I fear that this wouldlead to a deluge of well meaning comment andcriticism. It would be impossible to pleaseeverybody! The aim of the PAG, is to be able topresent the Ministry with a suggested solution tothe problem of boundary and “rights of way”disputes that is reasoned, based upon a provenprocedure, as flexible and to a degree “futureproof” as possible, is to the public benefit and hasthe support of practitioners and Members ofParliament.

Andrew Schofield BSc MRICSChairman of the Practitioners Advisory Group forthe Property Boundaries (Resolution of Disputes) Bill

PROPERTY BOUNDARIES

Property Boundaries (Resolution of Disputes) Bill

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IV The Lord Mayor shall on or before the 1stApril 1667 declare which and how many streetsshall hereafter be deemed by-lanes, streets orlanes of note, or high and principal streets. Allthe said streets intended to be rebuilt shall bemarked and staked out (so that) the breadth,length and extent thereof shall be better knownand observed. (The penalty for moving orremoving these stakes was three monthsimprisonment or £10, or, if the offence wascommitted by a person of low and mean condition,that he shall be openly whipped till his bodybe bloody).

The act of trespass has a long and glorious historyin this country, often being met with violence orimprisonment.

Prior to the enclosure acts much land was heldand used in common. Even party walls weregenerally held in common until the 1925 Act.

Whilst mass trespass such as that at Kinder Scoutin 1932 has led to the right to roam open countryunder the Countryside and Rights of Way Act2000, numerous legislation has permitted moreand more governmental and quasi-governmentalofficials to enter private urban land, at the sametime closing off more public land to the rest of us.Only the Party Wall etc Act 1996 and the Accessto Neighbouring Land Act 1992 are of any help toa building owner.

A building owner wanting access onto hisneighbour’s land to carry out building works on

TRESPASS

By way of introduction to his article on trespass, David Bowden referred to the 1667 Rebuilding Act

(Museum of London website) and to the following clause in particular:

Trespass Matters

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his own land is affected by various laws, bothcommon and statute.

Firstly trespass is a tort, plain and simple. It doesnot need to involve damage, and the remedy is aninjunction, damages, or both.

A trespasser can be ejected with reasonableforce. Reasonable force is undefined, but is lessthan shooting him (2001) or shaking him off aladder (1754).

Secondly, under the European Convention, Article8, everyone has the right to respect for his privateand family life, his home and his correspondence,which means no trespassing.

Thirdly, we have statutory offences, the followingbeing a pertinent, if small, selection.

Under the Theft Act 1968, section 9, a person isguilty of burglary if he enters a building as atrespasser and attempts to steal or damageanything in the building, and on conviction onindictment is liable to imprisonment for up tofourteen years.

Under the Criminal Law Act 1977, section 6,anyone who without authority uses or threatensviolence to any person or property in order to gainentry into any premises for himself or another,when there is someone there opposed to suchentry is liable to arrest, and on summary convictionto imprisonment for up to six months or a fine atlevel 5, £5,000, or both.

Under the Criminal Justice and Public Order Act1994, anyone who satisfies certain conditionsand has been directed by a police officer to leaveland and either fails to leave the land as soon asreasonably practicable, or comes back withinthree months commits an offence, can be arrested

without a warrant, and is liable on summaryconviction to up to three months in prison or afine of up to level 4 on the standard scale,£2,500, or both.

Under the Serious Organised Crime and Police Act2005, section 127, a police constable may direct aperson to leave the vicinity of premises and notreturn within a period as the constable mayspecify of up to three months, failure to complywith which renders him liable, on summaryconviction, to imprisonment for up to 51 weeks ora fine not exceeding level 4 on the standard scale,£2,500, or both.

Finally, under the Legal Aid, Sentencing andPunishment of Offenders Act 2012, section 144 isthe new offence of squatting in a residentialbuilding, which attracts imprisonment of up to 51weeks or a fine at level 5 on the standard scale,£5,000, or both.

How should our poor building owner get aroundthis little lot and get onto next-door’s land to fixhis building without ending up either ejected,arrested, imprisoned, fined, or all of them?

He could just ask his neighbour, but a refusedrequest effectively brings the bad news that therewill be no access.

He might think it perhaps better to go in quietlyand hope either no-one notices, or if they do, hiswork can be finished before the adjoining ownercan get an injunction or find a friendly policemanto give the necessary direction and make an arrest.

There is always a risk as injunctions can be gotvery quickly; you only need a judge, a swornstatement, an undertaking in damages on anindemnity basis, and either nerves of steel orenough stupidity to follow it through. The risk of

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the police actually turning up is perhaps variable,as is the risk that the landowner may simply knowa lot of large people who are happy to help himexercise his common law right of self help.

