Whispers. Issue 53. Winter 2024

WHISPERS O F The Pyramus & Thisbe Society

Contents ISSUE 53

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Welcome

BY NATA SH A DE M I R B AG

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Chairman’s Column

BY DAV I D B ROW N

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To What Extent Does The Party Wall Etc. Act 1996 Displace The Common Law?

BY C E C ILY C R A M P I N A ND E DWA R D B L A K E NE Y

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Post Award Reality

BY K EI T H DO U G L A S

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For How Long May I Rely On My Party Structure Notice?

BY HI S HON OR E DWA R D B A I L E Y A ND M AT T H E W H E A R SU M

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The Report: Pyramus & Thisbe Society Conference 2024 p24

Book Review: Party Wall Disputes By Dr Laura Lintott p26

From The Vaults

BY M A RT I N O ’ SH E A

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The Twelve Days Of…

BY DAV I D M O O N

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Patience’s Christmas Crossword 2 The Pyramus & Thisbe Society

Welcome To The Winter Edition Natasha Demirbag

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Time to Destination

Local Time at Origin

Local Time at Destination

1:52

08:38 PM

03:38 PM

Estimated Time of Arrival

Altitude

Ground Speed

05:29 PM

38003 ft

503 mph

title the 12 days of Christmas completes our Christmas trio.

To complete your Christmas reading we have three brilliant articles from His Honor Edward Bailey and Matthew Hearsum, Cecily Crampin and Edward Blakeney and Keith Douglas and the report on the recent national conference.

So grab yourself a mince pie, perhaps a glass of mulled wine too, and settle into a comfy chair by the fire and I hope you enjoy reading the winter edition of P&T Whispers.

That now just leaves me to wish you all a very merry Christmas and best wishes for 2025 on behalf of the whole of all of the P&T Whispers editorial team.

FI ND MY SEL F T Y PIN G T H IS WH IL S T S IT TI N G O N

an Airbus A330-343, cruising at 38,000 ft (ground speed 502 mph) somewhere over the Atlantic, frantically trying to finish drafting various emails and awards before enjoying some down time.

I only mention this, not to brag, but to stress that Christmas is fast approaching. It is that time of the year when we all find ourselves looking forward to both some well-earned rest and all the craziness that the Christmas season throws at us; work, family, travel, cooking, baking and the many other forms of multi-tasking that combine working and trying to occupy school age children during the Christmas holidays!

Oh, and last but not least, well apparently for some of us anyway, it means the serving of notices and awards just before the office closes for Christmas – I add this in jest only, after listening to Ed Cox’s brilliant after dinner (lunch) speech at the London branch Christmas Lunch held last week at the Little Ship Club.

Anyway, that’s enough from me, and now on to this issue of Whispers in which we celebrate the coming retirement of David Brown - North East branch Chairperson and with thanks to Ashley Patience we have a Christmas crossword on page 32, a book review from Nick Brown for you to add to your Christmas wish lists and an article from David Moon

Natasha Demirbag BSc(Hons) MRICS FPTS natasha@natashademirbag.com

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Chairman’s Column David Brown

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became her hero. Comfortingly my fees were paid by the builder!

More recently I was appointed by the City of York Council in respect of York City Walls. York Minster were demolishing buildings in the stonemason’s yard and constructing a new Centre of Excellence which involved excavations in close proximity to the city walls. Obviously this was a very sensitive project and electronic monitoring was used as heaven forbid should any cracks occur in the city walls. Fortunately the works proceeded without any damage occurring.

I have now decided to retire so may I take this opportunity of thanking P&T (particularly Ada) for all her hard work over the years and I look back on the P&T Club / Society with fond memories. I would also like to thank Michael Kemp for his help and advice over the years which has been invaluable and Graham North for his professionalism and for keeping P&T on track financially over the years.

I have not found retirement easy. Having put my heart and soul into my business for over 20 years, then to close the door, lock it and walk away has been very difficult and the only way I can describe it is that it has been something of a bereavement. However, it has taken me 18 months to acclimatise myself to retirement and I am now looking forward to it.

I hope all that read this article get as much pleasure and enjoyment out of party wall surveying as I have.

Turning to Christmas, you may be interested in a prank that Michael McIntyre performed on my wife a few years ago with a little help from me – https://youtu.be/xBm0w5HGSg or Google - Michael McIntyre Margaret Brown.

May I wish you all a Happy Christmas and prosperous (party wall surveying) New Year.

H AV E H AD A L IF ET IME A S S OC IAT ION WI T H T H E

P&T Club and now the P&T Society. My first involvement with P&T was when I attended a lunch in London around 45 years ago when I attended in place of my boss, Michael Finn. My main recollection of that meeting was I put an expensive bottle of Beaujolais into the ice bucket which resulted in expressions of horror around the table (I was very green behind the ears then). I initially practised in London when the legislation only applied to the London area. Then, after 1996 when the Act applied to the whole of the country I moved north and found party wall surveying to be a niche market which helped my career no end.

Since then I have attended numerous P&T meetings, seminars and conferences and was a member of the National Council and I was also involved in setting up the P&T NorthEast branch of which I was chair until this was passed on to Stephen Nesbitt.

My career as a party wall surveyor has been varied and interesting. One of the most unusual appointments was acting for the building owner in the construction of a new lifeboat station in Whitby Harbour. This was to be founded on piles in close proximity to an ancient fish pier and brought the 6m notice into play. A schedule of condition was required of the fish pier which involved venturing into a lifeboat to photograph the perimeter of the pier. When taking on the commission I imagined a rough sea and bobbing about trying to take photographs (I also suffer from seasickness). Fortunately on the day of my inspection the sea was like a millpond.

My claim to fame was being appointed party wall surveyor for the building owner in respect of Bridgewater Place, the tallest building in Leeds, which involved preparing schedules of condition of the surrounding offices and buildings.

On a more down-to-earth note, another situation involved acting as adjoining owner’s surveyor protecting a frail elderly lady from an unscrupulous builder. This lady lived in a small terraced house in the back streets of York and her husband had built a fishpond in the rear yard. Her husband had unfortunately passed away and so the fishpond became very precious to her. The builder wanted to support scaffold standards directly on the fishpond and generally undertake works without due regard to the precious nature of the adjoining owner’s property. Needless to say I was able to use the full force of the Act to protect her property and I

David Brown BSc(Hons)

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To What Extent Does The Party Wall etc. Act 1996 Displace The Common Law? Cecily Crampin and Edward Blakeney

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In Power v Shah [2023] EWCA Civ 239; [2023] 1 WLR 2830, Lord Justice Lewison said the following at paragraph 73: “… it is the service of the party structure notice that causes the substitution of rights under the Act for common law rights.

The service of such a notice gives a building owner the statutory rights laid down in the Act. Those rights once activated, superseded the common law both as regards the building owner and the adjoining owner. Where however, a party structure notice has not been served, the adjoining owner’s common law rights remain intact.” [emphasis added] To what extent is that an accurate statement of the law?

On one reading, it could be given an incredibly broad

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meaning – a party’s common law rights are displaced in all respects once a notice under the Party Wall etc.

Act 1996 (“the Act”) is served. On another reading, it could be construed more narrowly – a party’s common law rights are displaced only insofar as the Act expressly does so or by necessary implication.

This article considers that question, and in doing so we hope to provide further clarity about what rights building owners and adjacent owners have when the Act is invoked, whether statutory or common law, and the extent to which the common law still has a role even when rights granted by the Act are in play.

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The Act in outline 4

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being cheaper and quicker.

That is not an approach which is currently favoured, however (if it ever was). It does not reflect the purpose set out in the Preamble to the Act. It is not a route to an interpretation of the Act which allows it to be used beyond the express wording.

13 Thus in Power v Shah, supra, the recent case arising out of an adjoining owner’s attempt to invoke the Act’s dispute resolution process where the building owner had not served a party wall notice for his works (because he said the Act did not apply), the Court of Appeal dealt with an argument for the applicability of the s.10 dispute resolution process because “proceedings in court are potentially more costly …” (paragraph 100). The answer that came from the Court of Appeal was that the adjoining owner retains his common law rights in relation to works done by the building owner, pointing out the converse point that “it would be a far-reaching (and unheralded) change in the law if an adjoining owner could unilaterally remove a citizen’s right of access to the courts, simply by appointing a surveyor (who need not have any qualifications); all the more so in a case where there is a dispute about whether the works fall within the various descriptions of work in the 1996 Act…” (paragraph 99).

14 The Act is not, therefore, a panacea for all neighbour disputes about works on one side. It is limited in its scope and application and must be invoked in accordance with its provisions; it does not apply simply because it has utility.

15 It was when discussing the effect of invoking the Act that Lord Justice Lewison made the comment referred to at the opening of this article – where invoked, the Act supersedes parties’ common law rights.

16 That is correct, but only to an extent, and care is needed. Once a party wall notice is served, it does not follow that all common law rights and considerations depart to be replaced with the statutory scheme to the exclusion of all else. Nor does the statutory scheme support development at all cost, for example where development might have been resisted under the common law.

17 It is this nuance that we explore below.

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Those reading this article are likely to be very familiar with the Act already. However, it is worth identifying some of the key provisions to help lay the groundwork for the rest of the article.

