still a Work in progress -

I have added my comments in italics in various sections of the judgement.

This is the judgement of the Court of Appeal emanating from the judgement of Eyre J click for Eyre J’s judgement.

LK comments:

We have a dispute resolution procedure specifically for works to a party wall, walls built on/at boundaries and excavations within 3.00m / 6.00m subject to depth.

Section 10 is the heart of the Act and without it there is no Act. It is bizarre that the ‘shall’ in section 3, which places an obligation upon a building owner to serve a party structure notice takes precedence over the ‘shall’ in section 10(1) in the event of a dispute arising given that there is no Act without section 10 but it could quite easily still survive without section 3.

It will be interesting to see the outcome of any injunctions sought if a building owner commences notifiable works without serving a notice as the Act, a building owner and an adjoining owner are requisite for an injunction. If as Eyre J states a building owner who does not serve notice is not a building owner then he cannot be in breach of statutory duty, neither can he be a building owner because of ‘no notice - no Act’ stated by Parfitt & Lewison. At what point is there an adjoining owner?

I believe the judgements are paradoxical as:

1. In the High Court Eyre J says Shah was not a building owner as he did not serve notice on the basis of section 20 (Interpretation) as he was not desirous of exercising his rights….[57]‘In those circumstances he cannot readily be seen as having been at any stage “desirous” of exercising such rights.’ ‘At any stage’?? yet one stage was the stage in which he did exercise his rights under section 2(2)g. How can the Act place an obligation upon a building owner to serve a party structure notice when he only becomes a building owner once he has served notice? Section 3 clearly indicates that he is a building owner prior to serving notice ‘Before exercising any right conferred on him by section 2 a building owner shall serve on any adjoining owner a notice…’ Therefore, he is a building owner regardless of whether he serves notice. Eyre J - Absurdity! If Shah’s chimney breast fell down of its own accord then, understandably he would not be exercising his rights under the Act! but to state someone is not desirous of exercising their rights when they actually do????

2. This must also apply to the ‘no notice - no Act’ as stated by Parfitt & Lewison… Again, apparently it is the Act ‘that isn’t there’ that requires the building owner who is not a building owner to serve a notice. If there is no Act, there can be no section 3! Absurdity? I think so. In Nutt v Podger the parties were directed by HHJ Parfitt to appoint surveyors and make an award under the Act, this is rather bizarre as a notice had never been served and the works just about finished….so what happened to HHJ Parfitt’s ‘no notice - no Act’ at [47] he states

   ‘I find that the remedies suitable for the failure to comply with the 1996 Act are:…iii) A period of time of no more than 3 months to allow the parties to obtain retrospective compliance with the 1996 Act but if that does not occur then permission to apply for an injunction to remove the 2020 works to the party wall and/or additional damages in lieu of such an injunction.’ Looking retrospectively this is wrong, as the building owner is penalised (£750.00 for breach of statutory duty) for failing to comply with an Act that isn’t there and can only be invoked when a notice is served….which must be either 1 or 2 months prior to work commencing!

3. Section 3 tells us that a building owner is a building owner even before he serves notice. Therefore, logically there is an adjoining owner. Section 10 states ‘Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either-’ agreed surveyor or each appoints their own surveyor. Was there a dispute between Shah and the adjoining owners? Yes, was that dispute connected with any work to which this Act relates? Yes.

 Neutral Citation Number: [2023] EWCA Civ 239

Case No: CA-2022-000481

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE KING’S BENCH DIVISION

Mr Justice Eyre

[2022] EWHC 209 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL 

Date: 7 March 2023

Before:

LORD JUSTICE LEWISON

LORD JUSTICE COULSON
and

LADY JUSTICE ELISABETH LAING

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Between:

 (1)   Ken Power

(2)   Lee Kyson

 Appellants

 - and –

Raheel Shah

Respondent

 - - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Nicholas Isaac KC and Katie Gray (instructed by way of Direct Access) for the Appellants

Michael Paget (instructed by way of Direct Access) for the Respondent

Hearing Date: 15 February 2023

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Approved Judgment

This judgment was handed down remotely at 10.30am on 7 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives

.............................

LORD JUSTICE COULSON :

Introduction

1.                  This appeal raises a novel but important issue in connection with the Party Wall etc. Act 1996 (“the Act”). Can an adjoining owner seek to rely on the dispute resolution procedure provided by s.10 of the Act, in circumstances where the building owner, who intends to carry out or who has carried out building works, has served no notice under the Act in respect of the works, and maintains that the Act does not apply? Counsel are agreed that there are no authorities directly on point.

LK: ‘..who intends to carry out work…’ ?? This is so so wrong!

It was never the intention, neither was it implied at any stage, to follow the section 10 dispute resolution procedure where a notice has not been served when a building owner ‘intends’ to carry out notifiable work. The judges conveniently added this to help support their decision. The process taken, as in Shah, only becomes actionable if a BO commences notifiable work or causes damage while carrying out notifiable works when a notice has not been served. I fail to see how surveyors could take the same action prior to works commencing as they would have no idea as to what works would be intended or if they would actually be carried out. Shah was a case where he carried out notifiable works and caused damage -section 2(2)g - 2(5) - 11(8).

dated 2 March 2020. In the County Court HHJ Parfitt ‘This is my judgment in respect of a Part 8 Claim about the validity of a party wall award.’ which was made following damage being caused during the execution of notifiable works.

dated 3 July 2018. In the High Court Eyre J phrased it as ‘Putting it a little more shortly: can 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? ‘

So where did the ‘intends to do work’ come from?

The Background Facts

2.                  The respondent (“Mr Shah”) carried out works to his home at 34 Bull Lane in Dagenham. He did not serve a notice under s.3 of the Act (either before or after the works were carried out) because he was advised by his planning consultant, Mr Syed Ali, that the scope of the works did not fall within the ambit of the Act.

LK: Simples! How can he serve a s3 compliant notice after works were carried out??? Statement is paradoxical given the judgement and shows a lack of understanding of the Act.

After the award was served Mr Ali later claimed he had been appointed by Shah! Mr Ali was Shah’s designer and apparently financed the proceedings….so he told me.

3.                  The adjoining owners of 36 Bull Lane, Mr and Mrs Panayiotou (“the adjoining owners”) maintained that the works, including an alleged removal of a chimney breast, were within the ambit of the Act. They said that they had suffered damage in consequence of those works. Both claims are denied by Mr Shah and, because of the course that this case has taken, the underlying facts remain to be determined.

LK: the damage was quite obvious, Shah’s surveyor claimed the small pictures stuck to the bedroom wall with bluetack caused the problem…. 2m long cracks, bulging plaster on a wall that had only been replastered 2 yrs ago and damage to the lounge wall. Having a background trade as a plasterer I have come across this type of damage on several occasions, so knew what the cause was.

4.                  The adjoining owners could have commenced proceedings in the county court. Instead, they purported to appoint Mr Lee Kyson (the second appellant) to act as their surveyor under s.10(1) of the Act. Mr Shah did not engage in the statutory process (because he maintained that the Act did not apply), so Mr Kyson appointed a surveyor for Mr Shah, using the default procedure under s.10(4). That surveyor was Ken Power (the first appellant). I shall refer to Mr Kyson and Mr Power collectively as “the appellants”.

LK: It is not disputed that the AOs could’ve commenced proceedings in the County Court, however, the purpose of the Act is apparently to avoid recourse to the courts. Furthermore they were not in a position to financially embark on a path of litigation…. and see what Judge David Grant says below…

5.                   On 3 July 2018 the appellants issued an award (“the Award”) determining that:

(a) The works performed by Mr Shah required notice to have been given under the Act;

(b) Those works had caused damage to 36 Bull Lane;

(c) Mr Shah was to pay the adjoining owners compensation of £4,223.49 (excluding VAT) and also to pay the fees of the appellants in a further sum of £4,630.

6.                  Mr Shah did not pay either of those sums, and the appellants brought proceedings for non-payment in the Magistrates Court under s.17 of the Act. Those proceedings were stayed because of Mr Shah’s Part 8 claim, which contended that the Award was null and void because the Act did not apply, so that the dispute resolution procedure at s.10 had not been engaged.

LK: The adjoining owners did not have the necessary funds to commence litigation. The s10 process did not expose the adjoining owner to costs, this could only arise in the event of an appeal against the party wall award. See Roadrunner further below….and

Reference to Judge Grant (Ret) should be taken into account regarding his judgement in Bridgland v Earlsmead an unreported case but of significance, in which Judge Grant stated:

‘It is thus for the adjoining owner, here the claimants, first to exercise and extinguish their remedies provided by the 1996 Act before resorting to court proceedings. Further and/or in the alternative, it is not apparent that, in circumstances where the 1996 Act provides a mechanism or procedure for dispute resolution, that a further or alternative means of obtaining relief is available to an aggrieved party through the medium of court proceedings. The very fact that the 1996 Act provides for a specific mechanism or procedure for the resolution of disputes in relation to "any matter" connected with "any work" to which the 1996 Act relates is of itself an indication that Parliament did not intend to create a separate private law action for breach of section 7 (1): see generally 'Clerk & Lindsell on Torts' 21st edition (2014) chapter 9, especially paragraphs 9.01-03, and 9.12; and also Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 referred to in paragraph 9.13, citing that part of Lord Diplock's speech at page 185 where he stated:

             "... where an Act creates an obligation and enforces the performance in a specified manner that performance cannot be enforced in any other manner ..."

