Does verbal consent discharge a building owners obligation under the Party Wall etc. Act 1996?
The matter of oral waiver of the obligations under the Party Wall etc. Act 1996 were considered in the Court of Appeal in Seeff & Seeff v Ho & Nu [2011] Civ 186.
Ho and Nu obtained planning permission but did not serve any notices under the Act based on the fact that they had received oral consent from their neighbour over the garden fence some twelve months prior
During the course of works the Seeffs become aggrieved with the deviation of construction work and shortly after works had commenced issued proceedings in the County Court from which Lord Justice Thomas giving lead judgement took the view that:
“... an informal discussion over the garden fence cannot, in my view, be taken objectively as a simple consent to proceed with the work without more. A neighbour who has given the consent would obviously expect that, if planning permission was required or consent under the Party Wall Act was needed, the processes would be put in train and the obligations imposed by the planning authorities or under the Party Wall Act observed as a condition of consent.”
Lord Justice Thomas goes on to confirm ......The Act makes it mandatory to give notice in respect of work defined in the Act.
So what does this mean?
Whilst it is neighbourly and good practise to first discuss your future building plans with your neighbour, any verbal agreement entered does not discharge a building owner of their obligation to comply with the Party Wall etc. Act 1996.
Quite simply, a party wall notice must be served whereas your neighbour then has two weeks to properly consider the implications of the proposals and formally consent [if they so wish].
It’s worth noting that many adjoining owners are not likely to be experts in construction and therefore it is almost expected, and a building owner should not be surprised when a notice is dissented. An adjoining owner unlike a surveyor might not have the confidence or the time to look over the plans and determine the likelihood of damage and whether adequate safeguarding measures have been proposed.
If you’ planning on undertaking building work or have received a party wall notice and not sure what to do, you can contact us for FREE initial Advice & Impartial Guidance.
