In this guide, Icon Surveyors will be considering what a "Party Wall Injunction" is. And, when should such an injunction be sought? and How we can Obtain an Injunction from the Court?
What is a "Party Wall Injunction"?
In the simplest of terms, a ‘Party Wall Injunction’, is an (interim) Court Order that instructs the recipient wrongdoer to carry out (Mandatory Injunction), or, refrain from carrying out (Prohibitory Injunction), a specific action pertaining to the Party Wall etc. Act 1996. (PWA)
As a ‘Party Wall injunction’ is a remedy for wrongdoing under the Act, a court must be satisfied that the issues before it are;
- of a serious nature, for example, trespass, risk of damage and/or unlawful interference with another owner/tenant’s rights;
- that damages would not adequately resolve the issues before the court, in other words, damages might not prevent a party from trespassing or unlawfully interfering with another person’s rights; and
- there is a balance of convenience to the parties, that is to say, that the factors of the case and the parties' rights are evenly balanced.
Thus, a court would be highly unlikely to grant an injunction to an adjoining neighbour whose actions in prohibiting access to a building owner who has served a Party Wall Notice and obtained a Party Wall Award, have caused unnecessary delay and expense to the building owner.
If, on the other hand, a building owner failed to serve a Party Wall Notice for notifiable works being carried out under the Act, a court would be more likely than not to grant an injunctive order.
When should Injunctive Relief be Sought?
Generally speaking, there are two situations in which an application to a court for the remedy of a ‘Party Wall Injunction’ is usually sought.
The first is when there has been a clear breach of the Act.
An example might be notifiable works that are being carried out in accordance with sections 1, 2 and 6 of the Act. A building owner, who proposes to carry out works under the above stated sections of the Act, has a statutory obligation to serve a Party Wall Notice on all or any adjoining owner(s) that will be affected by the proposed works. Failure to serve such a notice is a clear breach of the Act and any adjoining owner who believes they and/or their property may be at risk may apply to the court for injunctive relief.
In this example, an adjoining owner would more than likely apply for a prohibitory injunction.
However, in certain circumstances a building owner also has the right to seek a mandatory injunction against an adjoining owner whose actions after having been served with a Party Wall Notice and/or Party Wall Award, are obstructing any works from commencing. Thus, unlawfully interfering with the building owner’s right to commence with the works together with a substantial risk of delay and further unnecessary costs.
The second way to seek an interim remedy and/or injunctive relief is by way of section 10(17) of the Act.
It is important to note that under this section of the Act, any party has the right to appeal a Party Wall Award. An appeal is not an application for injunctive relief, it is a party’s right to ask the court to make a declaration as to whether or not the Party Wall Award is valid. Within the appeal notice, a party may request a further order for injunctive relief.
if the court should find in favour of the appellant, the appellant would ask the court to make a declaration that the whole or part of the Party Wall Award is void, plus any further injunctive relief, such as an order for access to the land, or an order to stop all building works.
Please note that seeking injunctive relief for an outright breach of the Act, is different to applying to a court under section 10(17) of the Act, to appeal a Party Wall Award.
How to obtain a "Party Wall Injunction"?
In the simplest of terms, a Party Wall Injunction can only be obtained from a court. There are two ways in which to apply to the court for an injunction relating to the Party Wall Act.
Two Ways to Apply for an Injunction from Court
1) Injunctive Relief under the Civil Procedure Rules, Part 25
The first is when a party is applying for injunctive relief under the Civil Procedure Rules, Part 25. This type of application would usually occur when there has been a breach of the Party Wall Act. The applicant must make their application on an N1 Claim form or an N244 Application Notice setting out what relief is being applied for (draft order), whether submitting a claim or an application these forms must be accompanied by a witness statement or affidavit and supporting evidence setting out the facts and reasons for the claim and/or requested order.
The claim and/or application can be made at any time. If the applicant has filed a claim form in the usual manner the applicant is generally seeking to sue the opposing party for damage that has already been incurred.
an adjoining owner goes on holiday for 6 weeks, in breach of the Party Wall Act, a building owner starts building an extension without serving a Party Wall Notice on the adjoining owner. When the adjoining owner returns they discover damage has been caused to their property. In this situation, an adjoining owner may make a claim for damages to the court and either prior to and/or at the same time as filing the claim, file an application for an interim injunction preventing the building owner from continuing with the works until such time as section 10 of the Party Wall etc. Act 1996 has been complied with and a Party Wall Notice and/or Award has been served. Once a claim and/or application is filed in the Court, the other side must be served with it. For a claim form, the claimant has four months to serve the claim form and accompanying documents. However, the time period for an application under Part 25 CPR rules, must be served at minimum 3 days prior to a set hearing date.
If an injunction is urgent, a claimant/applicant may apply to the court without notice to the other side. This means that the hearing will be heard usually straight away without the other side being notified until after the hearing has taken place. However, if a claimant/applicant does make such an application the court will usually order the applicant to undertake to deposit security for the other side’s cost(s) and/or any damages or losses that may be incurred by the opposing side as a result of the court making an interim injunction.
2) Appeal to the Country Court Under Section 10(17)
The second way is to appeal to the county court under section 10(17) of the Act by completing an Appellants notice (form N161). This notice must be filed into the court within 14 days of the Party Wall Award being served. So, if you receive it on a Saturday morning, the appellant's notice must be filed by the end of the court day (16:00 hrs) on the 13th day (i.e. the second Friday after receipt), this is because the day of service is when the clock starts ticking. Again, the appellant's notice must be accompanied by a witness statement and supporting evidence together with any applications for any remedies the appellant is asking the court to make.
a declaration that the whole or a part of the, Party Wall Award, is not valid because the surveyor(s) acted out with their powers when drawing it up. The appellant might also ask the court to make an order for an injunction, or damages and costs if the building owner has carried out any works pursuant to an Award that is declared by the court to be ultra vires (not enforceable as a result of the surveyor acting beyond their powers.)
An appeal notice must be served on the other party(s). As the appeal is a statutory appeal to the county court, permission to appeal is not required. However, the appellant must file at minimum 3 copies of the appeal notice into the court, plus a further copy for each of the respondents named in the appeal.
3 copies into the court plus 1 copy for each of the surveyors and one copy for any other building or adjoining owner. As the appeal is to a county court, the county court will serve the opposing side (respondent) with the appellant’s notice. When filing the appeal notice the appropriate fee must be paid before the court will issue it. (i.e. seal it with the court seal)
Icon Surveyors are happy to provide free party wall advice to any building or adjoining owners who may be affected by the subject matter raised in this blog.