This article is still a work in progress…so comments, positive or negative ,are welcome…

 ‘No Notice – No Act’ - Really?

Having caused damage while carrying out notifiable works, can the Building Owner absolve himself from any liability to compensate an Adjoining Owner. on the basis that he did not serve a party wall notice?

Rather than just jump straight to Pinner v Everett [1969] 1 WLR 126; I believe a good starting point on the subject matter would be to iterate Mr Justice Ramsey at para 43 in his decision in Kaye v Lawrence [2010] EWHC 2678 (TCC) whereby he makes reference to Lord Reid in Pinner . It is very unlikely that any practicing party wall surveyor will not have heard of Kaye v Lawrence and as the case dealt with a party wall matter, Ramsey J provides a more credible link to Pinner than I;

In construing the statute the basic principles of construction to be followed are those which are set out in sections 195 and 197 of Bennion on Statutory Interpretation (Fifth Edition) at 548 to 552 referred to as the plain meaning rule and the commonsense construction rule. In relation to the plain meaning rule, as Lord Reid said in Pinner v Everett [1969] 1 WLR 1266 at 1273: ”In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word of phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute.”
— — https://www.bailii.org/ew/cases/EWHC/TCC/2010/2678.html

01.   In my opinion section 10 is a robust clause that is able to withstand scrutiny and stand alone, after all, several sections of the Act refer to section 10, as shown below. In essence, section 10 is at the heart of the Act, unless consent is given section 10 will almost certainly apply and will set the procedure for virtually all that follows. Sections and sub-sections of the Act refer to section 10, section 10 does not refer outwardly, only to within itself. It is a one-way street.

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

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

02.   If we look at the definition for ‘Building Owner’ as portrayed by ‘section 20 Interpretations’ we are informed that a ‘ “building owner” means an owner of land who is desirous of exercising rights under this Act;’. If the proposals he wishes to carry out encompass any of the relevant sections of the Act then he is desirous of exercising rights under the Act, irrespective of whether he neglects, or does not intend, to serve notice for the notifiable works.

03.   Therefore, the Act is in place the moment a building owner wishes to carry out works that are notifiable under the Act. It is at this point in time that the building owner and adjoining owner become the respective parties within the meaning of the Act. The fact that he has just been designated building owner means that obligations are now placed upon him, to be carried out in due course as required by the Act. One such obligation is to serve the requisite notice on the adjoining owner, therefore, it is the Act that invokes this requirement, the notice is not invoking the Act. For the Notice provisions / obligations as dictated by the various sections of the Act to be fulfilled, you require both a building owner and an adjoining owner, without these a notice cannot be served. The Act is not ‘now you see me now you don’t ’ legislation.  

04.   Judge Thornton QC in Mr Timothy Crowley t/a Crowley Civil Engineers v Rushmoor Borough Council [2009] EWHC 2237 (TCC) tells us that the Act was engaged simply because Rushmoor proposed to carry out notifiable works, irrespective of whether a notice had been served:

101 The Party Wall Act was, therefore, engaged because Rushmoor proposed to demolish the planter foundations and pave the site in its ownership and because that work necessitated excavating within three metres of the flank wall of Number 80 to levels below the flank wall’s foundations. The Party Wall Act required Rushmoor to serve on Mr Sampla a notice indicating its proposals and stating how it was proposing to underpin, strengthen or safeguard the foundations of the flank wall with accompanying plans and sections showing the site and depth of excavation (see sections 2(1), 3 and 6(5) of the Party Wall Act ). Any dispute as to these proposals had to be settled by the arbitration provisions of the Party Wall Act by a surveyor or surveyors appointed by the two adjoining owners. These provisions of the Party Wall Act are mandatory and it is no answer to the non-service of the requisite notice that it was not appreciated or foreseen that the Party Wall Act would be engaged.
— Mr Timothy Crowley t/a Crowley Civil Engineers v Rushmoor Borough Council [2009] EWHC 2237 (TCC)

05.   Referencing Kaye v Lawrence HHJ Ramsey, iterating higher authority, informs us that the Act supplants common law. If the Act supplants common law it would be reasonable to believe that this would apply per se although there is no requirement to serve a notice under common law. Arguably, can there be a common law to fall back on if it has been supplanted? The Act must be in force for the whole duration.

If we look at section 10(1)

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 (in this section referred to as an “agreed surveyor”); or

b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as “the three surveyors”).

