Long wrangle with neighbours over their new extension. They have planning permission but did not submit party wall notice. Demolished their side of a building adjoining ours along a party wall last November. Failed to make good exposed wall and roof of our remaining building for over 5 months despite requests and reminders. Finally I repaired roof myself and they tried to remove my repair as they said it would interfere with their building. Reported them to the police. Police suggested mediation - fine by us - but no more has happened. Had previously suggested mediation myself - to no avail. Now they are erecting their gutter and there isn't enough space for it. They've jammed it down between their new building and ours so that it has to be squashed and warped to fit. Our roof repair is not relevant as part of their gutter crosses the vertical line of their side of the party wall, i.e. overhangs the party wall. So now doing anything to our roof will be almost impossible. We think we should send them a PSN to say we want to raise the height of the party wall [PWA 2 (2)] and create a parapet so we can bring our roof up to the wall on our side with a flashing. That way our roof is accessible to us to repair. If we do this, neighbour won't be able to fit gutter in except by squashing/folding it even more. Will he argue we are only trying to be obstructive? We aren't because we don't want his gutter jammed against our roof so it cannot be repaired. Also, and we may want to build there ourselves at some time, enclosing upon the party wall. Can neighbour object to us raising party wall as it would mean his gutter could not fit?
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Could you clarify please, were the buildings originally semi detached and they have now been made detached or do I misunderstand?
Yes, both properties had brick built outbuildings, themselves detached from the main houses, but attached to each other along a party wall. When the neighbours demolished their outbuilding, that left ours completely detached. The party wall became the outside of our building. Now our building has a gable end (party wall) facing the neighbouring property, as they sliced off their side. Their new building is supposed to be wholly on their own land, not adjoining the party wall. They have a pitched roof sloping down towards our gable end but cannot fit in their gutter, which collides with the gable end party wall.
Thanks. So far as it is possible to tell will the gutter they propose to insert be overhanging your property?
It will overhang the party wall near the bottom of one pitched side of our building. We would be unable to raise this party wall to create a parapet without having to remove their gutter, or perhaps squashing it so that it might still fit (albeit in a warped position as it now is). If we can raise the party wall we can then remove the part of the roof nearest the gable, and bring it up to our side of the new parapet with flashing. I am presuming that what happens on their side of the parapet is then their business, but we can't do this without having to disturb their gutter as it has been installed.
Based on what you say a Party Wall Notice should have been served and your formal agreement obtained before they started building however if they have finished the build there is little you can do at this stage about the fact that they have built it providing it complies with planning legislation. The party Wall Act allows you to obtain an injunction to prevent the build continuing including guttering though until a party wall agreement is concluded dealing with the issues that arise as a result of their proposals
In terms of the works they have already completed, as a result of a recent case discussed below if any damage is discovered to your building by the works, including the exposing of your building by removal of part of a party wall the burden is on the builder to disprove that the damage was not caused by them rather than vice versa if they did not comply with the Party Wall Act.
This situation arose recently in the case of Roadrunner Properties Limited v (1) John Dean (2) Suffolk and Essex Joinery Limited  EWCA Civ 1816 has provided more weight to the Act than the legislation itself affords. Roadrunner Properties Ltd wanted to let their property. During the course of a building survey instructed by a prospective tenant, some damage was discovered to the party wall shared with the first defendant’s building. Roadrunner Properties Ltd had reason to believe this damage had been caused by building works recently completed to the adjacent property, namely chasing into the wall using a heavy duty drilling tool.
Such work is notifiable under the Act but no Notice had been served. Advisors to Roadrunner Properties Ltd could not invoke the provisions of the Party Wall etc Act 1996 because no Notice had been served under the Act and therefore relied on the common law. They brought an action in negligence and nuisance against the defendants. The defendants argued that the damage sustained was merely coincidental to the carrying out of building works to their property. Roadrunner Properties Ltd
...reasoned that it was highly likely that building work of the nature of that undertaken could justifiably cause the damage sustained. In summary of his judgement, Lord Justice Chadwick stated:‘If it can be shown that the damage which has occurred is the sort of damage whichone may expect to occur from the nature of the works that have been carried out ...[the Building Owner] should not be allowed to obtain forensic advantage by his ownfailure to comply with the statutory requirements ... a court should be prepared to take areasonably robust approach to causation ...’
The failure of a Building Owner to serve Notice does not negate liablity to make good damage caused to adjoining properties which could be reasonably attributable to the building work. In other words, the burden on the Building Owner to disprove a link between the damage and the work is far greater than the burden on the Adjoining Owner to prove this link. At common law the liability would be the reverse of this situation. If you therefore discover any damage has been caused you have a cause of action
Notwithstanding the provisions of the Party Wall Act the neighbour cannot overhang his gutter over your property without your permission unless there is a right in the deeds that provides for this. which is possible but unlikely in most cases. If they propose to do so you can refuse consent and if necessary obtain an injunction to prevent them doing so.
If you decide to take this approach the form you require to apply is form N16A
Is there anything above I can clarify for you?
I understand your points, I think, but what I am still not clear about is my right under the PWA to raise the party wall even if their gutter overhangs it? From what you say, it seems that they cannot prevent me from exercising my right to raise the wall, and I can get them to remove their gutter. Can I also prevent them from causing their gutter to be forced against the newly raised party wall? It looks as if I would only be able to do so if I could show they were causing damage by so doing? I'd be grateful if you could just confirm what my rights are with respect to rasing the party wall, given the circumstances. I won't ask you any more after that!
If you wanted to raise the party wall this would in itself be a party wall act notifiable work and you would need to serve notice on the neighbour and follow the same procedure they should have followed. If there are additional costs caused by modifying or removing works they have put up without undergoing the party wall act procedure such costs may be potentially claimed against them or shared.
If agreement cannot be reached between you a PWA surveyor will consider both parties views and then draw up a party wall award in respect of your raising the height of the wall and deal with the guttering and any costs relating to the same under the agreement as above.
If the gutter is overhanging your property as above this can be actionable in itself. If it is not but is abutting the party wall in a manner which could cause it damage or is against building regulations it may need to be removed or modified. In such circumstances the costs of the same may need to be shared or borne by the neiughbour entirely.
Does the above answer all your questions or is there anything I can clarify or help with any further?
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