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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 17232
Experience:  I have been practising for 30 years.
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I'm wondering if you can help me. My neighbour is proposing

Customer Question

Hi
JA: Hi. How can I help?
Customer: I'm wondering if you can help me. My neighbour is proposing a loft conversion to which I have no objection to in principle but their surveyor has issued a Party wall agreement based on a scheme that would mean modification of my roof and he insists that under the Party Wall Act, my roof can be modified without my consent. I am a chartered engineer so know quite a bit about building, probably a lot more than this particular surveyor does. It is in my opinion that the surveyor is trying to bully me into submission because I can find no clause in the act that allows modification of a reef without a neighbour's consent. He keeps claiming that the neighbour has absolute right so have repeatedly asked him to prove it. Eventually after many requests he sent me a clause that definitely did not prove it and I explained to him exactly why. Yesterday he sent a part of further clause that may have proved him right had been the whole clause. When you read the whole clause (and I sent him back a copy of the whole clause), once again it proved my understanding of the act. The surveyor also issued a previous Party Wall Award based on a different flawed design but I understand that a Party Wall Award is a legally binding document that grants absolute permission for construction but I don't think the current scheme of modifying my roof without consent is legal so wan to prevent my roof from being tampered with. Thanks Chas Underhay
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: Apart from the dubious drawings submitted by the neighbour's appointed contractor and documents submitted by the surveyor, there is an email chain that if printed would resemble a roll of wall paper
JA: Where is the loft located?
Customer:*****Ash Surrey GU12 6DT I am the owner of 189
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I've given you a very brief synopsis but there is a lot of detail in the email chain
Submitted: 7 days ago.
Category: Law
Expert:  F E Smith replied 7 days ago.

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

can you tell me exactly what he proposes to do with your roof?

and have these plans been submitted to the council planning?

Expert:  F E Smith replied 6 days ago.

Let me give you a general answer based upon the amount of information I currently have.

I agree with you, you are being bullied.

They cannot modify your roof without your consent.

What they can do of course under the terms of the Party Wall Award (agreement by a different name) is cut into the party wall.

I would have suggested that you do exactly what you have done and that is to ask him to point to the section of the Party Wall Act which says he can do this or the section of any other statute. Make sure that is in writing and tell him that in the absence of that, you are of the opinion that he is bullying you and that if he doesn’t back down, you will report him to his regulatory body, “conduct likely to bring his profession into disrepute”.

You are correct that a Party Wall Award is a legally binding document but a document is not legally binding if it’s defective. It depends whether the defect strikes to the very heart of the agreement and what the defect is in the agreement.

So I do not agree that it grants absolute consent. Let’s exaggerate to prove the point. Let’s say that the agreement was flawed to the extent where if it went ahead, the building would for down. It is obviously not absolutely binding notwithstanding any claim in common law negligence. It’s just a matter of degree and how far the defect goes.

If you suspect that they are going to interfere with your roof without your consent, you would be entitled to apply to court for an injunction on an emergency basis to prevent that and you would be entitled to ask the court to award costs against the interfering party. If you suspect that they would go ahead and do that regardless, you could actually make the application to court on an emergency basis now if they will not confirm to you, in writing, that they will not go ahead with this.

An application on an emergency basis can be made without notice which means that you just go ahead and do it. You need to make the threat. You may find that a strongly worded letter from a solicitor threatening a court application and an application for costs, may focus the mind without actually the need to get to court.

Check your house insurance to see if you have legal expenses cover that would pay for the legal cost of taking this to court. Unlikely, but do check.

If they do go ahead without so much as by your leave, then there is a claim against the neighbour in trespass, common-law nuisance, and potentially criminal damage although don’t expect the police to be interested. You would be entitled to the cost of putting everything back how it was.

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

I am happy to answer any specific points arising from this.

Please be aware that my answer is based strictly upon the information you have given me.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any further questions you have on any new thread in which case, please start your question with, “ For FES only”.

You don’t need to do it on this thread, just a new thread. You have me exclusively on this one.

Thank you.

Best wishes.

FES

Expert:  F E Smith replied 6 days ago.

Incidentally, it would be the builders/roofers and the surveyor and the neighbour that you would be threatening with court and they will not normally want to get involved in these kind of arguments. Write to them all

Expert:  F E Smith replied 5 days ago.

Can I assist you any further with this? Please remember that I am always available to answer any follow-up questions that you may have and I am happy to deal with any new questions.

