In Freetown Limited v Assethold Limited [2012] EWHC 1351, a party wall appeal under section 10(17) of the Party Wall etc. Act 1996, the High Court has given some much needed guidance on the service provisions of section 15 of the Party Wall etc. Act 1996.

Background

 Freetown is the freehold owner of 12 Westport Street, London. Assethold had a long lease of the adjoining property, 4 Westport Street. On 20 January 2011 Freetown, as Building Owner, served a number of notices under the Party Wall etc. Act on Assethold as Adjoining Owner.

 A dispute arose and a tribunal of three surveyors was appointed. On Friday 22 July 2011 the third surveyor made an award, and on that day or the day after (Saturday 23) he posted it to the parties.

 Freetown sought to appeal the award, and lodged its Appellant’s Notice on 08 August 2011.

 Assethold argued that the 14 day time limit in section 10(17) of the Party Wall etc. Act 1996 ran from the date the award was posted, which meant that the limitation date was Thursday 4 or Friday 5 August 2011, and the appeal was out of time.

 Freetown argued that the 14 day time limit started from the date the award was actually received (Monday 25 July 2011), which mean that the 14 day limit expired on 08 August, and the appeal was issued just in time.

 The appeal was initially heard by Mr Recorder Hochhauser QC on 16 December 2011.

 The Recorder found that the service provisions of section 15 were analogous to the provisions of s. 23 of the Landlord and Tenant Act 1927 and, following the decision of the Court of Appeal in CA Webber (Transport) Ltd v Railtrack Plc [2003] EWCA Civ 1167 (“Webber”), the date ran from the date the award was consigned to the post. The appeal was therefore out of time, and was struck out.

 Freetown appealed the Recorder’s decision to the High Court.

 Freetown’s Arguments

 It was submitted on behalf of Freetown:-

 (a)    that the Recorder had erred in finding that he was bound by the decision in Webber, as s. 23 of the Landlord and Tenant Act 1927 was not the same as, and could be distinguished from, section 15.

 (b)    That the correct construction was that section 7 of the Interpretation Act 1978 applied to section 15, meaning that the date of service was when the award was served when it arrived “in the ordinary course of post

 (c)    That the Human Rights Act 1998 required the Court to interpret to adopt the interpretation of section 15 above.

 Freetown also relied on the unreported decision of the Central London County Court in Satish Harpalami v Gray’s Road Investment in which His Honour Judge Knight QC found that section 7 of the Interpretation Act 1978 applied to section 15.

 Judgment

 Mrs Justice Slade rejected those arguments.

 Her Ladyship considered that as the second and third arguments in this appeal had been already argued in Webber, the success or otherwise of those arguments hinged on  whether section 15 could be distinguished from s. 23 of the Landlord and Tenant Act 1927; essentially, the second and third arguments stood or fell with the first argument.

 He Ladyship found that interpreting section 15 so as to provide for service when the documents is consigned to the post would provide a greater degree of certainty than if the date of service were when the document was received. Whilst this may produce injustice in a handful of cases, Her Ladyship found that the service provisions in s. 23 of the Landlord and Tenant Act 1927 were not materially distinguishable from section 15, and Webber was binding authority.

Therefore, the second and third arguments were not relevent, and following Webber the date of service of the Award was the date on which it was consigned to the post.

The appeal was therefore made out of time, and was correctly struck out.

 Conclusion

 Although this case was heard by the High Court it is nevertheless binding authority. This is because it was heard by the High Court in its appellate capacity, and not as a court of first instance, although I undertstand that this may yet be referred to the Court of Appeal

 This decision will have wide ranging effects on the administration of the Party Wall etc. Act 1996.

 In particular, awards and notices under the 1996 Act (including party structure notices, excavation notices and s. 10(7) notices) will be deemed served when they are posted, and not when (if indeed if) they are received.

One potential difficulty is in demonstrating that the document was, in fact, consigned to the post.

 Surveyors would be well advised to ensure that they obtain proof of posting from the Post Office when they are serving notices, awards or other documents, to avoid any difficulty in establishing that the date of service.

 If you require any advice on this or any other issue arising from the Party Wall etc. Act 1996 then please get in touch at matthew.hearsum@morrlaw.com.


