We had a recent loft conversion project for a client who had separately arranged for the provision of a bank of 24 panels to his roof. I was able to witness the number of fixings through the slated roof covering – fortunately, in this case, as part of the loft conversion works, re-slating of the roof was carried out and the roofer provided access to the stripped roof for the PV installers to locate all of their fixings; the roofer then very neatly provided lead shrouds to all of these. The end result was good, with properly fixed slates and properly waterproofed fixings. However, this led me to wonder how different the situation would be on an older tiled or slated roof – where the installers need to remove and later re-fix slates or tiles for four fixings per panel – a very disruptive and undesirable operation for an old roof.  And then what happens when a slate or tile slips or breaks ?  Access is impossible to carry out a repair without scaffolding the area, removal (and later re-fixing and re-connecting wires) of the appropriate PV panel !  … to replace a single slate on an old roof which has also, of course, already had slates or tiles disturbed from the fitting of the PV panels.

To my mind, as a Surveyor, this is all a matter of concern.  When carrying out surveys, particularly of buildings with old roof coverings, which have PV panels, I will certainly raise this as a significant future maintenance concern with associated cost and health and safety implications.

So, onto the second point, which is the appearance of PV panels on old buildings. Whilst many modern buildings probably do look perfectly reasonable with the south-facing roof slope as a shiny reflective panel of glass, in my opinion, the visual damage to some of older buildings and historic townscapes is significant.  I am sure that everybody reading this can recall seeing an old brick or stone house with a roof covering of old clay tiles or slates which has been visually significantly damaged by the provision of PV panels on a prominent elevation.  I must ask the question as to whether the visual damage (and potential reduction in value to at least some potential purchasers – such as me) is worth the few hundred (at most) pounds a year overall net financial benefit.

This leads me onto my third point of the costs and benefits of PV panels. I query the overall cost benefits of PV panels if the charges for financing the initial cost is taken into account – for example, a £10,000 loan to fund an installation at an interest rate of, say, 6% equates to an annual cost of £600 just to service the debt !  Even taking money from a decent savings account at, say, 3.5% would have an annual cost of £350.  I wonder if everybody takes this into account when calculating the financial benefits.

One final thought is that it is my understanding that most PV panels are made in Japan, Germany, China, Taiwan and the USA. One must question a little the green credentials of something like this which is shipped half way around the world before being put onto a roof in this country.

So, although I am really genuinely in favour of renewable and green energy sources, I do have major concerns regarding future maintenance issues when PV panels are fitted to older roofs.  In addition,  I query the cost benefits plus the green credentials of panels imported from the other side of the world. From the visual effects of some such green energy projects, I side with the various groups who are now beginning to say that enough is enough with regards to the ever increasing wind farms blighting our countryside – in respect of PV panels, is the damage to the appearance of some of our traditional buildings and towns (including within Conservation Areas) worth the benefits to be gained from PV panels whether that is benefits to the individual or to society and the world as a whole ?

If you would like to discuss any associated matters or other building survey or architectural issues, please do not hesitate to contact Philip or Adrian on 01434 607802 or visit our website at www.smithmarstonllp.co.uk

Firstly, we were involved in respect of a project where our client’s neighbour decided to add a pitched roof to the garage attached to the side of his house.  This was work which did not require planning permission. However, the proposed roof reduced the light to a room within our client’s house to an injurious level.  The outcome of this was that, after incurring many thousands of pounds in building costs, fees and other expenses, our client’s neighbour finally had to partly dismantle and reconstruct the pitched roof at yet further expense and disruption.

The second recent example concerns a development adjacent to our client’s home.  The development is itself only residential in nature and the resultant loss of light would only be to a stairwell.  The designers of the development did not adequately consider the implications of rights of light to such a space and, as a consequence, there have been both delays and costs to the development.

The first scenario above did not require planning permission and so there was no option for any possible consideration of the effect of loss of light to the neighbour at planning application stage. Had this alteration required planning permission, then the risk of the implications of loss of light to the neighbour, our client, may have been ‘flagged up’ at that stage, most probably then requiring an assessment using the guidance within a document named BRE 209.  However, BRE 209 does not require consideration of non-habitable rooms – this was the failing of the second example above in that the design was checked and passed in respect of BRE 209 but no consideration was given to legal rights of light.

The matters to bear in mind are that even the smallest of extensions (whether domestic or commercial) can result in legal rights of light injuries to neighbours’ buildings and that legal rights of light extend to all rooms, including staircases, bathrooms and toilets. Often an extension may not need planning permission or, even if it does need planning permission, this is completely separate from legal rights to light.  Even if BRE 209 is used by the planning officer as a reference document, BRE 209 only requires consideration of habitable rooms and the test itself is not the same as the test for a legal right to light.  A pass of the tests contained in BRE 209 does not mean that the affected room will not suffer a legal rights of light injury.

