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The Thames Valley Moot

A moot is an argument, in this case between Counsel, before District Judge Gerald Burgess in the Reading County Court on whether a Building Owner, on service of Notices under Sections 1(5) and 8(1) of the Party Wall etc Act 1996, has a right of access over the land of the Adjoining Owner to build a wall on the land of the Building Owner.

The Moot, held on the 25th February 2009, was organised by Keith Douglas.The Expert Witness Briefings Counsel's ,Skeleton Arguments, Judge's opinion and Commentary are presented in the following papers.

BACKGROUND NOTES
for
P&T THAMES VALLEY BRANCH MOOT
THE PARTY WALL etc ACT 1996. SECTIONS 1(5) AND 8(1)


The following events outline the nature and procedure of a hypothetical dispute between Mr and Mrs Green, Appellant Adjoining Owners, –v-- Mr and Mrs Brown, Respondent Building Owners.

Prior to the Building Owners being granted Planning Consent for their large extension the parties had been on friendly terms. The Adjoining Owners, were “devastated” when the Planning Consent was granted for the extension of the Building Owner’s property and vowed to use every available method of preventing construction, hence:-
  1. Notice was served under Section 1 (5) for building on Line of Junction
  2. The Adjoining Owners dissented from the Notices.
  3. The Notices were accepted as being valid.
  4. The Two Surveyors were appointed under Section 10.
  5. The Two Surveyors could not agree an Award in respect of the proposed works under Sections 1 and 8 and referred their dispute to the Third Surveyor whose Award is “appealed” to the County Court.
  6. The works of excavation are complete and the RC concrete ground floor slab cast. Work adjacent to the boundary between the properties has ceased, the Adjoining Owners having refused access to their land for the purposes of erecting a scaffold required for building the proposed flank wall on the Building Owner’s land.
  7. Since the boundary between the properties is clearly defined the Two Surveyors have agreed that the proposed wall is to be built at the Line of Junction.
  8. The Building Owners contend they have a right of access to build their flank wall on the Line of Junction having served the required notice under Section 8.
  9. In his referral to the Third Surveyor the Building Owner’s Surveyor submitted:-
    1. that a reasonable interpretation of Sections 1 (5) and 8 (1) was as set out in View 1 of the alternatives in the P & T Guidance Note to Section 1 (5) i.e. “the majority view is that the Building Owner may enter and remain on adjoining land in order to build such a wall. He may do so upon the expiration of the one month and fourteen day notice period under Section 1 and Section 8 respectively unless an actual dispute arises, in which case the matter must first be determined by Surveyors appointed under Section 10,” the reasoning being that work undertaken as described in a notice served pursuant to Section 1 (5) is “work in pursuance of the Act”. The Building Owner may therefore enter upon the adjoining land, subject to serving notice of entry under Section 8. Access must not cause the Adjoining Owner unnecessary inconvenience and the Adjoining Owner is entitled to compensation for any damage to his property under Section 1 (7) (a) and for damage and loss as set out in Section 7 (2)”.
    2. that the Judgement in Davies –v- Wise and Wise was not a precedent and that the Judgement may have been different if both parties had been legally represented.
    3. “Works in pursuance of this Act” include the building of the wall on the Line of Junction.
    4. If the Adjoining Owner’s Surveyor’s views were correct it would lead to many cases where developers would be obliged to set back their building from the boundary by the width of the scaffold creating unsightly gaps between buildings, particularly in urban areas.
    5. Many construction schemes would become unviable if full site coverage could not be obtained
    6. If damage were occasioned by the erection of scaffolding etc compensation could be awarded under the provisions of the Act.
  10. T  The Adjoining Owner’s Surveyor submitted that:-
    1. the third view offered in the P & T Guidance Note Section 1 (5) was correct ie that “a Building Owner does not have a right to enter Adjoining Owner’s land under Section 8 for the purposes of building such a wall”, the reasoning being that “work in pursuance of this Act” means work in exercise of the authority conferred by the Act. The Act does not confer authority to build a wall wholly on the Building Owner’s land; he is entitled to do this anyway without the sanction of the Act (compare this with Section 2 where the Act confers rights to raise a party wall, which would otherwise be a trespass). A wall built under Section 1 (5) is therefore not “work in pursuance of the Act” and Section 8 (rights of entry) does not apply. The Act simply requires the Building Owner to notify the Adjoining Owner before building at the Line of Junction so that the Adjoining Owner is given an opportunity to dispute the position of the intended wall and for the dispute to be determined by Surveyors in accordance with Section 10. If an Adjoining Owner does not respond to a Section 1 (5) notice the Building Owner can proceed to build the wall after the expiration of the one month period but he may not enter any adjoining land without the express consent of the owner of that land.
    2. Her Honour Judge Pearl in the case of Davies –v- Wise and Wise on 6 October 2006 at the Barnet County Court decided that a right of access was not acquired on service of Notice under Section 8.A copy of the Judgement is appended.
    3. the building of the wall itself on the Line of Junction cannot be considered work in pursuance of the Act since it does not fall for any form of statutory settlement of the type envisaged in Section 10, the Building Owner wishing to build a wall entirely for his own benefit, at his own cost and on his own land. he cannot be prevented from building it and there is therefore no reasonable expectation for access onto the neighbouring land. The situation is different in respect of Section 1 (6) since it would be impossible to place normal foundations on the land of the Adjoining Owner without gaining access to it but clearly the extent would be severely limited to the extent of the projecting foundation only.
    4. It is inherently unreasonable for an Adjoining Owner to be forced into the position of accepting scaffolding being placed on their land, sometimes for months or years, for the purposes of building a property, perhaps of considerable value which, if scaffolding access were denied could not be built in the same form thereby considerably reducing its value, for example, consider an hotel with 10 or 12 bedrooms next to the boundary that could not be constructed in that form without scaffolding being placed on the neighbouring land. To accommodate scaffolding on the Building Owner’s land would involve the loss of these bedrooms. This contrasts with the position where a party wall is involved. That is a shared structure and it must be correct that, where appropriate, access for the purposes of carrying out lawful work to a party wall, a right is granted to access the Adjoining Owner’s property.
    5. Justice Brightman in Gyle Thompson & Others –v- Wall Street Properties Ltd 1973 stated on a similar issue “having regard to the function of Surveyors under Section 55 (now Section 10) and their power to impose solutions to building problems on non-assenting parties, the procedural requirements of the Act are important and the approach of Surveyors to those requirements ought not to be casual”. The Act is not a Developer’s Charter. There is no public interest in a developer being granted statutory rights of access over neighbouring land for the purposes of increasing their profit.
    6. Recent legislation drafted to have similar intent to the Party Wall etc Act, in reducing costly disputes, the Access to Neighbouring Land Act 1992 (ANLA) enables property owners to gain access onto neighbouring land for the purposes of maintenance and repair only - not for development. The ANLA encourages owners to reach agreement on access for maintenance and repair, and avoid the costs/risks associated with owners being difficult and bstructive.

