# Boundary fence to be replaced with boundary wall - agreement in writing? Bit late now



## eggerb (5 Jan 2010)

I am in the process of building an extension and have verbally agreed with the neighbour that I replace the boundary fence with a parapet wall. I left it totally up to her. I was happy to build on my side and leave a gap between the extension wall and the fence but she was happier to totally replace the fence with a parapet wall. (She got advice from her father and her uncle, an architect). I wrote to her, at her request, to confirm what we had agreed and to confirm that the builders were fully insured etc. I outlined that the midpoint of the wall and the foundations would be where the midpoint of the existing fence is. She dropped into to me to give me her mobile number and confirm that she is happy with everything I had in the letter. She requested that I paint the wall when finished and I said no problem. I will need to re-plant some of her shrubs when everything is finished (and the weather improves). So, I haven't fulfilled everything on my side yet.

It's probably a bit late now as construction has started but should I have got something in writing from her? If so, what? She was happy with everything in my letter to her but that just had my signature!


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## Vanilla (6 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

If you had her agreement in writing you would be in a better position later in the event of a dispute.

However you are doing very well already by putting the agreement in writing, giving it to her and getting her verbal approval. In the event you do have a dispute later all of this will be in your favour.

Sometimes asking people to sign agreements can be off putting so it is a tricky one.


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## onq (6 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*



eggerb said:


> I am in the process of building an extension and have verbally agreed with the neighbour that I replace the boundary fence with a parapet wall. I left it totally up to her. I was happy to build on my side and leave a gap between the extension wall and the fence but she was happier to totally replace the fence with a parapet wall. (She got advice from her father and her uncle, an architect). I wrote to her, at her request, to confirm what we had agreed and to confirm that the builders were fully insured etc. I outlined that the midpoint of the wall and the foundations would be where the midpoint of the existing fence is. She dropped into to me to give me her mobile number and confirm that she is happy with everything I had in the letter. She requested that I paint the wall when finished and I said no problem. I will need to re-plant some of her shrubs when everything is finished (and the weather improves). So, I haven't fulfilled everything on my side yet.
> 
> It's probably a bit late now as construction has started but should I have got something in writing from her? If so, what? She was happy with everything in my letter to her but that just had my signature!



As Vanilla as said, getting others to sign things can be tricky, expecially after the fact of negotiations having more or less concluded satisfactorily.

One acceptable way forward in my experience is to confirm everything that occurred back to them in writing citing attendances, locations, times, dates, comments, and agreements.
You can preface it by being up front and stating that you wanted to ensure both parties had a clear understanding of the preliminary discussions held prior to commencement.
You could even suggest that you did this at the behest of your contractor who wanted to know exactly where he stood and you chose this means to inform your neighbour.
You could include a line inviting your neighbour to comment or request corrections or issue clarifications of points in the correspondence and that you would welcome these.

Few right-minded people will object to such a letter but don't get "inventive" or include any last minute wishful thinking on your part.

A drawing of where the finished wall will be relative to the existing boundary and any window opes/doors on their side may give confort at the expense of making your builder build to the line exactly.
The plan detail should include any depth of external render [say 25mm] to avoid confusion.

HTH

ONQ.

[broken link removed]


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## eggerb (6 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

Many thanks ONQ and Vanilla. 



Vanilla said:


> ... Sometimes asking people to sign agreements can be off putting so it is a tricky one.


 
This is exactly how I felt. I have the agreement that works in my favour and the one she preferred, so I didn't want to go upsetting this by looking for something in writing. Right from the start, I was very clear with her that she was not being pressured into anything and the decision was hers without pressure. I even mentioned that her third option (after a parapet wall or allowing me access to render only) was to tell me she wanted nothing to do with me or my extension. I've agreed to keep her updated on progress/issues and I've done this. (I'm going to text her now to say the builders can't pour the concrete because of the sub zero temperatures). So far, this is what has happened.

