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⚖️ The 1939 Act Does Not Say “No Notice, No Act”
Why Section 55(i) May Not Support the Historical Premise in Kyson & Power v Shah
A significant part of the reasoning in Kyson & Power v Shah [2023] EWCA Civ 239 rests upon the statutory regime which preceded the Party Wall etc. Act 1996.
The Court of Appeal looked to the London Building Acts (Amendment) Act 1939 and treated the earlier legislation as supporting the proposition that service of notice was the necessary gateway to the statutory dispute-resolution machinery.
That historical premise deserves closer examination.
The critical point is surprisingly simple:
🔑 The 1939 Act expressly states the procedure where a notice has been served. It does not state what happens where the Building Owner fails to serve one.
That distinction is fundamental.
📜 What Section 55(i) Actually Provides
Section 55(i) stated:
“The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter which before the commencement of any work to which a notice under this Part of this Act relates or from time to time during the continuance of such work may be in dispute between the building owner and the adjoining owner.”
There is plainly a notice within that provision.
But what proposition does the provision actually establish?
It establishes this:
📄 Where a notice has been served:
Notice
⬇️
Work to which that notice relates
⬇️
A matter becomes disputed before commencement or during the works
⬇️
The surveyors shall settle that matter by award
That procedure is explicit.
What section 55(i) does not expressly address is the different situation:
🚫 Where the Building Owner fails to serve the required notice:
Notifiable work
⬇️
Notice should have been served
⬇️
No notice is served
⬇️
A dispute nevertheless arises
⬇️
What then?
On that question, section 55(i) is silent.
⚠️ Silence Is Not the Same as Exclusion
This distinction is important because the proposition:
“Section 55(i) expressly provides a procedure where notice has been served”
is not logically equivalent to:
“Section 55(i) expressly provides that the Act cannot operate where notice has not been served.”
The first proposition appears on the face of the legislation.
The second does not.
To arrive at “no notice, no Act”, it is necessary to infer a negative proposition from the absence of an alternative procedure.
In other words, the reasoning becomes:
Parliament expressly prescribed what happens following notice
therefore
Parliament must have intended that nothing under the Act can happen without notice.
That conclusion does not necessarily follow.
🔍 The Missing Provision
If Parliament had intended notice to constitute an absolute jurisdictional condition precedent, it could have said so.
For example, the legislation might have provided:
“No difference shall be determined under this section unless a notice has first been served under this Part.”
It did not.
Or it might have defined the jurisdiction throughout by reference exclusively to:
“work to which a notice relates.”
Again, that was not the overarching language used.
Instead, section 55 was framed broadly around a difference concerning:
“any matter connected with any work to which this Part of this Act relates.”
That language describes the work by reference to its relationship with the statute, not merely its relationship with a notice.
Section 55(i) then prescribes what the surveyors shall do where a notice exists.
There is an important difference between the two.
🧩 Procedure Is Not Necessarily Jurisdiction
The distinction can be expressed another way.
Section 55(i) may be understood as a procedural provision governing a particular factual situation:
Notice served → dispute arises → award.
It does not necessarily follow that the same provision defines the outer boundary of the Act's jurisdiction.
That would require reading into the provision an additional negative condition:
No notice → no statutory dispute can exist.
Yet those words do not appear.
This is especially significant because failure to serve notice is not the act of the Adjoining Owner.
It is the default of the Building Owner.
🚨 The Consequence of the Negative Implication
Treating the statutory silence as an exclusion produces an unusual result.
✅ Compliant Building Owner
Serves the notice required by Parliament.
⬇️
The statutory machinery becomes available.
⬇️
The Adjoining Owner receives the protection of expert dispute resolution.
⬇️
An award can be made.
❌ Non-compliant Building Owner
Fails to serve the notice required by Parliament.
⬇️
On the Shah construction, the statutory machinery never becomes available.
⬇️
The Adjoining Owner loses the protection of the statutory tribunal.
⬇️
The Adjoining Owner must resort to ordinary civil proceedings.
The result is paradoxical:
⚠️ The Building Owner's breach of the statutory procedure becomes the reason why the Adjoining Owner cannot invoke the statutory remedy.
That is a significant consequence to derive from statutory silence.
🏛️ What Does the 1939 Act Actually Prove?
Properly confined, section 55(i) establishes that where notice was served, Parliament expressly provided a continuing dispute-resolution procedure capable of determining matters arising before commencement and “from time to time” during the works.
It therefore supports the proposition:
“Notice engaged an expressly defined statutory procedure.”
