Party Wall Act Injunction

Patrick Tedstone, Commercial Litigation Specialist

By Patrick Tedstone

Are you faced with a Party Wall Act Injunction? Are you contemplating applying for one? There are a number of important facts that should be considered very carefully before you do anything else.

What is a Party Wall Act Injunction?

A court order which tells a party to do something or to stop doing something. Read more in our Guide to the Party Wall Act.

If a person who receives an injunction order fails to do or stop the thing in question, they could be punished by being imprisoned, fined or by having their goods sequestrated (taken and sold).

If a person who applies for an injunction does so incorrectly or without sufficient justification, they could be ordered to pay damages to the respondent and / or become liable for all of the resultant costs (which may be significant, running into many thousands of pounds).

In view of the potentially very serious consequences associated with both applying for and responding to injunctions, they should never be taken lightly.

Before considering whether to apply for an injunction or how to respond to one, it is always advisable to seek legal advice from a specialist solicitor.

When is an injunction needed?

The Party Wall Act 1996 (“the Act”) is applicable to any ‘notifiable work’; which is, basically, work on or at the boundary of two properties, work to an existing party wall or party structure and / or excavation near to and below the foundation level of neighbouring buildings.

The Act governs the obligations and rights of the building owner (the party proposing to carry out the notifiable works) and the adjoining owner (the neighbour).

The Act requires the building owner to provide a ‘Party Wall Notice’ to the adjoining owner, explaining the works it is proposed will be carried out.

One of the shortcomings of the Act is the lack of any automatically applicable sanctions for failure to comply with its provisions.

Where the provisions of the Act have been breached, an adjoining owner must decide (preferably with the assistance of expert legal advice) whether they wish to:

a) do nothing;

b) try to reach an agreement with the building owner;

c) seek damages and / or compensation;

d) apply for an injunction; or​

e) Combine elements of options a) – d).

All of the above possibilities are potentially valid choices, depending on the relevant facts.

Where damage has been caused, or is likely to be caused, to an adjoining owner’s property, it is probable that an injunction and / or claim for damages would be appropriate (in the absence of the building owner’s agreement to make good and pay suitable recompense).

The case of Udal v Dutton (2007) concerned an injunction application in connection with a party wall matter. The court granted the injunction; applying the American Cyanamid principles, the Court of Appeal’s judgment in Zockoll Group Ltd v Mercury Communications Ltd (No.1) [1997] EWCA Civ 2317 and the decision of Chadwick J in Nottingham Building Society-v- Eurodynamics Systems Plc [1993] FSR 468 at 474.

Within the judgement, the court summarised the conditions necessary to obtain a party wall injunction:

1. There must be a serious issue to be tried – this was plainly the case, as the building owner was guilty of trespass and wrongful interference with the adjoining owner’s property. In certain circumstances, it may be sufficient to demonstrate that there is a substantial risk to the adjoining owner’s property / rights; even where no work has actually been carried out by the building owner;

2. Damages are not an adequate remedy – the adjoining owner was more concerned to preserve their property rights (by maintaining what was left of a partially demolished wall) rather than securing a sum of damages. If the building owner’s works have already been fully completed, it is likely that an injunction application would not be appropriate. Where works have not yet begun, or are only partially complete, an injunction may be required; particularly where damage has already been caused to the adjoining owner’s property or there is a substantial risk that it will be;

3. The balance of convenience favours an injunction – again, this was clearly the case; as the partially demolished wall was protected by the injunction order; which also allowed for the temporary replacement of the damaged parts. Where any potential injunction order would be unable to serve any practical purpose, it will not be granted.

Where building owners ignore or fail to properly adhere to the provisions of the Act, judges are usually very sympathetic towards any complaints made by adjoining owners; meaning building owners are always well advised to ensure that they meet all of their obligations pursuant to the Act.

Even though courts are very sensitive to the potential plight of adjoining owners facing the prospect of dealing with notifiable works outside of the Act; where inappropriate claims / applications are made, judges will not hesitate in ordering damages / adverse costs against them.

Mike Smyth Construction Adjudication specialist
Mike Smyth – Partner ORJ Solicitors LLP 01785 223440 mike.smyth@orj.co.uk

Before carrying out any party wall works or taking any action in response; both building owners and adjoining owners should seek appropriate expert advice in respect of the relevant provisions of Party Wall Act 1996.

ORJ’s Construction Partner, Michael Smyth has more than 10 years’ specialist litigation experience.  He has completed and passed the RICS Diploma in Adjudication and is building an ever-expanding portfolio of work for a diverse range of construction clients.

For any enquiries or more information, please send an email to Mike.Smyth@orj.co.uk or call 01785 223440.

 

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