Party walls; no notice; jurisdiction
Unless a notice under the Act is served on him, an adjoining owner cannot invoke the Act – “no notice, no Act”.
Allegedly notifiable works, including the removal of a chimney breast, were undertaken by a building owner, causing modest damage to the adjoining owner’s property. The adjoining owner appointed a party wall surveyor to act for him. when the building owner refused to serve a notice or appoint a surveyor, the adjoining owner’s surveyor served a notice and purported appointed a surveyor for the building owner under section 10(4). The surveyors made an award in respect of the damage to the adjoining owner’s property and their fees. When the surveyors sought to enforce payment of their fees in the Magistrates Court, the building owner sought a declaration that the award was void for lack of jurisdiction, no notice having been served. At first instance HHJ Parfitt held in favour of the building owner to the effect that the Act required notice to be served by a building owner in order to invoke the Act.
On appeal to the High Court, Eyre J upheld the trial judge’s decision, albeit on a very slightly different basis.
The judge noted that not every dispute between neighbours can be a dispute for the purposes of the Act, and referred to the definition of building owner under section 20 as “an owner of land who is desirous of exercising rights under this Act”. In this case, not only had no notice been served expressing such a desire, but the building owner did not purport to be acting in the exercise of rights under the Act.
This was sufficient for the judge to decide that, as a matter of construction, section 10 could not cover disputes between neighbours as to notifiable works unless the Act has been invoked by the service of a notice by a building owner on an adjoining owner.
The judge went through several other cases in which this issue was touched upon and which, it had been argued, supported the surveyors’ position as to jurisdiction. He rejected that argument, and found, for various reasons, that those other cases were neither binding nor of assistance to him.
This case finally provides a binding authority on what has been, for many years, a moot point in party wall law. The unfortunate practical consequence of the decision for adjoining owners is that they will now be forced to pursue remedies at common law in the County Court or High Court – whether by way of injunction or damages – which will prove more expensive, both in terms of time and money, than if party wall surveyors’ jurisdiction had been held to cover situations such as arose in this case.
A full copy of the judgment can be found here.