In July 2011 the Court of Appeal handed down its judgment in Jones & Lovegrove v Ruth & Ruth [2011] EWCA Civ 804. The case is interesting because it confirms that an errant building owner can be liable in substantial damages for harassment of their adjoining owner, and also provides some guidance on the principles to be applies when assessing damages for trespass to a party wall.

The Facts

The Claimants, mesdames Jones and Lovegrove, purchased 105 Lower Thrift Street, Nottingham in 2002. The Defendants, Mr and Mrs Ruth, owned the adjoining property, 103 Lower Thrift Street. They also owned the next house in the terrace, no 101.

101 and 103 had been constructed as two-storey houses.  105 was constructed as a three-storey house. The wall that separated 103 and 105 was a party wall to the extent that 103 enclosed on it, but the third storey was solely in the ownership of 105.

Between May 2002 and March 2007 extensive works were carried out to. 103, in which the house was gutted, a third storey and a rear extension were added, and a garage constructed in the back garden. As part of the construction of the third storey Mr Ruth cut holes into the third-storey wall of 105, inserted purlins, and enclosed upon the wall, all without the consent of Jones and Lovegrove.

Mr Ruth had purported to serve a party structure notice on the predecessor in title of 105, Mr Pollard, but that notice was invalid. Mr Ruth also gave evidence that he had obtained Mr Pollard’s consent to the works. However, at the trial Mr Pollard gave evidence that he had never had any such discussions with Mr Ruth. [AUTHOR’S NOTE:  even if such consent were given, it would not remove the requirement to comply with the 1996 Act: See Seeff v Ho below].

Mr Ruth’s works dragged on for 5 years. By February 2008 Jones and Lovegrove had had their fill, and issued proceedings in the Technology and Construction Court. They sought an injunction, alternately damages to nuisance and trespass. Their principal complaints were that during the works to 103:-

  1. they suffered from excessive and persistent noise and vibration which affected 105;
  2. the vibration caused cracking in the walls of 105 which continued until about March 2006;
  3. Mr and Mrs Ruth had trespassed by making holes in the gable end wall of 105 and by the insertion of purlins, and had also damaged the roof;
  4. there had been trespass on to their garden by the erection of scaffolding and the storage of building materials, particularly during the re-building of the garage at 103;
  5. the boundary wall had been damaged and in part demolished during the works; and
  6. there had been numerous other incidents of rubbish being thrown into their garden and of other anti-social behaviour, including Mr and Mrs Ruth or their children dropping notes from their windows containing offensive and threatening remarks about lesbians (mesdames Jones and Lovegrove being in a same-sex relationship).

In addition, Ms Jones also claimed damages for personal injury. Ms Jones suffered severe back pain brought on by anxiety and depression as a consequence of witnessing the damage inflicted on 105 by Mr and Mrs Ruth. That claim was based on negligence, in the alternative under the Protection from Harassment Act 1997.

The High Court

The Claimants succeeded in their claim for damages in respect of the alleged nuisance and trespass. In particular, His Honour Judge Wilcox found that the work could and should have been completed within one year, and that the continued works over a 4 year period amounted to a serious loss of amenity the Claimants’ enjoyment of their home.

His Honour summed up Mr Ruth’s attitude to the works as follows:-

It is a feature of this sad case that Mr Ruth throughout has failed to be open and transparent in relation to the scope and timescale of his building activities both at 101 and 103 Lower Thrift Street. He took the view that 103 was his house and he could do whatever he liked to it, and in it, at anytime that he chose convenient to the operation of his business and his development activities. He is clearly a hardworking and industrious man who is intolerant of criticism.”

His Honour assessed the damages for the trespass at £45,000, and the nuisance at £30,000.

His Honour dismissed the claim for personal injury on the basis that the injury to a claimant must be reasonably foreseeable as a result of a defendant’s actions. On the facts of the case His Honour found that the injuries complained of were not reasonably foreseeable, and therefore the claim must fail.

Jones and Lovegrove appealed the dismissal of Ms Jones’ personal injury claim. The Defendants cross appealed the award of £45,000 for the trespass.

The Appeal

It was submitted on behalf of Jones and Lovegrove that His Honour had made an error of law in requiring foreseeability of the injury to be a component of a claim for damages for harassment. Although foreseeability was a requirement for negligence, there was no such requirement in the Protection from Harassment Act 1997.

