Summary of the Party Wall Act 1996
The Party Wall Act 1996 (“the Act”) prevents building work by one neighbour that can undermine the structural integrity of shared wall or neighbouring properties. Its main function is to avert and resolve potential disputes with neighbours before work has started.
Where building work which fall within the Act are intended, notice should be served on the adjoining owner. Section 10 of the Act sets out a framework for disputes arising.
Case of Power v Shah [2022] EWHC 209 (QB) (11 February 2022)
This recent case has considered whether the Act can be invoked unilaterally and apply retrospectively to works already undertaken and to which no notice has been given.
Background
Party A owned a semi detached property. The property shared a party wall with the property next door owned by Party B. In 2017, Party A carried out work on his property but did not serve notice on Party B in accordance with the Act as he maintained that the work carried out did not fall within the scope of the Act. Party B alleged that the work carried out had caused damage to their property.
Party B instructed a surveyor who approached Party A confirming that they believed the Act did apply. Party A disagreed and so Party B appointed the surveyor under Section 10 of the Act to resolve the dispute.
In 2018, surveyors determined that the works carried out by Party A had been works for which notice should have been given and that the works had caused damage to Party B’s property. The award provided for Party A to pay compensation to Party B and to pay the costs incurred of the surveyors.
Party A failed to make payment and the surveyors issued proceedings for recovery of their costs. At the same time Party A issued proceedings disputing the award. In March 2020, the judge hearing the case declared that Party A’s claim was successful and the surveyors award was null and void on the basis that they had no jurisdiction to make the award. The judge commented that ‘no notice, no Act’ applied i.e. where no notice had been served, the Act would not apply.
The surveyor appealed this decision on the basis that they did have jurisdiction and the appeal was recently heard.
The surveyors put forward the argument that they did have jurisdiction as the purpose of the Act is to provide a mechanism to resolve disputes without recourse to the courts and that the decision given in the previous hearing could not be just as it meant that because a building owner fails to give notice where he should have done, he deprives the adjoining owner of utilising the dispute mechanism. The Claimant argued that the court’s previous mantra of ‘no notice, no Act’ summarised their position i.e. where notice was not served, the Act would not apply.
Decision
The Court upheld the previous decision. In reaching the decision the judge considered this was a question of interpretation of the wording of the Act. A previous judgment (in the case of Reeves v Blake [2009] EWCA Civ 611) had already considered the meaning of ‘dispute’ in Section 10 and the judge considered this along with other authorities before concluding:
- The purpose of the Party Wall Act 1996 is to provide a dispute mechanism to resolve disputes that fall within its scope.
- Section 10 was not a free standing right to resolve such disputes. The disputes must arise under the provisions of the 1996 Act. There was no dispute under the Act if a party carried out works without serving a notice.
- The definition of a building owner in the Act was ‘strongly suggestive’ that the Act would operate prospectively and not retrospectively which supported the ‘no notice, no Act’ mantra that the Act does not come into play unless notice has been served. An adjoining owner cannot impose the Act’s dispute mechanism unilaterally.
Implications
This is an important judgment as it means that adjoining owners can no longer rely on the Act when they have not been served a notice and their only options to pursue remedies will be time consuming and expensive as they would be limited to common law methods such as injunctions, nuisance, trespass and breach of statutory duty claims through the courts.
If you are considering building works to your property which may affect an adjoining owner or if you are an adjoining owner who is/has been affected by neighbouring building works we would recommend obtaining our advice about whether the Act applies to you and your rights and remedies available. Please contact Amanda Nudds on 01328 852804 to discuss in more detail.
For further information contact Amanda Nudds
Amanda Nudds | Associate | Litigation Department
Tel: 01328 852804
[email protected]
