No Notice, No Act — But Why?
A critical examination of the historical and statutory reasoning in Power & Kyson v Shah, the significance of the 1939 Act, and the question of whether non-service necessarily excludes section 10.
The expression “no notice, no Act” has become a convenient summary of the decision in Power & Anor v Shah. But the phrase risks combining several legally distinct propositions.
There is no real controversy that an owner proposing work falling within the relevant provisions of the Party Wall etc. Act 1996 must comply with the applicable notice requirements.
The more difficult question is what follows if he does not.
Does non-service mean that the Building Owner has failed to comply with a mandatory statutory obligation and cannot obtain the statutory authority which compliance would have provided?
Or does the same omission have the additional jurisdictional consequence that an Adjoining Owner cannot invoke section 10 in respect of an actual dispute concerning the very works which generated that statutory obligation?
Failure to comply with an Act is not necessarily the same thing as the Act not applying.
1. The Question Actually Raised in Shah
At first instance Mr Shah's case was encapsulated in the expression:
“No notice, no Act.”
In fuller terms, his case was that notice was an essential gateway to the dispute-resolution machinery under section 10.
The contrary argument relied upon the breadth of section 10 itself. It applies where a dispute:
“arises or is deemed to have arisen”
between a Building Owner and an Adjoining Owner:
“in respect of any matter connected with any work to which this Act relates”.
The appellants' case was not that the notice provisions were optional.
A Building Owner's failure to perform the mandatory notice obligation does not necessarily answer the separate question of whether an Adjoining Owner can invoke section 10 once an actual dispute exists concerning work to which the Act relates.
2. Applicability Is Not the Same as Compliance
The shorthand “no notice, no Act” can suggest that notice itself determines whether the legislation applies.
That requires closer examination.
The Act identifies objective circumstances in which its substantive provisions operate. Sections 1, 2 and 6 are concerned with matters such as the location and ownership of land, party structures, building at the line of junction and prescribed excavation criteria.
Those facts necessarily exist before notice can be served.
Indeed, they must exist before the obligation to serve notice can arise.
Why should breach of the notice obligation also prevent an actual dispute concerning those same statutory works from engaging section 10?
Section 10 does not expressly state that consequence.
3. The 1939 Act and the Historical Premise
The Court of Appeal placed considerable weight upon the legislation which preceded the 1996 Act, particularly the London Building Acts (Amendment) Act 1939 and the authorities which considered it.
The historical proposition was essentially that the earlier statutory machinery was invoked by notice and that, until notice was served, the parties remained governed by their ordinary common-law rights.
That history was then used to support continuity under the 1996 Act.
But the wording of section 55 itself is not quite as straightforward as that proposition may suggest.
4. The Broad Opening Words of Section 55
Section 55 began by referring to a difference arising:
“in respect of any matter connected with any work to which this Part of this Act relates”.
At that level, the statutory description is tied to work to which the legislation relates.
It does not expressly say:
“work in respect of which notice has been served”.
That matters when section 55(i) itself is examined.
5. The Significance of “Or” in Section 55(i)
Section 55(i) provided:
“The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter which before the commencement of any work to which a notice under this Part of this Act relates or from time to time during the continuance of such work may be in dispute between the building owner and the adjoining owner.”
The sentence contains two temporal limbs joined by the disjunctive “or”.
📄 Limb One
A matter in dispute before commencement of:
“any work to which a notice under this Part of this Act relates”
The notice qualification is express.
🏗️ Limb Two
A matter in dispute:
“from time to time during the continuance of such work”
The notice qualification is not repeated.
What is the antecedent of “such work”?
The conventional construction is that “such work” refers to the entire immediately preceding expression:
“work to which a notice under this Part of this Act relates”.
On that interpretation both limbs remain notice-related.
That construction has grammatical force.
But it is still a construction.
The section had already introduced the broader concept of:
“work to which this Part of this Act relates”.
The question is therefore whether “such work” must necessarily import the whole notice-qualified phrase from the first limb, or whether in context it is capable of referring to the broader statutory work already identified by section 55.
Does “such work” necessarily mean “such notice-related work”, or is it capable of referring to “such work to which this Part of the Act relates”?
