No Notice, No Act? Reconsidered

⚖️Executive summary

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.

Four further considerations strengthen that challenge. First, the Supreme Court has since reaffirmed that a mandatory statutory command does not itself answer what legal consequence Parliament intended for its breach. Secondly, section 3(3), read with sections 2(5) and 11(8), supplies an express sequence in which no party structure notice is served but statutory rights and obligations continue and a later making-good dispute may reach section 10. Thirdly, section 12 gives the adjoining owner a distinct notice by which to seek security, with any dispute expressly determined under section 10; unlike section 4, it does not expressly require prior receipt of the building owner’s notice. Fourthly, sections 3(2)(b) and 6(8) contemplate a notice ceasing to have effect. If notice is both the gateway into and the continuing foundation of the Act, expiry during commenced work becomes an exit from the scheme although the anticipatory notice requirements provide no clear route back for that same operation.

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.

⚖️1The decision and the question it answered

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.

🧭2The Act precedes the notice

The structure of the 1996 Act begins with land, ownership and proposed 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 that situation exists and an owner proposes the relevant operation. It communicates and regulates qualifying work; it does not turn unrelated work into work of the statutory description.

The long title identifies the subject matter, not the operative test

The long title describes an Act making provision for party walls, excavation and construction near certain buildings or structures, together with connected purposes. That is useful interpretive context: Parliament organised the scheme around physical subject matter and connected neighbour protection, not around notices as an end in themselves. But the long title is not a free-standing trigger. The operative conditions remain those Parliament enacted in sections 1, 2 and 6. The point is therefore narrower than saying that every wall or nearby excavation automatically attracts the Act: where the enacted physical and relational conditions are satisfied, the relevant section says that it applies or has effect before the later notice duty is stated.

Section 1: intention and status precede notice

Section 1(1) says that the section ‘shall have effect’ where adjoining land satisfies the specified boundary conditions and ‘either owner is about to build’ on the line of junction. Section 1(2) then says: ‘If a building owner desires to build’ a party wall or party fence wall, he shall serve notice at least one month before the work is intended to start. Section 1(5) repeats the same sequence for a wall placed wholly on the building owner’s land. The sequence is again physical setting, intention, statutory status and duty. An owner with no intention to undertake the relevant operation is not a building owner for that project merely because he owns adjoining land. Once either owner desires to undertake it, however, the subsection describes him as the building owner before requiring his notice.

The word ‘if’ in sections 1(3) and 1(4) does not make the section 1(2) notice optional. Those subsections prescribe the consequences after notice depending on whether the adjoining owner consents. They show that notice controls particular incidents of the proposed wall, not that notice first creates the owner’s intention or statutory identity. Section 1(6) is an instructive contrast: the particular right to place projecting footings under adjoining land is expressly confined to a period beginning one month after notice and ending twelve months after it. Where Parliament intended a particular right to depend upon, and be timed by, notice, it said so directly.

Sections 2 and 6: objective application and relational status

Section 2(1) likewise begins, ‘This section applies’, where land of different owners adjoins and the specified structure exists at the line of junction. That application is not expressed to depend on service. Section 2(2) then provides that a building owner ‘shall have’ the listed rights. The title ‘rights of owner’ does not mean that both owners simultaneously possess every construction right. Building-owner and adjoining-owner status is relational and project-specific: either owner may become the building owner according to who proposes the relevant work. A type (b) party wall or an external wall may belong wholly to one owner, so the analysis should not assume common ownership or common curtilage. What matters is the statutory structure and the proposed operation, not a permanent label attached to one neighbour.

Sections 2(3) to 2(7) then make particular rights exercisable subject to protective conditions, including making good damage, dealing with adjoining-owner flues and chimney stacks, and reconstructing parapets. Those provisions create correlative protections for the adjoining owner even though the substantive construction rights in section 2(2) are the building owner’s. Their placement and wording again distinguish the existence of the right from conditions attached to its exercise.

Section 6 follows the same pattern. Subsections (1) and (2) state when the section applies by reference to a proposed excavation, distance and depth. Subsection (3) says that the building owner shall, if required by the adjoining owner, underpin or otherwise strengthen or safeguard the adjoining foundations so far as necessary. Subsection (4) defines the adjoining owners for the section by proximity. Only subsection (5) then imposes the building owner’s notice duty ‘in any case where this section applies’. Textually, therefore, applicability, status and the adjoining owner’s safeguarding requirement are stated before notice. The order is not alone conclusive, but it is difficult to reconcile with a universal rule that none of those statutory concepts can exist until notice is served.

