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Keddie & Keddie v Day (2017) Chelmsford County Court - Injunction

Mrs Day commenced s.6(1) excavations prior to serving notice on 7th February. Mr & Mrs Keddie were the applicants for an injunction against Mrs Day the neighbouring owner who had started building works without service of party wall notices. Mr & Mrs Keddiehad instructed Mr Antino as their expert who wrote on the 7th February a letter which was hand delivered to the defendants house explaining that the commencement of excavations was in breach of s.6(1)(a) & (b) for their foundations and new drainage, and that they should stop works.

The defendants drawings indicated a public sewer running through the claimants’ property which the defendant wanted to connect to this required excavating the claimants’ driveway. They denied this was an excavation.

What they had failed to accept when advised by Philip Antino, is that the excavation of drains were notifiable works and furthermore that these drains were indicated as connecting onto drains and inspection chambers positioned wholly on the adjoining owners land. This would require a right of access, only applicable after notice, and indeed would create structural damage to the claimants paths, driveways etc. A request to stop works was made with the advice that unless an undertaking was given not to continue an inunction would be obtained.

Connecting to a public sewer also required a license from Anglia waterwhich had been applied for. Disappointingly, Mrs Day continued with the excavations on the following morning, the 8th February despite having been advised that continuation of works could lead to an injunction. A request to stop works was made with the advice that unless an undertaking was given not to continue an inunction would be obtained.

On the following morning of the 8th February Mr & Mrs Keddie advised Philip Antino of ongoing works and he recommended that they take legal advice. They did this immediately, and instructed Mr Ashley Bean of Littlestone Cowan Solicitors and Mr Richard Power of Lamb chambers who prepared the appropriate letter to the defendant requesting an undertaking that they stop works and serve the appropriate party wall notices, or an injunction would be applied for.

They completed the foundations to the front of their property; the drain excavations had not been started. Without the appropriate undertaking, Chelmsford County Court issued an immediate injunction to stop any and/or further notifiable works under s.6(1)(a) & (b).

The building owner disputed the need for notices claiming that they had a right to do these works because it was a shared drain and not notifiable. What they had failed to further recognise and understand is that if their contention that the drains were a shared drain they became a public sewer, and accordingly fell within the domain of Anglian Water Authority and it was the defendants obligation to obtain a building over, near to licence prior to these drainage works. They had not obtained the licence, and had no intention of doing so.

Furthermore, Philip Antino submitted that the excavations were below the concrete path, driveway, garage base, and indeed the claimants drains were all structures, and accordingly an excavation below those structures, was inevitable given the invert level depth and therefore notifiable works. The injunction was therefore granted.

The building owners were aware of the without notice application they indicated that they would be at Court but then chose not to participate. As a consequence of the building owners reluctance/refusal to accept their statutory obligations and give an undertaking the injunction was granted.

The Judge arranged for a return date hearing for the 14th February at Chelmsford County Court to give the defendants an opportunity to either undertake not to do any further notifiable works thereby lifting the injunction, or to explain why they believed that the Party Wall etc. Act did not apply.

A resolution was achieved without the need for further legal determination.

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Judges Comments and Opinions regarding Dr. Antino

  • The party wall world is relatively small, the stage of this world contains a number of well-known players, Mr Antino is one of these well-known players and so are his owners instructing solicitor Mr Ashley Bean of Thirsk Winton

    HHJ Bailey - [2016]
  • The Claimants have a very experienced legal team comprising Mr David Mayall of lambchambers & Mr Ashley Bean of thirsK winton and their surveyro Dr. Philip Antino. The evidence in particular of the Defendant’s plans for both the Accessway and the plans and how it impacted upon the Claimants business was important information that The Defendants ahd not provided when requested.

    HHJ Freedland QC - [2021]
  • "Mr Antino is a palpable witness, Mr Antino's explanation of the unique attributes of the "Thompson Plan" greatly assisted the Court to understand the location and extent of the claimants’ boundaries” (Best & Best v Perkins & Dennis in the County Court at Luton).

    HHJ Hildyard - [2015]
  • The appeal was a preliminary hearing of two points in respect of an Award served by Mr Antino and a surveyor appointed by Mr Antino under s.10(4) on behalf of the Building Owners the Appellants. HHJ Luba QC sitting in the Central London County Court held "In my judgment the Award is valid, the use of s.10(4) was the appropriate procedure given the Building Owners refusal to appoint a surveyor. A dispute had arisen that satisfied s.10 procedures, The Award is an impressive piece of work". Schmid v Hulls and Athananasou).

    HHJ Luba QC - [2016]
  • “Mr Antino is an acknowledged expert in the field of party wall issues.”

    HHJ Murfitt QC 2013 - [2015]
  • “I have known Philip for many years as a surveyor, he is a very good surveyor, as this book shows he is a very good author and this book can only advance his reputation”

    HHJ Philip Bartle QC - [2012]
  • “In the appeal of an ex-parte Award served by Mr Antino on behalf of the respondents, in my judgment the respondent is correct. Mr Antino’s contention that it is not a matter for negotiation directly between one surveyor and the other surveyor’s client. Since I have determined that the ex-parte Award was valid the court is still able to determine the Award and under the statutory powers to modify the Award if appropriate. I am grateful to Mr Antino suggesting that I now determine the Award issue “I accept that Mr Antino’s hourly rate is not in my judgment unreasonable. It follows that the fee set out in the ex-parte Award had been properly justified and I therefore award Mr Antino’s fees”. (Bansal v Myers Romford County Court).

    HHJ Platt - [2007]

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