In my judgement, while the 1996 Act does not contain provisions enforcing performance of the obligation in section 7 (1), the fact that it contains a specific mechanism or procedure for the resolution of disputes in relation to "any matter" connected with "any work" to which the 1996 Act relates is a strong indication that a breach of such obligation is not actionable other than through or by such mechanism or procedure.’

7.                  In a judgment dated 2 March 2020, HHJ Parfitt upheld Mr Shah’s Part 8 claim, agreeing with the essential submission advanced on his behalf that, in the absence of a notice under s.3 of the Act, the s.10 process had not been engaged and the Award was therefore null and void. In consequence, he did not decide any of the disputed issues of fact, in particular whether or not the works involved the removal of a chimney breast, and/or whether a notice should have been served under the Act.

LK: Photos showed a flue liner and bricks with soot on them in Shah’s back garden. The damage caused was without doubt commensurate with the removal of a chimney breast.

Shah did not argue that the Act did not apply because he had not carried out notifiable works, he claimed the Act did not apply because he did not serve a notice. Furthermore his ‘surveyor’ claimed to have been appointed after the event but failed to produce a letter of appointment.

8.                  The appellants appealed. In a judgment dated 11 February 2022 ([2022] EWHC 209 (QB), [2022] 1 WLR 3015), Eyre J dismissed the appeal. He concluded that there was no dispute arising under the provisions of the Act in circumstances such as these, where the building owner had not served a notice and had not invoked the Act. His reasons are set out between [54]-[64] of his judgment, although it is unnecessary to set them out again here. The appellants bring this second appeal with the leave of Lady Justice Andrews. At the conclusion of the hearing we announced our decision to dismiss the appeal, with reasons to follow. These are my reasons for joining in that decision.

LK: Eyre J determined that a BO who does not serve a notice is not desirous of exercising his rights under the Act. This is rather bizarre because the Act placed an obligation upon Shah to serve notice in his capacity as a building owner, regardless of whether he served a notice he was a building owner as defined by the Act. He also exercised his rights under the Act namely S2(2)g which is connected to S2(5) which in turn is linked to S11(8).

The Party Wall Act: Context and Provisions

9.                  The forerunner of the Party Wall Act 1996 was the London Building (Amendment) Act 1939. Between s.46 and s.56, the 1939 Act contained detailed provisions whereby a building owner who wanted to carry out works in or around a party structure was obliged to give notice in writing, and thereafter any differences between the owners would be resolved in the first instance either by one surveyor, or by a surveyor appointed by each party and a third surveyor. The 1939 Act was considered to have worked well in London, and eventually it was decided to extend the regime across the country. Hence the Party Wall Act, which mirrors the essential features of the 1939 Act (although some of its provisions are different).

LK: Some of the provisions are different, namely the provision for a dispute to stem from a notice. The wording was changed and the link to a notice inextricably severed. However Mr Coulson believes it means the same despite on a simple reading it does not. If it was meant to mean the same, the wording would’ve remained unchanged.

10.              Section 1 of the Party Wall Act is concerned with the situation where lands of different owners adjoin, and a building owner wants to build a party wall or a party fence wall on the line junction (ie where the boundary has not yet been built on). That section does not apply in this case.

11.              Section 2(1) applies “where lands of different owners adjoin and at the line of junction the said lands are built on or a boundary wall, being a party fence wall or an external wall of a building, has been erected.” A large number of rights available to the building owner are then set out in s.2(2). These include the right to underpin, thicken or raise the party structure; to make good or repair or demolish and rebuild the party structure, and so on. The relevant right for present purposes is at s.2(2)(g):

“To cut away from a party wall, a party fence wall, external wall any footing or any projecting chimney breast, jamb or flue, or other projection on or over the land of the building owner in order to erect, raise or underpin any such wall or for any other purpose…”

LK: This was a right that Shah exercised despite not serving a notice and the applicability of s2 confirmed. It cannot be argued that s2 applied and Shah wished, and did exercise his right under s2(2)g, so he must have been a building owner but because he did not serve a notice, according to Eyre J, Shah suddenly stopped becoming a building owner. I can’t find anything in the Act that relates to that…. when does a building owner stop being a building owner?

12.              Sub-section 2(5) provides as follows:

“(5) Any right falling within subsection (2)(f), (g) or (h) is exercisable subject to making good all damage occasioned by the work to the adjoining premises or to their internal furnishings and decorations.”

LK: This seems to have been ignored as Shah did exercise the right, therefore he was obligated to make good the damage. Section 2(5) is directly linked to 11(8):

“Where the building owner is required to make good damage under this Act the adjoining owner has a aright to require that the expenses of such making good be determined in accordance with section 10 and paid to him in lieu of the carrying out of work to make the damage good.’”

in this case the AO asked for money in lieu which, in accordance with section 11(8) the appointment of surveyors is mandatory. It is not, as claimed by Shah, the AO unilaterally imposing the Act on the him.

This is the path the surveyors took in making the award.

13.              Section 3 is headed “Party structure notices”. It provides as follows:

“3  Party structure notices.

(1) Before exercising any right conferred on him by section 2 a building owner shall serve on any adjoining owner a notice (in this Act referred to as a “party structure notice”) stating—

(a)    the name and address of the building owner;

(b)     the nature and particulars of the proposed work including, in cases where the building owner proposes to construct special foundations, plans, sections and details of construction of the special foundations together with reasonable particulars of the loads to be carried thereby; and

(c)   the date on which the proposed work will begin.

(2) A party structure notice shall—

(a)     be served at least two months before the date on which the proposed work will begin;

(b)   cease to have effect if the work to which it relates—

(i)      has not begun within the period of twelve months beginning with the day on which the notice is served; and

(ii)     is not prosecuted with due diligence.

(3) Nothing in this section shall—

(a)     prevent a building owner from exercising with the consent in writing of the adjoining owners and of the adjoining occupiers any right conferred on him by section 2; or

(b)     require a building owner to serve any party structure notice before complying with any notice served under any statutory provisions relating to dangerous or neglected structures.”

14.              Section 4 permits an adjoining owner to serve a counter notice. Section 5 states that the recipient of either a party structure notice under s.3, or a counter notice under s.4, who does not indicate his consent to that notice within 14 days, is deemed to have dissented from the notice “and a dispute shall be deemed to have arisen between the parties”.

15.              Section 7 is concerned with compensation. Section 7(2) obliges the building owner to compensate the adjoining owner for any loss and damage “which may result to any of them by reason of any work executed in pursuance of this Act”.

LK: Section 11(8) appears to have been deliberately ignored which is directly connected to section 2(5).

16.              Section 10 is concerned with the resolution of disputes. Section 10(1) is in the following terms:

“Resolution of disputes.

(1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either—

(a)     both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or

(b)     each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as “the three surveyors”).”

Other provisions in connection with surveyors include sub-sections (4) and (6) which provide:

“(4) If either party to the dispute—

(a)   refuses to appoint a surveyor under subsection (1)(b), or

(b)     neglects to appoint a surveyor under subsection (1)(b) for a period of ten days beginning with the day on which the other party serves a request on him, the other party may make the appointment on his behalf…

(6) If a surveyor—

(a)     appointed under paragraph (b) of subsection (1) by a party to the dispute; or 

(b)   appointed under subsection (4) or (5),

refuses to act effectively, the surveyor of the other party may proceed to act ex parte and anything so done by him shall be as effectual as if he had been an agreed surveyor.”

17.              Section 10(10) deals with the resolution of the dispute by the provision of an award. It provides:

“(10) The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter—

(a)     which is connected with any work to which this Act relates, and

(b)     which is in dispute between the building owner and the adjoining owner.”

The scope of such an award is set out in subsection (12) as follows:

“(12) An award may determine—

(a)   the right to execute any work;

(b)   the time and manner of executing any work; and

(c)     any other matter arising out of or incidental to the dispute including the costs of making the award;

but any period appointed by the award for executing any work shall not unless otherwise agreed between the building owner and the adjoining owner begin to run until after the expiration of the period prescribed by this Act for service of the notice in respect of which the dispute arises or is deemed to have arisen.”

18.              Section 10(16) provides that the award is conclusive, but that is subject to subsection (17) which gives the parties to the dispute 14 days in which to appeal the award. The scope of any appeal is not limited or qualified by s.10(17) and it will often proceed by way of a rehearing.

19.              Section 11 is concerned with expenses and, although it is at the heart of many of the authorities, it does not arise here. Section 16 creates certain criminal offences arising out of an owner or occupier’s refusal to permit rights of entry, or otherwise hindering or obstructing the surveyors. Finally, section 20 sets out various definitions. Relevant to this appeal are the definitions of “adjoining owner” and “building owner” as follows:

“‘adjoining owner’ and ‘adjoining occupier’ respectively mean any owner and any occupier of land, buildings, storeys or rooms adjoining those of the building owner and for the purposes only of section 6 within the distances specified in that section;

‘building owner’ means an owner of land who is desirous of exercising rights under this Act.”

