Party Wall Case Law Kaye v Lawrence

Party wall disputes often raise practical questions about the scope of rights and obligations under the Party Wall etc. Act 1996 (“the Act”). One such issue is whether an adjoining owner can demand security for expenses when works are carried out solely on the building owner’s land but which might still pose a risk to the adjoining property. The party wall case law in Kaye v Lawrence (2010) addressed this exact question. Mr Justice Ramsey provided the first reported judgment on section 12(1) of the Act, clarifying when and how adjoining owners can seek security before works begin. The ruling has become a cornerstone in party wall case law, with significant implications for surveyors, property owners, and legal practitioners.

This article explores the facts, arguments, and decision in Party Wall Case Law Kaye v Lawrence, before setting out the key legal principles that continue to guide party wall disputes today.

Background to the Dispute

The dispute arose between Mr Geoffrey Kaye (the adjoining owner) and Mr Matthew Lawrence (the building owner).

Mr Lawrence owned a property at 124 Panorama Road, Sandbanks, Poole, where he intended to carry out substantial excavation works for a new development.

Mr Kaye owned the neighbouring property at 126 Panorama Road, a modern glass-fronted home at risk from potential ground movement.

On 29 June 2009, Mr Lawrence served a notice under section 6(1) and 6(2) of the Act, which governs excavations within 3 or 6 metres of an adjoining owner’s structure. The notice confirmed that he intended to excavate but did not propose to underpin or otherwise strengthen Mr Kaye’s building.

As expected, Mr Kaye dissented. He appointed his own surveyor, while Mr Lawrence appointed another. The two surveyors selected a third surveyor, Mark Whittingham, to resolve the disputes by award under section 10 of the Act:contentReference[oaicite:1]{index=1}.

The Key Dispute – Security for Expenses

The central issue concerned security for expenses under section 12(1). This provision allows an adjoining owner to require a building owner to provide financial security - such as a bond or insurance - before works begin. The purpose is to ensure funds are available if damage or loss occurs.

Mr Kaye requested that Mr Lawrence provide a bond or project-specific insurance policy to cover potential damage to his property.

The third surveyor, Mr Whittingham, refused this request. Relying on commentary from the respected Pyramus & Thisbe Club’s “Green Book”, he ruled that security could only be required when works were carried out on the adjoining owner’s land, not when excavation took place solely on the building owner’s land.

Mr Kaye appealed this decision to the Technology and Construction Court.

The Legal Framework

Section 6 – Excavation within 3 or 6 Metres

Section 6 of the Act applies where a building owner proposes to excavate near an adjoining property:

Within 3 metres, if the excavation goes deeper than the adjoining foundations.

Within 6 metres, if the excavation intersects with a line drawn downwards at 45 degrees from the adjoining foundations.

The building owner must serve notice, and if required, underpin or safeguard the adjoining owner’s foundations.

Section 12 – Security for Expenses

Section 12(1) provides:

“An adjoining owner may serve a notice requiring the building owner before he begins any work in the exercise of the rights conferred by this Act to give such security as may be agreed between the owners or in the event of dispute determined in accordance with section 10"

The key question in Kaye v Lawrence was whether excavation under section 6(1) and 6(2) amounted to the “exercise of rights conferred by this Act”, thereby triggering section 12(1).

The Parties’ Arguments

The Appellant – Mr Kaye (Adjoining Owner)

Represented by Sarah Hannaford QC, Mr Kaye argued:

Plain wording – Section 12(1) contains no restriction limiting security to works on the adjoining owner’s land. It applies whenever the building owner exercises rights under the Act.

Exercise of rights – Serving notice under section 6(1) and 6(2) makes the building owner a “building owner” under section 20, exercising rights under the Act.

Practical purpose – Excavation near a neighbour’s property often poses more risk than minor works directly to a party wall. Denying security in these cases would defeat the Act’s protective purpose.

The Respondent – Mr Lawrence (Building Owner)

Represented by Martin Hutchings, Mr Lawrence contended:

Narrow definition of rights – Section 12(1) only applies when the Act grants explicit rights to interfere with the adjoining owner’s property (e.g., cutting into a party wall, underpinning foundations under section 6(3), or exercising rights of entry under section 8).

