Party Wall Act Case Law Review: Power & Kyson V Shah February 2023

Party Wall Act Case Law Review: Power & Kyson V Shah

February 2023

Background

In 2018, respondent Mr Shah carried out construction works to his home in Dagenham, but failed to serve a notice to his adjoining neighbours – Mr and Mrs Panayiotou – because he was advised by his planning consultant that the scope of the work didn’t fall under the remit of the Party Wall Act.

Mr and Mrs Panayiotou asserted that the works – which include an alleged removal of a chimney breast – were, in fact, covered by the Act and their property had sustained damage as a result. Mr Shah denied both these claims.

Lee Kyson was appointed by the Panayiotous as their surveyor, who went on to appoint surveyor Ken Power for Mr Shah, because the respondent maintained that the Act was not applicable in this case and, as such, would not engage in the statutory process.

On July 3rd 2018, the party wall surveyors issued an award determining that the works carried out did need to have notice given under the Act and that the works had caused damage to the neighbouring property. As a result, Mr Shah was ordered to pay compensation of £4,223.49 and surveyor fees of £4,630.

However, neither of these sums were paid, with Magistrates Court proceedings then brought by the surveyors for non-payment under Section 17 of the Act. 

Outcome

These proceedings were then stayed because Mr Shah had submitted a Part 8 claim, contending that the award was void because the Act was not applicable in his case. This meant that the Section 10 dispute resolution procedure hadn’t been engaged.

In March 2020, His Honour Judge Parfitt upheld this Part 8 claim, agreeing that in the absence of a Section 3 notice, the Section 10 process hadn’t been engaged, which meant the award was void.

This decision was appealed by the appellants, but in 2022 Mr Justice Eyre dismissed the appeal, concluding that there was no dispute under the Act in these specific circumstances, where the building owner hadn’t served a notice and hadn’t invoked the Act. A second appeal was launched but this was dismissed, as well.

Precedent

Under the Party Wall Act, building owners that want to work on shared walls or excavate near the neighbouring properties will have to serve notice to the adjoining owners and obtain agreement from them before construction work can begin.

However, there has been some uncertainty regarding the available options of the adjoining owner if a neighbour starts notifiable works without intending to serve said notice.

Under such circumstances, it is unclear as to whether the dispute is resolvable under Section 10 of the Act or whether the adjoining owners will need to find other avenues for recourse under common law (such as claiming damages for nuisance, negligence and so on).

As a result of the Power & Kyson v Shah case, the precedent has been set that if a building owner doesn’t serve a notice before doing notifiable work, the adjoining owner has no avenue for recourse under the Act. Instead, they must turn to common law remedies to resolve the situation.

Furthermore, building owners that proceed with notifiable works without serving notice will not be able to use the legislation to their advantage, including rights of access, which will mean that some allowable works that would be covered under the Act would now count as negligence, nuisance or trespass.

Adjoining owners are also entitled to serve injunctions to stop the works until notice is served and awards made. However, they will need to cover the legal costs before these can be reclaimed through an award.