⚖️ “No Notice – No Act” under the Party Wall etc. Act 1996?

📚 Background: Yamin, Shah, and the “No Notice – No Act” Problem

The starting point is a pair of familiar decisions: Yamin v Edwards, Power and Kyson and Shah v Power and Kyson, both before HHJ Parfitt.

[1] In November 2019, in Yamin v Edwards, Power and Kyson, HHJ Parfitt dismissed the claim:

“The claim is dismissed: there was no agreement between the parties that the Act would not apply to the extension works and I reject the Claimants’ arguments as to why the Award is invalid.”

— HHJ Parfitt

[2] Four months later, in Shah v Power and Kyson, HHJ Parfitt upheld a different claim and adopted the now-famous phrase:

“For the reasons I have set out above, in my judgement the claimant is correct essentially for the reasons that Mr Paget so well summarised: no notice, no act. I will allow the relief sought in the claim on that basis and ask counsel to draw an order.”

[3] On 4 November 2021, permission was granted to appeal HHJ Parfitt’s decision in Shah to the High Court. Those appeals – in the High Court and subsequently in the Court of Appeal – have now been dismissed (see the High Court decision and the Court of Appeal judgment, with my comments).

[4] In both Yamin and Shah:

• No Party Wall Notice was served;
• Notifiable works were commenced;
• Damage was caused;
• A section 10(4) request was served on the Building Owner;
• No response was received; and
• A surveyor was appointed under s.10(4)(b) and an Award was served.

[5] The Court of Appeal has now, effectively, endorsed a “no notice – no Act” interpretation. The purpose of this article is not to re-litigate Shah, but to ask a more fundamental doctrinal question:

🧩 A Practical Paradox: Injunctions and Retrospective Awards

[6] Consider a practical example. In a recent matter:

• The Building Owner had almost completed section 6 excavation works without serving any s.6 notice;
• The Adjoining Owner obtained a High Court injunction to stop the works; and
• The injunction required a Party Wall Award to be put in place before the Building Owner proceeded.

[7] No notice had been served. Notice could not be served retrospectively in the ordinary sense. Yet the court still required an Award under the Act as a condition for the works to continue. If “no notice – no Act” is truly the rule, several problems emerge:

• If there is “no Act”, how can there be an Award?
• Section 6 works are on the Building Owner’s own land; at common law he may excavate. If the Act does not apply, what statutory wrong has he committed?
• How does this sit with the widely-cited proposition that the Act supplants common law in this field?

[8] In reality, the injunction example suggests that the courts do treat such works as falling under the Act, despite the absence of notice. The question then becomes: how does that square with “no notice – no Act”?

📖 When Does the Act Actually “Apply”?

🧱 Section 1 – New Building on Line of Junction

[9] Section 1 begins:

“(1) This section shall have effect where lands of different owners adjoin and—

(a) are not built on at the line of junction; or

(b) are built on at the line of junction only to the extent of a boundary wall (not being a party fence wall or the external wall of a building),

and either owner is about to build on any part of the line of junction.”

[10] The section “shall have effect where lands of different owners adjoin…” – that is, the Act is engaged at the point either owner is about to build on any part of the line of junction. The trigger is the proposed work, not the service of a notice.

[11] Section 1(8) then provides:

“Where any dispute arises under this section between the building owner and any adjoining owner or occupier it is to be determined in accordance with section 10.”

[12] The words “it is to be determined in accordance with section 10” are, in my view, mandatory. Once there is a dispute “under this section”, s.10 is engaged; it does not say “provided a notice has first been served.”

📝 The Notice Subsections: s.1(2) and s.1(5)

[13] The notice requirements sit in subsections:

Section 1(2)

“If a building owner desires to build a party wall or party fence wall on the line of junction he shall, at least one month before he intends the building work to start, serve on any adjoining owner a notice…”

Section 1(5)

“If the building owner desires to build on the line of junction a wall placed wholly on his own land he shall, at least one month before he intends the building work to start, serve on any adjoining owner a notice…”

[14] These subsections impose an obligation to serve notice, but they do not define the scope of disputes that can arise “under this section”. Non-service of notice is not excluded from s.1(8), and there is nothing to say that a dispute about failing to serve a notice is not a dispute “under this section”.

