• if a landowner wants to build a party wall along the boundary junction, then he must give one month's notice to the other landowner. If that landowner gives his consent, then the party wall can be built along the junction (ie half on one owner's land and half on the other's). If no consent is given, then the wall should be built on one side of the boundary only (ie solely on the land of the person who gave the notice);
• the landowner may decide to build a wall solely on his own land, but want to encroach into the soil of his neighbour's land to put in place footings or foundations. If such works are 'necessary' for the construction of the wall then one month's notice can be given to the neighbouring landowner under the 1996 Act.

An article in the NLJ makes three interesting points:

1. A statutory right to encroach under the neighbour's land (to install foundations or footings if 'necessary') might possibly be an arguable infringement of Article 1 (HRA 1998), being an expropriation of the adjoining owner's rights in his subterranean property.

2. The 1996 Act operates on the basis of the landowner giving notice to his neighbour; in effect, it is the landowner who decides whether there is jurisdiction under the 1996 Act. For instance, a property owner who decides, rightly or wrongly, that the party wall will not be built to the line of junction will not serve a notice and the adjoining owner will then have no right to refuse consent. In effect, if the property owner denies the jurisdiction of the Act then the neighbouring owner's only recourse is to seek a restraining order from the court. Thus, the onus is put on the neighbour, who is unable to invoke the arbitration provisions of PWA 1996 and instead has the stark choice of going to court.

3. A landowner may serve a notice saying that he wants to construct footings or foundations on the neighbour's land. However, it will often be the case that such works are not 'necessary' for the construction of the wall (eg piling may be vastly more expensive, but that does not mean that cheaper conventional foundations are 'necessary'). Once again, if the neighbour disagrees with the landowner's interpretation of PWA 1996 there is nothing the neighbour can do other than go to the courts (ie he cannot use any remedies - such as arbitration - within the 1996 Act).

The suggestion made by the author of the NLJ article is that PWA 1996 should be amended so that both parties can utilise the Act (and its arbitration provisions) when they think there is a 'dispute'. See [2005] NLJ 866. © Practical Lawyer