Following the recent Court of Appeal decision of Power & Kyson v Shah (2023), it is now the case that the PWA cannot apply unless and until a valid Notice has been served. The requirement for Notices to be served in appropriate cases remains, but if that is not done for some reason, the neighbour may no longer use the PWA against the Building Owner (as has been done much prior to now).
A neighbour’s only course of action now is to seek a court injunction to halt works and enforce the issuing of a Notice, but they would face high risks in doing that as costs follow the decision. A neighbour may well receive advice from an expert in party wall law not to seek an injunction unless there was a claim for damages as well, and that it was very clear that a Notice was necessary (there are circumstances when it is not – even when the Act says it is). They may receive advice from less experienced party wall surveyors however, though that an injunction would be very likely to succeed.
There has been a great deal of debate throughout the party wall surveying profession recently as to whether the Party Wall Act is in effect “optional” now, following this legal decision. Many surveyors still firmly believe that it is not, but there are persuasive arguments in favour of optionality – if the circumstances are right. The jury is currently out on that point, but however it is ultimately clarified, it is still clear that a Party Wall Notice is not always necessary even when the Act says it is.
Minor works have never triggered the need to serve Notice, and whilst most contractors are aware that small jobs (i.e. drilling into the PW to put up shelving etc.) do not need a Notice serving, it is not widely appreciated that many other situations would also be too minor; such as some adjacent excavations and some adjoining flats – to name but two.
For further detail, see our more detailed blog on the matter here; www.bandsc.co.uk/is-it-always-necessary-to-issue-a-party-wall-notice-when-the-party-wall-act-says-so/.
Whether a Notice must be served or not is a matter of whether the work poses a significant risk to the neighbour’s property or not. The trigger point for the Act applying cannot be clearly defined and is open to interpretation, which is why we advocate having a simple risk assessment done before deciding whether to serve a Notice or not (either a Party Structure Notice, or a Notice of Adjacent Excavations). A written advice from us assessing the risk from a structural viewpoint, discussing the legal position and advising that no Notice is necessary can be an invaluable tool in mollifying a neighbour who may have been led to believe that a Notice is mandatory. A risk assessment may also protect the Building Owner from legal action by the neighbour.
The Party Wall Act process can build in delay to projects and incur significant costs to the building owner (in surveyors’ fees), often unnecessarily. For a fee of £330, we will assess the risk and provide a written advice. If our conclusion is that a Notice is necessary, the preparation of such Notices and a covering letter to the neighbour would be included in that price.
I hope that we can be of assistance to you and / or your clients, but if you have any queries, please feel free to chat with me – bsc@bandsc.co.uk or 0800 368 9337