06.   The opening words of section 10(1) tell us that there must be a dispute, deemed or otherwise, the subject of ‘dispute’ is not focused on any specifics but the fact that one comes into existence is sufficient to trigger the section 10 dispute resolution process. Therefore, it may cover a broad spectrum of dispute(s) provided ‘it/they’  ‘is/are’ connected with any work to which the Act relates. This does not state whether the work has started, is in progress or completed. The two ingredients are i) a dispute that has arisen and ii) it must be about work to which the Act relates. Notice is not an ingredient until such time as it is dissented to, deemed or otherwise or is not served.

07.   Reading section 20 ‘Interpretation’ there is to be found one important word ‘context’. So, where does ‘context’ fit in? Generally speaking, and as referred to throughout the Act ‘building owner’ is the one who proposes to carry out the notifiable works; he is the one who is normally desirous of exercising rights under this Act. Such rights will be given inter alia under the notifiable works of sections 1, 3 & 6.

08.   I am not aware of anyone applying the ‘desirous of exercising rights under this Act’ to the adjoining owner and there would not ordinarily be a necessity to review or apply this application as the adjoining owner’s response would flow from the served notice. However, if the adjoining owner does not receive a notice and the building owner commences the notifiable works, then, taken in context the adjoining owner may also be an owner of land desirous of exercising rights under this Act. If there is an obligation upon the building owner to serve notice, then as an owner of land desirous of exercising his rights under this Act the adjoining owner has the right to expect to be the recipient of the requisite notice. In this instance we have two ingredients i) a failure to serve notice – which is a ground for a dispute; and ii) the notice, apart from being a requirement of the Act, it is a matter connected to any work to which this Act relates.  

09.   From another perspective the purpose of the Act in its simplest form appears to be i) to enable the building owner to get on with his (notifiable) work and giving him rights which supplant the common law and ii) protect the interests of the adjoining owner. If the doctrine of ‘no notice - no Act’ were to be applied where does that leave the adjoining owner if the building owner commences notifiable work? There appear to be two lines of thought on this i) seek an injunction to force the building owner to follow the Act or ii) appoint a surveyor to act on his behalf if he refuses to appoint a surveyor or does not appoint one within 10 days following a request – as stated in section 10(4).

If either party to the dispute-

    1. refuses to appoint a surveyor under subsection (1)(b), or

    2. 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.

 10.   Although, I have as yet, not utilised the ‘injunction’ procedure, I have certainly made good use of section 10(4) on several occasions as the adjoining owner’s surveyor and there have been three distinct responses i) the building owner simply apologises and asks if I can be the agreed surveyor and then complies with the procedure. ii)  the building owner makes all sorts of arguments against the procedure and a surveyor is appointed on his behalf; iii) the building owner instructs a solicitor, which has occurred on a few occasions, arguing, albeit unsuccessfully from the building owner’s perspective, that the process does not apply. In the latter two scenarios the building owners in three separate matters incurred costs of approximately £10k, £18k and £25k respectively, which are totally disproportionate in comparison to the value of the works carried out - small domestic extensions or alterations. Albeit in the £10k scenario the BO probably spent north of £10k on solicitors, three different ones in succession!

11.   I believe that the utilisation of section 10(4) is the correct way forward and when speaking generally about the Act several judges have made reference to the fact that the Act provides a dispute resolution procedure that avoids recourse to the courts;

Reeves v Blake [2009] EWCA Civ 611

14 Generally, however, it provides procedures, similar to those in the London Building Acts, for authorising property owners to carry out work to an existing party structure or otherwise on or near to the boundary with the adjoining property, but which at the same time protect the legitimate interests of the adjoining owner. They are intended to constitute a means of dispute resolution which avoids recourse to the courts.
— Reeves v Blake [2009] EWCA Civ 611

Lea Valley Developments Limited v Thomas William Derbyshire [2017] EWHC B22 (TCC)

28. The Act provides a comprehensive code by which any disputes in relation party wall matters can be determined without recourse to the courts
— Lea Valley Developments Limited v Thomas William Derbyshire [2017] EWHC B22 (TCC)

‘Without recourse to the courts’ is a powerful statement and should be accepted as such. The route of seeking an injunction may force the offending building owner back on track but this route also exposes the adjoining owner to financial outlay and  undertakings should the injunction be wrong; s/he may not be able to afford the financial outlay to initiate the injunction process; and why should they take recourse to the courts when there is a specifically designed dispute resolution already in place?  What must be borne in mind is that seeking an injunction is not a route open to many pensioners or adjoining owners of limited means. In essence the more vulnerable members of society are exposed to the greater risk of being subjected to injustice and being bullied by a building owner who does not wish to fulfil his statutory obligations. Albeit in this instance a Party Wall Award was in place, HHJ Peter Coulson Q.C. (as he was then) in deciding whether to grant an injunction in the case of Udal v Dutton [2007] EWHC 2862 (TCC) informs us:-

