Those familiar with the Party Wall etc. Act 1996 (“the Act”) will be aware that it is not an uncommon occurrence to find that a building owner commences works without complying with the Act in the hope that the adjoining owner is either unaware as to its existence, or is unwilling/unable to do anything about it.
However, the recent case of Peabody Trust v Brecher highlights the perils of flouting the Act and then adopting a ‘head in the sand’ approach, hoping that the issue will just go away.
The claimant and defendant owned adjoining properties. The defendant started by serving a notice under the Act but shortly after, and without an award permitting the works being made, they commenced extensive excavations covered by the Act.
The claimant sought and was granted an interim injunction preventing the notifiable works from continuing, until such time as a party wall award is made or the claimants give their consent. As is often the way with these matters, a compromise was reached with the claimants and consent was given for alternative temporary works to go ahead.
Following this, an inspection revealed that the works carried out by the defendant had caused substantial damage to the claimant’s property. From this point on, the defendant effectively went to ground. The claimant issued and served the claim form and particulars of claim, in response to which the defendant neither acknowledged receipt nor filed a defence. The claimant applied for judgement in default and the defendant failed to reply to this and did not attend the hearing.
An injunction is a discretionary remedy, so the Court does not have to grant them, and will only do so where they think it is reasonable. The guidelines for prohibitory injunctions set out in American Cyanamid v Ethicon Ltd serve as a useful rule of thumb. They are:
1. Is there a serious question to be tried?
2. Would damages be an adequate remedy?
3. Where does the balance of convenience lie?
4. Are there other special factors?
The outcome in this case was the grant of a final injunction with a penal notice against the defendant, preventing them from carrying out further notifiable works without a party wall award or the consent of the claimant.
The two key lessons here are:
1. Don’t commence notifiable works without a party wall award in place, otherwise the Courts can and will grant an injunction stopping the works.
2. If you are served with an injunction seek specialist legal advice as soon as possible. If you ignore it there is a good chance they will give the claimant everything that they ask for.
At Morrisons, we specialise in obtaining and defending this type of application. If you have any questions about the issues raised in this blog, please feel free to contact Kate Cooper.