The Court of Appeal agreed. Unlike negligence, there is no requirement in a claim in damages for harassment that the injury be foreseeable as the result of a defendant’s actions. If the injury is caused by the harassment, that is enough to award damages for that injury to a claimant.

Therefore, if a building owner undertakes work in such a fashion as to cause harassment of the adjoining owner, he is liable in damages for all that flows from that harassment, including personal injury.

On the facts of this case Ms Jones was awarded general damages of £28,750 and loss of earnings of £115,000.

The Cross Appeal

On behalf of Mr and Mrs Ruth it was argued that the award of £45,000 was made without jurisdiction, or alternately that there was a double recovery, as there was an overlap of the head of loss in respect of the award of £30,000 for nuisance and the award of £45,000 for trespass.

The Court of Appeal rejected those points out of hand, but did undertake an analysis of how the figure of £45,000 was arrived at. His Honour Judge Wilcox awarded £45,000 on the basis that this was the increase in the value of 103 as the result of the unlawful addition of the third floor.

The Court of Appeal though this was incorrect. In  Wrotham Park Estate v Parkside Homes [1974] 1 WLR 798 (the relevance of which is explained below) 5% of the increase in value was determined to be the likely license fee the claimant would have charged the defendant for the infringement of their rights.

However, in the facts of this case, the Jones and Lovegrove were particularly sensitive to the building works, and would have asked a larger fee before they would granted Mr and Mrs Ruth the right to cut into and enclose upon their third-storey wall. Conversely, Mr and Mrs Ruth would have very keen that the third storey be added to 103 so as to match 101, and would have been willing to pay a greater fee.

The Court of Appeal therefore determined that Mr and Mrs Ruth should pay one third of the increase in value; that is, £15,000, and substituted that figure as the award for the trespass committed by Mr and Mrs Ruth.

Conclusion

Hard-nosed building owners who undertake their works without proper consideration for their adjoining owners may well be liable for harassment under the Protection from Harassment Act 1997. There is no requirement that the injury suffered by the adjoining owner, be it harm to their property, or physical harm or indeed psychological harm, be foreseeable. The only requirements are that the defendant’s conduct must amount to harassment, and that injury is suffered as the result of that harassment.

The decision also provides some useful guidance on how surveyors should asses Wrotham Park damages when quantifying damages for a trespass or infringement of other property rights. The starting point is the amount by which the value of the building owners property has been increased by the infringement.

The surveyors must then factor in how unwilling the adjoining owner would be to grant the right sought, and how keen the building owner would be to have that right. The more unwilling the adjoining owner and/or the more willing the building owner, the greater the award.


In August 2011 the Court of Appeal decided the case of Hirose Electrical UK Limited v Peak Ingredients Limited [2011] EWCA Civ 987, and considered whether disrepair to a party wall could constitute a nuisance.

The Facts

Units 20 and 22 on the Crownhill Industrial Estate, Milton Keynes, were occupied by Peak Ingredients and Hirose Electrical respectively. They were separated by a party wall constructed in breeze block. That party wall was described as “porous”; in short, there were insufficiently sealed gaps in the wall.

Hirose moved into Unit 22 in 1993. They manufactured parts for mobile phones. Unit 22 was split into light manufacturing and office uses. Peak moved into Unit 20 in February 2002. They manufactured food additives and coatings.

From the beginning of Peak’s occupation of Unit 20 Hirose’s employees made “frequent and vehement” complaints about the smell emanating from Unit 20. It was described as “spicy, peppery, or like curry or garlic”. The employees’ complaints included breathing difficulties by asthmatics, sinus problems and severe headaches, feelings of sickness and nausea, and dry throats. There were occasions when members of Hirose’s staff felt so nauseous they were sent home.

In October 2007 Hirose decided that could no longer abide the smells from Unit 20; they would have move. It vacated Unit 22 on 16 May 2008, and issued proceedings against Peak on 27 March 2009. They alleged that Peak had committed the tort of private nuisance. Hirose sought recover financial losses it alleged it suffered as the result of the nuisance, including the costs of moving premises.

