RAHEEL SHAH v KEN POWER

Section 10 of the Party Wall etc. Act 1996 gives surveyors jurisdiction only over a dispute arising under the Act. It does not create a free-standing mechanism for resolving every dispute between adjoining owners.

Where a purported building owner carries out potentially notifiable works without serving a notice, without invoking the Act and without accepting that it applies, an adjoining owner cannot unilaterally impose the statutory dispute-resolution procedure retrospectively. The resulting claims may instead be pursued at common law in the courts.

The claimant carried out works at his property adjoining premises owned by Mr and Mrs Panayiotou. He served no notice under the Party Wall etc. Act 1996 and maintained that the Act did not apply.

The defendants, acting as surveyors appointed under section 10, made an award finding that the works were notifiable, caused damage and required payment of compensation and fees. On the claimant’s application, HH Judge Parfitt declared the award null and void because the surveyors lacked jurisdiction.

The defendants appealed. The central issue was whether section 10 could be invoked unilaterally and retrospectively where no statutory notice had been served.

1. Appeal dismissed. The surveyors had no jurisdiction and the award was null and void.
2. The question was one of statutory interpretation. The beneficial purpose of providing an out-of-court dispute-resolution mechanism did not justify extending the Act beyond the disputes identified by its language. The court must identify the statutory purpose and interpret the words so as to give effect to it, following the approach in Pollen Estate Trustee Co Ltd v Revenue & Customs Commissioners [2013] EWCA Civ 753, but must not assume that Parliament intended a mechanism for adjoining-owner disputes generally.
3. In Blake v Reeves [2009] EWCA Civ 611, [2010] 1 WLR 1, the Court of Appeal held that the section 10 “dispute” must be a dispute arising under the Act. That was binding on the present court. Section 10 therefore did not create a free-standing jurisdiction over common-law claims in trespass, nuisance or damages.
4. Section 20’s definition of “building owner” pointed towards a person desirous of exercising rights under the Act, ordinarily prospectively and after serving the relevant notice. The claimant had neither invoked nor sought to invoke those rights. The dispute therefore did not arise under the Act.
5. The absence of an express provision deeming a dispute to have arisen in these circumstances, together with the Act’s advance-notice structure and the ordinary right of access to the courts, supported that conclusion. The adjoining owners retained possible common-law remedies, but no unilateral statutory arbitration arose.
6. The first-instance authorities relied upon by the defendants did not alter the result. Rodrigues v Sokal [2008] EWHC 2005 (TCC) concerned a case where notice had subsequently been served. Crowley v Rushmoor BC [2009] EWHC 2237 (TCC), Bridgland v Earlsmead Estates Ltd and Schmid v Hulls were distinguishable, obiter or decided without the benefit of Blake v Reeves.

• High Court (Queen’s Bench Division): The appeal from the order of HH Judge Parfitt dated 3 March 2020 was dismissed. The declaration that the award was null and void was upheld.