The Act deals with three types of works near the boundary, dividing them by sections: s.1, s.2, and s.6. In each case, there is a requirement on the building owner to serve notice on the adjoining owner for works caught by the section. The Act also expressly makes any dispute, or deemed dispute (for s.2 and s.6 works, where the adjoining owner does not consent to the works), resolvable via the s.10 mechanism.

S.1 works involve the building of a new wall over the boundary that would otherwise be a trespass if done without consent from your neighbour. S.1 gives a notice procedure to get that consent, and if the neighbour does not consent then the wall must be built on the builder’s side of the boundary (though the wall’s necessary foundations and footings can be built across the boundary).

S.2 is called “Repair etc of party wall rights of owner” and applies where, at the line of junction, the lands are built on (party wall), or there is a party fence wall (garden wall across the boundary) or the external wall of a building. S.2 then gives the building owner rights and sets those out in list form.

Finally, there are s.6 works. These are works on the building owner’s land rather than works to a party wall or party fence wall. S.6 applies when a building owner proposes to excavate close to a building on the adjoining owner’s land. There’s the 3m rule and the 6m rule, which are best demonstrated by diagrams found in some of the practitioner texts.

The Act also provides the parties with particular benefits: s.7 contains a scheme for the payment of compensation to the adjoining owner, s.8 sets out the rights of access enjoyed by the building owner over the adjoining owner’s land, and s.10 provides a binding dispute resolution process that is decided by surveyor(s) appointed by the parties and is far simpler (and cheaper) than litigation (albeit there is an automatic right of appeal to the County Court so long as it is done within 14 days of the award being served on the appealing party).

Are party wall notices mandatory?

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Before considering the extent to which the Act displaces common law rights when the Act is invoked, there is a prior question to be answered – do parties need to invoke the Act at all? In other words, do parties need to serve party wall notices?

19 This is something we have seen discussed a number of times, including at the Pyramus & Thisbe society. The conventional view appears to be that such notices are mandatory.

20 An argument to that effect certainly seems to flow

The role of the Party Wall Act 10

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We wanted to begin by saying something about the way in which we currently see the courts approaching the interpretation of the Act. It has been common for advocates to argue in court, and the court at times to commend, that the Act has as its purpose keeping disputes out of court, with the dispute resolution process via surveyors under the Act

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from the language of the Act – s.1(2) states that the building owner “shall, at least one month before he intends the building work to start, serve on any adjoining owner a notice”; s.3(1) states that “[b]efore exercising any right conferred on him by section 2 a building owner shall serve on any adjoining owner a notice”; and s.6(5) states that “the building owner shall, at least one month before beginning to excavate, or excavate for and erect a building or structure, serve on the adjoining owner a notice”. The use of ‘shall’ suggests a mandatory requirement.

21 But the blanket suggestion that party wall notices are mandatory carries with it a risk of overlooking the simple reality that where notices are not served, a party’s common law rights continue. Indeed, that was the very outcome in Power v Shah – no notice was served, but the Court of Appeal expressly disavowed one party being able to unilaterally remove another party’s access to the Courts by appointing a surveyor. If party wall notices were ‘mandatory’ in the traditional sense of the word, such that they had to be served whenever the Act applies, then presumably the outcome in Power v Shah would have been different.

Instead, if a party’s common law rights are retained even if the Act prima facie applied, it indicates that those notices are not mandatory in that sense.

22 It seems to us, therefore, that the correct position is that party wall notices are mandatory where a party wishes to invoke the Act. If, however, a party does not wish to invoke the Act (because, for example, they think the Act does not apply or because they simply do not wish to engage with the Act), then party wall notices are not mandatory. Whilst it may be the case that such notices could/ should have been served, that does not mean that a failure to serve such a notice invalidates the works or that the works can only proceed once a notice is in place. And if an adjoining owner considers that a party wall notice should have been served, they will be left to rely on their common law causes of action.

underpin any such wall or for any other purpose”.

25 The right granted is subject to “making good all damage occasioned by the work to the adjoining premises or to their internal furnishings and decorations”.

26 Likewise, if the issue isn’t footings, but an overhanging part of a wall, then the building owner will have a right under s.2(2)(h) to cut away or demolish those parts to the extent necessary to cut away or demolish the parts to enable a vertical wall to be erected against that wall, subject to the same requirement of making good.

27 Thus, it appears that the Act gives a solution to the issue of what to do as a building owner if you want to remove footings or projections on your neighbour’s boundary wall or a wall sitting across the boundary.

28 There is something odd, however. If the footings are wholly on the building owner’s side of the boundary, why does he need the Act to give him a right to remove them?

29 S.2 is not worded in the same way and ss.1, 3 and 6 which, as above, use mandatory language with respect to the service of certain notices. S.2(1) tells you when s.2 applies: when there is a wall or floor separating buildings or parts of buildings in separate ownership, or there is a wall across the boundary line.

30 One then gets to s.2(2). This does not say that if the building owner wants to do work of the kind listed in s.2(2) they “shall” serve notice. Rather, it says “A building owner shall have the following rights”. It is then in s.3(1) that the Act requires the service of a party structure notice on the adjoining owner before “exercising any right conferred on him by section 2”.

31 The natural reading is that you only need to serve a s.3 notice if you want to take advantage of one of the s.2 rights. This will not be the case if all the work is done to your own property and you don’t need to go onto your neighbour’s land. On that basis, a building owner could choose not to serve a s.3 notice, even though cutting away a footing or a chimney breast is one of the types of work listed in s.2(2).

32 In Keane v Group One Investments Limited [2018] EWCA Civ 3139 at paragraph 2, Hickinbottom LJ said that if the statutory procedure is not followed, the common law rights and obligations of the parties continue to apply (that’s the inverse of the comment in Power v Shah that the effect of a proper invocation of the Act is that the common law rights cease to apply). In other words, a party’s common law rights are not automatically superseded where the Act can apply, but instead are only superseded to the extent necessary.

Hence, in Kaye v Lawrence [2011] 1 WLR 1948, Ramsey J stated that “when the provisions of the relevant Act are operated, the common law rights are “supplanted” or “substituted” by the rights under the Act in relation to matters dealt with under the Act” [emphasis added]. The

Footings on the development land 23 Turning to our first example of when the Act supersede s common law rights, the mos t straightforward starting point involves the footings of the party wall. The situation we are considering here is where there is a wall at or across the boundary which has footings on the development land.

24 This situation is picked up squarely by s.2(2)(g) of the Act. The building owner is given a statutory right, subject to the service of a s.3 notice and the s.10 dispute resolution process, “to cut away from a party wall, party fence wall, external wall or boundary wall any footing or any projecting chimney breast, jamb or flue, or other projection on or over the land of the building owner in order to erect, raise or

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Judgment in Keane also suggests that you only have to serve a s.3 notice if you want to take advantage of the rights in s.2.

However, there is an argument the other way. It depends on a very old case, Standard Bank of British South America v Stokes (1878) 9 ChD 68. There, Sir George Jessel MR said that the rights set out in the Metropolitan Building Act 1855, one of the ancestors of the Act, completely replaced the common law rights of the owner of a wall: “whatever the rights at common law might have been, such right no longer exists”. He said the rights given by the 1855 Act were given to replace common law rights, not supplement them. In part the reason was that the purpose of the 1855 Act was to avoid interference with party structures without notice to the adjoining owner as the other person interested.

This goes beyond what is said in Power v Shah it seems to us. It is saying that the 1855 Act replaces common law rights whether or not invoked, so that the building owner must serve a s.2 notice, and an adjoining owner sue for breach of statutory duty if he does not. It is arguable that the same analysis ought to be applied to s.2 of the 1996 Act. However, that does not seem to be the tenor of the Power v Shah decision although the Court of Appeal, like the High Court, did not decide whether the building owner was in fact doing works which could fall under s.2. In Power v Shah, the Court of Appeal noted that in Standard Bank, a notice had been served, though there had been no award prior to the works. As the Court of Appeal said at paragraph 67, “Jessel MR was not concerned with a case in which no such notice had ever been served”.

It thus seems to us that a building owner does not need to serve a s.3 notice to do s.2 works if he could do them without trespass or nuisance, for example if they are works only to his own land which do not risk (actionably) his neighbour’s land. His common law rights remain intact and otherwise unaffected by the Act. There is another oddity about s.2 granting the building owner rights. The language of s.2 is that the building owner has the right to do the works within the section.

Does that mean the party wall surveyors could not make an award saying that the works could not be done, even if there was no way of doing the works the building owner wanted to do without, for example, the wall in question being almost certain to collapse?

If the adjoining owner had an easement of support for the wall or his part of it, then s.9 would suggest the answer is ‘No’: “Nothing in this Act shall (a) authorise any interference with an easement of light or other easements in or relating to a party wall”. That incidentally is already a way in which the Act does not usurp common law rights.

39 What if the adjoining owner did not have an easement?

Does the adjoining owner lose any right he has to say the works would be a nuisance and hence should not be done?

