“To cut away from a party wall, a party fence wall, external wall any footing or any projecting chimney breast, jamb or flue, or other projection on or over the land of the building owner in order to erect, raise or underpin any such wall or for any other purpose…”
“(5) Any right falling within subsection (2)(f), (g) or (h) is exercisable subject to making good all damage occasioned by the work to the adjoining premises or to their internal furnishings and decorations.”
“3 Party structure notices. (1) Before exercising any right conferred on him by section 2 a building owner shall serve on any adjoining owner a notice (in this Act referred to as a “party structure notice”) stating— (a) the name and address of the building owner; (b) the nature and particulars of the proposed work including, in cases where the building owner proposes to construct special foundations, plans, sections and details of construction of the special foundations together with reasonable particulars of the loads to be carried thereby; and (c) the date on which the proposed work will begin. (2) A party structure notice shall— (a) be served at least two months before the date on which the proposed work will begin; (b) cease to have effect if the work to which it relates— (i) has not begun within the period of twelve months beginning with the day on which the notice is served; and (ii) is not prosecuted with due diligence. (3) Nothing in this section shall— (a) prevent a building owner from exercising with the consent in writing of the adjoining owners and of the adjoining occupiers any right conferred on him by section 2; or (b) require a building owner to serve any party structure notice before complying with any notice served under any statutory provisions relating to dangerous or neglected structures.” (b) the nature and particulars of the proposed work including, in cases where the building owner proposes to construct special foundations, plans, sections and details of construction of the special foundations together with reasonable particulars of the loads to be carried thereby; and (a) be served at least two months before the date on which the proposed work will begin; (i) has not begun within the period of twelve months beginning with the day on which the notice is served; and (ii) is not prosecuted with due diligence. (a) prevent a building owner from exercising with the consent in writing of the adjoining owners and of the adjoining occupiers any right conferred on him by section 2; or (b) require a building owner to serve any party structure notice before complying with any notice served under any statutory provisions relating to dangerous or neglected structures.”
“Resolution of disputes. (1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either— (a) both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or (b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as “the three surveyors”).”
“(10) The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter— (a) which is connected with any work to which this Act relates, and (b) which is in dispute between the building owner and the adjoining owner.”
“‘adjoining owner’ and ‘adjoining occupier’ respectively mean any owner and any occupier of land, buildings, storeys or rooms adjoining those of the building owner and for the purposes only of section 6 within the distances specified in that section; ‘building owner’ means an owner of land who is desirous of exercising rights under this Act.”
“I would have no hesitation in rejecting this submission even without reference to authority, because in my judgment there is nothing in the Act which can be said to have this effect. The adjoining owner's common law rights are supplanted when the statute is invoked, which can have the effect of safeguarding the building owner from common law liabilities when he complies with the statutory procedures, just as he may incur liabilities under the statute which did not exist at common law (the Standard Bank decision). But if he commits an actionable nuisance without giving notice and without obtaining consent, he cannot rely upon a statutory defence under procedures with which ex hypothesi he has failed to comply. If he does then give notice he will in due course acquire statutory authority for whatever works are approved or agreed, but in my judgment this does not relieve him from liability for the continuing nuisance which he has unlawfully committed, until such time as and to the extent that such authority is obtained.”
“21. The power to order payment of such costs under s.10 of the 1996 Act is, however, restricted to costs connected with the statutory dispute resolution mechanism. As a matter of interpretation, the "dispute" mentioned in s.10(1), (10)(b), (12)(c) and (13)(c) is a dispute arising under the provisions of the 1996 Act, whether an actual dispute within s.1(8) or a deemed dispute under s.4(5) or s.6(7), or a dispute under some other provision, such as s.7(2) (compensation for loss and damage resulting from execution of work executed pursuant to the 1996 Act), s.11(2) (responsibility for the expenses of work), s.11(8) (expenses of making good damage under the 1996 Act) or s.13(2) (objection to building owner's account of expenses). I agree with Judge Viljoen that, by contrast, proceedings in Court to enforce common law or equitable remedies, such as damages or an injunction for trespass or nuisance or the threat of them, fall wholly outside the 1996 Act. That is equally true of preparations for such proceedings. 22. That conclusion is consistent with practice and policy. The purpose of the 1996 Act is to provide a mechanism for dispute resolution which avoids recourse to the Courts. A power of the appointed surveyors under the 1996 Act to make provision for costs incurred for the purpose of actual or contemplated litigation in Court would be inconsistent with that statutory objective. Such litigation, resulting from non-compliance with the dispute resolution mechanism, falls entirely outside the statutory dispute resolution framework.”