LK: Reference to section 11 not being applicable is disingenuous as it was the path followed by the surveyors and is directly connected to section 2(2)g i.e.- 2(5) - 11(8), all three are directly connected.

Reference to section 20 is IMHO somewhat biased in that section 20 states in its heading ‘In this Act, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them’ .

How can someone exercising a right under the Act not be a building owner despite the Act stating that a building owner is someone desirous of exercising their rights under the Act but does not state he is removed from being a building owner if he does not serve notice? The Act does not, neither does it imply, that a building owner who is obligated to serve a notice but does not is no longer a building owner.

The removal of a chimney breast is a right given to a building owner the Act, did Shah remove the chimney breast, yes he did, therefore he is a building owner.

Submissions on Appeal

20.              Unsurprisingly, the written and oral submissions of both sides were a re-run of the arguments before the lower courts. On behalf of the appellants, Mr Isaac argued that the dispute resolution process set out in s.10 of the Act was widely drawn, and permitted the adjoining owners’ appointment of Mr Kyson, his subsequent appointment of Mr Power, and the appellants’ Award of 3 July 2018. He submitted that the purpose of the Act was to resolve disputes without the parties having recourse to the courts, and it would be contrary to that purpose to allow a building owner unilaterally to deprive an adjoining owner of the benefits of the dispute resolution process in s.10. He said that any other conclusion would mean that, if the building owner wrongly refused to serve a notice or acknowledge the applicability of the Act, the adjoining owner would be left with no other option but to seek an injunction in court.

21.              In response, Mr Paget submitted that the Act did not replace the common law. Whilst the Act provided the building owner with new rights, those only arose if the mechanism set out in the Act had been properly triggered. He said that that could only happen if the building owner served a notice under s.3. If there was no notice, then the Act simply did not apply. The adjoining owner could not assume that the mechanism of the Act had been engaged simply because, on their case, the building owner should have served a notice under s.3. An adjoining owner could not unilaterally impose upon the building owner a compensatory award, in circumstances where that award had only come into existence as a result of statutory provisions which the building owner had always said did not apply.

 The Proper Construction of the Party Wall Act

22.              I approach the question of interpretation by first looking at the purpose of the Act and the words used. Only then do I turn to see whether the authorities support or contradict that conclusion.

23.              I am conscious of the need to adopt a construction which has regard to the purpose of the Act and to interpret its language, so far as possible, in a way which best gives effect to that purpose (see Lord Mance in Bloomsbury International Ltd v Sea Fish Industry Authority [2011] UKSC 25; [2011] 1 WLR 1546 at [10]; and Lewison LJ in Pollen Estate Trustee Co Ltd v Revenue & Customs Commissioners [2013] EWCA Civ 753; [2013] 1 WLR 3785 at [24]. However, that approach has a natural limit: merely because a statute was intended to achieve a general result does not mean that its individual provisions have to be interpreted as providing for that general result if the language used by Parliament simply does not warrant or justify it. Furthermore, many statutes have more than one purpose and, during the process of interpretation, there will be times when those purposes are or may be in conflict.

24.              For the reasons set out below, I consider that, on a proper construction of the Act, both judges below were right to conclude that, in the absence of a notice from the building owner under s.3, the dispute resolution mechanism under the Act had not been engaged. There are a number of reasons for that conclusion, set out below.

25.              First, it is clear that any rights which the building owner has under s.2 (including the right allegedly in play in this case, to cut away a projecting chimney breast under s.2(2)(g)), were expressly subject to s.3, and the service of a notice in advance of the works in accordance with s.3(1). The building owner has no right to carry out any of the works listed in s.2(2) unless he has served a notice under s.3. The service of the notice in advance is mandatory (“before exercising any right…the building owner shall serve…”). The service of the notice is therefore fundamental to the whole structure of this part of the Act.

26.              That interpretation is not affected by s.3(3), which sets out two exceptions to that rule. The exception at s.3(3)(b), in respect of notices relating to dangerous or neglected structures, simply creates a hierarchy in which compliance with a notice to make safe a dangerous structure trumps a notice under s.3 of the Party Wall Act. That is simple common sense. As to the exception at s.3(3)(a), namely consent in writing in advance, Mr Paget may well be right to say that such consent could not safely be given by the adjoining owner unless and until he has a clear idea of the proposed works, which in almost all cases would only be apparent from the notice served under s.3(1). However, since that particular argument does not arise for final determination in this case, it would not be appropriate to decide it. What matters for present purposes is that the limited exceptions in s.3(3) do not derogate from the critical importance, in 99% of cases, of serving a s.3(1) notice in advance of the proposed works.

LK: I’m not sure where 99% of cases from but it is not something I have experienced, the figure is much less. Furthermore, it will be lower now because building owners can carry out notifiable works with impunity simply by bypassing the adjoining owner and dispute resolution procedure.

27.              Secondly, I consider that the dispute resolution provisions in s.10 of the Act are only engaged, in a case where section 2 applies, following the service of a notice under s.3. Mr Isaac’s point was that s.10 did not expressly refer to the need for a notice, or suggest that the dispute resolution mechanism that it contained required the service of such a notice before the mechanism could be utilised. (Although section 10(12), which explains the extent of an award, does refer to the need for a notice). He also said that, if the purpose of the Act was to resolve disputes without the parties going to court, it would be wrong to limit the application of s.10 in this way.

28.              But in my view, the link between s.3 and s.10 is clear. Mr Isaac accepted that a ‘deemed dispute’ under s.10(1) required the provision of a s.3 notice before the s.10 mechanism was engaged. There is a vanishingly small chance that Parliament intended that a ‘deemed dispute’ required a notice before the s.10 mechanism was engaged, but an actual ‘dispute’ did not.  Such a distinction would make no logical sense. In any event, the dispute resolution mechanism in s.10 applies “in respect of any matter connected with any work to which this Act relates”. In this context, ‘any work’ must be a reference to any of the possible work envisaged by s.2, but such work is only permitted after the mandatory notice under s.3(1) has been served. It was therefore unnecessary for s.10(1) to refer expressly to the s.3 notice, because a dispute “in respect of any matter connected with any work to which this Act relates” envisages that, in respect of all such work, a notice has already been served by the building owner.

29.              Thirdly, whilst I accept that one of the purposes of the Act was to provide a dispute resolution mechanism which obviated the need for the parties to go to court, that was far from its sole purpose. Of equal importance was the requirement that the building owner serve a notice under s.3, so as to allow the adjoining owner to understand precisely what works were proposed and then, either through his or her own surveyor, or directly, to agree with the building owner the scope of the proposed works. In this way, another critical purpose of the Act was to avoid disputes arising altogether, through the transparency of the notice regime.

30.              A related point concerns the prospective nature of the proposed work to the party wall. A notice under s.3(1) has to be served 2 months before the work is due to start. This allows time for the adjoining owner to consider the detail of what is proposed. It allows surveyors to be appointed if there is a concern as to the scope of the proposed work, in order to maximise the chance of any remaining issues being resolved, and to allow the works then to be carried out. The Act provides an important mechanism – because of the requirement for a notice - by which the scope of the work to be carried out can be agreed in advance. It was not intended to resolve disputes concerning the effect of works which, because of the absence of a notice, had already been completed.

31.              Fourthly, there is nothing in the Act which permits an adjoining owner unilaterally to trigger s.10 in the way that happened here. If, as Mr Isaac submitted, an adjoining owner can engage the s.10 mechanism in the absence of a s.3 notice, because of his or her unhappiness with works which have already been carried out, then I consider that such a right would have had to have been expressly set out in the Act. It would be, on any view, a significant extension of the regime that requires a prospective notice by the building owner. It is common ground that such an entitlement finds no expression anywhere in the Act.

LK: S10 was not unilaterally triggered by the adjoining owner, In carrying out s2(2)g works Shah was obligated to make good the damage as per s2(5) which has a direct connection s11(8); s11(8) defaults to s10, it is not a choice to be taken by either party

‘Where the building owner is required to make good damage under this Act the adjoining owner has a aright to require that the expenses of such making good be determined in accordance with section 10 and paid to him in lieu of the carrying out of work to make the damage good.’

The parties do not have a choice as the Act dictates that s10 is the path to be taken.

32.              Fifthly, it is also common ground that an adjoining owner in the position of Mr and Mrs Panayiotou is not left without a remedy. On the contrary, the adjoining owner will have all the usual common law remedies which one would expect in this situation: the right to bring claims in trespass, nuisance and negligence, and the right, if appropriate, to seek an injunction. It cannot be said that, merely because the s.10 mechanism of dispute resolution under the Act is not open to them, there is any ultimate detriment to them.

LK: The remedy is only available to those who can afford it. If it is not within the grasp of the victim then it is not a remedy. It was not a path the adjoining owner could pursue they were financially barred.

33.              In contrast, if Mr Isaac is right, and the adjoining owners could unilaterally seek a remedy under s.10 of the Act, it would mean that Mr Shah may be deprived of his right of access to the courts, or at least find that right significantly qualified: for example, there is the 14-day time limit for appeals in s.10(17), with which Mr Shah did not comply, and which failure the appellants relied on when they sought to enforce the Award. There is also a risk of forum-shopping, or even parallel proceedings.

