2. Party walls under the Act
3. Works to which the Act applies
4. Party Wall Act Award
5. Costs and Expenses
6. Role of the Court
7. Liability of Surveyors
1.1 Bickford-Smith and Sydenham in their book "Party Walls Law and Practice", 2nd Ed, trace the origins of party wall legislation to the Great Fire of London in 1666. A statute was passed the following year to regulate the construction of party walls between adjoining houses in the City of London to prevent a further conflagration.
1.2 Subsequent legislation, culminating in the London Buildings Act 1894, conferred rights in respect of the alteration or demolition of party walls. This legislation was re-enacted in the London Buildings Act 1930 and then the London Buildings Act (Amendment) Act 1939, but the provisions only applied to the inner London boroughs.
1.3 It was not until 1 July 1997, with the bringing into force of the Party Wall etc Act 1996 that the legislation was extended to the whole country.
1.4 The Party Wall etc Act 1996 basically re-enacted the law as contained in the 1930 and 1939 Acts. Little attempt was made to clarify the law and deal with anomalies in the previous legislation. Decisions on the interpretation of the old law are thus relevant to the present Act.
1.5 Suggestions for reform have been made, for example, by the Pyramus and Thisbe Club on behalf of surveyors and by Bickford Smith and Sydenham. Despite the setting up of a working party by Deputy Prime Minister, John Prescott, there has so far been no reform.
2. PARTY WALLS ETC UNDER THE ACT
2.1 At common law a party wall is a wall in which the owners on either side have a legal interest. It may be a wall separating the owners’ respective buildings or a wall separating courtyards or gardens. Strictly the owner on one side commits a trespass if he carries out works to the party wall without the consent of his neighbour. Obviously the severity of the trespass depends on what he does with the wall. Merely to put in hooks to hang up pictures would hardly attract any sanction, but partial demolition, for example to insert a new fireplace or in connection with the conversion of loft space to living accommodation could well give rise to a claim.
2.2 The PWA overcomes an impasse where owners cannot agree, by providing certain rights and obligations which may be exercised by the owner who proposes to carry out the work ("the Building Owner") in respect of a party wall, subject to compliance with the notice provisions set out in the Act.
2.3 Further, the PWA extends the common law concept of a party wall to embrace, firstly a wall enclosing a building on one or both sides, and secondly a wall that straddles the boundary line between adjacent properties, where there is a building on one side only. If there is no building on either side, the wall is termed a "party fence wall".
2.4 More specifically in the case of a wall which forms part of a building, the Act (Section 20) provides for two species of party wall:
(a) a wall which stands on lands of different owners "to a greater extent than the projection of any artificially formed support on which the wall rests", and
(b) a wall (not falling within (a)) separating buildings in different ownership.
2.5 Thus in case (b) a wall which is entirely on one owner’s side of the boundary will be a party wall if there is another building on the other side owned by his neighbour (whether the wall is legally jointly owned or not). However it will only be a party wall to the extent that there is a building either side. If a building only uses part of the first owner’s wall, the remaining length of wall will fall outside the definition.
2.6 The clumsy definition in paragraph (a) has given rise to a number of problems. The intention, clearly, is that where a wall runs along both sides of the boundary line, it should be treated as a party wall (or a party fence wall, if there is no adjoining building), but not if only the foundations or supports encroach. The assumption seems to be that a boundary will always be a straight line running from the front of the properties to the back, such as to enable Surveyors to determine whether the wall straddles the boundary. However the Act does not legislate for the position where a boundary is not a straight line. For example, the legal boundary of A’s property may follow a line around the edge of a building which extends beyond the edge of the gardens in front and behind the building. The Land Registry filed plan or the owner’s title deeds may reflect this boundary but bear in mind that Land Registry plans normally only show a "general boundary", i.e. one that is not precise. Alternatively the building may have been constructed over the original boundary but after 12 years (under the old law) the owner has acquired title by adverse possession, or, under the Land Registration Act 2002, the owner may be able to claim possessory title after ten years. In these cases I think that Surveyors may take a "robust" view and treat the protruding wall as a party wall, but I know of no authority for this.
2.7 Another problem arises where only the upper part of a building projects over the neighbour’s property. It seemed doubtful if the wall in that case should be treated as a party wall because the projection does not "stand on" the neighbouring land.