🏚️ Section 2 – Repair etc. of Party Wall

[15] Section 2 states:

“(1) This section applies where lands of different owners adjoin and at the line of junction the said lands are built on or a boundary wall, being a party fence wall or the external wall of a building, has been erected.”

[16] Again, the section tells us when it applies – by reference to the physical facts, not the service of notice. The notice requirement is dealt with separately in section 3.

⛏️ Section 6 – Adjacent Excavation

[17] Section 6 begins:

“(1) This section applies where—”

[18] and proceeds to set out the familiar 3m/6m excavation tests. Once those criteria are met, the section “applies”. Only then does s.6(5) state:

“In any case where this section applies the building owner shall, at least one month before beginning to excavate…, serve on the adjoining owner a notice…”

[19] This is the same pattern: the section applies by reason of the nature and location of the works; the duty to serve notice is a consequence, not the trigger. A failure to comply with a subsection cannot logically disapply the whole section, still less the Act as a whole.

🧬 Section 10 and the Overlooked Word “Relates”

[20] Section 10(1) 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 either—”

(a) both parties shall concur in the appointment of one surveyor (the “agreed surveyor”); or

(b) each party shall appoint a surveyor, and so on.

[21] Two ingredients are needed:

• A dispute (or deemed dispute); and
• That dispute is “in respect of any matter connected with any work to which this Act relates.”

[22] Notice is not mentioned. The Act “relates” to works by virtue of ss.1, 2 and 6 (and other provisions). The notice obligations do not change the fact that those works fall within the scope of the Act.

🧱 A Simple Analogy – Rendering

[23] Consider a building owner who constructs a wall at the line of junction so that it clearly falls under section 1. To satisfy planning conditions, the wall must then be rendered.

• The rendering may not, strictly, be the “wall” itself; but
• It is plainly a matter connected with the wall – and therefore connected with “work to which this Act relates”.

[24] Disputes about access for rendering, timing, damage from the rendering, and so on, would still fall within s.10(1). They are “any matter” connected with “any work” to which the Act relates, even though the rendering itself is not the original notifiable work.

[25] By the same reasoning, the failure to serve a notice is itself “a matter connected with” work to which the Act relates. It flows directly from the statutory scheme. It is hard to see how that failure could oust the Act rather than give rise to a dispute within it.

🕳️ All roads lead to Section 10 – is it like a Black Hole where nothing comes back out? 🕳️

[26] In my view, section 10 is the gravitational centre of the Act:

• Multiple sections send disputes into s.10;
• s.10 does not send disputes back out to common law; and
• Its language (“any matter… any work”) is deliberately wide.

[27] Section 20 defines a “building owner” as “an owner of land who is desirous of exercising rights under this Act”. Once notifiable works are proposed, the owner is, by definition, desirous of exercising rights under the Act – whether or not he serves notice.

[28] There is an often-overlooked additional nuance: in circumstances where notifiable works are undertaken without notice, the Adjoining Owner is also, in context, an owner of land desirous of exercising rights under the Act: the right to receive notice, to consent or dissent, to appoint a surveyor, and to seek an Award on damage.

⚖️ Injunctions vs Section 10(4): Which Route?

[29] Where notifiable works proceed without notice, adjoining owners are often told they have two options:

1. Seek an injunction to compel compliance with the Act; or
2. Use section 10(4) to appoint a surveyor on behalf of the Building Owner who has refused or neglected to appoint one.

[30] Section 10(4) provides:

“If either party to the dispute— (a) refuses to appoint a surveyor under subsection (1)(b), or (b) neglects to appoint a surveyor under subsection (1)(b) for a period of ten days beginning with the day on which the other party serves a request on him, the other party may make the appointment on his behalf.”

