Arguments Already Made

Introduction

Much of what follows is not a new argument against Power and another v Shah [2023] EWCA Civ 239. It is a record of arguments that were already made — to the County Court in 2020, and again on appeal to the High Court in 2020–2021 — and a question about how fully they were engaged with by the time the matter reached the Court of Appeal. Five points in particular are worth setting out.

1. The Circularity, Restated

The clearest single formulation of the circularity at the heart of “no notice, no Act” doesn’t come from academic commentary. It comes from a witness statement filed in the original proceedings, responding directly to the submission that no notice meant no jurisdiction:

“There is no legal basis for the argument put forward… and as such is paradoxical within itself as the notice provisions are a subsection of the Act; the Act is not a subsection of a ‘notice provision.’”

The point is structural, not rhetorical. Section 3 — the notice provision — sits inside the Act, as one obligation among many placed on a building owner. If section 3 compliance were itself the precondition for the Act’s existence, the relationship would run the other way: the Act would be a creature of its own subsection, rather than the subsection being a creature of the Act. Nothing in the statute’s drafting supports that inversion.

2. Rights and Obligations — The Sequence in Section 3

The circularity becomes clearer when sections 2, 3 and 20 are read in their statutory order.

Section 2(2) begins by providing that a building owner “shall have the following rights.” Section 3(1) then provides:

“Before exercising any right conferred on him by section 2 a building owner shall serve on any adjoining owner a notice…”

That sentence contains three distinct elements:

1. a person already described as a building owner;
2. a right already conferred by section 2; and
3. a separate obligation to serve notice before exercising that right.

The sequence matters. Section 3 does not say that service of notice creates the building owner or confers the section 2 right. It addresses a building owner and a right already conferred, then regulates the manner in which that right may lawfully be exercised.

That distinction bears directly on section 20. A building owner is defined as an owner of land who is “desirous of exercising rights under this Act.” The physical operations identified by the Act — including cutting away a projecting chimney breast under section 2(2)(g) — are described as rights. Service of notice is not one of those rights. It is an obligation governing their exercise.

The practical effect of Shah is therefore open to a focused textual objection. Parliament made status depend on the owner’s desire to exercise statutory rights; the Court’s construction makes status, or at least access to the statutory scheme, depend on the owner’s invocation of or compliance with the obligation regulating those rights. It would be too strong to say that the Court literally rewrote section 20. But the construction risks a functional substitution of obligations for rights within a definition that uses only the latter.

The circularity can be stated simply:

1. section 3 imposes the notice obligation because the person is a building owner proposing to exercise a section 2 right;
2. he fails to perform that obligation; but
3. the failure is then treated as meaning that he was not acting as a building owner exercising a statutory right in the first place.

On the alternative reading, non-service does not make the right or the statutory status disappear. It makes the attempted exercise unauthorised or unlawful. That preserves the ordinary distinction between possessing a right and complying with the conditions governing its exercise. It also avoids allowing breach of an obligation to erase the very status upon which that obligation depends.

Roadrunner Properties Ltd v Dean [2003] EWCA Civ 1816 provides useful, though limited, corroboration. No section 3 notice had been served, yet Chadwick LJ described Mr Dean as “the building owner in this context” and later referred to the evidential consequences of the building owner’s failure to comply with his statutory obligations. The court treated him as a building owner in breach, not as an owner who never acquired that status. Roadrunner did not decide whether section 10 can be engaged without notice, so it is not direct authority for that proposition. Its significance is narrower: it shows that the statutory label and the statutory obligation can survive non-service.

The terminology used in the Shah proceedings points in the same direction. Mr Shah was repeatedly called the “building owner” even while the courts recorded that no notice had been served. Labels cannot create jurisdiction, and some of that usage may be no more than convenient shorthand. But it is consistent with the more natural statutory sequence: the owner falls within the description, the notice duty attaches, and non-compliance is a breach rather than an erasure of status.

There is a fair answer. “Rights under this Act” can be read as meaning rights consciously invoked and lawfully exercised through the statutory procedure, rather than merely a desire to perform the same physical operation. That is close to the reasoning ultimately adopted in Shah. The difficulty is that section 3 itself speaks of a right already “conferred” and a building owner who must serve notice before exercising it. The alternative construction therefore arises from the grammar and sequence of the Act, not merely from its policy.