The usual undertakings as to damages and the like are given........
The Claimants need to demonstrate three things: that there is a serious issue to be tried; that the balance of convenience favours the grant of an injunction; and that damages would not be an adequate remedy.
— Udal v Dutton [2007] EWHC 2862 (TCC)


I believe HHJ David Grant (Ret) who was a Senior Circuit Judge of the Birmingham TCC sums up the matter in a nutshell in Bridgland and another v Earlsmead Estates Ltd 1st July 2015 Queen's Bench Division, Technology and Construction Court (Birmingham District Registry)

27. As regards the third of Mr Taylor’s points of substance: it is relevant to consider the text of section 10 (1) of the 1996 Act which provides that “where a dispute arises or is deemed to have arisen between the building owner and an adjoining owner in respect of any matter connected with any work to which this act relates ...” the parties are to engage in the machinery or procedure then set out in section 10. That text is expressed in wide terms: it provides that the mechanism or procedure set out in section 10 is engaged in relation to “any matter” connected with “any work” to which the 1996 Act relates. In my judgement such a matter would include a dispute as to whether or not unnecessary inconvenience had been caused by reason of the building owner exercising any right conferred on him by the 1996 Act. If a building owner exercises such a right, but in doing so causes unnecessary inconvenience etc, then a dispute may arise between the building owner and the adjoining owner. If such a dispute arises, then the Act provides for a specific mechanism or procedure for the resolution of such dispute, namely by the mechanism and procedure set out in section 10.

28. It is thus for the adjoining owner, here the claimants, first to exercise and extinguish their remedies provided by the 1996 Act before resorting to court proceedings. Further and/or in the alternative, it is not ap-parent that, in circumstances where the 1996 Act provides a mechanism or procedure for dispute resolution, that a further or alternative means of obtaining relief is available to an aggrieved party through the medium of court proceedings. The very fact that the 1996 Act provides for a specific mechanism or procedure for the resolution of disputes in relation to “any matter” connected with “any work” to which the 1996 Act relates is of itself an indication that Parliament did not intend to create a separate private law action for breach of section 7 (1): see generally ‘Clerk & Lindsell on Torts’ 21st edition (2014) chapter 9, especially paragraphs 9.01-03, and 9.12; and also Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 referred to in para-graph 9.13, citing that part of Lord Diplock’s speech at page 185 where he stated:

                “... where an Act creates an obligation and enforces the performance in a specified manner that performance cannot be enforced in any other manner ...”

In my judgement, while the 1996 Act does not contain provisions enforcing performance of the obligation in section 7 (1), the fact that it contains a specific mechanism or procedure for the resolution of disputes in relation to “any matter” connected with “any work” to which the 1996 Act relates is a strong indication that a breach of such obligation is not actionable other than through or by such mechanism or procedure.
— Bridgland and another v Earlsmead Estates Ltd 1st July 2015 Queen's Bench Division, Technology and Construction Court (Birmingham District Registry)

12.   One point of interest is that I believe Bridgeland may be the only County Court decision referenced in ‘Halsburys Laws of England’ with regard to the Act. However, I cannot confirm that 100% as I no longer have access to HLoE. It is arguable that Bridgeland is only a county court judgement, however, IMHO it is a very valid statement and I cannot see why a court of higher authority would disagree with it, albeit one never can tell.

13.   I am not saying that there are occasions whereby it is not necessary to seek an injunction. However, is it not paradoxical that the matter is put in the hands of the court when section 10 is a ‘dispute resolution procedure’? ADR is always given preference by the courts. and is the preferred route to settle disputes, as stated above, ‘to keep matters out of the court’, especially when section 10 has not been fully utilised. The adjoining owner is asking the court to stop the works until such time as the building owner fulfils his obligations under the Act and appoints a surveyor.

14.   Once again, section 10(4), as with section 10(1), is not narrowly focused and is quite clear in the procedure to be followed. It is quite explicit ‘either party to the dispute..’ it does not preclude the adjoining owner.

