Party wall – Party Wall etc Act 1996 – Award – Defendants carrying out building works to property – Claimant adjoining owner appealing against party wall award and claiming damages at common law – Whether necessary repair works resulting from construction works – Claim allowed in part
The claimant purchased a Victorian brick-built terraced house and undertook a substantial programme of refurbishment. Her property was adjacent to a house owned by the first defendant company which had been acquired with a view to refurbishment for letting. It was in poor condition and had been occupied by squatters. Planning permission was obtained for works which were rather more extensive than a simple refurbishment of the existing property. The lettable area was to be increased by the excavation and provision of a basement below the original structure and also by the erection of a mansard extension on the roof.
The second defendant was a construction company associated with the first defendant which carried out the substantial repair works. Since the defendants’ proposed works involved a party wall, surveyors were appointed and negotiations commenced for the making of a party wall award in accordance with The Party Wall etc Act 1996. The claimant was not happy with the final amended award and bought an appeal under the 1996 Act, asking the county court to review it. The claimant also commenced proceedings against the defendants in the county court for damages, nuisance, negligence and breach of statutory duty. The proceedings were conjoined.
The party wall matters covered three elements of the claim: the cost of repair of blown plaster work to the party wall; the loss of amenity allegedly suffered by the claimant as a result of the manner in which the works were carried out; and the question of costs.
Held: The claim was allowed in part.
(1) As regards the blown plaster, section 7(2) of the 1996 Act required that damage to the claimant’s property caused by the building owner works be made good. The Act proceeded on the basis that the adjoining owner might elect either to have the building owner carry out the works or, under section 11(8) to claim damages.
(2) There was a substantial issue on the blown plaster claim. However, the extent of the blown plaster, with the need to replace some 100 square metres of plaster, made the suggestion that it did not amount to a defect unacceptable. It could not be suggested that that amount of plaster could be left blown in any house, whatever its standard of decorative repair, let alone one finished to the high standards to be found in the claimant’s property. The fact that blown plaster was not an expected consequence of the defendants’ works could not be ignored but neither could it be determinative. In the circumstances, it was not surprising that the defendants came to court unwilling to admit that the plaster had been replaced with a modern two coat plaster, as the claimant maintained. In the light of the evidence, the defendants had accept realistically that the plaster had been renewed. On the balance of probabilities, the de-bonding of plaster experienced by the claimant was as a result of the defendants’ works in the adjoining property and there was liability under the party wall award to make good the damage.
(3) The defendants’ claim that the sum claimed by the claimant for replastering was unreasonably high had not been established. On first principles, the claimant had paid for the work and was seeking to recover the sum paid. The defendants’ argument had to be one of mitigation and the onus of proof on that issue was on the defendants. It was a significant onus which the defendants had failed to meet. Accordingly, the appropriate sum to award was that claimed.
(4) By section 7 (1) of the 1996 Act, the building owner should not exercise any right conferred on him by the Act in such a manner, or on such a time as to cause unnecessary inconvenience for any adjoining owner or any adjoining occupier. An adjoining owner occupier had to put up with normal construction site sounds, dust and dirt provided they did not exceed a reasonable extent either in volume, quality or the length of time for which it was necessary to put up with them. On the evidence, the claimant was entitled to claim damages both under the Act against the first defendant and in common law against the second defendant. Although the sums claimed had been properly calculated on the basis of a notion of diminution in value, the figures were too high and would be reduced: Dobson v Thames Water Utilities [2011] EWHC 3253 (TCC) and Simmons v Castle [2012] EWCA Civ 1039; [2012] PLSCS 179 considered.
(5) Although as a matter of principle, a loss of earnings claim might be brought under section 7(2) of the 1996 Act, the evidence in the present case fell short of making a good case for making an award in favour of the claimant for loss of earnings or for accommodation she enjoyed in Rio de Janiero during remedial works to her home. That accommodation was not alternative accommodation while the works being carried out but holiday accommodation she had already planned.
(6) As for the complaint of manifold failures to comply with statutory regulations, they might carry their own penalty in a different court but there was no claim for an adjoining occupier for general damages simply because the builder next door failed to comply with all appropriate regulations.
Per curiam: In the circumstances, it was not necessary to make findings as to the common law claim in nuisance and negligence. However, it was not clear that the claimant could bring herself within the tort of nuisance because there was no awareness that that damage would result from the works. There was, however, a claim in negligence against the second defendant both in the manner in which it had used percussive tools on the party wall to remove plaster and the careless way in which the it had undertaken basement excavation works leading to unnecessary stress in the structure of the claimant’s property.
Stephen Bickford-Smith (instructed by DWF LLP, of Manchester) appeared for the claimant; Nicholas Isaac (instructed by Fladgate LLP) appeared for the defendants.
Eileen O’Grady, barrister
