No Notice, No Act?

1 📜 The 1939 Act: What Does Section 55(i) Actually Establish?

The historical argument begins with the predecessor legislation. But there is an important distinction between an Act expressly prescribing what happens when notice is served and an Act expressly declaring what happens when it is not.

The Court of Appeal placed significant weight upon the statutory regime contained in the London Building Acts (Amendment) Act 1939. That legislation was the historical model from which the national 1996 regime developed.

Section 55(i) provided that:

🔑 What the provision expressly tells us

That procedure is explicit.

⚠️ But what if the required notice was never served?

The important point is that s.55(i) does not expressly answer that question.

Procedure versus jurisdiction

Section 55(i) can therefore be understood as an explicit procedural provision dealing with notified works:

notice → work → dispute → award.

To convert that into:

no notice → no jurisdiction → no award

requires an additional negative inference.

That inference may or may not ultimately be justified by the statutory scheme and authorities. But it is important to recognise that it is an inference. It is not the express language of s.55(i).

🔀 What about the word “or”?

There is also an interesting grammatical feature in the provision:

It would be unsafe to place too much weight upon the word “or” alone. The conventional grammatical reading is that “such work” refers to the immediately preceding notified work, with “or” distinguishing the two temporal stages:

before commencement or during continuance.

But even accepting that construction completely does not answer the more fundamental question. It tells us how disputes concerning notified works are dealt with. It still does not expressly state the legal consequence of the Building Owner's failure to notify.

2 🔍 The Wording Parliament Changed in 1996

Even if notice were an indispensable jurisdictional condition under the 1939 legislation, a further question remains: why did Parliament not reproduce the notice-linked wording in section 10 of the 1996 Act?

The difference between the statutory formulations is significant. The 1939 provision expressly referred to:

Section 10 of the 1996 Act instead speaks in terms of:

and, in s.10(10), of a matter which is connected with work to which the Act relates and which is in dispute between the Building Owner and the Adjoining Owner.

⚖️ Mr Isaac KC's argument

The significance of this drafting difference formed part of the argument advanced on behalf of the surveyors in Shah. The essential proposition was that the predecessor legislation expressly connected the relevant work with a notice, whereas the 1996 Act connected the matter in dispute with work “to which this Act relates”.

The Court of Appeal rejected the broader jurisdiction contended for. Its reasoning placed substantial weight upon the historical regime, the authorities decided under it, and the improbability that Parliament intended such a radical procedural departure from the tried-and-tested London system.

🔬 The interpretative difficulty

The question is not answered simply by observing that the 1996 Act was modelled upon the London legislation. A legislative model is not necessarily an identical enactment.

Where Parliament adopts the architecture of an earlier statute but changes particular words, the change itself may be relevant to the meaning of the successor provision.

3 🏛️ “Unless the Context Otherwise Requires”

The definition of “Building Owner” was important to the reasoning. But section 20 begins with a qualification which itself forms part of the enacted text.

Section 20 introduces its definitions with the words:

“Building Owner” is then defined by reference to an owner of land who is desirous of exercising rights under the Act.

The reported reasoning in Shah places significance upon the fact that an owner who did not purport to invoke the Act could not readily be regarded as someone desirous of exercising statutory rights.

🔍 The contextual difficulty

If “desirous” is treated as depending upon the owner's subjective decision to invoke the legislation, statutory status may become dependent upon the alleged defaulting owner's own appreciation of whether the Act applies.

That creates a potentially unusual statutory consequence: two owners carrying out materially identical works could occupy different statutory positions according to whether each correctly understood and intended to invoke the legislation.

The introductory qualification “unless the context otherwise requires” exists precisely because statutory definitions cannot always be applied mechanically without regard to the provision in which the defined expression appears.

This does not by itself resolve the jurisdictional issue. But it makes the definition less obviously conclusive than it would be if s.20 contained an absolute definition applicable regardless of context.

4 🚧 The Bridgland–Shah Remedial Vacuum

The jurisdictional construction has consequences extending beyond procedure. It raises the question of how particular statutory protections can be enforced where notice was never served.

Section 7 contains important protections for Adjoining Owners, including the obligation not to cause unnecessary inconvenience. The statutory scheme ordinarily places disputes concerning rights and obligations of this nature within the section 10 machinery.

The difficulty becomes apparent when two propositions are placed together.

⚠️ “No statutory remedy” is not necessarily “no remedy at all”

The distinction is important.

The Adjoining Owner may still have ordinary causes of action depending upon the facts, including:

• nuisance;
• negligence;
• trespass;
• claims for physical damage; or
• other common-law remedies.

The stronger criticism is therefore not that the Adjoining Owner is necessarily left with no legal remedy whatsoever.

It is that there may be no forum in which the Adjoining Owner can enforce the particular statutory protection as such where access to the statutory tribunal depends upon the very procedural step which the Building Owner omitted.

Prospective operation versus late engagement

There is a further temporal distinction.

The proposition that the Act generally operates prospectively does not necessarily answer every jurisdictional question. Once statutory machinery has been validly engaged, an award may deal with events which occurred before the award itself.

The critical dividing line under Shah is therefore not simply:

past event versus future event.

It is more accurately:

The temporal objection and the notice/jurisdiction objection should therefore be kept analytically separate.

5 🔨 Heydon's Case: Suppressing or Advancing the Mischief?

The preceding textual questions lead to the broader purposive question: what interpretation best suppresses the mischief and advances the statutory remedy?

The classic approach associated with Heydon's Case (1584) asks four questions:

⚖️ Apply that framework to non-service

This produces the central purposive criticism.

A statutory regime intended, at least in substantial part, to provide specialist resolution of neighbour disputes is construed so that the Building Owner's failure to perform an antecedent statutory obligation can place the resulting dispute outside that specialist regime.

📊 Heydon versus the practical result