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 relevant statutory conditions and proposed work already call for it.

🏗️3Having rights and exercising rights

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 statutory person—‘a building owner’;
• the substantive entitlement—‘any right conferred on him by section 2’; and
• the procedural command—he ‘shall serve’ notice before exercising that right.

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) supplies an internal and conclusive answer to any universal constitutive theory. It identifies ‘a building owner’ exercising, with the adjoining owners’ and occupiers’ written consent, ‘any right conferred on him by section 2’ without requiring a party structure notice. Service of such a notice therefore cannot invariably create either the section 2 right or building-owner status. The notice ordinarily regulates one route by which an existing right may lawfully be exercised; it is not the event that creates the statutory person or the substantive entitlement.

Read with sections 2(5) and 11(8), the point goes beyond status. Section 2(2)(g) work may lawfully be carried out with written consent under section 3(3)(a), although no party structure notice has ever been served. If that work causes damage, section 2(5) makes the right exercisable subject to making good that damage. The adjoining owner may then elect under section 11(8) to receive the expense of making good instead, and that provision expressly gives the adjoining owner a right to require the expense to be determined in accordance with section 10. If the amount is not agreed, the result is a later actual dispute. Unless the written consent has itself disposed of those later consequences, the statutory sequence is therefore: no party structure notice, lawful exercise of a section 2 right, a making-good obligation, an actual dispute and determination under section 10.

The Act consequently contains at least one express statutory setting in which section 10 may operate although no party structure notice has ever been served. That does not decide the unconsented facts in Shah. It does, however, disprove any absolute proposition that a party structure notice creates the section 2 right, creates building-owner status, or is an indispensable gateway to every exercise of section 10 jurisdiction. ‘No notice, no Act’ cannot therefore operate as a complete description of the statutory scheme.

Section 3(3)(b), which dispenses with a party structure notice before specified work required by a public authority in respect of a dangerous or neglected structure, provides a second no-notice setting in which statutory rights and obligations continue to exist. These exceptions do not decide the unconsented facts in Shah. They do, however, demonstrate that notice is not the event which brings the Act into existence and cannot be an invariable existential condition of every section 10 dispute.

The notice-expiry paradox: a gateway with no way back

Sections 3(2)(b) and 6(8) provide that a notice shall cease to have effect where the work has not begun within twelve months and is not prosecuted with due diligence. The conjunction ‘and’ creates a drafting difficulty. Read literally, timely commencement appears to prevent expiry however long the work is then left dormant; read purposively, the provisions appear to require both timely commencement and diligent prosecution, so failure of either condition ends the notice. No appellate decision identified in the materials resolves that wording. The following point therefore proceeds on the familiar purposive reading that lack of due diligence can cause a notice to cease after work has begun.

The apparent purpose is to prevent indefinite reliance upon stale proposals. But Parliament specified that the notice ceases to have effect. It did not say that the building owner ceases to hold that status, that the underlying right disappears, that work already commenced ceases to relate to the Act, that surveyor appointments terminate, that an award becomes void or that accrued adjoining-owner protections are erased.

If, nevertheless, notice is treated as both the gateway into and the continuing source of the statutory scheme, expiry must also provide the exit. A valid notice engages the Act; work begins; want of diligent prosecution causes the notice to cease; and the broadest reading of Shah then leaves no effective notice capable of sustaining the Act. The parties would be expelled from the statutory scheme in the middle of the very operation it was regulating.

Nor is a fresh notice an adequate answer. Section 3 requires notice before a section 2 right is exercised and requires the party structure notice to precede the date on which the proposed work will begin. Section 6 likewise requires notice before excavation begins. Once the operation to which the expired notice related has commenced, a later notice cannot retrospectively restore that pre-commencement position. A new notice may address genuinely distinct future work, but the Act supplies no clear basis for redescribing the unfinished balance of the same commenced operation as work which has not yet begun. The difficulty is particularly acute where an excavation already exists.

The practical consequences expose the structural problem. On the broadest notice-gateway theory, the adjoining owner risks losing prospective statutory protection precisely when delay, incomplete work, defective temporary support or damage makes it most necessary. The building owner simultaneously risks losing statutory access under section 8 and other powers needed to complete, stabilise or make safe the work. Common law may provide injunctions or damages, but it does not reproduce the Act’s preventative and specialist machinery. A rule intended to prevent dilatory reliance on a stale notice would therefore punish the adjoining owner for the building owner’s want of diligence and may obstruct safe completion.