If you are planning an extension then it is important to give at least some consideration to whether this might reduce light to your neighbour’s windows.  If you are a neighbour objecting to a development, even if very small in nature, you may have a legal case to object in respect of lights of light.  And, in both situations, planning permission for a scheme does not mean that there are not any legal right to light matters to address.

To discuss any right of light matters, please do not hesitate to contact either Philip or Adrian on 0845 519 7703 or take a look at our website at www.righttolightsurveyors.co.uk

In both cases, the people had engaged somebody to prepare drawings for them to get them through the planning application stage and they had obtained this element of the design project for a low cost.  However, their designer in each case was unwilling/unable to progress matters further through to detailing the project for an application for Building Regulations Consent or beyond that to the preparation of a specification, tendering and contract administration.

When we became involved, we found that one of the projects had elements of the design that would not comply with the Building Regulations, and so could not be built !  The other one would have caused a legal rights of light injury to the neighbour which could have resulted in an injunction to prevent construction or, if already built by that stage, could have required demolition of the building, with, of course, potentially significant associated legal costs.

In both cases, we ended up re-measuring, re-drawing and partially re-designing the projects.

A further consideration is that neither of these designers drawing the plans (in effect on their ‘kitchen tables’) seemingly had professional indemnity insurance.

Both of these cases proved to be false economy for our clients because, despite obtaining planning permission based upon the original basic drawings, they ended up with additional costs for re-measuring and re-drawing before there could be any progression of the  scheme.  In both cases, there were also unnecessary associated delays to their projects.

In conclusion, we recommend full consideration of whether the cheap offer to draw plans for that extension really is good value after all – if they can’t or won’t take matters further beyond planning permission stage then I would suggest caution. Also, do they have professional indemnity insurance to provide you with some reassurance that they are covered if they get something wrong ?  For example, getting it wrong from a rights of light point of view can be extremely costly !

Finally, regarding the PI insurance, it is worth bearing in mind that this does not necessarily apply just to somebody doing the odd set of drawings for applications for planning permission – alarmingly, we do know of at least a small number of sole practitioner professional designers practising without PI insurance, presumably simply to keep down their overheads – but contrary to the requirements of their professional body and at a great risk to their clients !

For details of the Architectural Services offered by Smith Marston, please call us on 01434 607802 or 0191 260 3123 or, alternatively, visit the architectural page of our website at http://www.smithmarstonllp.co.uk/pages/19/115

The fact I have realised is that the general public have very little knowledge of what Building Surveyors do – at best, they probably (hopefully) realise that Building Surveyors do surveys of buildings. In fact, like many other Building Surveyors probably, in addition to surveys (and other services like acting as Party Wall Surveyor, Conservation projects, Boundary assessments and acting as an Expert Witness), we do a lot of Architectural work, varying from small domestic extensions to multi-million pound barn conversion schemes and commercial architectural projects.  But most of this type of work comes to us via word-of-mouth because, as recently anecdotally demonstrated to me, the public generally immediately simply think they need an Architect if they are intending any sort of development project.  Whilst I have no issues at all with Architects, I am of the opinion that, in some ways, the surveying and defect analysis background of Building Surveyors can bring an extra dimension to our involvement with a development project.  Just today, I had a meeting with a client who is proposing some alterations but, at the same time, wishing to undertake some general refurbishment works – this required technical defect analysis from me.

Within our office, we have a vast amount of experience of architectural projects and numerous very satisfied clients.

Although, clearly, there are Building Surveyors nationwide offering Architectural Services, from our point of view at Smith Marston, we are happy to be involved with Architectural schemes in the north east of England and across into Cumbria.  If you would like to discuss any such matters related to projects of any size, please do not hesitate to call us.

Below are a couple of photographs from projects which we designed, specified and undertook the contract administration.

I recently received an email from a lady whose neighbour was about to develop his property. Her message started ‘I have been served notice and it seems that if I do nothing they [her neighbour] can effectively break in if accompanied by a policeman – is this true?’

She was referring to Section 8(2) of The Party Wall etc. Act which does indeed give Building Owners such a right:

If the premises are closed, the building owner, his agents and workmen may, if accompanied by a constable or other police officer, break open any fences or doors in order to enter the premises.

That may surprise many Adjoining Owners but there are a few steps to go through before anyone can start breaking down doors.