The High Court

The High Court dismissed Hirose’s claim. Following Southwark v. Mills [2001] 1 AC 1, the ordinary, normal and reasonable use of premises by its occupier was not in itself a nuisance. There had to be more; an activity that took their behaviour outside the normal and reasonable use. On the facts of this case Peak’s use was within the ordinary, normal and reasonable use of a unit in a light industrial estate.

The Court of Appeal

Hirose appealed the Court of Appeal. One of Hirose’ four ground of appeal was that the judge had failed to consider whether, having regard to the porous nature of the party wall, Peak’s activities could be reasonably or conveniently done within Unit 20 at all.

The Court of Appeal dismissed the appeal on other grounds, but did consider and reject this argument. Although the porous nature of the party wall was relevant to the penetration of the smell into Unit 20 and as a subject of remedial work, no blame on that point could be allocated to the parties or to the landlord. In short, the want of repair to the party wall would not transform Peak’s reasonable use into an unreasonable use.

Previous Decisions

This appears at odds with the decisions in cases such as Bradburn v Lindsay [1983] 2 All ER 408 and Brace v South East Regional Housing Association Ltd (1984) 270 Estates Gazette 1286, in which it was held that disrepair to a party wall could give rise to a claim for damages in nuisance.

It should be noted that the cases of Bradburn and Brace do not appear have been brought to the attention of the Court of Appeal in this case. Had the Court been aware of these earlier authorities the Court’s decision might have been different.

However, assuming that the Court’s decision would have been the same, these apparently conflicting decisions may be resolved by looking to the effect of the disrepair. In both Bradburn and Brace the effect of the disrepair was a withdrawal of support in breach of the easement of support under s. 38(1) of the Law of Property Act 1925.

Conclusions

It therefore seems that a defendant must be in breach of a positive obligation to repair the wall, such as that imposed by the easement of support, before they can be liable in nuisance for the effect of the disrepair. This would be consistent with the Court’s reasoning in Hirose, as the Court specifically noted that Peak was under no obligation to repair the wall.

The Court also noted (and not for the first time) that the costs of the litigation, which had not achieved anything, far exceeded the cost of a constructive solution by insulating the party wall against the smells.

In conclusion, it seems that disrepair to a party wall will only give rise to liability in nuisance if the disrepair is in breach of a positive obligation to repair, for example in a repairing covenant in a lease, or the easement of support.


The Court of Appeal recently considered in Seeff v Ho [2011] EWCA Civ 186 the nature of an alleged oral waiver of the obligations under the Party Wall etc. Act 1996, and the basis on which damages for trespass in breach of the 1996 Act are to be assessed.

The Facts

In 2006 Mr and Mrs Ho decided to build an extension and undertake other improvements to their house at 314 Whitchurch Lane, Edgware, London. Those works included the conversion of their garage, which shared a party wall with No. 316 Whitchurch Avenue, and the creation of a hipped garage roof at the same height as the existing roof.

 Mrs and Mrs Ho obtained planning permission, but did not serve any notices under the 1996 Act on the basis that they (incorrectly) thought that the wall was not a party wall.

 Construction started in August 2007. During the works Mr and Mrs Ho altered their plans and instead constructed a gable end roof at a height approximately 12 inches above the existing roof.

 Shortly after the works were completed, Mr Seeff, the owner of No. 316, issued proceedings in Willesden County Court seeking an injunction requiring the removal of the roof and damages for trespass, on the basis that the roof as constructed encroached upon their land and Mr and Mrs Ho had failed to comply with the Party Wall etc. Act 1996.

 Effect of Consent

 One of the main issues in dispute was the effect of a conversation between Mrs Ho and Mr Seeff which took place over the garden fence in February or March 2006.

 Mr and Mrs Ho argued that the effect of that conversation was that Mr Seeff had given unqualified oral consent to proceed with the conversion of the garage and heightening the garage roof, and that therefore they did not need to serve notice under the 1996 Act.

 At the trial His Honour Judge Copley agreed, and found Mr Seeff had given consent to the work, but that such consent had not extended to all of the works that took place and, to the extent those works fell outside the consent, Mr and Mrs Ho had committed a trespass.