LK: IMHO, this is a rather bizarre statement. If Shah had served notice then the 14 day appeal period would apply. He would not be deprived access to the courts as he could appeal within 14 days, as could the adjoining owner. The court could’ve then corrected any anomalies within the award or rescinded it. The statement is biased in favour of the building owner and leaves the adjoining owner without a remedy unless they have the financial resources to finance litigation. ‘But for’ Shah’s wrongdoing the adjoining owner would not have been exposed to any financial burden.

34.              Finally, it is important to stand back. If the Act is fully complied with, both parties can look to the Act, and its dispute resolution mechanism, for protection. But if there are allegations of breach by either side, suggesting that the Act has not been complied with, then such disputes would ordinarily fall to be decided by the courts, and nothing in the Act indicates a contrary intention.

LK: Statement does not really make sense as the failure to serve notice is a breach of the Act but the only path open to an AO is litigation but only when damage or a nuisance is caused.

35.              In summary, a purposive construction of the Act identifies a specific mechanism to resolve disputes between the building owner and the adjoining owner, but that mechanism is limited to disputes “in respect of any matter connected with any work to which this Act relates”. Such work can only be the work envisaged in s.2(2), which work requires a notice from the building owner under s.3. There was no such notice in this case because, rightly or wrongly, Mr Shah was advised that the Act did not apply. In the absence of a notice, the dispute resolution mechanism in s.10 was not engaged and the Award produced in purported compliance with it was null and void.

LK: Section 2(1) explains when section 2 applies ‘2.-(1) This section applies where lands of different owners adjoin and at the line of junction the said lands are built on or a boundary wall, being a party fence wall or the external wall of a building, has been erected.

If the above criteria are met then section 2 applies, in essence it applies before section 3 is in place. Irrespective of whether a building owner serves a notice, if he carries out any work described in section 2 he is exercising his rights under the Act. Does the failure to serve a notice mean that he is not exercising his rights under section 2?

The Authorities

36.              I now turn to see whether the authorities support or contradict any interpretation of the Act. I consider that my analysis of those authorities supports that interpretation. I begin with the four relevant authorities in the Court of Appeal.

37.              In Woodhouse v Consolidated Property Corp. Limited (1992) 66 P.&C.R.234, a dispute arose under the 1939 Act which led to an award in the adjoining owner’s favour. The award concluded that the collapse of the wall was due to the work carried out by the building owner which had been the subject of a notice and conditional consent. The award provided that the building owner had to pay the proper cost of rebuilding the party wall, and those parts of the adjoining owner’s property that had been damaged.

38.              The adjoining owner commenced proceedings in nuisance, trespass and negligence. He sought to rely on the award to argue that the building owner was estopped from denying responsibility for the collapse. Glidewell LJ said that the dispute resolution mechanism in s.55(i) and (k) of the 1939 Act[1] related only to the resolution of differences between adjoining owners as to whether one of them should be permitted under the Act to carry out works that were the subject of the notice, and if so, the terms and conditions under which he was permitted to carry out such work. He went on:

“A matter which arises during the carrying out of the works, about which there is a dispute, must therefore be a matter which relates to the consent for the works to be carried out e.g. whether the building owner is complying with a particular requirement in the consent. Section 55 does not permit or authorise the surveyor… to determine other disputes arising between the parties”.

39.              So in Woodhouse, this court found that the surveyor did not have the jurisdiction to make an award which found the building owner liable for the consequences of the work which, on this assumption, had been set out in the original notice and then agreed by the adjoining owner. That issue of liability was a matter for the court. The  award would be admissible as evidence in the court proceedings, but could not be binding. Accordingly, Woodhouse is authority for the proposition that, under the 1939 Act, the notice - and any consent to it - was of paramount importance in determining the ambit of any dispute to be resolved pursuant to the statutory dispute resolution mechanism, and wider disputes which only the court could determine.

40.              In another dispute under the 1939 Act, Louis and Louis v Sadiq (1996) 74 P.&C.R.325, work was carried out to a party wall without the building owner having given notice. The adjoining owner obtained an interlocutory injunction restraining further work until the building owner had complied with the provisions of the 1939 Act. Following the injunction, the provision of a notice and repair work, the adjoining owner made a claim for damages, which included special damages in respect of mortgage interest, and extra costs in respect of a property to which the adjoining owners had intended to move. The judge at first instance allowed those claims.

LK: Paradoxical statement! This is rather bizarre as a notice has to be served either 1 or 2 months prior to work commencing. How can a notice be served after works have commenced or carried out? Injunction to comply with the Act??? really???

Does Louis v Sadiq makes nonsense of this decision or does this decision makes nonsense of Louis v Sadiq? In relying upon Louis v Sadiq this current CA have upheld that an injunction can be sought for breach of the Act, in essence should they have rejected Louis v Sadiq? on the basis that there was no legal basis to seek an injunction to force the Building Owner to comply with the Act! Surely this conflicts with the CA’s decision in Shah v Kyson & Power as the court forced the Building Owner by way of an injunction to comply with the Act, it was not his choice in contrast to what the three judges in this CA state.

41.              The appellant building owner appealed, arguing that there was no basis for the claim for special damages, because all common law rights, duties and remedies were excluded by the 1939 Act. The appeal was rejected by this court. Evans LJ said that the appellant committed a nuisance because of the work which he had carried out without obtaining statutory authority, and that liability continued until the work was completed. He went on to say that the appellant would not have been liable in nuisance if he had given notice (or obtained consent in accordance with the Act), and then done no more than that which had been agreed or approved (as per Woodhouse). He said that the issue was whether the appellant’s liability at common law was either excluded or reduced by the provisions of the 1939 Act which he had invoked, after the nuisance had arisen.  He had no doubt that it was not excluded or reduced, saying:

“I would have no hesitation in rejecting this submission even without reference to authority, because in my judgment there is nothing in the Act which can be said to have this effect. The adjoining owner's common law rights are supplanted when the statute is invoked, which can have the effect of safeguarding the building owner from common law liabilities when he complies with the statutory procedures, just as he may incur liabilities under the statute which did not exist at common law (the Standard Bank decision). But if he commits an actionable nuisance without giving notice and without obtaining consent, he cannot rely upon a statutory defence under procedures with which ex hypothesi he has failed to comply. If he does then give notice he will in due course acquire statutory authority for whatever works are approved or agreed, but in my judgment this does not relieve him from liability for the continuing nuisance which he has unlawfully committed, until such time as and to the extent that such authority is obtained.”

42.              In this way, in Louis v Sadiq, the surveyors could not decide the claims as if the absent notice had in fact been given; on the contrary, the absence of a notice meant that the statutory dispute resolution mechanism was not engaged at all, and the common law claims that had accrued to the adjoining owner all fell to be decided by the courts.

Yet the court could injunct the Building Owner to comply with the Act even though the Act was not engaged???

43.              I readily accept that the wording of the 1939 Act, particularly at subsections s.55(i) and (k), is not precisely the same as its equivalent at s.10 of the Party Wall Act. I also bear in mind the warning of Peter Gibson LJ in Zissis v Lukomski and another [2006] EWCA Civ 341; [2006] 1 WLR 2778 that there can be dangers in directly reading across from the cases under the 1939 Act. But, in my view, regardless of the differences in the wording of the respective statutes, the twin authorities of Woodhouse and Louis remain of some significance because they emphasise the importance of the notice (or the lack of such a notice) in defining what can be determined by a statutory award, and what can only be determined by the courts. Both authorities were expressly endorsed by this court in Blake v Reeves [2009] EWCA Civ 611; [2010] 1 WLR 1 at [23], a decision under the Party Wall Act.

44.              In Blake v Reeves, a deemed dispute arose under the Act. The surveyors appointed by the parties made an interim award determining that the notice was valid, but did not authorise the proposed work. The building owner mistakenly thought that the works had been authorised and so gave instructions for them to be carried out. The adjoining owner incurred costs in connection with a proposed claim for an injunction. But in the end that proved unnecessary because the building owner agreed to postpone the works. The surveyors produced a further award ordering the building owner to pay the adjoining owner’s costs of the contemplated court proceedings. Both at first instance and in this court, it was concluded that the surveyors did not have the power to make such an order. It was held that proceedings in court to enforce common law or equitable remedies fell outside the Act.

45.              During the course of his judgment, Etherton LJ noted at [14] that, generally, the Act provided procedures similar to those in the London Building Act 1939[2], “for authorising property owners to carry out works to an adjoining part structure or otherwise on or near to the boundary with the adjoining property, but which at the same time protect the legitimate interests of the adjoining owner. They are intended to constitute a means of dispute resolution which avoids recourse to the courts.” As to the particular dispute on appeal, he said:

“21. The power to order payment of such costs under s.10 of the 1996 Act is, however, restricted to costs connected with the statutory dispute resolution mechanism. As a matter of interpretation, the "dispute" mentioned in s.10(1), (10)(b), (12)(c) and (13)(c) is a dispute arising under the provisions of the 1996 Act, whether an actual dispute within s.1(8) or a deemed dispute under s.4(5) or s.6(7), or a dispute under some other provision, such as s.7(2) (compensation for loss and damage resulting from execution of work executed pursuant to the 1996 Act), s.11(2) (responsibility for the expenses of work), s.11(8) (expenses of making good damage under the 1996 Act) or s.13(2) (objection to building owner's account of expenses). I agree with Judge Viljoen that, by contrast, proceedings in Court to enforce common law or equitable remedies, such as damages or an injunction for trespass or nuisance or the threat of them, fall wholly outside the 1996 Act. That is equally true of preparations for such proceedings.

