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The Party Wall Act & Injunctions

Thursday, 22nd June 2017 | by: Justin Burns

As a company that undertakes a high volume of party wall work we regularly take calls from owners whose neighbours have commenced work falling under the Act without serving notice. They’ve normally called us having been told by the Local Authority that they cannot help so are disappointed to be told that we have no powers of enforcement either. We generally finish the call by recommending that they speak to a solicitor about the possibility of an injunction but I suspect very few follow that advice because of the potential costs.

It is one of the shortcomings of the Act that there no penalties for non-compliance. The only remedy available to an adjoining owner is to apply for an interim injunction to stop the work while the merits of their claim are considered. To those unfamiliar with the courts that can seem like a big step.

I’m told that the legal costs involved in obtaining an interim injunction are in the region of £5,000 and such an outlay is beyond the means on many owners. Even if an owner can raise the necessary funds the maths are not on their side as even if they are successful the court will likely order the building owner to reimburse approx. 70% of their outlay.

Other difficulties for adjoining owners include establishing what works are actually being undertaken (as they are often hidden from view) and weighing up whether an injunction would be justified.

A case from 2007, Udal v. Dutton, provided some direction on the criteria that must be met to justify an interim injunction. In that case a building owner had commenced the demolition of a party fence wall dividing the rear gardens of 2 houses in Wandsworth SW11 before an award had been agreed by the party wall surveyors and served on the owners.

The criteria set out by the court were:

  1. That there must be a serious issue to be tried
  2. That the balance of convenience must favour the grant of an injunction
  3. That it must be shown that damages would not be an adequate remedy

In Udal v. Dutton the court decided that the balance of convenience favoured an injunction so that what was left of the wall could be preserved and what had been removed replaced with a temporary barrier. The court’s view in Udal v. Dutton was that homeowners are generally more concerned with preserving their homes than recovering damages and therefore considered damages to be an inadequate remedy.

Another difficulty is that a typical building project will be a mixture of work at is and is not covered by the Act e.g. a simple loft conversion might take 6-8 weeks to complete but the part that is covered by the Act, cutting the beams in to the party wall, is generally completed within the first couple of days. Similarly, for a rear extension, it might be that only excavating the foundations is notifiable but it’s possible to complete that part of the work in a day with a mini digger.

There’s no provision in the Act for serving notices retrospectively so once the work is done the window for serving notice has passed. The building owner will still be responsible for any damage caused by the works but disputes relating to the cause or cost of putting that damage right will not be dealt with by appointed party wall surveyors.

Should the Act ever go back before Parliament, a better method of dealing with breaches is certainly the change that most surveyors would wish to see.