Compensation for Access under the Party Wall Act

Saturday, 25th May 2024 | by: Justin Burns

Adjoining owners and occupiers must be compensated for any loss or damage which they may suffer as a result of works executed in pursuance of this Act. That’s fine, but establishing such a loss when it relates to access can be difficult for an adjoining owner.

On a typical single storey rear extension, the access should last no more than a few weeks and will generally consist of a 1.0m strip of garden temporarily sectioned off with a hoarding. Yes, the adjoining owner has lost the use of a section of garden for a period of time but how can that loss be quantified? They could speak to local letting agents and draw up a list of comparable properties with both the same size garden as theirs and a slightly smaller garden but in the unlikely event that the data was available, the time taken to assemble it would likely dwarf the loss.

For the reason set out above, compensation for access is not paid in relation to the majority of residential extensions. The exception is where the loss can be easily quantified. An example would be access over an adjoining owner’s drive. If the adjoining owner is required to park their car on the roadside (and buy a resident’s permit) or to rent a parking space close by to facilitate such access, the associated cost is the loss and can be easily costed.

Where surveyors are appointed, they should not assume that the adjoining owner wishes to claim compensation for access and run up fees unnecessarily discussing it. Where it appears that there will be a quantifiable loss, the adjoining owner should certainly be made aware of their rights so that they can decide whether or not to claim. If they do, and owners cannot agree the compensation, either of them can refer the matter to the surveyors for determination.

If the duration of access is in dispute between the owners, it can be determined by the appointed surveyors and confirmed in the award but there should also be a provision for the building owner to request and extension where such is reasonable with the matter being referred back to the surveyors if necessary.

The duration of access will be a factor when calculating the quantum of any compensation payable, but the threat of a financial penalty should not be used to try and control it. I’ve had adjoining owners’ surveyors add clauses to draft awards requiring the building owner to pay a random sum, say £50 or £100 for each week that the agreed period of access is exceeded, but I always push back. Compensation under Section 7(1) of the Act is the only basis for a payment from the building owner to the adjoining owner and, as such, the loses would start accruing from the commencement of access rather than from when the agreed period is exceeded.

In theory, the adjoining owner could decide to waive compensation for the agreed period of access but charge it for any overrun but that would only fly if the overrun was justified and, in that scenario, the compensation should be agreed retrospectively so that time is not wasted on something that may not arise.

If the building owner breaches Section 7(2) of the Act by extending the access for longer than is necessary (just because that’s convenient), that would be a matter of enforcement and, like all matters of enforcement, that’s for the owners rather than the appointed surveyors.

In the next part of this short series of posts I’ll look at the rights of access enjoyed by surveyors appointed under the Act.

If you live in the Cambridgeshire or north Essex area and require advice relating to rights of access under the party wall act, or any other aspect of party wall procedures, you’re welcome to contact us on 01799 543532 or via email.

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