Responsibilities and Preventative Measures for Building Near Older Properties (1949): Focus on Subsidence and Foundations

[MissBuilding1975]

Focusing on subsidence and foundation issues only.

What responsibilities should a homeowner and their builder take on when building on the boundary line 2 meters next to a neighboring property that was built in 1949? Of course, the Party Wall Act applies.

What preventative measures could they take to prevent any subsidence issues affecting the neighboring property? If they don't take preventative measures, who among the following should be responsible for informing the owner/builder to check the ground below the foundation level of the neighbor and then recommend the next steps? Who is responsible for that, especially if the adjacent property was built in 1949?

Is it planning permission, the Party Wall Act, or building regulations, or a combination? At which steps would this be carried out, focusing primarily on foundations for an extension that will attach to a wall built in 1949, which is an adjoining property of the other neighbor.

What steps does the owner and builder need to do if required by law? If not then what should the concerned neighbor make clear of and how and where?

Thanks, all.

 

[mrrusty]

The builder has an obligation to work with skill and care. If it can be demonstrated that by not doing so he has caused damage to third parties, he is likely to be guilty of negligence and liable to pay damages.

However, the "skill and care" is whatever the builder decides it is. The party wall act is there to try and pre-empt negligent work by getting agreement on what the works will consist of. However, the builder can choose to ignore the party wall requirements. If he does, then you would be able to get injunction to stop the works.

However, there is another important distinction. If the party wall act and agreements are in place AND there is still damage, then you have to prove that the builder caused it (because the work and the work process will have been approved by a surveyor). If the party wall requirements are ignored and there is damage, the builder has to prove that he didn't cause it - an important difference. There is an argument that the neighbour is in a stronger position if the builder has ignored the party wall process - i.e. even though the pre-planning should mitigate the risk of damage caused by works, the process actually helps protect the builder against third party claims should damage occur.

You cannot seek damages for something that hasn't happened, so provided the build is within regulations and there is no damage, there is nothing you can do to stop it. However, you can certainly take detailed photos of your house's condition, and even get a third party survey before works start if you wish. What you can't do is stop the work just by saying "I think you're doing it wrong"; it is the builder's (and his clients) decision as to whether they think they are using appropriate skill and care.

 

[^woody^]

Is it planning permission, the Party Wall Act, or building regulations,

Neither. The obligation is based on Common Law negligence - the duty to take reasonable care to prevent injury or loss to others.

There are no set requirements other than to do what is reasonable for the situation. It may be just working quickly to fill and trench or shoring up any trench.

It's all down to the local conditions and not a case of "you must do x"

 

[wessex101]

However, there is another important distinction. If the party wall act and agreements are in place AND there is still damage, then you have to prove that the builder caused it (because the work and the work process will have been approved by a surveyor).

I just thought I would jump in as this is very misleading.

If there is a Party Wall Award in place a fundamental part of that is a detailed condition survey. So if done properly it will be very easy to identify any damage present before the work commences and therefore quantify any damage caused during the the work. This obviously applies years after the work has been completed as subsidence may take a long time to be visible.

In answer to the OP's question there are generally two ways to address building adjacent to a wall with a shallow foundation.
1. Underpin the foundations of the existing wall. Generally I try to avoid this as it is expensive, time consuming and more likely to cause damage.
2. Dig the new foundation in short sections similar to hit and miss underpinning so that the existing shallow foundation is not excessively undermined. Also ensure the new foundation is debonded from the existing so that the two buildings can move independently.

There is a third option that I sometimes use if the neighbour is especially awkward. Design the new foundation to be no deeper than the existing wall foundation, such as a reinforced raft foundation. It is more expensive but cheaper in the long run than a protracted party wall dispute.

The only way this will be inspected and regulated is via a Party Wall Award. Planning, Building Regulations etc. will not be interested in the foundations of the adjacent building.

 

[mrrusty]

@wessex101 I don't think we are saying different things. Absolutely agree if the award is correctly in place it should be obvious. I don't think I am incorrect in making the distinction though.

If there were to be a claim after award it would be the person sustaining the damage who would have to prove the cause whereas without a PWA the developer is assumed to be liable unless he can prove otherwise.

 

[^woody^]

without a PWA the developer is assumed to be liable unless he can prove otherwise.

It is the claimant who always has to prove their claim

 

[MissBuilding1975]

@^woody^ As mentioned by Woody, the claimant has to prove their claim. Even if there was a PWA, as long as it's a tight seal, it could help in a court of law. However, relying solely on that is doubtful. You'd have to bring more evidence, including surveyor assessments. If it's 100% known that those problems wouldn't have occurred until the build was there, the claimant's chances of winning are higher. With or without the PWA, you'd still need to gather extra evidence and reasonable arguments. It's worth it if the home had no issues until the build took place. Importantly, pictures and survey assessment documentation should be taken before the build.