Better, though, the Access to Neighbouring LandAct enables access to be obtained through thecourts where necessary for the maintenance andpreservation of land. Whilst this does includetaking down and rebuilding, it also generallyinvolves lawyers and costs in terms of time andmoney, sometimes compensation, and is veryrarely used.

Better still, and far more friendly, at least to thebuilding owner if perhaps not the adjoiningowner, is the Party Wall etc Act.

It developed from legislation in London after theGreat Fire in 1666, a tad over three hundred yearslater, the benefits of which were extended todevelopers in the rest of England and Wales.

It facilitates construction and the full use of aparcel of land by codifying rights over the generallyshared ownership of party walls, by grantingprotection to nearby foundations regardless of theadjoining owner’s rights of support to them, and bygiving rights of temporary access to facilitate, attimes permanent, works on the adjoining land.

The Party Wall etc Act is administered by surveyorsrather than lawyers, and the courts generallydon’t get a look in until all has been settled in anaward by them.

Under section 1, notice has to be given beforebuilding a new wall on the boundary.

The only right given over adjoining land is to placeprojecting footings between 1 and 12 months afterservice of notice.

Clearly, a right of access to do that follows, as thefoundation work is in pursuance of the Act, but itdoes not do so so clearly to build the wall.

Section 2 relates to works to party walls, essentiallywhere there is a form of shared ownership andrights are given over the adjoining owner’s property.

Without the Act, rebuilding next-door’s half of theparty wall would be a trespass, but with it, it is not.

Again, clearly a right of access to do that follows.

Section 6 controls excavation.

Notice has to be served if there is an intention toexcavate within prescribed distances of otherpeople’s buildings.

There is a right to underpin or otherwise safeguardthe foundations of next door’s building, and if thatis not intended, the adjoining owner can demandit. Any dispute is determined by the surveyors.

This section has two main effects:

Firstly it removes any question as to whether theadjoining owner has any right to support to hisbuilding, which he may well not have, particularlyif none was granted or none acquired byprescription.

Secondly, it gives the building owner the right tounderpin the adjoining owner’s building, therebypreventing its existence hindering fulldevelopment of the building owner’s land.

Clearly, a right of access for underpinning or othersafeguarding follows.

Section 7 prevents the placing of specialfoundations on adjoining land without consent,

TRESPASS

36


ie there is no right to put reinforced concrete onadjoining land.

It also, and most importantly, effectively statesthat all rights granted by the Act are subject tonot causing unnecessary inconvenience to anyadjoining owner or to any adjoining occupier.

This is important because it goes to the very heartof the Act.

Much as in a failure to serve notice properly,without which we would not have had the P&T, noright can be exercised so as to cause unnecessaryinconvenience. Whilst there is the right to causenecessary inconvenience, including damage, withcompensation and making good following, thereis no right to carry out work, even otherwiseauthorised by the Act, so as to cause unnecessaryinconvenience. With no right to do the work, itfollows that there is no right of access, and noprotection as in the avoidance of claims innuisance where the nuisance necessarily followedthe carrying out of the work. With no right to dothe work, any access to adjoining land and anywork to adjoining buildings or land, including theother half of the party wall, will be trespass.

Section 8 gives a right of access to adjoiningland for the purpose of executing any work inpursuance of this Act, provided fourteen days’notice is served or there is an emergency. Thecourts, guided by lawyers, have held “work inpursuance” to include any work referred to inthe Act, and so access would be available forconstruction of a boundary wall notified undersection 1 as well as the projecting footings.

Section 11 makes it an offence for an occupier torefuse to permit, or anyone to hinder or obstruct abuilding owner, from doing anything he is entitledto do with regard to land or premises under

section 8, punishable on summary convictionby a fine at level 3, £1,000. Although there is noimmediate imprisonment, it would follow failureto pay the fine.

Following the statutory provisions to gain accessmay cost you a few thousand pounds, but enablesyou to avoid unexpected delay to the contract aswell as avoiding missing Christmas at homebecause you had to spend it at Her Majesty’spleasure. It turns the tables and any adjoiningowner or occupier trying to stop you from enteringhis land and doing authorised work, as he canend up being fined or spending Christmas insideinstead of you.

As Derek Curtis Bok, a North American lawyerand president of Harvard, once said, “If you thinkeducation is expensive, try ignorance.”

Unless you are capable of making a comebackon chat shows after spending time in prison, atleast a quarter of the term imposed with a furtherquarter out on tag, it might be better to stick tothe lawful methods of getting work done on otherpeople’s land.

David Bowden BSc MRICS ACIArbUrban Building Surveyors

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