Why “or” matters
The significance of “or” is not that it automatically makes the second limb independent of notice.
Its significance is that Parliament chose to create two alternative situations rather than placing the notice qualification expressly over both.
If Parliament intended the notice qualification unquestionably to govern both limbs, it could readily have written:
“before the commencement of, or during the continuance of, any work to which a notice under this Part of this Act relates.”
It did not.
Instead the notice qualification appears expressly in the first limb, followed by the disjunctive “or” and the expression “such work”.
It does not prove that limb two was notice-independent. But neither does the statute expressly state that the notice qualification governs both limbs. That conclusion depends upon the interpretation given to “such work”.
6. “From Time to Time” and an Ongoing Jurisdiction
The words:
“from time to time during the continuance of such work”
are also noteworthy.
They contemplate disputes arising as the works progress and the surveyors dealing with matters from time to time.
That appears to describe an ongoing dispute-resolution function rather than merely the determination of the original disagreement following a notice.
Again, this does not prove that notice was unnecessary.
But it makes the historical structure more nuanced than the simple formula:
“No notice = no surveyor jurisdiction.”
7. Parliament Did Not Reproduce the 1939 Wording
The historical argument becomes more significant because Parliament did not reproduce the wording of section 55(i) when it enacted section 10 of the 1996 Act.
Section 10 instead provides:
“Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates…”
There is no express requirement in that jurisdictional formula that notice must first have been served.
Lewison LJ recognised that the wording had changed but rejected the submission that Parliament thereby intended the procedural change for which the appellants contended.
The notice prerequisite was therefore not derived from an express phrase in section 10. It was derived from the Court's construction of the statutory scheme as a whole, reinforced by history.
8. The Barras Principle and the Missing Words
Lewison LJ reinforced the historical approach by reference to the Barras principle.
That principle conventionally applies where Parliament re-enacts words or phrases which have already acquired a settled judicial meaning.
But Lewison LJ himself observed:
“Although this is not a question of a particular word or phrase…”
That qualification is important.
The relevant notice-linked wording of the predecessor legislation had not simply been carried forward.
What the Court carried forward was the historically understood method of invoking the statutory regime.
The relevant wording changed. The 1939 provision itself is open to textual analysis. Yet historical practice was relied upon to supply a jurisdictional condition which section 10 does not expressly state.
9. Eyre J and the Definition of “Building Owner”
The High Court supplied another route to the same result.
Eyre J placed particular weight upon the section 20 definition of a Building Owner:
“an owner of land who is desirous of exercising rights under this Act”.
Mr Shah had never purported to exercise statutory rights and maintained that the Act did not apply.
Eyre J treated that as supporting the conclusion that he could not readily be regarded as a Building Owner for the relevant purposes.
But this produces a further question.
Owner A
Knows the Act applies and intends to comply, but negligently begins work without serving notice.Owner B
Carries out identical work but wrongly believes the Act does not apply and never intends to invoke it.Under a pure notice-gateway analysis both are outside section 10.
Under a subjective “desirous” analysis, their statutory status may arguably differ.
10. Coulson LJ: Notice as the Structural Gateway
Coulson LJ placed notice squarely at the centre of the statutory scheme.
That is a coherent structural argument.
But it still leaves a linguistic distinction.
The fact that the Building Owner cannot lawfully exercise a section 2 right without notice does not by itself answer whether section 10 can resolve an actual dispute after the Building Owner has proceeded unlawfully without acquiring that right.
The Court of Appeal held that it cannot.
The question is whether that conclusion is expressly stated by the Act or supplied by construction.
11. Actual and Deemed Disputes
Section 10 uses two different formulations:
Actual dispute
A dispute which “arises”.Deemed dispute
A dispute which “is deemed to have arisen”.A deemed dispute naturally depends upon the procedural event which causes Parliament to deem it into existence.
An actual dispute is expressed differently.
Coulson LJ considered it unlikely that Parliament intended the two categories to possess different jurisdictional gateways.
That is a strong structural inference.
