The Party Wall Act: do you have to give notice?

The Royal Institute of Chartered Surveyors (RICS) launched a consultation earlier in the year prior to the publication of the 8th Edition of Party Wall Legislation and Procedure. Essentially, this is the guidance that party wall surveyors generally follow when dealing with party wall matters governed by the Party Wall etc Act 1996 (PWA).

What the consultation does give is a useful indication about what the industry is thinking. One issue that was consulted upon that I would like to focus on is jurisdiction. I suspect this consultation was prompted by the Court of Appeal judgment in Power v Shah [2023].

The majority of party wall matters proceed without the need to involve lawyers, as there is a dispute resolution procedure set out in s.10 PWA. However, the Court of Appeal has decided that this s.10 mechanism is only available when there is actually jurisdiction.

What is jurisdiction?

In Power v Shah, the Court of Appeal decided that neighbouring building owners were only entitled to carry out work that is allowed for within the PWA when a notice is actually served beforehand in compliance with s.3 of the PWA. If a s.3 notice is not served, then the process under s.10 of the PWA is not effective and the party wall award is null and void.

Therefore, building owners and surveyors should be mindful to ensure that the s.3 notice is served correctly. If it has not been served or not served correctly, then the neighbouring adjoining owner may not be entitled to rely on the dispute resolution process, which could consequently lead to comparatively expensive litigation.

What is a s.3 notice?

A s.3 notice is known as a ‘party structure notice’ and sets out some prescriptive information such as:

• The name and address of the building owner;
• Details of the proposed works;
• The date that the works will commence on;

The s.3 notice should be served two months prior to the commencement of the proposed works.

What is s.10?

S.10 of the PWA sets out a dispute resolution process and is a well-trodden path for surveyors.

Essentially, s.10 provides that if a dispute arises in relation to party wall work, there are two options: either the parties agree on one surveyor known as the ‘agreed surveyor', or the parties appoint a surveyor each and then the two surveyors appoint a third surveyor.

The surveyors then can ask the third surveyor to determine the matters in dispute. The agreed or third surveyor’s decision is known as an ‘award’.

An award might include:

• The right to execute work;
• The time and manner that the work is to be done; and
• Any other matters arising which include the costs of the award.

The third surveyor can also determine which party should pay the costs.

What happens if there is no jurisdiction?

In circumstances where the s.3 notice has not been served, the party not carrying out the work should take urgent legal advice. As was the case in Power v Shah, it was determined that there was no jurisdiction. If work is about to commence or even if it has commenced, it may be possible to make an application to the Court for an urgent, “interim” injunction to effectively halt the works or ensure the works do not commence. This may then lead to the parties agreeing these issues, which are then embodied in a court consent order which may have a similar effect as if an award had been made instead, but will be a much more costly process.

Is there a legal remedy?

In the absence of a s.3 notice, rather than the ability to rely on the s.10 process, litigation in trespass, nuisance and negligence would usually be relied on by the adjoining owner in bringing proceedings, including for the interim injunction.

Comment

It will be interesting to see what steps RICS will take to guide surveyors towards compliance with s.3. RICS did note in the press release announcing the consultation back in April that the consultation comes at a time when clarity and professional rigour are especially important. The draft guidance emphasises that a party wall surveyor’s appointment is personal and statutory, independent of client instruction, and highlights concerns arising from cases where awards have been challenged because surveyors acted without proper jurisdiction, including circumstances where no genuine dispute existed between the parties.