Why Power and Kyson v Shah should be reconsidered Power and another v Shah [2023] EWCA Civ 239 held that, where a building owner undertakes work without the notice required by section 3 of the Party Wall etc Act 1996, no dispute capable of engaging section 10 can arise and any resulting award is void. That is binding law, but it should not be the final word. The difficulty is not that notice is mandatory; it plainly is. It is the further conclusion that breach of that duty removes the adjoining owner’s access to section 10. Neither section 3 nor section 10 says so. The statute first identifies qualifying work and confers rights. Section 3 then addresses a person already described as a building owner and a right already conferred, before imposing the separate notice obligation that regulates its exercise. Section 10 finally provides for actual or deemed disputes connected with work to which the Act relates. Shah itself contained a concrete actual dispute. The adjoining owners alleged removal of a projecting chimney breast and resulting damage; Mr Shah denied both and said it had previously been removed. No court determined that threshold fact. The Court of Appeal instead adopted a rule under which the factual answer made no difference: without the building owner’s notice, section 10 was unavailable either way. A narrower alternative avoids unlimited retrospective jurisdiction. Section 10 can be engaged where work objectively falls within sections 1, 2 or 6 and an actual statutory dispute arises, despite non-service. Surveyors still lack jurisdiction over independent common law claims, and the court retains power to determine the jurisdictional facts and statutory limits. Mr Shah carried out refurbishment works at 34 Bull Lane. The owners of the adjoining property alleged that those works included removal of a chimney breast on the party wall and caused damage. Mr Shah denied that he removed the chimney breast and denied liability. No section 3 notice had been served. Surveyors appointed under section 10 made an award finding that work within section 2(2)(g) had occurred, awarding compensation and their fees. Mr Shah sought a declaration that the award was void. HHJ Parfitt accepted the formulation ‘no notice, no Act’. Eyre J dismissed the appeal. The Court of Appeal agreed. Coulson LJ held in substance that service of notice was fundamental to the statutory scheme; without it, no actual or deemed dispute arose for section 10 purposes. Lewison LJ and Laing LJ agreed, although Lewison LJ gave additional reasons based on the legislative history and the definition of building owner in section 20. The Court of Appeal was not deciding whether the chimney breast had been removed. It expressly recorded that the underlying allegations and denials remained to be determined. Nor was it deciding whether notice was optional. Everyone can accept that section 3 imposes a mandatory obligation before a section 2 right is exercised. The decisive step was different: non-service was elevated from a breach by the building owner into a condition precedent to the adjoining owner’s access to section 10. That is the step this article challenges. A mandatory duty and a jurisdictional condition are not the same legal thing. A statute can require A to do X, penalise or disadvantage A for failing to do X, and still preserve B’s statutory remedy. The question is therefore not whether Mr Shah complied with section 3. He did not serve notice. The question is whether Parliament also intended his noncompliance to extinguish the neighbouring owners’ statutory forum, although section 10 does not say so. The notice duty may be mandatory without being constitutive of the Act itself. The issue is the consequence of breach, not the existence of the duty. The structure of the 1996 Act begins with land, ownership and work. Section 1 deals with new building at the line of junction. Section 2 identifies rights in relation to party structures. Section 6 addresses excavation within prescribed distances and depths. Each provision first identifies an objective physical situation. Notice follows because the situation exists and the owner proposes to exercise a statutory right. The notice does not turn ordinary work into qualifying work; it communicates and regulates work that already answers the statutory description. Section 6 illustrates the order with particular clarity. It operates ‘in any case where this section applies’ and then requires notice. Applicability therefore precedes service. The same logic is embedded in sections 2 and 3. Section 2(2) confers specified rights. Section 3(1) addresses a building owner before he exercises a right already conferred by section 2 and imposes the obligation to serve notice. Section 3(3)(a) then permits exercise of the same right with the adjoining owners’ written consent notwithstanding the absence of a party structure notice. That language distinguishes the existence of the right and the owner’s status from the lawful conditions governing its exercise. The distinction is ordinary but important. A motorist may possess a licence while