But the textual question remains:
12. Yamin v Edwards: The Jurisdictional Tension
The significance of Yamin v Edwards deserves particular attention.
The case was heard by HHJ Parfitt in November 2019, only months before his judgment in Shah.
In Yamin, the court expressly knew that no notices had been served in respect of the relevant extension works.
HHJ Parfitt found that notices were required and described their absence as a:
“failure to comply with the notice requirements”
of the Act.
Despite that finding, the Adjoining Owner's surveyor had been appointed, a second surveyor had subsequently been appointed on behalf of the non-cooperating Building Owners, and an award was made.
HHJ Parfitt described the surveyor as acting under the Act to deal with:
“a dispute about ‘work to which this Act relates’”.
The specific argument later advanced in Shah — that absence of notice itself meant section 10 jurisdiction could never arise — was not advanced in Yamin. HHJ Parfitt expressly recorded that no other jurisdiction-based arguments had been put forward.
That qualification is important.
But it does not entirely dispose of the significance of the case.
If absence of notice was jurisdictionally fatal, should the court have upheld the award?
The later proposition in Shah was not merely that the surveyors had made an error within their jurisdiction.
It was that they lacked jurisdiction because the statutory machinery had never been engaged.
That creates a more difficult question when Yamin is considered.
A court ordinarily decides the arguments put before it and is not obliged to invent every conceivable legal case for the parties.
But jurisdiction is different in character from an ordinary merits argument.
If the statutory tribunal never had jurisdiction, then silence, agreement or omission by the parties cannot readily create jurisdiction which the statute does not confer.
In Yamin, the court was not ignorant of the relevant fact.
It expressly knew that no notice had been served.
It nevertheless accepted that the surveyors were acting under the Act and upheld the award.
If absence of notice was inherently fatal to section 10 jurisdiction, then once the court had found that no notices had been served, it is difficult to explain why the award could properly survive simply because the parties had not formulated the objection in the precise form later advanced in Shah.
What Yamin actually decided
The jurisdictional arguments expressly advanced in Yamin were different.
It was argued that the parties had agreed that the Act would not apply and that the surveyors could not possess jurisdiction after the works had substantially been completed.
HHJ Parfitt rejected both.
On completion, he held expressly that:
“surveyors can be appointed to resolve disputes under the Act after the completion of works.”
The award therefore survived despite:
13. Why Yamin Matters More Than a Mere Factual Comparison
It would be wrong to cite Yamin as authority that Shah was incorrectly decided.
The “no notice, no Act” point was not argued and the later Court of Appeal decision is binding.
But Yamin remains important for a different reason.
| Yamin v Edwards | Shah |
|---|---|
| No notices served. | No notice served. |
| Non-service treated as failure to comply with statutory duties. | Non-service treated as fatal to section 10 jurisdiction. |
| Adjoining Owner appointed a surveyor. | Adjoining Owner appointed a surveyor. |
| Second surveyor appointed for non-cooperating Building Owners. | Second surveyor appointed for non-cooperating Building Owner. |
| Dispute described as concerning “work to which this Act relates”. | No section 10 dispute capable of engaging the Act in the circumstances. |
| Retrospective jurisdiction accepted. | Retrospective unilateral invocation rejected. |
| Award upheld. | Award void. |
The contrast is therefore not merely factual.
It concerns the legal character of non-service itself.
In Shah, the same basic absence of notice became the reason why the statutory tribunal could not exist.
That is a materially different conception of the legal consequence of non-service.
14. A Revealing Passage in Yamin
HHJ Parfitt also rejected an argument that the parties' dealings showed that the Act was irrelevant to their legal relationship.
He referred to correspondence asserting that the Building Owners had:
“wrongly failed to comply with their duties under the Act”
and concluded that such correspondence could not provide a platform for saying that the Act was irrelevant to the parties' legal relationship.
That formulation is important.
One cannot ordinarily fail to comply with a statutory duty unless the statute has already imposed that duty.
Proposition One
The statutory circumstances exist, the Act imposes an obligation and the Building Owner breaches it.Proposition Two
Because the Building Owner breaches that obligation, the Adjoining Owner cannot invoke section 10.Proposition One does not logically establish Proposition Two.
