fence post holes and party wall act section 6

fence post holes and party wall act section 6

Postby cooperatkippax » Fri Jan 29, 2016 10:26 pm

Hello everybody.

I have a problem over a fence which I erected nearly 3 years ago and has had ongoing legal issues with the neighbour. They have know taken it to court but they have added a claim with regard to breach of statutory duty, The are claiming that I should have given Party wall notice as I have excavated below and within 3m of the neighbours garage raft foundation....I can only presume they mean the post holes required for the fence but they have not said as of yet. Has anyone any knowledge or experience of this as they are attempting to claim a substantial cost in damages.
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Re: fence post holes and party wall act section 6

Postby MacadamB53 » Fri Jan 29, 2016 10:52 pm

Hi cooperatkippax,

I have firsthand experience of similar - neighbour claiming postholes warranted a PWA notice.

I politely pointed out that 1. the PWA doesn't concern itself with fences 2. regardless, the PWA would permit me to dig wider deeper holes than the ones for the fence right beside their building to confirm the depth of their foundations in order to ascertain whether I need to issue a notice.

are the other claims as farsical?

Kind regards, Mac
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Re: fence post holes and party wall act section 6

Postby cooperatkippax » Sat Jan 30, 2016 11:38 am

Yes the whole claim is a farce. Claiming boundary position incorrect etc, but have survey of paper boundary...they are jut adding things to get a win of some kind to recover there legal costs (20000 at moment)
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Re: fence post holes and party wall act section 6

Postby arborlad » Sat Jan 30, 2016 1:48 pm

cooperatkippax wrote: I have excavated below and within 3m of the neighbours garage raft foundation....I can only presume they mean the post holes required for the fence but they have not said as of yet.



On this point specifically, most post holes are 2' deep and 8-10" across, when dug alongside a garage raft foundation this will temporarily remove support from that found until the post goes in the hole and is backfilled with suitable material, this will usually be concrete and give a better support than the removed material, damage in these circumstances is remote and more likely due to a defective raft foundation.

Do you have any sort of legal expenses insurance, with the sort of figures being mentioned, you do need the type of help that can only properly be provided by someone with all the facts........that said, if you can share some of the background and history - there is considerable knowledge and expertise on the forum.
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Re: fence post holes and party wall act section 6

Postby Roblewis » Sat Jan 30, 2016 2:15 pm

The only compensation available under the PWA appears to be under Part 7. There is no Statutory DoC specifically mentioned here but elsewhere fines can be applied for failure to use Act but these are not set by a Civil Court.
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Re: fence post holes and party wall act section 6

Postby cooperatkippax » Sat Jan 30, 2016 2:31 pm

I believe they are trying to say that I failed in my duty of care of to support the neighbours land during works...and the PWA is an excuse to claim this, they are grasping at straws because they have no case but have invested a lot of money believing they had a case. They are using Lyons Davidson solicitors presumably under an insurance backed claim. I did not have insurance in place when I initially erected the fence so Self funding.
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Re: fence post holes and party wall act section 6

Postby arborlad » Sat Jan 30, 2016 2:40 pm

cooperatkippax wrote: They are using Lyons Davidson solicitors ......



I knew that name was familiar :roll: viewtopic.php?f=8&t=18319

...........and: https://www.google.co.uk/search?client= ... 8&oe=UTF-8
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Re: fence post holes and party wall act section 6

Postby arborlad » Sat Jan 30, 2016 3:12 pm

cooperatkippax wrote:I believe they are trying to say that I failed in my duty of care of to support the neighbours land during works...