40 S.7(1) says that “A building owner shall not exercise any right conferred on him by this Act in such a manner or at such a time as to cause unnecessary inconvenience to any adjoining owner or to any adjoining occupier”. That has been said in Gray v Elite Town Management [2016] EWCA Civ 1318 at paragraph 39 to relate to “the manner in which works are to be carried out once a specific design has been approved” not the design, or the doing of the works. It does not seem to be an answer to this question.

41 S.7(2) requires the payment of compensation for any loss or damage which may result by reason of any work executed in pursuance of the Act. Moreover, for certain of the s.2(2) works, as with s.2(2)(g) and (h) for example, the right to do the works is subject to making good all damage. Do those provisions mean that dangerous works otherwise within a s.2 right can be the subject of an award saying the works cannot be done?

42 One route to prevent works which would lead to very high value compensation or making good costs is the s.12 security provision which, under s.12(1), allows the adjoining owner “requiring the building owner before he begins any work in the exercise of the rights conferred by [the] Act to give such security as may be agreed between the owners or in the event of dispute determined in accordance with section 10”. The wording suggests that once the level of security has been determined, the building owner cannot begin work, in compliance with the Act, before giving that security. If the risk of the works is high it may be that the security would be so high as to make the giving of security unlikely, so that works can be stopped that way.

43 Under s.7(5)(a), any works executed in pursuance of the Act shall comply with statutory requirements. If statutory provisions such as Building Regulations cannot be complied with due to the risks to the adjoining owner’s property, that does seem a route by which works can be prevented within the Act. 44 Otherwise, though, it seems to us that the use of the word “right” does suggest that the works must be permitted.

45 The point does not appear straight-forward, however.

Does that mean that surveyors appointed under s.10 of the Act can authorise what would otherwise be a nuisance and oust a party’s common law rights (or convert those rights into monetary compensation), and does it mean that those surveyors could authorise poor design practices?

46 Both of those scenarios pose conceptual difficulties, especially in light of what was said in paragraph 99 of Power v Shah about ousting a party’s rights to the

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London & Quadrant Housing Association [1998] 1 WLR 1749, affirmed in Heslop v Bishton [2009] EWHC 607 (Ch) and Kettel v Bloomfield [2012] EWHC 1422 (Ch), unless the easement expressly allows variation. In this respect too, therefore, the common law principles have not been ousted or enhanced by rights granted under the Act.

Courts. Further, Courts are not generally willing to allow parties to buy their way out of legal wrongs and put a price on their rights and obligations. It seems likely that an appeal would be needed to resolve the situation – it is not difficult to envisage a Court determining that an Award permitting a nuisance is either impermissible as a matter of principle, or that such an Award would need to be remade to avoid any nuisance on the facts.

Access

Pipe across the development land

56 S.8 of the Act gives rights of entry to the building owner (and servants and agents) to “enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act”. That is a potentially very wide right, which might involve significant interference for the adjoining owner over a long period, if development works are of long duration.

57 The right of entry is however limited to the purpose of executing any work in pursuance of the Act. It does not allow the right of entry for the development works as a whole.

58 Nor does it appear that it allows entry in so far as exercise would be in such a manner as to cause unnecessary inconvenience to any adjoining owner or occupier, under s.7(1).

59 To what extent does the right of entry, or any other part of the Act, allow works to be done to the adjoining owner’s land?

60 It seems to us that s.8 is not a right to do work to the adjoining owner’s land if that work is not already “work in pursuance of this Act”. For s.8 to apply, one must already have identified the work in pursuance of the Act. S.8 does not legitimate a new range of work. Thus, s.8 seems to permit access to the adjoining owner’s land to demolish the wall across the boundary and rebuild it for example, since that is an Act right.

61 There are specific provisions in the Act which allow work on the adjoining owner’s land, and to buildings or walls constructed on it, even though the adjoining owner does not consent. Those provisions give the building owner rights he likely would not otherwise have.

62 Thus s.1(6) permits the building owner building a new wall on his own land but at the boundary placing such footings and foundations as are necessary for the construction of the wall onto the adjoining owner’s land, even though the adjoining owner does not consent.

63 Likewise, s.6(3) of the Act allows the building owner at his own expense to “underpin or otherwise strengthen or safeguard the foundations of the building or structure of the adjoining owner so far as may be necessary”. That gives a right to the building owner to go onto the adjoining owner’s land and do works to it.

47 We now turn to another scenario. What if the building owner discovers that a pipe carrying water for example to the adjoining owner’s building runs across the building owner’s land?

48 The building owner wants to excavate where the pipe runs (and within the s.6 distances). He serves a s.6 notice on the adjoining owner. Can the surveyors agree an award that permits the removal and replacement of the pipe elsewhere?

49 The first question is whether the adjoining owner has an easement to run water, or gas, or whatever it is, through the pipe.

50 S.9 expressly prevents the Act from interfering with easements, but not all easements. It says: “Nothing in this Act shall authorise any interference with an easement of light or other easements in or relating to a party wall”. It is odd perhaps that there is no express saving for easements which might affect excavation.

51 S.6(10) has a savings clause: “Nothing in this section shall relieve the building owner from any liability to which he would otherwise be subject for injury to any adjoining owner or any adjoining occupier by reason of work executed by him”.

52 The language seems a little odd, and not quite apposite, but that seems likely to mean that if the excavation would involve a substantial interference with the easement of the adjoining owner, that liability at common law would remain notwithstanding the service of a s.6 notice, and other compliance with the Act. This could well prevent excavations that the building owner wishes to carry out.

53 That accords with what was said in Keane, supra, as well as the more limited reading of Power v Shah referred to at paragraph 2 above. If Power v Shah is instead given the expansive interpretation, that would conflict with our interpretation of s.6(10) of the Act. 54 As the case law currently stands, a solution which rerouted the pipe elsewhere across the building owner’s land would not suffice, because as owner of the servient tenement for the easement he has no right unilaterally to extinguish it over one area, the current location of the pipe, and move it to another.

55 That’s the principle confirmed in Greenwich NHS Trust v

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64 Similarly, s.2 allows works to the adjoining owner’s land, for example to the part of a party structure which is on the adjoining owner’s land when that structure is demolished and rebuilt under s.2(2)(b).

65 To that extent, therefore, the Act grants additional rights to building owners and permits what would otherwise have been common law wrongs (primarily trespass). The Act has therefore superseded the adjoining owner’s common law rights to that extent.

the Act (for example, a right to compensation under s.7(2) of the Act), does that exclude the other common law rights that would otherwise have been available?

68 One view is that the Act would displace the common law in this way. That is the natural meaning to be given to the authorities that talk of the common law rights being supplanted.

69 This reasoning relies, to some degree, on the argument that works causing loss that have not been carried out in accordance with the strict terms of the Award are nevertheless works carried out under the Act – that argument is required because s.7(2) of the Act is only engaged where there have been works “executed in pursuance of this Act”, and s.7(2) has to be engaged if it is to exclude common law causes of action.

70 That construction of s.7(2) is supported by the Judgment of HHJ Bailey in Davis v Trustees of 2 Mulberry Walk (Unreported, Central London County Court, 26 January 2012). But it might need to be reviewed following the Judgment in Power v Shah since Power v Shah suggests a stricter understanding of when works are executed in pursuance of the Act. Works which are not in compliance with a party wall award would not be works in pursuance of the Act because they are not

66 But this is not a total usurpation of a party’s common law rights. For what the Act does not allow is work on the adjoining owner’s land which, outside the Act, would be a trespass where the Act gives no express right to do such work. In those circumstances, a party’s common law rights remain unaffected, and they could take whatever action they considered appropriate in the normal way.

Do rights under the Act and common law rights co-exist?

67 The foregoing feeds into a debate we have had on a number of occasions – if a party has a remedy under

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works that have followed the party wall process properly. In that case, the common law would be left to provide a remedy.

71 The other view is that there would be no such exclusion for the simple reason that there is no need/ basis for the Act to do so. Where the Act expressly permits what would otherwise have been a trespass (for example, where footings are permitted to cross the boundary line), then necessarily the common law position has been altered. Where, however, a party has suffered an actionable wrong as a result of something that was not permitted by the Act, there seems to be no reason why the Act would limit that party to pursuing a remedy via a specific route. If each affords the innocent party appropriate relief, why can they not be pursued in tandem or why can the innocent party not choose which route they prefer?

72 This view would not see Power v Shah as changing the law in this respect. Whilst Lewison LJ did talk of common law rights being superseded, there was no discussion of the extent to which those rights were superseded, and the Judgment need not (and should not) be read as supporting a wholesale replacement of common law rights with statutory rights. Such a change in a parties’ legal rights would be significant. Instead, it would be better to read Lewison LJ’s Judgment as referring to the Act superseding common law rights only to the extent necessary as per Kaye.

73 The other difficulty with reading Power v Shah as requiring strict compliance with the terms of an award if works are to be ‘in pursuance of’ the Act is that this could artificially limit the remedies available under s.7(2) and s.10. Would awards need to expressly envisage the possibility of works going wrong/ loss being caused to allow compensation to be granted if that possibility came to pass? That seems an unlikely construction of the Act, and a construction that retains the ability to obtain any appropriate remedy where it is available, whether under statute or common law, is preferable.

applies, it does not explain how compensation is to be calculated.

