The Pyramus and Thisbe Club

PROMOTING EXCELLENCE IN PARTY WALLS PRACTICE

www.partywalls.org.uk

Thisbe, by John WilliamWaterhouse, 1909.

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WELCOME

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.

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HISTORY

The Pyramus and Thisbe Club

The Pyramus and 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 opinions aboutinteresting 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 and 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 and 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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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 &Thisbe’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 & 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 & Thisbe and Master Snoutthe 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

Notes on the definition ofparty wall in successive Actsby Lawrance Hurst with assistance from Robin Ainsworth

The 1667 rebuilding Act following the great firewas the first Act to mention party walls althoughthey had been a legal requirement since the Assizeof Henry Fitz-Ailwyn in 1189. Clause viii of the1667 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?

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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WHAT IS A PARTY WALL?

(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;

‘party wall’ means:

(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;

‘party wall’ means:

(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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WHAT IS A PARTY WALL?

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.

A logical extension of this is that a line of junctionwhich is not built on exists on top of a party walland the appropriate notice if an owner wishes toraise, or rather build on it is under s.1, and notunder s.(2)(a). Hence a notice under s.1 should beserved if a building owner wishes to build a wallon top of a party wall, perhaps under s.1 (5) for anew external wall to enclose a loft extension, if theadjoining owner does not consent to a raising onthe party wall.

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 and Thisbe ClubGyle-Thompson and others v Wall Street

(Properties) Limited

By Donald Ensom

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

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.

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, ofthe demolition of the existing buildings, theexcavation of the station box and the constructionof a single storey ticket hall for passengers to enter,purchase tickets and descend to the trains.Temporary shafts are constructed to enable menand machinery to construct permanent cross-overtunnels which will link the eastbound andwestbound running tunnels. A proposed temporarycrossover tunnel will facilitate access for thetunnel boring machine and enlargement of therunning tunnels to give platform space forpassengers. The site will be left by Crossrail asseen below for its previous owner to develop the‘Masterplan Scheme’.

At the time of writing, the demolition is complete.The perimeter secant wall, constructed withcontiguous piling, and the bearing piling is allcomplete; tunnelling, crossovers and station boxexcavation works are yet to be commenced.

This paper will show that the Party Wall Act hasfacilitated agreements between owners, inparticular within the unique remit of the March2007 Undertaking and allowed Crossrail’s worksto continue uninterrupted once designs have beenfinalised. It has provided a collaborative forumfor negotiating agreements whilst protecting theadjoining owner’s building from excessive damage.

It will also report on the sophisticated monitoringand settlement compensation systems which areavailable to twenty-first century designers toensure that complex civil engineering projects cancontinue to take place in the world’s busiest citieswithout 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 excavation.The photograph below shows the adjoining

CASE STUDYCrossrail and the Party Wall Act

Both temporary access shafts can be seen, buteventually the whole site will be excavated toform the station box

building on the far side of the site and illustrates itsproximity to the civil engineering works.

A 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.

History of the Party Wall Act

The Party Wall etc. Act, 1996, to give it its full andproper name, originates from Henry Fitz-Alwyn’sAssize dated 1189 and was developed in 1667 tofacilitate the rebuilding of London following theGreat Fire of 1666; subsequent legislation throughthe centuries continued to modify the wordinguntil the London Building Acts (Amendment) Act1939 set out the provisions in Part VI. The wordingin Part VI is refined but largely repeated in the1996 Act.

Outline of the Party Wall Act

The Party Wall Act is facilitative in that itacknowledges and supports the right of thebuilding owner to develop land which is lawfullyowned, allowing development to commence oncean award has been made, subject to thesatisfaction of other statutory requirements.

The Act is administered by party wall surveyorswho are nominated by the owners. Buildingsurveyors, structural engineers and architects arepreferred with a professional working knowledgeof construction; lawyers are less favoured as theprocess of agreeing an award is intended to becooperative and not adversarial. There may be anadvantage in appointing a surveyor who is apracticing member of an accredited body ofproperty professionals such as the Royal Institutionof Chartered Surveyors (RICS), Royal Institute ofBritish Architects (RIBA) or the Institution of StructuralEngineers (IStructE), as accreditation requirescompliance with a Professional Code of Conduct.

