The High Court has given judgment in the case of Shah v Power and Kyson ([2022] EWHC 209 (QB)). The Court found that where a building owner undertakes notifiable works to a party wall without serving an appropriate notice upon their neighbour, then the Party Wall etc. Act 1996 (“the Act”) will not apply. Property litigation specialist James Holton explains the case and what this means in practice for building owners and neighbours where works are undertaken which affect a party wall.
Background
Various works to a party boundary can be “notifiable” to the adjoining neighbour pursuant to the Act. These include works to an existing party wall, the building of a new wall and excavations.
In this case, a building owner (“the Owner”) undertook notifiable works on their property without serving notice upon their adjoining neighbour (“the Neighbour”) pursuant to the Act. The Owner contended that these works were not party wall related so the Act did not apply. The Neighbour invoked the Act, claiming that that part of their chimney breast had been removed.
Party wall surveyors duly made an award for the damage suffered by the Neighbour. The Owner appealed the surveyors’ award, claiming that as they had not served notice pursuant to the Act, then the Act did not apply and therefore the surveyors had no jurisdiction to make an award.
Could the Act be invoked unilaterally by the Neighbour to apply retrospectively to works which the Owner had already undertaken?
The Decision
The Court found that the answer to this question was “no”. Where a building owner undertakes works without serving a party wall notice then the Act will not apply. The Court therefore found that the surveyors did not have jurisdiction to make a party wall award.
The decision confirms the “no notice, no Act” mantra. The Act does not apply unless a notice has been served and cannot be invoked retrospectively.
What does this mean?
Where a party undertaking notifiable works to a party wall fails to serve notice upon their neighbour, then that neighbour will be prevented from using the dispute resolution procedure under the Act. The neighbour therefore cannot appoint a party wall surveyor to make an award concerning the works.
Similarly, the party undertaking the works will not have the benefit of the Act and could be liable to their neighbour in common law for any damage caused to the latter’s property.
This represents a shift away from the trend towards dispute resolution towards the need for a neighbour to take prompt action to protect their property from potential damage.
The outcome of this case could result in circumstances where a building owner avoids serving notice and takes a chance as to whether their neighbour will seek any remedy.
What can a neighbour do?
Where a building owner commences notifiable works to a party wall without having served notice pursuant to the Act, then the neighbour will need to consider issuing Court proceedings. The most appropriate remedy is often an injunction to prevent the building owner from undertaking or completing the works.
An aggrieved neighbour may also have a claim in common law such for nuisance or trespass.
In these circumstances, early advice and intervention are essential as the Court will consider the promptness of any injunction application. Similarly, an application for an injunction will usually need to be made before the completion of the works.
Our specialist property litigation team support clients and their professional advisors in the resolution of party wall disputes. We appreciate the need for effective, objective-led action to protect your property interests which can include both litigation and alternative dispute resolution.
James Holton is named as a “rising star” in the Legal 500 and is a property litigation and specialist. For advice on party walls please refer to Party Walls and to contact James please telephone 01244 354800 or email him at james.holton@dtmlegal.com.
