You wait years for some case law on the Party Wall etc. Act 1996 and then several come along at once.
Most disputes relating to works to party walls are resolved between the party wall surveyors themselves or occasionally with the assistance of a third surveyor. All of these decisions remain confidential.
Where the dispute goes further, it normally goes to the county court whose decisions are seldom published and, in the two cases mentioned here, contradictory!
Both cases involved the removal of plaster from a party wall and the question arose as to whether this constitutes work to a party wall. In the first case, His Honour Judge Bailey decided that removal of plaster did constitute notifiable work under the Party Wall Act. His reasoning was that the plaster was removed using mechanical tools and he considered it would have been almost impossible to use the tools without cutting into the party wall at some point if only to get access to the back of the plaster to start removing it.
The decision was also probably influenced by evidence that removal of the plaster had caused damage to the adjoining property by unkeying the plaster next door. That evidence was difficult to refute since the schedule of condition had not been taken prior to commencing removal of the plaster.
A second decision, in the same court but this time by HH Judge Knight, determined that the removal of plaster was not notifiable under the Party Wall Act. Judge Knight commented that if removal of plaster and its replacement were notifiable, “it would mean that in an untold number of cases a building owner who removed the plaster and replaced it would be bound to serve a party structure notice, and bring with it the full dispute resolution machinery of the Act”.
He went on to say that plaster is normally a soft, pliable mixture spread on walls or ceilings and often part of the preparatory work to decorating a property. The removal of plaster would not affect the integrity and function of the brick party wall, since its removal did not involve cutting into the party wall.
It is noteworthy that although the decision appears to contradict the decision of HH Judge Bailey, HH Judge Knight raised two caveats in relation to whether or not plaster formed part of the party wall. First, he indicated that in the case before him, the plaster could not have been said to affect the integrity and function of the brick party wall. Secondly, he found that removing the plaster did not involve cutting into the party wall. These comments leave open the situation where the plaster on a wall could be said to form part of the integrity and function of the wall. This might arise, for example, where a party wall is only one brick deep, quite old and possibly with loose mortar between the bricks. Whether or not originally intended, it would be possible for the plaster to be forming an integral part of the party wall.
If removal of the plaster did require cutting into the wall, or cutting into the wall could not be avoided because, for example, the plaster was cementitious and required quite vigorous removal, then even HH Judge Knight might conclude that plaster removal was notifiable under the Party Wall Act.
Fladgate is noticing that people are becoming more alert to the provisions of the Party Wall Act. As we stated in a previous article, there are more frequent requests for money to be deposited as security and one of the cases referred to in this article included a (successful) claim for damages because the works to the party wall were prolonged.
We would advise anyone carrying out works to a party wall to be very alert to the provisions of the Act and make sure that it is complied with.
In relation to plaster removal in particular, we recommend considering:
Frances Alderson, Partner, Fladgate LLP (firstname.lastname@example.org)