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As this is a maiden voyage in sponsoring a Bill in your Lordships' House, I would merely ask for your Lordships' customary indulgence towards the novice. Noble Lords may be aware that I am a chartered surveyor in private practice, and therefore it will be of no surprise that I have some small professional involvement in the matter of party walls and thus a contingent pecuniary interest to declare in the matter of the Bill by virtue of my profession.
Before I go any further there are a number of people to whom I must express my thanks: the Department of the Environment Building Regulations Division which flagged a number of technical points and which has been of great value in fine tuning some of the thoughts on the Bill; the Building Regulations Advisory Committee which scrutinised early drafts, without which the form of the Bill would not be in its present state; the Royal Institution of Chartered Surveyors for its help and
I have a client in Sussex in a case that received recent media attention. She would have been saved 10 years' anxiety, and there would have been a saving of tens of thousands of pounds in costs but for the fact that there is a legislative void. There are other cases which I can supply to any noble Lord who is interested which illustrate the problems that arise. They represent but the tip of an iceberg.
Party walls have a long and cherished history, but in this country the watershed was undoubtedly the Great Fire of London, followed by the London Rebuilding Act 1667. There were further Acts and some consolidation under the London Building Act 1894. Changes continued, and there was a further London Building Act 1930. That again was amended in 1939 under the London Building Acts (Amendment) Act. It is those two 1930s Acts which form the current basis upon which party wall surveyors act in Inner London.
There are thousands of cases a year, and very few unresolved disputes, even to a third party surveyor and even fewer to a court of law, and usually on some other complication. That is a remarkable success rate.
Outside Inner London the general law on party walls is derived from the Law of Property Act 1925. Briefly, that means that an owner can do anything to his own half of a party wall, and therein lies the problem. Owners carry out works that affect shared structures without reference to their neighbours, but, crucially, that legislation confers no rights to do essential remedial works such as underpinning, or to upgrade deficient structures if the neighbour objects.
The Bill will have no effect on title. The wall owned by one party or another is not a party wall, nor does it cut across provisions for easements contained in title. It is not designed to affect common law rights of support or conflict with other statutory requirements. But it will not resolve other human failings: dogs, children, trees and personal animosity. All those are things which no legislation can hope to overcome.
The aims of the Bill are to extend the tried and tested provisions of the London Building Acts to England and Wales. It rests upon a principle of voluntary agreement between parties wherever possible; it provides for notice to be given where works are proposed; there is an opportunity to respond and comment; it sets out to protect existing structures; there is a clear liability for damage and making good; there is provision for the resolution of disputes, other than by going to law; it sets out how costs of works and fees arising from them shall be dealt with; and clarifies the extent of rights over common structures, including floors--that is, floors between different units of occupation. So the Bill is a safety net and not a fiery hoop.
I turn to the detail. Clause 1 covers proposed works adjacent to a legal party boundary, known in the Bill as the line of junction, which is not already built upon. A building owner who is proposing works serves notice on the neighbour who is known as the adjoining owner. Those owners can agree that the new wall shall be a party wall. They can agree its position, and the Bill provides for the manner in which the expense of building the wall, and its subsequent maintenance, is to be defrayed according to use. But, if there is disagreement, the building owner may only carry out the work at his own expense and on his own land. He must still serve a notice if he wishes to construct up to the line of junction. But he will have certain additional rights, subject to Clause 1(6), to install the necessary minimum projecting footings and foundations under the land surface of the adjoining owner where that is necessary, and subject to safeguards.
Clause 2 applies where the line of junction is already built upon by the forming of a boundary wall, or the external wall of the building, or, indeed, the party wall between buildings. Clause 2(2) specifies certain rights of the building over. Prior notice of the works is mandatory, but I would like to dwell on a few of those particular rights that warrant special attention. As regards subsection (2)(b), I would point out that it is usually a matter of strengthening rather than demolishing or reconstructing a party wall. But if more drastic action is necessary, the Bill allows for this in the interests of both parties.
Subsection (d)(iii) provides that all damage to adjoining premises must be made good. This invariably triggers the practice of preparing an agreed record of condition. Subsection (h) provides for the removal of any overhanging portions of the adjoining owner's property to enable a vertical party wall to be erected. That is not as draconian as it sounds, as there may be title to the overhang but, if not, the building owner may still have to make good and compensate the adjoining owner. More typically, the projecting eaves of an adjoining owner's building can be cut away subject to making good.
