Party wall – Party Wall etc Act 1996 – Jurisdiction – Appellant surveyors making award purportedly under 1996 Act against respondent in favour of adjoining property owners – County court judge declaring award null and void as appellants had no jurisdiction to make award – Appellants appealing – Whether 1996 Act invoked unilaterally and applied retrospectively to works already undertaken where no statutory notice served – Appeal dismissed
The respondent was the owner of 34 Bull Lane, Dagenham, a semi-detached property adjoining and sharing a party wall with 36 Bull Lane, which was owned by P. The respondent performed works on his property in 2017 without serving any notice under the Party Wall etc Act 1996 in respect of those works.
He maintained throughout that they did not fall within the scope of the Act.
P asserted that the works had caused damage to their property and that the respondent had removed the chimney breast. The respondent said that his works did not affect the chimney breast which had been removed previously.
P appointed the appellant surveyors under section 10 of the 1996 Act who determined that the works performed by the respondent had been notifiable works under the 1996 Act; those works had caused damage to their property; and compensation of £4,223.49 net of VAT was payable, together with surveyors’ fees of £4,630 inclusive of VAT. The respondent did not pay those sums.
On 3 March 2020, on the respondent’s application, the county court declared the award to be null and void on the footing that the appellants had no jurisdiction to make an award against the respondent. The High Court dismissed an appeal by the appellants against that decision: [2022] EWHC 209 (QB); [2022] EGLR 15.
The appellants appealed. The question was whether the 1996 Act could be invoked unilaterally to apply retrospectively to works already undertaken in respect of which no notice under the Act had been served.
Held: The appeal was dismissed.
(1) It was clear that any rights which the building owner had under section 2 of the 1996 Act (including the right allegedly in play in the present case, to cut away a projecting chimney breast under section 2(2)(g)), were expressly subject to section 3, and the service of a notice in advance of the works in accordance with section 3(1). The building owner had no right to carry out any of the works listed in section 2(2) unless he had served a notice under section 3. The service of the notice in advance was mandatory and was therefore fundamental to the whole structure of that part of the Act.
That interpretation was not affected by section 3(3), which set out two exceptions to that rule. The exception at section 3(3)(b) (in respect of notices relating to dangerous or neglected structures) simply created a hierarchy in which compliance with a notice to make safe a dangerous structure trumped a notice under section 3. The exception at section 3(3)(a) was consent in writing in advance. What mattered for present purposes was that the limited exceptions in section 3(3) did not derogate from the critical importance, in 99% of cases, of serving a section 3(1) notice in advance of the proposed works.
(2) The dispute resolution mechanism in section 10 applied “in respect of any matter connected with any work to which this Act relates”. In that context, “any work” was a reference to any of the possible work envisaged by section 2, but such work was only permitted after the mandatory notice under section 3(1) had been served. It was unnecessary for section 10(1) to refer expressly to the section 3 notice, because a dispute “in respect of any matter connected with any work to which this Act relates” envisaged that, in respect of all such work, a notice had already been served by the building owner.
Although one of the purposes of the Act was to provide a dispute resolution mechanism which obviated the need for the parties to go to court, that was far from its sole purpose. Of equal importance was the requirement that the building owner served a notice under section 3, to allow the adjoining owner to understand precisely what works were proposed and then, either through his or her own surveyor, or directly, to agree with the building owner the scope of the proposed works. In that way, another critical purpose of the Act was to avoid disputes arising altogether, through the transparency of the notice regime.
(3) A notice under section 3(1) had to be served two months before the work was due to start. That allowed time for the adjoining owner to consider the detail of what was proposed. It allowed surveyors to be appointed if there was a concern as to the scope of the proposed work, to maximise the chance of any remaining issues being resolved, and to allow the works then to be carried out.
The Act provided an important mechanism, because of the requirement for a notice, by which the scope of the work to be carried out could be agreed in advance. It was not intended to resolve disputes concerning the effect of works which, because of the absence of a notice, had already been completed. There was nothing in the Act which permitted an adjoining owner unilaterally to trigger section 10 in the way that happened here.
There was no such notice in this case because the respondent had been advised that the Act did not apply. In the absence of a notice, the dispute resolution mechanism in section 10 was not engaged and the award produced in purported compliance with it was null and void: Woodhouse v Consolidated Property Corp Ltd [1993] 1 EGLR 174, Louis v Sadiq [1997] 1 EGLR 136, Zissis v Lukomski [2006] EWCA Civ 341; [2006] 2 EGLR 61, Blake v Reeves [2009] EWCA Civ 611; [2009] 3 EGLR 79 and Seeff v Dinh Nam Ho [2011] EWCA Civ 186; [2011] PLSCS 102 considered.
(4) An adjoining owner was not left without a remedy as they would have all the usual common law remedies which one would expect: the right to bring claims in trespass, nuisance and negligence, and the right, if appropriate, to seek an injunction. It could not be said that, merely because the section 10 mechanism of dispute resolution under the Act was not open to them, there was any ultimate detriment to them.
Nicholas Isaac KC and Katie Gray (instructed by Direct Access) appeared for the appellants; Michael Paget (instructed by Direct Access) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Power and another v Shah