15.   Experience has shown that in several instances the application of section 10(4) has followed on from damage that has already been caused during the course of carrying out notifiable works, which for one reason or another, notice was not served, nor the Act followed. If the adjoining owner’s property incurs damage and the building owner does not adequately address the problem, has a dispute arisen? Almost certainly yes, and this meets the 1st criteria of section 10(1), the second criteria being is that is the dispute ‘in respect of any matter connected with any work to which this Act relates? If both of these questions are answered in the affirmative, then both ingredients are in place for the appointment of surveyors. The next step to fulfil the requirement of section 10(1) is that each party shall [mandatory] appoint a surveyor or concur in the appointment of an agreed surveyor. As the adjoining owner will have appointed a surveyor (my role on several occasions) the building owner will be requested to appoint a surveyor under section 10(4)b. In the instances where the building owner has failed or refused to appoint a surveyor then one has been appointed on his behalf. This process has been successfully followed on several occasions culminating in an Award to address the disputed matters, albeit due to the building owner’s lack of co-operation and obstinacy an expensive experience for him but still far less costly than had the route of litigation been followed. To date only one Award that I have been involved with has been appealed and is currently in progression with the County Court (London TCC), however, what started as an appeal of the Award by the two appointed surveyors has now become an appeal of the Third Surveyor’s Award.    

16.   From the adjoining owner’s perspective it can be seen that the Act is not a one-way street for the building owner and that it is also there to protect the adjoining owner’s interests, this is quite apparent and can be seen for example in sections 2(2) subsections 3-7; section 7, I will comment on section 7(2)+(5) further below; section 12(1).

17.   In citing from Hansard

‘…it sets out to protect existing structures; there is a clear liability for damage and making good; there is provision for the resolution of disputes, other than by going to law;….’.
— The Earl of Lytton Hansard Party Wall Bill HL volume 568 31st January 1996

It is difficult to comprehend that it was envisaged that the adjoining owner could be robbed of his rights by a non-compliant building owner. These sections show that the adjoining owner has a vested interest in seeing that the Act is engaged as it protects his interests and gives remedies that may or not be available at common law and, within reason, negate the need to pursue a route of litigation.

The ‘no notice – no Act’ scenario - does this argument hold water?

18.   First of all, the requirements to serve notices are subsections, section 3 excepted, of the Act but all place an obligation on the building owner to serve them. If he follows the correct procedure, then the Act bestows benefits upon him and will allow him to carry out works that he may ordinarily not be able to and gives him a right of access to the adjoining owner’s property if so required.

19.   If he does not fulfil his obligations, he does not have a right to exercise the benefits that would have otherwise been bestowed upon him. On the other hand, what purpose does the notice serve the adjoining owner? It tells him when the building owner wishes to start work and what he proposes to do with regard to the notifiable works; it also affords him the opportunity to respond to the notice i.e consent, agreed surveyor or appoint a surveyor himself within reasonable time. He may also wish to avail himself of the opportunity to exercise the rights given to him by section 4. It is highly likely that the adjoining owner will already know what is proposed – loft conversion, basement, extension etc etc. from a planning application, what he may not know is when it is to begin. However, he may not know about a chimney breast removal until damage occurs.  

20.   In a nutshell if the building owner does not serve notice he does not have any right to the benefits that would have been bestowed upon him and the adjoining owner may be unaware of the work and possibly unsure as to when work is to commence. On this basis the Act does not apply? The ‘no notice – no Act’ approach robs the adjoining owner of his rights. I feel quite strongly that in such circumstances the Act is more applicable as the Act was not intended to be bypassed by simple non-compliance and allow the building owner to rob the adjoining owner of his rights.

21.   I cannot see how a retrospective notice can apply to works that may have commenced or have been halted by an injunction. If the court grants an injunction to stop the works, especially if damage has been caused, which is not unusual, at what time do the ‘to be completed’ works become in pursuance of the Act? If section 7(2) can be utilised following an injunction, has the injunction unwittingly invoked ‘Heydons Case [1584] EWHC Exch J36’? [see below] Technically, as a notice has never been served and it should have been served prior to carrying out the works, irrespective of any injunction granted, the works cannot suddenly become ‘works in pursuance of the Act.’ unless they always were ‘in pursuance of the Act’. However, if we look at what has been termed the ‘mischief rule’, it is quite clear to see that Parliament intended there to be a remedy for the adjoining owner in the event of any loss or damage being caused by the building owner in carrying out his notifiable works, the problem being is that the draughtsmen of the Act inserted the phrase ‘works in pursuance of the Act’. It is the word ‘pursuance’ that could be construed to imply that it steers the Act away from the intention of Parliament to ensure the adjoining owner is adequately compensated. The simple fact that if a court grants an injunction to ensure the building owner complies with his statutory duties then the court is not accepting the ‘no notice - no Act’ scenario as a notice has not been served therefore, the Act simply would not apply but the courts confirm it does.