failing to comply with a condition regulating its use. A contracting party may possess a right while attempting to exercise it without satisfying an applicable precondition. Likewise, an owner may have a statutory right to cut away a projecting chimney breast while failing to satisfy the procedural protection required before doing so. The failure matters greatly: it may deprive the owner of statutory authority and expose him to injunction, damages or other consequences at common law. But it does not follow that the work ceases to be work described by section 2(2)(g), or that a dispute about it loses every statutory character. The witness statement filed in the original proceedings put the structural point bluntly: ‘the notice provisions are a subsection of the Act; the Act is not a subsection of a notice provision.’ The language was polemical, but the underlying proposition is sound. To treat notice as the event that creates the Act reverses the statutory sequence. Notice is required because the Act already applies to the contemplated work. This distinction was recognised in Bridgland v Earlsmead Estates Ltd [2015] EWHC B8 (TCC). The court distinguished between having rights under section 2 and exercising them in compliance with sections 3 and 7. Failure to comply with section 3 did not make the separate obligations imposed by the Act disappear. Bridgland did not decide the precise issue in Shah, and it should not be presented as if it did. Its conceptual distinction nevertheless answers an assumption on which Shah depends. The grammar of sections 2 and 3 reinforces that distinction. Section 2(2) provides that a building owner ‘shall have’ the listed rights. Read in sequence, section 3(1) then contains three separate propositions: The first two propositions are not expressed as consequences of the third. Section 3 addresses a building owner and a right already conferred before it imposes the notice obligation. The statutory sequence is therefore status, right and obligation—not notice followed by status and right. Section 3(3)(a) is an internal confirmation. It permits a building owner, with the adjoining owners’ and occupiers’ written consent, to exercise a section 2 right without serving a party structure notice. Notice therefore cannot invariably be the event which creates the right or building-owner status. It is a procedural protection governing one route by which the right may lawfully be exercised. If section 2 rights and building-owner status exist only after compliance with section 3, the obligation becomes self-cancelling. Only a building owner is required to serve notice. Yet, on that theory, the owner who fails to serve is treated as never having been a building owner and therefore as never having been subject to the obligation which he failed to perform. The more natural reading is that section 2 confers the substantive entitlement, section 3 imposes a precondition on lawful exercise, and section 10 supplies machinery for disputes connected with the relevant work. That reading also preserves the protective asymmetry of the statute. The building owner receives exceptional rights which may authorise interference with another’s property. The adjoining owner receives advance information, an opportunity to dissent, security and a specialist procedure. If the building owner omits the step that protects the neighbour, the coherent consequence is that the building owner loses the benefit of lawful statutory authorisation. It is not coherent to add that the adjoining owner must also lose the specialist remedy provided for disputes about the same work. Louis v Sadiq [1997] 1 EGLR 136 supports the first proposition: a defaulting building owner could not rely on the legislation as a shield against common law liability after failing to use the statutory procedure. It did not decide the second proposition. It did not hold that the adjoining owner was barred from invoking section 10, under different wording, to address a statutory dispute. Converting a restriction on the defaulting owner’s defence into a restriction on the innocent neighbour’s remedy extends the holding beyond the issue decided. The distinction also identifies a possible statutory route for the making-good element of the award. If the chimney-breast removal was work within section 2(2)(g), section 2(5) made that right exercisable subject to making good all resulting damage. Section 11(8) gives an adjoining owner the right to require the expense of making good to be determined under section 10 and paid instead of physical reinstatement. This does not independently prove jurisdiction: it depends on the premise that non-service removes statutory authority for the exercise but does not erase the right and its accompanying obligation. Once that premise is accepted, however, the Act expressly provides a route to a monetary determination by the surveyors. Section 10(1) applies where a dispute ‘arises or is deemed to have arisen’ between a building owner and an adjoining owner in respect of a matter connected with work to which the Act relates. The conjunction and the