The High Court handed down its judgement on Friday 11th February 2022. Rather disappointingly the appeal was dismissed. Personally I do not agree with the judgement and cannot see how a building owner, apparently not wishing to exercise his rights under the Act but does so anyway can decide that the Act doesn’t apply.
I have had many phone calls from people from all over the country waiting for this decision in the hope that the appeal would be allowed. Unfortunately most of these people will now have to live with the damage caused by their neighbouring building owner who caused damage and had refused to comply with the Act, simply because they do not have the funds to pursue the matter.
There is much reference to the surveyors / adjoining owner ‘unilaterally imposing the Act on the building owner’, despite the fact that the Act is already in force and places obligations on the building owner the moment he wishes to do notifiable works and there is an adjoining owner. I expressed my view to the court that the Act was already in force and as surveyors we merely applied the Act, we did not unilaterally impose it on the building owner but this seems to have been glossed over.
I find the ‘no notice - no Act’ scenario rather difficult to accept as it is the Act that places obligations upon the building owner to serve notice, therefore the Act is in force and is to be complied with.
There is no mechanism that disengages the Act if the building owner does not serve notice.
