There was a two-storey end of terrace house in North London owned by Mr Sadiq and his neighbours, Mr and Mrs Louis. The appellant had commenced substantial works to his house, which caused damage to the party wall. The appellant had not complied with his obligations under the 1939 Act.
Held: The works carried out could never have been approved retrospectively. Evans LJ discussed the 1939 Act: ‘So the statutory scheme is clear. The building owner has certain express rights but these can only be exercised (i) with the adjoining owner’s written consent or (ii) in accordance with a valid award by the surveyor or surveyors appointed under s.55.’
Evans LJ reviewed the authorities and said: ‘The adjoining owner’s common law rights are supplanted when the statute is invoked which can have the effect of safeguarding the building owner from common law liabilities when he complies with the statutory procedures . . But if he commits an actionable nuisance without giving notice and without obtaining consent he cannot rely upon a statutory defence under procedures with which ex hypothesi he has failed to comply. If he does then give notice he will in due course acquire statutory authority for whatever works are approved or agreed but in my judgment this does not relieve him from liability for the continuing nuisance which he has unlawfully committed until such time as, and to the extent that such authority is obtained.’
As to the particular case: ‘So it cannot be said in my judgment that the works which created the nuisance were subsequently authorised whether by agreement or by surveyors under the statutory procedure.’
Judges:
Evans LJ
Citations:
[1996] EWCA Civ 935, [1997] 1 EGLR 1996
Statutes:
London Building Acts (Amendment) Act 1939
Jurisdiction:
England and Wales
Citing:
Cited – Selby v Whitbread and Co 1917
McCardie J considered the tension between the common law and statute: ‘An examination of the code shows that common law rights are dealt with in a revolutionary manner. The two sets of rights . . are quite inconsistent with one another. The . .
Cited by:
Cited – Rodrigues v Sokal TCC 30-Jul-2008
The parties owned either half of a semi-detached residence. The defendant had undertaken substantial redevelopment works, and the claimant sought damages under the 1996 Act for his failures to follow that Act. The issues had been taken to . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 03 November 2022; Ref: scu.140802