Given the fact that carrying out works to a wall which is on, or near a boundary or which may be a shared wall carries huge potential to damage and affect neighbouring properties, it is perhaps surprising that prior to 1996 the only legislation governing the ability to carry out works related to London. Since 1996, the Party Wall Act has governed how such works may be carried out, and provides a framework to enable work to be done as well as providing protection for neighbours affected.
Under the Act, any person proposing to do work which is caught by the Act must first serve a notice. The neighbour may then serve a counter notice. Unless they can agree the works to be done, the Act provides a procedure for the appointment of a Party Wall Surveyor (or more than one surveyor if the parties so choose). The surveyor will then make an award which determines what work can be done and how. The surveyor can also make awards of compensation where loss or damage results.
So what happens if you ignore this procedure? The owner carrying out the works does so without the authority provided by the Act. In principle at least this is potentially a trespass unless the adjoining owner has agreed. What rights of action may an affected adjoining owner have?
In Bridgland v Earlsmead Estates Ltd [2015] EWHC B8, EE had owned a substantial piece of land upon which were situated factory units. One of the units abutted the flank wall of B’s property. When it was demolished, the flank wall of B’s property began to suffer damp.
B issued proceedings seeking compensation. EE sought to strike out two parts of the claim. The first was a claim that the failure to serve a notice before commencing works meant that B lost the opportunity to serve a counter notice requiring the works should be carried out in a specific way to avoid the damp arising.
The court struck this claim out on the basis that this was a misconception of the role of the counter notice procedure. The adjoining owner can use the notice to ask the building owner to carry out additional works to the party wall or party structure, but it is not a medium for objecting to the manner in which the Building Owner carries out the works he has planned. In particular, the adjoining owner cannot demand that works are done on the building owner’s own land.
The second claim was a claim for compensation under s7(1) of the Act. This section provides that a person carrying out works to which the Act relates must do so without causing “unnecessary inconvenience” to the adjoining owner. The court held that this section does not provide a separate cause of action for breach of statutory duty. Furthermore, it said that the dispute procedure in s10 of the Act should have been used. Hence this claim was struck out too.
Whist the case is a county court one, and the decision is not therefore binding on other courts, it is interesting from several perspectives:
- The court confirmed that the duties in the Act including the s7(1) duty not to cause unnecessary inconvenience arose without service of a notice. It operates to restrict the right to carry out works under s2 rather than to provide a potential action for breach of statutory duty.
- It also confirmed that the s10 dispute resolution procedure could be used (and therefore that a surveyor would have jurisdiction to make an award) despite the fact that no Party Wall Act notice had ever been served.
- It does not indicate that the adjoining owner would have no remedy at all; he or she can use the s10 procedure. Claims under s7(2) and for trespass or nuisance may also succeed.
