Party Wall Act Update: Counter-Notices And Statutory Duties

The Technology & Construction Court (in the County Court sitting in Birmingham) has clarified the purpose of a counter-notice issued under section 4 of the Party Wall etc. Act 1996 ("the Act"), and considered the scope of the statutory duty imposed by the Act.

Background

In Bridgland -v- Earlsmead Estates Limited [2015] EWHC B8 (TCC), a dispute arose between the two owners of adjoining commercial units in Stoke-on-Trent. Between 2007 and 2009, Earlsmead had demolished its own unit, leaving Bridgland's previously enclosed flank wall partially exposed and susceptible to damp from the famous wet and windy conditions of Staffordshire. Earlsmead failed to serve any notice under section 3 of the Act (which requires a building owner to serve a "party structure notice" on an adjoining owner in order to propose certain works affecting a party structure).

Bridgland issued court proceedings, with the full trial scheduled to take place in early 2016.

But in the meantime, Earlsmead made two alternative applications in respect of the following paragraphs of the Particulars of Claim:

"(i) The defendant failed to serve on the claimant a notice of the kind described in section 3 of the Party Wall Act 1996, thereby depriving the claimant of the opportunity to avail herself of the counter-notice regime described in section 4...Had the claimant been afforded this opportunity she would have been able to require the works to be performed in such a way as to prevent the issues of damp arising.

(ii) In breach of section 7(1)...the defendant failed to demolish the Trafalgar Works in such a way as to avoid unnecessary inconvenience being caused to the claimant."

Under section 4 of the Act, an adjoining owner may serve a counter-notice in response to a section 3 notice. This notice, to summarise, allows the adjoining to require certain work to be carried out in addition to or alongside that proposed by the building owner in the initial notice.

Earlsmead applied for the above paragraphs to be struck out (on the basis that they diclosed no reasonable claim) or alternatively for summary judgment to be granted in its favour (on the basis that this part of Bridgland's claim had no reasonable prospect of succeeding).

Decision of the Court

His Honour Judge Grant agreed with the application for strike-out.

He described his decision as arising out of "a relatively short point of statutory construction". His point was that the section 4 counter-notice (if put to use) only...