22.   If we have a scenario whereby i) the building owner had not served notice or responded positively to a 10(4)b request; ii) a surveyor was appointed on his behalf; iii) he appeals the Award that awarded the adjoining owner compensation in accordance with section 7(2). The building owner may well argue that due to his failure to serve notice his works were not ‘in pursuance of the Act’.  This argument would have to be countered but would any counter argument conflict with the iteration of Ramsey J. In such situations I believe it would be reasonable to invoke the mischief rule by ‘advancing the remedy’ to encompass the works if they were thought to be not ‘in pursuance of the Act’ and also applying the doctrine of ‘Ex turpi causa non oritur actio’ in short it refers to the fact that no action may be founded on illegal or immoral conduct. The building owner has not served notice but is relying upon his neglect / avoidance to support his argument. Such an argument must surely fail. Furthermore, can ‘Volenti non fit injuria’  "to a willing person, injury is not done" be applied? after all the building owner willingly did not fulfil his statutory obligations, therefore, can he be ‘injured’ by any costs or compensation awarded against him?.   

23.   In this writer’s opinion and in context with section 7(2), it is irrespective whether the building owner serves notice or not -in context with this article! Notifiable works are notifiable works, nothing changes this fact. If a building owner neglects or chooses not to serve notice, do the works suddenly change their status to becoming ‘un-notifiable works’ to which the Act does not apply? If this is the case and the works progressed, then they are not works in pursuance of the Act because the Act has become disengaged, which questions how can an injunction suddenly make them works in pursuance of the Act?  The Act distinguishes notifiable works from un-notifiable works. If notifiable works are being carried out, then they must be works in pursuance of the Act regardless of notices. Excavations outside the 3.00m or 6.00m zone cannot be works in pursuance of the Act, no amount of served notices would ever make them such.

24.   Quite simply, IMHO, compensation can be awarded against notifiable works as these would be in pursuance of the Act but compensation cannot be awarded for non-notifiable works as they are not works in pursuance of the Act. In ‘pursuance of the Act’ is the distinction between notifiable and non-notifiable works with regard to compensation. It is not only confined to works where a notice has been served. As far as the adjoining owner is concerned if the execution of notifiable works causes damage to their property then they are entitled to compensation because, from their perspective, the notifiable works will have been in pursuance of the Act. It is the Act that makes them notifiable works and therefore in pursuance of the Act. Remember, we are told the Act supplants the common law, if a notice is not served they are not works in pursuance of the common law.

25.   In my own experience much weight is put on Roadrunner Properties Limited v Dean and another [2003] EWCA Civ 1816 by the legal profession and surveyors alike. It has been argued that Roadrunner supports the notion that if a notice is not served the Act does not apply but where does it say this in Roadrunner?

26.   In reading the judgement we are made aware that the claim is for damages [para 2] emanating from works carried out on the party wall [para 5]. The notice provisions are stated at para 6 but only makes reference to the fact that if the adjoining owner does not consent to the notice ‘a dispute is deemed to have arisen’. This statement is regarding the procedures being followed correctly, it does not negate the fact that a dispute can arise by the failure to serve notice. It is not disputed that the building owner should have served notice in accordance with section 3 but did not [para 14].

27.   We are further informed that [para 8]:-

Those advising Mr Morgan on behalf of Roadrunner clearly took the view that, in those circumstances, Roadrunner could not invoke the provisions of the 1996 Act. They thought that Roadrunner had to sue in the County Court; and had to rely on the common law.
— Roadrunner Properties Limited v Dean and another [2003] EWCA Civ 1816

28.   The interesting use, and particular choice, of words here suggests that Mr Morgan’s advisors may have been wrong in that they ‘thought’ that Roadrunner had to sue in the County Court. This could be open to interpretation as the judgement does not confirm that they were correct. In my opinion it states the contrary implying that other avenues to pursue the claim were open to Roadrunner, as we shall see below. If we refer back to Crowley, HHJ Thornton QC informs us [para 102]

If, as in this case, where the work proceeded without the adjoining owner serving the requisite notice and it then becomes clear that a notice should have been served, Mr Sampla had three separate routes by which he could recover compensation or damages for himself and other resident family members for the resulting damage.
— Mr Timothy Crowley t/a Crowley Civil Engineers v Rushmoor Borough Council [2009] EWHC 2237 (TCC)

29.   this supports the view that the Mr Morgan’s advisors were very narrow sighted in thinking that there was only one route open to Roadrunner. HHJ Thornton QC tells us there were three separate routes open to the adjoining owner

103 Firstly, the relevant arbitration provisions provided for by the Party Wall Act can always be operated retrospectively………..
104 Secondly, any failure to serve the requisite notice before work started would amount to a breach of statutory duty which would allow a court to award damages…….
105……… A building owner such as Mr Sampla whose party wall rights have been interfered with by an adjoining owner may recover common law damages for any loss caused by that interference if it has been caused by any one or more breaches of these causes of action…….
— Mr Timothy Crowley t/a Crowley Civil Engineers v Rushmoor Borough Council [2009] EWHC 2237 (TCC)

30.   Clearly the decision in Crowley does not infringe in any way upon the decision in Roadrunner and given the above I believe Roadrunner is more supportive of the aggrieved adjoining owner than the neglectful building owner.

