The Government’s ‘Explanatory Booklet’ states:

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.

Entirely incorrect. Section 2 should demonstrate that to anyone.

The booklet also states that:

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

Again, entirely incorrect.

In its defence, the booklet states that:

we cannot provide a definitive interpretation of the law, as only the courts are able to do this. Consequently, any information provided by the department is informal only and is not binding on any person. You may therefore wish to seek your own legal advice on the matter

Then, in bolder print, it states:

This booklet is not an authoritative interpretation of the law, but intended as a general guide.

Unfortunately, few party wall surveyors take these warnings seriously. Almost all prefer to take the easy route, and rely on this informal non-binding, non-authoritative general guide, and not read the Act. Less thinking is involved and, importantly, the booklet makes the 1996 Act sound like a meal-ticket for party wall surveyors.

This is the section that grants most of the rights the Act has to offer. A section anyone unfamiliar with the Act could surely understand after first reading.

Section 2(2) states a building owner shall have the following rights, and then lists thirteen groups of widely-drawn rights which, taken together, allow almost any work to be carried out to a party wall, and some work to neighbouring walls. Each of the thirteen groups give rights not available under common law. A Section 3(1) Notice has to be served in order to exercise these rights; and served two months in advance of the work. (Note: there is no stated requirement for an Award to be issued, or even for surveyors to be appointed.)

There is a common misconception that this section is a list of restrictions placed upon people who are not defined as ‘building owners’, who have no wish to exercise rights under the Act, and have no intention of serving a Notice. A preposterous idea, caused by a misunderstanding of Sir George Jessell’s 1878 ruling.

Shah v Kyson & Power is very informative.

Here, the Appeal Court thought the question of whether the Act exists where no Notice has been served was a novel but important question arising directly in this case for the first time. The unanimous decision confirmed ‘no Notice, no Act’. Lord Justice Lewison stated (2023) in his Appeal Court judgment ‘a building owner may rely on his common law rights’. It’s a statement of the obvious: if no Act exists, common law rights must continue. Lord Justice Lewison’s statement is not difficult to understand. But no one understands an argument when their salary depends on them not understanding.

The background to this case is that Raheel Shah removed a chimney breast from a party wall of his terraced house in Dagenham in 2017, and allegedly caused damage to his neighbours’ house. The neighbours, Mr and Mrs Panayiotou, consulted Lee Kyson who surprisingly advised that Mr Shah’s work had triggered the Party Wall Act; and that he could request that Mr Shah (who he believed was now defined a ‘building owner’) appoint a surveyor to act for him. An Award could then be issued with no cost to the Panayiotous, giving them compensation for the damage they had suffered (whilst also covering the surveyors; fees). So, Lee Kyson sent a 10-day request to Mr Shah, which was ignored. Lee Kyson then purported to appoint a surveyor, Ken Power, to act for Mr Shah. The two surveyors then purported to draw up an Award.

The ‘Award’ awarded the surveyors £4630 in fees, and the Panayiotous £4223.49 in compensation. Mr Shah ignored the award. So, the two surveyors attempted to enforce their Award in the Magistrates Court; but at that point Mr Shah took action, and appointed Michael Paget to have the Award declared invalid in the County Court.

In the County Court Mr Paget argued ‘no Notice, no Act’. Not a new argument, but a bullet-proof argument. A ‘dispute’ (or deemed dispute) under the Act is not a dispute in the usual sense of the word. A dispute under the Act is defined in s5 as occurring when an ‘adjoining owner’ is served with Notice, but does not consent to the Notice within 14 days. When a ‘dispute’ occurs section 10 (the so-called ‘Resolution of Disputes’ section) which is the heart of the Act, is triggered. But, of course, a dispute cannot occur without a Notice being served. So, on these grounds Raheel Shah and Michael Paget succeeded in getting the Award declared invalid.