different verbs matter. Parliament identified two routes: an actual dispute and a dispute created by statutory deeming. A deemed dispute is necessary when there may be no articulated disagreement at all. Under section 5, a recipient who does not consent within 14 days is deemed to have dissented. Notice is indispensable to that mechanism because the recipient must have something to answer. It protects the process from paralysis by silence. An actual dispute is different. It exists when the owners have adopted opposing positions about a relevant matter. It requires a participating adjoining owner, not an absent one. The contrast can be stated simply: a deemed dispute substitutes a statutory conclusion for a response that was not given; an actual dispute records a disagreement that was given. Importing the notice condition needed for the fiction into the independent actual-dispute limb collapses the two alternatives. Coulson LJ considered that there was only a ‘vanishingly small chance’ that Parliament intended actual disputes to arise without notice while deemed disputes required it. With respect, that conclusion assumes the two routes perform the same function. They do not. There is nothing improbable about Parliament requiring notice before silence can count as dissent, while permitting an express disagreement about objectively qualifying work to count as an actual dispute. That is exactly the work performed by the words ‘arises or is deemed to have arisen’. Section 1(8) reinforces the point modestly. It expressly sends a later dispute about the proportion payable for use of a wall to determination under section 10. That is not proof that every section 10 dispute is notice-independent. It does show, however, that section 10 is not conceptually limited to the deemed-dispute mechanism under section 5. The Act itself recognises actual disputes arising from identified statutory subject matter. The actual-dispute argument is not an academic invention. Shah supplied a concrete example. The adjoining owners said that Mr Shah had removed a chimney breast projecting from the party wall and that the removal caused damage. Mr Shah said that he had not removed it because a previous owner had already done so, and he denied causing the damage. Those were opposing positions about both the occurrence and consequences of an operation expressly identified in section 2(2)(g). The evidence was not one-sided. The papers referred to sales material, a floor plan and a previous owner’s account said to indicate that the chimney breast remained; photographs and debris were relied on as consistent with removal; and access to Mr Shah’s property was not provided to the surveyors. Mr Shah’s planning consultant relied on other photographs and maintained that the relevant work was not undertaken during the refurbishment. The surveyors considered the material available to them and made a finding in the award. None of the three courts determined whether that finding was correct. The factual question was jurisdictional in a practical sense. If the chimney breast had already been removed, section 2(2)(g) might not be engaged by Mr Shah’s work. If he removed it, the operation was at least capable of being notifiable and his failure to give notice became legally significant. A bare allegation by an adjoining owner cannot manufacture jurisdiction. Equally, a bare denial by a building owner should not conclusively destroy it. Some decision maker must determine the threshold fact. The Court of Appeal did not overlook the factual dispute; it made the dispute legally unnecessary. Under its construction, the result is the same whichever factual case is true. If no notifiable work occurred, section 10 does not apply. If notifiable work did occur but no notice was served, section 10 still does not apply. The rule therefore prevents the statutory tribunal from deciding the very fact that determines whether the notice obligation was breached. That does not leave the denial literally self-proving. A court can investigate the facts in common law proceedings. The narrower and more defensible criticism is institutional: the building owner’s omission is sufficient to disable the specialist statutory forum, even where the existence of notifiable work is the subject of an express dispute. The neighbour must begin ordinary litigation to establish whether the statutory duty arose, although section 10 was designed to resolve disputes connected with precisely that class of work. Neither section 10(1) nor section 10(10) says ‘provided that a notice has been served’. Section 10(1) identifies the parties, the existence of a dispute and its connection with work to which the Act relates. Section 10(10) authorises the agreed surveyor or two surveyors to make and serve an award determining the matter. The statutory phrase is ‘work to which this Act relates’, not ‘work in respect of which a valid notice has been served’. The difference in language is especially important when section 7(2) is placed alongside section 10. Section 7(2) refers to loss or damage resulting from work executed ‘in pursuance