Ken Power v Raheel Shah
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lady Justice Elisabeth Laing,Lord Justice Lewison |
| Judgment Date | 07 March 2023 |
| Neutral Citation | [2023] EWCA Civ 239 |
| Docket Number | Case No: CA-2022-000481 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 239
Lord Justice Lewison
Lord Justice Coulson
and
Lady Justice Elisabeth Laing
Case No: CA-2022-000481
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KING'S BENCH DIVISION
Mr Justice Eyre
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Isaac KC and Katie Gray (instructed by way of Direct Access) for the Appellants
Michael Paget (instructed by way of Direct Access) for the Respondent
Hearing Date: 15 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 7 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
Introduction
This appeal raises a novel but important issue in connection with the Party Wall etc. Act 1996 (“the Act”). Can an adjoining owner seek to rely on the dispute resolution procedure provided by s.10 of the Act, in circumstances where the building owner, who intends to carry out or who has carried out building works, has served no notice under the Act in respect of the works, and maintains that the Act does not apply? Counsel are agreed that there are no authorities directly on point.
The Background Facts
The respondent (“Mr Shah”) carried out works to his home at 34 Bull Lane in Dagenham. He did not serve a notice under s.3 of the Act (either before or after the works were carried out) because he was advised by his planning consultant, Mr Syed Ali, that the scope of the works did not fall within the ambit of the Act.
The adjoining owners of 36 Bull Lane, Mr and Mrs Panayiotou (“the adjoining owners”) maintained that the works, including an alleged removal of a chimney breast, were within the ambit of the Act. They said that they had suffered damage in consequence of those works. Both claims are denied by Mr Shah and, because of the course that this case has taken, the underlying facts remain to be determined.
The adjoining owners could have commenced proceedings in the county court. Instead, they purported to appoint Mr Lee Kyson (the second appellant) to act as their surveyor under s.10(1) of the Act. Mr Shah did not engage in the statutory process (because he maintained that the Act did not apply), so Mr Kyson appointed a surveyor for Mr Shah, using the default procedure under s.10(4). That surveyor was Ken Power (the first appellant). I shall refer to Mr Kyson and Mr Power collectively as “the appellants”.
On 3 July 2018 the appellants issued an award (“the Award”) determining that:
(a) The works performed by Mr Shah required notice to have been given under the Act;
(b) Those works had caused damage to 36 Bull Lane;
(c) Mr Shah was to pay the adjoining owners compensation of £4,223.49 (excluding VAT) and also to pay the fees of the appellants in a further sum of £4,630.
Mr Shah did not pay either of those sums, and the appellants brought proceedings for non-payment in the Magistrates Court under s.17 of the Act. Those proceedings were stayed because of Mr Shah's Part 8 claim, which contended that the Award was null and void because the Act did not apply, so that the dispute resolution procedure at s.10 had not been engaged.
In a judgment dated 2 March 2020, HHJ Parfitt upheld Mr Shah's Part 8 claim, agreeing with the essential submission advanced on his behalf that, in the absence of a notice under s.3 of the Act, the s.10 process had not been engaged and the Award was therefore null and void. In consequence, he did not decide any of the disputed issues of fact, in particular whether or not the works involved the removal of a chimney breast, and/or whether a notice should have been served under the Act.
The appellants appealed. In a judgment dated 11 February 2022 ( [2022] EWHC 209 (QB), [2022] 1 WLR 3015), Eyre J dismissed the appeal. He concluded that there was no dispute arising under the provisions of the Act in circumstances such as these, where the building owner had not served a notice and had not invoked the Act. His reasons are set out between [54]–[64] of his judgment, although it is unnecessary to set them out again here. The appellants bring this second appeal with the leave of Lady Justice Andrews. At the conclusion of the hearing we announced our decision to dismiss the appeal, with reasons to follow. These are my reasons for joining in that decision.
