Are Party Wall Surveyors Fit for Purpose?

Comments by Sir George Jessel MR in 1878 are still causing much confusion for party wall surveyors. The website of every party wall surveyor gives fundamentally wrong advice because of his comments. Sir George was ruling on the famous case of Standard Bank of British South America v Stokes. He stated that if the 1855 Metropolitan Building Act gave a building owner certain rights, that implied no other rights would be available to the building owner.

Currently almost all advice and opinion regarding the 1996 Party Wall Act seems to believe that the mere existence of the Party Wall Act removes common law rights to carry out work mentioned in the Act. And some still cite Sir George Jessell’s words as justification (omitting to note that Notice had been served in that case). But this view has to change in the light of the three recent decisions in the cases of Shah v Kyson & Power.

Matthew Hearsum writing on the implications of Shah v Kyson & Power cases, in the November 2023 Estates Gazette, opined “the decision in that case goes further than many have yet realised; and that developers continue to enjoy all their rights at common law, including the right to undertake certain types of work listed in the 1996 Act without following its procedures”. MH continued “this is at odds with the previous consensus among both surveying and legal professionals that the statutory rights in the 1996 Act operated as a wholesale replacement of the building owner’s rights at common law”.

Matthew is right. Even the party wall surveyors who wrote the 1996 Act believed the mere existence of the new Act would extinguish common law rights relating to work mentioned in the Act. The famous ‘green book’, written by three of the surveyors who wrote the Act (joined by the Earl of Lytton, who steered the Act through the House of Lords) shows this.

John Anstey, one of the four authors of the Act, wrote ‘PARTY WALLS and what to do with them’ states in the 1996 edition (p28)

the first thing to note is that one tends to speak of section 2 as conferring rights – but some of those rights would be there without the Act, and those items thus become restrictions on the owner, since he cannot do those things without notice, any more than he can do the things for which he specifically needs the power of the Act.

This is one of several passages that show those who wrote the Act thought Sir George Jessell’s comments were still valid.

Also taking their cue from Sir George Jessell, the Department of Levelling Up stated, in its 2016 ‘Explanatory Booklet’, that “if you intend to carry out any of the works mentioned in section 2 of the Act, you must inform all Adjoining Owners - You must not even cut into your own side of the wall without telling the Adjoining Owners of your intentions”. The booklet explains that you must inform the neighbours in the form of a notice, to which the neighbours can dissent.

RICS advice on the Party Wall Act is similar. The Faculty of Party Wall Surveyor’s guidance is worse.

But the four authors of the Act, the Department of Levelling Up, the RICS and the FPWS are wrong. As is every party wall surveyor currently advertising online.

Fundamental to the 1996 Act is the definition of ‘building owner’, which is defined as ‘an owner of land who is desirous of exercising rights under this Act’. A definition whose meaning depends on whether common law rights continue to exist.

The 1996 definition contrasts with that in the 1930 London Building Act, which was, in effect, one of the adjoining owners who is desirous of doing work affecting party structure. And if you were so desirous you were, like it or not, a ‘building owner’, and you had a statutory duty to serve a Notice on the ‘adjoining owner’. In inner London, prior to 1997, failing serving a notice was not illegal, but lack of that notice allowed a neighbour to obtain an injunction to make the builder stop the work, and comply with his statutory duty.

The change in the definition of ‘building owner’ in the 1996 Act is a fundamental change. At least it is if, as we now know, common law rights were not extinguished by the existence of the Act. (Though, if common law rights to work on party structure had been extinguished on 1st July 1997, the revised definition was of little or no practical significance as, with no suitable common law rights, someone working on party structure would undoubtedly be desirous of exercising rights under the Act.)

The ‘new’ understanding is very simple, and can be explained in less than ten seconds. If your common law rights are adequate, you won’t be desirous of exercising rights under the Act, thus you are not a ‘building owner’ and so can’t serve Notice; and without a Notice there is no Party Wall Act. It’s like being transported back in time to before July 1997.

Until a few years ago I struggled to understand why the definition of building owner was changed so fundamentally, and yet was not even mentioned in the Green Book, or any other textbook. In 2022 I contacted Lord Lytton, three times, to ask why the change was made. But Lord Lytton didn’t seem think the point I was trying to make was relevant. I was a bit perplexed at the time, but I now understand that if he believed that common law rights to work on party structure ceased in July 1997, then the change was a technicality. Lord Lytton’s 1996 speeches to the House of Lords, stated “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 in inner London over a long period of time”. So, it seems the Earl of Lytton felt that common law rights ceased to exist with the passing of the 1996 Act.

