Kerswell V London Borough of Lewisham seems to be an interesting High Court planning case. While this was one that related to planning legislation and not party wall legislation, this did involve an owner’s proposal to enclose upon the side wall of an adjoining building for a proposed 1st-floor terrace.
In this case, planning permission for the proposed terrace was overturned on the basis that the planning officer had failed to consider the effect of noise from vibration transmission through the flank wall via structural connections. Importantly this was not temporary vibrations during construction, but permanent vibrations that would be conducted into the wall through structural connections serving as a conduit.
This is intriguing because had this not been a Party Wall, these structural connections would not have been permitted and would instead have represented a trespass, or conversely had this been a Party Wall, the Party Wall Act gives a statutory right to undertake such work.
Whether the wall was likely to be party is not something that seems to be been given significant consideration. However, this is not to say that Judge Waksman did not recognize that there could be differing rights to use the wall depending on the wall status. In fact, he made reference to it being immaterial as to whether or not loss of amenity through structure-borne noise and vibrations should also be considered in the planning process, saying:
“The fact that here, if the development and roof terrace was to be built as apparently intended, it might be possible, because of party wall rights , or rights to the whole of the side wall which only vest in the claimant, to stop it or change it does not relieve the council of considering matters which go to the whole question of loss of amenity……”
There are those who may be surprised to see this and may have previously taken the view that a Party Wall, being a shared structure, is something that should be subject to much more unfettered rights of use. Perhaps even taking the view that the principles in Kaye V. Lawrence concerning the Party Wall Act supplanting common law rights, should extend as far as to also supplant planning legislation’s ability to deny planning permission for enclosure onto a Party Wall on grounds of vibrations. However, this appears not to be judge’s thought process here, and it is now clear that the statutory right for a Building Owner to form connections into a Party Wall, will not mean that the effects of vibration and associated structural-borne noise on an Adjoining Owner can go unconsidered in the planning process.
It does occur to me that the judgement, in this case, does give additional weight to an Adjoining Owner’s Surveyor looking to question whether structural connections into a Party Wall should be designed to mitigate vibrations. Particularly in circumstances where a Party Wall is not currently enclosed upon. Could this become a catalyst for an increase in requests for additional vibration deadening measures when structural connections are made into a Party Wall? This may indeed be so, or perhaps in extreme circumstances, it is even conceivable that an Adjoining Owner could claim a Party Wall should not be enclosed upon on the grounds of ‘unnecessary inconvenience’ under Section 7(2) of the Act.
Whilst I think it may be unlikely that we will soon see arguments resisting Party Wall enclosure because of ‘unnecessary inconvenience’, this case could be seen to give the issue of vibrations through a party structure a much higher profile. As a result, perhaps there is every chance we may start seeing the issue of noise and vibrations in the ‘as built condition’, as something being given a greater degree of consideration in the Award negotiation process.
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