Party walls: implications of a recent case

Special foundations

13 June 2016

Michael Cooper discusses the implications of a recent party wall case

Just as my last article was concluding that surveyors should keep up to date with court decisions (see Back to the wall), Chaturachinda v Fairholme was also being heard at Central London County Court – a case that shed an interesting new light on the phrase 'special foundations'.

Reinforcement in underpinning has always been considered a special foundation, requiring a neighbour’s consent. Contrary to popular belief, this situation has not been overturned by Chaturachinda. A reinforced underpin only constitutes a special foundation if it sits directly on the ground and can be described as a foundation, and this lay at the heart of the case.

A reinforced underpin only constitutes a special foundation if it sits directly on the ground and can be described as a foundation

Chaturachinda concerned an underpin beneath the party wall, beneath which there was in turn a mass concrete foundation, or rail. The developing owners argued that this was the foundation and that the underpin – which sat above the rail, tied to the slab in the normal manner – was a wall raised downward, not a foundation. The dispute was referred to a third surveyor, who agreed with the owners’ assertion.

The third surveyor’s position was appealed on three key points:

  1. the loads were borne by the underpin and the rail served no purpose in distributing them
  2. loads were transmitted to the pins and slab, which was an integral foundation taking them to the ground
  3. the inclusion of the rail was an attempt to avoid the legislation.

Meaning investigated

In deciding the case, the meaning of special foundations was investigated, both in terms of the legislation’s wording and its original purpose when it was included in the London Building Acts (Amendment) Act 1939. The introduction of steel-framed buildings in London in the early 1900s had started to impose point loads onto the ground through steel columns, whereas previously they had been distributed along the full length of load-bearing walls. Due to the forces involved, pads were reinforced with a grillage of beams and rods that proved difficult to remove.

An advisory committee in 1935 suggested that building owners could use grillage foundations to support columns, but only with the adjoining owner’s written consent where these crossed the boundary. This suggestion was incorporated into the 1939 act (the predecessor to the Party Wall etc. Act 1996), under which grillage foundations were renamed 'special foundations'.

In the case of Standard Bank of British South America v Stokes [1878], it was decided that a wall can be raised downwards. Why, then, would a wall below ground be considered any more a foundation than one above ground taking load from a roof to the foundation?

Foundations v special foundation

The definitions of foundations and special foundations in the 1996 Act turn on the nature of the structure that transmits the load from a wall to the ground. An adjoining owner’s consent is not required for a reinforced wall, even if this is built below ground level and encloses a habitable space.

The sides of the basement box forming the habitable space of the extension are walls, and even though these ultimately transmit the load above to the ground, it does not mean that they are foundations any more than the parts of the walls above ground are. What transmits the load from the walls to the ground are the foundations of those walls, and in Chaturachinda the foundations were concrete rails. It is those that constitute the building’s foundations.

Under the 1996 Act, the foundation is the structure resting on the ground on which the wall in turn rests. It follows that the reinforced underpin does not satisfy this definition if it is supported on rails, and under those circumstances the function of transmitting load to the ground is performed by the rails rather than the underpinning.

The judge in Chaturachinda rejected the adjoining owner’s arguments.

As the rails might not be necessary for the proposed structure, I wonder whether their contrived nature did not receive full consideration in the neighbour’s case. It could be perceived that 'the rails' were designed to take the foundation outside the definition of 'special foundations', but as they were present in the design they had the effect that the building owner’s surveyor contended. That is to say, the rails did bear the load, and as they were constructed in advance of the underpin that rested on them, they accordingly transmitted the load to the ground and became the foundation. Let’s see whether the decision stands the test of time.

Michael Cooper is Director of Building Consultancy at Colliers International

Further information

This feature is taken from the RICS Building surveying journal (May/June 2016).

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