Subsection (l) removes an anomalous precedent. It allows the reduction in height of an existing party wall or party fence wall to the extent that it exists primarily for one owner's benefit, but only to the extent that it is not required for any purpose other than a boundary wall. So if a neighbour's building or outhouse uses the wall for support, the wall cannot be reduced in height below that required for that structure. Other rights relate to the insertion of damp-proof courses dealing with chimney breasts and other projections and dealing with structures which are inherently deficient or do not accord with statutory requirements.
Clause 4 governs the service of counter-notice by an adjoining owner. He may require the work to be done differently or in a manner which mitigates adverse effects on his property. A building owner must take the requirements on board unless they are felt to be unnecessary, injurious to him or otherwise to cause difficulty. In that case the matter is in dispute and is resolved under the disputes process.
Clause 6 covers excavation and construction within specified distances of an adjoining owner's property. These works are regulated by depth, by proximity and by reference to a notional 45o plane extending outwards and downwards from existing foundations. The purpose is to protect existing structures. This clause also sets timescales for dealing with the works, so the building owner must proceed with despatch or start the process again.
Clause 7 provides for compensation of an adjoining owner for any loss or damage arising out of the works. At subsection (3) the building owner must take proper precautions to protect adjoining land, buildings and people by means such as shoring up and protection from falling debris.
Clause 9 protects existing easements, including easements of light. Clause 10 deals with the resolution of disputes. In this particular instance both parties can agree on the appointment of one surveyor. That is a step to be recommended most strongly, particularly for householders carrying out small works. Alternatively, the parties may each appoint a surveyor. These in turn will nominate a third surveyor who is called in to adjudicate only in the few instances of sustained disagreement. Between them they will produce an agreement or award. Normally a party wall surveyor or third surveyor cannot be removed, but the Bill provides for instances where surveyors are unwilling or unable to act.
The duty of party wall surveyors is quasi-arbitral. Once appointed they have a duty to act properly in the interests of both parties as statutory surveyors, which is a most important safeguard. Experience indicates that the great majority of disputed cases are dealt with by agreement between surveyors. The building owner generally meets the cost of the adjoining owner's surveyor. But that is not a licence to charge excessive fees and there are generally prior agreements on charges. Safeguards are provided where a party to the dispute neglects to appoint a surveyor, in which case the
Clause 11 provides for the payment of cost for the works generally by the building owner who is proposing to carry the works out but also in proportion to the use to which each party puts the wall. Additional subsequent use of a new or altered party wall may trigger the liability for a further contribution. Clauses 12, 13 and 14 refer to securities for expenses, accounting procedures for costs of works and settlements of accounts respectively.
There is deliberately no means of summary enforcement as it is felt that this could fetter the jurisdiction of the courts. Most owners and adjoining owners in experience thus far discharge their obligations voluntarily. The normal county court procedures remain for cases where they do not. An unappealed party wall award would be strong prima facie evidence that it was reasonable. Experience shows that there are very few complications in this area.
Clause 15 governs the service of notices. Importantly, if an adjoining owner fails to respond to the initial notice the dispute procedures come into play as a failsafe mechanism. Therefore in future there will be no presumption of agreement by default.
Clause 16 is self-explanatory and refers to offences and fines, while Clause 17 refers to Crown exemptions. This currently repeats the existing London Building Acts, but my inquiries continue as to whether the Crown wishes to be exempt.
Clause 18 covers definitions. There is a change in this Bill from the current London Building Acts to make all horizontal structures between flats and maisonettes party structures covered by the Bill, regardless of whether they have separate or communal access. I apologise for paraphrasing in the interests of brevity what is a slightly more complicated issue. The term "surveyor" means anybody acting on behalf of the building owner and adjoining owner or appointed to settle disputes. It could be an architect or solicitor. It could even be a lay person with no technical qualifications.
I shall need to move a number of amendments in Committee to remedy a certain number of textual errors and omissions. I shall deal with those at the appropriate time. The effect of the Bill is to assume agreement. It is intended to provide a system which is cost-effective and which offers the cheapest option before it is necessary to move on to more expensive procedures. There are important safeguards and rights for both neighbouring owners. The Bill creates a situation which is more clearly identifiable as a process and which is freer from risk than the rather capricious process of going to litigation.
The Earl of Kinnoull: My Lords, I congratulate the noble Earl, Lord Lytton, on introducing his Bill. He did so with his customary skill and clarity in what is a very technical subject. Given the short list of speakers, I have a feeling that only the brave are taking part. I saw no hint of the noble Earl's so-called "novice" approach. Indeed, his performance was the reverse of that. He showed the same robustness and depth of knowledge of the subject that I well recall from his interventions during the passage of the Environment Bill.