31. The following text para [28] would, in my opinion, negate a defence from a neglecting building owner:- 

I would go further and hold that, in a case where the building owner has chosen to carry out works to a party wall without serving the notice for which the statutory scheme provides, he should not be allowed to obtain a forensic advantage by his own failure to comply with the statutory requirements. Had the building owner in this case served the notice which he should have served, the claimant and Mr Morgan would have been in a position to instruct a surveyor to carry out a pre-works survey; and, if they thought necessary, to instruct a surveyor to attend (or to attend in the person of Mr Morgan) at the time when the works were being carried out. They would have been in a position to adduce much more cogent evidence as to the temporal relation between the dislocation of the floor and the carrying out of the works to the party wall. They were denied that opportunity by the course which the building owner chose to take. In taking that course the building owner chose to ignore his obligations under the 1996 Act.
— Roadrunner Properties Limited v Dean and another [2003] EWCA Civ 1816

32.   ‘…in a case where the building owner has chosen to carry out works to a party wall without serving the notice for which the statutory scheme provides, he should not be allowed to obtain a forensic advantage by his own failure to comply with the statutory requirements.’ Albeit, the usage of ‘forensic’ appears to refer to the evidence and causation of the damage caused but taken in context with the rest of para 28 does it tell us that their Lordships would very likely take a similar view if the building owner was seeking to gain advantage by stating the Act did not apply because of his failure to serve notice? In conjunction with [para 33]

If there was a want of direct evidence, it was the fault of the first defendant in not giving a party wall notice, and of the second defendant in leaving unaccountable lacunae in the evidence of what had happened on the job. I respectfully agree in this situation with the approach of my Lord, Chadwick LJ, to the evidence in an action which has only become necessary because of the defendant’s breach of the requirements of the Party Walls Act 1996.
— Roadrunner Properties Limited v Dean and another [2003] EWCA Civ 1816

33.   I believe a sustainable argument would be the fact that Sedley LJ stated  ‘…defendants breach of the requirements of the Party Walls Act 1996’ if the Act did not apply due to non-service of notice there can be no breach, simply because the Act would not have applied.

103 Firstly, the relevant arbitration provisions provided for by the Party Wall Act can always be operated retrospectively. These provisions involve the appointment of surveyors to resolve disputes arising in connection with any matter connected with any work to which the Party Wall Act relates. The surveyors so appointed would have jurisdiction to award appropriate compensation for any damage resulting from excavation or demolition work close to the flank wall and the adjoining planter which could and should have been, but had not been, made subject to an appropriate award prior to work starting and which undermined and damaged the foundations and the property that they supported (see sections 7(2),10(1), 10(12), 10(13)(c)) and 17 of the Party Wall Act ).
— Mr Timothy Crowley t/a Crowley Civil Engineers v Rushmoor Borough Council [2009] EWHC 2237 (TCC)

34.   Crowley also appears to support the surveyors awarding compensation

103 Firstly, the relevant arbitration provisions provided for by the Party Wall Act can always be operated retrospectively. These provisions involve the appointment of surveyors to resolve disputes arising in connection with any matter connected with any work to which the Party Wall Act relates. The surveyors so appointed would have jurisdiction to award appropriate compensation for any damage resulting from excavation or demolition work close to the flank wall and the adjoining planter which could and should have been, but had not been, made subject to an appropriate award prior to work starting and which undermined and damaged the foundations and the property that they supported (see sections 7(2),10(1), 10(12), 10(13)(c)) and 17 of the Party Wall Act ).
— Mr Timothy Crowley t/a Crowley Civil Engineers v Rushmoor Borough Council [2009] EWHC 2237 (TCC)

35.   In principle Lea Valley Developments Limited as far as this writer is concerned gives clear authority on the application of section 7(2) by surveyors as Mrs Justice O’Farrell DBE stated:-