of this Act’. Section 10 uses the broader relational formula. Parliament knew how to tie a consequence to work done under statutory authority. It chose different words when describing the subject matter of the dispute jurisdiction. This does not mean that any building operation near a boundary is enough. ‘Work to which this Act relates’ supplies a real limit. The operation must objectively fall within the classes addressed by sections 1, 2 or 6. The dispute must be between the statutory categories of owner and concern a matter connected with that work. The award must remain within section 10(12). A court can review each jurisdictional fact. What the text does not supply is the additional requirement that the person alleged to have breached the notice duty must first have complied with it. The appellants’ 2020 skeleton therefore framed the issue accurately: the surveyors’ jurisdiction depends on the notifiability of the work, not on service of notice. That submission does not abolish notice. It separates the objective subject matter of the Act from one party’s procedural compliance. It also prevents the statutory duty from being converted into a unilateral power to determine whether the other party may use the Act. The Court of Appeal drew support from the proviso in section 10(12), which prevents an award from authorising work before the period specified in the relevant notice has expired. The reference to notice was treated as indicating that section 10 presupposes notice throughout. That is more weight than the proviso can bear. Section 10(12) describes several kinds of determination: the right to execute work, the time and manner of execution, and other matters arising out of or incidental to the dispute. A proviso directed to the earliest date on which future work may be executed naturally applies to an award that regulates future execution. It does not necessarily define the gateway for every other matter within the subsection, especially compensation or consequences of completed work. The award in Shah was not an award fixing a future start date for authorised work. It dealt with work alleged to have been completed, resulting damage and costs. There was therefore no period appointed by the award for execution to which the proviso could sensibly attach. A condition governing one species of award cannot silently become a jurisdictional condition governing every species. The same caution applies to the notices discussed in Kaye v Lawrence [2010] EWHC 2678 (TCC). The relevant notice under section 12 is a demand by an adjoining owner for security for expenses. It is not the building owner’s party structure notice under section 3. Treating references to different notices as if they all demonstrate one universal gateway obscures the allocation of duties within the Act. Woodhouse v Consolidated Property Corporation Ltd [1993] 1 EGLR 174; (1993) 66 P & CR 234 concerned section 55 of the London Building Acts. That provision linked the surveyors’ jurisdiction expressly to works that were the subject of notice and to consent for those works. The Court of Appeal held that surveyors could not determine an independent claim for damage outside that statutory context. The principle that statutory surveyors possess only the jurisdiction Parliament gives them is uncontroversial. The question is what Parliament gave under the differently worded 1996 Act. Section 10(10) of the 1996 Act does not repeat the earlier express tie to notice. It speaks of any matter in dispute connected with work to which the Act relates. That change is not conclusive, but it is difficult to treat it as immaterial. If Parliament intended precisely the former notice-limited jurisdiction, reproduction of the former language was the direct route. Lewison LJ relied on the principle associated with Barras v Aberdeen Steam Trawling and Fishing Co Ltd, under which reenactment of language that has received a settled judicial construction may carry that meaning forward. But he also recognised that this was not a straightforward case of the same word or phrase being reenacted. The jurisdictional wording changed. The principle is least secure where the supposed continuity depends on reading back into the new text a limitation that the new text no longer states. The legislative history therefore supports a more restrained conclusion. Woodhouse remains important when identifying the boundary between statutory and common law disputes. It does not answer whether Parliament broadened the route into section 10 in 1996. Using it to imply the omitted notice condition risks allowing the predecessor Act to control language Parliament deliberately recast. The authorities relied on in Shah establish limits, but none directly decided the issue before the Court of Appeal. Louis concerned whether a building owner who had not complied with the statutory procedure could claim the Act’s protection against common law liability. It supports denying a benefit to the defaulter. It does not decide whether the adjoining owner may invoke section 10. Reeves v Blake [2009] EWCA Civ 611; [2010] 1 WLR 1 