Although there are a few ways to stop Party Wall works, in Part 2 of this blog, Icon Surveyors will be looking at whether or not any owner has the right to prevent Party Wall works from commencing or continuing by way of injunctive relief.
In Part 1 of this blog, Icon Surveyors looked at how adjoining neighbours can try to stop works under the appeals process as provided by section 10(17) of the Act. In Part 2 we will concentrate on an owner's common law rights to seek an injunction to prevent the works being carried out, or indeed stop works that have commenced in breach of the Act.
Injunctive relief is a remedy that is used by the courts to order an entity or persons to refrain from carrying out a specified action, or to enforce a stated action to be done. Anyone who fails to comply with a court injunction may find themselves in contempt of court. The penalties for contempt of court include hefty fines and/or imprisonment.
Additional ReadParty Wall Injunction
An injunction to stop works commencing or continuing may be sought from the county court if a building owner has failed to comply with the Act. For example, failing to serve a notice on an adjoining owner of notifiable works under the Act, or failing to obtain an Award. If this is the case the courts will be more willing to provide injunctive relief until such time as the building owner has complied with their obligations under the Act. This being the case such relief granted by a court to an adjoining owner would generally be for the short term only.
An adjoining owner may seek an injunction not only on the grounds that the building owner has failed to comply with their obligations under the Act, but that the works or proposed works to be carried out by a building owner pose a real risk of damage to their property.
A very important point to take into consideration is that the works being carried out by a building owner do actually fall within notifiable works under the Act. This is sometimes very difficult to determine.
Additional ReadCommon Types of Work Covered by the Party Wall etc. Act 1996
If the court were to find that the works were not notifiable under the Act, or that a building owner had complied with their obligations, an application for an injunction to stop the works would not only be futile but may cost an adjoining owner several thousand pounds in legal costs and/or damages awarded by the court to a building owner. For this reason, an adjoining owner may be asked by the court to take a cross-undertaking for damages as the court thinks fit for a building owner if the court finds that an injunction is not a justifiable solution. This is to cover any costs that may have been incurred by a building owner that has been prevented from starting or continuing works. It is very rare that such an undertaking is used but the risk is one that should be taken into consideration.
Icon Surveyors would suggest that any adjoining owner, who is contemplating injunctive relief, should first seek the advice of a surveyor in order to determine whether the works or proposed works are notifiable works under the Act. If the surveyor determines the works are notifiable under the Act, an attempt by the surveyor to resolve the situation without having the need to seek an injunction from the court would be a far less timely and cheaper option. If a building owner and/or his agents refuse to engage with the surveyor or adjoining owner, solicitors may be appointed to write a letter notifying the building owner of an adjoining owner’s intention to apply for an injunction to stop the works. If this fails, the adjoining owner should make an application for an injunction without further delay. In these circumstances, a court would usually grant an injunction and award costs against a building owner.
As making an application for an injunction to stop works can be quite a costly and daunting endeavour, Icon Surveyors would be happy to provide a free Party Wall Consultation to any owners who may be considering whether to pursue injunctive relief.