⚖️ Surveyors’ Jurisdiction under the Party Wall etc. Act 1996: Statutory Authority or Procedural Trap?

🧭 Introduction

The Party Wall etc. Act 1996 empowers surveyors to resolve disputes between building owners and adjoining owners where notifiable works are proposed or underway. Yet recent case law—culminating in the Court of Appeal’s decision in Power v Shah [2023] EWCA Civ 239—has clarified and simultaneously narrowed the scope of surveyors’ jurisdiction. This article explores the statutory foundation of surveyors’ authority, the implications of Power v Shah, and the practical consequences for professionals operating under the Act.

📜 Statutory Basis for Jurisdiction

Under Section 10 of the Act, surveyors are appointed to resolve disputes arising from notices served under Sections 1, 3, or 6. Once appointed, surveyors are expected to act impartially and produce an Award that determines the rights and obligations of the parties.

Their jurisdiction is derived from the Act itself—not from the parties—and is intended to avoid litigation by providing a structured, expert-led resolution process. However, this statutory mechanism is only triggered when a valid notice has been served.

⚖️ Power v Shah: The Court of Appeal Speaks

In Power v Shah, the Court of Appeal delivered a decisive ruling: no notice, no jurisdiction. The key findings were:

  • Notice is the Gateway: The Act’s dispute resolution mechanism under Section 10 is only engaged when a notice is served. Without it, surveyors have no authority to act.

  • No Implied Jurisdiction: An adjoining owner cannot unilaterally invoke the Act by appointing a surveyor if the building owner has failed to serve notice. The statutory process must be followed.

  • Common Law Remedies Apply: Where no notice is served, the adjoining owner must rely on common law claims—such as trespass or nuisance—not the statutory protections of the Act.

  • Purposive Interpretation Rejected: The Court declined to interpret the Act based on its protective intent alone. Instead, it insisted on strict adherence to statutory language.

This decision provides clarity—but at the cost of flexibility. It reinforces procedural compliance over substantive protection.

🔄 Judicial Inconsistency and the Path to Clarity

Prior to Power v Shah, lower court decisions had offered a more expansive view:

  • In Yamin v Edwards (2019), HHJ Parfitt upheld surveyors’ jurisdiction despite no notice, citing the absence of any agreement to exclude the Act.

  • In Nutt v Podger (2021), damages were awarded for breach of the Act even though no notice had been served—recognizing that the adjoining owner had been “wrongfully deprived of the protections of the 1996 Act.”

These cases suggested that the Act could apply wherever notifiable works were carried out, regardless of procedural defects. Power v Shah now overrides that approach, establishing a clear but rigid boundary.

🏛️ Legislative Intent vs. Judicial Interpretation

Hansard records from the passage of the Act confirm Parliament’s intent to protect adjoining owners and place the burden of compliance on building owners. Lord Lucas stated:

“The Bill places the onus on the building owner to serve notice and comply with the procedures. It is not for the adjoining owner to chase compliance.”

Yet the Court of Appeal’s decision arguably shifts this burden, requiring adjoining owners to pursue costly litigation if the building owner fails to engage the Act.

🧱 Practical Implications for Surveyors

Surveyors must now operate within a clarified but constrained framework:

  • No Notice, No Appointment: Surveyors should decline appointments where no valid notice has been served.

  • Advisory Role: They may still advise adjoining owners, but must direct them to common law remedies.

  • Risk of Void Awards: Awards made without jurisdiction are void and unenforceable, exposing surveyors to reputational and legal risk.

This places surveyors in a difficult position—unable to act where protection is most needed.

📝 Conclusion

The Court of Appeal has clarified surveyors’ jurisdiction under the Party Wall etc. Act 1996: it is strictly contingent on the service of notice. While this resolves prior judicial inconsistency, it also exposes a procedural vulnerability in the Act’s protective framework. Surveyors must now balance statutory duty with legal risk, and adjoining owners may find themselves unprotected unless Parliament intervenes to restore the Act’s original intent.

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