The resulting dilemma is direct. Either the parties’ status, existing dispute, accrued protections and properly engaged section 10 machinery survive the notice’s expiry—in which case a presently effective notice cannot be the continuing source of the Act—or they do not, in which case the gateway construction creates an irreversible statutory dead end. Shah concerned a case in which no notice had ever been served and did not decide this expiry question. The point is nevertheless a powerful internal test of its broader reasoning.

If notice creates the rights and the Act itself, its statutory expiry must destroy them. If expiry does not destroy them, notice cannot have created them in the first place.

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.

🧱4A mandatory duty does not determine the consequence of breach

The reasoning in Shah placed substantial weight on the mandatory character of section 3. Since that decision, the Supreme Court has restated the method to be used when Parliament imposes a procedural obligation but does not expressly prescribe every consequence of noncompliance.

In A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, at paragraphs 57 to 63 and 102 to 104, the Supreme Court returned to R v Soneji [2005] UKHL 49; [2006] 1 AC 340. The distinction between ‘mandatory’ and ‘directory’ requirements was described as conclusory rather than explanatory. The relevant question is whether, having regard to the language, purpose and scheme of the legislation and the consequences of noncompliance, Parliament can fairly be taken to have intended total invalidity.

The point is not that mandatory language becomes optional. The statutory duty remains binding. What must be separately identified is the consequence Parliament intended when the duty is breached. That inquiry may involve the purpose served by the requirement, the position of the person protected by it, the prejudice or injustice caused by treating the later process as effective, and the wider consequences of treating it as wholly invalid.

That method is directly relevant to section 3. The section says that the building owner ‘shall’ serve notice before exercising a section 2 right, but the 1996 Act does not expressly say that non-service retrospectively removes building-owner status, extinguishes the section 2 right and its attached obligations, or prevents every actual dispute from engaging section 10. Section 5 states what service followed by silence produces—a deemed dispute. Section 3(3) identifies circumstances in which a party structure notice is unnecessary. No corresponding provision says that the omission of notice annihilates every statutory consequence for the adjoining owner.

The protective purpose also matters. Section 3 requires advance information for the adjoining owner. Under Shah, breach of that protective requirement removes from that same adjoining owner the specialist procedure for investigating the work and determining a connected statutory dispute. The person protected by the duty bears a significant part of the consequence of its breach, while the person subject to the duty acquires control over whether the statutory forum can exist.

The duty to serve notice is mandatory. It does not follow, without a separate analysis, that Parliament intended its breach to produce the total invalidity of every later statutory process.

A1 Properties does not overrule Shah. It concerned a different statutory scheme and the omission of service on one stakeholder where notices had been served on others. It recognises that some notice requirements are intended to operate as strict bright lines and expressly left open the effect of a deliberate decision to evade a statutory procedure. Shah may therefore still be defended on the ground that section 3 notice is constitutive rather than merely procedural. But Shah did not rest on a finding of deliberate evasion in that sense: Mr Shah maintained that the relevant work had not occurred and that the Act did not apply. The constitutive reading must now be justified by the text, purpose and consequences of the 1996 Act as a whole. The mandatory form of section 3 cannot, by itself, supply the answer.

🔀5Actual and deemed disputes are not the same

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’.

The express no-notice situations in section 3(3) reinforce that distinction. A deemed dispute under section 5 cannot arise without notice because there is no unanswered notice from which dissent can be deemed. An actual dispute about making good after consensual work can arise from the parties’ later opposing positions and may be referred through section 11(8). The two limbs are therefore capable of doing materially different work within the statutory scheme.

Section 1(8) reinforces the point more broadly than a contribution provision alone: ‘Where any dispute arises under this section’ between the building owner and an adjoining owner or occupier, it is to be determined in accordance with 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 expressly recognises actual disputes arising under identified statutory subject matter and directs them to the same forum.

🧩6Shah contained a concrete actual dispute

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.

This also answers the objection that the adjoining owner would otherwise be able unilaterally to trigger the Act. On the alternative construction, appointment of a surveyor does not create the dispute or the jurisdiction. The objectively qualifying work and the owners’ opposing positions do so. Section 10(1) then provides the appointment machinery, and section 10(4) addresses the case in which one party refuses to participate. The surveyors’ view of a jurisdictional fact need not be conclusive: the court remains able to determine whether the statutory subject matter and dispute actually existed.

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.

