Court:

Status:

Current Legislation:

Historic Legislation:

Facts:

Wall Street owned the freehold of a warehouse at 57 – 63 Old Church Street, Chelsea. The flank wall of the warehouse also formed the rear garden wall of the houses at 43 – 53 Paulton’s Square. It was assumed that this wall was in the sole ownership of Wall Street.

Wall Street wanted to demolish the warehouse and erect houses and flats on the site. They had planned to reduce the height of the party wall by 15 feet.

Wall Street demolished all of the warehouse save for the flank wall. During the works a plaque was discovered (like this one) indicating that it was in fact a party wall. Wall Street then served a notice under the 1939 Act.

However that notice was served on the adjoining owners’ surveyor, and not the adjoining owners. An award was made which was again served on adjoining owners’ surveyor, and not the adjoining owners.

Wall Street started the works as soon as the 14 day appeal period had run. Gyle-Thompson and the other adjoining owners applied for an injunction to stop the works.

Wall Street argued, among other matters, that because the 14 day appeal period had run the adjoining owners could not challenge the award.

Decision:

 An injunction was granted.

The 1939 Act gave a building owner the right to raise a party wall, but did not grant the right to reduce it in height. The award was therefore bad in law.

Although the 14 day time period had run, this time period only applied to a valid award made within the surveyors’ jurisdiction. Here, reducing the height of the wall was not within the surveyor’s jurisdiction, and so the award was not valid.

Although the above grounds were sufficient to grant the injunction, the Court also considered the procedural irregularities; that the notice and the award were served on the adjoining owners’ surveyor (and not the adjoining owners), and that the adjoining owners’ surveyor had not been formally appointed in writing for the purposes of the 1939 Act.

The Court held that each of these issues would render the award invalid. The Court suggested to surveyors that they should ask for each other’s letter of appointment to check that they were properly appointed.

Comment:

This was a decision in relation to an interim application for an injunction, and is not of binding authority.

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