76 The Court of Appeal held that there was no reason to depart from the common law quantification of compensation, and it therefore calculated the appropriate figure using common law principles by analogy. This is another example of the Act and common law working together.

77 It could be said that this decision leads support to the view that remedies under the Act do not automatically displace all common law rights; if the remedy is calculated in the same way as common law causes of action, why would there need to be an exclusion of all common law rights?

Awards made under the Act 78 Lastly, we turn to awards made under s.10 of the Act. The short point here is that, in our view, s.10 does not give the surveyors jurisdiction to allow by award acts on the adjoining owner’s land which are not expressly permitted by the Act. 79 S.10(1) allows the surveyors to settle by award any matter which is connected with any work to which the Act relates and which is in dispute. That is not a jurisdiction which allows the surveyors to give the building owner rights he is not given expressly by the Act. The surveyors are given a dispute resolution jurisdiction. They are not given a power to permit acts by the building owner simply on the basis they are convenient, or even necessary, to ensure that development works are done.

80 In that sense, the adjoining owner’s common law rights are not replaced by the Act. Common law rights and principles continue to inform works under the Act because, save where the Act expressly permits access or works to the adjoining owner’s land, the adjoining owner can still complain of trespass.

Conclusion

Compensation under the Act

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74 Even where the Act does apply and (to the extent necessary, whatever that extent may be) has excluded common law rights, that does not mean that the common law is gone and forgotten.

75 That is demonstrated by the recent Court of Appeal decision in Taylor v Jones [2024] EWCA Civ 170. There, the Court was concerned with questions of causation and compensation, for even where s.7(2) of the Act

It is clear that the Act does displace the common law.

That is the effect of years of judicial decisions and the decision in Power v Shah. But it is not the case that where the Act could apply the common law is automatically excluded, nor is it the case that where the Act does apply the common law is excluded in all respects. A more nuanced view is required when considering if, and if so the extent to which, the common law is actually displaced by the Act.

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Post Award Reality Keith Douglas

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provided by the building owner. For smaller works, and in particular domestic extensions, the quality of drawn information is often poor and frequently, where the building owner has served notices, contain numerous errors. Inevitably time will be spent unravelling the complexities, both legal and practical.

H I S ART IC L E IS AN O PIN IO N B A S E D O N

personal experience of the pitfalls encountered when dealing with post award issues. It is neither intended to be definitive nor provide legal advice.

With insufficient experience and having regard to perceived market conditions the appointment was not an enormous success. The first mistake was to misinterpret the drawings. The second, not seeking an insight to the likely reactions of adjoining owners. The third, not expecting the time spent arguing insignificant amendments to the draft award (see Appendix). The fourth, being drawn into the various altercations on site.

The fifth, gross underestimate of a fixed fee and finally, to cap it all, the futile argument over the widening of a crack and water penetration alleged to have occurred fourteen months after completion of the work and the best part of twenty-four months from service of the award on the owners.

It started with a mobile call. “There is a crack in my wall which was not there before. The builder done it. Get it fixed will you. Cheers.” The reaction, “Oh …….”

(Expletives removed.)

Underpaid and now confronted with the prospect of even more time being spent, with little chance of payment, what are the lessons to be learnt?

Before considering the provision of a fee quote the surveyor should assess the work shown on the information

Whilst it should be possible to assess the time needed to conduct normal administration of the Act’s provisions parts of the process will be at large, for example, establishing ownerships and line of junction, dealing with the owners, negotiating the award, driving though recently imposed 20mph speed limited areas etc. The prudent surveyor should either include their best calculation for unknowns or preferably cost those elements of work where the time can be reasonably assessed and then an hourly rate for a site visit, negotiations, client care and, of course, referrals and appeals.

Pre-award the building owner’s Architect, without warning, dumps a new set of drawings on the surveyor, all the drawings for the project, even the electrical layout.

The surveyor receives recommendations from the consultant and is not going to admonish him for creating unnecessary work. No, the surveyor bites their tongue and goes through this endless list, selecting relevant drawings.

First question; are the changes major or minor? Will they need fresh notices? Often this is a fine call. Best to

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err on the side of caution but the surveyor may have a wilful appointing owner, cursing at yet another delay! Can’t the surveyor just ignore their concerns and simply get on with it?

The answer is, possibly. “I could have a word with my colleague to see if he will play ball, but I must warn you that I am unlikely to get a quick answer – he is in the Bahamas. To protect your interests, I intend serving fresh notices, after all you can hardly say that conventional strip foundations are the same as CFA piles. You might like to think about helical piles?” Later, the pound sign illuminates in the recesses of the surveyor’s shattered brain. “Can I charge for this work, it’s obviously extra but does my contract allow for additional fees?” The answer depends on the wording. Did the surveyor think about it when churning out the standard formatted estimate?

Contrast post with pre-award. Essentially any meaningful change to the design is likely to lead to the service of a fresh notice and therefore the possibility to negotiate a payment for added work. What if, however, the building owner refuses payment? The preparation and service of a ‘additional’ award is a separate contract and should, together with terms and conditions, be confirmed as such. Failure to agree leaves the client (as opposed to appointing owner), in the position of having to instruct and appoint another surveyor, however terms and conditions are often agreed at the outset.

Unsurprisingly, most adjoining owners are extremely interested in the work being conducted next door. Some demand the surveyor’s constant action to satisfy their every complaint, justified or not. It is suggested that, subject to any condition to the contrary, the letter serving the award should be drafted with a paragraph clearly stating that on service, the surveyor’s work is complete, and anything further will incur a fee payable by whichever party is considered liable. A polite response to the worried adjoining owner drawing their attention to this paragraph and the schedule of condition attached to the award should be the end of the matter.

However, experienced surveyors know it could be the beginning. The adjoining owner believes that the surveyor’s job is to protect them from the evils being perpetrated on them by the ogres next door. They did not read the paragraph in the letter serving the award and even if they did, it does not apply to them. Anything less than full compliance with their wishes and the surveyor is a charlatan, to be vilified on Google and if a member, reported to their professional Institution. Generally, surveyors like to be helpful, particularly when having been instrumental in authorising the work giving rise to the complaints. Once having deviated from the position of no further involvement

how far to travel before the realisation that the surveyor is now clocking up hours with the possibility of not being paid or having resort to the Courts for payment? In an attempt to provide a reasonable service to the parties it is suggested that the surveyor should, on receipt of the complaint, not only refer the owner to the initial caveat but also, as mentioned previously, make the parties aware of the financial risks in pursuing a claim.

Awards sometimes authorise the adjoining owner’s surveyor to make a further inspection on completion of the works to check the condition of the adjoining property.

Frequently this does not happen and the fee element for this task is cynically pocketed, the justification for which being that the surveyor is not informed when the works are complete. Clearly this situation is unfair on the paying party, the building owner. Failing a further inspection a partial repayment of the fee should be made and the parties informed. It is probably fair to say that in many cases, when a re-inspection is made there is nothing to report.

Unfortunately, this may not be the end of the matter, defects sometimes taking years to develop, raising the question whether it is reasonable to include a re-inspection clause in the first place? When damage occurs, adjoining owners are normally quick to raise their concerns. There are of course times when the adjoining owners are not occupiers and therefore unaware of damage having been caused and, in these circumstances, there are grounds for including a re-inspection clause in the award. In other cases, it is hard to justify and to the average member of the public, nothing more than a method of inflating fees. Prior to the involvement of surveyors, where damage is found, a dispute must arise, however often the owners and their building team can sort out repairs without any further involvement of surveyors.

In summary to avoid challenges arising post award, take care in the drafting of your terms and conditions including the work stages and those stages possibly subject to variation.

Make it clear in the letter serving the award that you have fulfilled your duties under the Act and unless otherwise awarded any further work will incur a fee to be paid by one or both owners. Finally, where the matter in contention falls outside the scope of normal party wall administration it is potentially hazardous to assist owners by offering legal advice.

Keith Douglas FRICS MCIArb

info@keithdouglaspartnership.co.uk

November 2024

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An Anonymous Adjoining Owners’ Surveyor’s Amended Draft Award for works under sections 1 and 6 permanent weathering has been provided unless otherwise agreed in writing by the surveyors?? k) where required by the Act make good all damage to the adjoining owner’s property occasioned by the works, in materials to match the existing fabric and finishes. Making good is to be executed upon completion of the works or at an earlier time deemed appropriate by the surveyors. If required by the adjoining owner, the building owner shall make payment in the lieu of carrying out the work to make the damage good, the sum of which is to be agreed between the owners. Disputes in default of agreement between the owners are to be determined by the surveyors. ?? l) compensate any adjoining owner and any adjoining occupier for any loss or damage that may result to any of them by reason of any work executed in pursuance of the Act. m) permit the adjoining owner’s surveyor to have access to the relevant parts of the building owner’s property at all reasonable times during the works and to inspect the progress of the works, giving notice for such access in accordance with Section 8 of the Act. ?? n) carry out the whole of the works so far practicable from the building owner’s land. Where access to the adjoining owner’s property is required notice shall be given in accordance with Section 8 of the Act. In the event of the building owner wishing to carry out the works from or to erect scaffolding on or over the adjoining owner’s property for the purpose of the works, details thereof shall first be submitted to and approved by the surveyors and such approval shall be subject to such conditions as the surveyors may agree. ?? o) restrict noisy works to which this award relates to the party wall /party structure/ party fence wall/works between the hours of 08.00 and 17.30 on Monday to Friday and 08.00 and 12.00 on Saturdays except Public Holidays when no noisy works shall be carried out. ?? p) remove any scaffolding or screens from the adjoining owner’s property and land as soon as possible. ?? q) clear away any dust and debris from time to time as necessary or as agreed by the surveyors.?? r) carry out the works expeditiously and taking all reasonable steps to avoid unnecessary inconvenience to the adjoining owner or occupiers.