3. WORKS TO WHICH THE ACT APPLIES
3.1 The PWA is not merely concerned with party walls. It deals with three situations:
Construction of new build on the "line of junction" between two properties (section 1);
The repair, enlargement, demolition and replacement of party structures (Sections 2-4);
Excavations within certain distances of an adjoining building (Section 6).
3.2 Each section contains separate provisions for the service of notice on the adjoining owner and contain different rights and obligations.
3.3 Where a "line of junction notice" is served under Section 1 by the Building Owner, the Adjoining Owner has an absolute right to refuse to allow the owner to build on the boundary. He can prevent the construction of what would in accordance with Section 1(3) become a party wall (or party fence wall). The Building Owner’s only right of encroachment, having served a line of junction notice, is to construct his footings and foundations below the level of his neighbour’s land, subject to payment of compensation for any damage caused.
3.4 If the Building Owner does not anticipate a need to build encroaching foundations, there will in most cases be little point in serving a line of junction notice. There is little material difference between building up to the boundary and building on it. It may be necessary on the other hand to serve a line of junction notice in a case where the adjoining owner has rights over the building owner’s land e.g. access over maintenance strip. It would appear that the PWA allows an easement of this type to be overridden. (See below).
3.5 The adjoining owner is at some risk if he consents to a line of junction notice because of section 1(3)(b) which states that the expense of building the wall "shall be from time to time defrayed by the two owners in such proportion as has regard to the use made or to be made of the wall by each of them and to the cost of labour and materials prevailing at the time when that use is made by each owner respectively." The usual assumption is that the work is being carried out in the first instance for the benefit of the Building Owner, so he should pay, but the wording leaves the Building Owner free to argue that his neighbour should contribute, as the wall will be of future use to him. As discussed below, the Building Owner could make a claim if the Adjoining Owner built on the wall at a later date. Perhaps the best advice is for the Adjoining Owner only to serve a consent notice if he intends to build his own extension using the wall at some time in the future.
3.6 Rights under Section 1 apply where a Building Owner serves a valid notice ("party structure notice") under Section 3. Subject to the terms of an award in the event of a dispute or deemed dispute with the Adjoining Owner, he can carry out a wide range of work including not only repairs but even demolition and rebuilding; for example where the existing party structure is of insufficient strength or height for the purposes of his intended building. The Adjoining Owner cannot prevent the works from being carried out. His only rights under the PWA are to have all damage occasioned to his property made good at the Building Owner’s expense and to have any relevant flues and chimney stacks carried up to a height and in such materials as may be agreed with the building owner (Section 2(4)).
3.7 The fact that works proposed in respect of a party structure may have adverse effects on his amenity and devalue his property is irrelevant. For that, he would have to rely on making a successful objection to the grant of planning permission (but permission may not always be required), or in a rare case, there may be a covenant against building (but the Building Owner could apply to the Upper Chamber (the Lands Tribunal) under section 84 of the Law of Property Act 1925 to modify or discharge the covenant).
3.8 Section 6 is not concerned with party walls as such, but rather with the proximity of an Adjoining Owner’s building or other structure to an excavation that the Building Owner proposes to carry out. In most cases the excavation will be for the purpose of constructing foundations, but the wording of this section is wide enough to cover an excavation per se, for example, the creation of a ditch or pond. A notice must be served in two alternative situations:
if the excavation is within 3 metres from the Adjoining Owner’s building, and any part of the excavation, building or structure will extend to a lower level than the bottom of the foundations of the adjoining building/structure; or
if the excavation is 6 metres away, in which case one has to draw an imaginary line at a 45° angle from the bottom of the adjoining foundations towards the proposed excavations. If the line hits any part of the proposed excavation, a notice will be required.
3.9 The Act seems to assume that the Building Owner will know where the bottom of his neighbour’s foundations is. No doubt builders (or architects or surveyors) will make a judgement based on experience, but in the absence of a survey there must be an element of guesswork. It is doubtful if the right of entry given to a Building Owner in section 8 to enter on adjoining land "for the purpose of executing any work in pursuance of this Act" would apply, as a survey is not a "work" as such.
3.10 Since the test for a 6 metre notice relies on where the bottom of the foundations comes, it seems to me that the protection will not apply in the case of a building or structure which has no foundations. This will normally eliminate structures such as coal bunkers, which do not need the protection of the Act. But, as Bickford-Smith and Sydenham comment in their book, lightweight structures with no proper foundations are, if anything, more vulnerable to subsidence than more substantial structures which are properly supported. (The authors suggest that the absence of foundations would not be held to be decisive, but do not give an authority for this view).