22. That conclusion is consistent with practice and policy. The purpose of the 1996 Act is to provide a mechanism for dispute resolution which avoids recourse to the Courts. A power of the appointed surveyors under the 1996 Act to make provision for costs incurred for the purpose of actual or contemplated litigation in Court would be inconsistent with that statutory objective. Such litigation, resulting from non-compliance with the dispute resolution mechanism, falls entirely outside the statutory dispute resolution framework.”

46.               Accordingly, Blake v Reeves is authority for the proposition that, to engage s.10, a dispute must arise under the provisions of the Act. The sorts of disputes which commonly arise are identified at [21] of Etherton LJ’s judgment. Mr Isaac may be right to say that the list is not exhaustive, but it gives the flavour of what s.10 is concerned with. Etherton LJ’s list is, on any view, a very long way from a claim made by an adjoining owner, in the absence of a notice from the building owner, in connection with works which have already been carried out.

LK: ‘The sorts of disputes which commonly arise are identified at [21] of Etherton LJ’s judgment…..’ aren’t sections 7(2) & 11(8) listed in his judgement? the very path the surveyors [Kyson & Power] took! We were not seeking to award legal costs. ‘Blake’ is far removed from the current instance but does in fact give more support to Kyson & Power!

47.              Finally, in Lawrence and Sarah Seeff v Dinh Nam Ho and another [2011] EWCA Civ 186, this court considered an appeal on both substantive matters and costs arising out of works to a party wall. In that case, no party wall notices were ever issued. There was a dispute as to what had been agreed between the neighbours. Thomas LJ (as he then was) said at paragraph 36 that, for other reasons:

“…it is not necessary to consider whether there was a failure to follow the procedures under the Party Wall Act. The judge observed in his first judgment on costs that the whole dispute that followed would never have arisen if Mr and Mrs Ho had discharged their duty of giving notice under the Party Wall Act. The Act makes it mandatory to give notice in respect of work defined in the Act. Mr and Mrs Seeff contended that the Party Wall Act applied. Mr and Mrs Ho disputed this, on the basis of Mr Petersen's evidence, as to whether a party wall notice was necessary. Although I consider that the judge was probably right, it is not necessary to determine that issue.”

48.              Again, I note this court’s view that, under the Act, a notice under s.3 was “mandatory” and may have made all the difference. It was not suggested in Seeff that the parties should have proceeded under s.10 on a notional basis, as if the building owner had served a notice under s.3, in circumstances where he had not.

LK: The heart of the Act is section 10 and that makes it mandatory for the parties to appoint surveyors in the event of a dispute arising between them - no reference to a notice being requisite.

It is not disputed that a mandatory obligation is placed on the building owner to serve notice but the appointment of surveyors is mandatory under s10!

49.              Those are, in my view, the authorities relevant to this appeal, and I consider that they support the interpretation of the Act set out at paragraphs 25 – 35 above. As summarised at paragraphs 3.2 and 3.40 of Party Walls and Practice, 4th edition, by Stephen Bickford-Smith and others, if the Act is fully complied with, the adjoining owner’s common law rights are substituted for his or her rights under the Act, but in default the building owner is liable for any tort against which the Act would have protected him. These paragraphs rightly assume that those common law rights would be determined by the courts because the Act had not been complied with, so s.10 had not been engaged.

50.              I note that, in the course of both judgments below, and in some of the written material that was provided to this court, there were a number of references to a number of first instance decisions. Mr Isaac expressly acknowledged that, since those decisions were not binding on this court, and none of them were directly on point in any event, there was little purpose in seeking to refer to them. I agree. The judgments in question are not always entirely clear, and it is sometimes difficult to discern any common thread running through them. Accordingly, save for one, I do not deal with the other first instance cases to which reference was made in the papers.

51.              The exception is a decision of HHJ Thornton QC, sitting as a judge of the Technology and Construction Court in Crowley v Rushmoor Borough Council [2009] EWHC 2237 (TCC). This decision was rightly identified by Lady Justice Andrews when she gave permission to appeal because it was relied on below by Mr Isaac and seemed potentially at odds with Blake v Reeves, to which no reference was made in the judgment.

52.              In Crowley, the Sampla family pursued claims against Crowley (the engineer) and Rushmoor (the local authority and building owner), following the partial collapse of their house during work being carried out in a public space owned by Rushmoor immediately adjacent to their house. Crowley settled with the Sampla family and then pursued Rushmoor under the Civil Liability (Contribution) Act 1978.

53.              In his judgment, from [94] onwards, the judge addressed whether Crowley and Rushmoor were both parties from whom the Sampla family were entitled to recover compensation for the same damage. He dealt with Rushmoor’s potential liability under the Act from [96] onwards. At [101] – [103] he suggested that what he called the arbitration provisions in the Act could have been operated retrospectively. He also said that Rushmoor could have been liable in damages arising from their failure to comply with the Act (because they failed to serve a notice), by way of a claim for breach of statutory duty. At [107] he concluded that “if a building [adjoining?] owner may not claim such loss as damages for breach of statutory duty, it could leave such a party without a remedy as a result of the offending party’s failure to operate the mandatory statutory provisions of the Party Wall Act”.

54.              There are a number of difficulties with this analysis. Judge Thornton does not address how, in the absence of a notice, the s.10 mechanism would work ‘retrospectively’ or at all. As with other parts of the judgment, ‘building owner’ and ‘adjoining owner’ are used interchangeably, which sometimes make the sense hard to discern. In addition, this section of the judgment is, with the exception of one county court decision, unburdened by any references to authority.

55.              As to [107] in particular, it is not clear why, in the absence of a claim for breach of statutory duty, the judge thought that the adjoining owner would be left without a remedy because of the offending party’s failure to operate the Act. That was an important element of his analysis, but it appears to overlook the fact that the adjoining owner would have had available the usual claims for damages, in trespass, in nuisance or in negligence (a point also made by Bickford-Smith at paragraph 3.49).

56.              Ultimately, however, I am not sure that this part of the judgment makes very much difference to the outcome of this appeal in any event. Judge Thornton did not say in terms that the building owner’s failure to comply with the Act could somehow be undone by a subsequent award by surveyors appointed by the adjoining owner and, for the reasons set out in the earlier part of this judgment, I think he was wrong about retrospectivity in any event. He did not say that the claim for breach of statutory duty could have been determined anywhere other than in court; on the contrary, at [107] he identified the issue as being “whether a court could award as damages the sum that the surveyors could have awarded as compensation had the Party Wall Act been engaged but had wrongly not been operated”. That paragraph seems to support Mr Paget’s analysis of the way in which the Act works: that, in the absence of a notice, the dispute would have been a matter for the court, not the dispute resolution mechanism in s.10.

57.              Accordingly, whilst I have doubts as to whether Judge Thornton’s analysis is correct, it does not seem to me to affect the result in this appeal; indeed, on one view, it provides some further support for the conclusions I have reached.

Conclusions

58.              For the reasons that I have set out, I consider that, on a proper interpretation of the Act, the absence of a notice under s.3 from the building owner means that there was no dispute which engaged s.10, and therefore the Award of 3 July 2018 was null and void. I note that that analysis is consistent with the reasoning in all four of the decisions of the Court of Appeal to which I have referred above. By contrast, the interpretation contended for with such dexterity by Mr Isaac is not only novel, but unsupported by any authority.

59.              I would dismiss this appeal.

LADY JUSTICE ELISABETH LAING

60.              I agree with both judgments, which explain the reasons why we agreed to dismiss the appeal at the end of the hearing.

LORD JUSTICE LEWISON

61.              At the conclusion of the hearing, I joined in the decision to dismiss the appeal. These are my reasons for doing so. I agree with the reasons given by Coulson LJ for dismissing this appeal. But because this issue has arisen for the first time directly, and is an important one, I give a judgment of my own. Coulson LJ’s compelling analysis of the Party Wall etc Act 1996 (“the 1996 Act”), with which I agree, is supported by a consideration of its predecessor legislation; and is consistent with cases decided under the 1996 Act itself.

62.              Before the passing of the 1996 Act rights in party walls in most of the country were regulated by the common law. In some parts of the country, most notably London, they were regulated by local Acts of Parliament. The Act in force before the 1996 Act was the London Building Act (Amendment) Act 1939 (“the 1939 Act”), although that Act had many predecessors. The interplay between that Act (and its predecessors) and the common law has been considered in a number of cases.