      It cannot therefore be right, that the Party Wall etc Act 1996 (PWeA1996) would have been drafted four years later to undermine the ANLA, by allowing access onto neighbouring land in order to carry out development work on the Line of Junction

BRIEFING NOTE to Counsel for the Appellant Adjoining Owner in the case of an Appeal against an Award made by the Third Surveyor granting the Building Owner Rights of Access under Section 8 onto the land of the Adjoining Owner for the purpose of constructing a wall wholly on the Building Owner’s Land under Section 1(5) of the Act.


The Right of Access

Section 8(1) states “A Building Owner, his servants, agents and workmen may, during usual working hours, enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act and may remove any furniture or fittings or take any other action necessary for that purpose”.

Party Wall legislation as a whole. It has been around in a similar form to the 1996 legislation for over 160 years. The legislation has always concerned itself with the rights of Building Owners and the rights of Adjoining Owners.

In the context of the works themselves, as distinct from the process, the 1996 Act covers this under Sections 1, 2 and 6. Each of these Sections grant certain rights and they are not exclusively granted to Building Owners.

Section 1

This grants limited rights and only relates to a line of junction, which is not built on or is built on only to the extent of a boundary wall, not being a party fence wall nor the external wall of a building.

No right exists to build a party wall. A Building Owner may serve a Notice with the intention of building a party wall astride the line of junction, but this can only be constructed with the consent of the Adjoining Owner. Section 1(5) does not grant a right for a Building Owner to build a wall wholly on his own land at the line of junction because the Building Owner cannot be prevented from building on his own land. There is only an obligation on the Building Owner to serve a Notice informing the Adjoining Owner of his intention and after one month has expired, the Building Owner may proceed and build that wall without any requirement to obtain the Adjoining Owner’s consent. The adjoining owner has no right to challenge the Building Owner’s choice of building materials, design or height of the wall or require the Building Owner to agree any of these details with him.

The only right granted exists under Section 1(6), which includes a right to project footings onto the land of the Adjoining Owner, but only to the extent that these are necessary.

Section 2

This Section commences by setting out the rights that a Building Owner can exercise in 2(2)(a) through 2(2)(n). According to Section 3, prior to exercising any of the rights conferred by Section 2, the Building Owner shall serve a “Party Structure Notice”. Section 5 states that if the Adjoining Owner does not consent in writing within fourteen days after the service of a Party Structure Notice, a deemed dispute arises. Because this specifically relates to a “Party Structure Notice” as opposed to a “Notice”, it can only relate to notice under Section 2.

Section 6

Section 6(3) gives a right to a Building Owner to underpin, strengthen or safeguard the foundations of an Adjoining Owner’s building following the obligation to serve a Notice under Section 6(1) and 6(2). Section 6(7) defines the procedure regarding deemed disputes having arisen.

There is a right granted also to the Adjoining Owner to dispute the necessity of any underpinning, strengthening or safeguarding proposed by the Building Owner.

In the case of both Section 2 and Section 6 there is a specific deemed dispute if the Adjoining Owner, having received a notice, takes absolutely no action. The Section 10 resolution process then falls into place to achieve a statutory determination.

In essence, the rights granted in Section 2 and Section 6 are essential because they authorise the Building Owner to undertake work, which would otherwise constitute a trespass. For example:
  1. Underpinning, strengthening and safeguarding the Adjoining Owner’s foundations;
  2. Raising the half of a party wall that stands on the Adjoining Owner’s land;
  3. Underpinning the half of a party wall footing that stands on the Adjoining Owner’s land;
  4. Cutting into a party wall because there is nothing in the Act that requires the cutting in to be limited to the centre line of the wall.
Access onto the Adjoining Owner’s land may reasonably be required to undertake any of these works and for some of the obvious works would be an absolute requirement.

Section 1 is fundamentally different. The Section 3 and Section 6(7) provisions regarding deemed disputes do not apply to Section 1; there can be no deemed dispute under Section 1.

own cost and solely for his own use he cannot be prevented from doing so. He needs only to give the Adjoining Owner one month’s notice of his intention under Section 1(5) and can then proceed. There is no requirement for Surveyors to be appointed or for any kind of Award or statutory consent.

Section 1(6) grants a right to trespass with projecting foundations. Once again, this only requires one month’s notice and after the expiration of one month these works can proceed. All of this is subject to an absolute obligation under Section 1(7) to compensate any Adjoining Owner and any adjoining occupier for any damage occasioned by the building of the wall and if it applies the placing of any footings or foundations on the Adjoining Owner’s land.

Section 1(8) permits any dispute that arises between the Owners and these will not be deemed disputes, but actual ones being determined under the Section 10 procedure. Looking at the process outlined under Section 1, the only potential disputes could be:
  1. Where the line of junction might be and this is a boundary dispute and not one for determination under the Act;
  2. Whether the extent of any projecting footings under Section 1(6) are “necessary”;
  3. What level of compensation should be paid for damage under Section 1(7).
The experts for the Respondent refer to sections 7(2) and 7(5) as referring to works “executed in pursuance of the Act”. Section 7(2) being a provision relating to compensation does not apply in the case of section 1, as this section has its own compensation provisions under section 1(7).

Section 7(5) states the building owner may only build in accordance with what has been determined under an award or agreed between the owners. This can only apply to determinations following the deemed dispute process under section 3 and 6(7).

In Pursuance of the Act

In order to understand the meaning of “in pursuance of the Act”, it is helpful to look to the functions and effect of the earlier legislation on which the 1996 Act is based. Part IX of the 1930 Act and Part VI of the 1939 Act incorporated the earlier Party Wall provisions and the introduction to those sections referred to “Rights of Building and Adjoining Owners” and this has always been the essence of the legislation. The legal maxim that an Englishman’s home is his castle demonstrated that, subject to compliance with certain statutory requirements – planning, buildings regulations etc; a property owner is free to choose what he does with or on his own land. He has always been entitled to protect his land from unauthorised intrusion by others through the laws of trespass.

The courts have always protected the Building Owner’s ability to exercise those rights following due process, notwithstanding an Adjoining Owner’s reluctance to agree to those works. This is because the Act empowers Surveyors to make decisions about the carrying out of works by making Awards, notwithstanding potential objection from their Appointing Owners. The statutorily appointed Surveyors are required to act strictly within the statutory restraints imposed upon them by the Act.

Mr Justice Brightman said in Gyle-Thompson and others v Wall Street (Properties) Limited (1973), “Having regard to the functions of Surveyors under Section 55 (now Section 10) and their power to impose solutions to building problems on non-assenting parties, the procedural requirements of the Act are important and the approach of Surveyors to those requirements ought not to be casual.”

Similarly, Surveyors must not be casual about adopting a wider interpretation to the statutory provisions than was intended by Parliament.

The meaning “in pursuance of the Act” must be considered strictly in accordance with the principle that the Act is about the grant of rights. It also imposes obligations and they are different from granting rights.

The meaning “in pursuance of the Act” must be considered strictly in accordance with the principle that the Act is about the grant of rights. It also imposes obligations and they are different from granting rights.

The manner in which the Owners exercise those “rights” will form the basis of the Surveyors determination or Award to resolve any “dispute”. Section 10(12)(a) points out that an Award may determine “the right to execute any work”. The Award, in the absence of an Adjoining Owner’s consent, sets out the terms of the permission that Adjoining Owner gives regardless of whether he wishes to.

