The Court of Appeal recently considered in Seeff v Ho  EWCA Civ 186 the nature of an alleged oral waiver of the obligations under the Party Wall etc. Act 1996, and the basis on which damages for trespass in breach of the 1996 Act are to be assessed.
In 2006 Mr and Mrs Ho decided to build an extension and undertake other improvements to their house at 314 Whitchurch Lane, Edgware, London (pictured). Those works included the conversion of their garage, which shared a party wall with No. 316 Whitchurch Avenue, and the creation of a hipped garage roof at the same height as the existing roof.
Mrs and Mrs Ho obtained planning permission, but did not serve any notices under the 1996 Act on the basis that they (incorrectly) thought that the wall was not a party wall.
Construction started in August 2007. During the works Mr and Mrs Ho altered their plans and instead constructed a gable end roof at a height approximately 12 inches above the existing roof.
Shortly after the works were completed, Mr Seeff, the owner of No. 316, issued proceedings in Willesden County Court seeking an injunction requiring the removal of the roof and damages for trespass, on the basis that the roof as constructed encroached upon their land and Mr and Mrs Ho had failed to comply with the Party Wall etc. Act 1996.
Effect of consent
One of the main issues in dispute was the effect of a conversation between Mrs Ho and Mr Seeff which took place over the garden fence in February or March 2006.
Mr and Mrs Ho argued that the effect of that conversation was that Mr Seeff had given unqualified oral consent to proceed with the conversion of the garage and heightening the garage roof, and that therefore they did not need to serve notice under the 1996 Act.
At the trial His Honour Judge Copley agreed, and found Mr Seeff had given consent to the work, but that such consent had not extended to all of the works that took place and, to the extent those works fell outside the consent, Mr and Mrs Ho had committed a trespass.
Lord Justice Thomas, giving the lead judgment of the Court of Appeal, took a different view:-
“31. Plainly when a neighbour seeks to do work that affects another neighbour, informal conversations as to what is proposed are highly desirable. However an informal discussion over the garden fence cannot, in my view, be taken objectively as a simple consent to proceed with the work without more. A neighbour who has given the consent would obviously expect that, if planning permission was required or consent under the Party Wall Act was needed, the processes would be put in train and the obligations imposed by the planning authorities or under the Party Wall Act observed as a condition of consent.” [author’s emphasis]
Put simply, an Adjoining Owner’s agreement to allow works to take place (or not to oppose works taking place) will not relieve the Building Owner of his obligation to comply with the 1996 Act.
His Lordship confirmed:-
“36. …The  Act makes it mandatory to give notice in respect of work defined in the Act.
This is consistent with the decision of Ramsey J in Kaye v Lawrence  EWHC 2678, in which the Court found that the only way a building owner can undertake the type of works set out in ss. 1, 2 and 6 of the 1996 Act is to serve the relevant notice and follow the statutory procedure. This is discussed in more detail below.
Injunction v damages
This case is also a salutary reminder to Adjoining Owners that an injunction is a discretionary remedy, and the application must be bought promptly.
Mr and Mrs Seeff delayed applying for an injunction until after the works had been completed.
Applying the criteria in Shelfer v City of London Electric Lighting Co Ltd  1 ChD 287 the Court of Appeal agreed that it would be oppressive to order Mr and Mrs Ho to dismantle the roof, and declined to grant an injunction.
Instead, the Court would award damages under Wrotham Park Estate v Parkside Homes  1 WLR 798(often termed “Wrotham Park Damages” or “Negotiating Damages”).
The basis on which these damages are to be assessed was summarised by Lord Walker at paragraphs 47 to 48 of his judgment in Pell Frischmann Engineering Limited v Bow Valley Iran Limited  UKPC 45 and can be summarised as representing such a sum of money as might reasonably have been demanded by the claimant from the defendant as a quid pro quo for permitting the invasion of the claimant’s right.
The damages were assessed by the Court of Appeal at £500.
This case provides a number of helpful clarifications:-
- An agreement by the Adjoining Owner to allow works to take place does not discharge the obligation upon the Building Owner to serve notice and follow the Party Wall etc. Act 1996;
- An Adjoining Owner must apply promptly, and before the works have been completed, to ensure the best chance of securing an injunction;
- If an injunction is not granted then the Court will award Wrotham Park Damages, but such damages are unlikely to be substantial.