Party wall – Party Wall etc Act 1996 – Jurisdiction – Appellant surveyors making award purportedly under 1996 Act against respondent in favour of adjoining property owners – County court judge declaring award null and void on basis that appellants having no jurisdiction to make award – Appellants appealing – Whether 1996 Act invoked unilaterally and applied retrospectively to works already undertaken where no statutory notice served – Appeal dismissed
The respondent was the owner of 34, Bull Lane, Dagenham, a semi-detached property adjoining and sharing a party wall with 36, Bull Lane which was owned by P. The respondent performed works on his property in 2017. He did not serve any notice under the Party Wall etc Act 1996 in respect of those works and he maintained throughout that they did not fall within the scope of the Act. P asserted that the works had caused damage to their property and that the respondent had removed the chimney breast. The respondent said that his works did not affect the chimney breast which had been removed previously.
P appointed the appellant surveyors under section 10 of the 1996 Act who determined that the works performed by the respondent had been notifiable works under the 1996 Act; that those works had caused damage to their property; and that compensation of £4,223.49 net of VAT was payable together with surveyors’ fees of £4,630 inclusive of VAT. The respondent did not pay those sums.
On 3 March 2020, on the respondent’s application, the county court declared the award to be null and void on the footing that the appellants had no jurisdiction to make an award against the respondent. The appellants appealed that decision on the ground that the judge erred in law.
The appeal turned on the question whether the 1996 Act could be invoked unilaterally so as to apply retrospectively to works already undertaken and in respect of which no notice under the Act had been served.
Held: The appeal was dismissed.
(1) The modern approach to statutory construction was to have regard to the purpose of a particular provision and interpret its language, so far as possible, in a way which best gave effect to that purpose. Broadly, the 1996 Act was intended to apply where an owner of land wished to: build on the boundary line with an adjoining property and there was no existing party structure; carry out work to a party structure; carry out certain works of excavation near to a building or structure of an adjoining owner. Section 10 of the 1996 Act provided for the resolution of disputes by one or more surveyors appointed under its provisions: Blake v Reeves [2009] 3 EGLR 79 applied.
(2) The Act did not operate to provide a mechanism resolving all disputes between a building owner and an adjoining owner. The reference in section 10 to a “dispute” was to be understood as a reference to a “dispute arising under the provisions of the Act”. In his case, the judge was right to say that the effect of the decision was that section 10 did not create a free-standing right to have party wall disputes resolved but only a right to have disputes arising under the other provisions of the 1996 Act resolved. There was no dispute arising under the 1996 Act in circumstances such as the present, where a purported building owner had performed works without serving a notice under section 3, and without invoking or seeking to invoke, the Act. It followed that the judge was correct in his conclusion that the appellants had no jurisdiction to make the award: Blake v Reeves applied.
(3) A dispute could not be said to be one arising under the Act merely because it was between the owners of adjoining properties. Something more than the mere fact of a dispute was needed and close reference to the terms and operation of the Act was necessary to discover if the particular dispute between such neighbours was a dispute arising under the provisions of the Act.
Section 20 of the 1996 Act defined a building owner as “an owner of land who is desirous of exercising rights under this Act”. Neither when he performed the works, nor after he had done so, did the respondent purport to be acting or to have acted in exercise of rights under section 2 of the Act. In those circumstances, he could not readily be seen as having been at any stage “desirous” of exercising such rights. The language of the definition was most apt to describe a person who was expressly seeking to exercise rights given by the Act and to do so in the future rather than a person who had already performed works without reference to the Act. That strongly suggested that the intention was for the Act to operate prospectively rather than retrospectively.
Read as a whole, the Act was more readily seen as creating a mechanism which only came into play when invoked by the person seeking to perform works even though when the Act came into play the adjoining owner could take certain steps unilaterally. In the context of this case, there was no provision which expressly addressed the situation where works had already been performed without reference to the Act; without invocation of the Act; and in circumstances where the purported building owner did not accept that the Act applied. The fact that the Act provided for the giving of notice in advance of the performance of works suggested that the dispute resolution mechanism could not be imposed unilaterally on a person who had performed works.
(4) The Act provided a mechanism for resolving disputes without recourse to the courts which had benefits for both the parties to such a dispute. A property owner who performed works affecting a neighbour’s property without having given notice under the Act lost the benefits of the Act (or rather did not gain those benefits). In such circumstances, the adjoining owner did not have the benefit of the mechanism provided by the Act but did have the right to resort to the court.
The issue was to a greater or lesser extent a matter of impression. The dispute between the respondent and P was not a dispute arising under the provisions of the Act. It followed that it was not a dispute for the purposes of section 10 of the 1996 Act and that the appellants did not have jurisdiction to make the award.
Nicholas Isaac QC and Carl Fain (instructed by Direct Access) appeared for the first appellant; The second appellant appeared in person; Michael Paget (instructed by Direct Access) appeared for the respondent.
Eileen O’Grady, barrister