1. After service of the signed award the building owner/s may carry out the following works (‘the works’) which are set out in more detail in the documents mentioned in paragraph 2(b), namely excavation for foundations (S6) to proposed three metre deep single storey extension the side wall of which is to be built as party (S1).

2. The following documents appended to this award form part of this award: a) a schedule of condition taken on……………………… which records the condition of the relevant parts of the adjoining owner’s property identified at that date b) drawing PW01.

3. No deviation shall be made from the works without the agreement of the owners (or their surveyors acting on their behalf) or in the event of a dispute determined by the surveyors in accordance with section 10 of the Act. 4. If the building owners commence the work they shall: a) complete the works at their own cost. b) under S11(11) deposit the sum of £5000 in escrow against damage occurring to the adjoining owner’s property. ?? c) be authorised to amend the foundation design without service of further notice. ?? d) not carry out any work on Mondays and Fridays.?? e) notify the adjoining owner’s when the excavations are complete and ready for his inspection. ?? f) not cut back the hedge on the building owner’s side of the boundary. ?? g) prior to excavation carry out carry a CCTV survey of all drains on the adjoining owner’s property.?? h) erect a temporary 2.4 metre high close boarded fence on the boundary ?? i) take all precautions and provide all necessary support to retain the land and buildings comprised within the adjoining owner’s property. j) provide temporary weathering in the form of heavy duty felt secured by timber battens at one metre centres both horizontally and vertically to those parts of the adjoining owner’s property, party wall, exposed because of the works. This will be maintained until

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For How Long May I Rely On My Party Structure Notice?

His Honor Edward Bailey and Matthew Hearsum

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T H I S A L L S E E M S C L E A R E N O U G H . I T M I G H T be

B Y V I R T U E O F S 3 O F T H E PA R T Y WA L L E T C

Act 1998 the exercise by a building owner of any of his rights under s 2(2) of the Act is dependent on the service of a party structure notice. Such a notice must be served “at least two months before the date on which the proposed work will begin”, see s 3(2)(a), a statutory inception date for a notice to valid. But once the party structure notice has been served, for how long may it be relied on; is there a statutory limitation date after which the notice ceases to valid?

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thought that ten months is ample time in which to start work, and all that is required is that the work to which the notice relates actually start. No other progress is needed.

But of course no building owner can ever get ten months to utilise his notice, because unless he receives the consent of the adjoining owner to his work, he has to obtain an award from one or more surveyors appointed in accordance with s 10(2) of the 1996 Act to resolve the actual or deemed dispute that has arisen between himself and the adjoining owner.

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T H E S TAT U TO RY A N S W E R TO T H I S question is

H OW LO NG A NY PA RT Y- A P P O I N T E D surveyors or third surveyor take to make the necessary award will be heavily fact dependent. In most cases the making of the necessary award should take only a short time to make, and even including a week or two for the surveyors to draw up a schedule of condition, the building owner will have much of his ten month validity period within which to start his work.

After all, the purpose of the 1996 Act is to provide a quick and efficient method of dispute resolution. On the other hand there will be (occasional?) cases where preparation of the award is a complex matter, particularly where engineering calculations are involved and the building owner may not been have careful to get all his ducks in a row before serving his party structure notice. Even so, it will be a rare case where the preparation of the award soaks up all the ten month validity period.

two-fold. The provisions of s 3(2) of the Party Wall etc Act 1998 specify that “A party structure notice shall – (b) cease to have effect if the work to which it relates – (i) has not begun within the period of twelve month beginning with the day on which the notice is served; and (ii) is not prosecuted with due diligence”. This would appear to be straightforward enough. If you don’t use your party structure notice in time you lose it. And, it may be noted, the Act allows the building owner only a ten month period in which to use his notice. The twelve months limitation runs from the day of service, but that day must be at least two months before the work begins, see s 3(2)(a).

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SO WH AT ’ S T H E PRO BL EM? T H E PROBL EM arises where the adjoining owner does not much like the award and decides to exercise his right to appeal it under s 10(17) of the 1996 Act. Gone are the days when parties could have some confidence that Central London County Court will give them an early date for their appeal.

As things stand at present as soon as an appeal is launched the adjoining owner can be pretty confident that the building owner will lose the entirety of his party structure notice validity period. So, even if at the end of the day the adjoining owner loses his appeal, he will have the satisfaction of knowing that the building owner will be unable to rely on his party structure notice and will have to start all over again.

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Building Act 1894 are as follows: 90(4) A party wall or structure notice shall not be available for the exercise of any right unless the work to which the notice relates is begun within six months after the service thereof and is prosecuted with due diligence.

I N T H E L E A D B E T T E R A N D OT H E R S ( N O. 2 )

case the Marylebone Corporation, which owned 34 John Street, off the Edgware Road, proceeded to raise the height of the party wall with 33 John Street without serving a party structure notice in reliance of an award made in connection with a dispute arising on a notice served by Mr Leadbetter, the owner of 33 John Street, in respect of works he wished to undertake to his property. The surveyors’ award, in addition to authorising the works at 33 John Street, stated in terms that the Corporation should have the right at any time to raise the party wall as they might desire. This aspect of the award was clearly ultra vires the surveyors and in due course the Court of Appeal said so, see Leadbetter and others v Marylebone Corporation (No.1) [1904] 2 KB 893. Suitably chastened (one hopes) the Corporation served the requisite notices, to which Mr Leadbetter and other adjoining owners objected. It became necessary to make an award, the process frequently referred to at the time as arbitration. But it all took some time. As Mathew LJ put it, at p.665:

OR WILL HE? THE ISSUE AROSE IN THE C A SE

of Leadbetter and others v Marylebone Corporation (No.2) [1905] 1 KB 661 where the problem facing the building owner, the Corporation, was that it did not obtain an award within the statutory limitation period for validity of its party structure notice, then only six months. The Court of Appeal held that the statutory limitation then contained in the London Building Act 1894 s 90(4) did not apply in a case where a dispute or deemed dispute arose. Mathew LJ said “I cannot see any indication in the Act that the limit of six months given by s 90(4) is to apply to such a case” ie a case where differences arise between the owner. Cozens-Hardy LJ said: “I cannot think that the intention [of parliament] was that [where surveyors were appointed to settle differences] the whole of the proceeding should become nugatory unless the award could be perfected”. The Learned Lord Justice made the point that ‘perfecting’ the award might involve court proceedings, with the clear implication that there was little prospect that these could achieve a result within the statutory period.

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T H E R E L E VA N T P ROV I S I O N S O F T H E LO N D O N

“The requisite notices were forthwith served upon these parties by the defendants; but a considerable period of time was consumed in making the necessary arrangements for arbitration, and also in consequence of difficulties which appear to have arisen in dealing with the matters in difference between the defendants and the several adjoining owners; and it was not until shortly before the expiration of six months from the giving of the party-wall notice to the plaintiffs that the arbitrators were in a position to proceed to make their award with regard to these matters. Before any award was made in respect of the differences between the plaintiffs and the defendants, the period of six months from the giving of the building owner’s notice by the defendants expired, and the plaintiffs thereupon gave notice that, the six months having expired, the powers of the arbitrators were at an end.”

WA S T H I S D E C I S I O N J U S T I F I E D O N T H E

statute or was it a splendid, albeit practical, piece of judicial legislation? And in either case where does this decision stand today? In “The New Party Wall Casebook” by Nicholas Isaac QC and Matthew Hearsum, the learned authors point out that the wording of the relevant provisions of the 1894 Act, is “broadly similar but certainly not identical to that now contained in sections 3(2)(b) and 6(8) of the 1996 Act”, but that “Nonetheless, the fundamental basis for this decision, namely that once a dispute has arisen or is deemed to have arisen, a party wall notice has served it purpose, and the surveyors have an authority to resolve such dispute without regard to times limits, is generally considered to apply to the 1996 Act, albeit it remains untested in modern times”. The competition, in the shape of Bickford-Smith, Nicholls and Smith “Party Walls : Law and Practice” 4th Edition take a similar view, see [4.33] “Although the wording of s 6(8)(a) is different from s 90(4) of the 1894 Act, it is not thought that the differences will affect this common sense decision, which has stood for so long.”

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P L A I N LY

THE

DEFENDANTS

FOUND

themselves in an unenviable position. As Mathew LJ put it, at p.656 of the report: “I think it would be a great hardship if, under the circumstances, and after considerable expense must have been incurred by the defendants in relation to the settlement of the

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differences between them and the adjoining owners, all the previous proceedings should thus become fruitless; but such, of course, may be the law.” How did Mathew LJ reach the conclusion that this was not the law. With respect to the learned Lord Justice the argument is far from impressive.