3.11 The Adjoining Owner cannot object to the proposed work, nor indeed to any building that the foundations may be intended to support, in response to a Section 6 notice. That, again, would be a matter for a planning objection if a planning application is required. There is however, one exception, namely where the Building Owner proposes special foundations, i.e. foundations employing an assemblage of beams or rods to distribute a load. The Adjoining Owner can refuse these outright, which may have the effect of scuppering the Building Owner’s project, for example if he needs to use pile foundation in bad ground.
3.12 The notice must be served at least one month before excavation is due to begin. In this case, unlike a line of junction notice or a party structure notice, there is an express requirement that plans and sections should accompany the notice, which must show the site and depth of the excavation and (if appropriate) the site of the proposed building. In the case of a party structure notice, details must be given of the nature and particulars of the proposed work under section 2 including details of any special foundations, but there is no requirement for plans. In the case of a line of junction notice, no details of the intended building need be given at all. Another inconsistency is in the notice period. Whereas, two months notice is required in the case a party structure notice served under section 3, one month suffices for a notice under Section 6 or a line of junction notice under Section 1.
3.13 If the required plans and sections are not enclosed with a notice under section 6 or appropriate details are not given in a notice under section 3, the notice will not in my view be valid. The relevant period in which the owner can start work will not commence until that defect has been made good by the service of the relevant plans and details. However the Act itself makes no provision as to what is to happen where a building owner starts work having served a defective notice or having ignored the requirements of the PWA altogether. I address this question in section 6.
4. PARTY WALL ACT AWARD
4.1 In the vast majority of cases a Party Wall Act award prepared by a Surveyor acting jointly for the parties or agreed between each side’s Surveyor (or the Third Surveyor appointed to step in if the Surveyors cannot agree) is likely to afford the best protection to an Adjoining Owner. A surveyor (or in some cases an architect or structural engineer appointed as a Party Wall Surveyor) can be expected to have the technical knowledge and hopefully the experience that a householder will not generally have. It is slightly bizarre, therefore, that in order to obtain an award under the Act the Adjoining Owner has to act in a way that seems uncooperative. He may be perfectly happy with his neighbour’s proposals or at my rate have no wish to fall out with him, but if he consents to a notice he would have to pay if he needed to engage a surveyor to inspect and take steps to protect his position. For this reason, surveyors or lawyers specialising in this area will generally advise adjoining owners not to give consent to a notice served under the PWA, so that the disputes procedure under section 10 is triggered.
4.2 A Surveyor employed by the Building Owner is often keen to get himself appointed as a joint surveyor on behalf of the Adjoining Owner as well. In some cases this may not cause a problem, but there is an inherent conflict of interest in a Surveyor acting for both sides, notwithstanding the Surveyor’s duty to act independently and the provisions in Section 10 that a party wall surveyor can only be sacked by his principal(s) in exceptional circumstances.
4.3 If each side appoints a surveyor, the surveyors must immediately select a Third Surveyor to whom reference should be made if the surveyors cannot agree. On a number of occasions I have found that this has not been done and that the surveyors have assumed that the Third Surveyor can be appointed as and when a disagreement arises. This is not the scheme of the Act.
4.4 I do not propose to elaborate on all the matters that can be included in a party wall award. Precedents are available that can be adapted to the situation. I find that Surveyors are sometimes more cautious than they need to be when deciding what to put in an award. Section 10 of the PWA gives a wide discretion as to what may be included. Thus subsection (12) provides that an award may determine –
"the right to execute any work;
the time and manner of executing any work;
any other matter arising out of or incidental to the dispute including the cost of making the award."
This is subject to the limitation that the surveyor(s) cannot authorise work to begin earlier than the period of the Building Owner’s notice without that owner and the Adjoining Owner’s agreement.
4.5 The "right to execute any work" connotes that the Surveyor(s) may specify works that are additional to the building works described in the architect’s plans and specifications. This could, for example, include the right to carry out works on the Adjoining Owner’s property, such as the erection of scaffolding. However these works must be related to the works which are the subject of the dispute under section 10. A notice served under Section 6 will not in my view give the Surveyors the right to specify works which are unrelated to the excavation and construction of foundations.