 Lord Justice Thomas, giving the lead judgment of the Court of Appeal, took a different view:-

31.     Plainly when a neighbour seeks to do work that affects another neighbour, informal conversations as to what is proposed are highly desirable. However an informal discussion over the garden fence cannot, in my view, be taken objectively as a simple consent to proceed with the work without more. A neighbour who has given the consent would obviously expect that, if planning permission was required or consent under the Party Wall Act was needed, the processes would be put in train and the obligations imposed by the planning authorities or under the Party Wall Act observed as a condition of consent.” [author’s emphasis]

Put simply, an Adjoining Owner’s agreement to allow works to take place (or not to oppose works taking place) will not relieve the Building Owner of his obligation to comply with the 1996 Act.

 His Lordship confirmed:-

 “36.     …The [1996] Act makes it mandatory to give notice in respect of work defined in the Act. 

This is consistent with the decision of Ramsey J in Kaye v Lawrence [2010] EWHC 2678, in which the Court found that the only way a building owner can undertake the type of works set out in ss. 1, 2 and 6 of the 1996 Act is to serve the relevant notice and follow the statutory procedure. This is discussed in more detail below.

 Injunction v Damages

 This case is also a salutary reminder to Adjoining Owners that an injunction is a discretionary remedy, and the application must be bought promptly.

 Mr and Mrs Seeff delayed applying for an injunction until after the works had been completed.

Applying the criteria in Shelfer v City of London Electric Lighting Co Ltd [1895] 1 ChD 287 the Court of Appeal agreed that it would be oppressive to order Mr and Mrs Ho to dismantle the roof, and declined to grant an injunction.

 Instead, the Court would award damages under  Wrotham Park Estate v Parkside Homes [1974] 1 WLR 798 (often termed “Wrotham Park Damages” or “Negotiating Damages”).

 The basis on which these damages are to be assessed was summarised by Lord Walker at paragraphs 47 to 48 of his judgment in Pell Frischmann Engineering Limited v Bow Valley Iran Limited [2009] UKPC 45 and can be summarised as representing such a sum of money as might reasonably have been demanded by the claimant from the defendant as a quid pro quo for permitting the invasion of the claimant’s right.

 The damages were assessed by the Court of Appeal at £500.

 Conclusion

 This case provides a number of helpful clarifications:-

  1. An agreement by the Adjoining Owner to allow works to take place does not discharge the obligation upon the Building Owner to serve notice and follow the Party Wall etc. Act 1996;
  2. An Adjoining Owner must apply promptly, and before the works have been completed, to ensure the best chance of securing an injunction;
  3.  If an injunction is not granted then the Court will award Wrotham Park Damages, but such damages are unlikely to be substantial.

Many party wall surveyors will be familiar with the difficulties of dealing with party walls in relation to permitted development.

It is unfortunately common for planning authorities to refuse an application for a lawful development certificate where the works include the raising of a party wall on the ground that the whole of the party wall is not owned by the applicant, and therefore does not fall within the meaning of “curtilage” in the General Permitted Development Order 1995 (“the GDPO”).

Ownership

Historically it was the case that a party wall formed a distinct, separate title from the land on either side, with the whole of the wall owned by both parties equally (see, e.g., Wiltshire v Sidford [1827]).

However, since the enactment of s. 38 of the Law of Property Act 1925 this is no longer the case.

From 01 January 1926 ownership of all party walls (past, present and future) are severed vertically along the boundary line, with each owner owning only their part of the wall, but with the benefit of easements of support and user over the other owner’s part of the wall.

However, it does not follow that because a portion of the party wall is not owned by the applicant, it is not with the “curtilage”. This issue was considered in two planning Inspector’s decisions of note.

143 Ordnance Road, Enfield

The first is the decision of a planning Inspector in relation to 143 Ordnance Road, Enfield.  In October 2000 Mr Brade applied for a certificate of lawful development for a loft conversion, which included raising the party wall, under class B of Schedule 2 to the GPDO 1995. The London Borough of Enfield refused the application, stating the raising of the party wall meant that the development was not within the curtilage of the property, and it was not therefore permitted development.

The Inspector disagreed. The Inspector considered the authorities on the meaning of “curtilage”, and in particular McAlpine v Secretary of State for the Environment [1995] JPL B43, and found that the party wall was within the curtilage of 143 Ordnance Road. The Inspector’s full decision can be found here.

