In 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). We will also explore the matter of 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 beach of the Act.
How to Stop Party Wall Works: Appeals under section 10(17) Party Wall etc. Act 1996
Although there are a few ways to stop Party Wall works, 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.
How to Stop Party Wall Works: Injunctive Relief
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 Read
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 Read
Common 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.
Free Consultation
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.