This point does not, by itself, prove that the surveyors in Shah had jurisdiction. Section 10 must still be satisfied and the work must objectively fall within the Act. It does, however, remove a central premise of “no notice, no Act”: the assumption that absence of notice necessarily means there was no building owner, no statutory right and no statutory subject matter capable of generating an actual dispute.

3. Actual Dispute, Deemed Dispute — Two Different Gateways

Section 10(1) provides that the dispute-resolution machinery applies “where a dispute arises or is deemed to have arisen.” Those are two different triggers, and the distinction matters more than it has been given credit for.

A deemed dispute arises under section 5, where a party structure notice or counter-notice has been served and the recipient fails to respond within 14 days. It is a statutory substitute for the adjoining owner’s missing response, and therefore plainly depends on notice having been given. That does not mean there is no adjoining owner; it means there has been no affirmative participation by that adjoining owner from which an actual disagreement can be identified.

An actual dispute is different. It exists where the owners have communicated opposing positions about a matter connected with work to which the Act relates. It requires no statutory fiction because the disagreement is tangible. On this reading, the absence of notice rules out a deemed dispute under section 5, but says nothing about whether an actual dispute can engage section 10(1) on its own terms. As was argued on appeal in 2021: “The surveyor’s jurisdiction depends upon the notifiability of the works in question, not the service of a notice in respect of the same.”

That distinction doesn’t appear to have been engaged with directly in Shah — the judgment treats “dispute” under section 10(1) as a single, undifferentiated concept requiring notice throughout, rather than addressing whether the actual/deemed split in the section’s own wording leaves room for a notice-independent route in.

Mr Shah’s position was not simply “I served no notice.” He denied the factual premise for needing to: his case was that his works had not involved the chimney breast, because it had already been removed by a previous owner. The adjoining owners’ case was the opposite — that his works included removing it, within section 2(2)(g), and that the removal caused the damage to their property. This was a live, two-sided factual dispute of the ordinary kind, not one manufactured by a party’s failure to respond to a notice within 14 days under section 5. The Court of Appeal records it, and records that it was never resolved, at any level:

“The adjoining owners of 36 Bull Lane, Mr and Mrs Panayiotou… maintained that the works, including an alleged removal of a chimney breast, were within the ambit of the Act. They said that they had suffered damage in consequence of those works. Both claims are denied by Mr Shah and, because of the course that this case has taken, the underlying facts remain to be determined.”

The factual disagreement is set out in detail in the original February 2020 skeleton, with a real evidential basis on each side: a sales brochure and a letter from the previous owner said to show the chimney breast was still in place when the property changed hands, against photographs of debris consistent with its removal, and Mr Shah’s refusal to allow either surveyor to inspect. The chimney breast question isn’t a side issue — it bears directly on the section 10(1) jurisdictional language itself. Removing a projecting chimney breast is expressly within section 2(2)(g); if that work occurred, it was notifiable work “to which this Act relates,” and the jurisdictional question turns on that fact, not merely on how much compensation should follow once it’s established. It’s worth being precise here: it isn’t that any damage-causing act by a building owner would have been enough to found jurisdiction — foreseeability and damage alone don’t supply the statutory connection. It’s specifically that chimney breast removal is enumerated in section 2(2)(g), which is what potentially supplied it.

Neither side’s bare assertion should settle that kind of question unilaterally. An adjoining owner can’t manufacture statutory jurisdiction simply by alleging notifiable work occurred. But it doesn’t follow that a building owner should be able to defeat it simply by denying that it did. The surveyors considered the available evidence and reached a finding in the Award that the work had occurred and caused damage — a finding Shah set aside not by disagreeing with it, but by holding it legally irrelevant.

That is the real difficulty, and it’s worth stating precisely rather than overstating. The difficulty is not that Mr Shah’s denial was accepted as true — it wasn’t; it was never adjudicated by any court, at any stage. The difficulty is that the absence of notice was held to exclude section 10 jurisdiction before anyone could determine, within the statutory process, whether notice had actually been required. Even assuming the surveyors were factually correct that Mr Shah had cut away a projecting chimney breast within section 2(2)(g), their jurisdiction still failed — because he had not first served the very notice which that finding would establish he ought to have served. His denial didn’t prove the Act inapplicable. It exposed an actual dispute about the Act’s application which, following Shah, section 10 was powerless to resolve, regardless of which side turned out to be right.