“…it is not necessary to consider whether there was a failure to follow the procedures under the Party Wall Act. The judge observed in his first judgment on costs that the whole dispute that followed would never have arisen if Mr and Mrs Ho had discharged their duty of giving notice under the Party Wall Act. The Act makes it mandatory to give notice in respect of work defined in the Act. Mr and Mrs Seeff contended that the Party Wall Act applied. Mr and Mrs Ho disputed this, on the basis of Mr Petersen's evidence, as to whether a party wall notice was necessary. Although I consider that the judge was probably right, it is not necessary to determine that issue.”
“… any matter which before the commencement of any work to which a notice under this part of this Act relates or from time to time during the continuance of such work may be in dispute between the building owner and the adjoining owner”
“The law of the metropolis now defines the rights of a building owner. He is a building owner within the definition of the 82nd section, because he wants to do some work in respect of a party structure, and, being such a building owner, he has these rights, which, in my opinion, are exclusive, and he has no other rights.”
“I think it the duty of the Court to read these Acts in a reasonable manner, with a view of carrying out the manifest intention of the Legislature that these party structures should not be interfered with by building owners without due notice to the person or persons other than the building owner interested in the party structure, and without its being referred to the surveyors to decide how the work should be performed.”
“As they [i.e. the surveyors] have to determine the right to do and the time and manner of doing the work, it would really be reducing the Act to an absurdity to suppose that the building owner had a right to proceed with the work until they have so determined. It must mean that they are to determine the time, that is, the work is not to be done until the time is determined, and that, if the work is commenced before that time, the building owner is committing a breach of the Act of Parliament. Then there is a power of appealing, and the appeal may no doubt be delayed for a very considerable time; but if his right is, as I read it to be, a right merely to do that which the surveyor or the umpire may direct shall be done, the building owner has no right to do anything at all until he obtain such directions. The Defendant therefore had no right to proceed with his work until the direction of the surveyor had been obtained, and the Plaintiffs are entitled to come here to restrain his so proceeding.”
“The right to make an award springs from the notice given by the building owner, and the surveyors had jurisdiction over the matters contained in that notice and in the notice given by the adjoining owner.”
“It seems to me that that section contemplates that the person who serves the notice under s 90 [i.e. a party structure notice] shall be and remain liable for all the results which follow from such notice.”
“In the present case, as already stated, the defendants gave their building notice in 1914. Thereupon the rights of the plaintiffs sprang into being under the Act of 1894.” (Emphasis added)
“Hence I think that the Act of 1894 is not an addition to but in substitution for the common law with respect to matters which fall within the Act. It is a governing and exhaustive code, and the common law is by implication repealed. … I therefore hold that the plaintiffs cannot succeed upon their claim at common law inasmuch as the defendants’ party wall notice had been duly given under the provisions of the Act of 1894. In so holding I in no way negative the proposition that a plaintiff may bring his action for damages if he can establish that the defendant has exerted his statutory privileges so as to inflict injury on the plaintiff by negligence, improper obstructiveness, avoidable nuisance, or unreasonable delay…” (Emphasis added)
“In my judgment the provisions of section 55 relate only to the resolution of differences between adjoining owners as to whether one of them shall be permitted under the Act to carry out works, the subject of a section 47 Notice [i.e. the party structure notice], and if so, the terms and conditions under which he is permitted to carry out such work.”