[31] Note the breadth of “either party to the dispute”. It clearly includes the Adjoining Owner. Nothing in s.10(4) says that it is inoperative if the Building Owner has failed to serve a notice that he was obliged to serve.

[32] In practice, using s.10(4) has led to:

• Building Owners apologising and re-aligning under the Act;
• Resisting Building Owners ultimately being drawn into the s.10 process; and
• Costs to Building Owners which are often disproportionate to the works – but still generally less than full-blown litigation.

[33] In Bridgland v Earlsmead Estates (TCC, Birmingham, 2015), HHJ David Grant emphasised that:

Section 10(1) is expressed in wide terms – it applies to “any matter” connected with “any work” to which the Act relates.

The adjoining owner must first exhaust remedies under the Act before resorting to court proceedings.

The existence of a specific statutory mechanism is a strong indication that Parliament did not intend a separate private law action for breach (drawing on Lonrho v Shell and Clerk & Lindsell).

[34] It is difficult to reconcile that analysis with the notion that a Building Owner can simply step outside the Act, and strip the Adjoining Owner of the Act’s protections, by failing to serve a notice that he was obliged to serve.

💷 Compensation, Retrospective Awards and Non-Service of Notice

[35] Section 7(2) provides that the Building Owner must compensate the Adjoining Owner for any loss or damage resulting from work executed in pursuance of the Act. Section 10(12) allows surveyors to determine “any other matter arising out of or incidental to the dispute”.

[36] In Lea Valley, O’Farrell J concluded that this includes the power to award compensation under s.7. In Bibizadeh v Dodosh (Central London County Court, HHJ Bailey), the judge recognised that:

A party wall Award may include compensation for works carried out before the Award, where the Award retrospectively authorises those works.

The fact that a trespass has been committed by building works does not prevent an Award retrospectively authorising them.

[37] In Crowley v Rushmoor BC [2009] EWHC 2237 (TCC), Thornton QC set out three possible routes where notifiable works have proceeded without notice:

• The Act’s arbitration (surveyors’) provisions can be operated retrospectively;
• Non-service of notice can amount to a breach of statutory duty attracting damages; and
• Common law remedies may be available where rights conferred by the Act are interfered with.

[38] This strongly suggests that non-service of notice does not automatically remove the Act from the field. Rather, it is itself one of the matters that can be addressed under the Act’s own mechanisms.

[39] Roadrunner Properties Ltd v Dean [2003] EWCA Civ 1816 is sometimes cited as supporting “no notice – no Act”. In my view, it does not say that. There, the Building Owner carried out works to a party wall without serving notice; the claim was brought in the County Court for damages. The Court of Appeal:

• Accepted that the Building Owner had ignored his obligations under the Act;
• Recognised that the Adjoining Owner had been deprived of a pre-works schedule and monitoring; and
• Noted that the claim only became necessary because of the Building Owner’s failure to comply with the Act.

[40] Sedley LJ made an important observation to the effect that a Building Owner should not obtain a forensic advantage from his own failure to comply with the Act’s requirements. If “no notice – no Act” were correct, then there would have been no breach of the Act at all – a position flatly inconsistent with the language used by the Court of Appeal.

🧠 The Mischief Rule and Heydon’s Case

[41] Heydon’s Case [1584] EWHC Exch J36 formulated the classic “mischief rule”. The court should consider:

• What was the common law before the Act?
• What mischief and defect did the common law not provide for?
• What remedy did Parliament prescribe?
• What was the true reason for that remedy?

[42] The judge’s role is then to suppress the mischief and advance the remedy, and to suppress “subtle inventions and evasions” that undermine the statutory purpose.