I welcome the Bill. It is timely. In fact, it is long overdue; some may say that it is 300 years overdue. The Bill has great merit in helping those with party wall claims to settle issues that lie close to their hearts; namely, their property.
At this stage I must declare an interest as a practising surveyor also, but not with the same sharp-end experience as the noble Earl. In fact, this is not a subject with which I have tangled professionally. I leave it to more skilled colleagues.
I was fascinated by the noble Earl's introduction, as I am sure were other noble Lords, and by his historical references to the long background of party wall claims legislation, and the wisdom of those forebears in London who saw the need for such legislation and guidance. Indeed, the first Mayor of London in 1189 and the Great Fire of London in 1666 were milestones, as I understand it, leading to the current legislation of the London Building Acts, and especially to the legislation of 1939 and 1984. Those provisions applied exclusively to London owners and gave them a procedure of orderly regulations which I believe has worked well in recent times in terms of avoiding untold litigation.
I am sure that awareness of those procedures has been helped by the excellent green book on party wall procedures which was published by a splendid organisation called the Pyramus and Thisbe Club. The noble Earl paid that club a tribute, to which I should like to add because I know that that club of professionals has done tremendous work. I pay a particular tribute to its chairman, John Anstey, who, like other colleagues, has been active in helping to draft the Bill.
As the noble Earl said, the Bill largely comprises bones drawn from the tried and trusted London Building Acts. I understand that some modifications have been made, given the benefit of experience of those Acts. Perhaps the most important feature, as the noble Earl stated, is the statutory requirement of the notice procedures by the building owner to the adjoining owner, and thence the choice of agreement direct between owner to owner or with the help of their respective surveyors; or, indeed, perhaps a single surveyor.
There are two matters which concern me in that context. First, there is the definition of "surveyor" in Clause 18. I fully understand and accept that the word "surveyor" is very much a generic term, as the noble Earl said. I also fully understand that it does not have the meaning of surveyor as we know it--a chartered surveyor, or whatever. Basically, it means a competent or a relevant professional person. However, it does not say that in the Bill. I find that very surprising when we think of the seriousness of the subject. The Bill simply refers to a "person". That person could be either competent or incompetent. I hope that the noble Earl will look at that point in Committee.
The second matter concerns the authority of the third surveyor. As I understand it, the third surveyor, to all intents and purposes, acts as an arbitrator. He is appointed at the same time as the two surveyors for either side. That is all good, sensible and effective in its simplicity. But, of course, as we know--and, indeed, as the noble Earl said--when the third surveyor is given his award the case does not end at that point. His award can be referred to court, not just on a point of law but on any ground. The award can be overturned and all the good and fair procedures which have taken place are lost, with the accompanying abortive costs incurred. The litigants then face expensive litigation in the courts. I understand what the noble Earl referred to, but I hope, again, that we can discuss the matter in Committee.
Under Clause 7, which deals with compensation, there appears to be no provision for building owners to pay compensation within a certain stated time, or, indeed, any reference to enforcing a settlement. I expect that I have missed something or there are perhaps some subtle and simple actions that an aggrieved adjoining owner can take. However, I hope the noble Earl will be able to deal with that point either this evening or at a later stage.
The Bill is limited to England and Wales. Of course, one understands the position in Scotland which has its separate laws. I gather that in Scotland the term used is "mutual wall issues" and that they are almost invariably
My final point relates to Schedule 1 and the level of fines. Again, I am merely asking for information as to how the level of fines has been arrived at. I should also like to know whether the reference to "each day" means each working day. All those questions are for elucidation and in no way dim my enthusiasm for the benefit that the Bill will undoubtedly bring. However, knowing the scarcity of time in another place, it is most important that the Bill should leave this House in its final approved state. I am sure that the noble Earl will ensure that that will happen in Committee. I congratulate the noble Earl once again and wish his Bill a safe passage through both Houses.
Lord Dubs: My Lords, I should also like to congratulate the noble Earl. If this is the first time that he has presented a Private Member's Bill, it was not obvious from the way in which he produced it and, indeed, introduced it. We have before us a very complex measure. I am sure that I cannot pretend to understand all the details and the significance of the legislation. But certainly the noble Earl's expertise shows through in the form in which the Bill appears before the House.
I should also like to thank the noble Earl for the assistance that he has given me. Indeed, he has gone out of his way to give me background information. He has supplied me with a copy of the green book from the Pyramus and Thisbe Club on party walls and has generally made himself as helpful as possible to ensure that, if I had any questions, I should be able to put them to him. If I include one or two questions in my speech, it is because I think that they are more appropriate for resolution in Committee.