The surveyor’s role is such that duty of care lieswith the properties in question; the surveyor mustbe impartial and should not allow the appointingowner to influence the process. An adjoiningowner who for example, objected to the worksduring the planning consultation period cannotfurther frustrate the progress of developmentthrough the Party Wall Act. There are timescalesbuilt into the process which means that a surveyorwho is very slow to respond may find he loses hisvoice as an award can be made ‘ex-parte’. Ifsurveyors cannot reach agreement, a third surveyor,named at the very beginning of the process andbefore disagreement has had a chance to arisewill hold sway.

A ‘building owner’ under the Act means an ownerof land who is desirous of exercising rights underthe Act. If a subsidiary company is set up for thepurposes of development, it is that special purposevehicle which is cited as the building owner andnot the parent or holding company of which thedevelopment company is an off-shoot.

An ‘adjoining owner’ may be a freeholder, aleaseholder and indeed any tenant who occupiesthe property with an agreement which has morethan one year left to run. A shorthold tenant whorenews the agreement annually does not haveowner’s rights as there is always less than oneyear to the expiry of the tenancy.

The building owner will serve notices for therelevant works on an adjoining owner and if adispute arises within the meaning of the Act, anagreed surveyor is appointed by both owners oreach owner appoints his own surveyor to resolvethe dispute.

The meaning within the Act of the word ‘dispute’or ‘dissent’ specifically does not mean that theadjoining owner can prevent the works if he findsthem disagreeable – the opportunity to take thatstance is typically at the planning stage. ‘Dispute’in this case means that the adjoining owner wishesto avail himself / herself of the opportunity to

appoint a surveyor who will agree the award andthereby safeguard his / her interests. The use of theword ‘dispute’ can give rise to the idea of anopportunity for an argument; this is not intendedby the Act.

An award sets out the ownership of the propertiesand the appointment of surveyors. It describes thenotifiable works, sets out the rights of each ownerand the responsibility of the building owner tomake good any damage that the works may cause,or to pay money in lieu. It sets a time limit on thework and will include relevant documents –architect’s and engineer’s drawings, impactassessments and monitoring agreements,contractor’s method statements, fees and othercosts. Once the award is served by the surveyors,each owner has a right to appeal the award withina two week period if he / she feels it has beenimproperly made. Usually, the award and its termsare carefully considered and this rarely happens inpractice.

Whilst the Act sets out statutory time limits startingfrom the date on which notices are served, in fact,the award cannot be agreed until the methodologyfor executing the works has been agreed. In thecase of this project, Crossrail engineers woulddiscuss the methodology with engineers undereach of the different contracts and once this wasagreed an award could be made. The works whichare the subject of the award must generally becommenced within 1 year of service.

Notices normally required under the

Party Wall Act

A building owner must serve a notice on theadjoining owner if he/she wishes to:

• build on or astride the line of junction (theboundary) – section 1

• carry out work to a party structure – section 3(invoking rights under section 2)

• excavate within 3 or 6 metres (measured

horizontally) of the adjoining owner’s property –section 6

The obligation to serve notice under section 6does not just extend to excavations forfoundations, but for deep excavations for tunnelsas well. The fact that the excavation does not startat the surface is not material; it is the removal ofthe ground support, upon which the adjoiningowner has a right to rely for support of his / herbuilding which makes the work notifiable.

There is an option open to an adjoining owner to‘consent’ to the notified works. It would be highlyrecommended that consent is conditional uponthe preparation of a pre-commencement scheduleof condition which is reviewed upon completionof the works in order to determine whether anysubsequent damage to the property is attributableto the works. In practice consent is rare,particularly with owners of commercial properties,and the building owner should always prepare forthe eventuality that consent will not beforthcoming and awards will be requiredthroughout. 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. In this casestudy, the two buildings which were compulsorilypurchased by Crossrail were owned by the samefreeholder as the adjoining building, a Grade II*listed property. The site was purchased by TheSecretary of State for Transport.