63.              Section 46 of the 1939 Act provided that where lands of different owners adjoin and at the line of junction are built on, a building owner had a number of listed rights. Section 47 (1) provided that before exercising any right conferred by section 46 a building owner “shall serve” on the adjoining owner a party structure notice. Section 55 provided for a dispute resolution procedure leading to an award by surveyors where “a difference arises between a building owner and an adjoining owner in respect of any matter connected with any work to which this Part of this Act relates”. Section 55 (i) provided that an award may settle:

“… any matter which before the commencement of any work to which a notice under this part of this Act relates or from time to time during the continuance of such work may be in dispute between the building owner and the adjoining owner”

64.              In Standard Bank of British South America v Stokes (1878) 9 Ch D 68 a building owner was carrying out excavations under a party wall in order to construct a sub-basement. He had served a notice under the Metropolitan Buildings Act 1855; and surveyors had been appointed but had not come to any agreement or appointed a third surveyor. The adjoining owner sought an injunction restraining the continuation of the excavation. Jessel MR held that rights under the legislation then in force superseded rights at common law in a party wall. At 73 he said:

“The law of the metropolis now defines the rights of a building owner. He is a building owner within the definition of the 82nd section, because he wants to do some work in respect of a party structure, and, being such a building owner, he has these rights, which, in my opinion, are exclusive, and he has no other rights.”

65.              At 76 he said:

“I think it the duty of the Court to read these Acts in a reasonable manner, with a view of carrying out the manifest intention of the Legislature that these party structures should not be interfered with by building owners without due notice to the person or persons other than the building owner interested in the party structure, and without its being referred to the surveyors to decide how the work should be performed.”

66.              At 77 he referred to the dispute resolution procedure under that Act and said:

“As they [i.e. the surveyors] have to determine the right to do and the time and manner of doing the work, it would really be reducing the Act to an absurdity to suppose that the building owner had a right to proceed with the work until they have so determined. It must mean that they are to determine the time, that is, the work is not to be done until the time is determined, and that, if the work is commenced before that time, the building owner is committing a breach of the Act of Parliament. Then there is a power of appealing, and the appeal may no doubt be delayed for a very considerable time; but if his right is, as I read it to be, a right merely to do that which the surveyor or the umpire may direct shall be done, the building owner has no right to do anything at all until he obtain such directions. The Defendant therefore had no right to proceed with his work until the direction of the surveyor had been obtained, and the Plaintiffs are entitled to come here to restrain his so proceeding.”

67.              That was, of course, a case in which a party structure notice had been served, so Jessel MR was not concerned with a case in which no such notice had ever been served. One of the important points, however, was that the adjoining owner was entitled to invoke equitable remedies in court proceedings where the procedure laid down by the Act had been invoked (by the service of a party structure notice) but not followed.

68.              In Leadbetter v Marylebone Corporation [1904] 2 KB 893 a building owner carried out works to a party wall without serving a party structure notice, claiming to have been entitled to do so under an award issued under a previous dispute. This court rejected that argument. Of particular note is the observation of Mathew LJ at 902:

“The right to make an award springs from the notice given by the building owner, and the surveyors had jurisdiction over the matters contained in that notice and in the notice given by the adjoining owner.”

69.              In Selby v Whitbread & Co [1917] 1 KB 736 a building owner had served a party structure notice under the London Building Act 1894 as a precursor to rebuilding his house. He transferred a strip of land to the local authority. Surveyors made an award requiring him to build a brick pier on the land transferred in order to support the party wall. The issue was whether, having transferred the strip, the building owner was bound by the award. McCardie J held that he was. He said at 742:

“It seems to me that that section contemplates that the person who serves the notice under s 90 [i.e. a party structure notice] shall be and remain liable for all the results which follow from such notice.”

70.              That, too, was a case in which a party structure notice had actually been served. But he did say at 746:

“In the present case, as already stated, the defendants gave their building notice in 1914. Thereupon the rights of the plaintiffs sprang into being under the Act of 1894.” (Emphasis added)

71.              That observation supports the view that it is the service of a party structure notice that triggers the operation of the Act. The defendants in that case were the building owners and the plaintiffs the adjoining owner. It was, therefore, the rights of the adjoining owner (not merely those of the building owner) that were triggered by the service of the party structure notice.

72.              He went on to say at 752:

“Hence I think that the Act of 1894 is not an addition to but in substitution for the common law with respect to matters which fall within the Act. It is a governing and exhaustive code, and the common law is by implication repealed. … I therefore hold that the plaintiffs cannot succeed upon their claim at common law inasmuch as the defendants’ party wall notice had been duly given under the provisions of the Act of 1894. In so holding I in no way negative the proposition that a plaintiff may bring his action for damages if he can establish that the defendant has exerted his statutory privileges so as to inflict injury on the plaintiff by negligence, improper obstructiveness, avoidable nuisance, or unreasonable delay…” (Emphasis added)

73.              Once again, it is the service of the party structure notice that causes the substitution of rights under the Act for common law rights. The service of such a notice gives a building owner the statutory rights laid down in the Act. Those rights, once activated, superseded the common law both as regards the building owner and the adjoining owner. Where, however, a party structure notice has not been served, the adjoining owner’s common law rights remain intact.

74.              In Gyle-Thompson v Wall Street Properties Ltd [1974] 1 WLR 123 Brightman J emphasised the importance of the procedures laid down in the 1939 Act; and held that if those procedures had not been correctly followed, a purported award was invalid.

75.              In Woodhouse v Consolidated Property Corp Ltd (1993) 66 P & CR 234 Glidewell LJ said at 242:

“In my judgment the provisions of section 55 relate only to the resolution of differences between adjoining owners as to whether one of them shall be permitted under the Act to carry out works, the subject of a section 47 Notice [i.e. the party structure notice], and if so, the terms and conditions under which he is permitted to carry out such work.”

76.              Thus the dispute resolution procedures under the 1939 Act were tied to the party structure notice.

77.              In Louis v Sadiq (1997) 74 P & CR 75 this court considered the position before the service of a party structure notice. Having referred to Standard Bank and Selby, Evans LJ said at 332:

“These authorities establish, in my judgment, that the appellant would not have been liable in nuisance if he had given notice, or obtained consent, in accordance with the Act and then done no more than was agreed or was approved by the surveyors. But then, no damage would have been caused to the respondents’ house, save in the party wall itself, and in that respect no liability would have arisen. The issue raised in the present case is whether the appellant’s liability at common law is either excluded or reduced by the provisions of the Act which he invoked, eventually, after the nuisance had arisen.

I would have no hesitation in rejecting this submission even without reference to authority, because in my judgment there is nothing in the Act which can be said to have this effect. The adjoining owner’s common law rights are supplanted when the statute is invoked, which can have the effect of safeguarding the building owner from common law liabilities when he complies with the statutory procedures, just as he may incur liabilities under the statute which did not exist at common law (the Standard Bank decision). But if he commits an actionable nuisance without giving notice and without obtaining consent, he cannot rely upon a statutory defence under procedures with which ex hypothesi he has failed to comply. If he does then give notice he will in due course acquire statutory authority for whatever works are approved or agreed, but in my judgment this does not relieve him from liability for the continuing nuisance which he has unlawfully committed, until such time as and to the extent that such authority is obtained.”

78.              The critical point here is that the adjoining owner’s common law rights are supplanted “when the statute is invoked”. The statute is invoked by the service of a party structure notice. Until that time, the position remains governed by the common law of trespass and nuisance. Woodhouse is also consistent with that interpretation. In my judgment, the position under the 1939 Act and its predecessors was clear.

LK: The Act states when section 2 applies:

2 Repair etc. of party wall: rights of owner.

2.-(1) This section applies where lands of different owners adjoin and at the line of junction the said lands are built on or a boundary wall, being a party fence wall or the external wall of a building, has been erected.

There is no distinction in the title between building owner or adjoining owner, they are both encompassed ‘rights of owner’. So if this section applies, then so must the adjoining owners’ rights for example section 2(5) he is obligated to make good the damage and the adjoining owner is entitled to ask for money in lieu -s11(8). Both parties have rights but obligations are placed upon the building owner. S3 only places an obligation upon the building owner to serve notice but does not remove the rights of the parties under section 2 if he does not serve notice.

79.              The real question is whether the Party Wall etc Act 1996 has changed the position. Mr Isaac KC stressed the difference between section 10 of the 1996 Act and that of section 55 (i) which tied the surveyors’ jurisdiction to a matter to which the notice related.  By contrast section 10 (1) of the 1996 Act simply referred to “any matter to which is connected with any work to which this Act relates”. There is, therefore, no longer any link between a party structure notice and the surveyors’ jurisdiction. Although there cannot be a deemed dispute in the absence of a party structure notice, there can be an actual dispute.

80.              In my judgment the difference in wording does not justify the radical change in procedure for which Mr Isaac argues. According to its promoter, the Earl of Lytton, the aim of the Party Wall etc Act 1996 was to extend the “tried and tested” procedures under the London Building Act (Amendment) Act 1939 to the whole of the country: Zissis v Lukomski [2006] EWCA Civ 341, [2006] 1 WLR 2778 at [24]. In Kaye v Lawrence [2010] EWHC 2678 (TCC), [2011] 1 WLR 1948 at [31] Ramsey J quoted another statement by the Earl of Lytton in the committee stages of the Bill which became the 1996  Act:

“The intention remains, as always, that the Bill will follow as closely as possible the London Building Acts which are its role model and the precedents and practice which have been established for inner London over a long period of time.”

