⚖️ Why Power v Shah Was Wrongly Decided

A Critique of Formalism in Party Wall Jurisdiction

🧭 Introduction

The Party Wall etc. Act 1996 was enacted to balance the rights of building owners with the protection of adjoining owners. Its aim is not merely procedural neatness but substantive resolution of disputes arising from certain categories of construction work.

In Power v Shah, the court held that a failure to serve notice under the Act deprived surveyors of jurisdiction entirely. While superficially neat, this decision undermines the Act’s purpose, misapplies principles of statutory interpretation, and draws inappropriate support from outdated legislation — namely the London Building Acts (Amendment) Act 1939. A simple explanation ‘The Jurisdictional Paradox — In Plain English’ is at the foot of this page.

1️⃣ When the Act Applies — The Correct Threshold

The Act applies automatically where works fall within one of its three categories:

  1. Works to a party wall or party fence wall (section 2)

  2. Construction of a new wall astride or adjacent to the boundary (section 1)

  3. Excavations within prescribed distances of neighbouring structures (section 6)

This jurisdictional trigger is factual, not procedural. If the works fall within scope, the Act applies by operation of law. Notice is a statutory obligation, but not the foundation stone for jurisdiction.

Why Shah went wrong:
By treating the absence of notice as erasing jurisdiction, the judgment conflated trigger and compliance. The Act is clear: the trigger is the nature of the works, not the service of notice. Once the Act applies, its dispute resolution mechanism should be available to protect both parties — even if one has already failed in a procedural duty.

2️⃣ The Building Owner’s Obligation — Rights Come with Duties

The Act confers rights on the building owner — for example, to carry out works to a party wall they do not wholly own. But these rights are conditional upon fulfilling duties, most notably:

  • Giving prior notice (sections 1, 3, and 6)

  • Allowing the adjoining owner to consent or dissent

  • Triggering the dispute resolution process where disagreement arises

Why Shah went wrong:
By holding that failure to give notice stripped surveyors of power, the court effectively rewarded non-compliance. A building owner who ignores their duty could evade the Act entirely — precisely the behaviour Parliament intended to prevent. Instead of treating non-service as a reason to deny jurisdiction, the better approach is to treat it as the very breach that the Act’s machinery is designed to address.

3️⃣ The Jurisdictional Paradox

Here lies a logical flaw in the Shah approach:

  • The only reason a building owner has a duty to serve notice is because the Party Wall etc. Act 1996 is already in force — it is the statute that creates the obligation.

  • If the building owner fails to comply with this statutory duty, Shah’s reasoning somehow causes the very statute that imposed it to fall away.

This is circular and self-defeating.
It means the Act both applies (to create the duty) and does not apply (because the duty was breached) — an interpretive paradox. Such a reading effectively makes the operation of the Act conditional on the voluntary compliance of the party it is designed to regulate, giving building owners a unilateral power to nullify Parliament’s protections.

4️⃣ The Flawed Reliance on the 1939 Act

The London Building Acts (Amendment) Act 1939 contained notice provisions for certain works in Inner London. However, its scope, structure, and legislative purpose differ significantly from the 1996 Act.

  • The 1939 Act operated in a localised, pre-Hansard context, with a narrower policy aim.

  • The 1996 Act is a nationwide, codified framework expressly crafted to promote dispute resolution and owner protection, as evidenced in parliamentary debates.

  • Legislative intent in 1996 was informed by decades of experience, specifically to prevent works being undertaken without any opportunity for adjoining owners to respond.

Why Shah went wrong:
By drawing analogy to the 1939 Act, the court imported outdated procedural formalism into a statute designed to be more purposive and protective. The analogy ignores the broader remedial purpose of the 1996 Act and risks reintroducing the very enforcement gaps Parliament intended to close.

5️⃣ The Protective Purpose — Hansard Evidence

Hansard records show that Parliament intended the Act to be a shield for adjoining owners, not merely a set of technical hurdles. MPs emphasised:

  • The need for swift, expert-led resolution of disputes without resort to court.

  • Ensuring that non-compliance by one party does not strip the other of statutory safeguards.

  • Avoiding situations where procedural manoeuvres undermine substantive justice.

Why Shah went wrong:
The decision’s formalism disregards this legislative history. A purposive reading would hold that procedural defects — including absence of notice — should not erase the dispute resolution pathway where the Act otherwise applies.

6️⃣ Practical Consequences of Shah

The judgment creates a perverse incentive:

  • Building owners who avoid serving notice may evade the Act’s controls entirely.

  • Adjoining owners are forced into costlier civil litigation for injunctions or damages.

  • Surveyors face professional paralysis, declining to act even in clear-cut Party Wall situations for fear of acting ultra vires.

This undermines the Act’s efficiency and accessibility, driving disputes away from expert resolution into adversarial court processes.

📝 Conclusion

Power v Shah mischaracterised the role of notice under the Party Wall etc. Act 1996. The Act applies based on the nature of the works, not on whether the building owner complied with their duties. Jurisdiction should not evaporate because the very breach the Act aims to prevent has occurred.

By relying on the 1939 Act, ignoring legislative intent, and embracing a paradox that lets wrongdoers switch the statute off at will, Shah imposes a procedural straightjacket that Parliament never intended.

A purposive, protective reading — as seen in Park Lane Holdings v Khan — better reflects the statutory scheme, safeguards adjoining owners, and maintains the integrity of the Act. Until higher courts correct course or Parliament intervenes, practitioners will remain caught between legal formalism and practical protection.

Here’s the “Paradox in Plain English” explainer you can drop into a call-out box or sidebar on your webpage.

🌀 The Jurisdictional Paradox — In Plain English

Imagine a rulebook that says:

“You must tell your neighbour before you start work on the shared wall.”

That rule exists because the Party Wall etc. Act 1996 is already in force for your project.

But in Power v Shah, the court effectively said:

“If you don’t tell your neighbour, the rulebook doesn’t apply at all.”

So — the law is in force to create the obligation, but the moment you ignore it, the law disappears. That means the person who breaks the rule gets to switch the law off.

That’s the paradox:
The Act both applies (to require notice) and doesn’t apply (because notice wasn’t given) — an outcome that rewards non-compliance and leaves neighbours unprotected.