[43] Applied to the Party Wall etc. Act 1996:

• There was no comprehensive common-law regime for excavations on one’s own land within 3m/6m, cutting into party walls, or building on the line of junction.
• The mischief was the risk of damage and neighbour disputes being left to expensive litigation, with no dedicated procedure.
• The remedy is the Act itself – especially s.10 – providing a bespoke dispute resolution regime and clear liabilities for damage and making good.
• Hansard (e.g. the Earl of Lytton) makes clear that Parliament intended to protect existing structures, impose clear liability for damage, and offer a route “other than by going to law”.

[44] A doctrine of “no notice – no Act” allows a Building Owner to sidestep the statutory code – and thereby deprive the Adjoining Owner of the very protections Parliament designed – by the simple expedient of not doing what the Act obliges him to do (serve notice). That looks very much like the sort of “subtle evasion” Heydon’s Case is concerned with.

[45] Modern examples of the mischief rule include Smith v Hughes [1960] 1 WLR 830, where prostitutes soliciting from windows and balconies were nevertheless held to be soliciting “in a street” for the purposes of the Street Offences Act, because that fell squarely within the mischief the Act was intended to cure.

[46] By analogy, even if a literal reading of “works in pursuance of the Act” could be used to argue that works carried out without notice fall outside s.7(2), the mischief rule supports an interpretation that:

• prevents Building Owners from profiting from their own non-compliance; and
• preserves the Adjoining Owner’s rights to compensation and access to s.10.

✅ Conclusion: Why “No Notice – No Act” Is, IMHO, an Absurdity

[47] Drawing the threads together:

• The Act applies by reason of the works themselves (ss.1, 2, 6), not by reason of the notice.
• Section 10(1) is triggered by disputes about any matter connected with any work to which the Act relates. That comfortably includes:
  • damage from notifiable works;
  • procedural failures such as non-service of notice; and
  • secondary issues connected to those works.
• Case law such as Kaye, Crowley, Reeves, Lea Valley, Bridgland, Bibizadeh and Roadrunner emphasises that:
  • the Act is a comprehensive code,
  • non-service of notice can itself be addressed within that code, and
  • a Building Owner should not gain advantage from ignoring the Act.
• The mischief rule in Heydon’s Case, supported by Hansard, points towards an interpretation that favours protecting existing structures and resolving disputes without recourse to the courts, rather than allowing the statutory scheme to be circumvented by default.

[48] IMHO, the “no notice – no Act” doctrine:

• is inconsistent with the wording and structure of the Act;
• undermines Parliament’s stated purpose in introducing it; and
• exposes adjoining owners – particularly the vulnerable and those of limited means – to precisely the sort of litigation and imbalance of power the Act was meant to avoid.

[49] In short, if a Building Owner can remove his liabilities and the Adjoining Owner’s statutory protections simply by failing to serve notice, that must be an absurdity.

This article remains a work in progress. Comments – positive or negative – are welcome.

📎 Cases referred to in this article

• Pinner v Everett [1969] 1 WLR 126
• Kaye v Lawrence [2010] EWHC 2678 (TCC)
• Mr Timothy Crowley t/a Crowley Civil Engineers v Rushmoor Borough Council [2009] EWHC 2237 (TCC)
• Reeves v Blake [2009] EWCA Civ 611
• Heshmat Hassan Bibizadeh & Janet Catherine Bibizadeh v Ana Dodosh (Central London County Court, Claim No. B20CL043)
• Lea Valley Developments Ltd v Thomas William Derbyshire [2017] EWHC B22 (TCC)
• Udal v Dutton [2007] EWHC 2862 (TCC)
• Bridgland & another v Earlsmead Estates Ltd (1 July 2015, QBD, TCC, Birmingham District Registry)
• Heydon’s Case [1584] EWHC Exch J36
• Roadrunner Properties Ltd v Dean & another [2003] EWCA Civ 1816
• Smith v Hughes [1960] 1 WLR 830
• Yamin v Edwards, Power and Kyson (Central London County Court, HHJ Parfitt)
• Shah v Power and Kyson (Central London County Court; High Court; Court of Appeal)