Delva Patman Redler’s Senior Partner, Alistair Redler acted as single joint expert witness in the recent case Ormiston Kilsby Vs Fattahi, which made clear that the courts will take non compliance with the Party Wall very seriously. An injunction was granted to remove the unlawful roof extension and this enphasises that engaging with the Party Wall etc Act 1996 is an obligation rather than an option.
David Nicholls of Landmark Chambers acted for the successful claimant. Here is his summary of the case:
The owner of a terraced house in Oxford started building a roof extension in November 2015 without the consent of his neighbour. Although the contract with the builders stated that the building owner was required to serve a notice under the Party Wall etc. Act 1996, he did not do so. When the neighbouring owner discovered that building work had commenced, she asked for it to stop, pending retrospective service of notices under the Act and the appointment of surveyors. The building owner voluntarily stopped work but he did not serve any notice under the Act nor did he agree to the appointment of a surveyor. Subsequently, the adjoining owner discovered that there had been trespasses and damage caused to her property.
After nearly 18 months of correspondence, the neighbouring owner commenced proceedings in the County Court seeking an injunction requiring the removal of the extension, an injunction restraining any future works without prior compliance with the Act, and damages for loss. Of particular concern to the neighbouring owner was the fact that her chimney had been damaged during the course of the building works and this prevented her from using a Rayburn appliance in her kitchen. Moreover, if the extension were to remain in situ, then her chimney would need to be repaired and, in order to comply with building regulations, it would have to be raised higher than the extension. This would disfigure the property and it was uncertain whether planning permission would be granted.
At the conclusion of a five-day trial, the circuit judge decided to grant a mandatory injunction requiring the removal of the extension, and she declined to award damages in lieu. The judge considered that allowing the extension to be completed would endorse the building owner’s assertion that his failure to comply with the Act was an innocent technical mishap, when in fact he had shown persistent disregard for the claimant’s rights and welfare. The failure to serve notice under the Act deprived the claimant of her statutory rights to have a voice in respect of the building works and she sustained interference with her property rights that were more than just minor damage to the roof. The judge also ordered the defendant building owner to pay the claimant’s costs on the indemnity basis from prior to the claim being issued owing to his poor conduct, which included making unfounded, baseless and irrelevant allegations against the claimant. This conduct was of a sufficiently high level of unreasonableness and inappropriateness to take the case outside of the norm.
Read the full judgement here: Ormiston-Kilsby v Fattahi judgment.