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The Party Wall etc Act 1996 (“the Act”) applies to those owners whose properties are located in England and Wales. It provides a legislative framework aimed at preventing or resolving disputes relating to party walls, party structures, boundary walls and excavations near neighbouring buildings.

The Court of Appeal has recently considered the extent to which the dispute resolution procedure in section 10 of the Act applies where no party structure notice (“Notice”) has been served on an adjoining owner by the building owner carrying out the works.

S2(2) of the Act provides a building owner with rights to carry out a range of works, subject to serving Notice on adjoining owners in accordance with s3. Where a dispute arises, and Notice has been served, the procedure set out in s10 applies.

The facts

Mr Shah had begun works on his property but failed to serve any Notice under the Act on the owners of adjoining property, as he took the view that the Act was not applicable in the circumstances. The adjoining owner had a different view and felt that the works were within the scope of the Act, and that they had damaged their property, as a result, deciding to appoint Mr Kyson as their surveyor.

As Mr Shah opted to refrain from any involvement in the procedure, Mr Kyson used the power granted under the Act to appoint a surveyor on behalf of him – Mr Power. The two surveyors felt that the works did require Notice under the Act, and that they did cause damage to adjoining property, and made an award – around £4,000 in compensation for the adjoining owner and roughly £2,300 in fees for each of them in their role as surveyors. Unwilling to pay the award, Mr Shah chose not to engage with the surveyors throughout the process.

Mr Shah then decided to bring a claim against the surveyors requesting a declaration that the award was void. The award was in fact declared void by the County Court, and the surveyors’ subsequent first appeal was dismissed in 2022.

The Court's decision

Here in the second appeal, it was held by the Court of Appeal that for the provisions of s10 of the Act to operate, the Notice under s3 must be served. The Act does not allow for an adjoining property owner to unilaterally invoke the provisions of s10 where Notice is absent. 

Therefore, the Court of Appeal agreed with the earlier decision, dismissing the appeal, meaning that the initial award was unavailable based on these facts.

What are the implications of the judgement?

The outcome of this case is a good example of demonstrating the scope of the Act, particularly how the dispute resolution procedure applies. It makes it clear that s10 is not a remedy that an adjoining owner can rely on when a building owner has not invoked the act by failing to serve Notice. 

That is not to say that an adjoining owner in this situation has no remedy available. All of the usual common law remedies that you would expect in the circumstances could be available – trespass, nuisance and negligence, and possibly an injunction. Where Notice has failed to be provided, opting to pursue these remedies as the adjoining owner would be more effective than wasting time, and resources, seeking some form of relief or award under the Act.

If you are a building owner who wishes to commence works that affect boundary lines, it would be in your best interests to serve a Notice in accordance with s3 of the Act to ensure that you are compliant and avoid potentially becoming victim of the common law remedies mentioned above.

If you are an adjoining owner, and your neighbour has commenced works on a party structure without serving Notice, then you should consider bringing urgent proceedings to restrict the works from going any further.

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Matthew Roberts

Matthew Roberts

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Mark Turner

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