Histed v Prosperity Developments Limited – Party wall injunctions

image of party wall injunction

A recent case in the High Court has underlined that Building Owners who commence works in breach of the Party Wall Act will be given very little  latitude when an application for an injunction is made.

Background

 In April 2013 Prosperity Developments Limited (“Prosperity”) was granted planning approval for the partial demolition of his house in London and the construction of a new three storey building. The proposed works included excavations and the installation of pilings and were therefore subject to section 6(5) of the Party Wall etc. Act  1996.

Demolition works commenced in June. No notices had been received.

Histead instructed a party wall surveyor who emailed Prosperity’s  agent and solicitor on two separate occasions reminding them of Prosperity’s obligations under the 1996 Act and warning that if works were not stopped Histead would apply for an injunction.

Once demolition was completed a JCB and a piling rig were delivered to site. An urgent letter before claim was sent to Prosperity’s agent requiring notice to be given in accordance with the Act and seeking an undertaking that piling work would not commence. No reply was received.

Prosperity began piling work on 23 August which was the Friday before a bank holiday.

Histead wrote again cautioning Prosperity that he would apply for an injunction. On the same day a planning enforcement officer wrote to Prosperity informing them that the works must cease until planning permission was obtained. The Planning enforcement officer also cautioned that the site would be regularly monitored and, of necessary, a stop notice would be served. Again, no reply was received.

Injunction

 Histead applied for and was granted a without notice injunction stopping the works for one week and a second hearing was listed to reconsider  date was set.

  • At the return date a consent order was agreed continuing the injunction until such time as
  • there was full planning permission with no conditions;
  • an award was executed pursuant to the Act;
  • notices were served on all adjacent property owners in accordance with the Act or;
  • further order of the court.

The original planning permission had effectively lapsed because of the demolition, and a fresh application was required.

Arguments

 Some weeks later Prosperity applied to delete the condition in the consent order requiring planning permission.  They deployed three arguments.

First, that although they admitted that they had breached its obligations under the Act and that Hirstead was correct to apply for an injunction , Prosperity had been on best behaviour since  then and there was no need to continue the injunction.

Second, that the condition was agreed in error and without full appreciation of its true consequences.

Thirdly, it was inappropriate for the injunction concerning party wall matters to be linked to Prosperity’s compliance with planning permission as the two were unrelated.

I have some sympathy with this argument, especially bearing in mind the “no conditions” provision, as this would be beyond Prosperity’s control.

Judgment

 The Court refused Prosperity’s application.

The starting point was that the original injunction was properly sought and obtained. Prosperity’s first argument did not bear out because even after they were served with the injunction dated 23 August they had engaged in behaviour that bore the hallmarks of continuing disregard for their legal obligations.

Further, the works had been commenced despite clear notice of their obligations. They knew what they were doing. There was a clear inference of a cynical plan to complete the works over a bank holiday weekend to try and avoid action by the adjoining owner and present them with a fait acompli.

Although Prosperity was in discussions with the planning authority that was as far as it had proceeded. No application had been made. The Court felt that one would expect Prosperity would have made it a high priority to be certain that planning permission was in place. That they had not progressed this with and speed indicated that Prosperity was at best reluctant to comply with their obligations and there was a risk that they would choose not to do so if the injunction were lifted.

In contrast, Histead was doing no more protecting his property rights.

The consent order was ordered to continue, but the words “no conditions” should be deleted from the first clause.

Comment

 This case underlines the Court’s no-nonsense approach to building owners that attempt to avoid the provisions of the 1996 Act.

It also underlines the importance of a building owner caught out not complying with the 1996, whether through innocent mistake or deliberate action, receiving expert legal advice when managing the post-application discussions.