Party Wall Case Law Power & Kyson v Shah

Party Wall Case Law Power & Kyson v Shah : this Court of Appeal judgment provides crucial clarification on the application of the Party Wall etc. Act 1996 (“the Act”).

Specifically, it clarifies whether the statutory dispute resolution process under section 10 can be invoked in the absence of a party wall notice under section 3.

This decision is significant for surveyors, property lawyers, and property owners alike, as it sets clear limits on when and how the Act applies.

Background: A Dispute Without a Notice

Raheel Shah, the respondent, carried out building works at 34 Bull Lane in Dagenham, allegedly including the removal of a chimney breast.

Shah did not serve a notice under section 3 of the Act, asserting—based on advice from a planning consultant—that the Act did not apply to his works.

Mr and Mrs Panayiotou, the adjoining owners at 36 Bull Lane, believed the works fell within the Act’s scope and had caused damage to their property.

Instead of pursuing a civil claim, they appointed Lee Kyson as their surveyor under section 10(1). Kyson, acting under section 10(4), appointed Ken Power as Shah’s surveyor after Shah refused to participate in the statutory process.

The two surveyors made an award that:

Declared the works notifiable under the Act;

Found Shah liable for damage;

Ordered Shah to pay £4,223.49 in compensation and £4,630 in surveyor fees.

Shah contested the award, asserting the Act had never been engaged due to the absence of a party wall notice.

Legal Proceedings

Shah initiated a Part 8 claim, which HHJ Parfitt upheld, finding the award null and void.

On first appeal, Eyre J concurred, ruling that without a section 3 notice, no dispute under the Act had arisen and therefore section 10 was not engaged.

The appellants appealed to the Court of Appeal, where the issue was considered for the first time at this level.

The Legal Question : Party Wall Case Law Power & Kyson v Shah

Can an adjoining owner unilaterally invoke the Party Wall Act's dispute resolution procedure under section 10 in the absence of a notice from the building owner under section 3?

The Court of Appeal’s Analysis

Purpose and Framework of the Act

The court began with a meticulous approach, examining the structure and objectives of the Act:

1. Section 2 grants the building owner various rights over party walls.

2. Section 3 mandates notice before exercising any such right.

3. Section 10 provides a mechanism for resolving disputes arising under the Act.

The court emphasised that the Act is structured to be prospective. A section 3 notice must be served before works begin, allowing for disputes to be resolved—or avoided—before damage or conflict arises.

Section 10 Requires a Section 3 Notice

The court unequivocally held that section 10's dispute resolution process cannot be triggered in the absence of a section 3 notice.

It rejected the argument that an adjoining owner could unilaterally engage the Act if they believed works were notifiable but no notice had been served.

Key points included:

A "deemed dispute" arises only after failure to consent to a notice;

It is illogical for an "actual dispute" to arise without a notice while a "deemed dispute" cannot;

Parliament did not intend for the Act to be used retrospectively or unilaterally;

Surveyors only have jurisdiction where the Act is engaged via proper notice.

Policy Considerations

The court recognised that while section 10 was designed to avoid litigation, that aim does not override the Act’s mandatory procedures. Permitting adjoining owners to invoke section 10 without a section 3 notice would:

Undermine the building owner's access to justice;

Risk forum shopping and parallel proceedings;

Contravene the statutory limits placed on surveyors' jurisdiction.

Common Law Remedies Remain Available

Importantly, the court affirmed that an adjoining owner in this situation retains all common law rights—including claims for trespass, nuisance, or negligence.

The absence of recourse under the Act does not leave a party without remedy, though it may require litigation.

Precedent and Supporting Case Law

The court drew on multiple authorities to support its interpretation:

1. Woodhouse v Consolidated Property Corp : Surveyors cannot determine liability without a valid notice.

2. Louis v Sadiq : Absence of a notice precludes operation of the statutory process; common law remedies prevail.

3. Blake v Reeves : Section 10 applies only to disputes under the Act; court proceedings for common law claims fall outside its scope.

4. Seeff v Ho : Again, the absence of notice was seen as critical to the applicability of the Act.

The court also distinguished Crowley v Rushmoor BC, where Judge Thornton QC suggested retrospectivity. The Court of Appeal dismissed this analysis as inconsistent with statute and established authority.

Definitions and Statutory Interpretation

A critical interpretive point lay in the definition of "building owner" in section 20: “an owner of land who is desirous of exercising rights under this Act.”

The court held that unless a notice is served, no such intention is legally expressed, and thus the party is not a "building owner" for the purposes of the Act.

Conclusion of the Court : Party Wall Case Law Power & Kyson v Shah

The Court of Appeal unanimously dismissed the appeal. Lord Justice Coulson concluded that:

No notice under section 3 = no engagement of section 10.

The award was therefore null and void.

Common law actions remain available.

Both Lady Justice Laing and Lord Justice Lewison concurred, with the latter delivering a comprehensive supporting judgment grounded in the history of party wall legislation.

Key Takeaways: Party Wall Case Law Power & Kyson v Shah

Section 10 requires a section 3 notice. The dispute resolution process under the Act cannot be initiated without the service of a proper notice.

Surveyors’ jurisdiction is statutory. They cannot act unless the Act is properly engaged—unilateral appointments without a notice are ultra vires.

No retrospectivity. The Act is forward-looking and intended to prevent disputes, not resolve them after unauthorised works.

Common law remains intact. Adjoining owners retain their rights to sue for nuisance, trespass, or negligence outside the Act.

Clear limits reaffirmed. This case cements the procedural boundaries of the Act and protects against informal or improper invocation of statutory rights.

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 Taylor v Jones

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