Party wall – Damage – Cause of action – Party Wall etc Act 1996 – Defendant demolishing building abutting claimant’s property without first serving notice under section 3 of 1996 Act – Claimants subsequently complaining of damp on their flank wall – Whether having actionable claim against defendant for breach of statutory duty – Whether cause of action arising under sections 3 and 4 or section 7(1) of 1996 Act – Defendant applying to strike out case on breach of statutory duty – Application allowed
Sometime between 2007 and 2008, the defendant carried out works to demolish several factory buildings on its land. One of those buildings abutted part of the flank wall of the claimants’ adjoining property. The claimants subsequently brought proceedings against the defendant, complaining that their flank wall had suffered severe damp since being exposed by the demolition of the abutting building. One of their claims was for breach of statutory duty under the Party Wall etc Act 1996. They contended that: (i) the defendant’s failure to serve notice of its proposed works on the claimants, under section 3 of the Act, had deprived them of the opportunity to serve a counternotice under section 4 requiring the works to be carried out in such a way as to prevent issues of damp from arising; and (ii) in breach of section 7(1), the defendant had carried out the works in such a way as to cause “unnecessary inconvenience” to the claimants as adjoining owners.
The defendant contended that no actionable claim arose in relation to breach of statutory duty and it applied to strike out those parts of the claimants’ particulars of claim or, alternatively, for summary judgment in its favour on those claims. There was also an issue as to whether any claim for breach of statutory duty, if it existed, would be time-barred in any event.
Held: The application was allowed.
(1) The provisions of sections 3 and 4 of the 1996 Act did not enable the claimants to state a case in the manner that they had done in their particulars of claim. The party structure notice that the defendant, as “building owner” was required to serve under section 3 related to its own proposed works, whereas the counternotice that the claimants, as “adjoining owner”, could have served in response under section 4 had to relate to other work, to be carried out on the party structure, which was reasonable required for the claimants’ convenience. A counternotice did not relate to the manner in which the building owner’s proposed works were to be carried out; moreover, since it related only to other work on the “party fence wall or party structure”, it did not encompass any further work that the adjoining owner might wish to have carried out on its own land. It followed that the claimants’ case on sections 3 and 4 was incorrectly based on the premises that, had they served a counternotice, they would have been able to require the defendant’s works to be performed in such a way as to prevent the issues of damp arising. That case was bound to fail.
(2) The defendant was carrying out its works in the “exercise [of] any right” conferred on it by the 1996 Act, so as to engage the provisions of section 7(1), notwithstanding that it had failed to serve a notice under section 3. The right in question arose under section 2, while both section 3 and section 7(1) dealt with the different issue of the manner of exercise of that right. Sections 3 and 7(1) applied independently of each other. It followed that the defendant, in carrying out the works, was under a duty not to cause unnecessary inconvenience to an adjoining owner.
However, section 7(1) did not provide an adjoining owner with an actionable claim for breach of statutory duty. The duty imposed by section 7(1) was not expressed as a positive obligation but was instead a negative provision, adding a qualification to the right conferred on a building owner by the Act so as to require that such a right should not be exercised in such a manner as to cause un necessary inconvenience. It was thus a restrictive provision, designed to deprive the building owner of a defence which it might otherwise be able to maintain in the face of a complaint by an aggrieved adjoining owner as to the manner in which it had exercised the right. The remedy for such an aggrieved adjoining owner was provided by section 7(2), so far as it required the building owner to compensate any adjoining owner or occupier for “any loss or damage which may result to any of them by reason of any work executed in pursuance of this Act”. The terms of section 7(2) were of wide and general application, and provided for compensation to be payable simply as a result of the fact of work being executed, rather than as a consequence of the way in which the work was done. Section 7(2) therefore provided a complete and sufficient remedy to an aggrieved adjoining owner, so as to make it unnecessary to construe section 7(1) as providing a further category of relief.
Moreover, the 1996 Act provided a specific mechanism for dispute resolution, under section 10(1), which was engaged in relation to “any matter” connected with “any work” to which that Act related. Such a matter would include a dispute as to whether or not unnecessary inconvenience had been caused by reason of the building owner exercising any right conferred on it by the Act. If a building owner exercised such a right, but in doing so caused unnecessary inconvenience, that a dispute might arise between it and the adjoining owner, which could be resolved through the specific mechanism or procedure provided by the Act as set out in section 10. That was a strong indication that a breach of section 7(1) was not actionable other than through the mechanism provided by the Act: Crowley (t/a Crowley Civil Engineers) v Rushmoor Borough Council [2009] EWHC 2237 (TCC) distinguished.
(3) Had a cause of action arisen for breach of statutory duty under either section 3 or section 7(1), time would have started running for limitation purposes only once damage was sustained as a result of the breach, namely relevant physical damage to the adjoining owner’s property, rather than at the time of the relevant omission by the building owner.
Stephen Hackett (instructed by Griffin Law, of West Malling) appeared for the claimants; David Taylor (instructed by Knight Solicitors LLP, of Newcastle-under-Lyme) appeared for the defendant.
Sally Dobson, barrister