It does not necessarily establish:
“Notice was the only conceivable means by which the Act could apply.”
Still less does it expressly establish:
“A Building Owner who failed to serve notice thereby prevented the statutory regime from applying to the notifiable work.”
The latter proposition requires an inference which is not stated in section 55(i).
🔑 The Distinction Matters in Shah
The distinction becomes particularly important because the Court of Appeal used the historical regime as an aid to interpreting the 1996 Act.
The historical argument can broadly be expressed:
1939 Act required notice
⬇️
1996 Act was modelled upon the 1939 procedure
⬇️
Parliament cannot have intended radically to change that procedure
⬇️
Therefore: no notice → no Act
But if the first proposition is overstated, the historical chain is weakened.
The more precise description of the 1939 position is:
The 1939 Act expressly prescribed the dispute-resolution procedure where a notice had been served but was silent as to the procedure where the person obliged to serve the notice failed to do so.
That is materially different from saying:
“The 1939 Act provided that without notice the Act did not apply.”
It provided no such express rule.
📘 Then Parliament Enacted Section 10 of the 1996 Act
The point becomes stronger when the successor legislation is examined.
The 1996 Act did not simply reproduce the notice-specific formulation in section 55(i).
Section 10(1) instead addresses:
“any matter connected with any work to which this Act relates”
which is in dispute between a Building Owner and an Adjoining Owner.
Section 10(10) similarly provides for the surveyors to settle by award:
“any matter which is connected with any work to which this Act relates, and which is in dispute between the building owner and the adjoining owner.”
The statutory language therefore directs attention towards:
🏗️ the character of the work;
and
⚖️ the existence of a dispute.
It does not expressly make:
📄 the prior service of a notice
a condition contained within that jurisdictional formulation.
📊 The Historical Comparison
Question1939 Act1996 Act What happens when notice is served?Expressly prescribedExpressly prescribedWhat if required notice is not served?SilentNo express “no notice, no Act” provisionGeneral subject matterWork to which the Part relatesWork to which the Act relatesMatters capable of award“Any matter”“Any matter”Express statement that notice is a condition precedent to jurisdictionNoneNoneExpress statement “no notice, no Act”NoneNone
The historical position is therefore considerably less straightforward than the phrase “no notice, no Act” suggests.
🔨 Heydon's Case: Why the Silence Matters
The consequence also deserves consideration through the mischief rule.
What mischief was the statutory machinery intended to address?
Among other things:
⚠️ neighbour disputes arising from building works;
💷 disproportionate litigation costs;
🏛️ recourse to ordinary court proceedings; and
🔧 the need for specialist determination of technical disputes.
The statutory remedy was the surveyor-based award procedure.
Yet under the restrictive construction:
Building Owner fails to give statutory notice
⬇️
Surveyors cannot act
⬇️
Adjoining Owner must litigate
⬇️
The statutory default revives the very mischief the legislation was intended to suppress.
That is an unusual result to attribute to Parliament in the absence of express words requiring it.
⚖️ The More Precise Historical Question
The issue should therefore not be framed as:
“Did the 1939 Act contain a notice procedure?”
Plainly it did.
The relevant question is:
“Did the 1939 Act say that failure to comply with that notice procedure excluded the statutory dispute-resolution machinery altogether?”
On the wording of section 55(i), the answer is not expressly provided.
The Act tells us what happens when notice is served.
It does not expressly tell us that nothing can happen when notice is not served.
That distinction is critical because Power v Shah derives a jurisdictional prohibition from that silence.
🔑 Conclusion
The 1939 Act should therefore be approached with care when used as historical support for the proposition:
“No notice, no Act.”
Section 55(i) undoubtedly provided an explicit procedure for disputes arising in connection with work to which a notice related.
But:
Express provision for what happens when notice IS served
does not necessarily mean:
Express exclusion of the Act when notice IS NOT served.
The 1939 legislation appears to be silent on the latter situation.
That silence becomes particularly important when Parliament's successor legislation is considered. Section 10 of the Party Wall etc. Act 1996 speaks broadly of “any matter” connected with “any work to which this Act relates” which is in dispute.
Accordingly, reliance upon the 1939 Act as historical proof of a universal “no notice, no Act” principle risks assuming the very proposition that requires demonstration.
The predecessor legislation establishes the procedure following service of notice.
It does not expressly establish the consequence of failing to serve one.
And if the 1939 Act was silent upon that consequence, it is difficult to see how that silence, without more, can provide decisive historical support for implying into the 1996 Act a jurisdictional restriction which the 1996 Act itself does not expressly state.