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

Author: Lee Kyson
Affiliation: Lee Kyson was a party to the matter and is a Party Wall Surveyor
Date: August 2025

Abstract

The Court of Appeal’s 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 disregarding the broader jurisdictional powers that the 1939 framework conferred, the judgment creates uncertainty for practitioners and undermines the coherence of the statutory scheme. This article critically examines the Court’s reasoning and argues that the 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.

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 occurred¹.

This article challenges the Court’s reasoning, highlighting the contradiction between its reliance on the London Building Acts (Amendment) Act 1939 (“the 1939 Act”) and its rejection of the broader jurisdictional powers that the 1939 framework conferred. The implications for practitioners are significant, as the decision risks undermining the effectiveness of the 1996 Act.

2. The “No Notice, No Jurisdiction” Doctrine

In Power v Shah, the Court adopted a strict interpretation of the statutory scheme, holding that jurisdiction under the 1996 Act is contingent upon the service of a valid notice². Without such notice, any appointment of surveyors and subsequent award is deemed void ab initio.

To support this position, the Court referred to the 1939 Act, suggesting that the 1996 Act was intended to replicate its procedural rigor³. Under the 1939 framework, notice was indeed a jurisdictional gateway—but it was embedded within a more flexible and expansive system of dispute resolution.

3. Selective Reliance on the 1939 Act

The Court’s reliance on the 1939 Act is selective and problematic. While it invoked the Act to justify a restrictive view of notice requirements, it failed to acknowledge the broader powers that surveyors enjoyed under the same framework. Under the 1939 Act, surveyors retained jurisdiction beyond the service of an award, enabling them to address consequential matters, issue supplemental awards, and resolve ongoing disputes⁴.

This stands in contrast to HHJ Parfitt’s interpretation in Park Lane Holdings Inc & Anr v Saidco & Ors (County Court at Central London, 19 July 2021) (Unreported, where surveyors’ powers were held to be extinguished upon the service of an award unless a new dispute was properly constituted⁵. The result is a doctrinal inconsistency: the courts invoke the 1939 Act to restrict jurisdiction but reject its expansive view of surveyor authority. Falcon Chambers summary

Such selective reliance undermines the coherence of the statutory scheme and creates uncertainty for practitioners. If the 1939 Act is to be used as interpretive guidance, its full context—including the jurisdictional flexibility it provided—must be acknowledged.

4. Implications for Practice

The contradiction at the heart of Power v Shah has practical consequences. Surveyors are now expected to adhere to a rigid notice-based jurisdictional threshold, while being denied the flexibility to resolve issues that naturally arise after an award is served. This procedural rigidity risks leaving genuine disputes unresolved unless the statutory process is restarted.

For practitioners, the decision reinforces the importance of meticulous compliance with notice requirements. However, it also highlights the limitations of the current judicial interpretation, which may frustrate the Act’s purpose of facilitating efficient and fair dispute resolution.

5. Conclusion

The Party Wall etc. Act 1996 was designed to protect adjoining owners and promote resolution—not to reward non-compliance or obstruct redress. The Court’s selective reliance on the 1939 Act in Power v Shah introduces a contradiction that undermines the statutory scheme. A more coherent approach is needed—one that recognises both the procedural safeguards and the jurisdictional flexibility that underpin effective dispute resolution.

References

  1. Power v Shah [2023] EWCA Civ 239.

  2. Ibid., paras 42–45.

  3. London Building Acts (Amendment) Act 1939, Part VI.

  4. Gyle-Thompson v Wall Street (Properties) Ltd [1974] 1 WLR 123.

  5. Park Lane Holdings Inc v Saidco Ltd [2021] EWHC 3503 (Ch), paras 31–36.