Court of Appeal rules that Party Wall Act awards cannot be imposed on building owners by adjoining owners

Power and another v Shah [2023] EWCA Civ 239
16 Mar 2023

Planning and Environment, Property

This case involved a Party Wall Act award that had been imposed on a building owner, represented by Michael Paget, by the adjoining owner.

The Court of Appeal held that an adjoining owner cannot do this. There is one trigger to be able to use the Act and that is the service of a notice by the building owner on the adjoining owner.

The adjoining owner cannot:

  • by-pass the trigger
  • unilaterally invoke the Act
  • appoint surveyors under the Act
  • make any valid Award

The Act grants the building owner rights – it does not grant the adjoining owner any freestanding rights.

The court held that the Act does not cover all disputes between adjoining landowners but only those which have been properly defined under the procedures of the Act. Consequently, any Award was limited to such disputes.

The case sets out the scope of the Act and makes it clear that the Act is not a remedy available to a disgruntled adjoining owner when the building owner has not invoked the Act. In those circumstances, if an adjoining owner has a complaint about boundary works they need to seek an injunction.

Practical implications

The Party Wall Act 1996 is a statutory scheme allowing interference close to or on boundary lines. A building owner can use the protection of the Act to undertake works that would otherwise constitute trespass or private law nuisance. An adjoining owner can be compensated for any authorised works. The determination of what works are to be authorised and what compensation is to be paid is made by a surveyor or surveyors and is incorporated into an Award.

To invoke the Act a building owner must serve a notice. Unless written consent is given a dispute is deemed to arise. A dispute then triggers the Award procedure.

The ambit of the Act is limited. An adjoining owner cannot unilaterally trigger the mechanism under the Act. However preferable it might be to get surveyors to make an Award over boundary works rather than being forced to issue court proceedings it cannot be done by the adjoining owner alone.

Adjoining owners (and their advisors) should encourage the building owner to serve a notice under the Act. Adjoining owners might need to threaten court proceedings and might even need to bring urgent proceedings if works have started.

Background of the case

No notice was served. Works started. The adjoining owner considered those works fell within the ambit of the Act (this was disputed by the building owner). The adjoining owner’s surveyor considered that a dispute had arisen and a surveyor was appointed for the building owner. The surveyors made an Award; about £4000 compensation for the adjoining owner and fees of about £2300 for each surveyor respectively. At no stage did the building owner engage with the surveyors.

The surveyors sought to recover their fees, which were part of the Award, through the Magistrates’ Court. The building owner brought a claim against the surveyors seeking a declaration that the Award was void. The Award was declared void by HHJ Parfitt at Central London County Court. The surveyors’ first appeal was dismissed by Eyre J [2022] EWHC 209 (QB).

What did the court decide?

In this case, surveyors had been appointed and an Award made without the building owner serving a notice. The surveyors had done everything correctly under section 10 of the Act but was it a valid Award? It was not valid because the Act had not been triggered.

No notice had been served. The procedure under section 10 is not free-standing and must be preceded by a notice.

The Court of Appeal in Blake v Reeves [2010] 1 WLR 1 had explained some of the limitations of the Act. Obiter comments in High Court cases suggesting that the Act could be invoked by unilaterally were wrong – in particular Crowley v Rushmoor BC [2009] EWHC 2237.

An adjoining owner gets no free-standing benefits from the Act. They cannot elect to use the Act over their common-law remedies.

Download a copy of the judgment here.