4.6 Inevitably an award relating to a party structure notice served under section 3 of the Act will authorise works to be carried out to the Adjoining Owner’s property. However, this could also happen in the case of a line of junction service served under section 1. Suppose that the Building Owner wishes to build a wall over, or just within, the boundary line, but the Adjoining Owner’s house projects over that boundary; for example, drainage pipes, or in one case I was involved with, overhanging eaves. The award can enable the gutter to be altered and even the eaves cut through. In this respect, section 9 of the Act is woefully inadequate in protecting the rights of an adjoining owner. It states that nothing shall "authorise any interference with an easement of light or other easements in or relating to a party wall"; but this does not apply to a boundary wall that does not constitute a party wall.
4.7 The provision in paragraph (b) of section 10(12) enables provisions as to the days and times and manner of working to be inserted in order to protect the Adjoining Owner’s comfort and ease of access so far as practicable (and also incidentally the amenities of other neighbours). Surveyors are more wary about the inclusion of provisions for indemnity and insurance in respect of potential damage to the Adjoining Owner’s property. It seems to me that these are essential protections which ought to be included in every award. The wide terms of paragraph (c) in my view justify the inclusion of these provisions.
4.8 Payment of costs is an area where seems to be little consistency of practice between party wall surveyors. Section 10(13) provides that the reasonable costs incurred in -
"making or obtaining an award under this section;
reasonable inspections of work to which the award relates;
any other matter arising out of the dispute,
"shall be paid by such of the parties as the surveyor or surveyors making the award determine".
In making a decision surveyors must have regard to the provisions of section 11 which I discuss below.
4.9 The final constraint that a Surveyor must take into account (and one reason why it is sometimes helpful to have legal advice to hand) is that either the Building Owner or the Adjoining Owner may appeal against the award within 14 days from the date it is served on him. No grounds of appeal are specified, but it is clear that an appeal need not simply be against the legal validity of the award, because the County Court is given power to modify the award in such manner as it thinks fit, as well as to rescind it. I will consider the procedure and nature of an appeal later on in section 6.
5. COSTS AND EXPENSES
5.1 In principle, the Building Owner is to defray the expenses of work "under this Act", and this applies not just to cases referred to Party Wall Surveyor(s) under section 10, but in situations where no dispute has arisen because the Adjoining Owner accepted the Building Owner’s notice. However, the Building Owner’s liability is subject to various refinements.
5.2 In the case of a line of junction notice, section 1(3) already provides that the expense of building the wall shall be defrayed by the two owners in proportion to the use made or to be made of the wall by each of them. (See paragraph 3.5 above).
5.3 In the case of a party structure notice, subsections (4) – (7) of Section 11 provide for expenses to be defrayed in relation to work to a party wall, depending on such factors as the use to be made of the wall or responsibility for any defect or want of repair of the existing wall. The Adjoining Owner can claim a "fair allowance" for disturbance and inconvenience resulting from having his premises laid open in a case under section 2(e) (where the building owner proposes to demolish a wall which is of insufficient strength or height for his intended building): section 11(6). But in a case where an Adjoining Owner exercises his right to prevent the Building Owner reducing the existing height of a party wall or party fence wall under section 2(2)(m), the Adjoining Owner must pay the due proportion of the cost of maintaining its existing height, so far as the wall exceed 2 metres or the height currently enclosed by the Adjoining Owner’s building: section 11(7).
5.4 The Adjoining Owner must also pay the expenses of any additional works that he has himself requested: section 11(9). Section 11 is so worded that, even though the Adjoining Owner has consented to the proposed works, the disputes procedure could be triggered if an argument arises over liability for the payment of costs. It will then be for the joint Surveyor or the parties’ individual surveyors to determine these matters.
5.5 An Adjoining Owner should be warned that if he subsequently makes use of work done at the sole expense of the building owner, the latter can make an retrospective claim against the adjoining owner: section 11(11). Since the subsection says that the expenses are to be assessed by reference to values current at the time the adjoining owner makes use of the work, it would be seem that inflation can be taken into account.