 

[wessex101]

You guys are over complicating this. In practice if cracking or some other damage is found the adjoining owner just needs to contact the party wall surveyor. The surveyor will visit and compare the reported damage with the condition survey. If the surveyor agrees that the damage is new and attributable to the work then they will instruct the building owner to arrange for repairs to be made or make financial compensation.

The adjoining owner doesn't have to "prove" anything, gather evidence or make an argument, unless they disagree with the party wall surveyor and still want to pursue the matter. The party wall surveyors role is an independent quasi judicial one so they act like an arbitrator and have the legal authority to make a binding decision to settle the dispute.

 

[^woody^]

You guys are over complicating this. In practice if cracking or some other damage is found the adjoining owner just needs to contact the party wall surveyor. The surveyor will visit and compare the reported damage with the condition survey. If the surveyor agrees that the damage is new and attributable to the work then they will instruct the building owner to arrange for repairs to be made or make financial compensation.

The adjoining owner doesn't have to "prove" anything, gather evidence or make an argument, unless they disagree with the party wall surveyor and still want to pursue the matter. The party wall surveyors role is an independent quasi judicial one so they act like an arbitrator and have the legal authority to make a binding decision to settle the dispute.

The posts above were based on a civil claim, your post is based on there being an Award in place.

 

[mrrusty]

It is the claimant who always has to prove their claim

yes of course! the claim would be for negligent work and the PWA agreement is defence against such a claim, so it tends to protect the developer. Without a PWA the developer has a much weaker defence. However this makes interesting reading https://www.building.co.uk/legal/pa...arty-wall-act-doesnt-stand-up/5122906.article, which tends to suggest to me that without a PWA the law is no different than what it was before the act was introduced and any claim would be treated as tortuous as it always was previously.

 

[MissBuilding1975]

yes of course! the claim would be for negligent work and the PWA agreement is defence against such a claim, so it tends to protect the developer. Without a PWA the developer has a much weaker defence. However this makes interesting reading https://www.building.co.uk/legal/pa...arty-wall-act-doesnt-stand-up/5122906.article, which tends to suggest to me that without a PWA the law is no different than what it was before the act was introduced and any claim would be treated as tortuous as it always was previously.

How is the Party Wall Agreement a defense to such a claim? Who stops the builder from carrying out works that aren't within building regulations but have been signed off because they look fine on the outside? There are cunning ways in which some builders get away with things. On the contrary, I actually believe the PWA is a defense for both the builder and the claimant. Why? Because the claimant has grounds to carry out surveys and investigations of works within that Party Wall area. If it's deemed that the works were not carried out correctly, it would go against the PWA and property law, making a stronger case for the claimant. How many times have we seen people mention issues from a build that affected their home, and yet they mention they had no PWA, and people ask them why? Yes, you could argue that a party without a PWA gives builders leeway to not do their jobs correctly, but having one makes them think twice.

 

[mrrusty]

How is the Party Wall Agreement a defense to such a claim

Because it is the householder doing the work that employs the builder and the PW surveyors, although that might be delegated to the builder to action, the responsibility remains with the householder.

It is a defence because the planned works will have been agreed by at least one independent surveyor, so the works will be carried out 1) by the builder using what he believes is skill and care and 2) according to the plan agreed by the surveyors and commissioned by the householder.

Should subsequently there be damage, you as the neighbour, would have to show that despite the plan, damage was caused.

As @wessex101 says above, if done properly a PWA should mitigate or eliminate the risk of damage caused by works, so in theory if things go right it's a protection to the neighbour. However, if things still go wrong, the neighbour has a bigger hoop to jump through because all claims rely on proving negligence by somebody but the claim has to be against the householder commissioning the work, not the builder with whom the neighbour has no contract.

This quote from a solicitor's page sums it up...

"If your neighbour refuses to accept responsibility for the damage, mediation may be a good next step. This involves you and your neighbour sitting down with an independent mediator who will help you talk through your dispute, without taking sides, until a resolution is reached which is acceptable to everyone.

If mediation fails, you may have no choice but to take the matter to court, though this can be a costly and time-consuming process and should only be considered as a last resort.

Where there was no Party Wall Notice
If your neighbour carried out work without serving you with a Party Wall Notice or without your consent, they will still have a duty under common law to make good or compensate you for any damage.

Indeed, although there is no statutory penalty for not serving a Party Wall Notice, courts have taken a dim view of such a failure, with the judge in Roadrunner Properties Limited v John Dean, putting the burden on the building owner to disprove a link between the damage and the work instead of the reverse which is the usual position at common law."