Deterrence to legal action

As briefly alluded to by Lord Kinnoull's speech above, the other issue that arose which lead to the enactment of the Party Wall Act 1996 were those of legal issues. The existing legislation as argued, inadvertently allowed owners the liberty to do as they pleased as there were little guidelines to regulate the work. This in itself contributed to the larger problem of saturating the legal system. Due to the work being undertaken on shared structures, this often affected their neighbours and disagreements were thus bound to arise.

As a result, parties often times resorted to taking some form of legal action which was inefficient for the parties involved, as well as the court systems that needed to deal with these cases. 13 Further, by analyzing the parliamentary debates regarding the Party Wall Act 1996, one can better understand that this was a main motivations for this Act. This particular bill was proposed by The Earl of Lytton and received a second reading on 31 January 1996. Based on The Earl of Lytton's testimony, he suggests that this proposed bill was in fact inspired by the London Building Acts (Amendment) Act.

In defence of this bill, he suggests in his speech that the aforementioned Act was quite successful in Inner London. This is because there are thousands of cases a year, and very few unresolved disputes, even to a third party surveyor and even fewer to a court of law, and usually on some other complication. 14 In analysis of this statement, one can see that a key goal of proposing this bill was to alleviate the number of cases arising from party wall disputes. This can therefore be deemed as one of the legal issues that had to be remedied.

More specifically, Lord Lytton provides anecdotal support for the passing of his proposed bill. He recounts a specific client's turmoil experienced due to this "legislative void". He suggests that the financial losses of upwards of tens of thousands of pounds as well as his client's emotional strain could have been spared had the contents of this bill been in effect. 15 Based on this, it becomes evident that a reason for this Act is to lower the incidences of legal actions sought by the disputing parties.

Further, as expressly indicated by Lord Lytton, legal repercussions are accounted for as costs and the extent of work is clearly indicated in writing under the party wall awards. This allows for more documented support regarding the initial agreements between the parties, and judgements would be much more fair and easier to adjudicate should this still lead to legal action. In analysis of Lord Lytton's description, one can see that this new bill utilizes a quasi form of 'alternative dispute resolution'.

This is because the new agenda promotes more communication between neighbours and encourages them to cooperate and negotiate until both parties are satisfied. In addition, the new Act allows for the assistance from a third party should the two existing parties (building owner and adjoining owner) be unable to come to a consensus on their own with regards to the planned work. In a sense, the surveyor's duties are arbitral because of the refereeing that they may be required to do. 16 For instance, if the two quarrelling parties and their appointed surveyor are unable to come to an agreement, the third party surveyor can be called in.

This third surveyor is required to act in the interest of both parties and be the one who decides on the party wall awards and provisions of the agreement with regard to the costs and the timeline of the construction. 17 The job responsibilities of the third surveyor therefore share many similarities with that of arbitrators. Therefore, one can draw the conclusion that this new bill utilizes a form of 'alternative dispute resolution' in dealing with party disputes and strives to minimize the use of the courts in handling these cases.

And thus supporting the idea that what this new bill aims to accomplish is to lower the incidences of legal action. Furthermore, prior to this enactment, there lacked a streamlined approach to dealing with what owners were able to do on their party walls. This in essence lead to disputes between neighbours that could have been avoided had there been an agreement with the agreed terms in place even if the case should go through legal action. A case that perfectly illustrates this is that of Adams v Marylebone Borough Council [1906].

The facts of this case were that the Council (the Defendant) wanted to raise the party wall that separated their building and Adams' (the Claimant) restaurant. The Claimant asked the appointed surveyors for compensation for the loss of business suffered during the construction work such as dust and noise. However, when they refused, she filed an appeal against the award. 18 It was decided that since the compensation that the Claimant is seeking for losses was authorized and so she had no right to compensation in this instance. However, with the enactment of the new Act, this now allowed for "entitlement for compensation of loss of trade".

19 This therefore shows the extensiveness of this newer Act, and the positive changes it has for the adjoining owner, whom many times is the party that is more vulnerable due to the changes being made to their property which can be rather troublesome and inconvenient. Therefore the Act reassures the parties that there is legal recourse should they require it to compensate them for their troubles. Another case that's similar to this is in Andreae v Selfridge and Co. Ltd. [1938]. It illustrates the importance of having a party wall award and an appointed surveyor.