Lee Kyson and Ken Power appealed to the High Court, where Mr Justice Eyre explained that Mr Shah, when removing a chimney breast from a party wall, was not exercising rights under the Act. HHJ Eyre noted the definition of ‘building owner’, which is ‘an owner of land who is desirous of exercising rights under this Act,’ and opined that as Mr Shah had shown no intention of serving a notice, he was not desirous of exercising rights under the Act, and so was not a ‘building owner’. Mr Shah was simply exercising his common law rights.

Mr Justic Eyre also commented (56) that

‘the defendant’s’ argument comes close to being an assertion that there is a dispute arising under the provisions of the Act whenever the Act could have been invoked. That does not necessarily follow.’

In other words, just because you can notify work it doesn’t follow that you must. Notifiable work can be carried out without serving a Notice. (A view entirely in opposition to the message of the Government’s ‘Explanatory Booklet’.)

Kyson and Power argued that Mr Shah had exercised rights under the Act by removing a chimney breast. But HHJ Eyre felt that

there are a number of difficulties with that analysis. The first being that rights given under section 2 can only be exercised after the service of a notice under section 3. More significant is the point that neither when he performed the work nor after he had done so did the Claimant purport to be acting or to have acted in exercise of rights given by the Act. In those circumstances he cannot readily be seen as having been at any stage ‘desirous’ of exercising such rights.

Thus the mantra ‘No Notice. No Act’ was further emphasised. Kyson and Power’s appeal was dismissed.

Kyson and Power appealed to the Court of Appeal, and in 2023 again lost. 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 Justice 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.

I repeat ‘a building owner may rely on his common law rights’. How do party wall surveyors (or the government, the RICS and the FPWS) continue not understand?

Unbelievably 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 2020, and are unanimous that if no Notice is served the Act doesn’t apply; and situation remains subject to common law. The debate has gone as far as it can under the English legal system.

However, in 2018, before the Shah judgment, Lord Justice Hickinbottom ruled in the case of ‘Group One Investments v Keane’ that ‘if for any reason the statutory procedure is not followed, then the parties respective common law rights and obligation continue to apply.' And in 1997 Lord Justice Evans ruled the same in the case of Louis v Sadiq, - and that was under the 1939 amendment to the London Building Acts. So, the Shah judgments should not have surprised anyone.

Matthew Hearsum is a well-known lawyer specialising in party walls, and has written three books on subject.

Writing on the implications of the 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, misled by the Standard Bank judgement, believed the existence of the new Act would extinguish common law rights to carry out 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) shows this. And John Anstey’s 1996 book ‘Party Walls and what to do with them’ (published by the RICS) makes the misunderstanding clearer still.

In the short introduction to the Pyramus and Thisbe Club’s famous ‘Green Book’, the surveyors explain that it is important to read and understand the definitions of s20 before considering anything more. By far the most important of these definitions is that of ‘building owner’, which is, as mentioned, 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.

This definition contrasts with that in the London Building Acts, which was, in effect, one of the owners of adjoining land as is desirous of building or 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’.

The change in the definition of ‘building owner’ 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, the definition would, in reality, not have changed.)

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 there I not need to serve a Notice; and without a Notice there is no Party Wall Act. It’s like being transported back in time to before July 1997. (I’m old enough to remember that. We carried out work to party walls, removing chimney breasts, inserting beam ends, etc, and we relied on our common law rights. We all knew where the boundaries were, I was not aware of any disputes.)

Until a few years ago I struggled to understand why the definition of building owner was changed so fundamentally, and yet 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 understand. I was a bit perplexed , but I now realise that if he believed that common law rights to work on party structure ceased in 1997, then the change in definition 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. As did the four surveyors who wrote the Act.

But eight judges have, since 2020, ruled common law rights continue to exist when no Notice is served. (And, I would argue, continue to exist in most cases even when a Notice had been served.) This completely changes the purpose and meaning of the Act from that envisaged by the Act’s authors. 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 serve a Notice. The new mantra is ‘no Notice, no Act’. And, with no Act, all common law rights remain.

The ’Explanatory Booklet’ and almost all other online advice, either fails to define ‘building owner’ (letting the reader presume a building owner is just an owner of a building) or invents a definition at odds with the definition within the Act. If the true meaning of ‘building owner’ were correctly stated and explained, most published advice would, instantly and obviously, be rendered nonsensical.

