⚖️ Power v Shah: A Contradiction at the Heart of Party Wall Jurisdiction?

👤 Author: Lee Kyson
🛠️ Affiliation: Party Wall Surveyor; Appellant in Power v Shah
📅 Date: August 2025

🧾 Abstract

The Court of Appeal’s (Lewison LJ; Phillips LJ; Andrews LJ) decision in Power v Shah [2023] EWCA Civ 239 has introduced a doctrinal inconsistency into the interpretation of the Party Wall etc. Act 1996. By invoking the London Building Acts (Amendment) Act 1939 to justify a restrictive view of notice requirements — while ignoring the broader jurisdictional scheme of the 1996 Act and recent judgments such as Bridgend v Earlsmead and Crowley v Rushmoor — the Court has destabilised long-standing practice and undermines the Act’s statutory purpose. This article critically examines the Court’s reasoning and argues that its selective reliance on legislative history has led to a contradiction that must be addressed to preserve the integrity of party wall dispute resolution.

🔑 Keywords

Party Wall etc. Act 1996; Power v Shah; jurisdiction; notice; London Building Acts 1939; surveyor powers; statutory interpretation; dispute resolution; Lewison LJ; Phillips LJ; Andrews LJ.

1. 🏛️ Introduction

The Party Wall etc. Act 1996 (“the 1996 Act”) provides a statutory framework for resolving disputes between building owners and adjoining owners arising from notifiable works. Central to its operation is the requirement to serve notice under Section 3, which triggers the appointment of surveyors under Section 10. However, in Power v Shah, the Court of Appeal held that the failure to serve notice deprived surveyors of jurisdiction — even though notifiable works were carried out and damage occurred.

2. ⚖️ The “No Notice, No Jurisdiction” Doctrine

The Court adopted a strict interpretation, holding that jurisdiction under the 1996 Act is contingent upon the service of a valid notice. Without such notice, any appointment of surveyors and subsequent award is deemed void ab initio. To justify this position, the Court relied heavily on the London Building Acts (Amendment) Act 1939 — suggesting the 1996 Act was designed to replicate its procedural rigor.

3. 🧩 Selective Reliance on the 1939 Act — and the Fall of Parfitt

The Court’s invocation of the 1939 Act is selective and doctrinally inconsistent. In Power v Shah, the Court embraced the 1939 principle that a “dispute” under the Act only arises once a notice is served — thereby justifying a narrow interpretation of surveyor jurisdiction.

But under the same 1939 framework, surveyors enjoyed continuing powers: they could issue supplemental awards, deal with consequential disputes, and resolve post-award matters arising from the same works. Jurisdiction did not vanish with the first award; it adapted to the evolving facts.

Yet in Park Lane Holdings Inc v Saidco (Unreported, 2021), HHJ Parfitt adopted the opposite view: that once an award is served, surveyors’ jurisdiction ends — and a new appointment must be made if fresh issues arise. This created the now-familiar “single dispute only” logic that significantly narrowed surveyor functions under the 1996 Act.

This presents a stark contradiction. If the Court of Appeal in Power v Shah is correct in saying the 1996 Act mirrors the 1939 Act in requiring notice to trigger jurisdiction, then it must also accept that post-award flexibility is part of that inherited logic. The 1939 Act cannot be selectively imported to restrict jurisdiction while ignoring the very features that made it practical and durable.

It follows that HHJ Parfitt’s ruling must now be regarded as wrongly decided, because it contradicts the legislative heritage that the Court of Appeal relied upon. In effect, Power v Shah undermines the foundations of Park Lane v Saidco by re-anchoring jurisdiction in the 1939 Act — where post-award powers clearly existed.

4. 🛠️ Implications for Practice

Surveyors must now adhere to a rigid notice-based threshold while being denied the flexibility to resolve practical or post-award issues — even in cases of proven damage. This is not just technically problematic, but practically harmful, especially where minor disputes escalate into unaffordable litigation.

The result is a statutory regime that protects only those who comply — and paradoxically also those who strategically refuse to comply — while denying surveyors the flexibility that even the 1939 Act permitted, and leaving practitioners unable to act on post-award issues without triggering a fresh appointment and jurisdictional uncertainty.

The Court’s reliance on historic case law from the 1939 Act to support a restrictive interpretation — while ignoring consistent judicial developments under the 1996 Act — compounds this doctrinal inconsistency. The selective use of legislative history distorts Parliament’s intent and fractures the legislative continuity that underpins party wall law.

Further exacerbating the issue is the Court’s suggestion that Adjoining Owners (AOs) can pursue private remedies in tort — such as nuisance or trespass — as an alternative to the statutory process. This presumes a level of access to legal resources that most homeowners simply do not have. Party wall disputes typically involve neighbouring terraced or semi-detached property owners with limited means. To suggest they must now sue in tort — after being denied the procedural protections of the 1996 Act — is to effectively deprive them of any remedy at all. It turns the Act into a hollow framework: enforceable only by those who voluntarily comply, and irrelevant to those who refuse.

