This week's bulletin covers a Court of Appeal ruling on party wall awards, as well as Government proposals to give landlords greater powers to evict disruptive tenants. All this alongside our usual insights from around the firm and positive news.
Court of Appeal rules that adjoining owners cannot initiate the party wall award process
Background
In Power and Kyson v Shah [2023] EWCA Civ 239 the Court of Appeal considered what they described as a "novel but important issue" in connection with the Party Wall etc. Act 1996 (PWA 1996). Can an adjoining owner seek to rely on the dispute resolution procedure provided by Section 10 of the PWA 1996, in circumstances where the building owner, who intends to carry out or who has carried out building works, has served no notice under Section 3 of the PWA 1996 in respect of the works, and maintains that the PWA 1996 does not apply?
Mr Shah, the building owner, had carried out works to his home without serving notice under the PWA 1996 as he maintained that it did not apply in the circumstances. The adjoining owners alleged that the PWA 1996 did apply and that the works caused damage to their property, so they invoked the Section 10 procedure. Mr Kyson was appointed to act as surveyor for the adjoining owners and Mr Power was then appointed as surveyor for Mr Shah using the default procedure as Mr Shah did not engage with the statutory process as he said it did not apply.
The party wall surveyors determined that the works did require a notice under the PWA 1996, that the works had caused damage and as a result, they issued an award accordingly. Mr Shah refused to pay the award and claimed that it was void because the PWA 1996 did not apply.
The arguments
During this further appeal, the parties re-ran the arguments that had been heard by the lower courts. On behalf of the adjoining owners, it was submitted that Section 10 of the PWA 1996 was invoked, is "widely drawn" and that the purpose of the PWA 1996 was to resolve disputes without parties having the recourse to the courts. Counsel for the adjoining owners said that any other interpretation of the PWA 1996 would mean that if a building owner wrongly refused to serve a notice or acknowledge the applicability of the PWA 1996, the adjoining owner would be left with no other option but to seek an injunction in court.
On behalf of Mr Shah, it was submitted that the PWA 1996 did not replace common law. Whilst it provides the building owner with new rights, those rights only arise if the mechanism set out in the PWA 1996 has been properly triggered, which can only happen if the building owner serves a Section 3 notice. If there is no notice as in this case, the PWA 1996 simply does not apply.
Court of Appeal decision
The Court of Appeal ruled in favour of the Building Owner, observing that on a proper interpretation of the PWA 1996, Section 10 could only apply "in respect of any matter connected with any work to which the Act relates", meaning in respect of works to which a notice had been served. In the absence of a notice from the building owner under Section 3, Section 10 and therefore any subsequent party wall award, is null and void.
The Court highlighted that instead the adjoining owners would have had the usual claims for damages in trespass, nuisance or negligence available to them.
The Court of Appeal's ruling, whilst logical, does appear likely to result in more litigation being necessary. Until this case it was relatively common for adjoining owners to invoke the party wall award process, on the basis that it is usually quicker and cheaper to resolve party wall disputes via surveyors than via the Courts. However, this "No notice, No award" ruling means that an aggrieved adjoining owner now has no alternative to Court proceedings.
Government proposes greater powers for landlords to evict disruptive tenants
The Department for Levelling up, Housing and Communities has announced housing law reform proposals in its latest Anti-social Behaviour Action Plan.
The Government has confirmed that its reforms for renters will:
- ensure that all private tenancy agreements include clauses specifically banning anti-social behaviour;
- make the notice period two weeks for all anti-social behaviour eviction grounds;
- expand the discretionary eviction ground, to make anti-social behaviour easier to prove in court by clarifying that any behaviour ‘capable’ of causing ‘nuisance or annoyance’ can lead to eviction;
- speed up the process of evicting an anti-social tenant by working with the Courts to explore how to prioritise anti-social behaviour cases in possession lists.
- prevent short-term lets by setting up a new registration scheme to identify short-term lets (e.g Airbnb) in the area. A consultation on the registration scheme will be introduced shortly.
The Government also intends to update statutory social housing allocations guidance to be clear that previous anti-social behaviour offenders should be deprioritised for social housing and speeding up the process of evicting for anti-social behaviour by exploring a “three strikes and you’re out” eviction expectation meaning three proven instances of anti-social behaviour followed by three warnings. There will be a further consultation with housing providers on expanding the closure powers, currently open to police or council officers where premises themselves are a source of nuisance.
The full action plan can be found here.
Insights from around the firm:
Positive news
The plan to create a ‘nature recovery site’ in every English county
Nature charity Heal has taken its first step in an ambitious rewilding journey with the purchase of a 460-acre site near Bruton in Somerset.
Heal, the UK’s first registered charity set up to buy land for the sole purpose of rewilding it, is aiming to create a major nature recovery site in all 48 English counties, across 25,000 acres, by 2050.
Everest climb: Oscar Burrow gets £10,000 donation for Derian House
A boy climbing the equivalent of Mount Everest to support a children's hospice said getting a £10,000 donation was a "brilliant surprise". Oscar Burrow set a target of raising £29,000 to allow 29 "poorly children to go on holiday". Thanks to the kindness of stranger Mark Dunn, that goal is one step closer. The six-year-old is in the process of climbing 12 peaks to match Everest's 29,030ft (8,849m) height.
The funds he raises will go to Derian House in Chorley, which provides respite and end-of-life care to more than 400 children across the North West.
New project aims to bring education to 10 million girls in rural India
A new outreach programme is launching in India to provide secondary education to girls who have dropped out of school.
The digital Project Pragati aims to provide 10th grade qualifications to 10 million girls over a period of 10 years. It has been developed by Educate Girls, a non-profit that focuses on facilitating girls’ education in India’s rural communities. Working in partnership with the government.
Locally-based volunteers will help to identify girls and young women who have permanently dropped out of school. They will then be enrolled into secondary schools and will receive support for exams in “learning camps” that the programme will set up in the villages where the girls live.