5.6 By that time the adjoining property may have changed hands, and a question arises whether the successor owner is liable for the payment. The Act is ambiguous on this subject. Neither the definition of "Adjoining Owner" or "Building Owner" in section 20 refer to successors. The same section defines "owner" to include a purchaser under a contract for purchase or agreement for lease, but does not refer to a successor owner. In other words it would seem that a successor would only be liable if he had entered into a contract to purchase the property at the time of the dispute. It appears that the question has only been judicially considered in the case of Mason -v- Fulham Corporation, 1910 (under previous legislation relating to London). In that case the Adjoining Owner made the payment to a successor of the original Building Owner. The original Building Owner found out and claimed the payment. The Court rejected his claim on the basis that the right had passed to the successor.
5.7 An Adjoining Owner has the right under section 12 to require the Building Owner to give security for any work that the Building Owner intends to carry out under the Act. However, a deterrent to this is the reciprocal right given to a Building Owner when served with notice to serve a counter-notice demanding security from the Adjoining Owner: section 12(2)(b). The Building Owner can in any event demand security where the Adjoining Owner requires the Building Owner to carry out works for which the Adjoining Owner is required to pay.
5.8 The amount and a form of security could be determined by the party wall surveyor(s) if the disputes procedure has already been activated. Alternatively, the disputes procedure could be triggered on this point.
5.9 The wording of Section 12 requires that a notice of the requirement for security must be served before the relevant works are began. Thus the other owner could refuse if the works have started and notice has not been served in the manner required by Section 15. Note also that the security may only relate to works carried out in pursuance of the Act; the Building Owner cannot be required to give security for other work which may form part of the same scheme. Thus, for example, if the Building Owner has served notice under section 6, the security will only relate to works relating to the excavations and foundations, not to the building as a whole.
5.10 As Bickford Smith and Sydenham point out, the security is intended to guard against the risk of the Building Owner (or Adjoining Owner) not fulfilling his obligations; therefore in determining the amount, the starting point may be to calculate a realistic total of potential claims. They warn that this should be discounted as appropriate, and not used indirectly as a way of placing unreasonable obstacles in the way of the work.
5.11 The provisions of the previous legislation for payment into Court are not repeated in the 1996 Act. Indeed no method is specified. Security can be given in various ways, however. A bond or guarantee could be obtained, or a sum could be deposited in a bank account with a stakeholder or with the joint Surveyor or in the joint names of the two Surveyors, who would determine when it should be released.
5.12 There is no express provision for payment of the Adjoining Owner’s professional costs if he consents to a notice. Where, however, the disputes procedure has to be activated, there is almost invariably a provision in an award for payment of the Adjoining Owner’s Surveyor’s costs by the Building Owner. Payment of legal fees is more contentious. This issue tends to arise in two contexts.
5.13 In the first place, an Adjoining Owner may have gone to a Solicitor in a case where his neighbour is about to start work on the party wall, or has indeed already started work. A well informed Solicitor should normally invite the neighbour to serve the appropriate notice under the Act, and may, assuming that matters have not gone too far, invite the neighbour to agree to a retrospective procedure. (The Act makes no provision for retrospective service of notices and some Surveyors take the view that this is outwith the provisions of the Act. My own view, which has been accepted by the Court, is that if both parties agree to a retrospective dispute procedure then the Act will apply, because either party would be estopped from retracting his agreement later.) The Solicitor may then be involved in putting his client in touch with an appropriate Surveyor.
5.14 A second situation may arise where an owner or a party wall surveyor requires legal advice on the interpretation of the Act in determining his award, or he may require the Solicitor to review the terms of a draft award, when the Solicitor’s task will be not so much to advise on the law but rather to consider the meaning and use of words contained in the award. There are widely differing practices; some Surveyors take the view that lawyers are best kept well away! There is no doubt, however, that if a party incurs legal costs in order to obtain an award or in connection with the preparation of the award, and that advice is reasonably necessary the Surveyor(s) have power under section 10 (13) to include the legal costs, and in my opinion should do so.
Compensation for inconvenience
5.15 The effect of carrying out of building works is often to cause inconvenience to an adjoining owner for a period of weeks or sometimes months. The owner may be seriously hindered in the enjoyment of his property or in obtaining access, and subjected to noise and nuisance and even danger. There is a specific provision for payment of an allowance for disturbance and inconvenience where the adjoining premises are opened up (section 11(6)), and also an obligation under section 7(3) on the Building Owner to provide a hoarding, shoring or fans or temporary construction for the protection of the adjoining property and the security of any adjoining occupier. However section 7(2) contains a more general obligation on the Building Owner to compensate an Adjoining Owner/occupier for any loss or damage resulting from any work executed in pursuance of the Act. This is coupled with a duty in section 7(1) not to act in such manner or at such time as to cause unnecessary inconvenience to him. A breach of that duty could render the building owner liable to an action for damages: Joliffe -v- Woodhouse, 1894 (decided under the Metropolitan Buildings Act 1855).