📜7Section 10 does not state the condition imposed by Shah

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.

Section 10(12)(a), which permits an award to determine ‘the right to execute any work’, is also consistent with the surveyors addressing threshold statutory questions. It does not give them the final word on their own jurisdiction, but it is difficult to reconcile with the suggestion that every question about whether the Act confers the relevant right must be decided outside the statutory process before the surveyors may act.

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.

Section 12 supplies a distinct adjoining-owner notice and an express route to section 10

Section 12(1) provides that an adjoining owner may serve a notice requiring the building owner, before beginning work in the exercise of rights conferred by the Act, to give security in an amount agreed by the owners or, ‘in the event of dispute’, determined in accordance with section 10. This is not the building owner’s section 1, 3 or 6 notice. It is a separate protective notice initiated by the adjoining owner, and the subsection does not expressly say that it can be served only after the adjoining owner has received a building owner’s notice.

The contrast with section 4 is significant. Parliament made the counter-notice power expressly available to an adjoining owner ‘having been served with a party structure notice’. It used no equivalent gateway in section 12(1). On the natural sequence, an adjoining owner who independently learns of proposed qualifying work may demand security before work begins; disagreement over that demand is then expressly sent to section 10. That supplies at least an arguable statutory example of section 10 being reached without prior service of the building owner’s notice.

The fair counterargument is that the words ‘work in the exercise of the rights conferred by this Act’ mean only work which the building owner proposes to carry out lawfully after complying with every applicable notice requirement. On that reading, section 12 assumes a valid building owner’s notice even though it does not say so. But that construction assumes the very constitutive proposition in dispute and allows the building owner’s omission to defeat the adjoining owner’s preventative security right. The contrast with section 4 remains unexplained.

Section 12(3) adds a further drafting comparison. Where the adjoining owner fails for one month to comply with a reciprocal security notice or the surveyors’ determination, Parliament expressly provides that the adjoining owner’s requirement or notice ‘shall cease to have effect’. The Act therefore knows how to prescribe extinction as the consequence of noncompliance. Sections 3 and 10 contain no equivalent statement that failure by the building owner to serve his notice extinguishes the adjoining owner’s security entitlement, an actual dispute, or section 10 jurisdiction.

⏱️8Section 10 subsection 12 does not decide the case

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.

🏛️9The predecessor legislation points away from an implied condition

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 55(i) must be considered as a whole

Section 55(i) contained one jurisdictional command operating across two temporal limbs. It required the surveyors to settle matters in dispute before commencement of work to which a notice related and matters arising ‘from time to time during the continuance of such work’. The words ‘such work’ referred back to the notified work, so the second limb did not establish notice-independent jurisdiction under the 1939 Act.

It did establish that the historical model was not simply notice, one dispute, one award and exhaustion. The provision combined notice-based entry with continuing jurisdiction over successive disputes arising while the works progressed. Woodhouse addressed that second limb directly and confined a during-work dispute to matters relating to the statutory consent—for example, whether the building owner was complying with a condition governing the work—rather than an independent common-law claim. The point is therefore not that the continuing limb was overlooked. It is that the historical meaning contained both notice-related entry and a continuing statutory function during the work.

Section 10(10) of the 1996 Act does not reproduce either the earlier express tie to work identified by a notice or its former temporal formulation. It instead speaks of any matter in dispute connected with any work to which the Act relates. That change does not conclusively establish notice-independent jurisdiction, but neither can it safely be treated as immaterial. If section 55 supplies an inherited model, that model must be considered as a whole: it cannot provide only an implied notice condition while its continuing-jurisdiction component and Parliament’s changed language are given no interpretive weight.

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, while leaving behind the complementary feature of the historical scheme.

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.

📚10Louis Reeves Schmid and Bridgland

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.

🏷️11The building owner definition cannot be a unilateral opt out

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.

Section 1 shows how the definition operates in context. Subsection (1) begins with ‘either owner’ who is about to build; subsection (2) then calls the owner who desires the specified wall ‘a building owner’ before requiring notice. Status is therefore neither permanent nor produced by mere ownership. An owner who does not desire or propose the relevant operation is not the building owner for it. But once an owner does desire the operation, section 1 places the statutory label before the notice duty. Section 6 similarly begins with what ‘a building owner proposes’ and only later requires notice. Desire or proposal concerns the work; service is the consequent obligation.

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.

