united-kingdom common-law
In English Law, official guidance can state &quot;minor&quot; matters exempt from a statutory requirement -- but on what authority?
<p>I just noticed an oddity in some legal guidance published by the UK Government. The Party Wall Act states that certain works are covered by its requirements, including the requirement to give notice. However <strong>in apparent contradiction</strong>, official guidance documentation from gov.uk and local councils universally states that quite a wide range of minor works would be considered "so minor" as to not require this provision to be complied with. On the face of it, the statute itself doesn't make any provision for any kind of "<em>de minimis</em>" exception. And yet, it's black-and-white stated in the official government-published guidance.</p>

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

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

<p>The starting point of any analysis has to begin with asking what the scope of the Act's application is i.e. what acts fall under its remit and what does not.  The question is whether Parliament intended the Act to apply to ANY alteration to the structure, or only a certain class of acts.  Clearly it is not the former.  With the latter then in mind, statements like that you pointed out merely acknowledge that the Party Wall Act does not cover every single conceivable alteration to a shared structure, as that statement has to be viewed in its entire context.  You have left out the second half of the statement that stipulates the core principle of the Act, which is that the Act only imposes the req to serve notice only if, generally, the alteration would cause much structural change or damage.</p>

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

<p>Also, it might just be common sense.</p>

<p><a href="http://www.legislation.gov.uk/ukpga/1996/40/section/3" rel="nofollow">Section 3 of the Party Wall etc. Act 1996</a> specifies that:</p>

<blockquote>
  <p>a building owner shall serve on any adjoining owner a notice</p>
</blockquote>

<p>when carrying out any of the repairs listed in <a href="http://www.legislation.gov.uk/ukpga/1996/40/section/2" rel="nofollow">section 2</a> of the Act.</p>

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

<p>This is echoed <a href="https://www.gov.uk/party-walls-building-works/work-tell-your-neighbour-about" rel="nofollow">on the Government website</a>, which gives a summary of work that requires notice, and provides examples of minor work which does not.</p>

<p>The official <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/393927/Party_Wall_etc__Act_1996_-_Explanatory_Booklet.pdf" rel="nofollow">explanatory booklet</a> on the Act goes into a little more detail, explaining that (on p11):</p>

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

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

<p>Bearing in mind that I have no legal training, I would suggest that the answer is in <a href="http://www.legislation.gov.uk/ukpga/1996/40/section/4" rel="nofollow">section 4</a>, which covers counter notices. An adjoining owner may require the building owner to carry out certain additional works "as may reasonably be required for the convenience of the adjoining owner" - but not if it were to "cause unnecessary inconvenience to [the building owner]".</p>

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

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

<p>(A more detailed discussion of the workings of the Act can be found <a href="http://usir.salford.ac.uk/12450/" rel="nofollow">in this paper</a>. One thing that it points out is that the section of the Act relating to party walls is copied almost verbatim from the <a href="http://www.legislation.gov.uk/ukla/1939/97/enacted" rel="nofollow">London Building Acts (Amendment) Act 1939</a>, and hence that the procedures relating to party walls are well established.)</p>
