Party walls; failure to serve notice; mandatory injunction
Facts: the Defendant’s builders commenced work on a roof extension which included notifiable works, the Defendant having agreed in the building contract to take responsibility for serving the requisite notices, but not having done so. Damage was caused to the adjoining owner’s roof tiles, and to the flue/ extract for her Rayburn cooker, which also provided heating and hot water. The Rayburn was put out of use. Works were stopped, at a relatively early stage, when the adjoining owner complained, but it took several years for the action to come on for trial.
Decision: The court was obviously and distinctly unimpressed with the Defendant’s representation, but was also fairly scathing about the Defendant’s failure to acknowledge his responsibilities under the 1996 Act. In the circumstances, the Court concluded that the Defendant (by his builders) was liable both in trespass and nuisance, and, in the absence of any cogent argument against an injunction being granted, awarded the Claimant a mandatory injunction – i.e. requiring the building owner to remove his extension – and damages.
Comment: It is reasonably common for building owners who fail to comply with the notice obligations under the 1996 Act to say that they were not aware of those obligations, and that their failure is merely a technical default with no real consequences. This case shows that the Court will rarely be impressed with such a position. A building owner who has failed to comply with his obligations is generally well-advised to comply retrospectively in so far as that is possible/ agreeable, and to take constructive steps to put the adjoining owner in the position they would have been in but for the building owner’s default.
The full judgment can be found here