The qualification Parliament attached to the definition

Section 20 introduces its definitions with the words ‘In this Act, unless the context otherwise requires’. The word ‘means’ ordinarily supplies an exhaustive definition, but Parliament expressly subjected that meaning to the statutory context. The definition is therefore the normal starting point, not a free-standing rule detached from the provision in which the expression is used.

Context here means the statutory setting, not the owner’s subjective view of whether the Act applies. It includes section 2’s conferral of rights, section 3’s prior identification of the building owner and the right before imposing notice, section 3(3)’s lawful no-notice cases, section 10’s distinction between actual and deemed disputes, and section 20’s relational definition of the adjoining owner by reference to the building owner. It also includes the unresolved allegation that Mr Shah performed the precise operation identified in section 2(2)(g). Those provisions form the setting in which ‘building owner’ had to be understood.

The qualification is absent from the passages in both appellate judgments which set out and rely upon the definition. At paragraph 34 Eyre J reproduced the adjoining-owner and building-owner definitions without the opening words. At paragraph 57 he treated the definition as significant and said that it was most apt to describe a person expressly seeking prospectively to exercise statutory rights. Lewison LJ at paragraphs 95 and 96 likewise quoted the bare definition and rejected a reading based on an intention to execute work of a description contained in the Act. Neither judgment expressly asked whether the context supplied by sections 2, 3 and 10 required—or materially informed—a different application of the defined expression.

That omission is not conclusive. The courts were plainly considering the Act as a whole, and their wider reasoning may imply that they considered the context insufficient to displace the ordinary definition. The introductory qualification also governs every definition in section 20 and does not require a departure from ‘building owner’ in every case. But it cannot be treated as decorative. A construction under which context can never affect this expression would deprive the qualification of operative work in relation to it. Once the surrounding provisions were said to point away from a subjective opt out, the statutory question required an express answer rather than quotation of the defined words alone.

Two interpretive routes were available. The primary route requires no departure from the definition: an owner who intends to perform the physical operation which Parliament has characterised as a section 2 right is desirous of exercising that right in the relevant statutory sense, whether or not he recognises its legal source. Intention attaches to the operation, not to an informed election to adopt a statutory label. Alternatively, if the default definition requires conscious invocation of the Act, the context of an actual dispute under section 10 may require ‘building owner’ to mean the owner alleged to have undertaken or proposed the regulated work. Neither route deems a notice to have been served, retrospectively authorises the work, excuses breach of section 3 or makes every neighbour dispute statutory. It prevents the alleged defaulter’s subjective denial from deciding the threshold status question by itself.

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.

⚖️12The access to courts objection

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 accompanying concern that a surveyor need not possess a formal professional qualification, and that an appeal must ordinarily be brought within 14 days, is not unique to a notice-independent actual dispute. The same surveyor definition, tribunal and appeal period apply when the building owner serves notice and the adjoining owner is drawn into section 10. Parliament has accepted those features of the statutory forum. They cannot, without more, establish that notice was also intended to be an unstated jurisdictional condition.

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. Mr Shah’s Part 8 claim itself demonstrates that the 14-day appeal period did not prevent a jurisdictional challenge. 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 injunction paradox

Shah must be kept in its actual procedural setting. It arose after allegedly notifiable work and damage: the adjoining owners appointed a surveyor under section 10, a default appointment followed, and the resulting award determined that section 3 notice had been required, that the work caused damage and that compensation and fees were payable. It was not an injunction claim and did not finally determine a free-standing cause of action for breach of statutory duty. Its ratio was that the post-damage section 10 process had not been engaged because no section 3 notice had been served.

A prospective injunction presents a different sequence. If an adjoining owner asks the court to restrain imminent or continuing section 2 work until the section 3 obligation is performed, the court must first decide that the operation falls within section 2, that the actor is the building owner and that section 3 imposes the obligation said to be unperformed. Those propositions necessarily exist before notice. Non-service can constitute the default relied upon; it cannot simultaneously mean that the duty never attached.

That point does not itself establish notice-independent section 10 jurisdiction. The injunction may rest on threatened trespass or nuisance, and Parliament could in principle make notice a separate condition of the statutory tribunal even though the notice duty already exists. It does, however, show why ‘no notice, no Act’ is too wide as a universal proposition. The narrower and genuinely disputed question is whether section 10 contains the implied condition found in Shah.

A genuine High Court case in which prospective relief and the validity of an adjoining owner’s section 10 appointment were both necessarily in issue could provide an appellate vehicle. Any direct appeal would still require a High Court certificate under the Administration of Justice Act 1969 and permission from the Supreme Court; a merely distinguishable injunction case would not be enough. The argument and the procedural limits are developed separately in The Injunction Paradox.