5.16 How far section 7(2) goes is uncertain. Clearly the Building Owner will be liable for the cost of any actual damage to the Adjoining Owner’s property or for other losses resulting from carrying out the work. However, there is a case for saying that if a Building Owner makes use of, say, an adjoining passageway in order to erect scaffolding, he ought to make a payment by way of quasi rent for the period of use. However, it is doubtful if this is within the scope of "loss or damage" or that it would fall within the Surveyor’s powers under section 10. It has even been suggested that it would not be within the Surveyor’s powers to fix compensation for a breach of the Building Owner’s duty in section 7(1). There was a disagreement between judges in the Court of Appeal in Adams -v- Marylebone BC, 1907, on this point. The view of Vaughn Williams LJ that the balance of convenience favours Surveyors determining the compensation, seems preferable.
6. ROLE OF THE COURT
6.1 The only sanction provided in the Act relates to obstruction of access to land or premises. S.16 makes it an offence for an occupier (not necessarily an owner) to refuse to permit a person to do something which he is entitled to do under section 8(1) or (5), provided he knows or has reasonable cause to believe that the person is so entitled. Thus it is an offence to deny access to the Building Owner or his agent or contractor(s) 8(1) or to a Party Wall Surveyor(s) 8(5). However, the right of access under section 8 is circumscribed and the occupier will have a defence if the Building Owner or Surveyor etc has broken the conditions in the section e.g. failed to give due notice or exceeded his rights under the relevant subsections (e.g. under subsection (1) tried to enter outside usual working hours.
6.2 It is also an offence for a person to hinder or obstruct the Building Owner etc in attempting to do anything he is entitled to do once inside the premises, again provided that the defendant knows or has reasonable cause to believe that the other person is so entitled. Bickford Smith and Sydenham suggest that verbal abuse by an occupier or other intimidation could be sufficient to constitute an offence. On the other hand, mere inaction is insufficient; for example if access to the premises can only be gained in a dangerous and difficult way, the occupier will not be liable for failing to make the access safe. However, there could be a civil liability if the premises are in a dangerous condition.
6.3 The penalty for an offence of obstruction is a fine not exceeding level 3 on the standard scale (currently £1,000.00 on summary conviction in the Magistrates’ Court). As such, there is a six months time limit for bringing the proceedings. It will be important for surveyors to make the occupier aware of their intentions, so that he cannot claim he did not know that the Building Owner’s contractor or surveyor did not have the right to enter or carry out works under the Act.
6.4 It is strange that section 16 provides the only criminal sanction for failure to comply with the requirements of the Act. Nor does it specify express civil remedies for a failure, for example, to serve the appropriate notice under sections 1, 3 or 6. The Adjoining Owner must exercise his remedies at common law.
6.5 In a case where a Party Wall Surveyor, or party-appointed Surveyors, have issued an award and this provides for the Building Owner to pay the costs of the award, the Act gives no express right to the surveyor(s) to sue for his costs. Section 17 states that any sum payable in pursuance of the Act (other than a fine) shall be recoverable summarily as a civil debt. This means that application has to be made by way of a complaint to the Magistrates’ Court for payment in accordance with the Magistrates’ Courts Act 1980. The Magistrates can award costs and enforce payment through a distress warrant, but not impose imprisonment for default in payment. Again, a six months limitation applies to the laying of a complaint in the Magistrates’ Court.
6.6 One would have thought that the use of the words "shall be recoverable summarily" would mean that this is the only way to recover costs. However the view of Bickford Smith and Sydenham is that section 17 does not exclude an ordinary action for debt recovery in the County Court. This would not be subject to a six months limitation period. If the sum exceeds £50,000.00 the action could be brought in the High Court. The authors consider that action in the civil courts is to be preferred to laying a complaint in the Magistrates’ Court because of the Justices’ lack of familiarity with the Party Wall etc Act is likely to cause practical differences. One might say the same of the District Judges in the County Court! Bickford Smith and Sydenham point out that the Civil Procedure Rules 1998 which set out the rules and procedures for civil actions do not apply in the Magistrates’ Court. However, I suspect that a summary action could be simpler and quicker than County Court action.