Disapplication of legislation for major projects

There is a national and regional interest in seeingthe Crossrail project completed as quickly aspossible. Firstly, the project is publicly funded andthe longer the project is under construction, themore costly it is likely to be. Secondly,infrastructure work of this nature in a heavilycongested part of a major city comes withsignificant disruption to peoples’ lives – roads areclosed and those which are not are subject to

CASE STUDYCrossrail and the Party Wall Act

additional traffic with heavy goods vehiclestransporting an increased amount of plant,materials and people. Huge volumes of excavatedsoil need to be disposed of, utilities are renderedvulnerable and noise levels are increased. Thirdly,once complete, the increased efficiency of thetransport system is intended to boost the economy– and the sooner the better.

To increase speed of construction, several piecesof legislation have been disapplied either in part orin total. This follows the success of the ChannelTunnel Rail Link Act 1996 which employed thesame method prior to the construction of theChannel Tunnel Rail Link, now known as HighSpeed 1(HS1).

No doubt legislation to facilitate futureinfrastructure projects will continue to seek todisapply Acts of Parliament to suit their needs.

The Crossrail Act and the disapplication of the

Party Wall Act

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 118km length, 21km of which are tunnels, all requiring awards to beagreed before any tunnelling could take place.

Paragraph 17 of Schedule 14 to the Crossrail Actdisapplies the duty on Crossrail to comply withcertain sections of the Party Wall etc. Act, 1996,(reproduced here verbatim):

• No notice under section 1(2) or (5) of the PartyWall etc. Act 1996 (c. 40) (notice before buildingon line of junction with adjoining land) shallbe required before the building of any wall inexercise of the powers conferred by this Act.

• Sections 1(6) and 2 of the Party Wall etc. Act1996 (rights of adjoining owners) shall not have

effect to confer rights in relation to:(a) anything held by the Secretary of State orthe nominated undertaker and used, or intendedfor use, by the nominated undertaker for thepurposes of its undertaking under this Act, or

(b) land on which there is any such thing.

• Section 6 of the Party Wall etc. Act 1996(underpinning of adjoining buildings) shall notapply in relation to a proposal to excavate, orexcavate for and erect anything, in exercise ofthe powers conferred by this Act.

Obligation on Crossrail to protect

buildings in general

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 by Crossrailto protect buildings which are predicted to besubject to high levels of settlement, drawn ascontour lines on a map of the area showing ‘zonesof influence’. Different activities will causedifferent ground movement. For example,demolition may cause ground heave as the groundis ‘unloaded’; tunnelling with a tunnel boringmachine (TBM) can cause a ripple effect andsettlement of the ground is calculated using aformula based on the area of the face of thecutting shield. In general, greater movement islikely in close proximity to the works, in particulararound complex station sites where there may becumulative effects from several tunnels.

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 a‘Phase 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 was

considered prudent to follow the most stringentsettlement mitigation practice and a dedicatedgrout shaft was built from which controlled heavecould be directed.

Recommendations are made for protection of thebuilding. Though the adjoining building has acantilevered stone staircase, it has been providedwith supporting steels in the past and was notthought to be at risk of collapse through excessivemovement. However, the glass dome was thoughtto be at risk – see section below: (Predicteddamage to the glass dome).

A defects survey, comprising a written andphotographic record, is undertaken of all buildingsestimated to be subject to 10 mm of settlement ormore. If damage is reported, the original survey iscompared with a further inspection and this willform the basis for any claim.

Paragraph 7 of Schedule 2 covers entitlement tolosses should these arise as a result of the works,but the distribution of public money amongclaimants would not be undertaken lightly.

Relevant buildings also have the opportunity toenter into a Deed of Settlement with 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 the adjoining building. WhilstCrossrail’s proposals were not known in detail atthe time, the infrastructure principles andanticipated settlement were sufficiently known tobe able to agree the following:

The Promoter (Crossrail) hereby –

• acknowledges by virtue of its means ofconstruction that the (adjoining) Property maybe sensitive to differential movement;

• acknowledges that the Station Works willincrease the settlement of the (adjoining)Property beyond that caused by the constructionof the running tunnels alone

• agrees that suitable protective works shall betaken during construction to prevent so far as isreasonably practicable any damage… beyondDamage Category 1…

The adjoining owner was sufficiently concernedabout the adjoining property that Crossrail agreedthat:

• …consultation will be held with (the adjoiningowner) for all works that would require a partywall award as if the party wall award negotiationwas proceeding.

