Alex. M. Frame, President of FPWS outlines where the law stands and the considerations to make when it comes to the issue of the party wall
For those of you that are designers, as well as party wall surveyors, you will know of the problems of raising a party wall under Section 2 of the Party Wall etc. Act 1996 and how it is dealt with by the planning officers of the various Local Authorities.
The Local Authority argument is that a party wall is not in the single ownership of one party and that the boundary between the two parties to be in the middle of the wall.
This is generally true regarding property ownership and in accordance with Section 38 of the Law of Property Act 1925, and whereby it has been quoted from a Roman law which said ‘Cuius est solum, eius est usque ad coelom, et ad inferos’, which when translated means ‘whoever owns soil, is theirs all the way to Heaven and to Hell.’
It is established then that a party wall between houses is severed vertically at the centre of the wall, but with the benefit of an easement of support from the other part of the wall. So for example, while you would own up to half the thickness of the wall, you could not demolish your house and just leave half the thickness of the party wall standing. Apart from causing a structural problem, the adjoining neighbour would claim a right of support from the whole wall.
Planning Law
As to the understanding of Planning Law concerning this, it, unfortunately, does not define what a boundary is or more importantly what a curtilage is, which is the language that it uses. This was tested in a planning appeal case in October 2000 in the London Borough of Enfield. The applicant applied for a certificate of lawful development with regards to a loft conversion that was built and which incorporated the raising of the full width of the party wall. The LPA refused the application saying that the development was not within the curtilage of the property, and therefore was not considered to come under the permitted development rights.
The planning inspector, who was a solicitor, disagreed, particularly as it was also acknowledged by the LPA that the term ‘curtilage’ has no statutory definition. The inspector considered that the dwelling house could not function on half a wall, so the curtilage had to include the full thickness of the wall. What this actually meant was that while the ownership was vertically severed, the curtilage for each dwelling must overlap with each other, and thus he allowed the appeal and gave a Certificate of Lawfulness to the appellant.
A similar proposal was made to the LPA of Barnet Council in 2009 who refused an application based upon the Act being amended in October 2008. However, the Inspector in that case, who was a chartered surveyor and a member of the Town Planning Institute, said that although he was not bound by the previous decision of 2000, considered that he had no reason to depart from the reasoning given then and subsequently allowed the appeal.
In another case brought in the London Borough of Merton in 2006, the LPA argued that the curtilage must be in the same place as given in Section 38 of the Law of Property Act 1925. The inspector, in that case, did agree that such an argument had merit, but it would not be expedient to amend what had been built as was required under the enforcement notice, and having considered the position of the possible curtilages overlapping allowed the appeal, dismissing the enforcement notice.
In 2010 we had a case in the London Borough of Waltham Forest, which this time detailed the building of an extension which they considered was outside of the curtilage of the property. Given that the Planning Act does not define curtilage, the Court of Appeal looked to the Oxford English Dictionary for its definition. The definition says; ‘a small court, yard, garth or piece of ground attached to a dwelling house, and forming one enclosure with it and the area attached to and containing a dwelling house and its buildings.’
The court decided a threefold test for a curtilage must be:
a) The physical layout of the building and structure.
b) The past and present ownership of the building.
c) The past and present use and function of the building.
It was therefore considered that the physical and functional relationship of the building with its neighbour was sufficient to agree with the overlapping of curtilage argument. The court thus allowed the appeal saying the party wall was within the curtilage of the appeal site and the extension was therefore permitted development.
Finally, we have to say that these are individual planning inspectors decisions and do not bind any LPA or future inspector from departing from these example decisions. However, inspectors like to be consistent and would rarely argue against each other.
The general consistency, therefore, is that whole party walls fall within the meaning of curtilages and are outside of planning control.
Alex. M. Frame. MSc., MRICS., FFPWS., FASI., FCIOB., MCMI.
President
Faculty of Party Wall Surveyors (FPWS)
enq@fpws.org.uk