This has always been my understanding of the fundamental aspect of the Party Wall legislation. The 1996 Act does not introduce itself as an Act about rights of owners, rather “an Act to make provision in respect of party walls and excavations and construction in proximity to certain buildings and structures; and for connected purposes”.

Is there anything about those introductory words that should lead us to conclude there has been a change to the fundamental principles which previously applied, particularly in the context of Section 1(5)?

The 1855 Act had provisions under Section XXXVIII which remain substantially the same in the 1996 Act as regards the effects of Sections 1(2), 1(5) and 1(6). A party wall could only be built on previously unbuilt ground with consent. Without that consent, the Building Owner can build on his own land and can project footings onto the Adjoining Owner’s land. All this work may be done at the expiration of 1 month’s notice without any consent from the Adjoining Owner or an Award.

It is important to note that the 1855 Act did not require notification of a 1(5) wall. It required notice of an intention to build a party wall astride the line of junction and in the absence of a consent which was required to prevent a trespass, the Building Owner had to proceed to build entirely on his own land.

Access provisions existed in the 1855 Act under Section XXXVI and a power of entry was granted for “the execution of any works authorised by this Act”. It went on to define what constituted authorised works by the words “that if such work has been duly authorised, either by the consent of the parties competent to give such consent or by the Award”.

If the Building Owner’s works were not works which required the Adjoining Owner’s consent or an Award made in accordance with the Act, they were not works authorised by the Act because they were works that the Building Owner did not need to rely upon statutory rights to undertake.

In the 1894 Act, Section 87(5) introduced what we recognise as Section 1(5) imposing an obligation upon a Building Owner, desiring to build solely on his own land, to serve a 1 month Notice before commencing that construction.

Section 87(6) stated that in such case, the Building Owner may proceed and shall have the rights, after 1 month’s notice, to project footings onto the Adjoining Owner’s land subject to making compensation for any damage occasioned thereby. A Section 87(5) or 87(6) Notice did not give rise to any deemed dispute and did not require an Award or the Adjoining Owner’s consent, so in line with the 1855 provisions, building a Section 87(5) wall was not work authorised by the Act.

Is there any reason to conclude that the provisions under the 1996 Act have changed those earlier fundamental principles? Building a 1(5) wall is something a Building Owner can do because he is entitled to build on his own land. No Party Wall legislation has ever stated or even implied that he needs to seek his neighbour’s consent to build a wall on his own land. It is not work “authorised by the Act” and never has been, so it cannot be work he can only undertake because the Act grants him a right to do so and it cannot therefore be said to be work “in pursuance of the Act”.

In the case of Davies & Sleep v Wise & Wise in Barnet County Court in 2006, Her Honour Judge Pearl sought a statutory interpretation of those words, and referred to the authority of Saul v Norfolk County Council 3 WLR [1984] in which the Court of Appeal stated that “in pursuance of” should be interpreted as “in exercise of the authority conferred by”.

This is a similar interpretation as in the 1855 Act with specific reference to circumstances in which the power of entry could be exercised.

If you adopt the view of the Respondents’ experts, which is that a Section 1(5) Notice gives rise to a right of access to build the wall, this leads inevitably to a number of conundrums which cannot be satisfactorily resolved.

This would include the question of why access should be permitted to build a wall at the line of junction (as under 1(5)), for example, to build a domestic single-storey extension, but no right can be claimed to raise a wall on an existing extension at the line of junction to add additional floors.

If the premise that a Building Owner is entitled to go onto his neighbour’s land, build a wall from foundation up to a given level, despite the neighbour’s reluctance to agree and purely for the Building Owner’s benefit, why should a similar right not exist to enable that wall to be raised? There can be no dispute that raising such a wall is entirely outside the provisions of the Act.

The second conundrum would involve a situation in which a line of junction 15 metres in length has a 5metre long building centered on the line of junction with a fence running off both ends of that building, the Building Owner wishing to demolish that building and constructing an alternative, say 15 metres long extending along the entire line of junction. Section 1 can only apply where the fence stands but not where the building stands because there is already an external wall of a building at the line of junction. This implies that access for scaffolding can be imposed on the Adjoining Owner alongside the fence but not alongside the previous building. This is entirely illogical and is bound to be extremely confusing for a Building Owner to understand but it is an inevitable consequence of adopting an incorrect interpretation of the Act in the first instance. If, in the alternative, the starting point is that access was never intended to apply in such an instance then none of these inconsistencies arise.

The respondents’ experts also submit that whilst the Act does not confer a “right” to build a wall entirely on the building owners land, it may not be built until appointed surveyors have made an award, thus making the work “authorised”. As I have outlined above, there is no requirement for the adjoining owner to consent, or in the absence of consent, for surveyors to be appointed to determine a statutory consent.

The party wall legislation has always been based in equitable resolution. Where a party wall is raised or underpinned, either of which might legitimately require access onto the adjoining owners land, the adjoining owner at least has the right to make use of the work at a later date, subject to payment for the additional use.

A wall built under section 1(5) solely benefits the building owner. There is no limit to the height of wall that might be constructed, so the inconvenience and disturbance to the adjoining owner could be substantial. There is no moral justification for relaxing the laws of trespass in such instances. The building owner must seek the adjoining owner’s consent for having access onto his land and if the adjoining owner is not prepared to grant that consent, the building owner may have to build the wall from his own side, if it is a single story wall, and if scaffolding is essential due to height, the building owner must adopt a design that enables him to develop from within his own curtilege. The party wall legislation cannot be a developer’s charter.

Alex  Schatunowski  FRICS

BRIEFING NOTE

Briefing to Counsel for the Respondent Building Owner that is seeking access onto the Appellant Adjoining Owner’s land with scaffolding to build a wall described in Section 1(5) of the Party Wall etc Act 1996

Scenario

The scenario involves a Building Owner who served Notice of his desire to build in accordance with Section 1(5) of the Act on the line of junction a wall placed wholly on his land. A dispute subsequently arose between the Building Owner and Adjoining Owner under Section 1(8) and each party appointed a surveyor under Section 10(1)(b) and the two appointed surveyors selected a third surveyor.

The two appointed surveyors could not agree whether the Building Owner may have access onto the Adjoining Owner’s land with scaffolding for the purposes of building the wall and they referred the matter to the third surveyor. The third surveyor agreed an Award with the Building Owner’s surveyor permitting the Building Owner to build the wall wholly on his land at the line of junction and permitting him and his contractor access onto the Adjoining Owner’s land for the purpose of facilitating the building of the said wall. Access would be permitted in accordance with Section 8 of the Act.

The Adjoining Owner has appealed against the Award in the County Court under Section 10(17) and is seeking to have the Award set aside. The Adjoining Owner’s appeal is understood to be on the basis that the appointed surveyors/third surveyor were wrong to allow access and/or do not have statutory jurisdiction to award access onto the Adjoining Owner’s land for the purposes of building a wall under Section 1(5).

Briefing to Counsel as to why the appointed surveyors are entitled to award that the Building Owner may have access onto the Adjoining Owner’s land It is anticipated that the main argument that the Appellant Adjoining Owner will put forward will relate to the interpretation of the wording in Section 8(1) of the Act and of the words “for the purpose of executing any work in pursuance of this Act” in particular. It is anticipated that Counsel for the Appellant will be relying upon similar arguments to those put forward by the Appellant in the case of Davies & Sleep v Wise & Wise in Barnet County Court in 2006, which was heard by Her Honour Judge Pearl. (A copy of the judgment is attached.)