77 Platts Lane, Hampstead

In April 2009 Mr Reeves wanted to undertake a loft conversion to 77 Platts Lane that again included raising the party wall, and applied for a certificate of lawful development. The application was refused on the same grounds; that the party wall did not fall within the curtilage of the subject property. Mr Reeves appealed to the Secretary of State.

Presumably Barnet took this view because, since the decision on 143 Ordnance Road, the GPDO had been substantially amended in 2008.

However, the Inspector found that although he was not bound by the previous decision of another Inspector, there was no reason to depart from the reasoning given on 143 Ordnance Road. The Inspector’s full decision can be found here.

Conclusion

As considered in 77 Platts Lane, the decision of one planning Inspector does not bind a subsequent Inspector, who is free to depart from an earlier decision.

However, it seems that the view taken by Inspectors is likely to be consistent; that party walls do fall within the meaning of “curtilage” and, subject to any other test being met, the raising of them is within the permitted development provisions of the GPDO 1995.


It has long been thought that an adjoining owner could only request security from the building owner under s. 12(1) of the Party wall etc. Act 1996 (“the 1996 Act”) where works were being undertaken on or to the adjoining owner’s land.

However, in a recent appeal from a third surveyors’ award in Kaye v Lawrence [2010] EWHC 2678 (TCC) this was held not to be the case, and an adjoining owner could request security against any works under the 1996 Act.

The Facts

Mr Lawrence was the owner of 124 Panorama Road in Poole. Mr Kaye owned the adjoining property at 126 Panorama Road. On 29 June 2009, Mr Lawrence served notice on Mr Kaye under ss. 6(1) and (2) of the 1996 Act. The notice stated that Mr Lawrence was not proposing to underpin Mr Kaye’s property. Mr Kaye dissented, and each appointed surveyors, who in turn selected a third surveyor, Mark Wittingham.

Mr Kaye requested, under s. 12(1) of the 1996 Act, that Mr Lawrence provide a bond or project-specific insurance in respect of potential damage to 126 Panorama Road. The appointed surveyors could not reach agreement and referred the issue to Mr Whittingham. Mr Whittingham stated in his award that:-

A bond or other form of security cannot be requested under s. 12(1)…unless the Building Owner [proposes] to carry out some work to the Adjoining Owner’s land or property”.

Mr Kaye appealed this decision to Bournemouth County Court. The parties agreed that, as the appeal concerned an important point of law, it should be heard by the Technology and Construction Court at the High Court in London.

Judgment was given by Mr Justice Ramsey on 26 October 2010.

The Judgment

His Lordship’s judgment addressed three important issues:-

(a)    The High Court has no jurisdiction to hear appeals under s. 10(17) of the 1996 Act;

(b)   An adjoining owner is entitled to request security under s. 12(1) of the 1996 Act where the building owner intends to carry out any work under the 1996 Act, whether to his own land or the adjoining owner’s land;

(c)    The rights under the 1996 Act have replaced the corresponding rights at common law, both as to excavation and works to party structures.

The High Court’s Jurisdiction

At the hearing, Mr Justice Ramsey questioned, given that s. 10(17) of the 1996 Act expressly provides for appeals to be made to a County Court, whether the High Court has jurisdiction to hear such appeals.

His Lordship, having considered Zissis v Lukomski [2006] EWCA Civ 341 and Chartered Society of Physiotherapy v Simmonds Church Smiles [1995] EGLR 155, found that the High Court:-

cannot ignore the fact that the county court is the appropriate court and seize jurisdiction which has not been given to it

However, his Lordship recognised that questions of general importance to practitioners, such as the appeal before him, are appropriately dealt with in the High Court.

In order to deal with the appeal before him, his Lordship decided to proceed by exercising his right under s. 5(3) of the County Courts Act 1984 to sit as a Judge of any County Court.

The Right to Request Security

The right to request security for expenses is set out in s. 12(1):-

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

The generally held view, as set out in the Green Book, is that s. 12(1) only entitles the adjoining owner to request security if the building owner is performing works on the adjoining owner’s land, and if the building owner “is simply excavating his own land then the adjoining owner has no right to receive security…”

His Lordship found that, although the views of the Pyramus & Thisbe Club command respect, in this instance their views are not correct, and that there is no distinction between works on the building owner’s land or the adjoining owner’s land for the purposes of s. 12(1). Mr Kaye was therefore entitled to request security, and his Lordship amended the Award accordingly.