The whole of Section 8 is dedicated to rights of access and starts by confirming the scope of the right:

A building owner, his servants, agents and workmen may during usual working hours enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act and may remove any furniture or fittings or take any other action necessary for that purpose.

At first glance the clause appears worryingly wide ranging but the scope is narrowed considerably in 2 distinctive ways. The inclusion of the phrase ‘work in pursuance of this Act’ confirms that rights of access are only granted for work that is notifiable under the Act.

Let’s look at a fairly typical rear extension with the flank wall placed 100mm in from the boundary. Excavating for the foundations is likely to be notifiable under Section 6 of the Act but the part of the work for which access may be required, building the flank wall, is not covered by the Act and rights of access are not therefore available. It may be that the Adjoining Owner agrees to grant access so that the wall facing him can be made as presentable as possible but that would be discretionary.

The clause goes on to say that the Building Owner may ‘take any other action necessary’. It is important for Building Owners (and their contractors) to realise that necessary does not mean the same as convenient. Therefore, even if the work is covered by the Act but can be carried out from the Building Owner’s own side of the boundary it should be. Builders may find it convenient to have access on to an Adjoining Owner’s land, often just to store materials, but that is not reason enough for access to be granted. 

Having established that the work is covered by the Act and that access is necessary a Building Owner must serve notice in writing at least 14 days prior, although in reality this is often shortened by agreement. If the Adjoining Owner has consented to the works, but takes issue with the request for access, that would constitute a dispute under the Act and surveyors would have to be appointed to resolve that dispute by way of an Award before access is granted.

So, it is only when it’s been agreed that access is necessary, but is still being refused following the expiration of the notice period, that a Building Owner can call upon the assistance of a constable and force entry. Although the Act makes reference to breaking open doors, and I’m sure the use of a sledgehammer would be cathartic for a Building Owner whose works have been delayed, I would advise anyone in that position to employ the services of a locksmith to minimise the potential damage.  

Finally, rights of access under Section 8 do not extend to the preparation of a Schedules of Condition. While having an accurate record of the Adjoining Owner’s property in place is clearly desirable for the protection of both Owners it cannot be forced upon him. If the Adjoining Owner refuses, it would be prudent for the Building Owner’s surveyor to record the condition of his property from the street or the Building Owner’s garden.

This is a guest article written by Justin Burns BSc MRICS MFPWS of Peter Barry Surveyors, a London based firm of Party Wall Surveyors.

Smith Marston LLP also carry out lots of party wall work in the North East of England, whether this be acting for Building Owners, or Adjoining Owners.  Adrian Marston is a Member of The Faculty of Party Wall Surveyors, as is our guest blogger, Mr Justin Burns.

For more information visit http://smithmarstonllp.co.uk/pages/21/97

I am sure that it must, therefore, be of great disappointment to developers that the two parties have settled out of court only days before the scheduled hearing of the Appeal. This means that the original court decision will not be subjected to any reconsideration by the legal system and the original case law precedent remains unchallenged.

The implications for the property industry are that this must increase the likelihood of future injunctions in respect of neighbouring non-residential properties and/or may result in increased compensation payments for rights to light injuries. Clearly, neither of these options is desirable to developers and, as a consequence, all developers need to be fully aware of the risks and must not assume that a financial pay-off to a neighbour will suffice to satisfy an injured neighbour, particularly one who is minded to hold out for an injunction.

With regards to the Highcross v Heaney case, no details of the out-of-court settlement have been revealed although speculation will probably include the possibility that Mr Heaney might have been tempted into accepting a large compensation payment to ‘buy’ him out of his right to light.  The estimated cost to Highcross for the demolition of the offending construction is apparently £2.5M including costs associated with re-locating the tenants.

It has been suggested that, for suitable regeneration projects, there may be a call for an increased use of S.237 of the Planning Act which removes the risk of an injunction and also limits any financial payment to a simple calculation of diminution in value rather than the more costly option of agreeing a figure to ‘tempt’ the neighbour to give up their rights of light or, after the event, an assessment of what would have been agreed in such a ‘hypothetical negotiation’.

Developers and all other property professionals (such as Architects, Project Managers, Project Monitors and Lawyers advising regarding development site acquisitions) associated with new developments must surely fully consider the risks and investigate all options whether that may be by use of S.237 of the Planning Act, re-design or early agreement and settlement with affected neighbours.

We have additional information regarding rights to light at our website at www.righttolightsurveyors.co.uk. Alternatively, to discuss any matters regarding possible Rights of Light matters in the northern half of England, please call either Philip Smith or Adrian Marston at Smith Marston on 0845 519 7703.

