Party Wall Case Law Ormiston-Kilsby v Fattahi

Party Wall Case Law Ormiston-Kilsby v Fattahi - this 2019 County Court decision provides a critical interpretation of responsibilities under the Party Wall etc. Act 1996 and the consequences of failing to comply.

The dispute, heard before HHJ Vincent in Oxford, concerned a loft extension erected by the Defendant, Dr. Morteza Fattahi, at 22 Islip Road, Oxford, and its impact on the adjoining property owned by the Claimant, Mrs. Tricia Anne Ormiston-Kilsby, at number 20.

At the heart of the case was the Defendant’s failure to serve a party wall notice before commencing the extension, as required under the 1996 Act.

The decision resulted in an injunction for the removal of the extension and damages awarded to the Claimant.

This blog outlines the factual background, legal arguments, and judicial findings, offering valuable insight into how courts approach breaches of the Act.

Factual Background - Party Wall Case Law Ormiston-Kilsby v Fattahi

In early 2015, Dr. Fattahi engaged Charles Grosvenor Ltd (CGL), a building contractor, to construct a second dormer loft extension at his property.

The company had previously completed similar work in 2005 without issue. This time, however, there were complications—particularly around notice obligations under the Party Wall Act.

CGL's contract specified that Dr. Fattahi was responsible for obtaining all consents, including those under the Party Wall etc. Act 1996.

CGL also sent him reminder letters, yet Dr. Fattahi admitted that he neither read the contract nor the follow-up correspondence. He believed that once he hired the contractor, he could step back from the project entirely.

Construction began in November 2015, without any formal party wall notice having been served. Scaffolding and works quickly impacted the Claimant’s property.

Crucially, a flue for a Rayburn stove on Mrs. Ormiston-Kilsby’s roof—used for hot water, heating, and cooking—was not accounted for in the Defendant’s plans.

The Claimant became aware of the works only when she drove past the property and saw scaffolding erected.

She immediately contacted the planning consultant and builders, requesting a halt to construction and the appointment of party wall surveyors.

While works ceased shortly thereafter, the structure remained incomplete and open to the elements for years.

Litigation and Legal Issues

Claimant's Position

Mrs. Ormiston-Kilsby brought a claim for:

1. Mandatory injunction requiring the extension to be removed

2. Damages for trespass, damage to property, and nuisance

3. Compensation for interference with her gas flue and Rayburn system

4. Alternative damages in lieu if the extension was allowed to remain

She argued that the extension compromised her ability to use her home fully, particularly the Rayburn stove, due to the proximity of the flue to the new structure. She also highlighted that she had no opportunity to negotiate or modify plans prior to the commencement of works.

Defendant's Position

Dr. Fattahi asserted he had delivered a letter addressed to “the owner” of No. 20 in August 2015.

Dr. Fattahi claimed this fulfilled the spirit, if not the technical requirements, of the Act. He also maintained that any damage should be blamed on CGL, and insisted that had he known of any objection, he would have abandoned the project.

He characterised the Claimant’s actions as opportunistic, alleging she sought to profit from his oversight.

Notably, he asked her to prove that she had communicated with his builders, including showing an email she had allegedly sent to the wrong address.

He also filed a Part 20 claim against CGL, seeking an indemnity for any damages.

Judicial Findings

1. Breach of the Party Wall etc. Act 1996

HHJ Vincent found that Dr. Fattahi failed to serve a party wall notice, in breach of his statutory duties under the Act. The letter allegedly delivered in August 2015 did not satisfy the requirements for notice under the Act, particularly since he did not intend it as such and lacked necessary content and form.

This breach caused the Defendant to lose all protections under the Act and become liable in common law for trespass and nuisance.

2. Trespass and Nuisance

The Court found that:

Scaffolding erected on the Claimant’s property amounted to trespass

The presence of the unfinished extension constituted a continuing nuisance

The flue's compromised position interfered with the Claimant’s ability to use her Rayburn stove, heating, and hot water system

These issues significantly disrupted the Claimant’s use and enjoyment of her property.

3. Injunction and Damages

The Court applied principles from Lawrence v Fen Tigers (2014) and Shelfer v City of London Electric Lighting Co (1895), confirming that an injunction is the prima facie remedy in nuisance cases. The Defendant bore the burden of demonstrating why the court should award damages instead.

HHJ Vincent rejected the Defendant's argument that the failure to serve notice was a mere "technical mishap." The Defendant’s disregard for statutory obligations and persistent refusal to take responsibility led the Court to grant a mandatory injunction ordering removal of the extension.

The Court also awarded damages of £9,795.68 for repairs and losses, and £2,000 in general damages for stress and inconvenience.

4. Part 20 Claim Against CGL

The Court dismissed the Part 20 claim. Dr. Fattahi had contracted with CGL on terms that made him responsible for securing party wall consents. Additionally, as the property owner, he owed a non-delegable duty of care to his neighbour and could not shift liability to the builder.

Key Takeaways from Party Wall Case Law Ormiston-Kilsby v Fattahi

Strict Compliance Required: The case reinforces that compliance with the Party Wall etc. Act 1996 is not optional. Informal or well-intentioned gestures do not meet statutory requirements.

Notice Is Fundamental: A formal notice containing the prescribed information is essential before carrying out works that affect a party wall. Failure to serve such notice opens a building owner to common law claims.

Ignorance Is No Defence: A defendant’s lack of awareness about their legal obligations offers no protection from liability. Courts will hold property owners accountable for their statutory duties.

Mandatory Injunctions Are Realistic Outcomes: This case demonstrates that courts will not hesitate to grant injunctions requiring demolition, especially where neighbours are deprived of their rights and remedies under the Act.

Non-delegable Duty: Even when a contractor is hired, the building owner remains liable for compliance with the Act and its consequences.

Nuisance Beyond Physical Damage: Nuisance was found here not only because of structural impact but because the Claimant lost control over her property and its systems, such as the heating flue.

Costs Consequences Are Severe: Litigation of this nature often leads to significant legal costs, especially where parties are unwilling to resolve disputes early.

Conclusion - Party Wall Case Law Ormiston-Kilsby v Fattahi

Ormiston-Kilsby v Fattahi is a cautionary tale about the perils of informal approaches to party wall matters.

It underlines the need for building owners to understand and follow statutory processes when undertaking works close to or on shared structures.

Courts are prepared to enforce property rights robustly, and failure to serve proper notice can lead to orders for demolition and substantial damages.

This case now stands as an important authority in Party Wall Case Law, reminding surveyors, property owners, and developers of the legal and financial risks of non-compliance.

By understanding the legal responsibilities under the Party Wall etc. Act 1996, property owners can manage construction risks more effectively, avoid disputes, and ensure fair compensation when damage occurs.

Resources

Party Wall Factsheet

Online Party Wall Quote

What is a Party Wall Agreement

Party Wall Case Law Power & Kyson v Shah

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