Section 2(2) of the Party Wall etc. Act 1996 contains a list of operations which an Owner is entitled to carry out. Within that list, section 2(2)(f) confirms the Building Owner’s right ‘…to cut in to a party structure for any purpose (which may be or include the purpose of inserting a damp proof course);’ .
However, there also exists the legal principle of “De Minimus Non Curat Lex” (i.e., the law does not concern itself with trifling matters) and it has long been considered that this principle applies to certain works under section 2(2)(f) (e.g., drilling holes for lightweight fixings, etc.).
The debate amongst Party Wall Surveyors as to whether the removal of plaster from a party wall can be considered ‘de minimus’ was addressed by HH Judge Bailey in the recent case of Kelliher -v- Ash Estates Ltd. and Normand Developments Ltd. [2013]. His answer? …….‘it depends’.
In Kelliher -v- Ash, removal of the plaster finish (at ‘No.21’) was carried out using electric drills fitted with chisels. The noise and vibration was enough to alarm builders working in the adjoining property (‘No.19’). There were many other factors to take into account, but ultimately, and amongst other things, the plaster at No.19 became de-bonded and had to be replaced.
Returning to the question as to whether the removal of the plaster should fall within section 2(2)(f), HH Judge Bailey held that the answer depended on how the work was done. If the plaster was in poor condition and could be removed easily it would not be within the Act; but if it is well adhered, and requires percussive machinery to remove it, the Act is engaged.
“As soon as an operative, holding an electric or other Bosch tool whether with a drill end or a spade end, so attacks the plaster that he goes into even the very edge of the brickwork, comprising the party wall, he is then in a position where as I see it he is cutting in to a party structure, for any purpose and in this of course (sic) the removal of plaster, which is covered by section 2(2)(f) of the Act”.
The case clarifies that removal of plaster from a party wall may engage the Act depending on the method of removal used. Owners will need to consider this before ‘soft-stripping’ buildings during refurbishment.