It is the experts’ view that the decision in Davies & Sleep was incorrect and that the Act does authorise access onto an Adjoining Owner’s land to facilitate the building of a wall wholly on the Building Owner’s land under Section 1(5). The reasoning is set out below.

In describing work in the context of the Act, the Act uses two principal phrases, namely:
  1. Work in pursuance of the Act; and
  2. Work in exercise of rights conferred by the Act.
Section 8 (1), which, of course, deals with the right to enter on the Adjoining Owner’s land, states that he may “enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act”. Other notable uses of the phrase are as follows:
  • Section 7(2), by which the Building Owner has to compensate for any loss or damage by reason of any work executed in pursuance of the Act;
  • Section 7(5), by which any works executed in pursuance of the Act shall comply with statutory requirements and be executed in accordance with plans, sections and particulars as have been agreed between the owners or determined by appointed surveyors in an Award;
  • Section 17, by which any sum payable in pursuance of the Act shall be recoverable summarily as a civil debt.
Notable uses of the phrase “work in exercise of rights conferred by the Act” are as follows:
  • Section 7(1), by which a Building Owner shall not exercise any right conferred on him by this Act in such a manner or at such a time as to cause unnecessary inconvenience to an Adjoining Owner or Adjoining Occupier;
  • Section 11(4)(5), whereby provisions are set down for work that is carried out in exercise of the right mentioned in Section 2(2)(b);
  • Section 11(6), whereby the building Owner has to pay a fair allowance in respect of disturbance and inconvenience should he lay open the adjoining premises in exercise of the right mentioned in Section 2(2)(e);
  • Section 12(1), whereby an Adjoining Owner may serve a Notice requiring the Building Owner to give security before he begins any work in the exercise of rights conferred by the Act;
  • Section 20, which defines the Building Owner as an owner of land who is desirous of exercising rights under the Act.
The distinction that we draw between these two key phrases, namely work in pursuance of the Act and work in the exercise of rights conferred by the Act, is that the former refers to any work being undertaken lawfully having followed the procedural requirements of the Act whereas the latter only relates to work that is being undertaken in accordance with the rights conferred by Section 1(6), Section 2(2)(a) to (n) and Section 6(3).

We submit that in the context of Section 8(1), the phrase “work in pursuance of the Act” means that a Building Owner, his servants, agents and workmen may enter and remain on the Adjoining Owner’s land or premises for the purpose of executing any work in prosecution or fulfilment of the Act. In the case before us the Respondent Building Owner has complied with the statutory procedure and the work will be in pursuance of the Act. The surveyors therefore do have statutory jurisdiction to award access onto the Appellant Adjoining Owner’s land assuming, of course, the surveyors agree that access is reasonably necessary in order to facilitate the work. (See footnote.)

Section 1(5) of the Act states that “if the Building Owner desires to build on the line of junction a wall placed wholly on his own land, he shall at least one month before he intends the building work to start, serve on any Adjoining Owner a Notice which indicates his desire to build and describes the intended wall”.

The Building Owner therefore has an obligation to serve Notice. He is following the requirements of the Act when he serves Notice. Once he has done so and proceeds with this works, he is carrying out work “in pursuance” of the Act and he is entitled to enjoy the access provisions afforded to him in Section 8(1).

Davies & Sleep v Wise & Wise

We suspect that the Appellant will refer to the case of Davies & Sleep v Wise & Wise, to support their claim. The case involved the appeal against an award made by the third surveyor under the Party Wall etc Act 1996 that allowed the Building Owner to have access onto the Adjoining Owners’ land to build a wall placed wholly on his land, much like the case before us. The Appellant’s Counsel referred to the authority in Saul v Norfolk County Council [1984], which concerned the Agriculture Act 1970. In that case the Court of Appeal felt that the ordinary and natural meaning of the phrase “in pursuance of the said part III” is “in exercise of the authority conferred by part III”.

The judge in Davies & Sleep held that the court must attach the same meaning in the context of the 1996 Act, namely “in the exercise of the authority conferred by the Act”. Some of the logic in her judgment we find difficult to follow but ultimately she concluded that the third surveyor was wrong to award access.

We submit that although the Act does not confer a right to build a wall wholly on ones own land, the work may not be lawfully proceeded with unless the provisions of the Act are properly followed. If the Building Owner has complied with the Act and the appointed surveyors make an Award then it is our view that the Act thence confers authority on the Building Owner to execute the works, in which case the work is “in pursuance of the Act” and the appointed surveyors will have jurisdiction to award access.

Picking up on two aspects of the judgment in Davies & Sleep:
  1. The judge noted that under the Access to Neighbouring Land act 1992 entry onto neighbouring land is granted by way of an Access Order where the court is satisfied that the works are reasonably necessary for the preservation of the whole or part of any part of any dominant land. The judge remarked that “I have no reason to conclude that the 1996 Act was enacted with the intention of driving a coach and horses through the Access to Neighbouring Land Act 1992”. Unfortunately it seems it was not explained to the judge that rights of entry to adjoining land under party wall legislation precede the 1992 Act. Section 53(1) of the London Building Acts (Amendment) Act 1939, part VI, contained almost identical wording to Section 8(1) of the 1996 Act. The 1996 Act simply replaced the 1939 Act, with some revisions, and extended it to the whole of England and Wales. The 1996 Act did not change anything in respect of the rights of entry that existed in the 1939 legislation. In our view the 1996 Act dovetails with the 1992 Act, albeit the two statutes take different approaches to the issue of access.
  2. The judge refers to the interpretation of the words “in pursuance of the Act” in the context of Section 7(2) of the 1996 Act. We would argue that if the words were interpreted as meaning “in exercise of rights conferred by the Act” it would limit the obligation for the Building Owner to compensate for loss or damage only to those works described under Section 2(2), Section 1(6) and Section 6(3). That would be completely at odds with conventional thinking. It would also be a complete reversal of the London Building Acts (Amendment) Act 1939, in which only excavation work under Section 50 gave rise to a duty to compensate for loss or damage. That would surely be perverse because the 1996 Act, so far as we are aware, was intended to broaden out the duty to compensate for loss or damage. Similarly, if one was to apply that interpretation of the words to Section 7(5), it would mean that only work under Section 1(5), Section 2(2) and Section 6(3) would be subject to a duty to comply with statutory requirements and a duty to be executed in accordance with agreed plans, sections and particulars agreed between the owners or determined in an Award. Again, that surely cannot be right.
Summary

In summary, the 1996 Act sets out a procedure that a Building Owner must comply with before he may lawfully build a wall wholly on his land at the line of junction that was not previously built upon. If he complies with that procedure the work will have “the authority conferred by the Act” and will be “in pursuance of the Act”. One authority conferred by the Act is the right of entry onto the adjoining owner’s land. The appointed surveyors/third surveyor do, therefore, have jurisdiction to Award access onto the Adjoining Owner’s land.