6.7 What happens if an adjoining owner sees his neighbour start to excavate alongside the boundary of his property, when he has received no notice under the Party Wall etc Act or perhaps at all? This is a not uncommon situation. Many builders and even architects still seem to be unfamiliar with the requirements of the Act. The only remedy, if the builder refuses to stop, is to apply to the Court for an injunction order. This can be done very quickly by lodging a claim, usually in the County Court. If the matter is urgent, a Judge can be asked to hear the application and grant an interim injunction "ex parte" without notice to the Building Owner. The injunction will then be served on the Building Owner and a further hearing will be fixed by the Court as quickly as possible so that both sides can put their case. A common outcome in my experience where a building owner acknowledges that he has failed to comply with the Party Wall etc Act, is for him to give a written undertaking to the Court to comply with the relevant provisions. An undertaking has the same effect as an injunction in that if it is breached the owner will be in contempt of Court and liable to a fine and/or imprisonment. The undertaking will usually lead to a retrospective service of notice and appointment of Party Wall Surveyor(s) in the issue of an award. This may avoid the need for a full hearing of the substantive claim, although it may be necessary to refer back to the Court for an order as to costs. If the Building Owner denies that he has done anything wrong, the claim will have to proceed through the usual stages, possibly leading to a full trial.
6.8 The Civil Procedure Rules provide two alternative methods of starting proceedings; either under CPR Part 8, where there is no significant dispute of fact, or under Part 7 where the facts are in issue. A claim under Part 8 is accompanied by a witness statement, usually of the Claimant, but it could include his Surveyor’s statement, and does not include full particulars of claim as are required under Part 7. The Defendant may argue that Part 8 is the wrong procedure and in practice will do so where he denies the facts claimed; for example, if he denies that the excavation is within 3 metres of the Claimant’s building or is below the bottom of the foundations of that building. If so, the proceedings will be transferred to Part 7.
6.9 It should be borne in mind that an injunction is an equitable remedy, that is, that the Judge has a discretion whether or not to grant the order even if the breach of the requirements of the Act has been proved. It is therefore good practice when applying for an injunction to indicate any actual or potential damage caused by the works carried out by the Building Owner, for example the risk of subsidence resulting from excavations being carried out along the boundary.
Breach of Terms of Party Wall Award
6.10 Again, the Party Wall etc Act 1996 provides no mechanism for enforcing an award under section 10. There is a conceptual argument as to whether an award constitutes a contract, so that a failure to carry out its terms would give rise to an action for a breach of contract. I agree with the view of Bickford Smith and Sydenham that an award cannot be so regarded, because it is not an agreement freely entered into between the parties for valuable consideration; it is an award imposed on the parties by a third party under a duty set out in the Act. It follows that the remedy is an action for breach of statutory duty. The Courts have recognised that a civil action for breach of statutory duty can be brought in these circumstances.
6.11 The aggrieved party’s claim will be based on rules applicable to tort (civil wrong). He will be entitled to be placed in the same position as he would have been if he had not suffered the wrong. This is usually taken to be the diminution in the value of the Claimant’s property, but in cases such as this the diminution in value may not equate to the cost of the works that the building owner was required to carry out. In order to claim these damages, it has been held that the Claimant must demonstrate a genuine intention to carry out those works.
6.12 It is much more difficult to persuade a Court to grant a mandatory injunction for the Building Owner to carry out works to the Adjoining Owner’s property. In any case, relations between the neighbours may by that stage have deteriorated to the extent that the Adjoining Owner does not want the Building Owner’s contractor on his property. However, if a mandatory injunction is to be granted, the Judge must be persuaded that the works can be sufficiently defined by reference to plans and specifications so that the Court could enforce the order.
6.13 Alternatively, if the Adjoining Owner can show that he has suffered a specific loss or damage in circumstances when section 7 applies, he will have a claim to compensation under section 7(2) of the Party Wall etc Act. This would be a matter for the Party Wall Surveyor(s) to determine, but if it is not paid, the adjoining owner can then make a monetary claim in the Court.
