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Buachaill, Barrister
Category: Law
Satisfied Customers: 10983
Experience:  Barrister 17 years experience
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My garden was split the mid sixties I levelled it

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my garden was split the mid sixties I levelled it with concrete to build a drive and garage against my neighbours fence with his current neighbour now wishes to chop away some of the concrete to erect a new fence. This is where the main upright and lintel of my structure is situated and would compromise the load bearing.Can they do this?
1. In law, your neighbour cannot build anything that would impact adversely upon the load bearing aspect of your existing structure. To do so would constitute a nuisance in law and you could sue for damages. However, if your neighbour won't listen, you can sue him if he transgresses the boundary and chops away any of the concrete which supports your structure. Additionally, if he chops away the concrete on his side of the fence such that it impacts adversely upon your structure, you can prevent him from doing so by way of injunction.2. Be aware that your neighbour is obliged to serve a Notice under section 6 of the Party Wall Act, 1996, if he wishes to excavate anywhere within 3 metres of the party wall. However, there is no sanction if the notice is not served. You will have to stop him by way of injunction. However, if a section 6 notice is not served, you will have an injunction for the asking. If a Notice under section 6 is served, you can refer the matter to arbitration whereby a surveyor will examine the issue and determine the rights of the parties in the situation.
3. The Section 6 notice must state whether your neighbour proposes to strengthen or safeguard the foundations of the building or structure belonging to you, as the Adjoining Owner. Plans and sections showing the location and depth of the proposed excavation or foundation and the location of any proposed building or structure must also accompany the notice.
4. I would advise you to write formally to your neighbour and inform him that what he proposes to do falls within the ambit of sections 2 (Work on existing party walls) and section 6 (excavation) of the Party Walls Act, 1996. Advise him that he should serve a Notice on your as the Adjoining Owner. If he complys then the arbitration provisions and the appointment of a surveyor to resolve the dispute can come into play. However, if he doesn't serve a notice, you will have to resort to injunction.
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