The Party Wall Act: Context and Provisions
The forerunner of the Party Wall Act 1996 was the London Building ( Amendment) Act 1939. Between s.46 and s.56, the 1939 Act contained detailed provisions whereby a building owner who wanted to carry out works in or around a party structure was obliged to give notice in writing, and thereafter any differences between the owners would be resolved in the first instance either by one surveyor, or by a surveyor appointed by each party and a third surveyor. The 1939 Act was considered to have worked well in London, and eventually it was decided to extend the regime across the country. Hence the Party Wall Act, which mirrors the essential features of the 1939 Act (although some of its provisions are different).
Section 1 of the Party Wall Act is concerned with the situation where lands of different owners adjoin, and a building owner wants to build a party wall or a party fence wall on the line junction (ie where the boundary has not yet been built on). That section does not apply in this case.
Section 2(1) applies “where lands of different owners adjoin and at the line of junction the said lands are built on or a boundary wall, being a party fence wall or an external wall of a building, has been erected.” A large number of rights available to the building owner are then set out in s.2(2). These include the right to underpin, thicken or raise the party structure; to make good or repair or demolish and rebuild the party structure, and so on. The relevant right for present purposes is at s.2(2)(g):
“To cut away from a party wall, a party fence wall, external wall any footing or any projecting chimney breast, jamb or flue, or other projection on or over the land of the building owner in order to erect, raise or underpin any such wall or for any other purpose…”
Sub-section 2(5) provides as follows:
“(5) Any right falling within subsection (2)(f), (g) or (h) is exercisable subject to making good all damage occasioned by the work to the adjoining premises or to their internal furnishings and decorations.”
Section 3 is headed “Party structure notices”. It provides as follows:
“ 3 Party structure notices.
(1) Before exercising any right conferred on him by section 2 a building owner shall serve on any adjoining owner a notice (in this Act referred to as a “party structure notice”) stating—
(a) the name and address of the building owner;
(b) the nature and particulars of the proposed work including, in cases where the building owner proposes to construct special foundations, plans, sections and details of construction of the special foundations together with reasonable particulars of the loads to be carried thereby; and
(c) the date on which the proposed work will begin.
(2) A party structure notice shall—
(a) be served at least two months before the date on which the proposed work will begin;
(b) cease to have effect if the work to which it relates—
(i) has not begun within the period of twelve months beginning with the day on which the notice is served; and
(ii) is not prosecuted with due diligence.
(3) Nothing in this section shall—
(a) prevent a building owner from exercising with the consent in writing of the adjoining owners and of the adjoining occupiers any right conferred on him by section 2; or
(b) require a building owner to serve any party structure notice before complying with any notice served under any statutory provisions relating to dangerous or neglected structures.”
Section 4 permits an adjoining owner to serve a counter notice. Section 5 states that the recipient of either a party structure notice under s.3, or a counter notice under s.4, who does not indicate his consent to that notice within 14 days, is deemed to have dissented from the notice “and a dispute shall be deemed to have arisen between the parties”.
Section 7 is concerned with compensation. Section 7(2) obliges the building owner to compensate the adjoining owner for any loss and damage “which may result to any of them by reason of any work executed in pursuance of this Act”.
Section 10 is concerned with the resolution of disputes. Section 10(1) is in the following terms:
“ Resolution of disputes.
(1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either—
(a) both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or
(b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as “the three surveyors”).”
Other provisions in connection with surveyors include sub-sections (4) and (6) which provide:
“(4) If either party to the dispute—
(a) refuses to appoint a surveyor under subsection (1)(b), or
(b) neglects to appoint a surveyor under subsection (1)(b) for a period of ten days beginning with the day on which the other party serves a request on him, the other party may make the appointment on his behalf…
(6) If a surveyor—
(a) appointed under paragraph (b) of subsection (1) by a party to the dispute; or
(b) appointed under subsection ( 4) or (5),
refuses to act effectively, the surveyor of the other party may proceed to act ex parte and anything so done by him shall be as effectual as if he had been an agreed...
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