Extinction of Common Law Rights

It was argued before the Court that there is a distinction between rights that are granted exclusively by the 1996 Act, and rights that already exist at common law, but which are regulated by the 1996 Act.

His Lordship was referred to the authorities of Selby v Whitbred & Co [1917] 1 KB 736 and Louis & Louis v Sadiq (1997) 74 P. & C.R. 325 (decided under the earlier LondonBuilding Acts 1894 and 1939 respectively) and found the authorities

show that, when the provisions of the relevant Act are operated, the common law rights are “supplanted” or “substituted” by the rights under the Act in relation to matters dealt with under the Act.” [author’s emphasis]

However, his Lordship went further, and found that:-

…the common law rights are supplanted and substituted by the provisions of the Act and that this applies as much to sections 6(1) and 6(2) as it does to section 6(3) or any other provision of the 1996 Act. I do not consider that there is a proper distinction between rights that only exist under the 1996 Act and rights that exist at common law and which are regulated by the 1996 Act. The Act creates new rights which do not exist at common law permitting the building owner to carry out work on the land of the adjoining owner. However, whilst at common law the building owner would have a right to carry out work on their own land, those rights in relation to the area within 3 or 6 metres of the boundary are supplanted or substituted by the provisions of sections 6(1) and 6(2) of the 1996 Act”. [author’s emphasis].

Although the difference between the two statements is subtle, it is an important one. Instead of enhancing the rights that existed at common law before the 1996 Act, his Lordship found that the 1996 Act operated as a wholesale replacement of those rights.

Therefore, the only way a building owner can undertake the type of works set out in ss. 1, 2 and 6 of the 1996 Act is to serve the relevant notice and follow the statutory procedure. He can no longer rely on common law rights.

Conclusion

The practical effects of this decision are yet to be seen.

As a County Court decision, it is not strictly of binding authority, and indeed may yet be appealed. However, given that Mr Justice Ramsey is both a High Court Judge and an eminent construction law expert it is thought that, in the absence of exceptional circumstances, the Court’s decision should be regarded as having the same authority as a decision of the High Court.

It is also thought that it will now be easier for adjoining owners to obtain injunctions to prevent or stop works in the absence of an award. Previously, the adjoining owner would have had to demonstrate not only the absence of a relevant notice and/or an award, but also that the works would have constituted a trespass and/or nuisance at common law.

However, in light of his Lordship’s decision, it is thought that all an adjoining owner will now need to demonstrate is a failure to comply with the 1996 Act; in particular,  they may not need to prove any damage has been suffered or is likely to be suffered.

The decision has also clarified how important points of law arising from appeals under s. 10(17) may be referred to the High Court.

It should be remembered that, in addition to London, the Technology and Construction Court sits as both a High Court, as well as a County Court, at Birmingham, Bristol, Cardiff, Central London, Chester, Exeter, Leeds, Liverpool, Manchester, Mold, Newcastle upon Tyne and Nottingham Court Centres.


Two recent decisions of the High Court send a salutary message to developers who recklessly infringe the rights of others.

The Right to an Injunction

In HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch) The developer, a subsidiary of commercial property fund Highcross, undertook a development which included refurbishment of Toronto Square, a five storey building in the centre of Leeds, together with the addition of new sixth and seventh storeys.

Mr Heaney owned the former headquarters of Yorkshire Penny Bank, a five storey building across the road from Toronto Square. Highcross admitted that Mr Heaney’s building had the benefit of an easement of light over Toronto Square, and that the addition of the new sixth and seventh storeys would interfere with that right.

Mr Heaney’s solicitors made it clear to Highcross that Mr Heaney did not agree to the development. On more than one occasion they threatened to apply for an injunction to stop the works, but did not in fact do so.

Undeterred, Highcross pressed on and completed the development. In the face of continued opposition from Mr Heaney, Highcross applied to the High Court. It sought an order declaring that, given Mr Heaney’s lack of action, he would not be entitled to an injunction, and would have to settle for damages instead. The High Court disagreed.