This clause effectively reinstated the rights of thefreeholder of the adjoining building to the benefitof section 6 of the Party Wall Act. It is worth notingthat there is but one property and one freeholderacross the whole 118 km of the Crossrail projectwhich has an undertaking reinstating the benefitsgiven by the Party Wall Act. Crossrail consideredwhether to draft and agree an alternative bespokeprocedure with the freeholder, but in the enddecided to implement the Party Wall Act itself asthe legislation is tailor-made for the purpose. Note

Contours of the zone of influence with mauveshowing the area of the compensation grouting‘array’. The site is white, with the adjoiningbuilding to the south.Grout shafts are seen as small white circles.

CASE STUDYCrossrail and the Party Wall Act

also that these rights did not extend to theleaseholder who was not a signatory to the March2007 undertaking.

Compulsary Purchase and Masterplan Scheme

The Crossrail Act gives Crossrail the power tocompulsorily purchase properties which arestrategically advantageous to the infrastructureproject. In this case study, the entire block,consisting of 21 properties was wholly owned bythe same freeholder, albeit held under differentsubsidiary companies. The two buildings whichwere compulsorily purchased by Crossrail were tothe north-west corner of the block. WhenCrossrail’s works are complete, the long termintention of the, now adjoining freeholder is todevelop the site with the completed single storeyticket hall, shown below in blue, and to constructa nine storey commercial building on top of it.This, together with open public spaces at groundfloor 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 officersautomatically inform English Heritage of proposalsand there is a mandatory 12 week consultationperiod for any significant proposals. For minor

repair works, the general rule is that these shouldbe carried out in ‘like for like’ materials, includinglath and plaster which was found in several of thewalls. Paint and brickwork (lime mortar) shouldalso match wherever possible.

A patch of blockwork was found in the east wallflanking the cantilevered stone staircase intowhich it was proposed to insert cementitiousanchors. The blockwork was replaced with a steelbox frame, fixed to the flanking brickwork; thebox frame improved the rigidity of the whole wallso that it would be capable of withstanding theadditional shear forces. In a listed building, suchwork must be reversible so that when there is nofurther need for the box frame, it can be removed,the original blockwork reinstated and the propertyreturned to is original condition.

A distinctive feature of the building is theornamental plaster dome over the supportedcantilevered stone staircase. The circular domefeatures plaster eagles and cameos to thesquinches, gold edged and tasselled drapery to thesupporting arches, hexagon and rose insetdecorative circumference to the glass dome andegg and dart cornices.

Demolition

When a building is demolished, the adjoiningbuilding may be exposed to elements which it isnot designed and constructed to deal with. Overtime, buildings may move, settle and gradually

Masterplan Scheme

Adjoining (Heritage) Building

Single storey station box entrance

take support from their neighbours; this isparticularly true of historic brick buildings withshallow spread footings. The adjoining buildingmay have come to rely for support on the buildingwhich is about to be demolished, so temporarysupport must be provided in its place. Walls mustbe strengthened to cope with exposure to newwind loads and protection from precipitation isalso vital. If there are no plans to replace thedemolished building with a permanent structure,the protection provided must be permanent.

In this case study, the original proposal was for asteel gantry frame to be constructed within theadjoining building to withstand wind loads andthis highly intrusive scheme was given heritageconsent. The demolition contractor reviewed theproposals and presented an alternative schemewhich fixed steel walings to the party wall withresin anchors bolted through the cross walls of themain staircase.

This proposal took the temporary works outsidethe adjoining building making it far less intrusive.It had the additional advantage of allowing thefollow-on contracts for piling and excavations,which would have been impossible if raking propshad been implemented.