🕳️13Purpose and the remedial vacuum

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.

The protections do not all depend on notice in the same way

The Act contains a network of linked rights, duties and protections. Some are expressly conditional on receipt of a building owner’s notice. Others are framed by reference to qualifying work, the exercise of statutory rights, or a separate notice served by the adjoining owner. Treating the building owner’s notice as a universal gateway flattens those differences.

This comparison does not establish that every protection survives every form of noncompliance. Section 7(2), in particular, applies to work executed ‘in pursuance of this Act’. That phrase supplies a substantial counterargument that statutory compensation under section 7(2) is confined to work carried out under statutory authority. Section 6(9) uses similar language. But Parliament used the broader expression ‘work to which this Act relates’ in section 10, while sections 2(5), 11(8) and 12 use their own formulations. The narrower wording in one protection cannot silently be substituted into every other provision.

The adjoining occupier sharpens the point. Sections 1(7), 3(3)(a), 6(10) and 7 protect or recognise occupiers as well as owners, yet an occupier may have no power to compel the building owner to give the initiating notice. A construction under which the building owner’s default removes those statutory incidents must therefore be justified by clear text, not simply by repeating that notice is important.

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.

Nor are the substantive protections necessarily equivalent. The authorities discussed in Shah recognise that the statutory scheme creates rights and liabilities which do not simply reproduce the common law. Section 2(5), for example, makes specified rights exercisable subject to making good all damage occasioned by the work, while section 11(8) supplies the route for valuing a payment in lieu. That language is at least potentially broader than claims whose success depends on proving negligence, an unreasonable interference or a trespass. It would be unsafe to label section 2(5) conclusively as strict liability without fuller argument, but it is equally unsafe to assume that the same entitlement, burden of proof and remedy survive outside the Act.

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 establish ‘no ultimate detriment’ if a potentially different statutory liability, evidential position and specialist remedy have been lost. Nor does it answer the statutory question whether Parliament intended the defaulting owner’s breach to remove those protections. A remedy can exist while both a remedial purpose and a substantive protection are still frustrated.

📂14The arguments and the appellate sequence

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.

The section 20 reasoning entered at the first appeal

The procedural sequence nevertheless requires precision. Eyre J decided the same ultimate question that Parfitt had decided: whether the surveyors had section 10 jurisdiction despite the absence of a building owner’s notice. But he introduced a materially different route to the answer. Parfitt treated Mr Shah throughout as the building owner and asked whether non-service prevented section 10 from operating. He did not decide whether Mr Shah satisfied the section 20 definition or whether he was ‘desirous of exercising rights under this Act’.

The filed High Court appeal papers proceeded on the same working premise. The single ground alleged that Parfitt was wrong to find that the surveyors lacked jurisdiction. The First Appellant’s skeleton framed the pure question as whether surveyors could make an award when no notice had been served ‘by a building owner’; paragraph 7 described Mr Shah as the freeholder ‘and hence “the Building Owner”’; and paragraph 33(b) argued that the Building Owner exercised a section 2 right even if he breached section 3. The Respondent’s Response likewise used the statutory label. Neither the ground, the skeleton nor that response cited section 20 or used the phrase ‘desirous of exercising rights’.

Eyre J said at paragraph 20 that the arguments before him ‘largely mirrored’ those put to Parfitt. His outline of the parties’ cases at paragraphs 21 to 25 did not identify a section 20 submission. He set out the definition under ‘Relevant Provisions’ at paragraph 34 and, at paragraph 57, said in his own voice that it was ‘of significance’. The judgment then records the appellants’ answer—that Mr Shah fell within the definition because he exercised section 2 rights—but does not attribute the definitional argument to Mr Paget. The Second Appellant, who appeared in person at the hearing, does not recall section 20 or the meaning of ‘desirous of exercising rights’ being discussed.

That recollection is relevant but not conclusive. An approved judgment is not a transcript, and the point may have emerged in oral exchanges or material not contained in the filed bundle. Without the hearing transcript or counsel’s contemporaneous notes, it would be unsafe to allege that the parties were denied an opportunity to address it. The narrower conclusion is supported by the available record: section 20 was a new appellate rationale within the existing jurisdiction appeal, rather than the rationale decided by Parfitt or an issue expressly identified in the filed appeal papers.