LK: Radical change in procedure???? there was a radical change in the wording of s10!! so a radical change in procedure should come as no surprise.‘…will follow as closely as possible…’ much of the wording has been kept but there were changes, and if there changes then it must mean that with these ‘changes’ it was not intended to follow the predecessor part of the predecessor Act..

LK: Extract from Hansard -amendment no 17

There are also some minor changes which improve and clarify what the Bill is intended to mean. For instance, Amendment No. 64 refers to work authorised by the Bill, whether or not it was the subject of notice in the first place. That is important in terms of bringing into consideration things that have been forgotten or left out.

LK: Extract from Hansard -amendment no. 26

What the noble Earl said about certain rights being given to building owners is true. But rights are given to both owners because they both have a clear, joint stake in what is happening to the wall. By its very nature, it is a wall through which the legal boundary passes so that a piece of it is on one side and another piece on the other side. That is quantifiably different from a wall which is on a property owner's own land for which he may need co-operation to gain access. This amendment deals with a situation which occurs in many properties throughout the country.

81.              In Reeves v Blake [2009] EWCA Civ 611, [2010] 1 WLR 1 Etherton LJ said at [14]:

“The 1996 Act does not reproduce in identical terms the provisions of the London Building Acts. It contains, for example, new provisions as to costs. Generally, however, it provides procedures, similar to those in the London Building Acts, for authorising property owners to carry out work to an existing party structure or otherwise on or near to the boundary with the adjoining property, but which at the same time protect the legitimate interests of the adjoining owner. They are intended to constitute a means of dispute resolution which avoids recourse to the courts.”

82.              In my judgment, therefore, cases decided under the previous legislation are of continuing relevance when interpreting the 1996 Act. Indeed, one relevant principle of statutory interpretation is the Barras principle. The Barras principle derives from Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, 411 in which Viscount Buckmaster said:

“It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.”

LK: I’m not aware of any words within section 10 having a doubtful meaning, and fail to see how reliance upon a predecessor Act can be made when the wording has been specifically changed.

Lewison LJ in Pollen Estate Trustee Co Ltd v Revenue & Customs Commissioners [2013] EWCA Civ 753, [2013] 1 WLR 3785 at [24] where he said:

“The modern approach to statutory construction is to have regard to the purpose of a particular provision and interpreted its language, so far as possible, in a way which best gives effect to that purpose.”

(The same Mr Lewison?) The purpose of the current Act is to prevent recourse to the law as cited by many judgements and Earl Lytton!

83.              Although this is not a question of a particular word or phrase, the method of invoking rights under the predecessors of the 1996 Act has been made clear in a number of decided cases, both at first instance and in this court. Parliament must, in my judgment, be taken to have had those cases in mind when enacting the 1996 Act.  The point is all the stronger because the promoter of the Bill made it clear that it was the intention to follow the “tried and tested procedures” under the 1939 Act; and that the 1939 Act was its “role model”. Subsequent decisions under the 1996 Act itself are, in my judgment, consistent with that view.

84.              In Rashid v Sharif [2014] EWCA Civ 377 Mr Sharif built a garden shed which entailed the demolition of a party fence wall; and did so without serving a party structure notice. Jackson LJ said:

“[56]  The judge has rejected the defendants’ evidence that Mr Rashid agreed to what the defendants were doing. Therefore the defendants were not entitled to carry out such substantial works to the party fence wall without (a) serving the appropriate notices under the Party Wall etc Act 1996 and (b) following the statutory procedures to secure permission. The defendants did not do this.

LK: A notice was not served and the adjoining owner’s followed a path of litigation…where did that get them?

‘A conclusion was reached that the wall in question was a party wall, the Court expressing its disproval of the whole dispute procedure by determining that each party should bear its own costs throughout’ [The New Party Wall Casebook Nicholas Isaac KC & Matthew Hearsum ISBN978-1-326-04569-2]

[57]  In those circumstances the defendants’ execution of works to the party fence wall constituted a trespass …”

85.              In Kaye v Lawrence the question was whether the building owner could be required to give security under section 12 of the 1996 Act in connection with the works. Ramsey J said at [47]:

“I now turn to consider the rival contentions of the parties on the meaning of section 12 of the 1996 Act. Much of the debate centres around the meaning of the phrase “any work in the exercise of the rights conferred by this Act” in section 12 . The right of the adjoining owner to require the building owner to give security depends on notice being given to the building owner before he begins such work.” (Emphasis added)

86.              The notice to which he referred was a party structure notice. In similar vein, he said at [59], having referred to authority:

“These authorities show that, when the provisions of the relevant Act are operated, the common law rights are “supplanted” or “substituted” by the rights under the Act in relation to matters dealt with under the Act.” (Emphasis added)

LK: This statement is a joke! A s6 notice had been served in Kaye, the properties were, and still are detached so the works were completely confined to the building owner’s own land. The notice referred to by Ramsay J was a security for expenses notice as required by section 12 and not a ‘party structure notice’.

S12(1) ‘An adjoining owner may serve a notice requiring the building owner before he begins any work in the exercise of the rights conferred by this Act to give such security as may be agreed between the owners or in the event of dispute determined in accordance with section 10.’’

Lewison has got it completely wrong the notice was not, neither could it ever be a party structure notice. There is no party wall between the properties! As an authority Kaye has been wrongly applied. Lewison refers to Ramsay J’s statement ‘….when the provisions of the Act are operated…..’ if the adjoining owner has rights i.e. money in lieu of having the damage made good then if he applies for this then one of the provisions of the Act are operated, which defaults to s10… the appointed of surveyors. it is the Act that requires the appointment of surveyors not the adjoining owner unilaterally imposing the Act on the building owner.

87.              It is, I think, implicit that the relevant provisions of the Act are “operated” when a party structure notice is served.

LK: Really? A party structure notice where there is no party wall?

This judgement, in essence, makes a nonsense of Kaye v Lawrence as, would anyone carrying out section 6 works confined to their own property serve a s6 notice and expose themselves to security for expenses? In hindsight I believe Mr Lawrence would not be serving a section 6 notice if he were doing the same works today!

To use Kaye v Lawrence as an authority seems somewhat paradoxical in that, as stated above, would Mr Lawrence serve a s6 notice if he were doing the work today? Once again seems a bit of a paradoxical authority.

88.              In Group One Investments Ltd v Keane [2018] EWCA Civ 3139 Hickinbottom LJ said at [2]:

“If for any reason the statutory procedure is not followed, then the parties’ respective common law rights and obligations continue to apply.”

89.              In that case a building owner began work without serving a party structure notice. The adjoining owner sought legal advice and contemplated proceedings to compel the building owner to serve a party structure notice. This court held that those costs were irrecoverable under the dispute resolution procedure in the 1996 Act. In my judgment, when Hickinbottom LJ referred to following the statutory procedure, he must have meant events following the service of a party structure notice. Moreover, what he contemplated was that both parties’ common law rights remained in being, not simply those of the adjoining owner.

90.              In Rodrigues v Sokal [2008] EWHC 2005 (TCC) a building owner began work without serving a party structure notice. HHJ Toulmin CMG QC said at [51]:

“My understanding of the law is that until such time as the Party Wall etc Act 1996 is invoked and either the building owner has obtained consent or acquires a statutory authority under the s.10 procedure, the building owner cannot rely upon a statutory defence under procedures with which “ex hypothesi” he has failed to comply. If the building owner subsequently obtains authority for building works which were started without authority, that authority abates the common law rights from the time of the subsequent consent or when the Party Wall etc Act procedure was successfully invoked. If the works were never or would never subsequently have been authorised, the common law rights continue.”

LK: The Act was ‘invoked’ and the s10 procedure followed, as Shah had exercised his right under s2(2)g and was obligated to make good the damage (s2(5) connected to s11(8) requiring the appointment of surveyors by default. By following this procedure Shah, in essence, gained statutory authorisation for the works. HHJ Toulmin was aware that a notice was not served  but makes no reference to the statutory procedure only being applicable if a party structure notice is served; he categorically states ‘or acquires a statutory authority under the s10 procedure’.

HHJ Toulmin states ‘a building owner began work without serving a party structure notice. This confirms works had commenced, if the strictness of s3 as applied by Coulson is followed, a party structure cannot be served retrospectively as it must be served 2-months before works commence:

 s3(2)a A party structure notice shall- (a) be served at least two months before the date on which the proposed work will begin;

Therefore a notice cannot be served after works commenced, however, despite this HHJ Toulmin still recognised that the s10 procedure was applicable.

91.              But he went on to say that if the procedure under the 1996 Act is invoked, then an award may cover matters that took place before its invocation. Again, I think, that what the judge meant by “invoked” was the service of a party structure notice.

LK: Absurdity and is a self-defeating statement…. how can a ‘party structure notice’ be served after works have commenced and comply with s3?

Toulmin LJ states that ‘…..or acquires a statutory authority under the s.10 procedure,…’ isn’t that what we did?

‘I think’ what the judge meant..???? HHJ Toulmin does not mention a party structure notice, and why should he?

