Party walls; trespass; nuisance; damages
In this case the Claimant, Mr Nutt, sued for an injunction and damages in respect of notifiable works carried out by the Defendants, Mr Podger and his SPV company, Veda Road Limited. In this case summary, I refer to the Defendants interchangeably as a matter of convenience, although the judge was careful to differentiate between them where appropriate in his judgment.
The Claimant owned and occupied 45 Veda Road. The Defendant bought 47 Veda Road as a development project, including the erection of a roof extension. The notifiable works involved were removing the roof tiles, cutting into and exposing the party wall, inserting three steel beams into the party wall, fixing timbers into the party wall and raising the same.
The Defendant undertook the notifiable works without notice to the Claimant, claiming that the Claimant had consented to those works orally. After a solicitor’s letter complaining about the same on 8 July 2020, the Claimant obtained an injunction on 14 July 2020 preventing any further notifiable works being undertaken.
In the subsequent proceedings, the jointly instructed expert concluded that modest damage, worth about £450 had been caused to the Claimant’s property, that raising the party wall in timber was acceptable, but that the insertion of steel beams into the party wall required further investigation and potentially remedial work, since there was no evidence of padstones having been used.
The judge held that:
(1) There was no evidence of an oral agreement to waive the requirements of the 1996 Act and no agreement in writing to that effect. Whilst the judge did not rule out the possibility of an estoppel or waiver having legal effect in such a situation, he said that he would “expect a reasonably high level of certainty about the basis” for such, certainty which was absent in this case.
(2) The parties should be given a three-month period during which surveyors could be appointed to make a retrospective award in relation to the notifiable works. If the state of the steel beams were such that remedial work was required, the judge indicated that he would make a mandatory injunction requiring such remedial work to be undertaken.
(3) The Claimant should receive the following damages:
- £450 in respect of the physical damage to the Claimant’s property;
- £750 in respect of the Claimant being “wrongfully deprived of the protections of the 1996 Act for a period of 12 months” and in respect of the trespass which the unauthorised notifiable works represented over the same period;
- £500 in respect of the Defendant burning building waste on a bonfire on one day during the build;
- £2,000 in respect of the noise and disturbance occurring after 1 pm on Saturdays during the build, over a period from June to October 2020 (5 months);
- £250 in respect of broken tiles or other debris falling onto the Claimant’s land during the build.
Whilst one’s impression might be that the judge was not unduly harsh on the Defendant in this case, both giving them an opportunity to resolve any construction issues caused by the build and awarding relatively modest damages against them (totalling just under £4,000) despite a clear failure to follow the procedure under the 1996 Act, one should bear in mind that the Defendant would also have been required to pay the Claimant’s costs of the action, likely to have been (in the writer’s experience) somewhere between £30,000 and £50,000. The clear lesson should therefore be that complying with the requirements of the 1996 Act is ultimately likely to be more economic than ignoring them.
A full copy of the judgment can be found here.