Party Wall Act Case Law: Histead V Prosperity Developments
April 2013
Background
In April 2013, Prosperity Developments sought out and was granted planning approval for partial demolition of a domestic property in London, as well as the construction of a new three-storey site, with work including excavations and piling installation, which meant it was subject to section 6 (5) of the Party Wall Act.
Section 6 (5) refers to adjacent excavation and construction, calling on the building owner in question to serve on the adjoining owner a notice of his proposals at least one month before excavation work begins, stating whether the work will require underpinning or some other kind of strengthening or safeguarding of the foundations of the building/structure of the adjoining owner.
Demolition work on the London property began in June of that year without any notices being received by the adjoining owner.
Adjoining owner Histead instructed a party wall surveyor to email Prosperity’s agent and solicitor on two occasions to remind them of their obligations under the Act, warning that an injunction would be applied for if construction work was not brought to a halt.
However, demolition work continued and a JCB and piling rig were later delivered to the site, which prompted Histead’s surveyor to issue an urgent letter before claim to Prosperity’s agent, requiring that notice be given and an undertaking sought that piling work would not begin. Histead received no reply to this letter.
Piling work then began on August 23rd, the Friday before a Bank Holiday. Another letter was sent to Prosperity advising that an injunction would be applied for, while a planning enforcement officer also wrote to Prosperity advising that the works must stop until planning permission was obtained.
A caution was also issued that the site would be placed under regular monitoring, with a stop notice served if necessary. No response was received.
As a result, Histead was granted a without notice injunction to stop the works for one week, with a date set for a second hearing to reconsider. A consent order was then agreed upon to continue the injunction until full planning permission was in place with no conditions, an award was executed and notices were served, or until further order of the court.
A few weeks later, Prosperity applied to the courts to delete the condition requiring planning permission, saying that there was no need for it to continue as they had been on best behaviour since originally breaching obligations under the Act.
Furthermore, it was argued that the condition was agreed in error without full understanding of the consequences and, finally, that it was not appropriate for the injunction to be linked to planning permission compliance, since the two were unrelated.
Outcome
Prosperity’s application was refused by the court, on the grounds that the original injunction had been properly sought and obtained. It was not agreed that Prosperity had been on “best behaviour” because they had continued to display behaviour demonstrating continuing disregard for legal obligations after being served with the August injunction.
Additionally, work began despite clear notice of Prosperity’s obligations and it was clear that plans had been put in place to complete the project over a Bank Holiday weekend to avoid action being taken by the adjoining owner.
And finally, despite the fact that Prosperity had been in talks with the local planning authority no actual application had been made and it was felt that it should have been made a high priority to ensure that planning permission was in place, suggesting that there was a reluctance to comply with legal obligations and that there as a risk they could continue with this non-compliance if the injunction had been lifted.
Precedent
It’s worth paying close attention to this case if you’re planning a similar project in the future, as it clearly demonstrates the stern view that courts will likely take if you do attempt to circumnavigate official and legal processes.
Where notifiable works have started without notice being served, rest assured that courts will not hesitate to grant injunctions to stop them.
Developers need to be aware of the Party Wall Act requirements in terms of notice and the subsequent process of obtaining awards, as well as ensuring that statutory requirements are dealt with as early as possible in the development process.