No Notice, No Act: Party Wall Act awards (Shah v Power)

16 Feb 2022

Property

Shah v Power and another [2022] EWHC 209 (QB) involved a Party Wall Act award that had been imposed on a Building Owner by the Adjoining Owner.

The appeal court (Eyre J) has 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; they cannot unilaterally invoke the Act; surveyors cannot be appointed under the Act and no valid Award can be made.

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 ambit 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.

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 which 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 or obtain written consent from the Adjoining Owner. 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 need even need to bring urgent proceedings if works have started.

No notice was served. Works started. The Adjoining Owner considered those works to fall 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 declaration void by HHJ Parfitt at Central London County Court. The surveyors’ appeal was dismissed.

The Court of Appeal in Blake v Reeves [2010] 1 WLR 1 had explained some of the limitations of the Act. It had never been suggested by the Court of Appeal that the Act could cover pre-existing works. Eyre J held obiter comments in High Court cases suggesting that the Act could be invoked unilaterally were wrong – in particular Crowley v Rushmoor BC [2009] EWHC 2237 and likewise for the County Court decisions – Bridgland v Earlsmead Estates Ltd (Birmingham County Court TCC 2015) and Schmid v Hulls and another (Central London County Court 2016).

Michael Paget represented the Respondent.

Menu