Mrs Day commenced s.6(1) excavations prior to serving notice on 7th February. Mr & Mrs Keddie were the applicants for an injunction against Mrs Day the neighbouring owner who had started building works without service of party wall notices. Mr & Mrs Keddiehad instructed Mr Antino as their expert who wrote on the 7th February a letter which was hand delivered to the defendants house explaining that the commencement of excavations was in breach of s.6(1)(a) & (b) for their foundations and new drainage, and that they should stop works.
The defendants drawings indicated a public sewer running through the claimants’ property which the defendant wanted to connect to this required excavating the claimants’ driveway. They denied this was an excavation.
What they had failed to accept when advised by Philip Antino, is that the excavation of drains were notifiable works and furthermore that these drains were indicated as connecting onto drains and inspection chambers positioned wholly on the adjoining owners land. This would require a right of access, only applicable after notice, and indeed would create structural damage to the claimants paths, driveways etc. A request to stop works was made with the advice that unless an undertaking was given not to continue an inunction would be obtained.
Connecting to a public sewer also required a license from Anglia waterwhich had been applied for. Disappointingly, Mrs Day continued with the excavations on the following morning, the 8th February despite having been advised that continuation of works could lead to an injunction. A request to stop works was made with the advice that unless an undertaking was given not to continue an inunction would be obtained.
On the following morning of the 8th February Mr & Mrs Keddie advised Philip Antino of ongoing works and he recommended that they take legal advice. They did this immediately, and instructed Mr Ashley Bean of Littlestone Cowan Solicitors and Mr Richard Power of Lamb chambers who prepared the appropriate letter to the defendant requesting an undertaking that they stop works and serve the appropriate party wall notices, or an injunction would be applied for.
They completed the foundations to the front of their property; the drain excavations had not been started. Without the appropriate undertaking, Chelmsford County Court issued an immediate injunction to stop any and/or further notifiable works under s.6(1)(a) & (b).
The building owner disputed the need for notices claiming that they had a right to do these works because it was a shared drain and not notifiable. What they had failed to further recognise and understand is that if their contention that the drains were a shared drain they became a public sewer, and accordingly fell within the domain of Anglian Water Authority and it was the defendants obligation to obtain a building over, near to licence prior to these drainage works. They had not obtained the licence, and had no intention of doing so.
Furthermore, Philip Antino submitted that the excavations were below the concrete path, driveway, garage base, and indeed the claimants drains were all structures, and accordingly an excavation below those structures, was inevitable given the invert level depth and therefore notifiable works. The injunction was therefore granted.
The building owners were aware of the without notice application they indicated that they would be at Court but then chose not to participate. As a consequence of the building owners reluctance/refusal to accept their statutory obligations and give an undertaking the injunction was granted.
The Judge arranged for a return date hearing for the 14th February at Chelmsford County Court to give the defendants an opportunity to either undertake not to do any further notifiable works thereby lifting the injunction, or to explain why they believed that the Party Wall etc. Act did not apply.
A resolution was achieved without the need for further legal determination.