Before this, there has been a general assumption that a Right to Light infringement of a commercial building would be settled with compensation/damages rather than an injunction.  There has been a feeling for a while within the industry that things may be moving away from this stance, and more towards injunctions for some commercial Right of Light injuries, but this Judgement has moved things rapidly in that direction.

So who does this affect?  Well, if you are a Developer, Architect, Lawyer, or an Investor concerned with developing or purchasing commercial property, this High Court decision could have significant implications for you.

In brief, the situation is that Mr Heaney owns a former bank building in Leeds City centre, which he had converted to offices, conference facilities and some top floor residential accommodation. Opposite this, Highcross purchased Toronto Square at the end of 2007, complete with planning permission, with part of the proposed redevelopment including the addition of two further storeys to the building.

The matter of an acknowledged infringement of Rights to Light was raised by the former owners of Toronto Square (prior to the purchase by Highcross) to Mr Heaney but these matters were not resolved. Toronto Square was sold to Highcross including a reduction in the purchase price of £350,000 to cover likely Right to Light compensation payments.

Work progressed and the Right of Light matters were still not resolved at the time of the completion of the redevelopment. After a potential tenant was ‘put off’ by the unresolved matter of Right of Light issues, Highcross decided to bring things to a conclusion by issuing proceedings for a declaration that Mr Heaney was not entitled to an injunction. Mr Heaney issued a counter-claim for a mandatory injunction requiring Highcross to remove the additional two floors or, if not, for compensation.

Judge Langan QC used the four tests laid down in Shelfer v City of London Electric Lighting Company (1894) to reach his conclusion that an injunction is appropriate in this case.  In this instance, the assessment of the injury against the four tests in the Shelfer case failed on the first test which is: Whether the injury to the affected party’s legal rights is small. The Judge decided that the injury in this case was not small.  The consequence of this is that no further consideration of the other tests was necessary to reach the decision that an injunction would be appropriate.  Judge Langan’s thoughts were that, although this was a borderline case, he had based his conclusion on the nature of Mr Heaney’s building, Mr Heaney’s commitment to the restoration of the building and the fact that the affected room (a conference room and the bank’s former boardroom) was a principal room in the building.

The implications for Highcross are enormous now that the building is complete and the affected floors are currently let to tenants.

The conclusion to this is that anybody acting as a developer or anybody advising in respect of matters regarding development or the purchase of such buildings (or sites) with potential Right of Light issues needs to be cautious.  Any potential Right to Light infringements should be fully considered and dealt with properly and concluded prior to commencement of the development or even prior to the purchase of a development site.

This case acts as a warning that, even if the neighbouring affected building is of a commercial nature,  it cannot be assumed that it will be possible to simply ‘buy-off’ the neighbour in respect of their Right to Light.  The implications of getting it wrong can be very costly.

To discuss any matters regarding Right to Light issues or to arrange for an assessment in respect of possible Right to Light infringements of neighbouring properties, visit our website at www.righttolightsurveyors.co.uk where there are also telephone and office contact details.

Many householders, and commercial property owners, have been stopped in their tracks by not knowing about the need to serve party wall notices on ‘adjoining owners’ in respect of various works.  These predominantly fall into three main categories under The Party Wall etc Act 1996.

In brief, firstly, if you intend to build a new wall at the boundary line of your land, where it was previously unbuilt upon, then you must serve a Line of Junction notice on your neighbour.  Or, if you wish to undertake certain building works to a party structure (essentially a wall or floor separating two buildings or land), a Party Structure notice is required; or thirdly, if you need to excavate within certain distances from any structures belonging to your neighbour, to a depth lower than the neighbours structure(s), you must serve a 3m or 6m Excavation notice.  These issues can be quite complex, and failure to serve notice can result in an injunction being served to halt your works, and of course, you becoming liable for a whole host of costs, never mind the costs of the delay to your project whilst matters are resolved.

So what are common examples?  Inserting steel beams in party walls for loft conversions, digging excavations for new foundations for an extension close to next doors property, building on top of a garage to add a first floor bedroom, thus raising the party wall.  These are just a few.

Simply gaining planning permission is not enough and as the legislation is now over 14 years old, ignorance cannot be an excuse.  Your professional advisors who prepare your designs should be well aware of this legislation and should you always check with them to make sure whether your works are notifiable or not.  You may even be able to design out party wall matters, eradicating the need for serving notice(s), and saving you potentially a lot of money in professional fees.

For an informal discussion about whether you need to serve notice, please contact Adrian Marston at Smith Marston LLP.  Tel 01434 607802.