Appeal against Award
6.14 Section 10(17) gives either owner the right to appeal to the County Court against an award. The period in which to appeal is extremely short, namely 14 days beginning with the day on which the appellant received the award. This gives very little time for an owner to take legal advice and for papers to be prepared for the Court, so an owner (usually an Adjoining Owner) who is aggrieved will need to take advice as soon as the award lands on his door step.
6.15 Again there has been a controversy over how the right of appeal in section 10(17) is to be fitted into the scheme of the Civil Procedure Rules. In the first appeal I lodged I used the procedure in CPR Part 8. The Courts have subsequently decided that this is the wrong procedure and that Part 52, which relates to appeals. However, Part 52 is generally concerned with appeals from the decision of a lower court, where the appellant court is considering whether a judgement contains an error of law. This does not fit comfortably with an appeal against a party wall award, where the merits of the award have to be considered and further evidence required. In my experience, however, the Court has been prepared to give directions enabling new evidence to be produced and in particular we were allowed to appoint another surveyor in our challenge to an award produced by the Building Owner’s and Adjoining Owner’s surveyors jointly.
6.16 The scope of an appeal is not limited by section 10(17). An aggrieved owner can appeal on the ground that the award is unlawful, for example, that the Surveyor(s) have exceeded their powers under the Act, or that the requirements of the act are excessive or unreasonable in some way. Most of the complaints I have had from adjoining owners have related to awards which authorise the Building Owner to carry out work from the Adjoining Owner’s property, such as to erect scaffolding. We have argued successfully that this was outwith the power of a surveyor to award.
6.17 In an appeal under section10(17), The Building Owner and Adjoining Owner are the parties to the action, not the surveyor(s) whose award is under attack. An award is premised on the basis that there is a dispute between the respective owners and therefore the action should be between themselves rather than against the surveyor(s). However, I regard this as unsatisfactory because the owners have no control over what is contained in a Party Wall Award. They cannot usually sack a surveyor. In all too many instances the owners will not even see the content of an award or have had the chance to comment on a draft award before it is issued. However, if the award is overturned on an appeal by, say, the Adjoining Owner, it is the Building Owner who will normally have an award of costs made against him.
7. LIABILITY OF SURVEYORS
7.1 In principle any professional adviser, whether it be a solicitor, architect, surveyor, engineer etc holds himself out as having the necessary knowledge and skill to advise a client and will be liable to an action for professional negligence if he fails to exercise the requisite skill and care and the client suffers loss as a result. A difficulty arises in the case of a surveyor appointed under section 10, because the Act places him in a position analogous to a judge or arbitrator. It has been argued, therefore, that a party wall surveyor should not be subject to claims in negligence for exercising a quasi-judicial role. He should be in the same position as, say, a judge who is immune from personal liability for his decisions.
7.2 Whether or not a duty of care is owned to a surveyor’s instructing principal, it may in any event be difficult to demonstrate that he has acted negligently in preparing an award or carrying out another function under the Act. Since section 10(17) implicitly allows the merits of an award to be questioned, it is open to the Judge to take a different view of the requirements set out in an award. This does not mean that the surveyor has not exercised due care; it is simply that people can reach a different opinion. If a surveyor is said to have exceeded his powers, there may be a clearer argument for saying that he has been negligent, but again this is not necessarily the case as the Act gives a surveyor a wide discretion and it is often far from clear what he is and is not entitled to do.
7.3 In the case of Arenson v. Casson Beckman Rutley & Co, 1977 the Court cast doubt on the immunity of a surveyor, so the law was subsequently changed to provide immunity: S.29(1) Arbitration Act 1996. However, unless one could say that a party wall surveyor is exercising the role of an arbitrator, this will not assist him. There is nothing in section 10 which would enable a surveyor to claim to exercise that role, nor are party wall surveyors exercising powers under the Act subject to the provisions of the Arbitration Act. Consequently a Party Wall Surveyor may be unable to claim immunity if sued for negligence.
7.4 It is in any event prudent for a surveyor (or other professional person) who proposes to act as a party wall surveyor to ensure that his professional indemnity insurance covers making of awards or other acts in pursuance of the Party Wall etc Act 1996.
John Hughes, BA LLB Solicitor
Director: The John Hughes Law Practice
14-16 Temple Street
DX 13008 Birmingham
Tel: 0845 130 2855
Fax: 0845 130 5299