No Way In, No Way Out

🔑 The Argument, Stated Plainly

The Party Wall etc. Act 1996 tells you, repeatedly and explicitly, when each of its substantive sections applies. It also tells you, explicitly, how a dispute under the Act comes to an end. What it does not contain, anywhere, is a third mechanism: a way for the Act to switch itself off because a procedural step was missed. Shah invents that third mechanism. The Act doesn’t have one.

📜 How You Get In — Always a Fact, Never a Notice

Every triggering provision in the Act defines its own applicability by reference to the physical situation on the ground, not by reference to anything procedural:

• s.1(1): applies “where lands of different owners adjoin” and a building owner proposes to build on the line of junction.
• s.2(1): applies “where lands of different owners adjoin and at the line of junction the said lands are built on or a boundary wall… has been erected.”
• s.6(1): applies where a building owner proposes to excavate within 3 or 6 metres of an adjoining building to a specified depth.

None of these says “and a notice has been served.” None of them says “unless no notice is served, in which case this section does not apply.” As was put to the County Court in February 2020, addressing section 2 specifically: “Section 2 is also quite explicit as to when it applies, and it is not when a notice is served.”

Section 2(2) then confers the rights — including, at 2(2)(g), the right to cut away “any projecting chimney breast.” If those proposals fall within the Act’s sections, the building owner is, on that basis alone, a person desirous of exercising rights under the Act — “irrespective of whether he neglects, or does not intend, to serve notice for the notifiable works,” as was argued at the time. He does not need to have served notice, or even intend to, for the right — and the Act’s characterisation of him as a building owner — to already exist.

🔒 How You Get Out — Only Ever Through the Act’s Own Machinery

The Act is equally explicit, and equally consistent, about how engagement with it ends. Section 10(16) makes an award conclusive, subject only to the section 10(17) right of appeal to the county court within 14 days. Section 3(3)(a) provides the only recognised substitute for notice — written consent from the adjoining owner — and even that isn’t framed as disapplying the Act; it’s an alternative, Act-internal route to lawfully exercising rights the Act already confers.

Nowhere does the Act contain anything of the shape “if a building owner fails to serve notice under section 3, section 2 shall not apply to him.” No disapplication clause exists, for any circumstance, anywhere in the statute.

⚖️ The Notice Obligation Doesn’t Touch the Right

Section 3(1) instructs: “Before exercising any right conferred on him by section 2 a building owner shall serve… a notice.” That is an obligation placed squarely on the building owner. It is not framed as a condition on the right’s existence. As was argued in 2020: “It is difficult to reconcile the fact that a building owner who exercises his rights under section 2 but does not comply with his obligation to serve the requisite notice… would be relieved of his liabilities under section 2(3)–(5).” The obligation to serve notice and the right conferred by section 2 are two different things, imposed by two different subsections, and nothing in the Act ties the survival of the second to compliance with the first.

Section 2(5) confirms the point from the obligations side. It makes the section 2(2)(g) right — cutting away a chimney breast — “exercisable subject to making good all damage occasioned by the work.” Section 11(8) then gives the adjoining owner the right to have that expense “determined in accordance with section 10.” Neither provision requires a notice to have been served first. As was put at the time: “The notice requirement of section 3 do[es] not remove any of these obligations.” The adjoining owner’s rights under sections 2(5) and 11(8) do not depend on the building owner having served him anything.

🧭 What Shah Actually Does

Put the two halves together: the Act tells you how to get in (the objective, fact-based triggers in ss.1, 2 and 6), and it tells you how to get out (section 10’s award-and-appeal machinery, or section 3(3)(a) consent). “The building owner didn’t serve notice” appears in neither list. It isn’t a recognised way of never having engaged the Act, and it isn’t a recognised way of exiting it once engaged.

Shah supplies a third mechanism that exists nowhere in the statute’s own architecture: silent, automatic non-engagement, triggered by a missing procedural step that the Act itself places as an obligation on the building owner rather than a precondition of the sections he’s already, on the facts, engaged. The Act invokes the notice requirement. The notice does not invoke the Act.

⚖️ Confirmed in Practice, Not Just in Theory

This isn’t only a textual argument. In Tomsett v Paul (Business and Property Courts, Claim No. BL-2019-002364, 19 December 2019) — weeks before Shah was first argued — a building owner who had never served notice completed excavation and foundation works regardless. The court’s response wasn’t to treat the Act as disapplied. It granted a prohibitory injunction requiring the building owner to obtain either a section 10 award or the adjoining owner’s written consent before continuing — the Act’s own exit mechanisms, applied to a building owner who had never used its entry mechanism either. If non-service genuinely switched the Act off, that injunction would have had nothing to order compliance with.