It’s always difficult to advise people who call us up when a neighbour has started work which comes within the scope of the Party Wall Act but have not served the required notice.
It is one of the shortcomings of the Act that there aren’t any penalties for non-compliance. The only remedy available to a Building 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 to be a big step.
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:
Undertaking work to a party wall without serving notice constitutes a trespass so most courts would consider that to be a serious issue. If the Adjoining Owner is undertaking Section 6 (excavation) works the argument would be that support has been removed and there is a significant risk of movement.
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. If the proposed work involved inserting a couple of beams into a party wall (typical of a loft conversion) it would be more difficult to argue for an injunction as the notifiable work would likely be completed before the application went before a judge.
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.
It should be noted that it is not always necessary to prove that an interim injunction is necessary for it to be granted. In most cases the court will require an applicant to give a cross-undertaking in damages prior to granting the injunction. In effect, the undertaking means that the applicant will be required to pay damages to the defendant arising from the grant of the interim injunction if it transpires that the injunction was not justified.
You should always seek legal advice before applying for an interim injunction. You can read a summary of the Udal v. Dutton case.