concerned legal costs incurred in contemplation of litigation before notice was served. A valid notice was later served and a deemed dispute arose. The Court of Appeal held that the surveyors’ jurisdiction did not absorb costs associated with separate common law proceedings. That is a necessary boundary. It does not follow that notice is the only possible gateway for an actual statutory dispute. Nor would the construction advanced here allow surveyors to determine all common law causes of action. Schmid v Hulls, decided by HHJ Luba QC on 4 February 2016, came closer. Having considered a challenge to the notice, the judge stated that even if the notice were invalid he would have found jurisdiction under the broad language of section 10. He rejected the submission that completed works necessarily left only common law remedies. Those observations were obiter and were made without Reeves v Blake being cited. They are not binding. But they were a reasoned answer to the proposition later accepted in Shah, not an unexplained assumption that jurisdiction existed. Bridgland likewise did not decide notice-independent section 10 jurisdiction, but its distinction between having section 2 rights and exercising them lawfully undermines the claim that the Act has no application until notice. Crowley v Rushmoor Borough Council [2009] EWHC 2237 (TCC) also treated notifiability as objective, although its observations were not determinative. Read together, these cases do not settle the issue against Shah. They do show that the contrary construction had a respectable doctrinal foundation and had been judicially articulated before the appeal. Section 20 defines a building owner as an owner ‘desirous of exercising rights under this Act’. Eyre J and the Court of Appeal treated that language as supporting the conclusion that Mr Shah, who did not purport to invoke the Act, was not acting as a statutory building owner. On a purely subjective reading, an owner can avoid the statutory category by saying that he did not wish to exercise statutory rights or did not believe the Act applied. Sections 2 and 3 supply the immediate context for that definition. Section 2 says that a building owner shall have the listed rights. Section 3 addresses him as a building owner before requiring notice and describes the right as already conferred. The obligation is to serve notice before exercise; compliance is not expressed as the event which creates either the person or the entitlement. Section 3(3)(a), by permitting consensual exercise without a party structure notice, confirms that notice cannot invariably be constitutive of either. The content of the right matters. Section 2(2)(g) describes cutting away a projecting chimney breast as one of the rights conferred on a building owner. Service of notice is not itself one of those rights; it is the obligation regulating how that right may be exercised. An owner who intends to perform that physical operation is therefore desirous of doing the very act which Parliament has characterised as the exercise of a section 2 right, whether or not he recognises its legal source or intends to follow the statutory procedure. That does not decide whether Mr Shah performed the operation—the point was factually disputed—but it explains why his attitude to notice cannot alone answer the section 20 question. The Court did not literally replace the word ‘rights’ in section 20 with ‘obligations’. The functional effect of its reasoning, however, is to make a rights-based definition depend upon the owner’s conscious invocation of, or attitude towards, the procedural obligation regulating exercise. Rights are exercised; obligations are performed or breached. Treating willingness to perform the obligation as the operative content of ‘desirous of exercising rights’ collapses categories which the Act keeps separate. Section 3 begins with the person and the right, and then imposes the duty. Failure at the third step cannot, without clear words, retrospectively erase the first two. That creates a serious and self-cancelling circularity. Section 3 imposes the notice obligation on a building owner before a section 2 right is exercised. If failure to serve means that the owner never had that status, there is no statutory person upon whom the unperformed obligation operated. Equally, if the owner is not a building owner unless he consciously elects to use the Act, the duty depends on the very legal understanding it is designed to regulate. An owner advised—rightly or wrongly—that the Act does not apply could cease to be within the definition even while physically performing the operation Parliament listed. A more coherent reading is objective and contextual. An owner who proposes to perform an operation for which the Act confers special rights is desirous of exercising that right in the relevant statutory sense, whether or not he acknowledges the legal source. Intention attaches to the physical operation, not to an informed election to adopt a statutory label. The definition begins with the qualification ‘unless the context otherwise requires’, which cautions