⚖️ Power v Shah: Why the Court of Appeal Got the Party Wall Act etc. 1996 Wrong
📌 Introduction (This article was generated by Scholar GPT5)
In March 2023, the Court of Appeal handed down its decision in Power v Shah [2023] EWCA Civ 239. The case has caused widespread concern among party wall surveyors, property lawyers, and homeowners alike. At its heart lies a troubling question: what happens when a building owner carries out notifiable works under the Party Wall etc. Act 1996 but fails to serve the required notice?
The Court of Appeal’s answer was stark — no notice, no Act. But in doing so, the Court has arguably stripped the 1996 Act of its protective function and created uncertainty that Parliament never intended.
🏛️ The Court’s Reasoning
The Court held that:
The Act only applies if the building owner serves a notice.
If no notice is served, then surveyors lack jurisdiction to resolve disputes under section 10.
Adjoining owners in that position must fall back on the common law and pursue costly litigation.
❌ Why This Is Problematic
🎯 1. It Undermines the Purpose of the Act
The Act was introduced precisely to avoid expensive litigation between neighbours. By requiring surveyors to resolve disputes “in connection with any work to which this Act relates,” Parliament intended a wide scope. The Court’s narrow interpretation reintroduces court proceedings into neighbour disputes — the very mischief the Act sought to cure.
📖 2. It Ignores the Wording of Section 10
Earlier legislation tied disputes to the service of notice. But in 1996, Parliament deliberately removed this link. Section 10 now refers broadly to “any matter connected with any work to which this Act relates.” That is a clear signal that disputes do not depend on notice being served.
🤯 3. It Creates Absurd Outcomes
If a building owner serves a defective notice, the Act applies. But if he serves no notice at all, the adjoining owner loses the protections of the Act entirely. This rewards non-compliance and creates a paradox: a statutory duty exists, but its breach removes the very framework designed to deal with it.
🔒 4. It Undermines Finality and Certainty
Surveyors have long resolved disputes about damage, compensation, and access under sections 2(5), 7(2), and 11(8). The Court’s decision throws doubt on whether such awards are valid without notice, creating uncertainty for practitioners and property owners.
👥 5. It Fails the Public Interest Test
Most adjoining owners are not wealthy developers. They are families in terraced houses who cannot afford the luxury of High Court litigation. The Court’s decision leaves them without an effective remedy when their homes are damaged — contrary to the Act’s purpose and the public interest.
🛠️ The Practical Consequences
Surveyors may be reluctant to act without notice, leaving adjoining owners stranded.
Building owners who ignore their notice obligations may gain an advantage.
Neighbours may be forced into litigation that Parliament intended to prevent.
✅ Conclusion
Power v Shah marks a significant retreat from the protective vision of the Party Wall etc. Act 1996. By insisting on notice as a gateway to the Act, the Court of Appeal has undermined the efficiency, accessibility, and fairness that the Act was designed to deliver.
Until Parliament clarifies the law, adjoining owners face greater risk, surveyors face greater uncertainty, and the courts face disputes that should never have reached them.