How To:

Resolve an Excavation Dispute

For the P&T North West Branch

Mike Scanlan - 10 July 2014

What Section 6 says / intends

Information to be communicated by Notice

The scope of excavation disputes

Information required in Dispute Resolution

A few things to include in your Awards

Excavation and Adjacent Construction

Section 6(1) / 3 metre rule

Section 6(2) / 6 metre rule

What is an excavation?

“To make a hole in something by digging or

hollowing it out”

Not just limited to foundations

What about driven and sheet piling?

Section 6(3)

The ONLY reason Section 6 exists

To underpin, strengthen or safeguard

The key issue in most excavation disputes

Serving Notice

Section 6(5) and 6(6)

Name of BO / AO

Section 6(3) - yay or nay

Description of the work

Plans and sections of the Work

“Sufficiently clear and intelligible to enable the

AO to decide how to respond to the Notice”

Hobbs Hart & Company v Grover [1899]

Spires & Son Limited v Trump [1915]

Manu v Euroview Estates Limited [2008]

Doesn’t need to be perfectly intelligible

Excavation described in general terms

Doesn’t need to be perfectly precise

Dimensions not required if scaled drawings

Disputes

Surveyor appointments – Section 10(1) & (2)

Third Surveyor selection – Section 10(1)(b)

Appointments under Section 10(4)

Surveyors Jurisdiction

Disputes

Actual vs deemed dispute

Deemed most common – Section 6(7)

Assume everything is disputed

Excavation disputes have specific context

Although narrow in scope

Influenced by Section 7(1) and 6(3)

Section 10(12) is also helpful

Right to undertake the work

Manner in which the work will be undertaken

Timing when the work will be undertaken

Section 6(3) and Section 7(1)

Access to land

Costs of resolving the dispute

Information Checklist

Drawings showing full scope of excavation

Trial pit results

Ground Investigation Report

Method Statements

Details of temporary works

The input of a Structural Engineer?

The role of the advising engineer under the

Party Wall etc. Act 1996; is there one?

Mikeal Rust – Journal of Building Survey Appraisal & Valuation –

No. 1, Volume 3

Things for the Award

Define the dispute

Schedule of Condition

Trial pit results

Making good?

Section 6(3) statement

Section 7(1) statement

Define the Dispute

“Fourteen days passed following the service of the Notice without the Adjoining Owner consenting in writing to the notified works and

accordingly, in accordance with Section 6(7) of the Act a dispute or difference is deemed to have arisen that required both Owners to appoint

a Party Wall Surveyor.”

“It is alleged by the Adjoining Owner that the Party Wall Work recently undertaken by the Building Owner on the Building Owner’s Premises has caused movement and damage to the Adjoining Owner’s stone boundary wall. The Building Owner has disputed this allegation, thus a dispute has arisen between the Building Owner and Adjoining Owner on this point.”

Schedule of Condition

Not demanded by the Act but sensible

Photos not enough on their own

Tailored to the nature of the work

Measurements

Trial Pit Results

“Localised pockets of made ground was found to depths of between approximately 1m – 1.5m, above sandy silty clay of variable strength and

consistency to depths of beyond 4m.”

“The stone boundary wall that forms part of the Adjoining Owner’s Premises has no artificial or purposely made foundation and its base bears directly on to the ground upon which it stands with perhaps only circa 200-

400mm of the wall below ground level.”

“The wall has suffered some degree of historic movement but is currently sufficient for its purpose at not at risk of collapse.”

Making Good

No express obligation to make good

Contrast Section 6 with 2(3)(4)(5)&(6)

No making good; no payment in lieu –

Section 11(8)

Section 6(10) and Section 7(2)

Section 6(3) Statement

“That it is not necessary for the foundations of the stone wall forming part of the Adjoining Owner’s

premises to be underpinned or strengthened”

“It is, however, necessary for the excavation to be undertaken in the manner and sequence set out in

Clause 3 of this Award to ensure that the foundations of the Adjoining Owner’s stone wall is adequately

safeguarded during the intended work of excavation”

Section 7(1) Statement

“If the Building Owner undertakes the Party Wall Work in the manner and sequence described at Clause 3 of this Award, then it will have taken

reasonable steps to avoid the Adjoining Owner from suffering unnecessary inconvenience, which the Act

prohibits under Section 7(1). ”