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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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Our neighbour erected a triple garage and wall all the way

Customer Question

Our neighbour erected a triple garage and wall all the way down the side of our garden. Fairly on the boundary between the two properties..(approx 50 metres). The wall facing our property was concrete blockwork and was hideous in a nice domestic setting). This was done about 5 years ago and went through protracted objections etc etc. They built this without access to our garden specifically but the garden did get trashed with concrete and rubble.This was without planning permission and when retrospective planning permission was sought (after much to and fro) it was granted with conditions. The conditions being that one of the three bay be removed...and that changes to guttering and the entire concrete back wall (facing us) to be replaced in red brick. The local council made this decision and condition of approval back in Aug 15. In the spring of 15 we erected a wooden fence at our cost £1500 to hide the concrete blocks which had ruined our outlook for 5 years. We tended the shrubs already there and planted many more in an attempt to enjoy our garden. They gave him 6 months to comply. Nothing happened until the deadline Jan 16....We received a letter asking for access to our garden which we refused as the neighbour has showed no empathy with us for 5 years. The council then dithered about issuing a breach of condition. Saying that they had to be sure about whether he needed access to to comply with the conditions.
My issue is....the council did not think this through. They should not have included us in the solution. This is about now getting access to work on a building that exists in the first place without planning permission.
The bot***** *****ne is we do not want to grant access under any circumstance. The council can enforce or not. Can we be assured that they won't gain access and what are our options.
Submitted: 4 months ago.
Category: Law
Expert:  Nicola-mod replied 4 months ago.
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
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Thank you!
Customer: replied 4 months ago.
Happy to hurry.Martin
Expert:  Nicola-mod replied 4 months ago.
We will continue to look for a Professional to assist you.
Thank you for your patience,
Expert:  F E Smith replied 4 months ago.

I will try to assist you with this.

If you are not prepared to grant access to your side for this wall to be rebuilt, how would they be able to facilitate the build and for example carry out the pointing of the brickwork to make it look acceptable? Or are you now not bothered about it being done?

The situation under the Access to Neighbouring Land Act is that you must grant access for any work required to preserve a property. That means to maintain it. It does not allow for new building.

Under the Party Wall Act anyone who was building up to the line of junction is allowed access to the neighbouring land to facilitate the build which is the situation that you were originally in.

At present this is neither preserving the property nor a new build and it would be for the court to decide which, if any, Act applied here.

There is actually no reason why the whole build could not be carried out from one side but it is highly likely that what you would then be faced with looking at could look a mess as the builders may not be able to finish it properly and you may be shooting yourself in the foot by not allowing access to facilitate this build. If you are happy to continue to look at the wooden fence the local authority are unlikely to try to force you to grant access unless they were adamant that this must be replaced with redbrick and they decided to have the court determine the matter under one of the statutory provisions. It is unlikely but possible.

What you have to decide of course is whether you are happy with the fence and want things to stay as they are or not.

Can I clarify anything for you?

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Best wishes


Customer: replied 4 months ago.
Thank you for your response.
I am still confused as I feel that neither pieces of law should be relevant. The building was originally built without planning permission. So it was an illegal new build and therefore should not be a maintenance issue. In terms of the Party wall act he should not have built the garage and wall without planning permission in the first place. If he had gone through planning permission properly we would have had some degree of consultation over the build and the establishment of whether it was a party wall or not. We would have objected to the size and closeness to the border.We are not bothered about the appearance as we have hidden the concrete block work with a fence and lovely shrubs. We do not want these disturbed. We don't believe we should be required to help a neighbour re-build something that should not have been there in the first place. We have hidden it now because we looked at it for several years. My now wife was grief struck at the time of this build and did not have the energy to cope with tackling the un-empathetic neighbour (she had lost a son and husband through suicide). Since I have been with her as boyfriend and now husband I have helped move things on in the garden and the local council. I just don't want to be forced to mess the garden up again. I guess I would settle for stalemate and an easy life. Ideally, it should be knocked down and they should start a fresh with a new application properly consulted.The local council said they would 1) Negotiate with the neighbour to potentially have it knocked down and re-planned. But my guess is why would he play ball as they have now approved it with conditions of re-building the back wall in red brick. The building control say he needs access to do that. 2) Issue a breach of condition.Under these circumstances...what would you estimate the action be by the council or a court. We actually will do nothing now and wait and see.They have not done either of these things over the past month and my guess is they won't. They will let it go to stalemate in my view despite their assurances of action.
Expert:  F E Smith replied 4 months ago.

Unfortunately, the Party Wall Act has no sanction for failing to give notice under the Act. The only remedy under the Act is to stop the build partway through by applying for an injunction. As such, that Act is no longer relevant. You should have done is apply to court at the time for an injunction to stop the build as soon as it started pending a Party Wall Award (agreement).

I accept that he did not apply for planning permission but as soon as he started to build, you could have applied to court for that injunction.

As the only persons who would be affected by the material of the adjoining wall would be you and your wife it is most unlikely that the council would insist that the adjacent wall is rebuilt. Nonetheless, they are entitled to insist that it’s rebuilt regardless of any objections by you or your neighbour.

In my earlier answer I said this is where the court would have to decide whether he was allowed access under the Party Wall Act as this is a new build their whether he was allowed access under the Access to Neighbouring Land Act for maintenance of the property. It could well be that the court decides not either.

If the court did grant him access, then he would be responsible for reinstatement and any damage.

At this stage in time, I wouldn’t do anything either. I would wait to see whether the council or the neighbour threaten application to court to compel you to give access and at that stage, I would deal with it. If you have house insurances, check to see if there is a legal expenses cover that would pay for the legal costs of defending any action brought by the neighbour or the council.

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