In keeping with the tradition of most Private Member's Bills, there is no party-political view on the matter. Therefore, the comments that I am about to make are personal and I can assure the House that I shall be brief. I should like to give the Bill a warm welcome. I believe that it would establish a most important principle and I hope that it will be successful in achieving the aims intended; that is to say, that the good legislation that prevails at present in inner London or the old LCC area, together with some improvements to the Bill, will apply to the whole of England and Wales.
I know that disputes between neighbours can be extremely painful. Disputes over party wall matters must be desperately frustrating, if one is outside inner London, as they cause so much agony, so much conflict and so much heartache to people who innocently find themselves in such difficult situations. I am grateful to the noble Earl because this Bill will remedy what I consider to be a wrong which has persisted for a long time. The Bill will provide a better way of resolving these matters relating to party walls in a way which is, incidentally, much more economical for the people concerned. That is an enormous boon for people. Many of the people who will benefit are not aware of that
Like other noble Lords, I, too, wonder why this situation has persisted for so long. If, indeed, inner London has, as it were, led the way--I do not know the history of the matter as regards why inner London had better legislation regarding party walls--I cannot for the life of me understand why the rest of the country has not caught up. That is a puzzle and perhaps the answer to it will become clearer. Incidentally, one of the delightful things about the book on party walls from the Pyramus and Thisbe Club is the clear way in which it explains the legislation. I do not think I have ever come across such a clear explanation of legislation. Will government departments please copy that? I do not expect government spokesmen to make adverse comments about existing legislation, as the book does, or about the limitations of that legislation, but I must repeat that the book is a model of clarity. It would be nice if government departments were to consider the book to determine how they can emulate this clear approach to explaining legislation.
I have two specific questions to put at this stage. They do not concern any changes that the noble Earl has made to the existing law. However, he has not made changes in two respects. It seems to me that he has made a number of sensible changes to the London Building Acts in drafting his Bill and therefore I believe it is right to ask, first, why he has not made the two changes to which I have referred. One of them concerns a point which has bothered me for some time. It may not be totally appropriate to this Bill but I shall ask the question anyway.
Clause 8 gives rights of entry. As I understand it, one of those rights of entry is the right to erect scaffolding on adjoining premises in order to carry out work. I am worried that unless scaffolding is safeguarded at night it could provide easy access for burglars. That point may be covered by other legislation, but all too often I have seen buildings which are an invitation to burglars because there is such easy access to the scaffolding enabling anyone to climb up it at night and enter the buildings. I would not like any property I might own to be made so vulnerable to burglars through the erection of scaffolding. Is there any way in which one could incorporate safeguards so as to ensure that when scaffolding is left at night it is left in a condition which is as burglar proof as possible?
Up until last June I worked for the Refugee Council and the building where I worked suffered a number of break-ins. The burglars had entered by means of scaffolding that was erected at the junction of our building and the adjoining building. The burglars got up onto the roof and climbed in. However, this is as great a danger for private buildings.
My other question concerns exemptions from the Bill. This is a substantial point. There is a list of types of buildings which will be exempt from the provisions of this Bill. I note that the types of building appear to be identical to those mentioned in earlier legislation.
I do not understand why that should be the case. If I happened to have a house adjacent to a police station, a DSS office, or a government department, although that is less likely, I would like to feel that if a party wall issue arose I had the same rights as if my neighbour were another private individual. I wonder whether we can clarify that point. I believe that we could delete the exemptions, unless there is some good reason why we should not.
Lord Lucas: My Lords, I have listened with great interest to the debate this evening in this House, and in particular to the most informative and accomplished introduction by the noble Earl, Lord Lytton. I am grateful to him for a most lucid description of what is undeniably a rather extensive Bill, at least by the standards of Private Members' Bills.
As we have heard, the proposed Bill has origins dating back to the Great Fire of London. The Bill is firmly based on provisions in the London Building Act 1939, and, if enacted, would bring legislation that has been in use in London since that time into the law applicable in England and Wales. On the face of it, it would certainly seem to be beneficial to have in place a clear system defining the rights of all interested parties in matters concerning party walls.
We agree that the Bill does indeed provide a clear mechanism by which those who wish to carry out building work on a party wall are obliged to give notice of the proposed work to the adjoining owner, and to seek his consent. Any measure which seeks to reduce conflicts is to be welcomed. We also note that, should a dispute arise, the Bill clearly sets out the way in which such differences should be resolved.
