Nick Lambert from our Property Litigation Team takes a look at the current trend for basement extensions. Such extensions are often controversial. When a basement extension is planned the Party Wall Act 1996 will nearly always apply because the excavations will typically be lower than the depth of the existing foundations or party wall. You must therefore take care to ensure that your designers, architects and/or contractors are familiar with and comply with the terms of that 1996 Act.
In particular the work will often involve underpinning which is generally performed by using reinforced concrete. If that is the case then your neighbour or neighbours can argue that these are 'special foundations' within the meaning of the Party Wall Act 1996 which require their consent. Effectively that gives a neighbouring owner a right of veto over the whole Scheme. That is because the Party Wall Act requires the written consent of the neighbour if the works involve special foundations which are defined as foundations using 'an assemblage of beams or rods½for distributing any load'. However we now have an unreported but nonetheless important County Court decision in the Central London County Court which throws some light on this subject. What the Judge in that case said was that if it was the concrete (not the reinforcement) that was distributing the load then the concrete underpinnings were not special foundations.
Thus if the design uses a concrete paid it is unlikely that your neighbour or neighbours will have a right of veto over your scheme. It is therefore important to ensure that your engineers specify a design which includes a mass concrete pad which serves a genuine structural purpose rather than being included merely to circumvent the definition of a special foundation. You also need to be aware that the Party Wall Act 1996 provides quite a number of other hoops which you will have to jump through in order to minimise the risks inherent in creating basement extensions. If you are planning a basement extension and want any further advice about your obligations or alternatively if one of your neighbours is creating a basement extension and you want further advice about your rights, then please do not hesitate to contact Nick Lambert on 0114 266 6660 or [email protected]