The point connects to the building-owner argument developed elsewhere in this series. The premise underlying Shah is that Mr Shah was not acting as a building owner exercising rights under the Act at all. But the unresolved factual dispute was precisely whether he had physically carried out the act section 2(2)(g) itself identifies — cutting away a projecting chimney breast. The more strongly the adjoining owners’ factual case is put, the harder it becomes to reconcile with a conclusion that he was never seeking to exercise a statutory right in the first place.

Strip away everything else and the institutional problem underneath this is a hard one, independent of who was actually right on the facts: how does a statutory scheme determine whether notifiable works occurred, if the existence of those works is itself what’s in dispute? Shah’s answer is that it doesn’t try — the absence of notice ends the inquiry before that question can be reached. Whether that’s the right answer is a separate question from whether the underlying facts support it. On the record, they were never tested at all.

4. Schmid v Hulls: Considered, Not Overlooked

Shah and the judgments that preceded it treat Schmid v Hulls (HHJ Luba QC, Central London County Court, 4 February 2016) as weak authority — obiter, and reached without the benefit of full argument. Read in fuller quotation, the case is harder to dismiss on that basis.

The submission Luba QC was rejecting was that surveyors have no power to deal with matters “in relation to completed works,” relying on the narrow, notice-tied jurisdiction recognised in Woodhouse. His answer was direct:

“Even if I had found that the statutory notice was unanswerably invalid, I would have found that there was jurisdiction under the terms of the new 1996 statute… Nothing… could have been clearer than the content and header of section 10 which is ‘Resolution of Disputes.’ That section, in very broad terms, gives jurisdiction for the resolution of disputes: ‘in respect of any matter connected with any work to which this Act relates.’”

Luba QC was not simply assuming jurisdiction existed — he was answering, squarely, the argument that an invalid notice should defeat it, and rejecting that argument on the wording of section 10 itself. Whether that reasoning survives Shah is a different question from whether it was properly considered in the first place. On this evidence, it was.

5. Louis v Sadiq: A Right Denied to One Party, Not Both

Shah leans on Louis v Sadiq as authority for treating notice as fundamental to the Act’s operation generally. But Louis v Sadiq’s actual holding is narrower than that, and the narrowness matters. Evans LJ held that a building owner who has not served notice cannot rely on the Act as a defence to common law liability — he cannot claim the benefit of a statutory scheme he has not complied with. That is a different proposition from saying an adjoining owner is barred from invoking the Act’s dispute-resolution machinery in the same circumstances. Louis v Sadiq addresses what a defaulting building owner can claim for himself; it does not address what an innocent adjoining owner can do in response. Treating the case as authority for the second proposition, when it only decided the first, extends the holding beyond what was actually determined.

Conclusion

None of these points is offered as a knock-down answer to Shah on its own. The rights/obligations argument may be met by saying that a “right under the Act” exists only where the owner invokes the statutory procedure; the actual/deemed dispute distinction may yet be met by a response the Court of Appeal simply did not need to spell out; the chimney breast dispute shows the practical consequence of that construction rather than proving it wrong; Schmid’s reasoning may not survive scrutiny even once its full context is restored; and the Louis v Sadiq distinction between a defaulting building owner and an innocent adjoining owner may collapse once the wider policy of the Act is considered. Each is a fair rejoinder, and a complete account of the debate has to leave room for it.

The chimney breast dispute in particular deserves a precise framing. It isn’t that the courts overlooked an unresolved fact — they didn’t; the Court of Appeal recorded plainly that “the underlying facts remain to be determined.” The point is narrower and, for that reason, harder to dismiss: the jurisdictional rule in Shah was developed in a case where the very fact said to require notice — whether notifiable work occurred at all — was never adjudicated by any court, because the rule the Court of Appeal adopted made that fact legally unnecessary to decide. That is a fair and available choice of legal construction. It is also worth registering plainly as what happened, before the rule is read as settled, general guidance detached from the facts it was actually decided against.

What the appeal papers do show, taken together, is that the case against “no notice, no Act” was not invented after the fact. The structural circularity, the actual/deemed dispute point, the chimney breast dispute it illustrates, the Schmid material and the Louis v Sadiq distinction were all before the courts by 2021 — argued in the proceedings, not reconstructed years later from first principles. The rights/obligations analysis above isolates the sharpest textual form of that existing structural objection. Whatever view one takes of its ultimate force, the contrary case was live at the time and deserves to be answered in its strongest form.