28. The Act provides a comprehensive code by which any disputes in relation party wall matters can be determined without recourse to the courts. Sub-section (12) of s.10 is in very wide terms. It enables the surveyors not only to determine the works that may be carried out and the manner in which they may be carried out, but also any other matter arising out of or incidental to the dispute and I think it is common ground between the parties that that includes the power to award the appropriate compensation in accordance with s.7 .
— Lea Valley Developments Limited v Thomas William Derbyshire [2017] EWHC B22 (TCC)

36.   This also appears to be the stance taken by HHJ Bailey in Heshmat Hassan Bibizadeh Janet Catherine Bibizadeh Appellants v Ana Dodosh Respondent Claim No. B20CL043 Tuesday, 15th September 2015, a case heard in the Central London Court whereby he stated:-

95. There is also the authority given by The Act to the party wall surveyors to make an award compensating any adjoining owner “for any loss or damage which may result to them by reason of any work executed in pursuance of this Act”. That, it seems to me, properly construed, provides that a party wall award may include compensation for an adjoining owner for works carried out, including works which were carried out before the making of an award but which are retrospectively authorised by the award.

96. As already noted the fact that a trespass has been committed by building works does not preclude the making of an award which retrospectively authorises that Act. The fact that liability for past trespasses is not removed by The Act does not preclude compensation being awarded for acts executed under works which are authorised by an award, even after the works in question, or some of them, have been completed.
— Heshmat Hassan Bibizadeh Janet Catherine Bibizadeh Appellants v Ana Dodosh Claim No. B20CL043 Tuesday, 15th September 2015

HHJ Bailey has stated that compensation can be awarded for works carried out prior to an award retrospectively authorising the work, HHJ did not state that the works were not in ‘pursuance with the Act’.

37.   In Lea Valley Developments Limited the surveyors had been appointed and the requisite notices, and subsequent Award served. In our scenario we would have to rely upon the Judge exercising such discretions as given by Haydon’s Case. However, if we read section 6(10)

Nothing in this section shall relieve the building owner from any liability to which he would otherwise be subject for injury to any adjoining owner or any adjoining occupier by reason of work executed by him.

38.   The imperative phrase within 6(10) is ‘Nothing in this section shall relieve……’ so if the building owner commences section 6(1) without serving notice he is not relieved of his liabilities. There could be a paradoxical situation whereby some would argue that 6(10) cannot apply because a notice as per 6(5) has not been served. However, the opening line of section 6 tells us the criteria which ‘applies this section’ and describes the building works that cause it to be applied. It does not say that a notice is the prerequisite to applying section 6, in contrast section 6(5) states that where this section applies ‘…. Serve on the adjoining owner a notice….’. Again, this clarifies that a notice is not what invokes the Act with regard to section 6 works; the notice requirements are only a sub-section. The failure to comply with a subsection cannot dis apply the section nor the Act per se.

6(1) This section applies where

(a) a building owner proposes to excavate, or excavate for and erect a building or structure, within a distance of three metres measured horizontally from any part of a building or structure of an adjoining owner; and

(b) any part of the proposed excavation, building or structure will within those three metres extend to a lower level than the level of the bottom of the foundations of the building or structure of the adjoining owner.

6(5) In any case where this section applies the building owner shall, at least one month before beginning to excavate, or excavate for and erect a building or structure, serve on the adjoining owner a notice indicating his proposal….

39.   Section 1 is not dissimilar in that section 1 applies where ‘lands of different owners adjoin’ ‘This section shall have effect where lands of different owners adjoin and- …’ again the notice requirement is a sub-sectional requirement.

40.   Section 2 is also quite explicit as to when it applies, and it is not when a notice served. Section 3 places an obligation on the building owner to serve a notice before exercising any rights bestowed upon him by section 2.

2(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.

2(2) A building owner shall have the following rights- ….. etc.

41.   We are made aware of when this section applies, it also tells us that the building owner has rights and if for example we refer to section 2(2)g he has the right to cut away a chimney breast. In reference to section 2(2)g, section 2(5) informs us that  

Any right falling within subsection (2)(f),(g) or (h) is exercisable subject to making good all damage occasioned by the work to the adjoining premises or to their internal furnishings and decorations.

42.   I find it difficult to reconcile the fact that a building owner who exercises his rights under section 2 but does not comply with his obligation to serve the requisite notice as required by section 3 is relieved of his liabilities under section 2(3) – (5).

43.   In reading the opening text in section 3 we see that it instructs the building owner to serve notice ‘Before exercising any right conferred on him by section 2 a building owner shall serve on any adjoining owner a notice..’  prior to exercising his rights under section 2. Does section 3 remove his rights if he fails to serve notice and liabilities?

