Matthew Hearsum addresses the impact of the recent Court of Appeal decision in Power and another v Shah, which challenges the consensus view on the availability of common law rights.
The previous consensus among practitioners was that the rights and responsibilities set out in the Party Wall etc Act 1996 repealed and replaced the parties’ rights at common law. A developer who wanted to undertake works of a type listed in sections 1, 2 or 6 of the 1996 Act had to serve a notice under the relevant section and obtain either the adjoining owner’s consent to the works, or an award from a tribunal of surveyors.
A change in the law
In May 2023 the Court of Appeal handed down judgment in Power and another v Shah [2023] EWCA Civ 239. This decision principally concerned whether owners of adjoining land could rely on the dispute resolution provisions in section 10 of the 1996 Act if a building owner commenced works of the types listed in the Act without serving the relevant notice.
The court held that the adjoining owner’s rights under the 1996 Act only arise after the building owner has served a notice. Unless and until a notice is served, adjoining owners have no rights under the 1996 Act, but may still bring claims in trespass or private nuisance. This principle is summarised in the slogan: “No notice, no Act.”
However, many are unaware that the decision in Power goes further; and developers also continue to enjoy all their rights at common law, including the right to undertake certain types of work listed in the 1996 Act without following its procedures.
This is at odds with the previous consensus among both surveying and legal professionals that the statutory rights in the 1996 Act operated as a wholesale replacement of the building owner’s rights at common law.
In the words of Lord Justice Lewison in Power: “So they do, but only once the Act has been brought into operation.”
Until then, developers remain free to exercise their common law rights. Lewison explained that “it is the service of the party structure notice that causes the substitution of rights under the Act for common law rights”.
Works to an existing party structure
The rights to undertake works to an existing party structure at common law depend on what type of party structure it is. A detailed analysis of all the diverse types of party structures is beyond the scope of this article.
Broadly speaking, the two most common types of party structure are:
a. A structure divided into two moieties, each belonging to the adjoining property, but with right or user and support over the other moiety; and
b. A structure which belongs wholly to one owner but is subject to a right in favour of an adjoining owner to use the structure as a division between two buildings (or parts of buildings) on different land.
For type (a) party structures, at common law each owner may do what they like with their moiety, provided (1) they take reasonable care and (2) do not interfere with the easements of user and support in favour of the other moiety. This would include, for example, undertaking repairs to the party structure, or cutting into their moiety up to, but not across, the boundary line to insert a steel beam on a padstone or spreader plate.
For type (b) party walls, the owner of the wall may do as they please with their structure, provided they take reasonable care and do not infringe the other owner’s right to use the structure as a division between two buildings or parts of buildings.
Adjacent excavations
At common law, the starting point is that an owner of land may do as they wish with their land, including excavations within three or six metres of the boundary line, irrespective of the depth of those excavations, provided they do not interfere with any rights of support or cause damage to neighbouring land.
Developers may therefore choose to undertake the excavations under their common law rights, or to use the procedure in the 1996 Act.
Construction at or near the boundary
As with adjacent excavations, at common law an owner of land may (almost) do as they wish with their land. This includes the construction of a wall at or near the boundary with adjoining land.
However, unlike the statutory right in section 1 of the 1996 Act, the common law does not permit the projection of foundations beneath adjoining land. Nor are there rights of access to adjoining land similar to section 8 of the 1996 Act, or indeed at all, and so the building owner would face significant difficulties in pointing or rendering the new wall.
Conclusion
The complex interrelation of rights and responsibilities that building and adjoining owners enjoy at common law explains the need for the 1996 Act and its predecessors, which provide a speedy and (mostly) cost-effective means of resolving disputes compared to legal proceedings.
The 1996 Act also includes rights that do not exist at common law – for example, the right to underpin a party structure in section 2(2)(a) of the 1996 Act – or rights that are more expansive than those at common law, such as the right to demolish and rebuild a party wall to a greater height under section 2(2)(e).
Where a developer has a choice to proceed under the 1996 Act or under their common law rights, taking specialist legal advice on their options would be a sound investment.
Matthew Hearsum is a partner in the property litigation team at JMW Solicitors