Parfitt’s treatment of Yamin v Edwards makes that distinction especially important. He held that Yamin was no authority for the no-notice proposition because that question had not been put to or decided by the court. The same discipline means that Parfitt’s own judgment supplied no authority on the section 20 ‘desirous’ question. Eyre J was the first judge in this litigation expressly to decide it.

This is not, by itself, a basis for disregarding the Court of Appeal decision. The jurisdiction ground was broad enough to require construction of the Act, and the Court of Appeal later addressed section 20 expressly: Lewison LJ recorded and rejected Mr Isaac’s submission about the definition. Its significance is historical and analytical. The premise moved at the first appellate stage from ‘a building owner who failed to give notice’ to a person who could not readily be regarded as a statutory building owner because he had not consciously invoked the Act. That change should be identified rather than treated as though it formed part of the decision under appeal.

🧭15The construction that better fits the Act

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.

1. The operation objectively falls within the work described by section 1, section 2 or section 6.
2. The persons are building owner and adjoining owner in the contextually appropriate statutory sense.
3. A real dispute has arisen between them about a matter connected with that statutory work; mere silence without notice cannot create a deemed dispute.
4. The determination sought is within section 10(12) and does not ask the surveyors to decide an independent common law cause of action.

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 the court’s 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.

🔎16Why Shah should be reconsidered

The case for reconsideration is cumulative. No single point needs to bear the entire argument.

• Shah converts a mandatory obligation into an unstated jurisdictional condition that operates against the protected neighbour, without the separate consequence-of-breach analysis later reaffirmed in A1 Properties.
• Sections 1, 2 and 6 identify objective statutory conditions, intention and status before stating the relevant notice duties; section 1(6) expressly ties one particular right to notice, showing that Parliament could say so when intended.
• It reverses the statutory sequence by treating notice as creating the Act rather than regulating rights arising from objectively qualifying work.
• It is difficult to reconcile with the statutory no-notice routes in section 3(3), through which lawful work may still generate an actual section 10 dispute under section 11(8).
• Section 12 gives the adjoining owner a distinct security notice and expressly sends a dispute to section 10, without adopting section 4’s express requirement that the adjoining owner first receive a party structure notice.
• It provides no coherent account of sections 3(2)(b) and 6(8): if the notice is the continuing foundation of the Act, expiry during commenced work ejects both owners from the scheme although the anticipatory notice provisions provide no clear route back for that same operation.
• It makes section 20’s rights-based definition depend in operation on the owner’s conscious invocation of, or attitude towards, the obligation regulating exercise, without expressly addressing Parliament’s opening qualification ‘unless the context otherwise requires’.
• The section 20 rationale was not the basis of Parfitt’s decision and was not identified in the filed High Court appeal papers; it appears as an additional rationale at the first appellate stage, although the present record does not establish procedural unfairness and the point was later argued in the Court of Appeal.
• It collapses the express distinction between a dispute that arises and one deemed to arise.
• It treats the adjoining owner’s appointment as if it created the jurisdiction, rather than asking whether objectively qualifying work and opposing positions had already created an actual dispute.
• It reads ‘work to which this Act relates’ as if Parliament had written ‘work preceded by a valid notice’, despite different language elsewhere.
• It gives a future-work proviso in section 10(12) control over awards concerning completed work and compensation.
• It risks removing a network of differently framed protections—making good, safeguarding, security, protective works, information and access—from adjoining owners and occupiers who cannot control the building owner’s compliance.
• It relies heavily on predecessor cases despite materially changed jurisdictional wording, and treats authorities addressing different issues as if they resolved this one.
• It lets a subjective refusal to invoke the Act affect building-owner status and allows the person in breach to select ordinary litigation for both sides.
• It assumes that remaining common law claims remove ultimate detriment, although the statutory liabilities, evidential burdens, remedies and specialist procedure may differ materially.
• It disables the specialist process in the very cases where absence of notice has prevented advance inspection and preserved evidence from being obtained.

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.

🔑Conclusion

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 long title identifies the Act’s physical subject matter, while sections 1, 2 and 6 enact the operative conditions by reference to land, structures, proposed operations, distance and depth. They then state the notice duties. Section 3 addresses a building owner and a right already conferred before imposing its 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 20 makes its definitions subject to statutory context, and that context is supplied by those provisions rather than by the actor’s refusal to invoke them. 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.