1. I approached her in early December and gave her a copy of the proposed plan including the option to replace the fence with a parapet wall.
2. Before Christmas, I dropped in and she said her preference was to go with the parapet wall.
3. I wrote to her after Christmas to thank her for her agreement to replace the wall and telling her that construction had been confirmed to start 4th January.
4. She dropped around and said this was fine and gave me her mobile telephone number.
5. The foundations were dug this week and are on hold because of the weather.

Going forward, my plan:

When the wall is complete, I'll write again to say it is finished and to thank her for her agreement again. I'll ask her to let me know a date that would be suitable to have the wall painted and to have a gardener make good her garden and shrubs again. I'll offer to replace them if they don't take well to being replanted since I have pulled them into this polar weather!

I'm reticent to look for anything in writing. I think I'll leave all as is. 

Could there be issues in selling going forward? Would a prospective purchaser/solicitor look for something in writing?


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## onq (6 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

I think you have nothing to lose writing the letter I suggested.

Perhaps you could write two or three "update" letters as matters progress.

This will copper-fasten your up-front position backed by this open and transparent policy.

This also would mitigate against her leaving any errors and omissions she might spot in abeyance until its too late, costly to rectify them.

Its your call 

ONQ.


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## eggerb (6 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

Cheers again ONQ and Vanilla - much appreciated


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## rockofages (7 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

I presume you are doing this as an exempted development? If so, building on the boundary line will not satisfy the Planning & Development Act with regard to exempted developments. What your neighbour has to say in this instance has no bearing.


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## eggerb (7 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

Thanks for this. I over looked this. It looks like I have three options:

(a) Continue building and look for permission to retain. Could be very risky if the neighbour says that I don't have permission to replace the boundary fence. Floor space-wise, in the extension, this is the best option. Planning-wise it is wrong but a genuine mistake and not premeditated. (I suppose the decision to continue building would be)

(b) Build a parapet wall right up to the boundary line. I'm assuming that this would be exempt as I would still be totally building within my property even if I do not put the fence back in place (subject to agreement with the neighbour). Floor space-wise, I'll be losing 15cm off the room width.

(c) Step in 30cm and build a wall with gutters. Compared to option (a) above I'll end up losing 30cm in total off the floor width. Gutters would probably look better than the parapet wall.


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## onq (7 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

Hi 

Firstly I want to confirm that the point of planning law raised by rockofages centres on the the fact that you are building your extension along the party wall by agreement with your neighbour and does not address other issues which might affect your exempted development status.

While a strict interpretation of the wording might suggest the comments passed by rockofages, planners don't make this interpretation if an agreement has been reached between the parties.
Sometimes no formal agreement has been reached, just the fact that there is no evidence of a legal defence against the trespass that occurs when the foundations are going in.
In a semi-detached house, the relevant boundaries for window distance issues on exempted development are the other, garden wall, boundaries, not the party wall boundary.
So building along the party wall in and of itself does not disqualify your building from being exempted development.

Other issues affecting this, may include, but are not limited to:


area
height of roof
height of eaves
number of stories
materials used in construction
distance from boundary of 1st floor windows
distance from boundary of ground floor  floor windows

If you want a comment on the exempted status of the overall design, you should post .jpeg scans of the drawings here [assuming you can in the FAQ - check this] or PM me and I will take a look.

=========================================

CLARIFICATION:

I want to emphasise that the above comment was made in relation to the house being a semi-detached house, and the advice is correct for such a house.
I troubled to check with Dun Laoghaire Rathdown Co. Co. before posting the above advice, just in case some new regulation had crept in unknownst.

However I now understand that this house may be detached and that means that there is no party wall to the house, only party garden walls.
This is a different situation and rockofages advice is correct in principle because the extension is to the side as well as behind the house.
Yet even for detached houses the planners may take a view that its a minor infraction and issue a section 5 declaration supporting it.

FWIW

ONQ.


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## rockofages (7 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

For a development to be exempted, among other things it must be built within the _curtilage _of the house. Curtilage has no definition in Irish law (this problem is widely recognised) so the local authorities tend to use the definition of boundary.

If your new wall replaces an existing boudary wall or fence then it means part of your development is built upon the boundary, and not within it.

