Ken Power & Anor. v Raheel Shah

Under the Party Wall etc. Act 1996, a building owner’s statutory rights to carry out party-wall works depend on a prior party structure notice, subject to limited exceptions. The notice triggers the statutory dispute-resolution process. Without it, an adjoining owner cannot unilaterally appoint surveyors and obtain a binding award, even where the works fall within the Act and have been completed. The surveyors’ jurisdiction is confined to disputes arising under the statutory scheme. Common-law and equitable claims remain for the courts. A purported award made without the required notice is therefore null and void, while the adjoining owner retains remedies in trespass, nuisance, negligence and, where appropriate, injunction.

Mr Shah carried out works at his home without serving a party structure notice. The adjoining owners alleged that the works fell within the Party Wall etc. Act 1996 and caused damage. They appointed Lee Kyson as surveyor, who appointed Ken Power for Mr Shah under the default procedure. The surveyors made an award requiring compensation and payment of their fees.

Mr Shah’s Part 8 claim that the award was null and void succeeded before HHJ Parfitt. Eyre J dismissed the appeal in the King’s Bench Division: [2022] EWHC 209 (QB); [2022] 1 WLR 3015. The Court of Appeal considered whether section 10 could be invoked without a section 3 notice where the building owner maintained that the Act did not apply.

1. Appeal dismissed. The Court of Appeal unanimously held that the surveyors’ award was null and void.
2. The statutory rights in section 2 of the Party Wall etc. Act 1996 are conditional on a prior notice under section 3. The notice is mandatory and fundamental to the statutory scheme, subject only to the limited exceptions in section 3(3).
3. Section 10 applies only to a dispute under the Act concerning work to which the Act relates. For section 2 work, that framework presupposes a section 3 notice. There is no logical distinction between an actual dispute and a deemed dispute that would allow the former to proceed without the notice. An adjoining owner cannot unilaterally trigger section 10 by appointing surveyors.
4. The notice regime is prospective. It gives the adjoining owner time to understand the proposed works, appoint a surveyor and resolve issues before the works begin. It was not designed to adjudicate damage caused by completed, unnotified works.
5. The conclusion was supported by the earlier statutory authorities and by decisions under the 1996 Act, including Woodhouse v Consolidated Property Corp. Limited (1992) 66 P.&C.R.234, Louis and Louis v Sadiq (1996) 74 P.&C.R.325 and Blake v Reeves [2009] EWCA Civ 611. The statutory dispute-resolution process does not extend to common-law or equitable remedies, such as damages or injunctions for trespass or nuisance.
6. Absence of a statutory remedy does not leave the adjoining owner without recourse. Common-law rights remain, and the courts determine claims in trespass, nuisance, negligence and any claim for damages or injunction. The court expressed doubts about the retrospective analysis in Crowley v Rushmoor Borough Council [2009] EWHC 2237 (TCC), but that issue was unnecessary to the result. Any such claim would remain a matter for the court, not the surveyors.

• Court of Appeal (Civil Division) dismissed the appeal: [2023] EWCA Civ 239.
• King’s Bench Division, Eyre J, dismissed the appeal from the Part 8 decision: [2022] EWHC 209 (QB); [2022] 1 WLR 3015.
• County Court, HHJ Parfitt, upheld Mr Shah’s Part 8 claim and held that the award was null and void.