What was the nature of the works, it would need to be something more than a domestic fence for there to be any basis in truth.
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Re: fence post holes and party wall act section 6

Postby cooperatkippax » Sat Jan 30, 2016 7:18 pm

How it started. .... Between my drive and the neighbours garage was a hedge (within my ownership) the hedge was huge privet 8' high 5' wide. On the neighbours side of the hedge the land sloped up originally to 2' above above base of hedge. the neighbour had at some point layed a concrete slab and built a prefab garage on the high ground (this garage is approx 3' from center of hedge) subsequently the neighbour had backfilled the slope with builders rubble increasing the land height at his side to 3' and using the hedge to retain the rubble.
3 years ago I purchased my house and discussed with neighbour about me removing hedge and erecting fence, I also advised him that his rubble was a danger as not retained and it was his duty of care to do so. We talked about a possible retaining wall system but as I would be paying it was only a possible option. I reduced the height of the hedge to get a better idea of the situation and after having expensive qoutes for walls I call a local fencing contractor to have a look. contractor came round and neighbour present. Contractor suggested reducing ground height to 2' and level with garage base then erect concrete post and fence and 2 gravel boards which neighbour agreed and said that he knew it was my hedge but wanted to retain privacy. neighbour also agreed position of fence and height ,so days later the work was done. The contractor also has a system of cutting hedges at ground level so as not to weaken ground, making the job easier and quicker for him.
It was a nice job...then 4months later solicitors letter arrived... neighbour claiming he owned the hedge and my fence was trespassing, also claiming damages for removing support from his garage and i did not build wall as agreed! since then I have had electronic survey of land to paper boundary in original 1950 deed plan (accurate drawing) this shows hedge was well inside my boundary as is the fence, also inspection of garage shows no damage so you would think solicitor would withdraw. roll on 2 years and court papers for high court and a further claim for breach of PWA.
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Re: fence post holes and party wall act section 6

Postby jonahinoz » Sat Jan 30, 2016 9:17 pm

Hi,

Surely the extent of your liability (IF any) will be to replace the concrete slab under the garage.

Is the slab capable of supporting the structure built on it? What was the gradient of the slope before it was back-filled?

John W
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Re: fence post holes and party wall act section 6

Postby cooperatkippax » Sun Jan 31, 2016 12:06 am

The garage and foundations have been inspected recently and have suffered no damage...even the neighbour admitted to the surveyor that there was no damage.
The original banked slope was about 45 degrees before it was backfilled with rubble, after the fence was erected the small gap behind it was refilled with clean sandy soil and compacted, although in hindsight I should have suggested putting it back to its original slope. I think the most ridicules point of there evidence is that they are saying the hedge was a retaining structure but the concrete fence posts and gravel boards are not.
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Re: fence post holes and party wall act section 6

Postby Roblewis » Sun Jan 31, 2016 5:19 pm

If there has been no collapse then you have not caused any damage and you have fulfilled your DoC not to cause collapse. In fact the digging away of sections of soils under foundations to underpin is a fairly standard process and is generally safe even under the weight of a house. I can still find NO statutory duty of care per se attached to the act and as others have said fence posts do not come under the remit of the act. You might in fact have a countersuit for the collapse of his land onto yours when the hedge was removed. It is eminently possible to defend yourself in a High Court but there is a long exchange of evidence process before the neighbour gets you to that point.
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Re: fence post holes and party wall act section 6

Postby cooperatkippax » Mon Feb 01, 2016 12:33 am

Its already at that point...the point at which the legal profession scraps it out at my expense then go for a drink together after.
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Re: fence post holes and party wall act section 6

Postby arborlad » Mon Feb 01, 2016 11:44 am

cooperatkippax wrote: I did not have insurance in place when I initially erected the fence so Self funding.



I take from that that you do now, if so have they offered any advice? Union membership is another source of legal advice.

You seem to have reached a stage that has skipped all the ones that are expected by the the courts to precede it, mediation, conflict resolution etc.

Would the offer of a joint surveyor and an agreement to abide by the results be acceptable, the courts would look on this favourably.
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Re: fence post holes and party wall act section 6

Postby Collaborate » Mon Feb 01, 2016 1:50 pm

Save for them asking for an injunction to prevent any more works taking place without the PWA procedure being followed (and presumably there are no further works contemplated) any court action they take must be rooted in a claim for damages. How are they saying your fence posts have damaged their property?
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