A recent decision on the Party Wall Act means that those who consent to a party wall notice are still protected by the act if a dispute arises

Party walls have historically been the cause of many a neighbourly dispute. Until 1996, those living outside inner London who were unlucky enough to find themselves on one side of a party wall had little in the way of legislative protection against a neighbour carrying out works on the other. And if they were unlucky enough to suffer damages, they faced a long and expensive legal battle.

The Party Wall Act 1996 was intended to remedy this “legislative void” and provide a safety net for “adjoining owners”.

The biggest change the act introduced was a requirement that the “building owner” (that is, the party wishing to carry out the works) notify the adjoining owner of the proposed works by way of a party wall notice.

If the adjoining owner objected (or failed to respond), then the act provided a mechanism under section 10 whereby a panel of surveyors were appointed to produce an award dealing with the right to execute the works and the timing and manner of such execution.

Parties were also allowed to remit further disputes arising out of the works to the panel.

Such disputes might include a deviation from the award, a claim for compensation or a request for the surveyors to decide who should pay what for the works.

Since 1996 this provision has been operated successfully by an ever increasing body of professional party wall surveyors and the number of disputes reaching the courts has decreased dramatically.

Judge Birtles found that a surveyor’s jurisdiction under section 10 is not dependant on a party initially disputing the party wall notice

However for many using the act, that is where its utility generally ends. Importantly it appears to be a commonly held misconception that if a party initially consents to a party wall notice (thus saving their neighbour the time and expense of going through the section 10 procedure), then the provisions of the act cease to apply.

In particular, it is thought that the consenting party no longer has the right to use the section 10 dispute resolution procedure. This would lead to the seemingly unjust result that a good neighbour is forced to pursue a claim through the courts whereas a neighbour who disputes the works (regardless of the merit of such a challenge) gains protection under the act.

However, party wall surveyors and good neighbours across the land will be pleased to hear that the court has now expressed its disagreement with this position in its decision in Onigbanjo vs Pearson.

The question before the court in that case was, if a party served with a party wall notice consents to the works, do they thereby lose further protection under the act and, if the works cause damage to their property, must they make costly trips to court?

Thankfully, His Honour Judge Birtles held that a party that does not initially dispute the party wall notice does not lose their right to pursue other rights under the act, including by way of the section 10 procedure.

Judge Birtles found that a surveyor’s jurisdiction under section 10 is not dependant on a party initially disputing the party wall notice under section 4 (or failing to respond thereby invoking a deemed dispute under section 5), but that there are in fact “a number of sections which enable one or either party to evoke section 10 apart from sections 3-5”.

It is hoped that this decision will finally clarify the position for surveyors and homeowners alike and will ensure that good neighbours are not left out of pocket.

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