Are Dry Stone Garden Walls Covered Under The Party Wall Act?

Question

We live in a hilly area, and the question concerns a dry stone wall about 30 feet long separating a stretch of unadopted road (at one  level) from a children’s nursery play area at a lower level, some ten feet or so lower down. The road is in need of repair, but since it is unadopted we have had no joy with the local council, and so we have decided to raise funds to re-cobble it ourselves.

Unfortunately the dry stone wall is bellying quite a lot and, at initial meetings to discuss fund-raising etc., concerns have been raised by residents about whether the action of diggers etc might cause the wall to fall down and into the children’s nursery.

We approached the Nursery owner and explained our worries, but

1. She claimed she had been unaware of this precarious bulging – fair enough, since the Nursery does not use the road at all – but amazingly she still lets the children play under it’s shadow!
2. At the hyper-defensive behest of her father (who was present at the meeting), she would not confirm or deny that the wall was or was not hers/her responsibility.
3. She also had a builder with her whose stance was that a Party Wall Agreement would have to be entered into.

For what it’s worth, my thinking is that:

Whether or not the wall is hers or not, she has a duty of care to the children she looks after – if the wall simply fell by itself tomorrow and (God forbid) killed a child, I’m sure she would soon find herself in court about being responsible for not protecting the children. Having said that, I’m sure that the wall would actually be strong enough to withstand the road works – it’s just that other residents are mindful of our litigious society. Given that it adjoins an unadopted road, I think that the wall is actually hers; and I also think that she is hoping to muddy the waters so that she can get the group of residents to stump up to rebuild her wall, as well as re-cobble the road.

Well, those are my thoughts; but I’m interested in your take on this. So my questions are:

1. Having read your website, I wouldn’t have thought that TPWAs apply to outside dry stone walls that don’t connect buildings – am I right?
2. Given that the road on the other side of this troublesome section of wall is unadopted, who would the “second party” be? Surely it wouldn’t be the owners of the house on the opposite side of the unadopted road? Would it be “The-committee-of-the-residents-of-the-road-who-are-hoping-to-undertake-the-cobbling-of-the-area-tens-and-hundreds-of-yards-away-from-their-own-houses”?
3. And lastly,how would you suggest we proceed…?

Answer

To answer your specific questions:

A structure which sits astride the boundary between two properties (timber fences are excepted) would come within the scope of the Party Wall Act. It is referred to in the Act as a party fence wall.

You would only need to serve notice if the excavation work involved in the road works meant digging below the level of the existing foundations to the wall. Bearing in mind the change in levels this would not seem to be the case. To protect yourselves from future claims, I would recommend that before starting and work you have a schedule of condition prepared to confirm the current condition of the wall. This may just be a series of photographs but a written schedule with supporting photographs would be better. 

I’m a little unclear on the last question – boundary walls are either owned by one or other of the owners of the lands they divide or are jointly owned. The deeds or deed plans of the surrounding properties may help you to determine this. It may actually be noted in the deeds or shown as a ‘T’ mark on the deed plan. 

Finally, if the wall is shared and is in want of repair one of the owners can serve notice under section 2(2)(b) of the Act to make the other aware of the problem. Section 11(8) of the Act confirms that the repair costs are apportioned according to ‘responsibility for the defect or want of repair concerned’. If there is a dispute between the owners and a surveyor or surveyors are appointed to resolve, their fees are apportioned in the same way.