92.              This approach is, in my judgment, supported by the words of the 1996 Act. Section 2 (2) gives the building owner  a number of “rights” to carry out works relating to party walls. These rights are, in many cases, more extensive than the rights enjoyed by a building owner at common law, but they come with conditions requiring the making good of damage. But as Coulson LJ points out, exercise of those rights is contingent on serving a party structure notice under section 3. In order to be able to exercise the “rights” conferred upon him by the 1996 Act the building owner must serve a party structure notice under section 3. The adjoining owner may serve a counter-notice under section 4. Section 5 provides:

LK: Contradicts the previous statement, as apparently the Act can be invoked after notifiable works have commenced and a notice has not been served but then a notice can be served that does not meet the criteria of S3 but still invokes the Act….really???

“If an owner on whom a party structure notice or a counter notice has been served does not serve a notice indicating his consent to it within the period of fourteen days beginning with the day on which the party structure notice or counter notice was served, he shall be deemed to have dissented from the notice and a dispute shall be deemed to have arisen between the parties.”

93.              Any such dispute is to be resolved in accordance with section 10. It is that section which confers power to make an award. Section 10 applies:

“Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates…”

94.              Mr Isaac accepts that in the absence of a party structure notice there can be no “deemed dispute” under the Act. But he says that does not prevent an actual dispute from arising under the Act. Like Coulson LJ, I consider that that would be an unlikely intention to attribute to Parliament.

95.              In addition, the expression “building owner” is defined by section 20 as;

“an owner of land who is desirous of exercising rights under this Act”

96.              Mr Isaac submits that that definition must be interpreted as if it had read “an owner of land who is desirous of executing works of a description contained in this Act”. But that is not what the definition says. A building owner may rely on his common law rights, but in that event he is vulnerable to claims of trespass or nuisance.

97.              In Blake v Reeves a building owner served notice under section 6 (5). A dispute with the adjoining owner was deemed to have arisen pursuant to section 6 (7). The surveyors appointed by the parties made an interim award determining that the building owner’s notice was valid but did not at that stage authorise the proposed works. The building owner mistakenly took the view that the award authorised the proposed works and gave instructions for them to be carried out. The adjoining owner was advised by her solicitors to bring proceedings for an injunction for trespass and/or nuisance and particulars of claim for issue in the High Court were drafted. In the event the building owner undertook to suspend the works and no court proceedings were issued. By a second award the surveyors authorised the carrying out of the proposed works but directed that the building owner pay the adjoining owner's costs of the contemplated court proceedings. The issue was whether the surveyors had jurisdiction to issue the second award.

98.              Etherton LJ explained at [21]:

“As a matter of interpretation, the “dispute” mentioned in section 10(1), (10)(b), (12)(c) and (13)(c) is a dispute arising under the provisions of the 1996 Act, whether an actual dispute within section 1(8) or a deemed dispute under section 6(5) or section 6(7), or a dispute under some other provision, such as section 7(2) (compensation for loss and damage resulting from execution of work executed pursuant to the 1996 Act), section 11(2) (responsibility for the expenses of work), section 11(8) (expenses of making good damage under the 1996 Act) or section 13(2) (objection to building owner's account of expenses). I agree with Judge Viljoen that, by contrast, proceedings in court to enforce common law or equitable remedies, such as damages or an injunction for trespass or nuisance or the threat of them, fall wholly outside the 1996 Act. That is equally true of preparations for such proceedings.”

99.              It is, therefore, only a dispute (or deemed dispute) which arises “under the provisions of the 1996 Act” which is within the dispute resolution procedure under section 10. A dispute which arises outside the Act is not, therefore, covered by section 10. If section 10 covered all matters which are capable of falling with the scope of the Act (irrespective of whether a party structure notice has been served), then Blake v Reeves must be wrong, because proceedings to enforce common law or equitable remedies would be subsumed by the 1996 Act. As Woodhouse and Louis make clear, the application of the Act is triggered by the service of a party structure notice. Etherton LJ referred to both those cases in Blake v Reeves at [23]. He clearly took the view that they were of continuing validity in relation to the 1996 Act. Mr Isaac sought to finesse that point by submitting that an adjoining owner, who had not been served with a party structure notice, had the option either to pursue his remedies at common law or to invoke the provisions of the Act. But the Act does not say so, and there is no procedure under which an adjoining owner is required to initiate any process. Moreover, it would be a far-reaching (and unheralded) change in the law if an adjoining owner could unilaterally remove a citizen’s right of access to the courts, simply by appointing a surveyor (who need not have any qualifications); all the more so in a case in which there is a dispute about whether works fall within the various descriptions of work in the 1996 Act. In my judgment, unless the Act is triggered by the service of a party structure notice, the adjoining owner is not entitled to invoke the Act. In short, I agree with the judge that “no party structure notice, no Act”.

LK:

1. A notice was served in Blake and the court were deciding whether an adjoining owner could claim legal costs not damage caused in the execution of notifiable works. Blake has been wrongly applied.

2. This was a dispute which arose under the provisions of the Act and Etherton LJ clearly states that s11(8) falls within jurisdiction of surveyors.

3. The matter determined by award was a matter that fell well within the auspices of the Act 2(2)g - 2(5) – 11(8) or 7(2) as defined by Blake.

4. Reference to ‘qualifications’ is of no consequence here as even if Shah had served notice Lee Kyson would have still been appointed by the AO, and Mr Ali who was advising Shah is not qualified in any way but if Shah served a notice then Mr Ali is OK to make an award.  

5. There is no removal of citizens rights as the BO has recourse to appeal any award made. This is no different if he served notice he would be bound by an award if he did not appeal within 14 days. The 14-day appeal period applies to both parties in equal measure.

6. In contrast by not allowing the adjoining owner access to the dispute resolution procedure of the Act the intransigent building owner is removing the adjoining owner’s ‘citizens rights’ .

7. The Act was invoked when Shah decided he wished to carry out notifiable works and the opening wording of S2(1) tells us when S2 applies “This section applies where lands of different owners adjoin and at the line of junction the said lands are built on or a boundary wall, being a party fence wall or the external wall of a building, has been erected.” It does not say it applies when a notice is served. S3 places an obligation upon a BO but S2 gives him rights, non-compliance with an obligation by the building owner does not remove the ‘rights’ of either a BO or AO.

100.          That does not necessarily leave an adjoining owner without a remedy. He retains his rights at common law to sue in trespass or nuisance. Mr Isaac said, with some force, that proceedings in court are potentially more costly than an award by surveyors; and that if an adjoining owner wished to obtain an interlocutory injunction they might be deterred by having to give a cross-undertaking in damages. But he also accepted that surveyors have no power to grant an injunction and that if work was carried out otherwise than in accordance with an award, the adjoining owner would, in practice, have to pursue his common law and equitable remedies.

LK: This stance defeats the purpose of the Act. It may not matter to someone with a mansion in West London who has the finances to pursue such matters either statutorily or by litigation, however in the poorer parts of the country where there are an abundance of terraced buildings and adjoining owners who may be struggling to pay their mortgage and make ends meet cannot afford the costs associated with commencing legal proceedings. This is exactly what many BOs rely upon in executing their work and not dealing with the aftermath when damage is caused. The appointment of surveyors and subsequent application of s10 removes the exposure to costs for an AO.

101.          In Crowley  v Rushmooor BC [2009] EWHC 2237 (TCC) HHJ Thornton QC suggested that a failure to serve a party structure notice might be a breach of statutory duty. But the consequence of that would be that the adjoining owner on whom the notice ought to have been served would be entitled to recover damages at common law, the measure of damages being what a surveyor would have awarded under the Act (see also Roadrunner Properties Ltd v Dean [2003] EWCA Civ 1816, [2004] 1 EGLR 73 at [9]). That may or may not be right (see Hough v Annear (2007) 119 Con LR 57, which took a different view); but assuming that it is, it does not result in a surveyor’s award becoming binding: it results in the jurisdiction of the court being exercised. I cannot see any justification in the 1996 Act for a provision which deems a building owner to have served a party structure notice under the Act when in fact he has not, such as to confer jurisdiction on a surveyor.

102.          In his original skeleton argument Mr Kyson laid stress on the proposition that rights under the Act supersede common law rights. So they do, but only once the Act has been brought into operation.

LK: 1.                  The Act was brought into operation by the BO exercising his rights under 2(2) and causing damage to the AOs’ property. This is in relation to 2(5) – 11(8) which makes s10 the default position as the wording of 11(8) states:

“Where the building owner is required to make good damage under this Act the adjoining owner has a right to require that the expenses of such making good be determined in accordance with section 10 and paid to him in lieu of the carrying out of work to make the damage good.”

In this instance s10 was ‘invoked’ by default by placing an obligation upon both parties, s11(8) “……the expenses of such making good be determined in accordance with section 10…..” it is not unilaterally imposed.

103.          It was for these reasons that I joined in the decision to dismiss the appeal.

[1] Section 55(k) provided that “the award may determine the right to execute and the time and manner of executing any work…”. It was this provision in particular that led Glidewell LJ to decide that the surveyor could not decide disputes beyond whether the building owner was complying with a particular requirement in the consent. That provision is repeated at s.10(12)(b) of the Party Wall Act.

[2] A similar point was made by Ramsey J in Kaye v Lawrence [2010] EWHC 2678 (TCC), who described the London Building Acts as the “role model” for the Party Wall Act.