Citizens expect that laws passed by Parliament should have strong objectives including the protection of those against whom a tort has been committed whether that be society or an individual. The Part Wall etc Act 1996 in its current form does not achieve that purpose. It is therefore necessary to amend the act to give it teeth in order to penalise those who breach the law. If this does not happen tortfeasors will continue to breach the law with impunity and that is simply unjust. It is therefore important to correct this situation by amending the law.
I would like to see an amendment to the Party Wall etc Act 1996 whereby sanctions are introduced against any party who does not properly engage the Act as the law requires. Currently the Act carries no such sanctions.
The idea behind the Party Wall etc Act 1996 (‘the Act’) is excellent because it provides, to both parties involved with a building project related to the wall, clear details of what work is to be carried out and provides the opportunity for professional surveyors to ensure that the work is carried out correctly and that where disputes arise there is a fair and professional mechanism for their resolution. Party wall legislation has been around since the early 1800s and the Act was a consolidation of earlier legislation (notably the London Building (Amendment) Act of 1939; the Metropolitan Building Act of 1844 and the Bristol Improvement Acts of 1840 and 1847).
The Act sets out the rules under which a ‘building owner’ (i.e. the party who wishes to carry out work) makes clear to an ‘adjoining owner’ (the party who shares the party wall) the precise nature of the works to be carried out. The law requires that the building owner serves notices on the adjoining owner either one or two months prior to commencement of work. If the adjoining owner dissents then a dispute is deemed to have arisen and the parties engage surveyors who will draw up an ‘award’ in order to settle the matter. If the respective surveyors cannot agree on an award then a ‘third surveyor’ is jointly appointed and acts as an independent professional who will make the award. This procedure serves as a protection for the adjoining owner.
HOWEVER the Act has a massive flaw! What if the building owner does not serve the requisite notices and simply starts work? The Act makes no provision for any sanctions against a building owner who does not comply with the provisions of the Act. If the building owner chooses not to engage the Act the only thing the adjoining owner can do is to seek civil remedies in the courts either by seeking an injunction and/or suing the building owner. Such procedures are extremely time-consuming and costly and seem grossly unfair to the adjoining owner who has been wronged.
Failure to serve notices does not in itself create a ‘cause of action’ so the only basis upon which the adjoining owner can sue is if some damage or loss has resulted from the works.
My point in making these observations is: why have a law which carries no sanctions for the party that breaches the law? Many adjoining owners will simply not have the wherewithal, time, energy and money to pursue an errant building owner so it would appear that the onus is placed upon the victim of a tort and not the tortfeasor. In my opinion the law should be amended in favour of the victim.