Investigative works, both intrusive drilling andthermal imaging, were carried out to check thethicknesses of all walls, the connections of thecross walls to the party wall and the constructionof the cross walls themselves. Some cross wallshad doorways and timber framing which limitedthe locations of the resin anchors, some of which were designed to be 2.5 metres long. It was decided to change the resin anchors tocementitious ones and this required additionalheritage consent.

Demolition required notices under section 2 ofthe Party Wall Act to repair the party wall (2)(2)(b),cut into it for anchors (2)(2)(f), remove projections(2)(2)(g), expose the party wall to the elements,subject to providing adequate weather protection

(2)(2)(n). Since the Crossrail Act did not disapplysection 2 of the Party Wall Act, several awards,listed below, were made in the names of thefreeholder and the head leaseholder, both ofwhom had appointed the same party wallsurveyor. To avoid any delay to the progress ofworks on site, awards were agreed as the proposedworks were in final design stages:

• Demolition to ground level

• Replacement of resin anchors with cementitiousanchors

• Demolition of the rear part of the building

• Temporary propping required as an interimmeasure

• Demolition of the basement slab and removal ofmass concrete foundations (which wereconnected to the adjoining owner’s foundations)

• Record of repairs carried out to the party wall

CASE STUDYCrossrail and the Party Wall Act

Change of Ownership of the development site

The Secretary of State for Transport, as buildingowner, served notices on the adjoining owners forthe proposed demolition of the building owner’spremises and awards for the demolition workswere agreed and served. After the demolitionworks were complete, and before the pilingworks commenced the ownership of the site wastransferred from the Secretary of State forTransport to Transport for London.

Ordinarily, a change in the building owner meansthat all notices are invalid and therefore all awardscoming from the invalid notices are invalid. Thereason for this is that whilst rights to develop runwith the land and can be transferred, the particularobligations to repair and support adjoiningbuildings which are expressed in the awardscannot be transferred; they have to be taken upvoluntarily and under the Act. The prescribedmethod for assuming obligation is through theprocedure of serving a notice and agreeing theterms of an award. If an adjoining owner changes,the vending party merely has to inform thepurchaser that there is an award in place; thebuyer stands in the shoes of the seller andacquires the same rights.

In this case with SoS and TfL, both being governmentdepartments, it was agreed that the obligations

could be transferred from one to another. Insurancepolicies were held in joint names, for example.Furthermore, new notices for piling and otherexcavations were served in the name of the newowner and awards agreed in that name.

In addition, a ‘Supplemental Agreement’ was signedat the end of March 2011 between Crossrail andthe adjoining owner setting out agreements inrespect of both the Crossrail development and theMasterplan Scheme.

Movement Monitoring

Where practicable Crossrail would carry out a fullyear of background monitoring to establishseasonal movement trends. Baseline readings ofthe adjoining building were taken on 13thSeptember 2010, demolition of the two buildingson the site commenced in March 2011 andcompleted in October 2011. Horizontal north-south(x axis), east-west (y axis) and vertical movementor settlement (z axis) of a building can be monitoredusing a wide range of equipment of varyingprecision. During the demolition phase, monitoringwas restricted to the front and rear elevations asthese were exposed and targets could be fitted,but as demolition progressed and the party wallbecame exposed, targets were fitted to the partywall itself.

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

• 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 read

These 2 photographs show the site post-demolition with the temporary steels andweatherproofing fixed to the party wall.

geodetic prisms fixed to adjoining buildings inreal time

• Hydrostatic levelling cells (HLCs) detect verticalground movement and differential settlement; awhole terrace of buildings can be linked in thisway

• Inclinometers are used to detect lateraldeflection of piles

Existing cracks can be monitored with:

• Demec (demountable mechanical) studs whichare read with Vernier callipers and can be usedto detect widening of cracks and shearing to ahigh degree of accuracy

• Tell tales or calibrated gauges fixed across thecracks,

• Vibrating wire gauges which are pulled tautacross an existing crack; the natural frequency ofthe wire changes when the tension in the wirechanges ie if the crack opens and the movementis read from a transmitter box fixed to a structurenearby.