Having set out the words of s 90(4) (see above):

G I V I N G T H E OT H E R J U D G M E N T O F T H E court (it was a two person court of appeal) Cozens-Hardy LJ also drew a distinction between the case where the adjoining owner did or did not consent to the works (s 90(4) could not, after all, be ignored altogether) but took a slightly different approach. Where differences having arisen “ further proceedings have to be taken” ie surveyors appointed to settle the differences:

“That sub-section appears to me to provide for cases in which a building owner’s notice is given with respect to a party wall, and, the adjoining owner consenting thereto, no difference arises between the building owner and the adjoining owner. But another and most important section in reference to this subject is s.91, which contemplates the case in which, a building owner’s notice having been served, differences arise, in which case there is to be an arbitration by surveyors for the settlement of those differences. I cannot see any indication in the Act that the limit of six months given by s 90(4) is to apply to such a case.” (emphasis added.)

“In that case the rights of the parties under the Act would appear to depend not so much on the partywall notice as on the award made by the surveyors. I cannot think that the intention was that in that case the whole of the proceedings should become nugatory, unless the award could be perfected .. within the period of six months from the giving of the party-wall notice”.

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C E R TA I N LY , P R O V I D E D A VA L I D P A R T Y -

wall notice has been served, the statutory procedure has moved on from the notice to the award, but the rights of the parties depend on both. A valid award may only be made where a valid notice has first been served. The surveyors may proceed (properly or improperly) to make an award but on the face of the Act should there not be a mantra “no valid notice, no valid award”. And, importantly, the court in Leadbetter and others did not address the second part of s 90(4), namely the requirement for validity of a party structure notice that the work is not only begun with the prescribed period but also “is prosecuted with due diligence”. How is this statutory provision to be approached? Should a building owner start in time, but then allow work to grind to a halt the adjoining owner can be very seriously prejudiced. Is the adjoining owner dependent on the party wall surveyors including a provision in the award that the work be prosecuted with due diligence? Many awards do indeed make such a provision, but should it be absent from any particular award is the adjoining owner faced with the prospect of a deserted building site blighting his property for years? The Act clearly intends that building owners should get on with their works and not just sit on their rights, a perfectly sensible intention, and this is the way Parliament has chosen to make this provision.

This is an astonishing piece of judicial argument. The indication in the Act that a six months limit applies is in s 90(4), part of a series of provisions relating to the use by a building owner of the rights granted to him under the Act, with the marginal note “Rules as to exercise of rights by building and adjoining owners.” Why should the Act specify that the rule only apply when there are no differences between the owners? This, one may suggest, is when the rule is of little relevance. The owners are in agreement, the building owner can get on with his works. Certainly, the officious bystander may say, with some justification, that it is not right that the building owner, having obtained the consent of the adjoining owner, should then delay his work, perhaps for years. But if getting on with the work is of importance to the adjoining owner it is always open to him to make a start date for the works a condition of his consent.

Section 91 of the 1894 Act is the equivalent of s 10 of the 1996 Act and contains a series of provisions relating to the making of a party wall award. These are in somewhat different terms to the present s 10, but subject to much the same general structure. The marginal note is “Settlement of difference between building and adjoining owners” (compare the 1996 Act “Resolution of disputes”). In the scheme of the Act the party structure notice is in place, a difference has arisen, and any rules governing the exercise of the building owner’s rights do not come into the picture. If a different rule was to apply between cases where the adjoining owner consents to the works and those where he does not, the obvious place to put it would be in s 90 which deals with the exercise of rights requiring the service of a party structure notice.

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A D M I T T E D LY, I T M AY B E E N V I S AG E D T H AT

all sorts of problems may arise on a plain interpretation of the Act in a case where the building owner’s work grinds to a halt. As the plain words of the Act are that in this event the party structure notice ceases to have effect, invalidating the award, the whole of the work which has already been carried out in reliance on the building owner’s statutory rights becomes invalid. On the

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face of it the building owner may be required to rip out all this work, and, essentially, return the party wall to the state it was in before the work began. All manner of hardship may arise: “all the previous work will become fruitless; but such, of course, may be the law.” In Leadbetter the Court of Appeal got the building owner out of his problem by stating that the clear words of s 90(4) only applied where no differences arose and not when they did. How would they row the building owner (or the adjoining owner) out of the problem which would arise if the works were not prosecuted with due diligence? Does the same answer apply, namely s 90(4) only applies where there is no dispute? And if so, why did Parliament not make this clear? The simple fact of the matter is that the Act makes quite separate provision for the validity of party structure notices (or adjacent excavation and construction notices) by reference both to service and prosecution of any authorised work, and making a distinction between work which is carried out with the consent of the adjoining owner and work which is carried out under the authority of an award cannot properly be justified on the wording of the Act, whether 1894, 1930, 1939, or 1996.

which might be relied on in considering the appropriate interpretation of this sub-section.

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UPSHOT

IS

T H AT

WERE

THE

question of the validity of a party wall notice after the 12 month period to come before the court, it would be open to court to follow the decision in Leadbetter and others v Marylebone Corporation no so much on the basis that this case was rightly decided but on the basis that parliament has reenacted the relevant statutory provision three times now without making it clear that Leadbetter and others was wrongly decided, thus implicitly endorsing the decision. But wrongly decided it was, and the problem inherent in the decision should be addressed in any future amendments to the Act.

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IT

SHOULD

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BE

NOTED

T H AT

building owners whose legitimate rights have been frustrated by an appeal are not left without a remedy. An appeal does not automatically stay the effect of an award. A building owner is, therefore, free to continue to exercise his rights under an award unless and until the appeal court stays the effect of the award, albeit they accept the risk that if the appeal is well founded, it may be the case that some or all of the works may have to be removed or modified.

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T H E 189 4 AC T WA S F OL LOW ED BY TH E 1930 Act which, for present purposes, is in exactly the same terms as the 1894 Act, s 116(4) and s 117 replacing s 90(4) and s 91 respectively. On 3 February 1931 the London County Council decided to appoint an advisory committee to report to the Council as to any necessary amendment to the London Building Act. The advisory committee reported in 1935. All the various parts of the London Building Act were covered. Party Wall provisions warranted little more than half a page of Principal Recommendations but two page s of Detailed Recommendations in the report. The committee reported that the party wall provisions of the previous Acts had worked well, but with a number of exceptions in respect of which changes were recommended. The validity of partywall or party structure notices did not feature in the exceptions. Accordingly s 47(3) of the London Building Acts (Amendment) Act 1939 is in very similar terms to s 90(4) of the 1894 Act (minor updating to the language only). In contrast s 91 of the 1894 Act (s 117 of the 1930 Act) now appears in quite different terms, the forerunner of s 10 1996 Act.

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I F T H E A P P E A L C O U R T D O E S S TAY T H E

award, it will almost certainly be on the condition that an adjoining owner gives the usual cross undertaking that they will compensate a building owner for any losses that the Court thinks is just that the adjoining owner should pay. These may include the costs of re-serving the notices and a tribunal of surveyors re-determining the dispute.

His Honor Edward Bailey

T H I S B R I N G S U S TO T H E 1 9 9 6 AC T T H E

clams.tcc@gmail.com

terms of s 3(2) of which are set out in paragraph 2 above. Apart from lengthening the period of validity to 12 months, a welcome change, s 3(2) is in very similar terms to its forerunner legislation. There was no discussion of s 3(2) in the second reading debate in Parliament on the 1996 Bill, so there is no Hansard material

Matthew Hearsum

matthew.hearsum@jmw.co.uk

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CREDIT

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The Report Pyramus & Thisbe Society National Conference 2024 21 The Pyramus & Thisbe Society

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short break appeared, judging by the questions put the presenters, to assist the delegates in remaining focused during the day and the delicious but alcohol free buffet lunch did not result in too much snoring in the afternoon sessions!

As we all know as members of the P&T Society and practicing surveyors accepting instructions under Section 10 of the Act; every day is a school day and with open minds there is always capacity to learn from each other, both how to and perhaps more importantly, how not to! The conference gave an excellent opportunity to learn from other members, to hear legal opinion and legal updates, to put faces to names and exchange views and experiences; all in good company in an excellent venue.

Thank you to all that assisted and attended both in person and virtually. Long may the opportunity for the exchange of opinions within the Society lead to excellence in the practice of appointed surveyors.

H E P & T S O C I E T Y ’ S F I R S T N AT I O N A L

Conference outside London hosted by East and West Midland Branches was held at The Exchange in Birmingham on 6th November.

The venue was deliberately chosen to provide capacity for 120 delegates attending on the day and because the venue, operated by Birmingham University, provided in house facility for virtual attendance for delegates.

The organising committee consisting of the two Branch Chairs, Mike Boast and myself, assisted by James Beat and Graham Thompson, received mixed messages in regard to the possible attendance of delegates travelling to Birmingham. It transpired that the venue could likely have been filled twice over and this should be taken as encouragement for other branches considering organising the National Conference in future.

