Except in the case of upward development of vacant buildings, almost all airspace developments are likely to involve some degree of work to party walls and party structures.
Party walls are a very specialist area and it is important to take expert advice from a party wall surveyor and lawyer with experience in that area in the early stages of the development. Provided the procedures under Party Wall Etc. Act 1996 are adhered to, most disputes can be avoided or resolved, albeit at a cost of time and money (usually).
What does an airspace developer need to do?
Clearly the extent to which a developer needs to engage with Party Walls is project-specific and specialist professional advice should always be sought.
Fundamentally, there are two issues to consider when deciding whether the Party Wall etc. Act 1996 is engaged:
- is the structure (or proposed structure) a party wall or a party structure as defined in Party Wall etc. Act 1996?
- does the work fall with a category covered by the Act?
In both cases, professional advice is required – as there are lots of little devils in the detail, but essentially, you should note;
- ‘Party Walls’ are generally easier to identify as part of a building which sits within and across multiple areas of land held by different owners and a wall which separates buildings belonging to different owners. A ‘Party Structure’ other than a party wall is slightly less identifiable as a floor, partition or other structure separating buildings or parts of buildings, including horizontal structures between flats or offices in a block. This could for example include suspended ceilings, raised floors, joists and structural reinforcement work.
- Most works permitted by the Act's procedures would otherwise amount to trespass or nuisance on the part of the developer. The developer’s existing rights as owner are also curtailed by the Act, which imposes a requirement to serve notice prior to carrying out work in proximity to adjoining land, where it would not otherwise be required.
How does this apply to airspace development?
Many of the works required as part of an airspace development may affect party walls or structures, which could include:
- tying-in of the airspace development to the existing structure of the building;
- penetrating the roof in order to provide access to the new development;
- the creation of new accessways through the building;
- any strengthening or additional work to the structure within the building to support the new development;
- work to strengthen or add to the foundations.
What do developers need to do?
A developer should take professional advice on the correct notices to serve a good time in advance to enable to the lawful exercise of the rights permitted by the Act. Notices should:
- be served on the correct adjoining owner(s) a minimum of 2 months before the date on which the proposed work will begin;
- be served not earlier than the date 12 months before the works are scheduled to commence in earnest;
- identify the name and address of the party serving (the developer);
- identify the nature and detail of the proposed work including, in cases where special foundations are proposed, a number of details; and
- the date on which the proposed work will begin.
If no counter-notice is served within 14 days, the adjoining owner is deemed to have dissented to the party structure notice. In those circumstances a dispute is also deemed to have arisen between the building owner and adjoining owner, and the dispute resolution mechanism under section 10 comes immediately into play.
Where there is no response and the deemed dispute arises, the developer can appoint a surveyor to act on behalf of the non-responsive adjoining owner(s). That newly appointed surveyor will act on behalf of the adjoining owner(s) in the Party Wall procedure as if they had: (a) chosen to dissent, (b) appointed their own Party Wall Surveyor, and (c) sought to agree an award on reasonable terms.
The Act has a unique dispute resolution mechanism by which a form of quasi-arbitrator called an "agreed surveyor" or "third surveyor" is appointed from the outset and nominated within a party wall award to deal with any disputes even before any have arisen.
The third surveyor's duties are to make a determination on any issues requested by either the surveyor or either owner, to resolve disputes and give advice and direction and to make decision as an award.
Look out for our next post when we consider how developers and building owners can operate the service charge once the newly built flats have been completed.