Footnote

A drawing has been produced of the lands in this hypothetical case. The drawing appears to show that the Building Owner proposes to take down his freestanding brick boundary wall and timber fence, which stand on the rear part of his land at the boundary, and replace them with what is assumed to be an imperforate solid wall wholly on his land tight up to the boundary. The drawing also shows the position of the proposed scaffolding to be erected on the Adjoining Owner’s land. For the purposes of this briefing, we have assumed that it is reasonably necessary for the Building Owner’s contractor to have access onto the Adjoining Owner’s land in order to be able to work safely, with reasonable skill and care and to ensure good quality workmanship, as is to be expected on any normal building project.

Graham North FRICS MCIArb and Aidan Cosgrave BSc (Hons) MRICS

IN THE
READING COUNTY COURT
IN THE MATTER OF AN APPEAL AGAINST A PARTY WALL AWARD

BETWEEN:

MR & MRS GREEN

Appellants

- and -


MR & MRS BROWN

Respondents

 

SKELETON ARGUMENT ON BEHALF OF THE RESPONDENTS

 

Introduction
  1. The Appellants, Mr and Mrs Green, have brought this appeal against a Party Wall Award published by the Third Surveyor. This skeleton argument is served on behalf
  2. The background can be summarised as follows:
    1. The Appellants and Respondents own adjoining premises.
    2. The Respondents properly served a notice pursuant to section 1(5) of the Party Wall etc Act 1996 (“the Act”) stating their intention to build on the line of junction between the two properties.
    3. The Appellants accepted that the Notice was valid, but dissented to the proposed works.
    4. The parties appointed surveyors pursuant to section 10 of the Act.
    5. The two surveyors were unable to reach an agreement in relation to access to the Appellants land for the purposes of building the proposed flank wall. The matter was referred to the Third Surveyor who granted the Respondents and/or their contractors access onto the Appellants land for the purposes of constructing the wall.
    6. The Appellants now appeal against that Award on the grounds that sections 1(5) and 8 of the Act do not entitle a building owner to access land of an adjoining owner.
The Act
  1. So far as presently relevant, the Act provides as follows:

    1 New Building on Line of Junction
    (5) If the building owner desires to build on the line of junction a wall placed wholly on his own land he shall, at least one month before he intends the building work to start, serve on any adjoining owner a notice which indicates his desire to build and describes the intended wall.

    (6) Where the building owner builds a wall wholly on his own land in accordance with subsection (4) or (5) he shall have the right, at any time in the period which-
    1. begins one month after the day on which the notice mentioned in the subsection concerned was served, and
    2. ends twelve months after that day to place below the level of the land of the adjoining owner such projecting footings and foundations as are necessary for the construction of the wall.
    (7) Where the building owner builds a wall entirely on his own land in accordance with subsection (4) or (5) he shall do so at his own expense and shall compensate any adjoining owner and any adjoining occupier for any damage to his property occasioned by-
    1. the building of the wall;
    2. the placing of any footings or foundations placed in accordance with subsection (6).
    (8) Where any dispute arises under this section between the building owner and any adjoining owner or occupier it is to be determined in accordance with section 10.

    8 Rights of Entry
    (1) A building owner, his servants, agents and workmen may during usual working hours enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act and may remove any furniture or fittings or take any other action necessary for that purpose.

  2. The critical part of section 8 is the grant to the building owner of rights of entry ‘for the purposes of executing any work in pursuance of the Act’.
  3. There is some authority that deals with the scope of section 8 of the Act. That authority is not binding upon this Court and was made following a hearing at which the appellants were represented by counsel and the respondent appeared in person. As such, it is unlikely that the critical issue was fully and properly ventilated. Accordingly, and notwithstanding the decision of Her Honour Judge Pearl in Davies & Sleep v Wise & Wise (unreported 10 October 2006), it is now proper and appropriate for this Court to fully consider the issue before it.
The Respondent’s Submissions
  1. The Respondents seeks to uphold the decision of the Third Surveyor. The Respondents accept that section 8 of the Act does not purport to give party wall surveyors carte blanche to authorize access to adjoining property and that it is necessarily limited in its application to access ‘for the purpose of executing any work in pursuance of this Act’.
  2. The Appellants and Respondents part company over the issue of whether the building of a flank wall at the line of junction constitutes ‘work in pursuant to this Act’. For the reasons that are set out below, it is the Respondent’s case that it is.
The Decision in Davies & Sleep v Wise & Wise
  1. In Davies & Sleep v Wise & Wise, HHJ Pearl held:

    “By section 8 of the Act the building owner may have rights of entry in certain circumstances ‘for the purpose of executing any work in pursuance of this act.
  2. I was referred to the authority of Saul v Norfolk County Council 3 WLR [1984] 84 on the statutory interpretation of these words in that case the Court of Appeal stated:

    “The draftsman of section … chose to add the words in pursuance of the said Part III’ these words cannot be in our judgment otiose. Some force must be given to them. If they are given their ordinary and natural meaning … the ordinary and natural meaning is, in our judgment ‘in the exercise of the authority conferred by Part III.”

    It follows that this court must attach the natural and ordinary meaning to these words, namely ‘in exercise of the authority conferred by the Act’. To this extent the jurisdiction of the surveyor is narrow.

    Section 10(10) of the Act provides that …

    The respondent in his skeleton referred me to this section. Although this section gives the surveyor wide jurisdiction to settle any dispute this must not be confused with the narrow jurisdiction to confer rights.

    If this were not the case the surveyor would for example have a power to redraw boundaries between properties. This is plainly not the case and in recognition of his limited authority Mr Carter himself recognizes that it is not his role to settle a boundary dispute.”