But nine judges have, since 2018, ruled that common law rights continue to exist when no Notice is served. That completely changes the purpose and meaning of the Party Wall Act. And the change is very much for the better. If your common law rights are adequate, you are not going to be desirous exercising rights under the Party Wall Act. And, at risk of repeating myself, you are not a ‘building owner’, and do not/cannot serve a Notice. The new mantra is ‘no Notice, no Act’. And without the Act, all common law rights are retained.

Mr Justice Parfitt in the 2021 County Court judgement used the phrase ‘no Notice, no Act’. Lee Kyson and Ken Power appealed to the High Court, where Mr Justice Eyre explained that Mr Shah, who had removed a chimney breast from a party wall, was not exercising rights under the Act, as no notice had been served. (Mr Shah was simply exercising his common law rights.) Furthermore HHJ Eyre noted the definition of ‘building owner’, and opined that as Mr Shah had shown no intention of serving a notice, he was thus not desirous of exercising rights under the Act, and so was not a ‘building owner’. Thus the mantra ‘no Notice. No Act’ was further emphasised.

Kyson and Power appealed again, to the Court of Appeal, and in 2023 again lost. The Appeal Court described the case as ‘novel but important’; and in the words of Lord Justice Lewison (78): until a Notice is served “the position remains governed by common law”. In other words: developers remain free to exercise their common law rights. Lord Lewison explained that “it is the service of the party structure notice that causes the substitution of rights under the Act for common law rights”. And (96) ‘a building owner may rely on his common law rights’. That statement could hardly be clearer. Lord Justice Coulson and Lady Justice Laing concurred.

Kyson and Power sought leave to appeal to the Supreme Court, but permission was denied by Lords Reed, Stephens and Richards, who ruled “permission to appeal be refused because the application does not raise an arguable point of law”.

Therefore, eight judges, including six law lords, have looked at this question since 2021, and are unanimous that if no Notice is served the Act doesn’t apply, and situation remains subject to common law.

Furthermore, in 2018 Lord Justice Hickinbottom ruled (in ‘Group One Investments, v Keane’) if for any reason the statutory procedure is not followed, then the parties' respective common law rights continue to apply.. But few people noticed this.

These recent clarifications of the Act make it necessary for the Department of Levelling Up, the RICS and the FPWS to correct their outdated advice. And the same applies to all Party Wall Surveyors publishing their own outdated interpretations of the Act online.

HMG’s 2016 ‘Explanatory Booklet’ states

The Act provides a framework for preventing or resolving disputes in relation to party walls, party structures, boundary walls and excavations near neighbouring buildings.

Anyone intending to carry out work (anywhere in England and Wales) of the kinds described in the Act must give Adjoining Owners notice of their intentions.

Where the intended work is to an existing party wall (section 2 of the Act) a notice must be given even where the work will not extend beyond the centre line of a party wall.

However, the Act was clearly not designed to prevent ‘disputes’. A ‘dispute’ only occurs when an adjoining owner is served a Notice and fails to consent within 14 days. The only way to provoke a dispute is to serve a Notice. The Act could not have been designed to prevent a problem that could not exist at the time it was written. And ‘dispute’ doesn’t have the usual dictionary meaning: if you asked an adjoining owner why they were disputing the notice they would likely shrug, and say ‘I merely want a chartered surveyor, paid for by someone else, to look after my rights’. That’s not a dispute in the usual meaning of the word.

As for ‘resolving disputes that, though semantically correct, is entirely misleading. The dispute resolution process (under s10) is simply a mechanism necessary to allow a building owner to exercise rights under the Act. It involves a party wall surveyor (or two) issuing an Award to say if, how and when the building owner exercises his rights. It is not a way to resolve disagreements about ‘something or other’ between two neighbours.

Furthermore, as anyone wishing to work on or near the boundary can now exercise their common law rights without invoking the Act, the Act shouldn’t have any effect on the kind of work that was carried out on or near a boundary prior to 1st July 1997. And that must be the majority of work carried out to or near boundaries.

