Access under s.8 of the Party Wall Act
What can you do if following the service of a Party Wall Award a neighbour refuses you access onto their land to undertake notifiable work? This question was asked in a recent telephone conversation from a frustrated building owner, ‘they are refusing access and the builders need to finish off and its causing delay and unnecessary expense, what can I do?’.
For most projects access is agreed amongst adjoining owners without issue and very little fuss, however, in certain situations and for a number of reasons (rightly or not) access can be restricted and or point blank refused by an adjoining owner which can very much frustrate the progress of a project and increase the tension of all parties involved. This article is not seeking to take any sides on the matter but simply explain in plain terms the rights of access for a building owner in this situation under Section 8 of the Act.
Section 8 - Gaining Access
Under Section 8 (1) and (2) a building owner and their contractors
‘may during working hours enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act and may remove any furniture or fittings or take any other action necessary for that purpose.’
And if the premises are closed, accompanied by a member of the constabulary may
‘forcibly break open any fences or doors in order to enter the premises.'
With the above in mind and before any doors and fences are broken into it is no surprise that a building owner must first satisfy the need to formally serve a Notice of their intention to enter, often referred to as Section 8 Notice, Notice of Entry or Notice of Intention to Access Land, a Notice must be served 14 days prior to the required access AND MUST only be in pursuant of work that is notifiable, in other words a necessity to undertake or finish off relevant works.
For example, an extension being built wholly on the building owners land 125 mm in from the boundary line. Although the purpose of excavating may be notifiable under Section 6 of the Act, the construction of what would be a flank wall is not covered under the Act, therefore there are no access rights to finish off or undertake any work in regards to the erection and or finishing off the flank wall, no matter how convenient this may be. If the same extension was built and this time built astride the boundary as a ‘party wall’ then access would be permissible to erect and or finish off as may be necessary.
Once it has been established that the work is relevant, and a Notice has been served (in writing) if the adjoining owner takes issue with the necessity for access, this is deemed a dispute between neighbours and the appointed surveyor(s) will be required to resolve by means of an Award before access is granted.
This being the case, the surveyor(s) will look at the facts of the matter, including necessity and base their Award on such. On smaller projects this does not need to be a protracted exercise, moreso where the surveyor(s) are familiar with the scope of work and site in question.
Whilst the Act provides wide ranging powers of entry it is in our opinion the least favourable route to pursue, in many instances where an agreement cannot be reached between parties, engaging a party wall surveyor who is impartial to the matter and who will adjudicate impartially by means of an Award is always highly recommended.
As building and construction experts our party wall surveyors take pragmatic approach in dealing with neighbourly disputes, our solution-based approach seeks to establish a happy medium between neighbours and void the pitfalls and stress of costly and time-consuming litigation.
Feel free to get in touch if you require any advice and guidance on party wall matters.
North London Party Wall Surveyors Covering whole of London and Home Counties. Enfield, Haringey, Cheshunt, Barnet, Harrow, Harlow, Watford, Waltham Abbey, Hackney, Islington
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