Kind regards

Francis

Customer: replied 4 days ago.
Hi Francis and thanks for your help. I have nearly completed Form N161 and this is what I have stated in Section 11. I have to submit this form to the court tomorrow or I think I will run out of time.
The following is the statement from the Party Wall Award as issued 6th October against which I want to appeal:
(b) Remove the existing rear ridge tiles, provide firm base and raise the party parapet wall at the back to a height as required. The party wall to be raised in matching brick type and bond, terminated with a twice weathered concrete copings laid on a physical damp proof course.
That would have to be done but what the Award and the accompanying design package completely omits to state is that adjacent tiles on my roof will need to be removed, cut to a reduced size (because the roof tiles go under the ridge tiles) then refitted, properly. The felt under the tiles would also need to cut back and modified then redressed into the raised wall so that the weatherproofing integrity is maintained. The new extended party wall would need to be built around the existing rafters in such a way that did not cause them to rot in the future and also so that the rafters remained fully supported as they are now. The Award and the accompanying design package does not even mentioned the modus operandi for the sloping rear section of the main roof but again, this will mean cutting my tiles, remedial work to the roofing felt and suitable new lead flashing.
I am a Chartered Mechanical Engineer with over forty years of experience in building related industries. I have been trying to tell the Party Wall Surveyor that drawings against which he issued the award did not provide adequate details and the drawings did not even tie up with each other. Unfortunately, the design quality has been like that since day 1.
I have also, since 6th October been asking the Party Wall Surveyor to provide me with evidence that the Party Wall Act allows my roof to be modified without my consent (especially by a contractor in which I have no faith whatsoever). After requesting this evidence on almost a daily basis and being told "that I did not understand the Act and that "the neighbour has an absolute right to modify my roof without my consent", on 13th October, the Party Wall Surveyor sent me a copy of Clause (2)(g) from Section 2 of the Party Wall Act which in abbreviated form, says that a neighbour has the right to remove anything that projected on or over their land. I pointed out by return email that my roof does not project over the neighbour's land. In reply, he sent me another email on 14th October containing an "edited" version of Clause(2)(h) from Section 2 and his "edited" version is pasted here "Section 2(2) permits the cutting away or demolish parts of any wall or building of an adjoining owner overhanging a party wall, to the extent that it is necessary to cut away/demolish the parts to enable a vertical wall to be raised". I pointed out by return of email again that he had omitted the final part of the clause "against the wall or building of the adjoining owner;" Against a wall does not mean on or over that wall.
The Party Wall Surveyor issued a previous Party Wall Award on 11th September based on a scheme that even by his own admission a few days later, was not feasible. On 21st September, The Party Wall Surveyor admitted in an email relating to that previous scheme "No part of the loft is permitted to go on your side, including the lead without your consent."
Having spent far too much time studying the Party Wall Act, I can find no evidence whatsoever of the Act even implying dispensation to modify a neighbour's roof without their consent.
I feel strongly that since issue of the latest Party Wall Award on 6th October, the Party Wall Surveyor has been trying to bully and mislead me into submission rather than acting impartially.
I do not object in principle to the loft conversion but I am determined to protect the integrity of my property. I even provided, what I considered to be, an elegant solution to the neighbour's on 21st June which would have meant modifying my roof but I would have consented to this provided that conditions were agreed. This included a request to relocate a proposed window, assurance that the project would be properly executed and the new work was guaranteed.
Emails to support all of the above statements are on file and readily available.
I would also advise that the scheme on which the Party Wall Award was issued on 6th October differs considerably from the scheme shown on the drawings lodged at Guildford Borough Council on which the Certificate of Lawfulness reference 20/P/00919 (alternative reference PP-08782038) was submitted on 08 June 20 and approved on 28 Jul 20. That original scheme did not involve any modification of my roof or any encroachment on my property.
Kind Regards
Chas Underrhay
Expert:  F E Smith replied 3 days ago.

N161?

An injunction application is N16A.

Don’t forget you need a Certificate of Urgency (a letter) with that heading on it stating why this needs to be done immediately and basically there is an immediate threat by the neighbour and the builder to go ahead with this without your consent.

You need to attach a copy of the Award.

You then say “a copy of the Award is attached marked Exhibit A”.

Any correspondence which is relevant you need to attach as exhibits.

It needs to be the story from beginning to end.

I would suggest that you don’t cram it all into box 11 but do it is a separate witness statement.

Here is the form of witness statements.

https://www.justice.gov.uk/courts/procedure-rules/civil/standard-directions/general/witness-statements

Please note that unless they have updated it, the statement of truth on the government website is wrong and this is the format it should be:

https://parissmith.co.uk/blog/guidance-signing-statement-of-truth/

that way, you can format it properly and space out the paragraphs and put things in italics so that it makes it easy to read. Don’t have one huge block of text in box 11. In box 11 you then put “please see attached Witness Statement.

You would start the statement by saying “I am the Applicant/Claimant in this matter and I make this Witness Statement from my own knowledge of the facts.

Don’t forget to sign it, date it, and add the necessary statement of truth.

Customer: replied 2 day ago.
Hi Francis
Apologies for my late reply, after I had completed the Appeal package yesterday and delivered it before the 16.00 deadline, I felt drained and the only cure was cold beer. I tried to reply today but your website seemed to jam up.
OK, Did a Seperate Statement of Truth as you suggested mostly by transcribing the text I originally put into Box 11 then enhancing it and adding specing etc to make it look better. I then put a list of attachments in Box11. The Attacchments to Form N161 included the Statement of Truth (signed and dated of course), the IMO very defective Party Wall Award complete with accopmanying drawings, the cover sheet from the previous superseded Party Wall Award and a print of a long email chain between the Surveyor and me.
Your replies have confirmed my thoughts so given me confidence to proceed.
Thanks again and all the best
Chas