against forcing one formulation into a context where it defeats a mandatory duty. That does not require section 20 to be rewritten as though it referred merely to works of a description contained in the Act. It recognises that a person can intend to perform the act which constitutes the exercise of a legal right without correctly identifying, or even acknowledging, the legal source of that right. Knowledge of the statute and compliance with its procedure are evidence of intention; they are not the only possible means of establishing it. The terminology used throughout the litigation reinforces that distinction. HHJ Parfitt expressly introduced Mr Shah as ‘the BO’ and continued to use that description while recording both the absence of notice and Mr Shah’s insistence that the Act did not apply. Coulson LJ framed the issue at paragraph 1 by referring to ‘the building owner’ who had served no notice and maintained that the Act was inapplicable. At paragraph 25 he referred to rights which the building owner has under section 2 before stating that those rights could not lawfully be exercised without notice. That language treats status as preceding procedural compliance. It cannot create jurisdiction by concession or terminology, but it sits uneasily with the later suggestion that failure consciously to invoke the Act prevents the person from being a building owner at all. Roadrunner Properties Ltd v Dean [2003] EWCA Civ 1816 provides particularly clear corroboration. The relevant work fell within section 2(2)(f), but no section 3 notice had been served. Chadwick LJ nevertheless described Mr Dean at paragraph 8 as the owner ‘who was the building owner in this context’ and immediately recorded the absence of notice. At paragraph 29 the evidential disadvantage was attributed to the building owner’s failure to comply with statutory obligations. The court therefore treated Mr Dean as a building owner whose non-service constituted noncompliance, rather than as an owner who never acquired that statutory status. Roadrunner did not decide whether section 10 could be invoked without notice. The adjoining owner brought common law proceedings, and paragraph 9 expressly left open whether a claim for breach of statutory duty under sections 2(5) or 7(2) was also available. Its holding concerned proof of causation after the absence of notice had deprived the adjoining owner of contemporaneous evidence. Roadrunner is therefore corroborative on status and statutory obligation, not direct authority for notice-independent surveyor jurisdiction. None of these authorities decided the precise section 20 question resolved in Shah. Their significance is narrower: they treated building-owner status, or obligations attached to that status, as capable of existing despite non-service. That usage cannot confer jurisdiction, but it is not readily reconciled with the proposition that non-service means the statutory status never arose. The point should not be overstated. The opening qualification in section 20 is common drafting and does not itself decide the case. Judicial use of ‘building owner’ may sometimes be convenient shorthand, and the parties cannot confer statutory jurisdiction by agreement or labelling. Nor does carrying out work within a physical description automatically establish every statutory fact. The force of the terminology lies in its consistency with the structure of sections 2 and 3 and, in Roadrunner, with a substantive finding of statutory noncompliance. On that reading, notice conditions the lawful exercise of a right; it does not create the identity of the person upon whom the notice duty falls. The Court of Appeal was concerned that a notice-independent section 10 jurisdiction might compel a person who never invoked the Act to submit to a statutory tribunal and might create forum shopping between surveyors and the courts. Those are legitimate concerns. They do not, however, establish the meaning of section 10. The Act already contains compulsion. A building owner’s notice can trigger a deemed dispute without the adjoining owner’s affirmative choice. Section 10(4) permits an appointment on behalf of a party who refuses or neglects to appoint. The statutory system is not consensual arbitration. It is a compulsory dispute mechanism bounded by subject matter, statutory powers and judicial supervision. The proposed construction would not oust the courts. A party can challenge whether the work was within the Act, whether an actual dispute existed and whether the surveyors exceeded their powers. An award remains subject to the statutory appeal route where valid, and an award made without jurisdiction can be challenged as such. Common law claims beyond the award’s remit remain in court. Reeves v Blake preserves that boundary. Nor is forum choice a one-way objection. Shah gives the building owner a more consequential choice: by omitting notice, deliberately or innocently, he selects ordinary litigation for both parties and prevents the adjoining owner from selecting the statutory forum. The question is not whether choice exists, but which party