Where a building owner, without written consent or a valid award (statutory authority) carries out (or is about to carry out) work he may trespassing, causing nuisance or breaching his statutory duty.
In such cases, an adjoining owner may consider obtaining an injunction.
In the party wall matters, an injunction is usually obtained to prevent notifiable works continuing. It also may be to require a building owner to carry specific works eg. install temporary shoring or weathering.
As one of the aims of the Act is to mitigate risk of damage and other unnecessary inconvenience for adjoining owners, the fact that work is covered by the Act, implies there is such risk. Although this isn’t always the case, though many (incorrectly) consider notifiable works are risky by default.
If an injunction application is to be made, it should be at the earliest opportunity. Where action is taken slowly, Courts may be unconvinced by the adjoining owner’s concerns as delay would imply the risks associated with the work is insignificant.
Is there a real risk? The failure to comply with the Act’s requirements to notify the adjoining owner of notifiable works, or failing obtain an award, can be frowned upon by the Court. Consequently, persuading a Court that the building owner is at fault and therefore to grant an injunction, should be straightforward.
However, whilst an adjoining owner may be able to obtain an injunction simply because the building owner has not obtain statutory consent, it makes more sense to only seek such an injunction where there is a real risk of damage to their property. Otherwise, there seems to be little benefit on incurring cost and time associated with an injunction application.
Are the works notifiable? Adjoining owners should do what they can to be certain the work that concerns them is in fact, notifiable. This isn’t always as simple as it might sound.
Look at the plans via the local authority planning portal.
Speak to the neighbour
Speak to the builder
Check your understanding with a party wall surveyor
If the building owner refuses to engage, it might be time to engage a solicitor to write a firm letter to them to request information or risk an injunction. This can be important as even where the works turn out not to be notifbale, the building owner may still be held liable for costs incurred due to their failure to engage properly at an early stage.
How to apply for an injunction Courts will allow you to make an application yourself. A suitably qualified and experienced lawyer should make the process of applying for and obtaining an injunction far smoother and less stressful but that will come at a cost.
There is standard form (N16A) to complete.
Ideally, the form should be accompanied by a (simple) witness statement. This can be prepared by the adjoining owner but may be better recevied if from a party wall surveyor.
A witness statement should include:
Your understanding of the work the building owner is (or appears to be) carrying out.
Reference to the fact that there is no written consent or a relevant award authorising the work.
Details of your attempts to contact or communicate with the building owner prior to the injunction application.
Details of any damage which has occurred, or details of what the risk of damage might be.
The Court will usually require you to give what is known as a “cross-undertaking”. This is a promise that if, at the end of the case, the Court decides that an injunction should not have been given, the you will pay whatever damages (to your neighbour) the Court deems appropriate. This can include the costs associated with the stopping of/delay to the building work.
Where the matter is genuinely urgent (there is a real risk of immediate damage) it can be possible to obtain a hearing before a judge within a few hours.
Where you can convince the judge of the urgency of your case, they may be prepared to grant an injunction on the basis of an oral evidence. The person giving that evidence will be asked to give their undertaking to the Court that they will write and sign a witness statement to the same effect as soon as possible after the hearing.
How much does it cost? If you make an application yourself, it may be possible to obtain an injunction for the Court costs of issuing such an application.
If a surveyor is used to produce a witness statement, that might add to your costs but makes good sense as such advice could steer you away from an injunction application that may otherwise be incorrectly made and incur costs.
Once lawyers become involved costs are likely to increase substantially. These could range from as little as £1,000 upto an eye watering £15,000.
If the Court grants an injunction and agrees that you were justified in seeking it, the building owner will normally be liable to pay your costs. But beware, this does not mean the Court will grant all of your costs. Usually this mean that the building owner will have to pay somewhere between 60-75% of your legal costs (lawyers fees).
Conclusion Whilst injunctions can be useful for adjoining owners to ensure that building owners comply with their obligations under the Act, consideration must be given the circumstances:
Is the work deinfinately notifiable?
Is there a real risk of damage?
Do you require a witness statement?
Should lawyers be involved?
Our advice, proceed with caution as the risk can quickly out weigh the benefits.