Some unthinking commentators suggest that a neighbour could get an injunction to stop a neighbour carrying out work on a party wall. But the courts would not require someone who is not a ‘building owner’ to serve notice on someone who is not an ‘adjoining owner’. Some commentators even believe in the nonsensical possibility of householders carrying out ‘notifiable work’ without serving notice. They seems not to understand that, if there is no Notice there is ‘no Act’, and thus no possibility of notifiable work.

The Court of Appeal ruled in 2023 that, until or unless a Notice is served, developers remain free to exercise their common law rights. It could not be clearer.

There is only one logical reason why a developer would now invoke the Party Wall Act, and that is where he desires to exercise rights that go beyond his common law rights, but are permitted by the Act, and where the neighbour is not agreeable to the work. Then the building owner serves a Notice on the neighbour, which the neighbour might regard as an act of aggression. (I know, I’ve been in that position, - when wanting to raise a party fence wall.) There is no other purpose for the Party Wall Act. The Act simply allows work that would not be possible without the Act. And this must strike everyone, except party walls surveyors (and adjoining owners), as excellent news. Though I accept the Act is not now the Act that the four authors of the Act thought they had written.

This raises questions about the idea that the Act, even when initiated, replaces common law rights. It’s now harder than ever to see that. There is nothing in the Act that claims common law rights are extinguished even when a Notice is served. If, for example, a building owner wishes to raise a party fence wall, he would serve a s3 Notice, and that eventually should allow him to raise the wall. But what common law rights are extinguished by that Notice? It’s difficult to understand what they might be.

Another question revolves around future use of a new party wall by the party who was once the adjoining owner. The old advice was that the party now wanting to make use of the wall would need to pay his neighbour to use the wall. But, if common law rights can be used to connect to one’s own half of the wall, how could the builder of the wall insist on payment?

The Award to allow the raising of such a wall would generally contain several conditions about noise, and times of working , etc. Yet: what is the point? The raising of the wall is possibly only about 1% of the proposed building work. The other 99% of the work isn’t governed by the Award and so not so restricted.

I was taught as a student that the London Building Acts were written by party wall surveyors for the benefit of party wall surveyors. But the party wall surveyors took their eyes off the ball when writing the 1996 Act.

The Award needn’t be long and complex. It can be simple. S10(12) states that the award may determine (a) the right to execute such works, (b) the time and manner of executing the work and c) any other matters arising out of, or incidental to the ‘dispute’. So very little work necessary for a surveyor, though most surveyors like to pretend an Award must be a lot more complex and time consuming than it need be.

In summary, you can carry out party wall work just as you could prior to the 1996 Act coming into force. You can ignore the Act!

How many party wall surveyors accept that obvious fact? Almost none. No one understands an argument when their salary depends on them not understanding. It might be a while yet before we’re free of self-serving nonsense from party wall surveyors.

In the meantime we have to suffer Party wall surveyors increasingly sending misleading letters to householders whose neighbours have received Planning Permission. I’ve had two party wall surveyors phone me recently to offer me 10% of their fee if I put work their way. And another email only this week offering me £200 minimum for each referral. Every website of every party wall surveyor is, at best, outdated and misleading. The majority appear to have been written by first generation AI, and make no sense at any level. Most even spell neighbour as ‘neighbor’. Most adverts refer to Party Wall ‘Agreements’, - a term which is not referred to in the 1996 Act. ‘Agreements’ are part of American state laws, and AI doesn’t understand the difference between English and American law. Many adverts define ‘Party Wall Agreements’ in a way that would make sense in New York state, but not in England. Yet they are English surveyors, advertising from addresses in England. Just Google ‘Party Wall Act 1996’, and nine out of ten result will be complete nonsense. None state that the Court of Appeal has ruled that a potential building owner may rely on common law rights (and thus ignore the Act). I suppose that a better general understanding of the law might reduce the work available to surveyors by, perhaps, 75%.

As an aside: you don’t need any qualifications to be a party wall surveyor. I’m an architect, and could join the FPWS after attending a two-day course, and start charging £200 or £300/hour. Yet it took seven years to be an architect, and I have 40 years post-qualification experience, I know a lot more about the Party Wall Act than any surveyor I’ve met, and I charge £100/hour. How has that happened?