Parliament authorised to control it. Nothing in section 10 expressly confers that control on the party whose omission created the problem. The official parliamentary materials describe the 1996 Act as extending a tried dispute-resolution scheme beyond London, providing a practical alternative to court and reducing conflict between neighbours. The Bill was presented as a ‘safety net and not a fiery hoop’, with the surveyor procedure described as a cost-effective route. Those statements cannot override clear statutory language and their admissibility in litigation is governed by orthodox principles. They nevertheless confirm the mischief to which the text was directed. Shah revives that mischief in the class of case most likely to require a practical remedy: work completed without notice, damage alleged, access disputed and facts contested. The adjoining owner retains common law remedies, so it is not literally remediless. But equivalence should not be assumed. Ordinary litigation is slower, more formal and often disproportionate to modest residential damage. It may require expert evidence, pleadings, disclosure and costs risk far beyond the amount in issue. The specialist process was designed to address boundary work promptly through surveyors familiar with construction, access, schedules of condition, making good and the sequencing of works. Removing that process after non-service does more than change the forum. It removes the possibility of early technical intervention, a reasoned award and a focused statutory allocation of costs. By the time common law litigation begins, evidence may have disappeared and the work may be concealed. The Court of Appeal regarded access to common law remedies as answering the suggested detriment. It answers the absolute claim that the adjoining owner has no remedy. It does not answer the statutory question whether Parliament intended the defaulting owner’s breach to remove the cheaper specialist route. A remedy can exist while a remedial purpose is still frustrated. The criticism is not a reconstruction made after the event. The County Court papers and the 2020 appellate skeleton advanced the substance of the argument years before the Court of Appeal judgment. The appellants relied on the distinction between actual and deemed disputes, the breadth of ‘any matter connected with any work to which this Act relates’, the change from the predecessor legislation, the different position of the innocent adjoining owner, and Schmid, Bridgland and Crowley. The skeleton stated that jurisdiction depended on the notifiability of the work rather than service of notice. The witness evidence expressed the structural circularity. The permission decision of Andrews LJ later recognised a real prospect of error in making the existence of the dispute depend on the building owner’s invocation of the Act rather than on work within section 2(2), and identified the practical concern that a building owner could frustrate the process by serving no notice. This matters for two reasons. First, it answers the suggestion that the alternative construction is an ingenious policy objection unsupported by the litigation. It was the appellants’ case. Second, it identifies the precise propositions requiring an answer in any future reconsideration. The issue is not whether non-service should be condoned. It is whether section 10’s express alternatives and its work-based language can be displaced by an implied condition controlled by the defaulting party. A workable alternative can be stated without giving surveyors a general jurisdiction over neighbour disputes. Section 10 should be capable of engagement without a building owner’s notice where four conditions are met. On that construction, notice remains mandatory. A building owner who starts without notice cannot obtain retrospective statutory permission for work undertaken without statutory authority, and cannot use the Act to erase common law liability. But the adjoining owner is not deprived of section 10 merely because the person under the duty failed to perform it. Surveyors may determine the statutory dispute, subject to judicial review of their jurisdiction and the statutory appeal regime. The court deciding a jurisdictional challenge would first ask whether the work was objectively within the Act. That may require evidence and factual findings. If the alleged chimney breast removal did not occur, the award would fail for want of statutory subject matter. If it did occur, the absence of notice would establish the building owner’s noncompliance, not the nonexistence of the dispute. This approach prevents allegations from manufacturing jurisdiction and denials from disabling it. It also preserves Reeves v Blake. Surveyors would not acquire jurisdiction over legal costs or damages belonging to separate common law litigation merely because those claims have some factual connection with building work. The words ‘to which this Act relates’ and the powers in section 10(12) continue to mark the boundary. The interpretation is broader than Shah at the gateway, but no broader at the