fence post holes and party wall act section 6

Re: fence post holes and party wall act section 6

Postby cooperatkippax » Mon Feb 01, 2016 7:37 pm

I have offered mediation which they refused, 3 party boundary surveyor which they refused saying it would be to my advantage! ?. So basically they have had no intention of resolving the claim. They are basically acting vexatiously chasing financial benefit. I was self litigating up until the court put the case in the high court, but since then my costs have escalated quickly. There has been no damage to the neighbour they are claiming damages for breach and for future possible damage to the garage and for not building a retaining wall (there was no wall originally only the hedge).
Its a farce, they offered to withdraw under part 36 as long as there full claim was met including all costs. A very strange offer.... I am hoping the judge has read the case prior to pre trial hearing and has the sense to strike it down.
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Re: fence post holes and party wall act section 6

Postby jonahinoz » Mon Feb 01, 2016 8:10 pm

any court action they take must be rooted in a claim for damages.

Hi,

Agreed!

But is there also a matter of a fine for not complying with the PWA? But surely such action would be taken by the LA?

So what is the neighbour asking for ... money? ... restitution? ... satisfaction?

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

Postby Collaborate » Mon Feb 01, 2016 8:14 pm

jonahinoz wrote: any court action they take must be rooted in a claim for damages.

Hi,

Agreed!

But is there also a matter of a fine for not complying with the PWA? But surely such action would be taken by the LA?

So what is the neighbour asking for ... money? ... restitution? ... satisfaction?

John W


1. Fines apply to criminal cases. this is civil.
2. The PWA does not provide for sanctions other than injunction in the event of a breach (and damages if indeed there is financial loss).
3. This is not about planning. Therefore it has nothing to do with the LPA.
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Re: fence post holes and party wall act section 6

Postby arborlad » Tue Feb 02, 2016 10:06 am

cooperatkippax wrote: There has been no damage to the neighbour they are claiming damages for breach and for future possible damage to the garage and for not building a retaining wall (there was no wall originally only the hedge).




I know of no circumstances where this can happen, damage has to be real, present and evidenced.

Can you give some of the history of the bank and how the difference in height came about.
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Re: fence post holes and party wall act section 6

Postby cooperatkippax » Tue Feb 02, 2016 10:51 am

The bank was originally a slope, the neighbouring property was obviously leveled to its current land height when the property was built in 1965, with the garage erected in the late 1970's. The hedge in place was the original hedge from about 1950 with the ground sloping upwards from the hedge base. The rubble built up (dumped) directly behind the hedge is more recent, the rubble was rubble (broken pavers, breeze and concrete blocks, kerb edgings etc) not compacted hardcore and had started to migrate through the middle of the hedge.
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Re: fence post holes and party wall act section 6

Postby Roblewis » Tue Feb 02, 2016 11:55 am

Write to the solicitor yourself and state that you will be representing yourself in person. State that you reject fully any damage was caused to the garage slab during the installation of the fence. As to the need of a retaining structure the claimant himself had altered the land by levelling the original slope at the side of his garage and had failed to secure it from collapse onto your property. The hedge that had been removed was originally at the base of the aforementioned slope and planting is not a retaining structure. Then ask for full detailed evidence of the claimed damage in the form of a suitable report from a competent surveyor.

Then state that for reference your time is to be charged at £100 per hour
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Re: fence post holes and party wall act section 6

Postby cooperatkippax » Tue Feb 02, 2016 12:36 pm

Unfortunately I suffer from severe heart failure so when the trial was set for High Court I had to hand the case to a solicitor due to the possible stress. The issue is that the legal definition of excavation is 'removal of soil' and the barrister is under the impression that used literally in the PWA then a breach would have occurred. I have tried to explain that such an argument would be an absurd misuse of the definition, This would mean that a neighbour could not even maintain his garden if close to a neighbours raft foundation without PWA agreement.
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Re: fence post holes and party wall act section 6

Postby arborlad » Tue Feb 02, 2016 4:26 pm

Dear Mr. Barrister - your client, who owns the raised land, is entirely responsible for retaining that land, not myself, I have not lowered my land.

Your client, in a thoroughly misguided attempt to retain his land used my hedge in a very poor way by piling hardcore and other debris against it, this led to damage so severe I was forced to remove it.

No excavation took place on your clients land and nothing was removed from it.

The fence sits entirely on my land, excavation for the posts was normal and appropriate for the type of fence and there were no adverse events during its erection. Although the fence is acting as a retaining feature, your client should not infer any right of support from that . There is no detriment to your clients, only betterment - which as the owner of the raised land he is not entitled to.
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Re: fence post holes and party wall act section 6

Postby arborlad » Tue Jun 20, 2017 9:36 am

Did this ever get resolved..................
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