• Linear Variable Differential Transformers (LVDTs)can accurately read the opening of a crack asthe sliding armature moves relative to the fixedbody of the displacement transducer.

Vibration Monitoring

Vibration is not permanent movement, itterminates once the activity stops. Nevertheless,the damage it causes can be permanent. Buildingscan 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 be transmitted toadjoining buildings, particularly if they are connected.In this case, the adjoining property was separatedby a sheet of compressible hardboard which wentsome way to mitigating the transference of

vibration, but it was patchy in places and in fact agreat deal of vibration was felt.

The best way of determining whether vibration hascaused damage to a property is with a comprehensiveschedule of condition of the building which isreviewed upon completion of the demolition. Itwas found post demolition that old mortar wasvibrated out of joints in brickwork and existingcracks in historic plaster had opened up. Howeverto date, so significant damage has been caused tothe building by the works.

Differential settlement and buildings

If an entire building settles by, say 20mm, whilstthe settlement may be noticed, damage will beminimal. It is differential settlement which is mostdamaging to a building, when one part of thebuilding moves, but the other parts do not.Throughout the Crossrail project, every effort hasbeen made by engineers to predict the likelyvalues of differential settlement and limit it. Thebuildings which are most vulnerable to differentialsettlement are historic buildings with:

• shallow spread footings

• cantilevered staircases

• decorative internal plasterwork

• glass fronts with slender timber and steelmembers

Modern buildings tend to have deeper and moresubstantial foundations as structural standards ofproof have improved over the years. Buildingswith piled foundations are held to be less at risk.

Trigger values for ground slopes resulting fromdifferential settlement of the adjoining buildinghave been set at 1:1250 (green); 1:1000 (amber);1:800 (red) with actions at each value.

Compensation Grouting and Grout Shafts

A proven method of limiting settlement is with

CASE STUDYCrossrail and the Party Wall Act

compensation grouting. This methodology wassuccessfully used in the Jubilee Line Tunnelconstruction when the Big Ben bell tower wasprevented from collapse with this technique.Grouting is pumped under pressure into theground beneath the vulnerable building. It can beaccurately targeted and will cause a controlledheave of the ground but it can only be used in lowpermeability soils. Shafts approximately 20 metresdeep have been strategically positioned within thezone of influence. From these shafts, a horizontalarray has been constructed with tubes of up to100 metres in length, arranged like the spokes ofa bicycle wheel.

When settlement is detected by the monitoringinstrumentation, grout is pumped along thelength of the “Tubes a Manchette” to the areawhere it is needed.

Even though the work was carried out by Crossrailand the depth of the grout shaft was within threemetres and below the level of the adjoiningowner’s foundation, the work was not notifiableunder the Party Wall Act as the land on which itwas constructed was owned by the adjoiningowner and not Crossrail.

Predicted damage to the glass dome

The glass dome is constructed of faceted panes ofGeorgian wired glass with each pane supportedon a frame of uncertain material or quality. Asteel beam appears to assist with support but themethod of support and the end bearing into theparty wall cannot be verified.

Engineers predicted high levels of movement tothe dome of the adjoining building, particularlyduring tunnelling works Q4 2012, Q1-Q2 2013.Initially it was considered prudent to preventserious damage to the dome by constructing a‘crash deck’ in the building’s foyer beneath thedome so that if the dome becomes unseated, itdoes not fall to the ground. The crash deckproposals were later modified to a less intrusivescheme. The edges of the glass panels are held in

place with foam-backed adhesive strips and alayer of adhesive film has been applied to theouter face of the glass, over the wholeconstruction for maximum stability.