  3. The Respondents accept that the decision of the Court of Appeal in Saul v Norfolk County Council is binding authority in relation to the legislation then under consideration, i.e. the Agriculture Act 1970.
  4. The Respondents submit that the decision in Davies & Davies is wrong and should not be followed:
    1. As a judgment of the County Court, HHJ Pearl’s decision is not binding on this Court.
    2. Given the circumstances in which it was made, including the fact that the respondent was unrepresented, it should not be regarded as persuasive.
    3. The comparison with the Access to Neighbouring Land Act 1992 (“the ANLA”) is misplaced and wrong. Whilst the Act post-dates the ANLA, section 1(5) and 8 of the Act reproduces provisions of the London Building Acts (Amendment) Act 1939. As such, the Act does not drive a coach and horses through the ANLA but deals with a different issue. There is no sensible reason to interpret the access provisions of the Act in accordance with the purpose of the ANLA.
    4. The suggestion (set out above from the judgment) that the respondent’s position would give surveyors the power to re-draw boundaries is simply wrong. By enabling access to be given for a temporary period whilst a wall is constructed does not constitute ‘re-drawing boundaries’.
    5. At page 7 of the judgment, HHJ Pearl remarked that ‘the respondent does not argue that he requires access to do works as defined by sections 1, 2 or 6 of the Act’. It may have been that the respondent (who was in person) did not properly describe why access was sought. As the respondent had served a notice under section 1(5) of the Act, the judges remark was incorrect.
    6. It appears that the appeal was not argued on the basis that section 1(5) works are works pursuant to the Act. As such, it should be treated with a great deal of caution by this Court and not followed.
The Respondent’s Interpretation of the Act
  1. The Respondents do not accept that a proper interpretation of the phrase in section 8(1) of the Act ‘in pursuance of the Act’ is ‘in the exercise of authority conferred by the Act’ as found by HHJ Pearl. The Respondents say so for the following reasons:
    1. The Act itself makes use of two phrases ‘work in pursuance of the Act’ and ‘work in the exercise of rights conferred by the Act’, the latter having a striking resemblance to the Court of Appeal’s interpretation of the former in Saul.
    2. The phrase ‘work in pursuance of the Act’ appears in sections 7(2), 7(5), 8(1) and 17.
    3. The phrase ‘work in exercise of rights conferred by the Act’ appears in sections 7(1), 11(4)(5)(6) and 12(1).
    4. One must presume that the legislature intended the different phrases to have different meanings and to be appropriate for different
    5. If HHJ Pearl’s interpretation is correct, access would only be granted by section 8(1) in circumstances where rights are conferred by the Act, i.e. sections 1(6), 2(2) and/or 6(3). Similarly, there would be no right to compensation an adjoining owner for loss or damage caused by works unless those works were carried out under sections 1(6), 2(2) and/or 6(3). That plainly is not the intention of the Act.
  2. Accordingly, the Respondent does not accept that the application of the Court of Appeal’s interpretation of the phrase ’work in pursuance of the Act’ in Saul is appropriate to the Act and submits that HHJ Pearl’s following of that authority without deeper consideration of the same was wrong.
  3. It is submitted that there is a distinction between rights, such as the right to build a flank wall entirely on one’s own land’, which are regulated by the Act; and rights, such as the raising of a party wall that a building owner would otherwise have no entitlement to do, that are conferred by the Act.
  4. The Respondents would define ‘work in pursuance of the Act’ as all works to which the statutory regime (namely notices, statutory compensation and the section 10 dispute resolution) provided by the Act apply, namely all works described in sections 1, 2 and 6.
  5. It is simply wrong to suggest that a wall to which section 1(5) relates and in respect of which the Act obliges a building owner to serve a notice on its adjoining owner is not work in pursuance of the Act.
  6. The construction wholly on the building owner’s land of a wall on the line of junction is a matter that is regulated by the Act. Notice is required to be served (see section 1(5)); if and in so far as damage is caused to the adjoining owner’s property by the construction of a section 1(5) wall, the building owner is to compensate the adjoining owner (see section 1(7)); in so far as a dispute arises, that dispute is to be resolved in accordance with section 10 (see section 1(8)).
  7. Having served a notice in relation to the intended construction of a section 1(5) wall, the construction of said wall is, it is submitted, work pursuant to this Act.
  8. In the alternative, if the Court accepts that section 8(1) ‘work in pursuance of an Act’ should be interpreted as ‘work in exercise of authority conferred by the Act’, the Respondent submits that as the Act now regulates the construction of a section 1(5) wall by the requirement for service of a notice, there is no longer any general right to build such a wall without compliance with the Act.
  9. As such, the building of a section 1(5) wall is only possible as a result of the statutory authority conferred upon the building owner by the Act. As such, section 8(1) ought to permit access to adjoining land for the purposes of construction of the same.
Other Considerations
  1. This is a case in which it is not possible to safely and properly build the wall at the line of junction without access to the adjoining owner’s land. Access is not sought because it is more convenient, but because it is necessary.
  2. To suggest, as has been suggested by the Appellants, that section 8 does not grant a right of access for such construction would effectively prevent the Respondents from fully developing their land. That was never the intention of the Act which clearly contemplates the construction of walls at (and not several feet away from) the line of junction (see section 1).

JESSICA STEPHENS
24 February 2009


BETWEEN:

IN THE
READING COUNTY COURT

MR AND MRS GREEN

Appellants

- and -


MR AND MRS BROWN

Respondents

 

SKELETON ARGUMENT ON BEHALF OF THE APPELLANTS

 
  1. This is the Appellant’s appeal under section 10(17) of the Party Wall Etc. Act 1996 (“the Act”) against the Award made by the Respondent’s Surveyor and the Third Surveyor.
  2. The crux of this appeal is whether the Respondent can pray in aid the Act in order to make lawful that which would be a trespass at common law (namely the placing of scaffolding on the Appellant’s land, and the use of that scaffolding, for the construction of a wall solely on the Respondent’s land).
  3. The Law

  4. Although trite, the common law position should be noted. Absent permission from the Applicant, the Respondent would have no right at common law to enter the Appellant’s land for the purpose now proposed.
  5. Regardless of the Act, the Appellant could grant such permission or licence to the Respondent whether gratuitously, or in consideration for an appropriate payment. Save for London (where the London Building Acts applied similar provisions to the Act), there can be no question but that this reflected the legal position throughout England and Wales for hundreds of years.
  6. It is also worth noting that statutory provision was made under the Access to Neighbouring Land Act 1992 giving landowners the right, in certain circumstances, to enter adjoining land for the purposes of repairing buildings on their own land. The absence of a right to enter adjoining land for the purpose of erecting a building or wall on one’s own land is, it is submitted, significant. The Access to Neighbouring Land Act would, after all, have been the obvious place to provide for a right of access to construct as well as merely to repair.
  7. As to the Act itself, the relevant sections are:

    “1 ...
    (5) If the building owner desires to build on the line of junction a wall placed wholly on his own land he shall, at least one month before he intends the building work to start, serve on any adjoining owner a notice which indicates his desire to build and describes the intended wall.

    (6) Where the building owner builds a wall wholly on his own land in accordance with subsection (4) or (5) he shall have the right, at any time in the period which-
    1. begins one month after the day on which the notice mentioned in the subsection concerned was served, and
    2. ends twelve months after that day to place below the level of the land of the adjoining owner such projecting footings and foundations as are necessary for the construction of the wall.
    (7) Where the building owner builds a wall entirely on his own land in accordance with subsection (4) or (5) he shall do so at his own expense and shall compensate any adjoining owner and any adjoining occupier for any damage to his property occasioned by-
    1. the building of the wall;
    2. the placing of any footings or foundations placed in accordance with subsection (6).
    (8) Where any dispute arises under this section between the building owner and any adjoining owner or occupier it is to be determined in accordance with section 10.

    8 (1) A building owner, his servants, agents and workmen may during usual working hours enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act and may remove any furniture or fittings or take any other action necessary for that purpose.”
  8. Limited right of entry

  9. It is section 8(1) which gives a building owner the right to enter land, which entry would otherwise constitute a trespass at common law.
  10. That right is limited in the sense that it only arises where the entry is “for the purpose of executing any work in pursuance of this Act”
  11. >In order for the Court to uphold the award in this case, it would have to be satisfied that the Respondent, in building a wall entirely on his own land, was executing work “in pursuance of” the Act.
  12. The Court of Appeal has previously considered the phrase “in pursuance of” (Part III of the Agriculture Act 1970) to mean “in exercise of the authority conferred by” – see Saul v Norfolk County Council [1984] 3 W.L.R. 84. This was considered by the Court of Appeal to be the “natural and ordinary meaning” of those words.
  13. Although not binding, HHJ Pearl in the case of Davies v Wise (unreported, Barnet County Court 2006) accepted the authority of the Saul case in relation to the same phrase used in the Act. It is submitted that her decision must be regarded as persuasive, particularly when the facts in that case were so similar to the current case.
  14. Work authorised by the Act?