Unfortunately, on the day particularly in the first few hours, there were IT difficulties, and we are currently reviewing the recording of the event in order to offer the virtual attendees some form of recording and/or perhaps recompense.

The format of having each presentation followed by a

Derek G Bate MRICS MCABE FPTS(Hon) MFPWS West Midlands Branch Chair derek@barnsleybate.co.uk

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Book Review by Nicholas Brown Party Wall Disputes: The Party Wall etc. Act 1996 and Beyond – Legal Coherence and Dispute Management Author: Dr. Laura Lintott FCIArb

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types of alternative dispute resolution). Her breakdown of these steps is both systematic and enlightening, offering readers a step-by-step guide to navigating potential conflicts.

By illustrating these points with well-chosen case studies, she breathes life into what could otherwise be a dry discussion, showcasing how theory translates into practice.

What is particularly striking is the way Dr. Lintott addresses the impartiality of the party Wall Surveyor in party wall disputes. While the legal and technical aspects are covered in exhaustive detail, she never loses sight of the interpersonal conflicts that often underpin these issues. Her writing encourages professionals to approach disputes with empathy and a problem-solving mindset, emphasising the importance of communication and negotiation in resolving conflicts amicably. “Collaborative” approach is mentioned numerous times throughout the book. This balanced perspective is refreshing and makes the book as much about conflict resolution as it is about legal compliance.

Another significant strength of this book is its forwardlooking approach. The “beyond” in the title signals a focus on emerging challenges and opportunities in the party wall industry. Dr. Lintott engages thoughtfully with issues such as the limit of the Surveyor’s jurisdiction in party wall matters and the avenues and appetite for disputes to be resolved.

The book distinguishes itself by extending its scope beyond the confines of party wall matters into other relevant legislation to party wall disputes, areas of tortious matters (such as breaches of rights to light) and proprietary rights.

This broader focus enriches the reader’s understanding of the interconnected legal frameworks that often overlap in property disputes. By addressing rights of light, Dr. Lintott highlights a critical aspect of construction law that frequently arises alongside party wall issues, particularly in urban environments where space and light are contested commodities. Through clear explanations and illustrative case studies, she explores how rights of light are established, protected, and potentially infringed upon, equipping readers with advice on how to navigate these overlapping concerns effectively. This integration of broader legal principles ensures the book is not just a manual for party wall matters but a comprehensive guide to how the Act links into a wider range of boundary and property disputes.

Dr. Lintott’s expertise shines through in her discussion of case law, which forms a critical part of the book. Her

R . L A U R A L I N TOT T ’ S PA RT Y WA L L

Disputes: The Party Wall etc. Act 1996 and Beyond is an indispensable guide for anyone working in the realm of party wall matters, from surveyors and construction professionals to legal practitioners and property owners seeking clarity.

This expertly written text combines a thorough understanding of the Party Wall etc. Act 1996 with practical insights into its application, offering readers not only a foundational grasp of the Act itself but also a nuanced understanding of dispute resolution within this oftencontentious area of the construction and property industries.

What sets Dr. Lintott’s book apart is the clarity with which complex concepts are unpacked. Legal frameworks, often fraught with jargon and dense technicality, are here presented with exceptional lucidity. Dr. Lintott adopts an accessible writing style without compromising on depth, making this text a joy to read for seasoned professionals and newcomers alike.

Throughout the book, her ability to distil legal principles into actionable advice ensures that readers walk away with a robust understanding of their rights, responsibilities, and practical strategies for managing party wall disputes. The section on potential reforms is thought provoking and realistic.

The book is meticulously structured to guide the reader logically through the Party Wall etc. Act 1996, from its origins and purpose to its application in real-world scenarios.

The initial chapters lay a strong foundation, detailing the historical context and legislative evolution that shaped the Act. For those unfamiliar with its broader implications, Dr. Lintott explains with precision how the Act balances the rights of adjoining owners while promoting collaborative approaches to construction near shared boundaries. This contextual grounding is invaluable, as it ensures the reader understands not just the “what” but also the “why” behind the legislation.

One of the book’s standout qualities is its comprehensive analysis of dispute resolution, a critical and often misunderstood aspect of the Party Wall process. Dr. Lintott delves deeply into the procedural mechanisms available under the Act, such as the appointment of surveyors, the preparation of awards, and the appeals process as well as outside of the Party Wall etc. Act 1996 (including different

24 The Pyramus & Thisbe Society

selection of cases is judicious, focusing on those that have shaped the interpretation and application of the Act. The analysis is thorough yet accessible, with Dr. Lintott highlighting key takeaways without overwhelming the reader with excessive detail. This balance makes the book suitable for both legal professionals seeking deeper insights and surveyors looking for practical guidance.

Finally, the book is also commendable for its practical visual tools, which deserve praise. It includes numerous diagrams, flowcharts and tables, which will undoubtedly prove invaluable to practitioners and are used effectively to clarify complex points, making the text engaging and easy to follow. The result is that these visual aids complement the text perfectly, breaking up dense information and ensuring the content remains digestible. Such resources are accompanied by clear explanations, ensuring readers understand how to follow them in specific circumstances.

Such additions make the book not only a reference text but also a practical handbook for day-to-day use.

In conclusion, Party Wall Disputes: The Party Wall etc. Act 1996 and Beyond is a masterclass in how to write about a specialised subject with both rigor and accessibility. Dr. Laura Lintott has not only illuminated the intricacies of the Party Wall etc. Act 1996 but also provided a roadmap for resolving disputes in a fair, constructive and contextual manner going beyond the Party Wall etc. Act 1996 as well.

Her balanced approach, combining legal acumen with practical advice and an appreciation of how the lay person is

affected by the Act, makes this book a must-read for anyone involved in party wall matters.

For those in the construction and property sectors, this book is an invaluable tool for navigating the complexities of the Party Wall etc. Act 1996. More broadly, it sets a benchmark for how technical texts should be written: with clarity, authority, and an unwavering focus on the needs of the reader. Dr. Lintott’s work not only furthers our understanding of party wall disputes but also raises the standard for professional guidance in the industry. This book is certain to become a staple on the shelves of practitioners for years to come.

Nicholas Brown BSc (Hons) FRICS MFPWS MCIArb nick@ashridgesurveyors.co.uk

A preview sample of this book was provided for the purposes of this review

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From

the

Vaults 26 The Pyramus & Thisbe Society

The Story Of Pyramus & Thisbe Originated In The Mists of Time Martin O’Shea

O

crack would bring in the Surveyors, loss adjusters and contractors and thus part the lovers utterly.

“But in this tiny crack may our great loves.

Invisibly to us, meet and mingle!

Then each would kiss the crack in the cold plaster’

V I D R ECO R D ED IT A S A TAL E TO L D BY

one of the daughters of Minyas while the women spun and threaded. It is a simple story of lovc, misunderstanding and disaster.

The couple, though forbidden to see each other, fall in love through the crack in the party wall between their families’ houses. They decide to meet one night in a quiet spot outside the town. Thisbe arrived first and whilst waiting for Pyramus was frightened by a lion who, having recently eaten, went to the stream to drink. On scurrying away, Thisbe dropped her shawl, which the lion found, played with, and tore, leaving on it bloody stains from his gory meal before departing. Whilst Thisbe was still hiding Pyramus turned up, found the bloody and ravaged shawl and, believing the worst, stabbed himself, unable to continue life without his love. Thisbe then arrived and, being of similar passion, also stabbed herself whilst embracing her love. The relevance of this tale to Party Wall Surveyors is in the detail, in the message, and possibly in the result: According to Ovid “the lofty party wall between Pyramus & Thisbe’s house was of brick and was said to have been built by Semiramis.”

Semiramis was not proud of his creation since “the crack developed in the party wall when it was being built.”

As all P & T members can confirm by experience, “this fault had gone unnoticed for long years” This is a clear case of a latent defect, which the lovers had no intention of disclosing to the respective owners. Not only did they talk through the wall, but they could feel each other’s breath and “oft times wished enough that they could embrace” Thus the adjoining occupiers had very different views of the defect from those of the Adjoining Owners.

The deceased Poet Laureate, Ted Hughes, also wrote an interpretation of this tragic tale and for him it was the very mud-brick city of Babylon and the crack was “a result of earth-tremors” As a justifiable ground-movement claim, there would, in the eyes of a 20th century and street-wise poet, seem little point in raising the matter of the unreliable Semiramis and the crack which only the kids had noticed. In Hughes’ version, whilst the lovers also wished the crack to widen for the purpose of embracing, they also feared that too large a

As every schoolboy knows, William Shakespeare selected Nick Bottom and Francis Flute for the respective Pyramus & Thisbe roles in his rustic interpretation of Ovid, and it is to his Master Snout that all Party Wall Surveyors should bow and be thankful. It was Master Snout who stated “In this same interlude it doth befall That I, one Snout by name, present a wall…

And such a wall, as I would have you think That in it a crannied hole or chink” You will recall that Wall held his fingers thus and thus performed the task of “that vile Wall which did these lovers sunder” And after his brief performance… “my part discharged so: and, being done. thus Wall away doth go.” (exit) The story (Soap?) proceeds and Thisbe dies.

