As discussed in our recent blog on hoarding there are a number of practical issues to consider when proposing a new side infill and/or rear extension. A particularly important factor to bear in mind is the location of the new flank wall, or Party Wall depending upon the circumstances. Traditional Victorian terraced houses have a small passage alongside the closet wing normally leading out into the rear garden, this layout is often mirrored in the adjacent garden with a wall, fence or combination of the two delineating the boundary. As part of the works the current boundary arrangement will need to be adjusted to make room and/or allow for the new wall enclosing upon the extension to be built. We are often asked for to advise on the location of the new wall and often some degree of negotiation is required in order to find a scenario that is acceptable to both the party doing the work and the neighbour.
If the gardens are currently separated by a timber or chain link fence you will be required to serve a Notice to your neighbour under either Section 1 (5) or 1 (2) of the Party Wall Etc. Act 1996 to either build a new flank wall up to the line of junction but wholly on your land, or astride the line of junction creating a new party wall. This is often referred to as ‘straddling’ the line of junction or boundary. The new wall will, in almost all circumstances, necessitate the removal of the fence in order to allow it to be built safely and finished from the Adjoining Owners side – normally either pointing or rendering. Your neighbour will need to consent in writing to having the new wall built astride the line of junction as this will form a new Party Wall which is in effect a shared asset; if this consent is not forthcoming you will be required to build the wall wholly on your own land albeit flush against the line of junction. Obtaining consent for a new Party Wall comes with its own benefits to both parties and these will be discussed in more detail in another blog. Even if the Adjoining Owner does not give consent to a new Party Wall the Act will still invoke rights to access their property to build the new wall and remove the fence etc in the process. The Party Wall Act does not explicitly define what constitutes a Party Structure in this scenario and it has been argued that the presence of concrete fence posts set in foundations are sufficient to constitute a Party Structure under the Act and therefore your neighbour’s consent may not be required in the event that this was to be replaced with a Party Wall.
In the event that the garden is currently divided by a masonry wall built up to the line of junction but wholly on the land of the party carrying out the works a Notice under Section 1 (5) would not be required if the wall is simply being replaced; Notice would be required if the wall was to be extended however. If the Building Owner wanted to replace this wall and instead build a new Party Wall a Notice under Section 1 (2) would be required and the neighbour’s consent would need to be sought. If the garden wall is deemed a shared structure owned jointly by both parties a Notice is not required under Section 1 (2) or 1 (5) but instead under Section 2 (2) a which will invoke the right to raise the Party Wall to enclose upon the new side infill addition or extension. The neighbour’s consent would not be required in this instance as a Party Wall is already in situ.
In our next blog we will consider the details that need to be provided when serving the aforementioned Notices and how this can affect the foundations and in some circumstances the materials being used.