This is the most recent 'buzz phrase', coming out of a recent case about the Party Wall etc Act 1996. The case is SHAH v POWER & KYSON, 2nd March 2020. It was heard in the County Court at Central London before His Honour Judge Parfitt.
NOTE: We understand that 'permission to appeal' is being sought against the decision, and the limitations of a County Court judgment should also be borne in mind.
As with any case it is important to read the Judgement in full. What we are looking at, are the key points that might have lasting implications.
In this instance the final paragraph of the Judgement (para.50 on page 11) really sums it up. Under the 1996 Act, if there is no Notice so there is no Act that can be applied or enforced by Party Wall Surveyors. Meaning that if a Building Owner does not serve Notice then none of the Act applies.
The initial implication is that if Notice should have been served, but wasn't, then the Adjoining Owner needs to be relying on common law or other equitable remedies, such as damages or an injunction for trespass or nuisance or the threat of them. This would be expected to be a more costly, and possibly more worrying, prospect than the measures of appointing a Party Wall Surveyor. Whilst not good news for Adjoining Owners, the knock-on implication of that is actually for the Building Owner, if they haven't served Notice (but should have) then they will be faced with the "injunction route" or similar from the Adjoining Owner. It can easily be envisaged for that to be ultimately more costly and a greater source of project delay than doing things appropriately in the first place.
Before clarity was given by this case (which we must add, seems to contradict another County Court judgement), perhaps some Building Owners were thinking "I won't bother with Notice, I'll wait to see if the Adjoining Owner raises the complaint, then we'll appoint Party Wall Surveyors at that point, I'll be in the same position, just without the cost of serving Notice". The risk might be greater now....if "No Notice, No Act" matters will be heading to Courts under common law and damages claims.
We now need to assess other implications and see whether an Appeal will be heard. As Party Wall Surveyors we can see 'rights and wrongs', 'benefit & disadvantage' of both sides in this case. However, fundamentally, it must be right, that if the Act requires Notice to be served then Notice should therefore be served. Keep it simple.
Want to avoid the worry or uncertainty? Then we can check proposals for you (subject to us serving your area) and if Notices are required we can advise you correctly. Where needed we can prepare and serve the Correct Notices on your behalf. Our advice, don't gamble for the sake of avoiding Serving a Notice, it really is not worth the risk of a Court Injunction.