The Court referred to the decision in Shelfer v City of London Electric Lighting Co Ltd [1895] 1 ChD 287; that, unless there were “very exceptional circumstances”, a person whose legal property rights had been infringed was entitled to an injunction to stop the infringement.

The Court went on to set out a “good working rule” as to when the Court would award damages instead of an injunction:-

  1. If the injury to the injured party’s legal rights is small;
  2. If the injury is capable of being estimated in money;
  3. If the injury can be adequately compensated by a small money payment; and
  4. If it would be oppressive to the infringing party to grant an injunction.

In Mr Heaney’s case the Court found that the “working rule” in Shelfer was not met, and issued an injunction ordering Highcross to remove the sixth and seventh floors of Toronto Square at an estimated cost of up to £2.5 million.

The Court has estimated that damages that Mr Heaney would have been entitled to at £225,000, less than 10% of the cost of the remedial works.

Exemplary Damages

In another case, Ramzan v Brookwide Limited [2010] EWHC Civ 2453 (Ch), the developer, Brookwide, wanted to convert its property in Birmingham into flats.

As part of the works Brookwide, “with reckless disregard of the interests of the true owner”, knocked through the first floor wall dividing its property from the next-door curry house, the “Jewel in the Crown”. Brookwide then misappropriated the storeroom on the other side of the wall as part of its development, without which “there would probably have been insufficient space to create a viable flat”.

The High Court, sitting at the Birmingham District Registry, found that Brookwide had committed “outright and cynical expropriation of someone else’s property and its amalgamation with the wrongdoer’s own property in order that the wrongdoer could make a profit out of the use of the combined land”.

In order to “teach Brookwide the necessary lesson that conduct of this type will not be tolerated” the Court awarded exemplary damages of £60,000, bringing the total award to £560,000.

Conclusion

Although neither of these cases directly concern party walls, they are good examples of the attitude of the Courts to developers who recklessly interfere with the property rights of others.

In particular, the Heaney case shows that the Courts are prepared to grant injunctions even where the development is complete or substantially complete. This could result in injunctions ordering the demolition of a raised party wall, or the filling-in of excavations undertaken without the protection of an award under the 1996 Act.

So the moral of the story is this; developers should spend a little money on a surevyor before starting works to resolve potential issues, instead of spending a lot of money on a lawyer later.

***  UPDATE  ***

It is unsurprising that the Heaney case was appealed to the Court of Appeal. However, in March 2011 the appeal was settled between the parties, with the terms remaining confidential.

However, the moral remains the same: anyone undertaking development should spend a little time and money addressing important issues such as rights to light or notices under the Party Wall etc. Act 1996 before the works start, otherwise they may end up spending a lot of time and money later.


As every party wall surveyor knows, the Party Wall etc. Act 1996 has its origins in legislation passed shortly after the Great Fire of London.

The first piece of legislation was the The Fire of London Disputes Act 1666, which established a the famous “Fire Courts” to settle all differences arising between landlords and tenants of burnt buildings, overseen by three or more judges of the Court of King’s Bench, Court of Common Pleas and/or  the Court of Exchequer. It is from this ad-hoc Court system that the quasi-judicial role of the party wall surveyor evolved.

The second Act, The Rebuilding of London Act 1666, was passed shortly after. It regulated the rebuilding of London after the Fire, and authorised the City of London Corporation to undertake the compulsory purchase of land adjoining the principal streets of London in order to widen the roads.

The Act also authorised the building of a Monument to commemorate the fire, as well as providing for “a day of Public Fasting and Humiliation within the said City and Liberties thereof” on the 2nd of September each year.

The rebuilding of London was taken very seriously; if anyone moved the stakes or stones marking the new layout of the City, they were to be either jailed and fined £10 (around £750 today) or, if they could not afford the fine, to be “openly whipped near unto the place where the Offence shall be committed, till his body be bloody“.

It is doubtful that modern party wall surveyors could impose this punishment on difficult appointing owners.

 




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Nothing on this website constitutes legal advice. Always consult a suitably qualified lawyer on a specific legal problem or matter. No responsibility is assumed for information contained on this website and all liability is disclaimed.

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The contents, including all opinions and views expressed, on this website are entirely personal and do not necessarily represent the views of Morrisons Solicitors LLP. Morrisons Solicitors LLP has not approved and is not responsible for the material contained on this website

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