perimeter. The case for reconsideration is cumulative. No single point needs to bear the entire argument. The result in Shah may have appeared to protect legal certainty: a notice is an easily identified gateway. But certainty purchased by adding words to a statute is unstable. It leaves difficult questions about late notices, invalid notices, works that change character during construction, and completed works after a valid invocation. More importantly, it makes statutory protection depend on compliance by the person from whom protection was required. A future appellate court could reconsider the issue while maintaining tight jurisdictional control. If precedent prevents that, Parliament can state expressly whether an actual dispute about objectively notifiable work may be referred to section 10 notwithstanding non-service, and can define the powers available once work is complete. Either route would be preferable to leaving the central consequence to implication. Power and another v Shah remains binding law. It follows that practitioners must presently advise that, without the relevant building owner’s notice, the section 10 machinery cannot be used and an award purporting to do so is vulnerable as void. The argument made here is not an invitation to disregard that rule. It is a demonstration of why the rule should be revisited. The objections developed above are not separate policy complaints. They are manifestations of one structural consequence: the adjoining owner’s access to the statutory scheme is made to depend upon the building owner’s performance of a duty imposed for the adjoining owner’s protection. The Act identifies the work, confers rights, imposes duties and provides a forum. Section 3 addresses a building owner and a right already conferred before imposing the notice obligation. Notice is an essential protection within that scheme. It does not follow that breach retrospectively erases the status, the right or the scheme for the adjoining owner. Section 10 distinguishes actual from deemed disputes; it refers to work to which the Act relates; and it does not state the condition the Court of Appeal imposed. Shah itself shows the consequence. There was an express dispute over whether a chimney breast had been removed, whether the work was notifiable and whether it caused damage. The facts were never decided because the absence of notice was treated as determinative whichever factual account was true. The party alleged to have omitted the statutory protection thereby removed the tribunal designed to resolve disputes connected with the protected work. That is not the only possible construction of the 1996 Act, and it is not the construction that best reconciles its words, structure, history and protective purpose. The more coherent rule is that non-service deprives the building owner of lawful statutory authority but does not, by itself, deprive the adjoining owner of section 10 where objectively notifiable work has generated an actual statutory dispute. On the materials before the courts, that argument was available, was made, and remains unanswered in its strongest form. © 2026 Lee Kyson Building Consultancy Ltd. All rights reserved.No Notice, No Act? Reconsidered
“The notice provisions are a subsection of the Act; the Act is not a subsection of a notice provision.”
Executive summary
Issue Why reconsideration is justified Statutory sequence The Act identifies qualifying work and confers rights before it requires notice. Section 3 presupposes a building owner and a right already conferred. Noncompliance removes statutory authority for the exercise; it does not logically erase the status, right or statutory subject matter. Actual and deemed disputes Section 10 uses alternatives. A deemed dispute follows statutory silence after notice. An actual dispute requires a real disagreement and needs no fiction. Section 10 text Neither section 10(1) nor section 10(10) makes a building owner’s notice an express jurisdictional condition. The authorities Woodhouse and Louis concerned materially different wording or different questions. Reeves v Blake involved a valid notice. Schmid and Bridgland point the other way, albeit with limits. Purpose and consequence The construction lets the party who breached the Act remove the specialist forum from the innocent neighbour, reviving the cost and delay the 1996 Act was enacted to reduce. 1The decision and the question it answered
2The Act precedes the notice
3Having rights and exercising rights
4Actual and deemed disputes are not the same
5Shah contained a concrete actual dispute
6Section 10 does not state the condition imposed by Shah
7Section 10 subsection 12 does not decide the case
8The predecessor legislation points away from an implied condition
9Louis Reeves Schmid and Bridgland
10The building owner definition cannot be a unilateral opt out
11The access to courts objection
12Purpose and the remedial vacuum
13The arguments were made before the decision
14The construction that better fits the Act
15Why Shah should be reconsidered
Conclusion
Authorities and source materials
Legal analysis