“These authorities establish, in my judgment, that the appellant would not have been liable in nuisance if he had given notice, or obtained consent, in accordance with the Act and then done no more than was agreed or was approved by the surveyors. But then, no damage would have been caused to the respondents’ house, save in the party wall itself, and in that respect no liability would have arisen. The issue raised in the present case is whether the appellant’s liability at common law is either excluded or reduced by the provisions of the Act which he invoked, eventually, after the nuisance had arisen. I would have no hesitation in rejecting this submission even without reference to authority, because in my judgment there is nothing in the Act which can be said to have this effect. The adjoining owner’s common law rights are supplanted when the statute is invoked, which can have the effect of safeguarding the building owner from common law liabilities when he complies with the statutory procedures, just as he may incur liabilities under the statute which did not exist at common law (the Standard Bank decision). But if he commits an actionable nuisance without giving notice and without obtaining consent, he cannot rely upon a statutory defence under procedures with which ex hypothesi he has failed to comply. If he does then give notice he will in due course acquire statutory authority for whatever works are approved or agreed, but in my judgment this does not relieve him from liability for the continuing nuisance which he has unlawfully committed, until such time as and to the extent that such authority is obtained.”
“The intention remains, as always, that the Bill will follow as closely as possible the London Building Acts which are its role model and the precedents and practice which have been established for inner London over a long period of time.”
“The 1996 Act does not reproduce in identical terms the provisions of the London Building Acts. It contains, for example, new provisions as to costs. Generally, however, it provides procedures, similar to those in the London Building Acts, for authorising property owners to carry out work to an existing party structure or otherwise on or near to the boundary with the adjoining property, but which at the same time protect the legitimate interests of the adjoining owner. They are intended to constitute a means of dispute resolution which avoids recourse to the courts.”
“It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.”
“[56] The judge has rejected the defendants’ evidence that Mr Rashid agreed to what the defendants were doing. Therefore the defendants were not entitled to carry out such substantial works to the party fence wall without (a) serving the appropriate notices under the Party Wall etc Act 1996 and (b) following the statutory procedures to secure permission. The defendants did not do this. [57] In those circumstances the defendants’ execution of works to the party fence wall constituted a trespass …”
“I now turn to consider the rival contentions of the parties on the meaning of section 12 of the 1996 Act. Much of the debate centres around the meaning of the phrase “any work in the exercise of the rights conferred by this Act” in section 12 . The right of the adjoining owner to require the building owner to give security depends on notice being given to the building owner before he begins such work.” (Emphasis added)
“These 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.” (Emphasis added)
“If for any reason the statutory procedure is not followed, then the parties’ respective common law rights and obligations continue to apply.”
“My understanding of the law is that until such time as the Party Wall etc Act 1996 is invoked and either the building owner has obtained consent or acquires a statutory authority under the s.10 procedure, the building owner cannot rely upon a statutory defence under procedures with which “ex hypothesi” he has failed to comply. If the building owner subsequently obtains authority for building works which were started without authority, that authority abates the common law rights from the time of the subsequent consent or when the Party Wall etc Act procedure was successfully invoked. If the works were never or would never subsequently have been authorised, the common law rights continue.”
“If an owner on whom a party structure notice or a counter notice has been served does not serve a notice indicating his consent to it within the period of fourteen days beginning with the day on which the party structure notice or counter notice was served, he shall be deemed to have dissented from the notice and a dispute shall be deemed to have arisen between the parties.”
“Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates…”
“As a matter of interpretation, the “dispute” mentioned in section 10(1), (10)(b), (12)(c) and (13)(c) is a dispute arising under the provisions of the 1996 Act, whether an actual dispute within section 1(8) or a deemed dispute under section 6(5) or section 6(7), or a dispute under some other provision, such as section 7(2) (compensation for loss and damage resulting from execution of work executed pursuant to the 1996 Act), section 11(2) (responsibility for the expenses of work), section 11(8) (expenses of making good damage under the 1996 Act) or section 13(2) (objection to building owner's account of expenses). I agree with Judge Viljoen that, by contrast, proceedings in court to enforce common law or equitable remedies, such as damages or an injunction for trespass or nuisance or the threat of them, fall wholly outside the 1996 Act. That is equally true of preparations for such proceedings.”