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Who Pays for Drainage Relocation and Alterations when Building Proposals Make It Inaccessible?
Tuesday 17th December 2024
Carl O'Boyle BSc MRICS FCIOB MFPWS
When advising a Building Owner constructing a rear extension adjacent to an existing rear extension of an Adjoining Owner, several key considerations must be addressed under the Party Wall etc. Act 1996 and general property law. A practical approach is outlined below:
1. Key Issues to Address
• Inaccessibility of the Gutter and Gully: The Building Owner’s extension may obstruct access to the Adjoining Owner’s gutter, downpipe, and rear gully, preventing maintenance or repair.
• Responsibility for Costs: Who pays for relocating or altering the drainage system?
• Compliance with the Party Wall Act: Ensuring the works comply with statutory requirements.
• Easements and Rights of Access: Determining the Adjoining Owner’s right to access the drainage system and the Building Owner’s obligations to maintain this access.
2. Responsibility for Costs
The central question is whether the Building Owner or the Adjoining Owner is responsible for relocating the gutter, downpipe, and gully. The following principles apply:
• Who Caused the Interference?
If the Building Owner’s works make the Adjoining Owner’s drainage system inaccessible, the Building Owner is generally responsible for the cost of modifying or relocating the affected elements. This is because the interference results directly from the Building Owner’s actions.
• Duty to Avoid Nuisance or Interference
The Building Owner has a duty to avoid interfering with the Adjoining Owner’s right to maintain and access their drainage system. If access is blocked, this could constitute a nuisance, placing responsibility on the Building Owner to ensure continued access.
• Ownership of the Drainage System
If the gutter, downpipe, and gully are within the Adjoining Owner’s property and used solely by them, ownership remains with the Adjoining Owner. The Building Owner cannot obstruct access to these elements. However, if the drainage system serves both properties, it may be considered shared infrastructure, and responsibilities for maintenance and modification may be shared.
• Section 7(1) of the Party Wall etc. Act 1996
This section obliges the Building Owner to avoid causing unnecessary inconvenience to the Adjoining Owner. If obstructing access to the drainage system is deemed unnecessary, the Building Owner must take steps to maintain access or relocate the system at their own cost.
3. Practical Advice for the Building Owner
To ensure compliance with the Party Wall Act and avoid disputes, the following steps should be taken:
1. Serve a Party Wall Notice
• A Section 6 notice (adjacent excavation notice) is required if the new foundations are within 3 metres of the Adjoining Owner’s property and deeper than their existing foundations.
• A Section 3 notice (party structure notice) may be needed if works involve exposing or cutting into a party wall.
• Include details of the gutter, downpipe, and gully in the notice or during the party wall award process to ensure the issue is formally addressed.
2. Engage with the Adjoining Owner Early
• Inform the Adjoining Owner of the potential impact on their drainage system.
• Propose practical solutions, such as relocating or reconfiguring the gutter, downpipe, and gully.
• Offer to cover the costs of the required modifications, as the interference arises from the Building Owner’s proposed works.
3. Commission a Party Wall Award
• Appoint Party Wall Surveyors to assess and document the issue.
• Ensure the award includes specific provisions for relocating the affected drainage elements, maintaining access, and allocating responsibility for costs.
4. Design and Implement Practical Solutions
Depending on the site layout, the following options may be appropriate:
• Relocating the Gutter: Move the gutter to the edge of the Adjoining Owner’s extension or integrate it into the Building Owner’s structure with maintained access.
• Re-routing the Downpipe: Divert the downpipe to a new location that still discharges effectively into the existing gully.
• Relocating the Gully: If the existing gully becomes inaccessible, create a new gully on the Adjoining Owner’s property or in a shared, accessible location.
4. Legal Position and Obligations
• Adjoining Owner’s Right to Access: The Adjoining Owner has the right to access their property for the maintenance of their drainage system. Blocking this access could result in a nuisance claim.
• Easements for Maintenance: If there is a legal or implied easement for maintaining the drainage system, the Building Owner must ensure continued access.
• Party Wall Act Compliance: The Party Wall etc. Act requires the Building Owner to notify the Adjoining Owner of any works that affect their property or party wall. The process should address access and modifications to the drainage system.
5. Practical Steps for the Building Owner
Consult a Party Wall Surveyor: This ensures the process is legally compliant and helps avoid disputes.
Serve a Party Wall Notice: Mention the impact on the gutter, downpipe, and gully and propose a solution.
Propose a Practical Solution: Offer to relocate the gutter, downpipe, and gully and confirm that costs will be covered by the Building Owner.
Avoid Creating a Nuisance: Ensure that any relocation is done professionally and maintains access for the Adjoining Owner.
Include the Relocation in the Award: Get the arrangement formally written into the party wall award to avoid future disputes.
6. Summary of Responsibilities
Relocating the Gutter: The Building Owner is responsible, as their works obstruct access.
Relocating the Downpipe: The Building Owner is responsible due to the interference caused.
Relocating the Gully: The Building Owner is responsible, as the access is blocked by the Building Owner's extension.
Costs: The Building Owner is responsible, as costs are borne by the party causing the obstruction.
The Party Wall award formalises solutions and avoids future disputes.
7. Conclusion
If the Building Owner’s proposed extension obstructs access to the Adjoining Owner’s gutter, downpipe, or gully, the Building Owner is responsible for relocating these elements and covering the associated costs. This obligation arises under general property law (nuisance) and the Party Wall etc. Act 1996. To manage this effectively, the Building Owner should:
1. Consult a Party Wall Surveyor.
2. Serve the appropriate Party Wall Notice.
3. Propose a practical solution and confirm responsibility for costs.
4. Include the arrangements in the Party Wall Award to ensure clarity and compliance.
By taking these steps, the Building Owner can avoid disputes and ensure legal compliance while maintaining good relations with the Adjoining Owner.
