Party Wall etc. Act 1996: Surveyors beware – no notice, no jurisdiction
28th February, 2022
The High Court has upheld a County Court decision that surveyors purportedly engaged under the Party Wall etc. Act 1996 ("the Act") had no jurisdiction in circumstances where the building owner had not served notice nor sought to invoke the Act.
In Power and another v Shah the High Court was asked to consider whether the County Court had correctly determined that the surveyors lacked jurisdiction to grant an award under the Act when the dispute resolution process (section 10 of the Act) was invoked unilaterally by the adjoining owner.
The facts of the case were that in 2017 the owner of a semi-detached property carried out works to his property without serving notice under the Act. The owner contended the works he had undertaken did not fall within the scope of the Act.
However, the neighbours alleged that the works, which they said included the removal of a chimney breast, did fall under the Act and had caused damage to their property. Surveyors were ostensibly appointed under the Act and a party wall award was issued in 2018 in favour of the neighbours and against the owner, who had undertaken the works.
At first instance, the County Court declared that the award was null and void because the surveyors lacked jurisdiction to make an award under the Act.
The High Court has now, on appeal, upheld the County Court’s decision. This was in circumstances where the works had been performed by a party who had not served notice under the Act; who did not accept the applicability of the Act to the works undertaken; and who had not sought to invoke the Act.
On appeal to the High Court, the Judge determined that the purpose of the dispute resolution mechanism, under section 10 of the Act, is not a “free standing right” to resolve all party wall disputes. There was no dispute under the Act if the building owner (as defined in the Act) carried out works without serving notice, even if the Act should have been engaged. Therefore, the surveyors did not have jurisdiction under the Act to issue an award.
Further the Judge found that the definition of building owner in the Act is strongly suggestive that the intention under the Act is that it applies prospectively, rather than retrospectively (though once the Act was engaged it was possible for the dispute resolution mechanism to apply to events that happened before an Award but after the Act’s operation was triggered).
The importance of this judgment is that it confirms that an adjoining owner is not entitled to unilaterally rely on the dispute resolution mechanism set out in the Act, and the determination of a dispute by the grant of an award, where the building owner does not serve notice under the Act.
In cases where this situation arises surveyors need to be aware that they have no jurisdiction under the Act to determine the dispute. The adjoining owner will need to pursue common law remedies, such as, an injunction, nuisance, trespass or breach of statutory duty.
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