This is because in this case, the Claimant complained that dust and debris were entering their side of the property. But it was found that if the works were not abnormally messy and that reasonable measures had been taken to ensure that protections are put in place to prevent dust and debris from entering neighbouring land then the Claimant simply needs to put up with the disturbance of normal work. 20 In view of this, one can see the sorts of disputes that can arise between neighbours and these are the sorts of cases that required legal recourse.

In this particular case, Sir Wilfred Green MR who oversaw this case said that he is… unable to take the view that any of these operations was of such an abnormal character as to justify treating the disturbance [… ] as constituting a nuisance. 21 However, with the enactment of the Party Walls Act 1996, these sorts of differences and disputes can be mitigated, by having a party wall award and a surveyor to outline the terms and restrictions of this construction such as the hours of operations that the work can take place.

And so if a claim was still brought forward, despite all of the restrictions as stated under the party wall award, the defendant must be able to show that they exercised proper skill and care in considering the level of disturbance. This is because, as per Sir Wilfred Green MR, it is a duty to have proper precautions, and to see that the nuisance is reduced to a minimum. 22 As a result, one can see that there is increased recourse and protection for the adjoining neighbor and allows the judge to easily adjudicate based on the provisions of the party wall award.

With regard to the successes of this case, it can be ascertained that the policy issues are now better dealt with. This is because there is a more rigid guideline catered towards the handling of construction on party walls. The parties are now encouraged to negotiate and come to an agreement prior to the commencement of any work. Since this initiative was newly implemented, and had not been in existence for the whole of England and Wales, then yes, it can be seen as a success in dealing with this "legislative void".

With regards to the legal issues that this Act tries to alleviate, it was quite beneficial in the sense that documentation of the agreements were now in writing, in the form of party wall awards. This allows for the easy adjudication on the part of the Courts because it is no longer an issue of "party A said this and party B said that". Rather, should a legal dispute erupt, there is now a document which shows the initial agreement between the two parties.

Moreover, as the aforementioned case laws illustrated, the adjoining owners now have more protection against damage and disturbance as there are now restrictions in place that limit the hours that work can be executed. Although it can be seen as beneficial to have these new provisions as part of the Party Wall Act 1996, it becomes evident that these provisions are mere guidelines. This issue is explored in Paul Chynoweth's journal article regarding parties whom deviate from this Legislative Act.

He suggests that there is no obligation to observe the procedural requirements where the parties choose to regulate these rights by what we have described as informal agreements, rather than through the statutory machinery. 23 This effectively makes the rights of the parties' involved, matters of contractual construction rather than statutory interpretation. 24 In analysis of Chynoweth's argument, it becomes evident that he is suggesting that although these procedural requirements are in place, it does automatically mean that parties' will follow them. Instead, parties' may resort to their own agreed terms.

And thus, the safeguard of having party wall awards in settling disputes may be trumped by these self-constructed framework agreements that are not in pursuance of the Act. And will subsequently seek legal action anyway, which defeats one of the primary reasons for having this Act. In addition to this, another criticism may be related to the surveyor. Although seemingly beneficial, it can be asserted, however, that the arbitrariness of the appointment of a surveyor can lead to further problems such as the incompetency of one party's surveyor to that of the other party's.

This therefore creates a power imbalance of the two parties. In conclusion, it is evident that the main motivations behind the enactment of the Party Wall Act 1996 were due to the legislative voids of its antecedents, namely the London Buildings Acts (Amendment) Act 1939. These legislative voids required remedies to the legal and policy issues that persisted. The legal issues here include the over saturation of the legal system with disputes over party walls.

This includes the instigation of building works to a wall shared with a neighbor, building at or near the boundary line of your property or excavating near a neighbouring building to which the adjoining neighbor disapproves of. 25 The disputes are often unresolvable between the parties and thus requiring legal recourse. However, by the accounts of the House of Lords in the second reading of the Bill, it becomes evident that many of these disputes are often preventable.

Thus, the provisions of the Party Walls Act 1996 now include a regulatory framework in handling construction work so that an agreement can be made prior to the execution of work. This includes giving sufficient notice, an outline of the work, as well as appointing a surveyor to oversee the work and to determine party wall awards. In other words, the new Act provided provisions that were lacking for the whole of England and Wales. In essence, with these provisions in place it satisfied the policy issues that were lacking and also acts as a deterrence to legal action.