This post started life as part of a discussion on LinkedIn, but I thought the subject deserved more lengthy treatment.
An unfortunately common idea, particularly in relation to basement excavations, is that a building owner can “raise a party wall downwards”. It is often used to avoid the absolute restriction on special foundations without the adjoining owners consent in section 7(4) of the Party Wall Act.
[pullquote_right]…the concept of “raising a party wall downwards” is wrong…[/pullquote_right]The argument goes like this: “I know it looks like I’m going to use special foundations, but if you look carefully, I’m actually raising the party wall downwards using a reinforced concrete wall. Because it is a wall, and not a foundation, I do not have to have the adjoining owner’s consent under section 7(4)”.
The “raising downwards” idea came from the case of Standard Bank of British South America v Stokes. In this case the building owner wanted to underpin the party wall.
However, section 83(6) Metropolitan Building Act 1855 (an ancestor of the Party Wall Act) did not contain an express right to underpin a party wall; it only allowed a building owner to “raise” a party wall.
The building owner therefore argued that the right to raise the height of a party wall by placing bricks on top of it should also include the right to increase the “height” by placing bricks beneath it i.e. “raising downwards”. However, the Court expressly rejected that argument:-
“…if it were absolutely impossible to underpin a wall except under this subsection, my impression is that the sub-section would be wide enough to include it. But it is not necessary to insist upon this, because the 7th sub-section meets the case”
That is, if it were otherwise impossible to underpin a party wall save by interpreting “raise” to include “raise downwards” the judge would give it that interpretation. However, it was not necessary to do so, because a building owner could underpin under a difference sub-section.
Even if that were not the case, section 2(2)(a) of the Party Wall Act expressly includes the right to underpin. Therefore, even if Standard Bank were authority for the principle of raising downwards it would no longer be good law as it would have been replaced by the right to underpin in the Party Wall Act.
Therefore, the concept of “raising a party wall downwards” is wrong. A building owner can only underpin a party wall, and if they propose to do that with special foundations, then they must obtain the adjoining owners consent under section 7(4) of the Party Wall Act.