Party Wall dispute and foundations within 3/6 metre notices

pedgepuk

Hi...
I've been planning for an extension to my property for some months, received planning permission from the local council based on the planned drawings, have employed a Structural Engineer, Building Control company, water company build over agreement, shortlisted two reputable construction firms, and issued Party Wall notices to my two neighbours.

All was going very well after keeping my neighbours informed since I started planning for the project with both very happy on the planned drawings which I showed and how it was going to be built etc. My expectation was that I may incur some reservations from the neighbour who I share a party wall with but they are completely happy with me to proceed and signed the relevant Party Wall agreements. However, my other neighbour who is in a detached house 2.2 metres from my external wall facing the owners house has decided to dispute the Party Wall agreements, this being the Party Structure Notice and the 3/6 Metre Notice which I issued following the guidelines on the government and planning portals. Their statement is that the work may cause damage to their foundations and drain after they sought legal advice.

I have been diplomatic throughout albeit extremely disappointed that there was no approach to me to have a discussion before receiving legal advice after the 6 or so years we've been neighbours and had a really good friendly relationship. There was a complete change in their manner and they refused to talk or acknowledge any of my diplomatic messages to justify how things will be constructed, who would be doing the work, how they were vetted, and even me offering a surveyor to seek a condition report.

The distance between the new proposed extension wall will be 1 metre to the boundary fence, and 1.2 metres between the boundary fence and the adjoining owners property wall - a total of 2.2 metres. With this in mind and after reading the guidance, it was portrayed as me requiring the 3/6 Metre notice to be issued.

Now for the shocker... I was recently notified that the adjoining owner has instructed a Party Wall surveyor to act on their behalf, but worse still is that they do not want me to use the same surveyor and so I need to have my own, plus that I should have no dealings with the adjoining owner on the subject. This means a potential £3000 total cost which I'd have to pay for both surveyors, or more should a third surveyor be required to allow for the award.

Having now done more research and also spoken to four Party Wall Surveyors, two of them have implied that I shouldn't have issued the 3 Metre notice since the adjoining owners property built in 2010, would have foundations at a minimum 1 metre depth based on building control regulations, and the new extension excavation of my property would also incur the same depth of 1 metre and no more. This of course may change should the soil be different, however, having spoken to two different neighbours who have had extensions done in the past 2 years, we in this area seem to be on chalk and their foundations went to a depth of 1 metre, so I would assume the same for mine unless building control advise different. I've already requested for my adjoining neighbours foundation specification from relevant sources and awaiting for this to get more clarity.

The Party Wall etc Act research online does indeed state: 

"The following types of excavations fall within the scope of the Act:
• under section 6(1), excavations within 3m of a building or structure to a lower level than the bottom of the foundations of such building or structure (Figure 9) and 
• under section 6(2), excavations within 6m of a building or structure that will cut a line drawn downwards at 45 degrees from the bottom of the existing foundation from a point in line with the outside face of the building or structure (Figure 10)."

This means that Section 6 (1) would potentially apply:

Section 6 - Adjacent excavation and construction.
(1) This section applies where—
(a) a building owner proposes to excavate, or excavate for and erect a building or structure, within a distance of three metres measured horizontally from any part of a building or structure of an adjoining owner; and
(b) any part of the proposed excavation, building or structure will within those three metres extend to a lower level than the level of the bottom of the foundations of the building or structure of the adjoining owner.

So to me, this would say that I would only need the 3 Metre notice if within 3 metres and that the foundations are deeper than the adjoining property.

However, if the foundation isn't deeper than the adjoining neighbour pending their foundation data, then I may have indeed issued a 3 Metre Notice needlessly, which means I would retract the notice and would save me ridiculous costs, and lift the delay for the building work to start.

I would be grateful for any feedback or advice on the above.
TIA

Doozergirl

In short.   You are absolutely correct.  It only applies if your foundations are planned to be deeper!  

They've found themselves an ambulance chaser.  Withdraw the notice.  

Newuser1987

Yes as Doozergirl has said no need for notice.
You are not carrying out notifiable works. My advice would be to just email your neighbours surveyor to inform them that you will not be carrying out 'notifiable' works and therefore the original notice was not correct. I would not explain yourself or mention anything further. 
Ideally your original notice would have been invalid because some surveyors will prepare an award to cover their costs in this scenario. If the original notice was invalid then they would have no authority to do this.

Quite often DIY notices for 3/6m excavation notices are invalid becuase they dont include a drawing which shows:
the site and depth of any excavation the building owner proposes to make.
Did you include this? If not then the notice would not have been valid.

pedgepuk

Really appreciate this and many thanks for the responses. 

Newuser1987 said:

Quite often DIY notices for 3/6m excavation notices are invalid becuase they dont include a drawing which shows:
the site and depth of any excavation the building owner proposes to make.
Did you include this? If not then the notice would not have been valid.

I did provide a copy of my plans where one drawing does state the 1 metre depth of the new foundations. Would this be a problem if I wish to retract the 3 Metre notice?

I have this morning spoken to a third surveyor who confirmed that I can retract the notice as even within the 3 metres, the foundations aren't planned to go deeper than the envisaged 1 metre depth of the adjoining owners 2010 property.

TIA