Moonshine and Lion are left to bury the dead “Ay, and Wall too” says Demetrius Bottom (starting up) says “No, I assure you; the all is down that parted their fathers.”

Thus we have our motto It took the deaths of both owners’ children to bring down the wall between forbidding parents. Whilst the party wall divides, faults or changes to the party wall can result in the bringing together of disputing parties and it is here that the true role of the Party Wall Surveyor lies. The late John Anstey continually advocated as desirable the use of the Agreed Surveyor, the truly arbitrary agent, and it is the lesson of Pyramus & Thisbe and Master Snout the tinker that should be ever with us in our dealings. To administer the Act, to impartially act through the wall and our “… part discharged so; and, being done, thus Wall away doth go.” (exit) First published in Whispers 5 Summer 2001

27 The Pyramus & Thisbe Society



The Twelve Days of…

David Moon

28 The Pyramus & Thisbe Society

I

Tunbridge Wells until it was finished. As students at the Poly, we used felt markers to highlight our drawings. It was a trick I learned while working in a government drawing office during my sandwich year. The markers I used for the oast house project were still in working order - after 50 years lost in a stationery cabinet.

I joined the Ministry of Public Building and Works in 1970, as a student surveyor. At the back of a desk drawer, I found my HMSO issue address book. I had also kept a level survey book recording the disastrous trip to Liverpool which culminated in a large part of the city being plunged into darkness as a result of our wayward setting out of the boreholes. One of my yellow road paint crosses marking ‘the spot’ was directly above a high voltage cable installed during the war to power an anti-aircraft battery. Nobody knew the cable was there - until we found it.

My civil service career came to an end in 1978. I joined Davis & Co., a West End firm of chartered surveyors and estate agents. Another souvenir safely recovered, is a framed black and white photograph of the office at 62 Berners Street.

I guess it was taken in the 1950’s. I found a (cigar) box of keys, all with Davis & Co. luggage tags giving a precise description of the locks they opened many years ago. Among the more intriguing labels are; “New filing cabinet in Miss Clarke’s Room” and “Gas lighting cupboard”. Dating from around the same period, a rubber stamp impressed with “SEE OVER”. All of these objects conjure a picture of an analogue world where gas lamps (yes, really) were kept available for the possibility of failure of the national grid. l

T WA S C H R IS T MA S E V E 2 0 2 2 . A S I T H O U G H T

about the approaching end of a long and tumultuous year, I also reflected on the twelve days - give or take - it had taken to clear my office. We were moving or by the time you read this, will have moved, from our home of 43 years in Margaret Street, to new digs in Seymour Place.

The task of preparing for relocation is daunting by any standards but all the more so knowing that not all of the ‘priceless’ artefacts, records and paraphernalia collected over 50 years of professional life, can come too.

What to keep? What to discard? The decisions were often difficult. Was there a practical value? How much space would it take up? Will I ever need it again? Many of my choices were impractical, illogical and downright sentimental. Mrs. Moon was very clear. None of it was worth keeping with the possible exception of the carved wooden shop sign advertising the wares of a prosthetic limb manufacturer with premises in Strand to which she had taken a shine.

A land chain appeared. It was hiding on the floor behind a chair in a dark corner. Will I ever use it? No! But it brings back memories of we student surveyors in Leicester’s Welford Park in 1971, setting out ranging rods and trying to ‘throw out’ the chain in a straight line as demonstrated with casual ease by our tutor, the great Walter “Jock” Whyte.

My student days also yielded my final year project, tucked behind a drawing stand and still in its burgundy portfolio; an oast house in Kent. It was a strawberry farm near Pembury. My dad helped with the measured survey and we stayed with my uncle and aunt in

29 The Pyramus & Thisbe Society

remember 1973 and the three day week. Then, the acme of labour-saving convenience, was a rubber stamp.

Miss Clarke by the way, was secretary to one of the partners. Vera’s typing speed was in the Ferrari bracket and faultless, on a manual typewriter.

A rather more important and lasting memento of Davis & Co. Is the photograph below. It records the unveiling of a Portland stone bas relief by Gilbert Bayes who was a local artist, at the nursery end of Lord’s cricket ground in the 1930’s. The chap standing on the dais is David Isaacs who founded the firm and is seen here officiating. The original photograph was donated to the Lord’s museum. I rescued this copy.

In 1987 Davis & Co. merged with William H Brown, a Lincolnshire firm of land agents, estate agents and surveyors. Two of my salvaged objects belong to that period which lasted until 1998. I soon discovered that the group chairman, Michael Brown, was a very keen follower of cricket. It did not take long for a match to be organised between the London offices and the rest of the firm. It was generously hosted by Michael at a club

ground in Hertingfordbury. In short, Michael’s team of regular players including a handful of retired first class and current minor counties batsmen and bowlers, beat us comprehensively. I found the scorebook recording this and many other friendly matches played by Davis & Co. and WHB against a variety of teams, mostly on uncertain pitches in Regent’s Park. The second item is a brass plaque. It was awarded by Henry Stewart Publications for the winning entry in the 1991 structural survey report competition. Richard Brown and I won it for a report we produced together on a Manor House in rural Kent.

I kept a complete change of clothes in the office. This precaution came about because of an unfortunate incident more than 20 years ago in Islington. I was the appointed surveyor for a developer of a stylish group of mews houses. It was December, very cold and I was in the garden of an adjoining house. So were about 10 other people. It was a small garden with a large pond.

There was not much room to manoeuvre around one another. Needless to say, it was me who finished up in

30 The Pyramus & Thisbe Society

the pond having stepped aside for someone to pass.

Davis Brown became an independent firm in1998 (although the name was coined in 1995). We started out at Davis & Co.’s/WHB’s premises at 9 Margaret where we took over the lease until it ended in 2003. That year we moved up the road to 1 Margaret Street - in stifling August heat and under the delusion that we had organised an efficient operation. The nearly 20 years since have seen a further accumulation of stuff in addition to the impressive catalogue of contents already brought across from no.9. A prominent object in my office for more than ten years, has been a scale model of an AVRO Vulcan.

Very little paperwork survived the great office clearance.

I had years of records from my association with RICS committees, P&T and projects such as the Subterranean Development Bill - all offered up to the shredder. I hung on to one item. I found a script from one of the P&T Christmas shows written, acted and directed by Mikael Rust. Wind in the Willows starred Martin Parsley as Mr. Toad accompanied in supporting roles by Alan Gillett, Sara Burr and Andrew Smith. I played Badger and the

story was narrated brilliantly by Hugh Cross. It was a lot of very silly fun and firmly in the tradition of P&T Christmas concerts.

On Twelfth Night it was time to bring my little ramble through memorabilia to a close. I thought it would be apt to mention 12 objects, but I counted 13 - sorry, 14. Does anybody want a dog bowl?

David Moon FPTS(Hon) Publications Officer

davidcharlesmoon@me.com

31 The Pyramus & Thisbe Society

Patience’s Christmas Crossword 1

2

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1

Always required, never requested, says Minting (8).

4 Great for one’s affairs! (6) 8 Got to wait, mate (10) 9 Good old Ed’ (4) 11 The rarest of replies (7) 14 Be it _____ by the Queen’s most Excellent Majesty… (7) 16 (f) and (j), oooh matron! (6) 17 Notice complies with this subsection if __ __ . (2, 2) (Don’t misspell this one!)

18 With the advice and consent

1 2

A right at 12(a), you say? (7) Are we still using this stuff (following the 2016 Order)?

(5) 3 Must (5) 5 Sells stolen goods (5) 6 Have you appeared? (5) 7 Not again! (4) 10 They want alternative what!? (12) 12 Satha & Bengelloun Zahr argued over it (5) 13 S.2(7)(b) the parapet must be _____ (6) but… 29 ____

of the Lords Spiritual and Temporal, and ________ (7) 19 Appears before 6 Down (2) 21 Prosecute your diligence with it (3) (4) 22 By such of the parties 23 Applies to a Bomber and a Crop wall (5) 26 Time of the (5) 28 Is the (middle class) person so ____ (8) 30 In right of his (5) 31 Level 3 on the (8, 5)

32 The Pyramus & Thisbe Society

not exist before. (3) 15 Where Jesus arose, these arise.

20 Entry?! Only in the rear, surely (8) 22 The Act affords them (6) 24 Appears in the Act, and now on email signatures too! (3) 25 any person ____ being a party (3) 27 Don’t dig yourself into one (4)

ANSWERS IN NEXT ISSUE

D OW N

AC RO S S

ISSUE 53

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Whispers is published by The P yramus and Thisbe Society exclusively for its members by Pongo & Matelot (info@pongoandmatelot .co.uk).

All information correct at time of going to press. All rights reserved. Articles may not be reproduced without written permission from the author. While every care is taken in compiling the content, neither the publisher nor The Pyramus and Thisbe Society assumes responsibility for effects arising from this publication.

The opinions and subjects discussed in this publication are for editorial purposes only. No Members nor the Fellowship of The Pyramus and Thisbe Society accepts liability for any direct or consequential loss arising from the use of this document or its contents. The opinions expressed in this journal are not necessarily the views held throughout The Pyramus and Thisbe Society.

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ISSUE 52