On 1 July 2015 His Honour Judge Grant handed down judgment in Bridgland v Earlsmead Estates Limited  EWHC B8 (TCC) in which the Technology and Construction Court considered the purpose of section 4 counter-notices, and whether a claim for breach of statutory duty could be made under section 7(1) of the Party Wall etc. Act 1996 (“the 1996 Act”).
The defendant is the freehold owner of a factory unit known as Trafalgar Works in Stoke-on-Trent. The gable end of Trafalgar Works abutted the flank wall of the house at 31 Trafalgar Street which was owned by the claimants and let out to tenants.
At some point between 2007 and 2009 (the parties disagreed on the date) the defendant demolished the Trafalgar Works exposing the part of the claimants’ wall that had previously been enclosed (see the picture above).
The claimants issued proceedings alleging that the defendant has failed to comply with the 1996 Act and, as a result, the previously enclosed part of the flank wall now suffered from damp because it is exposed to the elements.
The claimant’s particulars of claim include the following at paragraph 15:
“(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.”
The trial of the claim is listed for January 2016. In the interim, the defendant applied to strike out paragraphs 15(i) and (ii) of the particulars of claim on the basis that they disclosed no reasonable claim, or alternately for summary judgment on the basis that this part of the claim had no reasonable prospect of success.
HHJ Grant agreed, and struck out sub-paragraphs 15(i) and (ii) for the reasons set out below.
Right to serve a counter-notice
HHJ Grant found that a counter-notice under section 4 cannot specify the manner in which the proposed works are carried out. The purpose of a section 4 notice is to specify additional works that the building owner does not propose to do, but which the adjoining owner requires to be done. Therefore, paragraph 15(i) of the particulars of claim was bound to fail.
Whilst the Judge’s decision is – in my view – correct in respect of section 4 counter-notices, the surveyors must still determine the time and manner in which the notifiable works are carried out so as to avoid unnecessary inconvenience.
Interestingly, HHJ Grant also held that:
“the term “unnecessary inconvenience” is not synonymous with the term “nuisance”. The former may be rather wider than the latter, which has particular and specific characteristics of its own”.
Unfortunately, he did not go on to set out what those characteristics might be.
Failure to avoid unnecessary inconvenience
The defendant also argued that section 7(1) did not create a separate statutory duty owed by the defendant, the breach of which would give rise to a separate claim, but that it was simply a qualification on the rights granted un other section of the 1996 Act.
HHJ Grant agreed, finding that:
- section 7(1) did not impose a separate and distinct duty to avoid unnecessary inconvenience; instead it was a restriction or qualification to the rights conferred by the 1996 Act;
- There was no need to impose a separate and distinct duty under section 7(1) because section 7(2) provided an adequate remedy to an adjoining owner who had been caused unnecessary inconvenience. Whilst it was not a strict liability, there was no need to demonstrate any element of fault on the part of the building owner; merely that the works had caused the loss of damage.
- It was up to the surveyors to determine whether unnecessary inconvenience had been caused, and the damages that were payable as a result, and that “the adjoining owner [must] first …exercise and extinguish their remedies provided by the 1996 Act before resorting to court proceedings”.
1996 Act not engaged
The defendant also argued – rather bravely it has to be said – that because it had failed to serve a section 3 notice it was not “exercis(ing) any right conferred … by this Act” and so the other provisions of the 1996 Act – in particular section 7(1) – were not engaged.
HHJ Grant rejected this submission on the basis that the defendant was still exercising rights under the 1996 Act even if notice had not been served:
“the fact that [the defendant] has failed to comply with the service requirements under section 3 (1) does not absolve him from the separate requirement not to cause unnecessary inconvenience under section 7 (1).”
This support the view, expressed in my earlier post, that surveyors can be appointed and an award made – for example dealing with the cost remedial works for damage caused – where a notice has not been served.
As a decision of the County Court on an interim application this decision, whilst setting out some interesting points of law, is not binding authority.
Whilst not set out in the judgment, I expect the claim probably included a claim under section 7(2) which, given the facts, is likely to succeed. This claim could be made under section 16 of the County Courts Act 1984 or indeed in the Magistrates’ Court under section 17 of the 1996 Act.
Within the judgement references are also made to a defence under the Limitation Act 1980 which would not be an issue if the dispute was referred to the tribunal of surveyors because they are not a “court of law”. It is not clear why the claimants was advised to issue proceedings, rather than have the matter determined by the surveyors.