Kaye v Lawrence

Section 12(1) of the Party Wall etc. Act 1996 permits an adjoining owner to seek security where the building owner proposes work in exercise of rights conferred by the Act. This includes excavation within the statutory three-metre and six-metre limits under section 6(1) and section 6(2), even where the work is carried out on the building owner’s land. Security is not confined to work on the adjoining owner’s land or property. The surveyors’ powers may also extend to security and insurance.

The respondent proposed basement and piling works on his land within the distances specified by section 6 of the Party Wall etc. Act 1996. Following a dispute, the third surveyor refused a bond or project-specific insurance because the works were not on the adjoining owner’s land.

The appeal concerned the construction of section 12(1): whether security could be required for work under section 6(1) or section 6(2) carried out only on the building owner’s land, and whether the statutory appeal could be determined in the Technology and Construction Court.

The appeal was allowed in substance. The third surveyor erred in law in construing section 12(1) of the Party Wall etc. Act 1996.

1. Jurisdiction. An appeal under section 10(17) is brought in the County Court. The judge therefore proceeded as a County Court judge under section 5(3) of the County Courts Act 1984, after transfer to the Technology and Construction Court.
2. Statutory construction. The court applied the ordinary meaning of the statutory words in context and found it unnecessary to use Parliamentary material. The distinction between express statutory rights and work otherwise executed pursuant to the Act was artificial.
3. Effect of section 6. The common-law rights relating to excavation within the statutory distances are supplanted or substituted by section 6. Section 6(10) preserves specified liability for injury but does not alter that conclusion.
4. Security. Section 12(1) applies whenever the building owner exercises rights under the Act. It covers work under section 6(1) and section 6(2), whether carried out on the building owner’s land or the adjoining owner’s land. No requirement exists that the work affect the adjoining owner’s property directly.
5. Award. The broad power in section 10(12)(c) permits the award to deal with security and insurance. The award should have stated that security could be requested for work under section 6(1) or section 6(2).

The statutory appeal was commenced in the Bournemouth County Court and transferred for determination in the Technology and Construction Court, with the judge sitting as a County Court judge.