As to the detail of the Bill, it makes provision for the rights of different owners concerning the construction of a new wall along the boundary of adjoining properties, and also details the rights of owners with regard to existing party walls. We are encouraged that reassurance is given to the adjoining owner with regard to making good any damage to his property.
With regard to the service of notices and counter notices, we note that the provisions of the Bill do not preclude immediate compliance with any notice served under statutory provisions regarding dangerous structures.
We see that the provisions of the Bill also extend to cases where there is excavation or construction within defined distances from an adjacent property. Further, the provisions seek to protect adjacent owners or occupiers from unnecessary inconvenience resulting from the exercise of any right conferred by the Bill, and make provision for compensation for any loss or damage arising.
We note with interest the detailed provisions for the resolution of disputes. We recognise that, although there are provisions for the appointment of up to three surveyors for the resolution of any dispute, the term "surveyor" is given a very wide interpretation in the Bill. We are glad that the Bill is not restrictive in this matter.
We appreciate the noble Earl's comments as to the provisions with regard to exemption for the Crown, and shall be happy to discuss that further with him. I hope that that gives some comfort to the noble Lord, Lord Dubs.
We are broadly supportive of the principles embodied in the Bill, but we are aware that, as the noble Earl, Lord Lytton, indicated, the Bill needs some improvement in order to make it acceptable to all. I have listened with great interest to the debate today and to my noble friend Lord Kinnoull and the noble Lord, Lord Dubs, and we shall pay close attention to what is said in the forthcoming Committee stage.
The noble Earl, Lord Kinnoull, kindly gave me notice of the queries that he was likely to raise; and I am grateful for that. He pointed, appropriately, to the fact that many disputes between adjacent owners are out of all proportion to the issues. That is the problem which the Bill attempts to address.
The definition of a surveyor has been given a certain amount of thought. The difficulty is to provide a test of competence in the Bill. I particularly note what the Minister said about the advantages of the provision being open. I am certainly prepared to consider the matter again. However, it raises problems which may not be easily overcome.
As regards the competence of third surveyors, the difficulties are that there is no arbitration agreement in the Bill. So far as I am aware--I stand to be corrected on the point--there is no way of statutorily enforcing an
On the timescale, as I understand it, the noble Earl referred to payments of costs, expenses and compensation. That is a perfectly legitimate point. It may well be that the provision should be tightened up so it is beyond doubt that payment will be made within a reasonable time.
As regards the exclusion of Northern Ireland, I am in some difficulty in answering that. I had understood that at one stage the Northern Ireland Office was considering introducing some measure of its own. It was not felt appropriate to extend the measure to Northern Ireland, but, again, I am happy to consider the matter again.
On the level of fines, as I understand it, the current practice is to set a fine at a standard rate for the offence. The Bill provides for a daily fine for continuing the offence. I do not totally understand the import of the working day as opposed to the non-working day in terms of the daily accrual of that daily element. Again, I am happy to consider the matter and write to the noble Earl with some further thoughts.
The noble Lord, Lord Dubs, said some kind words about the Bill; I am grateful to him. He referred to changes that may be required and in particular to scaffolding under the rights of entry provision. All I say in defence of that is that, if an award is properly made, the security of scaffolding should be one of the issues considered by the surveyors on making the award. Obviously that consideration would be paramount in an urban environment where there was a high security risk. Therefore I hope that the issue would be covered by the best possible practice being applied in relation to the perceived risk. I realise that that may not be an entirely satisfactory response to the noble Lord, but I believe that it is probably the answer.
Exemptions for various bodies, departments, Inns of Court and so on were considered at an earlier stage. I believe that the Bill offers advantages and that the various bodies would welcome being included since it provides a code enabling them to deal with matters which perhaps might otherwise be more difficult. There may have been a natural reluctance to tread on toes by introducing a measure of that kind from existing legislation, although it is local legislation. I plead that in mitigation. But again I am happy to consider that issue.
I am grateful to the Minister for his comments. He referred to the reduction in conflicts. That must be the nub of the Bill. It is intended to reduce friction and take the heat out of contentious issues. Where parties are able to agree, they can and will agree and nothing in the Bill will prevent them doing so. But where issues are destined to be contentious it will provide a mechanism for dealing with them.
I cannot say why it has taken so long to apply the legislation to the rest of England and Wales, but I believe that there are particularly difficult cases which arise in the country generally. It is a worthwhile Bill and on that basis I commend it to the House.
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