Permission has been granted to appeal the High Court decision. 

On February 11th 2022 Mr Justice Eyre handed down his decision in the case of Shah v Power & Kyson (read more). The judgement went against us and our appeal from the County Court judgement by HHJ Parfitt was dismissed. I have subsequently sought permission to appeal to the Court of Appeal and am awaiting a response. It is unfortunate that the Court of Appeal upheld this decision on some (IMHO) very dubious authorities… Court of Appeal judgement with my comments Some of my thoughts on this judgement…

Eyre J stated at

57.                  The Act provides a mechanism for resolving disputes between building owners and adjoining owners but here the Claimant did not purport to exercise the rights which the Act gave to building owners. In that regard the Act’s definition in section 20 of a building owner as “an owner of land who is desirous of exercising rights under this Act” is of significance. The Defendants say that the Claimant fell within that definition because he exercised rights given by section 2 of the Act. There are a number of difficulties with that analysis. The first is that the rights given by section 2 can only be exercised after the service of a notice under section 3. More significant is the point that neither when he performed the works nor after he had done so did the Claimant purport to be acting or to have acted in exercise of rights given by the Act. In those circumstances he cannot readily be seen as having been at any stage “desirous” of exercising such rights. The language of the definition is most apt to describe a person who is expressly seeking to exercise rights given by the Act and to do so in the future rather than a person who has already performed works and who has done so without reference to the Act. This is strongly suggestive that the intention is for the Act to operate prospectively rather than retrospectively (though once the Act has come into operation it is clear that the dispute resolution mechanism can apply to events which happened before an award but after the Act’s operation was triggered). This, in turn, supports the “no notice, no act” mantra and the view that the Act does not come into play unless a notice has been served. It would have been possible for the Act to have defined a building owner as any person who has performed or who wishes to perform works on or near the boundary of adjoining properties and/or who has or who wishes to perform works affecting an adjoining property. That was not done instead a building owner is defined by reference to the desire of that person to exercise rights under the Act.

In essence if a building owner does not serve the requisite party wall notice he does not wish to exercise his rights under the Act and as the judgement finishes with ‘It follows that the dispute between the Claimant and Mr and Mrs Panayiotou was not a dispute arising under the provisions of the Act. As such it was not a dispute over which the Defendants had jurisdiction and there was no error of law in Judge Parfitt’s conclusion that the Award was null and void by reason of that lack of jurisdiction. The appeal, therefore, is dismissed.’ it is difficult to comprehend how an aggrieved adjoining owner can seek an injunction to stop works until the requisite procedures of the Act are followed.

The building owner has a right to carry out the works under common law and if the Act does not apply, how can an injunction be valid?

IMHO, if you are a building owner and you do not wish to pay surveyors and do not require access to your neighbour’s property then you do not need to serve a party wall notice. As stated above, in accordance with judgement, you are not a building owner as defined by the Act and if you are not a building owner then you are not breaching the Party Wall etc. Act 1996. Therefore can there be a basis to support an injunction?

I am aware of two ‘building owners’ who are proceeding on the basis that that they are not building owners as defined by Eyre J’s judgement and are not going to serve notice and will use this particular judgement as a basis to defeat an injunction if the adjoining owner seeks to put an injunction in place. It would appear that the decision renders the Act superfluous if a building owner so wishes.

more to be added as a work in progress…