The court has clarified when the Party Wall etc Act 1996 applies and reaffirmed the “no notice, no Act“ mantra in Shah v Power and another [2022] EWHC 209 (QB); [2022] PLSCS 30, a helpful decision for practitioners.
The claimant, who owned a semi-detached property in Dagenham, east London, carried out works to his property in 2017. He did not serve any notice under the Act and maintained throughout that the works did not fall within the scope of the Act. The neighbouring owners appointed the second defendant surveyor, who triggered the default dispute resolution procedure under the Act, and the first defendant was appointed surveyor on behalf of the claimant. The defendants subsequently made an award determining that the claimant’s works had caused damage to the neighbouring property and requiring the claimant to pay compensation and surveyors’ fees of around £10,000.
The claimant sought to set aside the award. The question for the court was whether the Act be invoked unilaterally so as to apply retrospectively to works already undertaken and in respect of which no notice under the Act has been served. The answer both at first instance and on appeal was no.
The claimant argued that the dispute resolution procedures in the Act are intended to deal with disputes arising from works to be carried out under the Act and where notice under the Act has been given: the notice is an essential gateway providing surveyors with jurisdiction under the 1996 Act. The defendants argued that the purpose of the Act was a means of dispute resolution which avoids recourse to the courts and the language of the Act was wide enough to encompass any dispute arising at work to which the Act related regardless of whether a notice had actually been served.
The appeal court confirmed that the dispute resolution framework under the Act is limited to disputes arising under the Act. Court proceedings to enforce common law or equitable remedies for trespass or nuisance or litigation arising from non-compliance with the dispute resolution mechanism fall wholly outside the Act: Blake v Reeves [2009] EWCA Civ 611; [2009] 3 EGLR 79.
In this case, there was no dispute arising under the Act. A dispute as to whether the Act applies or a dispute simply between the owners of adjoining properties are not disputes arising under the Act. The claimant did not at any time purport to exercise rights under the Act. The defendants’ argument that the claimant was exercising rights which only arise under the Act once a notice has been served did not make him “desirous” of exercising such rights as required of a building owner. The Act was intended to operate prospectively rather than retrospectively, which supports the “no notice, no Act” mantra, and the lack of a compulsory mechanism for resolving disputes means that the dispute resolution mechanism cannot be imposed unilaterally. If the defendants were right and the claimant performed works which were not authorised under the Act, the neighbouring owners could have obtained an injunction and/or damages from the court.
Louise Clark is a property law consultant and mediator
