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Background

On 11 February 2022, an appeal was dismissed in the case of Raheel Shah v Ken Power and Lee Kyson[1]. In this case, the Claimant, Mr Shah, owned a semi-detached property with an adjoining and shared party wall with his neighbours. In 2017, Mr Shah performed works on his property but did not serve any notice under the Party Wall etc Act 1996 (“the Act”). Mr Shah’s neighbours alleged that these works caused damage to their property and that Mr Shah had removed the chimney breast. Mr Shah said that the work did not affect the chimney breast and that this had been removed previously.

The Party Walls process

The neighbours appointed Lee Kyson, the Second Defendant for advice in respect of the Act. Mr Kyson was of the view that the Act applied and he explained this to Mr Shah and to Mr Shah’s planning consultant who disagreed. Mr Kyson was appointed by the neighbours as their surveyor under section 10 of the Act. Mr Ken Power, the First Defendant was then appointed as a second party walls surveyor to resolve the dispute over the party wall via Mr Kyson as Mr Shah had refused to appoint a surveyor (either jointly or at all). Mr Shah refused to engage with Mr Power, so Mr Power inspected the neighbours’ property and discussed the condition of the property with Mr Kyson. They agreed that the matter should  be resolved by an Award which was then issued by Mr Power

By an Award dated 3 July 2018, Mr Power determined that:

—  the works performed by Mr Shah should have been notified to his neighbours under the Act

—  those works had caused damage to the neighbours’ property

—  compensation of £4,223.49 net of VAT was payable by Mr Shah

—  surveyors’ fees of £4,360 inclusive of VAT were payable by Mr Shah

The Court action

Mr Shah did not pay these sums and the Defendants commenced Court proceedings to recover their fees. Those proceedings were stayed when Mr Shah  issued his own Court action for:

1.       A declaration that the Party Wall Award of 3 July 2018 was null and void; and

2.       A declaration that no professional fees arising out of the Award were owed to Mr Power or Mr Kyson

The main issue in the Court action therefore was whether the party wall surveyor Mr Power had jurisdiction to make an award under section 10 of the Act where the Claimant Mr Shah had not served party wall notices prior to carrying out the works.

At first instance, HHJ Parfitt declared the party wall Award null and void, thereby the surveyors lacked jurisdiction to make it.

At appeal, HHJ Eyre dismissed the appeal stating that a dispute between the Claimant and his neighbours was not a dispute that arose under the Act and there was no error of law in HHJ Parfitt’s conclusion.

Conclusion

Where a Party Walls notice hasn’t been served on adjoining building owners, the Party Wall etc Act 1996 will not apply.  This seems rather a harsh decision if in fact Mr Shah should have served notice upon his neighbours and if indeed the Act applied.

What action should the neighbours have taken? It is possible that the neighbours could have applied for an injunction preventing the works from starting until there was compliance with the Act. However, as the neighbours didn’t do anything until after the works were completed, rather than going through the Act retrospectively as they did, they could have considered taking legal action via the County Court for damages for the costs of the rectification works.

[1] [2022] EWHC 209 (QB)

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