5. 🧭 Bridgend v Earlsmead: A Correct Interpretation Ignored?

The High Court’s decision in Bridgend CBC v Earlsmead Ltd provides a more faithful interpretation of the Act. At §28:

“It is thus for the adjoining owner... first to exercise and extinguish their remedies provided by the 1996 Act before resorting to court proceedings… The very fact that the 1996 Act provides for a specific mechanism… is of itself an indication that Parliament did not intend to create a separate private law action.”

The judgment invokes Clerk & Lindsell on Torts and Lonrho v Shell (No. 2), applying the principle that:

"... where an Act creates an obligation and enforces the performance in a specified manner that performance cannot be enforced in any other manner..."
— Lord Diplock, Lonrho Ltd v Shell Petroleum Co Ltd (No. 2) [1982] AC 173 at 185

This reasoning directly contradicts the doctrine in Power v Shah and shows how the Act can — and should — apply even when a notice has not been served.

6. 🔍 Crowley v Rushmoor: Ignored or Reframed?

Another overlooked authority is Mr Timothy Crowley t/a Crowley Civil Engineers v Rushmoor BC [2009] EWHC 2237 (TCC). At §§103–105, HHJ David Thornton QC held:

“It is not... a pre-condition to the operation of the 1996 Act that a notice must be served.”
“To say otherwise would reward a building owner who deliberately fails to comply with his obligations under the Act.”

This directly contradicts the core of Power v Shah. Yet the Court of Appeal failed to engage with Crowley, choosing instead to ignore a decade of settled legal interpretation that reflected the protective and purposive nature of the 1996 Act.

7. ⚖️ Nutt v Podger and the Injunction Paradox

In Nutt v Podger (unreported), HHJ Parfitt adopted the “no notice — no Act” logic — yet imposed a £750 penalty for breach of the Act. This contradiction raises a fundamental question:

If the Act does not apply, how can a court impose penalties for breaching it?

Even more alarming: courts have issued injunctions for decades to stop works when notice was not served — asserting jurisdiction under the Act. If Power v Shah is correct, those injunctions were granted without jurisdiction. This is not just inconsistent. It renders decades of enforcement retrospectively unlawful — a truly untenable result.

8. 🧾 Judicial Recognition of the Paradox

These doctrinal concerns are not speculative. They were formally recognised by Lady Justice Andrews DBE when she granted permission to appeal under CPR 52.7. In her written reasons dated 2 August 2022, she stated:

“It is arguable, with a real prospect of success, that the Judge erred in finding that the question whether a dispute has arisen under the Act turns on whether the building owner has invoked the Act, rather than on whether the works fall within s.2(2).”

And further:

“The upshot... is that a person can unilaterally prevent the statutory dispute resolution process from incepting, merely by failing to serve a notice... That may well turn out to be right… but if Parliament’s purpose was to reduce litigation… that purpose would be easily frustrated.”

This directly echoes the contradictions raised in Crowley, Bridgend, and decades of practice: if compliance with the Act is what triggers its operation, then non-compliance becomes a legal shield — not a breach. A result plainly contrary to its legislative purpose.

9. ✅ Conclusion: Parliament’s Purpose Undone?

As shown in Bridgend, Crowley, and long-standing practice, the Act’s jurisdiction should attach to the nature of the works, not the procedural compliance of the party proposing them. That position not only reflects the wording of ss.1(1), 2(1), and 6(1) — which all state the Act “shall have effect” — but also aligns with its core legislative objective: to reduce litigation and protect property owners.

If the courts remain unwilling to resolve this contradiction, then Parliament must act. A simple amendment — clarifying that surveyor jurisdiction exists where works fall within the scope of s.1, s.2 or s.6 regardless of notice — would restore the Act to its intended protective function.

Until then, Power v Shah leaves party wall law suspended in paradox — a statutory regime defeated by its own formality.

📚 References

• Power v Shah [2023] EWCA Civ 239

• London Building Acts (Amendment) Act 1939, Part VI

• Bridgend CBC v Earlsmead Ltd, High Court, 2021, §28

• Mr Timothy Crowley t/a Crowley Civil Engineers v Rushmoor BC [2009] EWHC 2237 (TCC), §§103–105

• Nutt v Podger (Unreported, Central London County Court)

• Lonrho Ltd v Shell Petroleum Co Ltd (No. 2) [1982] AC 173, per Lord Diplock at 185

• Clerk & Lindsell on Torts, 21st ed. (2014), Ch. 9, §§9.01–9.13

• Park Lane Holdings Inc v Saidco Ltd (Unreported, Central London County Court, 2021)

• Sealed Order, Court of Appeal (CA-2022-000481), Andrews LJ, 2 August 2022