Ignoring the provisions of the Party Wall Act can have dire consequences.
The Courts take a dim view of anyone failing to comply with the statutory obligations of the Party Wall etc. Act 1996.
With the potentially costly consequences of ignoring the Party Wall Act well known, it is a constant surprise that so many Building Owners attempt to avoid their obligations.
This may be due to the notion that savings can be made on Party Wall surveyors fees. This is very much a false economy, as a recent case (Nutt v Podger) makes apparent.
Background to Party Wall Court Action (Nutt V Podger)
In this recently reported case, the Claimant, Mr Nutt, sued for an injunction and damages in respect of works for which notice should have been served under the Party Wall Act. The Building Owner and Defendants in the case were Mr Podger and his SPV company, Veda Road Limited.
Mr Nutt moved into 45 Veda Road in Lewisham in March 2012. Mr Podger completed on the purchase of the property next door at 47 Veda Road in June 2020. His intention was to use the property as a development project.
His plans included the creation of an extension in the roof. This involved the removal of roof tiles; cutting into and exposing the party wall; inserting steel beams and fixing timbers into the party wall and raising its height.
All of these works were notifiable under the Party Wall Act. The proposals were not contentious, in fact they are entirely normal works in the everyday context of the Act.
Mr Podger started the work immediately on acquiring No.47. He did so without serving notice as required by the Party Wall Act on his neighbour Mr Nutt at No.45.
Shortly thereafter, Mr Nutt raised concerns over the works and the fact that the Party Wall process had not been followed. The works continued regardless. This led to Mr Nutt appointing a solicitor to write to Mr Podger on the 8th July 2020 raising the issue of non-compliance with the Party Wall Act. Mr Podger responded to this letter by email. He accepted that the works were notifiable under the Act, but stated that they were now finished. He promised to rectify any damage that may have occurred.
Despite the assertion that work had finished, the Court found good evidence that they continued. On the 14th July Mr Nutt obtained an injunction stopping any further works that would be in contravention of the Party Wall Act. Proceedings were then issued.
Consent for Party Wall Works
In the proceedings that followed, Mr Podger claimed that Mr Nutt verbally agreed that the works could proceed without regard to the Party Wall Act. This verbal agreement was allegedly given during a discussion outside No. 47 whilst he was putting waste into a skip.
The judge in the case, HHJ Parfitt, found this defense ‘hopeless for a number of distinct but interrelated reasons’.
The Judge found that in the Defendants (Mr Podger’s) own case he did not assert that Mr Nutt said anything, or did anything (such as nodding or shaking hands) to indicate that he agreed to waive his rights under the Party Wall Act.
The Defendant also accepted that the conversation was only a general chat between neighbours. It did not involve any explanation about the details of the work that was planned.
The judge found that provision of details of the planned works to a party wall ‘would be a likely minimum requirement before a person might agree to works’.
HHJ Parfitt also made reference to the Defendants assumption that a party wall notice and consequent award is not a legal requirement but rather a formality that might be insisted upon by an unhelpful adjoining owner.
The Judge described this as ‘a false assumption’.
Finally, referring to the relevant Party Wall Act wording; the judge pointed out that any consent to works must be in writing. This is to provide a high level of certainty that the protections and benefits of the Party Wall Act have been given up.
He found the Defendant’s assertion of consent ‘hopeless’.
Damages from Party Wall work
During the proceedings, the jointly instructed expert advising the parties concluded that modest damage had been caused to the Claimant’s property. This was estimated to cost about £450 to rectify. He also found that raising the party wall in timber was acceptable.
However, the insertion of steel beams into the party wall required further investigation. This could potentially require remedial work, since there was no evidence of padstones having been used.
Party Wall Judgement
The judge held that :
- There was no evidence of oral agreement to waive the requirements of the 1996 Act. There was no agreement in writing to that effect either.
- The parties should be given a period of three-months to appoint surveyors to make a retrospective award in relation to the works. If the state of the steel beams were such that remedial work was required, the judge indicated that he would make a mandatory injunction requiring such remedial work to be undertaken.
The Judge went on to order that the Claimant should receive the following damages :
- £450 in respect of the physical damage to the Claimant’s property.
- £750 in respect of the Claimant being “wrongfully deprived of the protections of the 1996 Act. This covered a period of 12 months. The damages were also in respect of the trespass which the unauthorised notifiable works represented over the same period.
- £500 in respect of the Defendant burning building waste on a bonfire on one day during the build.
- £2,000 in respect of the noise and disturbance occurring after 1 pm on Saturdays during the build. This was for the period from June to October 2020.
