Practice Changing Party Wall Case Law – Power & Kyson v Shah [2023]
Saturday, 23rd August 2025
Party Walls
This is part of our series on court judgements that significantly changed the way that surveyors administer the Act.
The Background
The owner of 34 Bull Lane, Dagenham RM10 7HA, Mr Shah (the ‘building owner’), commenced work at his property and those works are alleged to have caused damage to the adjoining property, 36 Bull Lane. The owners of the adjoining property, Mr and Mrs Panayiotou (the ‘adjoining owner’) ‘appointed’ a party wall surveyor and requested that the building owner do the same. The building owner refused, arguing that the works did not fall within the scope of the Party Wall etc. Act 1996 (the ‘1996 Act’), so the adjoining owner made an appointment on their behalf in accordance with section 10(4) of the Act.
The two surveyors made an award, primarily dealing with compensation for the damage occasioned by the works (£4,223.49 excluding VAT), but also covering their costs (fees) in the matter (£4,630 in total). When the building owner did not pay the fees, as set out in the award, the two surveyors (Power & Kyson) attempted to enforce payment of the debt in the Magistrate’s Court in accordance with Section 17 of the Act.
The building owner brought a ‘Part 8 claim’ (a request that the court decide a specific question) on the basis that, notice having not been served, the Act did not apply and the party wall award was null and void. The recovery proceedings were put on hold while the Part 8 claim was heard in the Central London County Court by Judge HHJ Parfitt. The Part 8 claim was upheld on 2nd March 2020.
The surveyors appealed to the High Court. That appeal was dismissed by Mr Justice Eyre on 11th February 2022.
The appellants were given leave to bring a second appeal by Lady Justice Andrews.
The full Appeal Court judgment is available on this link.
Question to be Determined by the Court
Whether the Act’s dispute resolution mechanism can be engaged in the absence of a notice from the building owner.
The Appellants argued that the section of the London Building Acts (Amendment) Act 1939 (the precursor to the 1996 Act) relating to dispute resolution (Section 55) made specific reference to the service of a notice whereas the corresponding section of the 1996 Act (Section 10) included no such reference.
The Respondent argued that common law rights were only supplanted by the rights provided in the 1996 Act if notice was served.
The Decision
The appeal was dismissed.
The Justices accepted the argument that the adjoining owner’s common law rights are supplanted “when the statute is invoked” and that the statute is invoked by the service of a party structure notice.
Justice Lewison’s view was that the difference in wording between the 2 Acts did not justify the radical change in procedure suggested.
How the Decision has Changed Procedures
Prior to this case, we would occasionally be asked by an adjoining owner to get involved in a dispute where the building owner had failed to serve notice. Generally, they were cases where the building owner had either made a genuine mistake or, let’s say, thought they could get away with it.
In the absence of any compelling case law, and a building owner who wanted to put things right, you could prepare a notice with a description of the works that was a little more nebulous than you would usually use, and proceed to an award in the normal way (not drawing attention to the fact that some works had been undertaken pre-notice except, possibly, a note to that effect in the schedule of condition).
We would only include non-notified works in an award in this new ‘No notice, no Act’ world if both owners provided written confirmation that the works should be treated as if they had all been properly notified.
It was only ever a brave surveyor that would accept an appointment on behalf of the adjoining owner where notice had not been served and the building owner remained incalcitrant. I did receive some such requests, including one from a solicitor who assured me that the difference between Section 10/1996 and Section 55/1939 provided all the cover I needed, but I was not convinced.
Final notes
It has been argued, principally by Matthew Hearsum in Ben Mackie’s excellent 2024 collection of party wall related articles (3 of which relate to this case), that the option to rely on common law rights cuts both ways e.g. that an owner planning to excavate on their own land can rely on their common law right to do as they wish with their land (provided they cause no damage or unlawful interference with adjoining land) rather than their rights under Section 6 of the Act.
Former judge Bailey strongly refuted this suggestion in an FPWS seminar that I attended following publication of Matthew’s article on the basis that the requirement to serve notice is very clear in Section 6(5) of the Act. The judgement in Kaye v Lawrence (2010) confirmed 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. Matthew did, sensibly, caveat his theory with a recommendation that building owners should seek their own legal advice and I think we can guess how those conversations are likely to go.
Written by Justin Burns BSs (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.