No rights under section 6(1) and 6(2) – Excavating on one’s own land within 3 or 6 metres is not a “conferred right” but a restriction on common law rights. Therefore, it does not trigger section 12(1).

Consistency of language – Parliament used different wording (“any work in the exercise of the rights conferred”) deliberately, distinguishing it from broader phrases such as “any work executed in pursuance of this Act” used elsewhere.

The Court’s Decision

1. Interpretation Principles

Mr Justice Ramsey emphasised the plain meaning rule and the commonsense construction rule:

Courts should first consider the ordinary meaning of statutory wording in context.

Only if the wording produces absurd results should alternative interpretations be considered.

2. Section 6 Confers Rights

The judge rejected the respondent’s narrow view. He held that:

While excavation within 3 or 6 metres is technically on the building owner’s land, section 6 supplants common law rights.

The building owner can only excavate lawfully by serving notice and complying with the Act.

Therefore, the works are carried out in the exercise of rights conferred by the Act, not purely at common law.

3. Security Applies to Excavation Works

Mr Justice Ramsey ruled that section 12(1) does apply to works under section 6(1) and 6(2). There was no justification for distinguishing between:

Works on the adjoining owner’s land (e.g., cutting into a party wall), and

Excavation works on the building owner’s land that may endanger the adjoining structure.

Both carry risks, and both fall within the protective scope of the Act.

4. Error of Law by the Surveyor

The judge found that the third surveyor had erred in law by excluding excavation works from section 12(1). He declared that adjoining owners are entitled to seek security for expenses in such cases.

Download Judgement

Implications of the Judgment

The ruling in Party Wall Case Law Kaye v Lawrence has far-reaching consequences:

Security extends beyond direct interference – Adjoining owners can demand security even if the building owner’s works are confined to their own land, provided they fall within the Act.

Greater protection for adjoining owners – This reduces financial risks in cases where excavation could undermine neighbouring buildings.

Surveyors’ discretion clarified – Surveyors determining awards must consider security requests more broadly, not just where works physically touch the adjoining property.

Balance of fairness – The ruling confirms that the Act is designed to safeguard adjoining owners from potential harm, not just from direct encroachment but also from indirect risks like subsidence or vibration.

Key Takeaways from Party Wall Case Law Kaye v Lawrence

Section 12(1) applies broadly – Security for expenses can be required whenever a building owner exercises rights under the Act, including works under section 6(1) and 6(2).

Excavation is included – Even if works are confined to the building owner’s land, adjoining owners can still request financial protection.

Surveyors must consider security requests carefully – Limiting security only to works directly on the adjoining owner’s land is an error of law.

The Act supplants common law rights – Once notice is served, the building owner’s rights derive from the Act, not common law, meaning adjoining owners benefit from statutory protections.

Practical significance – The judgment ensures adjoining owners have real recourse to demand bonds, guarantees, or insurance before risky excavation works commence.

Conclusion - Party Wall Case Law Kaye v Lawrence

Kaye v Lawrence (2010) stands as a pivotal authority in party wall case law. It confirms that adjoining owners have a right to demand security for expenses even when excavation works are undertaken entirely on the building owner’s land.

For homeowners, developers, surveyors, and solicitors, the decision underscores the protective purpose of the Party Wall etc. Act 1996. It ensures that adjoining owners are not left financially exposed to risks arising from neighbouring construction projects.

As a result, surveyors must approach section 12(1) with a broad interpretation, and building owners should expect to provide appropriate security whenever their proposed works pose potential risks to adjoining structures.

Party Wall Case Law Kaye v Lawrence remains a cornerstone of party wall jurisprudence, balancing the building owner’s right to develop with the adjoining owner’s right to security and protection.

Get in Touch

If you are planning works covered by the Party Wall Act, early professional advice can save time, cost, and disputes. At Anstey Horne, our RICS-qualified Party Wall Surveyors act for building owners, adjoining owners, architects, and legal teams across England and Wales.

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