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I just noticed an oddity in some legal guidance published by the UK Government. The Party Wall Act states that certain works are covered by its requirements, including the requirement to give notice. However in apparent contradiction, official guidance documentation from gov.uk and local councils universally states that quite a wide range of minor works would be considered "so minor" as to not require this provision to be complied with. On the face of it, the statute itself doesn't make any provision for any kind of "de minimis" exception. And yet, it's black-and-white stated in the official government-published guidance.

Where does the authority for such a statement come from (its source or principle in law), and what is its standing in UK law (i.e., could it be relied on as a matter of law and if so on what basis)?

I'm sure such a strong statement wouldn't be included in official guidance without some kind of legal standing/authority, but if so, what exactly is it and how far does the underlying legal principle stretch, which underpins this statement/exception?

  • There are case law precedents that govern interpretation of statutes that address concepts like what constitutes a material or immaterial breach of its technical meaning and don't require compliance if the breach is not material. This inserts of gloss of reasonableness over otherwise harsh interpretations of the laws. – ohwilleke Nov 30 '16 at 15:48
  • Ahhh!. Can you find an example of any, to get a sense of it, or is there anything that establishes materiality as a "well known" rule, or when it applies? I ask since some other laws don't seem to have such an applicable rule, which means either its arbitrary or there is some sense of a governing rule for when to apply this? – Stilez Nov 30 '16 at 22:30
  • @Stillez I have seen the rule applied routinely in American cases and in pre-19th century British cases that I studied in law school (twenty years ago), but I don't have convenient access to any of the contemporary British case law that would be examples of this rule that lawyers writing these guidelines could rely upon. – ohwilleke Dec 1 '16 at 2:40
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Section 3 of the Party Wall etc. Act 1996 specifies that:

a building owner shall serve on any adjoining owner a notice

when carrying out any of the repairs listed in section 2 of the Act.

This implies that any work that is not in the list in section 2 does not require any notice to be served.

This is echoed on the Government website, which gives a summary of work that requires notice, and provides examples of minor work which does not.

The official explanatory booklet on the Act goes into a little more detail, explaining that (on p11):

the key point is whether your planned work might have any possible consequences for the structural strength and support functions of the party wall as a whole, or cause damage to the Adjoining Owner's side of the wall. If you are in doubt about whether your planned work requires a notice you might wish to seek advice from a qualified building professional.

However, as the OP points out in a comment below, this is not quite what the Act says. For example, the Government website mentions that "drilling to put up shelves" is OK, but section 2(2)(f) states that notice is required "to cut into a party structure for any purpose".

Bearing in mind that I have no legal training, I would suggest that the answer is in section 4, which covers counter notices. An adjoining owner may require the building owner to carry out certain additional works "as may reasonably be required for the convenience of the adjoining owner" - but not if it were to "cause unnecessary inconvenience to [the building owner]".

It could be argued that having to carry out any of the works listed in section 4(1)(a), just to drill some holes which will have no impact on the structure at all, would not be reasonable, and would cause unnecessary inconvenience.

Ultimately, it would be for a surveyor to resolve any dispute (or, on appeal, a judge). My interpretation, therefore, is that the official advice is making a reasoned assessment as to what a surveyor might consider "minor" in this context.

(A more detailed discussion of the workings of the Act can be found in this paper. One thing that it points out is that the section of the Act relating to party walls is copied almost verbatim from the London Building Acts (Amendment) Act 1939, and hence that the procedures relating to party walls are well established.)

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  • Exactly. Section 2 doesn't seem to have any paragraph that says "minor works unlikely to impact the wall don't need a notice" (so to speak) or anything similar. The Act leaves it as an absolute: ANY of the repairs/works, including cutting in of any kind etc....., nothing in the Act seems to support that an exemption exists for notice of very minor works as the guidance indicates. So where is the guidance getting that clause from? – Stilez Apr 3 '16 at 12:26
  • (To be clear, in terms of the Act, a person who drills a hole in a wall for "unuts or shelving", or cuts a recess and screwholes for an electric "socket" would probably/surely fall under 2f "cutting into for any purpose", and indeed would have to do so otherwise cutting would need notice but a drill-hole (however large or deep) wouldnt. But guidance describes these as not needing notice as too minor. The Act doesn't give any such qualification or exemption. – Stilez Apr 3 '16 at 12:31
  • @Stilez: There is some wiggle room whether "drilling" into a party wall is "cutting". (It wouldn't surprise me for example if the Supreme Court decided that a 10mm drill wasn't cutting, but any larger was). It's a bit harder to make the case that cutting an electrical socket isn't "cutting"; on the other hand, if the wall is 4½" brickwork, cutting an electrical socket could easily knock a brick right out into the neighbours room. – Martin Bonner supports Monica Apr 10 '17 at 7:56
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The starting point of any analysis has to begin with asking what the scope of the Act's application is i.e. what acts fall under its remit and what does not. The question is whether Parliament intended the Act to apply to ANY alteration to the structure, or only a certain class of acts. Clearly it is not the former. With the latter then in mind, statements like that you pointed out merely acknowledge that the Party Wall Act does not cover every single conceivable alteration to a shared structure, as that statement has to be viewed in its entire context. You have left out the second half of the statement that stipulates the core principle of the Act, which is that the Act only imposes the req to serve notice only if, generally, the alteration would cause much structural change or damage.

The de minimis threshold can be inferred from the list of activities covered under section 2. Notice that the general character of the listed activities envisage acts which are atypical (in the sense of just drilling holes etc.). This can also be inferred from Parliament's intent in its drafting of the Act as a whole.

Also, it might just be common sense.

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  • Useful answer, thanks. When you say the "second half", which text are you referring to? And where does the comment "clearly it is not the former" derive from? I'm reluctant to assume or say "it must be commonsense" because other laws exist where there isn't any such application, its strict according to the word of the statute. – Stilez Dec 31 '16 at 20:01

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