The basement phenomena has been in full swing for some time
and there is little evidence to suggest it will be abating any time soon. Local
Authority directives have gradually caught up and planning departments have
been, and are continuing to publish revised parameters and guidelines to ensure
these works remain lawful and inconvenience minimised. As with many things
bureaucracy often struggles to keep up with advances in design, technology and
engineering and this is particularly prevalent in real estate and construction.
Techniques and materials have been employed, which at the time are considered
best practice, which subsequently manifest themselves as problems often several
years later. Perhaps the most salient example of this was the world-wide use of
asbestos, particularly during the industrial era, which was subsequently
attributable to over 100,000 deaths in the USA. Despite the first recorded
diagnosis of asbestos related death happening in 1924 asbestos has been used in
construction up until as recently as 2003. This is an extreme example but the
point remains that construction methods and materials we have used, or are
using now, may only prove troublesome, or at worst fatal, many years later.
It was in the early 1990’s that basement construction began
to gain traction in London, but with relatively limited technology and planning
departments who could only apply their one size fits all directives the
restrictions and requirements placed on developers and contractors was
understandably lose. The concept of underpinning was by no means revolutionary
but it was generally left to the contractors carrying out the work to ensure
that the design was being correctly implemented. When faced with a fully
excavated bay beneath the Party Wall the most sensible and time efficient way
of ensuring the integrity of the wall was not undermined would be to fill it
with concrete as quickly as possible and move on to the next one. Clearly, and
perhaps understandably, little regard was given to ensuring a flush face
against the back of the bay was formed as the groundworkers were effectively
digging in virgin land – provided the width of the wall was properly supported
a clean profile for the neighbour to hypothetically enclose against was not a
Advances in technology, building methods, legislation and of course the input of the Party Wall Surveyor should dictate that measures are taken to mitigate against overspill and this should be clearly defined in the contractors Method Statement. The key issue to consider is that the presence of overspill is almost always an unknown, the Building Owner will have exercised their rights under Section 2 (2) A to underpin the Party Wall and it may not come to light until some time afterwards that there is a problem which needs to be addressed and often within a very short timeframe. As Surveyors we work diligently to review the proposals and often an enclosure payment is formalised under Section 11 (11) prior to the Award being issued which we understand to be payable ‘upon enclosure’. Often an email will arrive accompanied with a photograph of a muddy hole showing the offending item which has been carefully exposed by the groundworkers – usually with an explanation stating works are now being held up.
The scenario now becomes slightly more complicated, particularly if the individual who carried out the original basement no longer own the property. The Adjoining Owner can apply to progress a common law claim against the party responsible for the trespass, be it the current owner or one of his or her predecessors in title providing they can be found. Assuming that they can be tracked down the Adjoining Owner now must justify why they are responsible for the removal of trespass likely incorporated some years ago by a firm of contractors who may no longer exist. Clearly this is scenario that could take months to play out and even then it could be far longer before a claim reaches Court.
Alternatively the Adjoining Owner may wish to consider self-redress and remove the overspill themselves, the principles of such action were outlined in the case of Burton v Winters  1WLR 1077:
“…the courts have confined the remedy by way of self redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy. Thus, it … where there is resort to self-redress, the remedy should be taken without delay.”
It is unlikely that this method of remediation can be pursued under the Act as the jurisdiction for doing so will only extend to the Surveyors appointed at the time of the original works when the overspill would have been created. Often it will be many years between the schemes and the Surveyors appointed at the time may no longer be practicing. Self-redress is not without risk as the contractors will be breaking concrete away from the wall which will inevitably cause vibrations, if the Building Owner intends to pursue this means it is recommended that the proposal and/or Method Statement is reviewed by the Surveyor(s) and a detailed Schedule of Condition undertaken before works are carried out.
The next entry will consider what other issues require consideration and what other means of remediation exist for dealing with overspill.