- £250 in respect of broken tiles or other debris falling onto the Claimant’s land during the build.
Consequence for Building Owners of ignoring the Party Wall Act
At first glance the Judgement in this case does not seem unduly harsh.
Despite riding roughshod over his neighbor’s rights, Mr Podger has been given an opportunity to resolve any construction issues caused by the build. In the circumstances, the award of £4,000 in damages is relatively modest.
However, it should be borne in mind that he would also have been required to pay the Claimant’s costs in bringing the matter before the Court. This is likely to have been in the region of £50,000. With his own legal costs to bear too, Mr Podger is likely to be £100,000 worse off from the experience.
Despite the building owners attempts to avoid the costs involved in engaging the Party Wall Act, it is interesting to note that despite damage being limited, and even after the what must have been extensive legal costs, this case required not only an expert surveyor’s report to assist the judge but also led to the judge requiring the parties to engage surveyors to resolve the practical dispute after all.
How a Building Owner should deal with Party Wall Matters
We recommend that building owners proposing work ensure they are aware of the extent to which they fall within the remit of the Party Wall Act.
Where the Party Wall Act applies ensure that a written notice is served on any affected adjoining owners. This should be done even if relations are good, and it is likely that a neighbour will consent to works.
Avoiding the Party Wall Act leaves any future dispute at the mercy of costly legal action; whereas simply serving a notice and then obtaining consent means that surveyors can be engaged should some later dispute arise. That dispute can be dealt with far more quickly and cost effectively than any legal action. This is regardless of relations between the owners at the time.
What lessons does this case have for anyone planning building works?
Aside from the potentially ruinous financial consequences of attempting work to a Party Wall without following the process required by the Act, this case provides a useful reiteration of the requirements of parts of the party wall act, as follows :
Notices & Consent for Works
When dealing with the issue of consent to the works that Mr Nutt alleges was given by Mr Podger, HHJ Parfitt states the following :
It follows that in order to obtain a valid consent a Party Wall Notice should be clear, concise and contain sufficient detail of the proposed works (such as plans & drawings) that the average person could have a reasonable understanding of what is proposed.
It is only when this requirement is satisfied that it is possible for a neighbour to give consent.
HHJ Parfit goes on to reiterate the provisions of section 3.3 of the Party Wall Act. This section states that ‘consent in writing’ is required for a building owner to progress works without the benefit of a Party Wall Award.
This is the most controversial subject for anyone dealing with issues arising from this case.
HHJ Parfitt had in mind a problem with the works that had already been undertaken in making his judgement on this point.
A number of steel beams had been inserted into the party wall, without proper support. This could have been by the use of as padstones, for instance. Judge Parfitt gave the parties a period of time to appoint surveyors and obtain a retrospective award. This was to address the steel beam support issue and rectify Mr Nutt’s general obligations as Building Owner under the Act.
The key point on this part of the judgment was what Judge Parfitt indicated he would do should a retrospective award not be made. He stated that the options available to the Court would be to order that Mr Nutt’s roof extension be removed. Such a course would require that the party wall be restored to its pre-works condition. This work would include restoring the roof.
The lesson here is that a retrospective Award can be an acceptable and beneficial solution to otherwise disputed works. It provides an alternative to the very costly Court process.
Judge Parfit sets out the benefit of his proposed solution as allowing ‘the parties’ surveyors to determine the nature and extent of any problem and, if required, solve it’.
The potential alternative, clearly set out in the judgement, is a mandatory injunction ordering the removal of Mr Nutt’s extension.
This would leave him even further out of pocket. He has already had to pay damages and bear the legal costs of both parties. He would also have to cover the cost of removing the extension and restoring the roof and wall.
In instances such as this, a retrospective Award is an attractive solution for all parties. It avoids the cost and uncertainty of referring matters to the Courts
Further Guidance when appointing a Party Wall Surveyor
If you are a Building Owner planning work to your property and want help managing the Party Wall process, please get in touch.
For information on how the Party Wall Act affects you see our Party Wall Fact Sheet.
You can also find further information in our Party Wall FAQs. This has been compiled this from questions we are often asked about the Act.
You can also find guidance on choosing a Party Wall Surveyor in our recent news article.
There is some further information in the government’s explanatory booklet on the Party Wall process.
If you are unsure how the Party Wall Act affects your property and want some advice give us a call.
If you would rather we called you instead, please fill in our Contact form and we will be in touch.
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Local Party Wall Surveyors
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If you are planning work covered by the Act, or if you have received notice of work from a neighbour and want advice on how best to protect your property, please contact our Enquiry line on 020 4534 3135 for advice direct from one of our surveyors.
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