(c) is your best option, but make sure your gutters do not overhang the boundary and to be safe make sure they do not overhang the existing boundary wall or fence.

When there is an existing boundary wall some local authorities interpret the boundary to be the centre line, some the face of the wall closest to you. An Bord Pleanala would probably use the centre line, but unless you want to have to rely on them to back you up in case the Local Authority uses the nearest face you are safer not building over either. 

Lastly you should familiarise yourself with the Exempted Development part of the Planning and Development Act. There are limitations with regard to floor space and placement of windows. Generally they are easy to comply with tho.

Be aware that an agreement with your neighbour means nothing when it comes to enforcement of the Act. All it takes is one crank to report you and the Local Authority can come in and inspect the place. Making a complaint against you costs nothing in most cases (Local Authorities all handle it differently) and in many cases anonymous complaints are accepted. The complaints mechanism really is a crank's charter.

If your Local Authority does decide your development is not Exempted they usually won't be too specific. You will have to request a Section 5 declaration from them (typically €80) to get them to be specific.

Long and short: learn the Exempted Development part of the Act and comply with it. It's a lot of hassle otherwise.


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## rockofages (7 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

I should add two things:

Some Local Authorities will recommend parapet walls when building close to a boundary. I would not recommend a parapet wall tho as they are prone to leaks and other trouble.

Secondly it has been my experience that Architects are willing to write (expensive) letters saying a development is exempted in their opinion, but unless you have a Certificate of Exemption from the Local Authority it doesn't matter what any Architect says. A Certificate of Exemption requires almost as much paperwork and expense as full planning permission, so my advice would be a Section 5 declaration from the Local Authority. If everything is compliant you won't get a Cert but you will have it in writing from them that they don't have a problem.


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## onq (7 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

rockofages,

Your point is well taken about the curtilage being poorly defined.
Yet the requirement to keep within it suggests an intent by the framers.
I suggest that this is based on issues of trespass on title and public amenity.
Years of established precedent will weigh in your favour with an agreed semi-d extension.
I do however tend to agree with your comment that a Section 5 Declaration is a good solution.
Would you happen to have a citation or reference for Certificates of Exemption other than those used for Part V?
In relation to Opinions, whether Architectural or Legal, professionals differ in both disciplines and the Courts decide.
Where a persuasive argument in an Opinion is supported by long years of precedent I have found that few people disregard it.



ONQ.


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## eggerb (7 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

Many thanks ONQ and rockofages.

For the record (sorry - should have made this clear), I do have a section 5 declaration. However, the plans I submitted clearly showed the wall *inside *the boundary line and not a shared boundary wall with the centre line being the boundary line.

I called the planner who issued the declaration and she said I would need planning permission to build against a boundary wall. In any case, she said if I deviated from the plan I submitted for the Section 5 Declaration, the declaration would be invalid.

I can't really afford to loose 30cm off the length of the wall in question as I am extending into the side passageway** and need to fit a door into teh passageway. So, I am leaning towards building a parapet wall right up to the boundary. A gutter would mean I would need to step in a further 15cm.

**Most people I consulted advised that I would need planning permission to extend beyond the side building line but the planner in question referenced [broken link removed] and said that once I only extended to the rear (and I met the other exempted development conditions) I would be OK. The case worth a read. I'm not sure if other planning authorities would reference it though.


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## rockofages (7 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

ONQ, curtilage is not defined at all, not poorly defined! The UK equivalent of the Law Reform Commission addressed this many years ago in the UK, and while it has been recognised to be a problem here nothing has been done about it.

The Architects association have detailed recommendations, with specific recommendations for party walls etc, but I'm sure it will all fall on deaf ears.

As regards long standing agreements it has been my experience that a 3rd party makes a complaint and then it becomes an issue between the person who built/owns the extension and the Local Authority. There is recourse to An Bord Pleanála and they usually deliver the goods when the Local Authority is being stupid. Unfortunately the planning enforcement sections do not receive performance related pay and are free to interpret the legislation as badly as they want.


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## eggerb (7 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*



rockofages said:


> ONQ, curtilage is not defined at all, not poorly defined!