The later decision in A1 Properties adds an important methodological point. Establishing that section 3 is mandatory begins the inquiry; it does not complete it. Where the Act does not expressly prescribe total invalidity, the intended consequence of breach must be tested against the statutory language, purpose, structure and resulting prejudice. Section 3(3), read with sections 2(5) and 11(8), makes that inquiry still more necessary because the Act itself contemplates circumstances in which no party structure notice is served but statutory rights, obligations and an actual section 10 dispute may nevertheless exist.

Section 12 supplies a parallel challenge from the adjoining owner’s side. It creates a distinct security notice and expressly refers a dispute to section 10 without stating section 4’s requirement that a party structure notice first be received. Section 12(3) also shows that, when Parliament intended noncompliance to make a statutory requirement cease to have effect, it said so. Read with the differently framed protections in sections 2, 6, 7, 8 and 11, that drafting makes a universal implied gateway harder—not easier—to justify.

The notice-expiry provisions point in the same direction from the opposite end of the process. Parliament provided expressly that the notice may cease to have effect, but did not say that statutory status, accrued rights, appointments, awards or jurisdiction thereby vanish. Because the same commenced operation cannot simply be placed back before its own commencement by a fresh notice, treating expiry as an exit from the Act produces a statutory dead end. The coherent distinction is between the continuing validity of the procedural instrument and the statutory rights, obligations and disputes that exist independently of it.

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, where notice was required and no statutory exception or written consent applies, 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 and was made. The post-Shah Supreme Court guidance, the Act’s lawful no-notice examples, section 12’s separate route and the wider protective architecture make the case for reconsidering it stronger still.

📚Authorities and source materials

1. Party Wall etc Act 1996Primary legislation, especially sections 1 to 3, 5 to 7, 10 to 12 and 20.
2. Power and another v Shah [2023] EWCA Civ 239Court of Appeal judgment, especially paragraphs 1 to 7, 20, 25 to 35, 37 to 46, 58 and 78 to 99.
3. A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27Post-Shah Supreme Court guidance on determining the consequences of noncompliance with a mandatory statutory procedure, especially paragraphs 57 to 63 and 102 to 104.
4. R v Soneji [2005] UKHL 49; [2006] 1 AC 340The intended-consequence approach to statutory noncompliance, especially paragraph 23.
5. Shah v Power and Kyson [2022] EWHC 209 (QB)High Court judgment of Eyre J, especially paragraphs 55 to 58 and 72 to 87.
6. Shah v Power and Kyson, judgment of HHJ Parfitt dated 2 March 2020County Court judgment reproduced in the First Appellant’s Bundle.
7. First Appellant’s skeleton argument dated 27 March 2020Arguments on actual and deemed disputes, objective notifiability, statutory wording and the authorities, reproduced in the Appeal Bundle.
8. Witness statements of Lee Kyson and Syed Ali and Party Wall Award dated 3 July 2018Evidence concerning the disputed chimney-breast work and the surveyors’ findings, reproduced in the trial and appeal materials.
9. Order of Andrews LJ granting permission to appeal, CA-2022-000481, 2 August 2022, paragraphs 5 to 7Permission reasoning on the arguable section 2 and section 10 issues and the risk of unilateral frustration of the process.
10. Woodhouse v Consolidated Property Corporation Ltd [1993] 1 EGLR 174; (1993) 66 P & CR 234Jurisdiction under the London Building Acts.
11. Louis v Sadiq [1997] 1 EGLR 136Effect of a building owner’s noncompliance on reliance upon statutory protection.
12. Reeves v Blake [2009] EWCA Civ 611; [2010] 1 WLR 1Boundary between section 10 jurisdiction and costs related to separate common-law litigation.
13. Bridgland v Earlsmead Estates Ltd [2015] EWHC B8 (TCC)Distinction between having statutory rights and exercising them in accordance with statutory procedure.
14. Crowley (trading as Crowley Civil Engineers) v Rushmoor Borough Council [2009] EWHC 2237 (TCC)Observations on notifiability and statutory application.
15. Schmid v Hulls, Central London County Court, 4 February 2016HHJ Luba QC’s observations on section 10 jurisdiction notwithstanding an invalid notice and after completed work.
16. Kaye v Lawrence [2010] EWHC 2678 (TCC)Security for expenses and the distinct section 12 notice.
17. Roadrunner Properties Ltd v Dean [2003] EWCA Civ 1816; [2004] 1 EGLR 73No-notice building-owner status, statutory noncompliance and the court’s approach to causation.
18. House of Lords debate 31 January 1996Second Reading materials concerning the intended practical and cost-effective dispute-resolution scheme.