⚖️ Power & Kyson v Shah (County Court & High Court): The Chimney Breast Paradox

📌 Introduction

The case of Power & Kyson v Shah has become one of the most troubling examples of judicial reasoning under the Party Wall etc. Act 1996. Long before the Court of Appeal’s controversial ruling, the County Court and later the High Court (HHJ Eyre QC) revealed contradictions that undermine the purpose of the Act.

At its core, the case involved a Building Owner (Shah) who removed a chimney breast on a party wall without serving notice. The facts demonstrate how the Act ought to have applied, yet the courts denied its operation.

🏚️ Chronology of Events

1. When the Act applies

   • The Act applies whenever the lands of two different owners adjoin (s20).

   • Here, Shah and the Adjoining Owner (AO) shared a party wall.

2. Notifiable works carried out

   • Shah removed a chimney breast — expressly a notifiable work under s2(2)(g).

3. Damage caused

   • During the removal, the adjoining property suffered bulging plaster and large vertical/horizontal cracks in a room that had been replastered and redecorated just a year earlier.

4. Dispute arises

   • The AO raised the matter with Shah. He refused to address it.

   • Under s10(1), this created a dispute “in respect of any matter connected with any work to which this Act relates.”

   • Both the work (chimney breast removal) and the damage were directly connected to the Act.

5. Surveyors appointed

   • The AO appointed Lee Kyson (LK) as their surveyor.

   • LK wrote to Shah quoting s10(4), advising him to appoint a surveyor.

6. Shah refuses to respond

   • Shah ignored LK’s letter and refused to engage.

7. Appointment under s10(4)(b)

   • With no response, LK appointed Power as surveyor on behalf of Shah.

8. Inspection and findings

   • LK and Power jointly inspected the damage.

   • Both, being plasterers by trade, were in no doubt the damage was caused by lateral impact during Shah’s chimney breast removal.

9. Award made

   • With Shah continuing to refuse to engage, LK and Power made an Award compensating the AO for the damage.

⚔️ The Courts’ Approach

Despite these facts:

• The lands adjoined (s20).

• Shah carried out notifiable works (s2(2)(g)).

• Shah caused damage (s7(2)).

• A dispute had arisen (s10(1)).

• Surveyors were properly appointed (s10(4)(b)).

• An Award was validly made.

Both the County Court and High Court held that because no notice was served, Shah was not “desirous of exercising rights under the Act.” despite exercising a right under the Act. Therefore, the Act was not engaged, and the surveyors had no jurisdiction.

🔍 The “Relates” Paradox

Section 10(1) provides for disputes “in respect of any matter connected with any work to which this Act relates.”

• Work: Chimney breast removal under s2(2)(g) = work to which the Act relates.

• Damage: Compensation for damage under s7(2) = matter connected with such work.

Both the removal and the damage “relate” to the Act. Yet the courts imposed a gloss: “relates only if notice is served.”

This is the Relates Paradox — Parliament’s broad words were narrowed into ineffectiveness, stripping the AO of protection.

📜 The “Shall” Paradox

The Act is framed in mandatory terms:

• s3(1): BO shall serve notice.

• s5(1): AO shall respond.

• s7(2): BO shall compensate for damage.

• s10(1): Parties shall appoint surveyors when a dispute arises.

By treating Shah’s duty to serve notice as optional, the courts reduced the most fundamental “shall” to “may.” This undermines the force of every other “shall” in the Act, making nonsense of Parliament’s intent.

This is the Shall Paradox — judicial disregard for one “shall” destabilises them all.

📖 The Statutory Logic the Courts Ignored

1. Notifiable Works as Statutory Rights

   • Section 2(2)(g) gives the BO the right “to cut away from a party wall any chimney breast or projections.”

   • By exercising this right, Shah must have been “desirous of exercising rights under the Act.”

   • The court’s suggestion that he was not “desirous” contradicts the very nature of what he did.

2. Obligation to Make Good (s2(5))

   • Any right under s2(2)(f), (g), or (h) is exercisable “subject to making good all damage occasioned by the work to the adjoining premises or to their internal furnishings and decorations.”

   • Shah’s right to remove the chimney breast was inseparable from his duty to make good.

3. Strict Duty to Compensate (s7(2))

   • The BO “shall compensate” the AO for any loss or damage caused by works.

   • This was not optional. Shah caused damage and therefore triggered this statutory duty.

4. AO’s Right to Money Instead of Making Good (s11(8))

   • Where the BO is required to make good, the AO has the right to require expenses to be determined under s10 and paid instead of repairs.

   • In this case, the AO sought compensation — exactly what s11(8) provides for.

👉 Therefore:

• Shah carried out notifiable works (s2(2)(g));

• He caused damage (s7(2));

• He was required to make good (s2(5));

• The AO was entitled to compensation assessed under s10 (s11(8)).

By statute, this chain of obligations and rights is automatic once the lands adjoin. The courts’ refusal to recognise it makes nonsense of the legislative scheme.

🗺️ When the Act Applies

• The Act applies when lands of different owners adjoin (s20).

• Here, they plainly did.

• Once adjoining lands exist, any notifiable works (s1, s2, s6) trigger notice requirements.

• Failure to serve notice is a breach of statutory duty — not a way to avoid the statute altogether.

📜 Conclusion

The facts in Power & Kyson v Shah show why the Act should have applied:

• Shah carried out notifiable works under s2(2)(g).

• He caused damage while doing so.

• The AO raised the matter, creating a dispute directly connected to the works and damage.

• The AO appointed Kyson; Shah failed to respond; Power was appointed under s10(4)(b).

• Both surveyors, as plasterers, confirmed the cause of damage.

• An Award was made compensating the AO.

Despite this, the CC and HC held the Act was never engaged. This produced two paradoxes:

• Relates Paradox: Works and damage “relating” to the Act treated as if they did not.

• Shall Paradox: The BO’s duty to serve notice downgraded from mandatory to optional, undermining every other “shall” in the Act.

The result: the more blatantly a BO breaches the Act, the less protection an AO receives — the very opposite of what Parliament intended.