Sajjad Nabi discusses the recent Court of Appeal decision in the case of (1) Power (2) Kyson v Shah [2023] EWCA Civ 239

“NO NOTICE NO ACT”

In (1) Power (2) Kyson v Shah [2023] EWCA Civ 239, the Court of Appeal considered whether the dispute resolution procedure set out in Section 10 of the Party Wall etc Act 1996 (“the Act”) could be unilaterally invoked by an adjoining owner where no party structure notice (“Notice”) under the Act had been served by the building owner carrying out works.

The Court of Appeal recognised that there was no authority directly on point.

The Facts

Mr Shah, the building owner, carried out works to his home without serving any Notice under the Act on the owners of adjoining property, maintaining that the Act did not apply. This was disputed by the adjoining owners, who further alleged that the works had damaged their property. They invoked the dispute resolution procedure under Section 10 of the Act and appointed Mr Kyson to act as their surveyor, who in turn appointed Mr Power as surveyor for Mr Shah. 

Mr Power and Mr Kyson determined that the works did require Notice under the Act; had caused damage to the adjoining property and issued an Award accordingly.

Mr Shah brought proceedings, claiming the Award was void because the Act did not apply.

He succeeded at first instance and a first appeal was dismissed.

The Statutory Scheme

Section 2(2) of the Act confers upon a building owner rights to carry out various works, subject to service of Notice on any adjoining owner under Section 3. In the event of a dispute, the dispute resolution mechanism set out in Section 10 applies.

Discussion

The Court of Appeal held that service of the Notice was fundamental to operation of the Act.

Lord Justice Coulson observed that the Section 10 procedure applied only “in respect of any matter connected with any work to which this Act relates” – i.e. work in respect of which Notice had been served.

He further noted that the Act contained no provision entitling an adjoining owner to unilaterally invoke the Section 10 procedure absent Notice being served.

Importantly, an adjoining owner who was unable to seek dispute resolution under the Act would have recourse to the Court and the usual common law remedies, i.e. for trespass, nuisance etc. Thus, they were not left without a remedy. The adjoining owner’s common law rights would only be substituted for rights under the Act where the Act had been fully complied with.

As such, the Court of Appeal agreed with the decisions below and dismissed the Appeal.

Comment

This judgment contains a useful review of the authorities dealing with the importance of the Notice as the springboard from which the scheme of the Act (or its predecessors) operates. Absent Notice, an adjoining owner should look to the Court and common law remedies, rather than waste resources on seeking relief under the Act.

The full judgment can be found here - (1) Power (2) Kyson v Shah [2023] EWCA Civ 239

Sajjad Nabi

Call 2003

13.03.2023