How to Stop Party Wall Works - Part 1

How to Stop Party Wall Works Part 1: Appeals under section 10(17) Party Wall etc. Act 1996

Although there are a few ways to stop Party Wall works,

in Part 1 of this blog, Icon Surveyors will be looking at whether or not an adjoining neighbour has the right to prevent Party Wall Works from commencing or continuing under the Party Wall etc. Act 1996. (The Act)

Section 2 of the Party Wall Act provides that a building owner has the right to carry out certain works that may interfere with an adjoining owner’s property. Therefore, provided the works that are being carried outfall within the Act, an adjoining owner has no right to prevent or stop the works unless a building owner or an appointed surveyor has failed to comply with the processes as provided by the Act.

In the event of a surveyor being appointed to draw up a Party Wall Award in compliance with section 10 of the Act, should any of the parties be dissatisfied with any of the terms or conditions of the Award, section 10(17) of the Act provides that an appeal may be made to the county court within 14 days of the Award being served. If after the 14 day period an appeal has not been sought, the surveyor's Award is binding on all parties. The time for the appeal to be filed starts ticking on the day the Award is received by the parties. If it was sent by first class post, receipt of the Award would be deemed to be on the second day after it was posted. This was confirmed in the case of Freetown v Assethold Ltd [2010]EWCA Civ 1657.

It should be noted that there are certain rules and procedures that need to be followed when making such an appeal. Any adjoining owner considering this route must ensure that there are sufficient grounds to make an appeal, for example, the Award is invalid as a result of the surveyor failing to comply with the procedures as provided under the Act or, making decisions that they have not been given the power to make. In addition, as stated above the rules relating to the time to file an appeal under section 10(17) of the Act are strict, meaning that an appeal will be refused if it is filed after the time limit.

Does a building owner have the right to commence or continue with any works that a surveyor has permitted under the Award whilst an appeal is on foot? Under section 10(17) “the county court may rescind the award or modify it in such a manner as the court thinks fit, and make such order as to costs as the court thinks fit.” Under the court rules of England and Wales, it would appear that an appeal under the provisions of the Party Wall etc. Act 1996, does not automatically operate as a stay of enforcement of a party wall award under appeal.

To stop the commencement or continuance of works permitted by an Award, the appellant must make an application in the appeal notice for a stay of the Award. If the situation is urgent, the application within the appeal notice can be heard by a judge at an interim hearing.

In answer to the question, although an adjoining owner has the ability to stop Party Wall Works under an appeal to the county court, there are many factors that need to be taken into account before using this method to try to prevent or stop Party Wall Works.

There is an alternative route to filing an appeal under section 10(17) the authority for which can be found in the case of Zissis v Lukomski [2006] WLR 2779. In this case, it was held that where an owner can show the award to be appealed is ultra vires, in other words, the surveyor made a decision beyond their power, an application to the court for a declaration of invalidity may be made. Under such an application, if the court were to find in the applicant's favour, the Award would be invalid.

Icon Surveyors would suggest that any adjoining owner seeking to prevent the works from either commencing or continuing under an appeal against a Party Wall Award, should first try to determine whether the surveyor(s) have in fact failed to comply with the Act or made decisions about matters that are not within their powers to make, thus rendering the Party Wall Award as invalid. If this is not the case, seeking to either appeal it or file an application for a declaration of invalidity can be a very expensive exercise. For this reason, we would be happy to provide free consultation on party wall matters to any owners who may be considering whether such an appeal would be worth pursuing.

Icon Surveyors

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