An additional interpretative step is required.
That is precisely the step supplied in Shah.
15. Jurisdiction Is Not Ordinarily Created by Silence
The comparison with Yamin raises a broader jurisdictional principle.
Parties can often waive procedural objections, concede facts, or fail to advance arguments.
But where a statutory tribunal lacks jurisdiction altogether, the position is fundamentally different.
The obvious answer would ordinarily be no.
That does not transform Yamin into binding authority on a point which was not argued.
It does, however, make it difficult to dismiss the case merely by saying that the argument was absent.
The court knew the foundational fact said later to destroy jurisdiction, yet proceeded on the basis that statutory jurisdiction existed.
16. The Practical Asymmetry Created by Shah
The Court of Appeal's construction produces an important practical asymmetry.
✅ Compliant Building Owner
Serves notice.The statutory machinery becomes available.
The Adjoining Owner gains access to the specialist section 10 tribunal.
❌ Non-compliant Building Owner
Fails to serve notice.The Building Owner loses statutory authority.
The Adjoining Owner also loses access to section 10 and must pursue ordinary legal remedies.
The Court of Appeal considered that common-law remedies remained available.
That avoids a complete remedial vacuum.
But the policy question remains distinct from the existence of some alternative remedy.
17. The Strongest Answer in Support of Shah
The strongest answer to this critique is that the Act is an integrated procedural code.
On that view, sections 2, 3, 10 and 20 should not be read independently.
The different strands of reasoning in the judgments are complementary: notice invokes the regime; section 20 identifies the person seeking to exercise its rights; section 10 then determines disputes generated by that statutory relationship.
The historical legislation and authorities reinforce that construction.
That is a coherent interpretation.
The criticism is not that it lacks coherence.
The criticism is that it depends upon implying a jurisdictional precondition which section 10 does not expressly state, despite the different wording Parliament chose in 1996.
Conclusion
The notice requirements of the Party Wall etc. Act 1996 are mandatory.
That proposition is not in dispute.
The more important proposition established by Power & Kyson v Shah is that the absence of notice also prevents the Adjoining Owner from invoking section 10 in respect of an actual dispute concerning the unnotified works.
Yet section 10 does not expressly say that notice is a condition precedent to every actual dispute.
The historical foundation is also less straightforward than the slogan suggests.
Section 55 of the 1939 Act began broadly with work to which the Part related.
Section 55(i) then placed express notice-related wording into its first temporal limb before introducing the second with the disjunctive “or” and the words:
“from time to time during the continuance of such work”.
The conventional interpretation that “such work” imports the entire notice-qualified phrase has considerable force.
But it remains an interpretation.
Parliament could have placed the notice qualification expressly over both limbs and did not do so.
More importantly, Parliament did not reproduce the old notice-linked formulation when section 10 was enacted in 1996.
Yamin v Edwards adds a further and potentially more difficult dimension.
There, the same first-instance judge expressly knew that no statutory notices had been served, treated that failure as non-compliance with duties imposed by the Act, accepted retrospective surveyor appointments, and upheld the award.
The precise “no notice, no Act” objection later advanced in Shah was not argued in Yamin.
That prevents Yamin from being treated as authority deciding the later point.
But it does not remove the jurisdictional tension.
A court is not generally required to invent unargued cases for the parties.
But a fundamental absence of statutory jurisdiction is not an ordinary merits point. If jurisdiction never existed, the failure of a party to say so cannot readily create it.
That makes the contrast between Yamin and Shah more than a curiosity.
It exposes the conceptual question at the heart of the later decision:
The Court of Appeal has answered that question as a matter of binding law.
The continuing question for statutory interpretation is whether that answer follows most naturally from the words Parliament enacted.
Legal note: This article expresses the author's critical analysis of the reasoning in Power & Anor v Shah [2023] EWCA Civ 239. The decision of the Court of Appeal is binding authority unless displaced by a higher court or legislation. Yamin v Edwards is discussed comparatively. The specific “no notice, no Act” jurisdictional argument later determined in Shah was not advanced in Yamin, although the court was expressly aware that no statutory notices had been served.