Damage categories

Burland (1995) has defined categories of damageas follows:

0 – Negligible – hairline cracks less than 0.1mm

1 – Very slight – Typical crack width of 1mm

2 – Slight – Typical crack width up to 5mm

3 – Moderate – Typical crack width is 5-15mm

4 – Severe – Typical crack width is 15-25mm

5 – Very severe – Typical crack width is greater than 25mm

The March 2007 undertaking confirms that Crossrailwill ‘so far as is reasonably practicable’ limitdamage to the adjoining building to Category 1

Piling and deep excavations

Certain excavations within 6 metres of a propertyare notifiable. The criteria is removal of the groundsupport, which is assumed to run at an angle of 45degrees downwards from the base of the wall of theadjoining owner’s building. If this ground isremoved from beneath the 45 degree splay linewithin 6m, a notice must be served. However if theworks within 6 meters are part of a greater scheme,the whole works are held to be awardable andcannot be commenced until an award is agreed.For example, in the case of deep basementexcavations, the work cannot be commenced in theopposite corner from the adjoining building simplybecause it is more than 6 metres away. Once theaward is agreed, the whole works can commence.In the case of the Crossrail site, this meant piling,tunnelling and other excavation works were agreedin awards prior to commencement.

The role of the checking engineer

When the building owner’s proposals are complex,the appointed surveyor is advised to nominate achecking engineer to review the building owner’sengineer’s proposals with respect to party wallmatters and to advise accordingly. In the case ofthe demolition phase, the checking engineer’s rolewas traditional and the two engineers liaised closelyto develop and agree the scheme. The design wasCAT III checked by an independent engineer notassociated with the Crossrail project and the agreedscheme was incorporated in a party wall award.

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 been one of respectful co-operation. Thereason for this is largely because both the buildingowner and the adjoining freehold owner have atwin goal which they wish to reach with minimumdamage to the adjoining owner’s property, minimumdisruption to the occupying tenants (who you willrecall have no rights in the Undertaking) and in theshortest possible timeframe.

Other sites on the project have not had the samefortunate experience and Crossrail has beenseen as an opportunity for airing disapproval ofinfrastructure projects in general, distractingCrossrail and their contractors from the job athand and worse – claims for security for expensesfrom the public purse for example. Disruption toneighbours in general has been carefully controlledby Section 61 agreements between Crossrail andthe Local Authorities and in general, adherenceto mitigation practice has been excellent.

Author: Shirley Waldron BArch (Hons) Dip Arch

RIBA, director of SW Architects.

Reproduced with kind permission of Crossrail Limited

CASE STUDYCrossrail and the Party Wall Act

This diagram shows the site with secant piledperimeter retaining wall and the adjoiningbuilding hatched. The running tunnels run east towest across the north of the piled box and to thesouth of the adjoining building. The TemporaryCrossover, a spray concrete lined tunnel cutsacross the north east corner of the adjoiningbuilding. Other permanent crossover tunnels runnorth to south at the west end of the building.

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 tosubterraneandevelopmentbill@partywalls.org.uk.

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 be introduced via existingregulatory frameworks. As I write this review,they have yet to report. I will prepare some notesfrom time to time in future editions of Whispersto let you know how the Bill is getting along.

David Moon

Lords a leaping

It was an honour and a privilege to be invited tospeak at the P&T London Conference on 22 Marchof this year on the subject of “The Role of the ThirdSurveyor”. These words are not a repeat of talk butpart 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 and

ARTICLEThird Surveyor Referrals. 14.06.2012

Third Surveyor Referrals

will 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 matterwhich Surveyors were unable to agree betweenthem 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).

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 (andafter 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 inordinate

amount 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 thatinformation 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 duty

and 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 theirowners 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.

ARTICLEThird Surveyor Referrals. 14.06.2012

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 ofthe 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 not

start 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 thinkshould 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 MCIArb

14 June 2012

A History of Party Wall

LegislationAs presented by Lawrance Hurst to the Pyramus

and 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

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.

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

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

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.

EXHIBITIONParty Walls since AD50

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

Chairman of The London Branch of The Pyramus &Thisbe Club & Practitioners Advisory Group for theProperty Boundaries (Resolution of Disputes) Bill

PROPERTY BOUNDARIES

Property Boundaries (resolution of disputes) Bill

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 (Mu-

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

Trespass Matters

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

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

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

Urban Building Surveyors

Pyramus & Thisbe ClubAdministration OfficeRathdale House 30 Back RoadRathfriland NEWRYBT34 5QF

Tel: 028 4063 2082 Fax: 028 4063 2083

E-mail: info@partywalls.org.ukwww.partywalls.org.uk