The Party Wall etc Act 1996 grants extensive rights to a building owner undertaking construction work which do not exist at common law. It obliges them to serve formal Notice on adjoining owners before works starts, allowing the recipient to seek professional representation by appointing a surveyor. The building and adjoining owners' surveyors between them agree an Award which details the work and how it should be done, and which generally has appended a schedule of the condition of the adjoining property. The rights conferred are subject to the building owner making good any damage, or the payment of damages in lieu of making good.

The remedy available to an adjoining owner when a building owner has commenced work to the party wall without serving the appropriate Notice is to seek an injunction. However, once works are finished, there is no recourse or penalty under the Act if damage is uncovered.

Cases relating to this legislation rarely end up in the courts and there is only limited case law, most of which relates to previous legislation. However, there has been a recent case, Roadrunner Properties Limited v (1) John Dean (2) Suffolk and Essex Joinery Limited [2003] EWCA Civ 1816, which adds more weight to the Act than the legislation itself affords.

Roadrunner attempted to let their property. During the course of a building survey instructed by a prospective tenant, some damage was discovered to the party wall shared with the first defendant's building. Roadrunner had reason to believe this damage had been caused by building works recently completed to the adjacent property, namely chasing into the wall using a heavy duty drilling tool. Such work is notifiable under the Act but no Notice had been served. Advisors to Roadrunner could not invoke the provisions of the Party Wall Act and relied on the common law. They brought an action in negligence and nuisance against the defendants.

The defendants argued that the damage sustained was merely coincidental to the carrying out of building works to their property. Roadrunner reasoned that it was more than likely building work of the nature of that undertaken could justifiably cause the damage sustained. Lord Justice Chadwick stated:

'if it can be shown that the damage which has occurred is the sort of damage which one may expect to occur from the nature of the works that have been carried out... ...he should not be allowed to obtain forensic advantage by his own failure to comply with the statutory requirements ... ...a court should be prepared to take a reasonably robust approach to causation...'

The failure of a building owner to serve Notice does not negate liabilities to make good damage caused to adjoining properties which could be reasonably attributable to the building work. In other words, the burden on the building owner to disprove a link between the damage and the work is far greater than the burden on the adjoining owner to prove this link. At common law, the liability would be the reverse of this situation.

The Act as it stands has no teeth in terms of offering a penalty where there is a failure to serve Notice. This case should make such owners think again as failure to serve Notice may result in a costly exercise to prove they are not responsible for damage to an adjoining property. Malcolm Hollis will be advising their clients, to comply with the Act or ignore it at their peril. © DLA