I am referring here to the costs that hit thousands of businesses year on year, when the lease of the property they rent to run their business from comes to an end.  Such costs come under the term ‘dilapidations’ and, if not budgeted for, can lead to a nasty surprise at the end of the lease.

Most commercial leases have page upon page of ‘covenants’, these being obligations placed upon both the tenant and the landlord.  Most tenants are familiar with the obligation to pay rent and expect, in return, the uninterrupted use of the building. However, once in the property, concentrating on running a business, many tenants fail to realise the extent to which they have to maintain the building which they occupy.

Approaching the end of the lease, or even shortly after its expiration, the Landlord will usually prepare a document known as a ‘Schedule of Dilapidations’.  This is a list that documents all breaches of the tenants lease obligations.  This will include all items of disrepair, all breaches of decoration items, and also list items of reinstatement that relate to alterations carried out to the property by the tenant during their occupation.

Once the lease has ended, the tenant loses the right to carry out this list of works and the Landlord can quite legitimately claim for financial damages equivalent to the cost of the required works and, in many cases, for valid ‘consequential’ losses incurred as a result of the tenant having not handed the building back in the correct condition.  Such costs could be surveyors and solicitors fees for preparing reports and organising the building works, claims for loss of rent etc.  The sums can quickly mount up – there are means of limiting claims, but that is another blog in itself.

Unfortunately, such claims are legitimate.  After all, the landlord wishes to have their property asset maintained to protect their investment, and also to enable them ro re-let it to another party when the tenant moves on.  So, these ‘Dilapidations’ are not unreasonable requirements – they just need accounting for.

We had one client recently who moved premises, and received a claim from their Landlord for £140,000 -and that is a small claim. Nice eh?  Just what you want when you are trying to better yourselves by moving to a new building.  And it was all above board. They had not looked after the building and it had thus fallen into severe disrepair.  The Landlord was, in this case, quite right to recover monies to allow them to put their building back into a lettable condition.

I was with an accountancy firm only last week, and we got on to the subject of business acquisitions.  It had not been considered that when one business purchases another, that they would, in effect, be purchasing all connected assets, including leasehold property. The purchaser in such a situation would essentially be inheriting all ‘dilapidation’ liabilities associated with the leasehold property.  Surely something to negotiate on the purchase price of the business acquisition.  This would clearly benefit the purchaser as they could negotiate a reduction in price to the value of the likely dilapidations costs.

On the flip side, I remember vividly about 10 years ago, acting for an investment company whose business was property investment.  One of the tenants was a gentleman looking to sell his business and retire with a little nest egg.  The purchasor assessed a schedule of dilapidations, which I was instructed to prepare for the landlord of the premises, and this poor man’s nest egg vanished as the dilapidations swallowed up the sale proceeds.  Not a nice position to be in, for the vendor, nor myself.

So…to get to the point, if you are thinking of leasing property, protect yourself. Look to limit dilapidations liabilities.  Have a survey.  Seek advice and use it as a tool in your lease negotiations.  If you already have a lease, think early about an exit strategy. Give yourself time, budget, look after your building.

We act for tenants and landlords, and are happy to discuss matters with you if you are concerned.  Contact Adrian Marston 01434 607802.

This one particular case concerned a lady planning to extend her home – the scheme had progressed through planning permission and Building Regulations consent via the assistance of an Architect – and nobody had ever even mentioned right of light issues !

The construction works commenced and got to roof eaves level.  As is often the case, the first she knew of a problem was a letter from the neighbour’s Solicitor and the claim for an injunction for her to partially demolish the extension.  Understandably, she was shocked and astounded that her project (into which she had invested many tens of thousands of pounds) could have got so far and passed across the desks of so many building professionals without anybody raising this as a potential problem.

The consequential stress on her has been enormous without even taking account of the financial costs of Lawyers, Barristers and other professionals leading up to a Court case.

And all perfectly avoidable if only somebody in the process had been sufficiently aware of the possible right to light problem this could cause.

It is interesting that, within the last two weeks, on a very much larger scale, a Court has awarded an injunction against Highcross meaning that, subject to a possible appeal, they will have to partially demolish a large multi-storey office building in Leeds – it’s complete and occupied ! I have read that the estimate of the cost of this could be £2.5 million. A further very costly example of not adequately considering right to light issues at a suitable stage of the project.

If you are considering a development which could possibly have issues for a neighbour’s light or if you are concerned about a neighbouring development in respect of your natural daylight, it is best to properly consider matters sooner rather than later.  Call us on 01434 607802 to discuss any concerns or visit our website at www.rightolightsurveyors.co.uk