What Does Consent Mean?
Consenting to a party wall notice just means that, in simple terms, that there wasn’t a dispute that needed solicitors to be involved at the time the notice was served. Your consenting allows the building owner to proceed with the works without going through the formal Party Wall Award process at the outset. However, that position can change.
If issues come up during the course of the work, a dispute can still happen. The most common examples are damage to the adjoining property or a disagreement over how that damage should be addressed. And where there’s a clear dispute, it can still be dealt with under the Act.
And let’s be honest, if consenting meant you were giving up your rights under the Act, or your ability to involve solicitors later on, it wouldn’t make sense for anyone to agree in the first place!
Case Law
To prove that you still have all your rights, let’s look at some case law. The one referencedmost often when dealing with this situation is Onigbanjo v Pearson (2008). In this case, the adjoining owners had originally consented to the works. Once the project was underway, they experienced significant damage to their property and were unable to reach an agreement with the building owner over how it should be resolved.
They then looked to appoint their own surveyors under the Act to deal with the dispute. The surveyors them made a party wall award that required the building owner to make payment to the adjoining owners in lieu of making good the damage to their property. The building owner appealed the party wall award and challenged it, arguing that because consent had been given, there was no scope to rely on the Act at a later stage.
The Court Disagreed With That.
The important point from this case is that the adjoining owner doesn’t lose their rights under the Act simply by consenting at the outset. Where a specific dispute comes up (for example in relation to damage or compensation), surveyors can still be appointed, and a party wall award can be made to resolve that issue. In practical terms, that means that consent doesn’t remove the protections. It just postpones the need for formal involvement unless, and until, something comes up that requires it.
All of that said, there is an important distinction to keep in mind. You can’t retrospectively change your position without reason. There needs to be a genuine dispute, like damage or failure to make good, before the Act can be relied on in this way.
What Does This Mean in Reality?
From a practical perspective, it’s easy to see why a lot of adjoining owners are cautious, and want to make sure safeguards are in place before they consent. While things might go smoothly, there’s always some level of risk one works are underway. And dealing with issues after they come up is often more difficult than just putting protections in place at the beginning. So while you can appoint a surveyor after consenting, it’s not what you should rely on as your main safeguard.
In most cases, if you’re considering consent, then it’s better to consider the potential risks upfront and decide whether you can request some form of additional protection or reassurance. Whether that’s a Schedule of Condition, details of the proposed contractor, or more information from the design team.
When Should I Consent?
Sadly, we can’t make that decision for you. But what we can say is that consent is generally a reasonable choice when the proposed works are relatively straightforward, low risk, and clearly explained to you. So if you’ve been provided with clear drawings and details, you understand what your neighbour is planning to build, and there’s a good level of communication between you.
Even where you do consent, it’s best practice to request that a photographic Schedule of Condition, and it’s completed by a suitably qualified surveyor, so that both parties have a clear record of property condition before the work starts.
However, if there’s any uncertainty or potential for dispute, it might be worth considering dissenting and appointing a surveyor from the outset.
What You Should Do if Damage Happens After You Consent
Say you’ve consented and the work is underway. What happens if there’s then damage to your property? What should you do?
The first thing you should do is try to resolve the issue directly with the building owner and see if you can come to an agreement. If there was a photographic Schedule of Condition was done before the work was started, then you can refer back to it as evidence of the condition the property was in beforehand.
However, if you aren’t able to resolve things and the building owner isn’t cooperating, you can appoint a party wall surveyor to deal with the dispute on your behalf. You should provide your surveyor with a copy of the original notice and any relevant drawings, photos or information available. Your surveyor will review all of this and then contact the building owner, inviting them to appoint their own surveyor so that the matter can be dealt with formally under the Act. If the building owner doesn’t appoint a surveyor when asked, they can be given more opportunity to do so. But if they don’t respond again, a surveyor can be appointed on their behalf to allow the process to continue. The appointed surveyors will then work together to determine whether damage has been caused by the works, and if it has, how that damage should be appropriately remedied.
So, while consenting under the Act doesn’t remove your rights, it’s important to understand what you’re agreeing to. If issues do come up later, there are still options available, but in most cases it’s far easier to manage your risk properly at the start than it is to resolve problems once work is already underway. If you’re an adjoining owner trying to navigate the party wall process, or how to respond to a notice, then call our friendly team of party wall surveyors at Harrison Clarke today.
For more expert advice on surveying and property matters, check out our range of informative videos on our website or YouTube channel. Harrison Clarke Chartered Surveyors is here to guide you every step of the way!
At the time of writing, we have a total of 164 reviews across Trustpilot and Google. We are proud to say that the average rating is over 4.9/5.
