In the High Court case of Bridgland v Earlsmead Estates Ltd  the claimant claimed breach of statutory duty in that:
1. Their neighbouring building owner failed to serve on them a notice under section 3 of the Party Wall Act 1996 (“the 1996 Act”), thereby depriving the claimant of the opportunity to avail herself of the counter-notice procedures in section 4 of the 1996 Act. Had the claimant been allowed this opportunity she would have been able to require the works to be performed in such a manner as to prevent the issues of damp arising from the demolition of the building owner’s gable.
2. In breach of section 7 (1) of the 1996 Act the neighbour had failed to carry out their demolition work in such a way as to avoid unnecessary inconvenience being caused to the claimant.
The court found that the claimant had misunderstand the nature and purpose of a counter notice served under section 4. Such “other work” as may be the subject matter of a counter notice is different from the work which the building owner proposes, and a counter notice has nothing to do with the manner in which the building owner’s proposed work is to be carried out.
The purpose of the notice was not to enable an adjoining owner to require that the building owner’s proposed work be carried out in a particular manner, but rather to enable an adjoining owner to require that additional work be carried out by the building owner, for the benefit of the adjoining owner, at the same time as the builder’s owner carried out his own proposed work.
The expense of those additional works would have to be borne by the adjoining owner requesting the additional works, and not by the building owner: section 11(9) of the 1996 Act.
Also a counter notice could only relate to such other work to be carried out on the “party fence wall or party structure” as “may reasonably be required for the convenience of the adjoining owner” (section 4 (1) (a) of the 1996 Act). So such additional works can only be required to be carried out on the party wall itself, and not on the building owner’s land. It does not extend to any further work which the adjoining owner might wish to carry out, or have carried out on his own land either.
A counter notice therefore cannot, and does not, relate to such further work and a counter notice is not a medium for objection to the manner in which the building owner proposes to carry out his works.
So the claimant’s case had been incorrectly premised on the assumption that, had they served a counter notice, then they “… would have been able to require the works to be performed in such a way as to prevent the issues of damp arising”. What specific requirements could the claimants have made in their counter notice? Had there been a disagreement in relation to their requirements, could a surveyor appointed under the 1996 Act have made an award by which he directed the defendant to meet those requirements, and to carry out the works in the manner required by the claimants?” Had a section 4 counter-notice been served requiring French drains to be dug on the claimant’s property, that would have been outside the provisions of the Act.
On the second point the 1996 Act does not contain provisions enforcing performance of the obligation in section 7 (1) but the fact that it contains a specific mechanism or procedure for the resolution of disputes in relation to “any matter” connected with “any work” to which the 1996 Act relates strongly indicated that a breach of such obligation is only actionable through such mechanism or procedure.
In any event a breach of statutory duty is not actionable of itself, but only upon the occurrence of resultant damage. As regards section 3, a failure to serve a party structure notice would be a breach of the relevant statutory duty but it would not constitute the damage itself. Whether in relation to breach of section 3 or section 7, damage would be the physical damage caused by damp penetration to the flank wall of the claimant’s property. This was only likely to have occurred some time after demolition occurred but this could be assessed if the claimants sued the building owner for withdrawing any implied easements of protection their wall had acquired.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.