Basements: no obligation to minimise inconvenience regarding party walls

The Court of Appeal has decided in Gray v Elite Town Management Ltd (2016) that there is no obligation on surveyors to approve a construction scheme that causes the least inconvenience to owners of adjoining property.

It was decided that section 7(1) of The Party Wall Act 1996 concerned the manner in which construction work was carried out; it did not relate to the choice of scheme.

The case concerned the building of two adjoining basements. The appellant had previously built a basement by digging out soil and installing piles. The respondent then wanted to construct a basement under the adjoining property by underpinning the walls, including the party wall with the appellant's property. This was a different method to that previously used by the appellant and one which the appellant opposed. An appointed surveyor made an award approving the proposed works.

The whole process became acrimonious and eventually litigation ensued on a number of issues. The main point of contention however was section 7(1) of the Party Wall Etc. Act 1996. This provides that: “A building owner shall not exercise any right conferred on him by this Act in such a manner or at such time as to cause unnecessary inconvenience to any adjoining owner or to any adjoining occupier”. The appellant contended that this meant that the party wall surveyors appointed under the Act had a duty to authorise the construction solution which caused the minimum inconvenience. The court decided however that whilst party wall surveyors had to have due regard to the both the building owner and the adjoining property owner in making an award, there was no absolute obligation on them to authorise a design which caused the minimum of inconvenience. The section 7(1) duty concerned the manner in which construction works were carried out and did not extend to the construction solution chosen. The scheme which had been authorised in the third party wall award was satisfactory from an engineering point of view and so the award was upheld even though there was a viable alternative scheme which the appellant contended would cause less him less inconvenience.

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