An adjoining owner cannot rely on the dispute resolution procedure under section 10 of the Party Wall etc. Act 1996 where the building owner who intends to carry out or who has carried out building works has not served any notice under the 1996 Act in respect of those works and maintains that it does not apply.
In Power and another v Shah [2023] EWCA Civ 239 the Court of Appeal has considered a novel but important issue under the 1996 Act. The case concerned works carried out by the respondent to his home at 34 Bull Lane, Dagenham. He did not serve a notice under the 1996 Act because his planning consultant advised that the works did not fall within the ambit of the statute. The adjoining owners at 36 Bull Lane disagreed and claimed that they had suffered damage as a result of the works.
The adjoining owners appointed the second appellant to act as their surveyor under the 1996 Act and since the respondent failed to engage in the process the second appellant appointed the first appellant on his behalf. In July 2018, the appellants issued an award determining that the respondent’s works required notice under the statute, the works had damaged 36 Bull Lane and the respondent was to pay damages and fees to the adjoining owners of almost £9,000.
The respondent did not pay the sums claimed and the appellants brought enforcement proceedings, which were stayed pending determination of the respondent’s challenge to the award. He obtained judgment that the award was null and void because the 1996 Act did not apply and so the dispute resolution mechanism was not engaged. An appeal by the appellants was dismissed.
The Court of Appeal dismissed their second appeal. Service of a notice is mandatory before a building owner is entitled to carry out any works to a party structure under section 2 of the 1996 Act. The dispute resolution mechanism in section 10 is limited to “any matter connected with any work to which this Act relates” so is only engaged where the 1996 Act applies. There is nothing in the 1996 Act which allows an adjoining owner unilaterally to trigger the dispute resolution mechanism. However, where the 1996 Act does not apply, the adjoining owner has remedies under the common law, rights which are supplanted when the statute is invoked. It can pursue claims in trespass or nuisance and seek an injunction where appropriate.
Louise Clark is a property law consultant and mediator
