Practice Changing Party Wall Case Law – Introduction

Over the coming months we’ll be summarising some of the party wall cases that have been determined by the courts.

When a judge is asked to interpret or apply an existing law to a specific situation, we refer to their decisions as “case law”. Each decision sets a legal precedent which other courts are required to follow. Over time, a body of case law builds up which can be applied to real life situations by professionals such surveyors.

Only decisions made in either the High Court or the Court of Appeal are binding on other courts. However, decisions in the County Court can be persuasive and particularly so if that court specialises in the relevant area of law such as the Technology and Construction Court (TCC).

Occasionally, a court judgement significantly changes the way that surveyors administer the Act and it’s those decisions that will be the subject of this series of posts.

The Party wall etc. Act 1996 is in effect an expansion of parts of the London Building Acts (1894, 1930 and 1939) across the whole of England and Wales and, for that reason, decisions under those historic Acts can be used to interpret the current Act.

The series kicks off with the 2008 case of Onigbanjo vs Pearson which confirmed that an adjoining owner who consents to a party wall notice retains all of the rights under the Act including their right to appoint a surveyor should a specific dispute arise. As more posts are uploaded, we’ll create and index below with a brief summary of the significance of the decision.

Index

Onigbanjo v Pearson (2008) – confirmation that an adjoining owner who consents to a notice still has the right to appoint a surveyor if a specific dispute arises.

Evans v Paterson (2021) – clarification that a ‘further’ award is only justified if a specific dispute arises (as confirmed by both parties).

Kaye v Lawrence (2010) – confirmation that where work falls within the scope of the Act, an owner’s common law rights, such as the right to excavate on your own land, is supplanted by the Act (and that work may therefore be the subject of a security request).

Power & Kyson v Shah (2023) – confirmation that the Act’s dispute resolution procedures can only be engaged when a valid notice has been served.

Lea Valley Development Limited v Derbyshire (2017) – confirmation of the proper method for assessing compensation for loss or damage cause by works undertaken in pursuance of section 6 of the Act.

If you’re interested in finding out more about party wall related case law we’ve provided details of a couple of books that we’ve found most useful over the years.

• The New Party Wall Casebook by Nick Isaac and Matthew Hearsum (2019).
• The Party Wall Casebook by Paul Chynoweth (2003)

Written by Justin Burns BSc (Hons) MRICS – Director of Peter Barry Surveyors

If you require advice on a party wall matter, you are welcome to contact us on 020 7183 2578 or via email.