 
When I started out on my exempted development investigation, I tried to get  definition of this from a few different planning authorities and there wasn't one forthcoming. So, it seems even the planners are not sure what is meant by it!


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## rockofages (7 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*



eggerb said:


> When I started out on my exempted development investigation, I tried to get  definition of this from a few different planning authorities and there wasn't one forthcoming. So, it seems even the planners are not sure what is meant by it!



I asked seven Local Authorities. Five simply said ask a solicitor. Only two would offer any sort of definition, and those two didn't reconcile!

I also phoned the Dept of the Environment and asked, and was also told to ask a solicitor! I believe this was a fob-off tho and they were simply not interested.

Only in Ireland could a law be based on something which doesn't exist!


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## eggerb (8 Jan 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*



rockofages said:


> ...Some Local Authorities will recommend parapet walls when building close to a boundary. I would not recommend a parapet wall tho as they are prone to leaks and other trouble.


 
What sort of other trouble? The stepped-in parapet wall is really my preference because of the extra 15cm. I suspect my neighbour won't want the fences put back and I'd be happy with this.


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## onq (26 Feb 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*



rockofages said:


> I asked seven Local Authorities. Five simply said ask a solicitor. Only two would offer any sort of definition, and those two didn't reconcile!
> 
> I also phoned the Dept of the Environment and asked, and was also told to ask a solicitor! I believe this was a fob-off tho and they were simply not interested.
> 
> Only in Ireland could a law be based on something which doesn't exist!



rockofages,

Sorry for coming back to this so late.

Or course you are correct in relation to the "withing the curtilage" issue.
I re-read my earlier post and it didn't really traverse the issue well enough to be useful for a layperson reading this.

Instread of referring to "agreement" and "precedent" I should have spelt it out more.

The only literal way to comply - especially if walls are built seperately is if they both built walls with their faces ON the party boundary - the line of title becomes centred on the contruction joint running between the walls.

However, if BOTH people agree the erection of a wall along the party boundary the exempted development "within the curtiledge" issue is dealt with since it is as if both parties simulteneously build the wall through one agent and the wall lies within both their curtiledges and no other curtiledge.

I'd appreciate your comments on the pararagraph above as a reasonable interpretation of the matter.

Thank you for pointing out this detail in law BTW. 

ONQ.


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## rockofages (27 Feb 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*



onq said:


> However, if BOTH people agree the erection of a wall along the party boundary the exempted development "within the curtiledge" issue is dealt with since it is as if both parties simulteneously build the wall through one agent and the wall lies within both their curtiledges and no other curtiledge.



After thinking about this there are several different scenarios. Assuming all involve a wall built on a boundary between two parties;
1. The wall is used by both parties as a garden wall. Garden walls are covered in the legislation and are obviously acceptable.
2. Both parties are using the wall as part of an extension. Whatever about the law it is unlikely the LA would persue any course of action purely out of common sense.
3. Both sides are using it for different purposes, ie it's a garden wall for one side and a wall in an extension for the other side then I believe it would be technically in breach, as any roof or gutter structure would be over the boundary and encroaching on the neighbour's property.

<edit>.


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## onq (27 Feb 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

Yep, that sums it up I think.
There may be others, I think you've covered a lot of it rockofages.

These matters are seldom pursued by the local authority unless they are formally referred to them.
This seems to be so even where you build a two storey extension on the party line with an offer of later support to the adjoining.

But it would create a really messy legal action where someone proceeded on the basis of a verbal agreement and no drawings and was later told to stop by the adjoining.
Such a scenario is well within the bounds of possibility - people are reluctant to sign off on things and not everyone can read drawings, giving credibility to a claim that they "didn't understand it would be so high".

Thanks for coming back on this.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon as a defence or support - in and of itself - should legal action be taken.
Competent building and/or legal professional should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.


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## rockofages (27 Feb 2010)

*Re: Boundary fence to be replaced with boundary wall - agreement in writing? Bit late*

Actually I removed the bit about the parapet wall from my post as I was wrong.

A parapet wall would be part of the _structure_, and as such the structure would be crossing the boundary, so again would be no go.


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