  15. On that basis, the question becomes whether carrying out the construction of the intended wall is in exercise of the authority conferred by the Act.
  16. The answer to that question must be “No”. A building owner has a right at common law to build a wall entirely on his own land entirely without regard to the owner of adjoining land (save to the extent that the wall itself might constitute a nuisance).
  17. The only variations to that common law position which section 1 of the Act provides for are (1) a requirement to serve a notice prior to commencing work, (2) a right to put foundations for the wall in adjoining land (subject to service of the appropriate notice), and (3) a (statutory) right to compensation for both adjoining owner and adjoining occupier for any damage to their property caused by the building of the wall or the placing of foundations on the adjoining land.
  18. Thus it is clear that the only (relevant) work authorised by the Act under section 1 is the placing of foundations or footings on the adjoining land. The Respondent has a right under section 8(1) to access the Appellant’s land for the purpose of laying those foundations, but not for any other purpose.
  19. Conclusion

  20. The Act therefore does not permit the Respondent access for scaffolding to carry out his intended works, and the Appellant’s appeal should therefore be allowed, and the Award set aside or amended accordingly.

Nicholas Isaac
Counsel for the Appellant

THE JUDGE’S OPINION


The following represents my own view on the matters put before me and is not, in any way authoritative nor, I suspect persuasive. Although described as a Moot it is in fact to promote discussion on a matter that has not been decided by a higher Court, which is surprising.

This is a hypothetical ‘Appeal’ under Section 10 (17) of the Party Wall etc Act 1996.

Mr and Green and Mr and Mrs Brown were neighbours and the Browns decided they wanted to carry out some building work on, what the Act refers to, as the Line of Junction, in other words on their land but right up to the boundary and the Act provides for that.

The Browns served a Notice under Section 1(5) of the Act. Two Surveyors were appointed. The Browns wanted to come onto the Greens’ land to facilitate the building of the wall. The Two Surveyors couldn’t agree and a Third Surveyor was appointed, That Surveyor determined that the Browns should have a right of access onto Mr and Mrs Green’s land for the purpose of building the wall, the Surveyor taking the view that Section 8 (1) of the Act gives the power of entry to the building owners and it was against that determination that Mr and Mrs Green have now appealed. As I say there is no formal authority for this view and for practising Surveyors such as yourselves, in your professional activities, this is unhelpful in advising the parties involved in disputes.

There is a decision by Her Honour Judge Pearl in the Barnet County Court in October 2006 who decided that Section 8 (1) didn’t apply in respect of building works to which a Section 1 (5) notice was served. That decision is persuasive. All decisions of Judges have some degree of persuasion and it is always helpful to have the view of another Judge. She was referred in particular to a decision of the Court of Appeal in Saul and Norfolk County Council which concerned the interpretation of the words

“ in pursuance of the said…. Part 3 of the Act” in the now defunct Agricultural Act 1970. Because it is no longer in force I wasn’t able to have a look at Part 3 but it might have been interesting to see what it says because their Lordships, in that Case, took the view that if applied to Section 8 of the Party Wall etc Act, the wording, which says that a “Building Owner, his servants, agents and workmen may during usual working hours enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act” would be relevant. Their Lordships held that the wording “in pursuance of this Act” meant “the authority conferred by the Act.” that is, under the authority conferred by Part 3 of the Agricultural Act 1970. Her Honour Judge Pearl moved from there to say that this imposed upon her a restrictive approach. There is, in my view, a logical leap in her finding that Section 8 (1) did not apply. She was referred to the Access to the Neighbouring Land Act of 1986 and she felt that carried some weight and was helpful to her but with respect I don’t agree. I might have taken a different view had the Party Wall etc Act been enacted before the Access to Neighbouring Land Act. I am right in saying that the draftsman of the Party Wall Act was aware that the provisions of the Access to the Neighbouring Land Act but nonetheless chose a clearly different approach. What I think is of significance in the decision of Judge Pearl is firstly that the Respondents, the Building Owners who wanted access were unrepresented by Counsel. It does make a difference to matters which are not so much factual but are very much on the Law and the interpretation of the Law and as I understand the position the landowner was represented by Counsel who was experienced in that particular field. The second point is that the Respondents, the building owners, do not seem to have made the point very forcibly that they needed access. There was a suggestion that it would be nice to do some minor works but the point wasn’t made that they could not build the wall unless access was obtained. That again may have carried some weight to influence Her Honour Judge Pearl’s thinking. Whilst I have read the decision of Her Honour Judge Pearl I do not find it particularly persuasive and I need to look at the matter afresh

The Party Wall Act is an unusual Act and can be loosely described as a helpful Act; it is a dispute resolving Act. It is an Act which seems to enable people to build either on the boundary of their property or up to the Line of Junction without becoming embroiled in disputes with their neighbours that might result in costly litigation in the County Courts or the High Court. So it sets out various scenarios and provides a mechanism for resolving any disputes which might arise. In addition to the dispute resolving procedures in Section 10 there are also provisions for compensation where one party’s rights are interfered with and we have to bear that in mind because in interpreting the provisions of the Act we have to have some regard now to the purpose of that Act. There are various approaches to interpretation of Statute but one has to admit that in bygone days in many Cases Judges did not like the Law they were obliged to apply because it had become out of date, it no longer reflected the social mores of the time, so they flew in the face of an express Act or provision by interpreting it in a way that was probably never intended by the Parliamentary Draftsmen. More recently a more purposeful approach has come to the fore. I think it is right that you look to see what the legislator is hoping to achieve by the statutory provision and then interpret the Act in accordance with that approach. I have to say that although an Englishman’s home may no longer be his castle one should hesitate about granting rights over someone else’s land unless there is compelling reason to do so and actual statutory authority for doing so. Having said that, there are many cases where people can access your land such as for statutory undertaking, the police and there are various other statutory provisions now giving people rights over our property.