These recent clarification of the Act make it necessary for HM Government, the RICS and the FPWS to correct their outdated advice. And the same applies to all Party Wall Surveyors publishing their own self-serving interpretations of the Act online.

As mentioned, 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.

However, the Act was clearly not designed to prevent ‘disputes’. Quite the opposite in fact. 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 was not designed to prevent a problem that did not exist at the time it was written. And remember ‘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 clearly not a dispute in the usual meaning of the word.

As for ‘resolving disputes: this is also entirely misleading. The so-called dispute resolution process (under s10) is simply the mechanism to allow a building owner to exercise rights under the Act. It is not a way to resolve disagreements about ‘something or other’ between two neighbours.

The 1996 Act was written when the GLC was about to be abolished, and Party Wall Surveyors feared the London Building Acts were about to die. But Lord Lytton, a Party Wall Surveyor, initiated a private member’s bill to introduce the 1996 Party Wall Act. And four colleagues drafted the legislation. The point was not, of course, to prevent ‘disputes’, the point was to generate disputes, - because that’s how Party Wall Surveyors earn a living. So before 1997 there were no party wall disputes, now I estimate there must be around 100,000 a year.

As anyone wishing to work on or near the boundary can exercise their common law rights without invoking the Act, the Act shouldn’t have any effect on the kind of work carried out on or near a boundary prior to 1st July 1997. And that must still be the majority of work carried out to or near boundaries. But Party Wall Surveyors are keen the public should not realise that.

Some unthinking commentators suggest that a neighbour could get an injunction to stop a neighbour carrying out work on a party wall if no Notice has been issued. But the courts would not require someone who is not a ‘building owner’ to serve notice on someone who is not an ‘adjoining owner’. A building owner may rely on his common law rights.

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 invoke the Party Wall Act, and that is where he wants 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 there.) There is no other purpose for the Act. The Act simply authorises work that would not be possible without the Act. And this must strike everyone, except party walls surveyors (and some adjoining owners), as excellent news. Though I accept the Act is not the Act that the four authors of the Act thought they had written.

Returning to the theory that the Act, when initiated, replaces common law rights: it’s now harder than ever to understand. There is nothing in the Act that claims common law rights are extinguished even when a Notice is served. Before 1925 common law rights competed with, and often conflicted with, statutory rights. But not now. If, for example, a building owner in 2025 wishes to raise a party wall, he would serve a s3 Notice, and that eventually should allow him to raise the wall. But what common law rights have been extinguished by that Notice? No common law rights to raise a party wall exist, or have existed for around a century. If the common law rights don’t interfere with the raising of the wall, it’s difficult to understand what common law rights have been extinguished.

The Party Wall Act requires a ‘building owner to serve a Notice on the neighbour before exercising s2 rights. It doesn’t say that an Award is required. You simply need to wait two months. The proposed work must be started within 12 months of the Notice being issued, and then prosecuted with due diligence.

Some people ask ‘how long does an Award last before it expires?’ But the question indicates a misunderstanding of the Act. The Award is not essential, but the Notice is, and its status at the time work is commenced, is fundamental.

The Award, if issued, needn’t be long and complex. It can be simple. S10(12) states that all that is required is (a) confirmation of 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 for a surveyor, though most surveyors like to pretend an Award must be a lot more complex and time consuming than it need be.

An Award for, say, raising a party wall would generally contain several conditions about noise, times of working, etc. I may also want to revisit the Building Control approval, and appoint checking engineers. Yet: what is the point? The raising of the wall is possibly 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. And current party wall legislation in England and Wales is very much the better for it.

In summary, you can in 2025 carry out party wall work just as you could prior to July 1997. 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 not understanding. It might be a while yet before we’re free of self-serving nonsense from party wall surveyors.

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 Act than any surveyor I’ve met, and I charge £100/hour. How has that happened?

Any potential ‘building owner’ reading this can just call me, or email me, and I might be able to save you much time and money.

Graham Rix - 9th January 2026