44.   In conclusion if we read the sections of the Act in the way as stated in Kaye all three sections clearly state when they ‘apply’ or ‘have effect’ and they apply to both parties, and it is not when a notice is served. The notice requirements are obligations placed upon the building owner, therefore, irrespective of whether the building owner serves notice or not the benefits / provisions bestowed upon the adjoining owner by the Act are still active and the provisions i.e. utilisation of section 10 still open to him to follow. There is nothing within the Act that removes these options from the adjoining owner, the lack of a notice certainly does not do this.

45.   Furthermore, if works have commenced, a retrospective notice cannot be served and therefore, even if an injunction is successfully sought and the Act engaged, the works cannot be, as stated in various sections, in pursuance of the Act due to the non-service of the requisite notice if ‘in pursuance of the Act’ is taken at face value. This appears to be a paradoxical solution to ‘no notice – no Act’. I believe the notifiable works would still be ‘in pursuance’ because they are still works connected to the Act and the adjoining owner has not been ousted by the building owner’s failure to serve notice.

46.   In my opinion if a building owner does not fulfil his obligations in serving notice on the adjoining owner and this neglect of duty removes the building owner’s liabilities and the protections offered to the adjoining owner by the Act then it must be an absurdity. If the doctrine of ‘no notice – no Act’ is adopted the adjoining owner must resort to the ‘law’ which defeats the ‘purpose’ of the Act with regard to the adjoining owner, remember  ‘…it sets out to protect existing structures; there is a clear liability for damage and making good; there is provision for the resolution of disputes, other than by going to law;….’ [Hansard]

*My understanding is that Heydon’s case is the foundation of the ‘mischief rule’ in which the Judge has the authority to ‘amend’ the statutory legislation to suit the circumstances of the current case if he feels that the current legislation does not meet the needs it was intended to. 

The Act or common law?

Heydon's Case [1584] EWHC Exch J36

Bearing in mind the 435 year old Heydon’s Case was decided prior to the predecessor Acts related to the current Act became legislation. In an action determining the validity of a lease the court (Lord Coke and Barons) formulated the mischief rule. In applying the mischief rule the court must discern and consider: [responses added by LK]

  1. What was the common law before making the Act?

    1. was there a ‘common law’ regarding excavations on the building owner’s own land, working on a party wall or building on the line of junction?

  2. What was the mischief and defect for which the common law did not provide?

    1. Are damages resulting from the matters referred to in sections 1, 2 + 6 of the Act mischief for which the common law did not provide a remedy? is there common law to prevent someone excavating on their own land? or cutting into their side of the party wall? or building up to the line of junction? Is there actually a ‘common law’ at all regarding these matters if the Act supplants common law and the Act suppresses the mischief for which the common law did not provide?

  3. What was the remedy Parliament passed to cure the mischief?

    1. Various Building Acts culminating in the current Party Wall etc. Act 1996.

  4. What was the true reason for the remedy?

    1. to protect existing structures; there is a clear liability for damage and making good; there is provision for the resolution of disputes, other than by going to law; [Hansard]

The role of the judge is to suppress the mischief and advance the remedy.

If the role of the judge is to suppress the mischief and advance the remedy, how could he accept the ‘no notice - no Act’ scenario?

Extract from the Judgement:-

And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:

1st. What was the common law before the making of the Act.

2nd. What was the mischief and defect for which the common law did not provide.

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.

4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

 

A recent example of the usage of the mischief rule was shown in Smith v Hughes [1960] 1 WLR 830

The defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public.

Held:

The court applied the mischief rule holding that the activities of the defendants were within the mischief the Act was aimed at even though under a literal interpretation they would be in a private place.
— Smith v Hughes [1960] 1 WLR 830


 Cases referred  to in this document

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..............................................................................................

Hassan Bibizadeh & Janet Catherine Bibizadeh v Ana Dodosh Claim No. B20CL043...........…………..

Lea Valley Developments Limited v Thomas William Derbyshire [2017] EWHC B22 (TCC)...................

Udal v Dutton [2007] EWHC 2862 (TCC)…………………………………………………………..

Bridgland and another v Earlsmead Estates Ltd 1st July 2015 Queen's Bench Division, Technology and Construction Court (Birmingham District Registry)…………………………………………………………………………………..

Heydon's Case [1584] EWHC Exch J36...........................................................................................

Roadrunner Properties Limited v Dean and another [2003] EWCA Civ 1816.....................................

Heshmat Hassan Bibizadeh & Janet Catherine Bibizadeh v Ana Dodosh Claim No. B20CL043........

Smith v Hughes [1960] 1 WLR 830................................................................................................