So what do the words “in pursuance of” mean in this context? Referring to the Saul Case it is binding authority. It is a decision of the Court on the Agricultural Act 1970. What that Case says is that the wording “in pursuance of the said Part 3” is not otiose, in other words it is necessary, and it is not surplus. It said you would have to give some meaning to it and that must be right. The meaning that you give to it is the ordinary and natural meaning of those words. I did have a look in the dictionary as to what ‘pursuant’ meant but unfortunately most dictionaries use fairly old-fashioned terminology and I suspect that if you were trying to say the same thing in everyday language, using vernacular, you might use very different words. What I don’t think Saul decides is that in every case where the wording “in pursuance of” arises in Statute it necessarily means “in exercise of the authority conferred by”. If that were right then the Draftsmen, as I said earlier, in drafting the Act and aware of the Saul wording, could have altered the words. This suggests to me that they were happy with the wording in that it meant something different. There is a danger when looking at a carefully drafted statute and gone through various processes where the wording has been carefully examined and then saying that word doesn’t mean that, it means something quite different. So what does it mean in this context of the Party Wall Act 1996 rather than in the context of the Agricultural Act 1970? It’s not a phrase that you might use in everyday speech. It is a word that crops up quite a lot in legal phraseology. We talk about serving a notice, served to Section whatever it is, and that doesn’t sit very comfortable with the wording in Saul “in exercise of the authority” There are various criminal offences, where for example, you can be convicted of doing something in pursuance of something else, carrying a gun in pursuance of a crime. That does not mean carrying a gun with the authority of committing a crime. It means that you are carrying that gun in order to use it in the commission of a crime. All that really suggests, as I said earlier, is that you have to look at the context and those words mean something, they define and to some extent restrict the meaning but it is the context both of the Section and the Act that defines what those words mean. If you look at the dictionary you get phrases like “proceeding from”, “in accordance with”, “in consequence of”. If we were using the vernacular you might say that it means “covered by”, “the person whose works may be covered by this Act or affected by this Act or regulated by the Act or to which this Act applies”. Any of those words are probably more or less appropriate to the interpretation of that phrase. It has been said by Counsel for the Respondent with some force that in other Sections of the Act there are express references to a right to do something. The phraseology used in Saul “of authority” is very close to the word “right” and it has been suggested by Counsel that because Parliament chose to use a different phrase it meant something other than an express right granted by the Act. I think that must be right. It is perhaps puzzling that in drafting the Act some express power was not granted under Section 1 to access neighbouring land and I put that to Counsel who said well yes but they didn’t mean it because there was already a catch all provision in Section 8 . It is noteworthy in Section 8 the word “any” is used and we have to assume that the Parliamentary Draftsmen knew what they were doing and that they had intended to restrict the statutory provisions, as indeed we see in other Sections, where rights are restricted in respect of some specific matters, and then they would have said so. If there is a limited right of access to go onto the land in Section 1 (6) to form foundations then if Parliament had intended to limit access under Section 1(5) it would have said so.

I think it is right to look again at the purpose of the Act. It is an Act to facilitate building including on the boundary.

It would make a nonsense of the Act if all landowner had to do was to say “no I am not going to let you on to my land” because the Building Owner will then have to move the wall back a sufficient distance to enable them to erect their scaffolding. I am not sure that is what the legislators intended. In my view, what the legislators intended was that the Building Owner could go right up to the Line of Junction and this Act provides the mechanism by which you could do that with compensation and dispute resolution procedures if agreement could not be reached. It is possible I suppose that you could build a wall by the overhand method but that would not be very satisfactory in Health and Safety concerns. It might also mean that neighbours being presented with a wall, which was not pointed, cement left all over and looking thoroughly unsightly. Why would Parliament seek to try and resolve disputes between parties leaving such glaring omissions as this? It is argued that Section 8 can only apply where something is authorised by the Act or a right is given by the Act and can only be done pursuant to the Act. Mr Isaac made the point that you don’t need the Act to authorise you to build a wall up to the Line of Junction you can do it anyway. I am not sure that is right because you cannot now and have not been for some considerable time entitled to build a wall straight off the Line of Junction. That right only arises when you have served a Section 1 (5) notice and the requisite period of time has expired. As Mr Isaac said, the Act does restrict the Common Law.

It is a difficult point and I have to say it is not one on which I can easily find one way or the other with great conviction. I have found almost equally but at the end of the day it seems to me that if I put aside the decision of Her Honour Judge Pearl, and give the controversial words in Saul their ordinary and natural meaning, interpreting the words in the context of this Act and that the purpose of the Act is to facilitate construction up to the Line of Junction then I have to find that Parliament intended that Section 8 (1) refers to any work in pursuance of this Act and “pursuance” in this Act covers those works, the right to which or the ability to carry out arises under Section 1(5) after a Section 1(5) notice has been served. For those reasons I find in favour of the Respondent and the Appeal is dismissed.

Notes by Keith Douglas. February 2009


COMMENTARY

Having listened to the arguments put forward by both Barristers the Judge recessed for fifteen minutes to consider his opinion and proceeded on the basis that the purpose of the Act is to facilitate works at the Line of Junction, which is considered misconceived. The Act principally does two things:-
  1. Specifically grant certain defined rights (disregarding the right of access) – in Section 1 (6), (Section 2 and Section 6 (3)).
  2. and

  3. Provides a machinery to regulate the way in which works close the boundaries should be carried out and by which this can be settled.
It is clear that the crucial consideration which swayed the Judge’s Opinion is that “the purpose of the Act is to facilitate construction”. Were it not for that misconception he would have formed a different view.

The Judge was also influenced by the fact that a landowner might need access in order to build the wall and that it must be wrong that he cannot have access. An Adjoining Owner could therefore hold him to ransom. However, it is not uncommon for one landowner to hold another to ransom. The concept of the ransom strip is a familiar one and it cannot be argued in ransom cases that the right itself does not exist simply because the exercise of that right might be particular prejudicial to a neighbour. That would be tantamount to saying that injunctions to restrain a developer from erecting a building in contravention of the Right to Light should never be granted. The fact that the neighbour is entitled to prevent the development from taking place by asserting his Right of Light does not in any way undermine the existence of that right.

The Judge considered that it would be nonsense if all the Adjoining Owner had to say was “no I am not going to let you onto my land”. He said that, for example, the police are allowed onto your land, but this hardly equates with a developer seeking access for the purpose of constructing a building, almost certainly with a view to making a profit.

The Judge decided that he was not bound to interpret “in pursuance of” as “in exercise of the authority conferred by,” reasoning that the words had to be read in context. He acknowledged however that he had been unable to read Part III of the Agriculture Act 1970 and thus he could not know the context in which the words were placed.

The Judge also made it clear that he might take a different view had the Party Wall etc Act 1996 preceded the Access to Neighbouring Land Act 1992. It is to be presumed that he had not taken into account the current Act is effectively the same as Part VI of the London Building Acts (Amendment) Act 1939.

It is accepted that access may be required onto an Adjoining Owner’s land for the purposes of excavating for necessary foundations and for work to a party wall or a party fence wall but the Act does not grant rights of access where there is already a building, perhaps awaiting demolition, on the Line of Junction nor where a Building Owner wishes to raise his flank wall higher than the Adjoining Owner’s building. If not in these two situations why in open ground?

Regarding the question of compensation to be paid in the event of access under Section 1 (5) and 8 (1), this is specific and the obligation, set down in Section 1 (7) is clearly limited to damage.

Many members left the Court certain that their opinion, access is granted by Section 8 (1) had been vindicated but, as the above commentary indicates, there is still much ground for doubt and the best advice, pending legal precedent, is for Building Owners to be made aware of the different interpretation of the relevant Sections and the risks presented thereby.

The contribution of District Judge G. Burgess to the debate is very much appreciated.



Keith Douglas


Thames Valley Branch Meeting. 25 March 2009

At this Meeting the Branch Members considered the arguments and opinions reproduced above and decided by a majority of 22 to 4 that Section 8(1) does NOT grant a right of access where a Notice under Section 1(5) is served

Further Comment

Section 1(5) does not grant a right. It imposes an obligation  to serve a notice.
Section 8(1)  refers to a building owner
Section 20 definition of a building owner is 'an owner of land who is desirous of exercising rights under this Act'
Since the owner of the land is not desirous of exercising rights he is not a building owner as defined and does not therefore qualify as a building owner for the purposes of Section 8(1), thus no access.

J. Batten MRICS