⚖️ Party Wall Jurisdiction: Judicial Contradictions and the Erosion of Statutory Protection

🧭 Introduction

The Party Wall etc. Act 1996 was introduced to protect adjoining owners from the risks of neighbouring construction works and to provide a clear, impartial framework for resolving disputes. Yet recent case law—particularly Power v Shah—has exposed a troubling contradiction in how the Act is interpreted and applied. This article examines the inconsistency in judicial reasoning, especially across multiple rulings by HHJ Parfitt, and considers how these decisions undermine the protective purpose of the Act as expressed in Hansard.

🚧 Power v Shah: A Procedural Straitjacket

In Power v Shah [2023] EWCA Civ 239, the Court of Appeal upheld HHJ Parfitt’s ruling that surveyors lack jurisdiction under the Act where no notice has been served. Despite the fact that notifiable works were carried out and damage occurred, the absence of a formal notice was deemed fatal. This “no notice, no Act” doctrine effectively rewards non-compliance and leaves adjoining owners without statutory recourse.

🔄 Contradictions in HHJ Parfitt’s Own Rulings

What makes Power v Shah especially problematic is its inconsistency with HHJ Parfitt’s earlier and later decisions:

  • In Yamin v Edwards, Power & Kyson (2019), he upheld a surveyors’ award despite no notice being served, finding no agreement to exclude the Act and treating it as engaged by default.

  • In Shah v Kyson & Power (2020), he reversed course, voiding the award entirely—despite similarly no notice and no agreement to exclude the Act.

  • In Park Lane Holdings v Khan (2021), he again adopted a permissive stance, allowing surveyors’ jurisdiction to stand despite procedural irregularities.

  • In Nutt v Podger (2021), he awarded £750 in damages for breach of the Act, even though no notice had been served—recognising the adjoining owner had been “wrongfully deprived of the protections of the 1996 Act.”

These decisions, taken together, reveal a judicial inconsistency that leaves surveyors and adjoining owners navigating a legal framework that is anything but clear.

🏛️ Hansard: The Legislative Intent Ignored

Parliamentary debates recorded in Hansard during the passage of the Act make its protective purpose unmistakable:

  • Lord Lytton described the Act as “a framework for preventing and resolving disputes... intended to protect the interests of both building owners and adjoining owners.”

  • Lord Lucas, speaking for the Government, stated: “The Bill places the onus on the building owner to serve notice and comply with the procedures. It is not for the adjoining owner to chase compliance.”

These statements directly contradict the logic of Power v Shah, which shifts the burden onto the adjoining owner and denies them protection when the building owner fails to comply.

⚖️ Implications for Practice

Surveyors are now faced with a dilemma: should they decline appointments where no notice has been served, fearing jurisdictional challenge? Or should they act to protect adjoining owners, relying on the broader interpretations seen in Yamin, Park Lane, and Nutt?

The lack of judicial consistency creates risk, confusion, and undermines the very purpose of the Act. Adjoining owners are left exposed, and building owners may exploit the loophole to avoid scrutiny.

📝 Conclusion

The Party Wall etc. Act 1996 was designed to protect, not punish. The “no notice, no Act” doctrine introduced in Power v Shah—and contradicted by other rulings from the same judge—frustrates the statutory scheme and invites reform. Whether through legislative amendment or authoritative clarification by higher courts, the profession needs certainty. Until then, surveyors must tread carefully, armed with both legal insight and a firm grasp of the Act’s original purpose.