Section 1(2), (5)
“indicates his desire to build and describes the intended wall”
(a) “name and address of the building owner;”
(b) “the nature and particulars of the proposed work including, in cases where the building owner proposes to construct special foundations, plans, sections and details of construction of the special foundations together with reasonable particulars of the loads to be carried thereby;
(c) and the date on which the proposed work will begin”
“The notice referred to in subsection (5) shall be accompanied by plans and sections showing -
(a) the site and depth of any excavation the building owner proposes to make;
(b) if he proposes to erect a building or structure, its site.”
Gyle Thompson v Wall Street (Properties) Ltd  1 All ER295
“...the steps laid down by the Act should be scrupulously followed throughout and short cuts are not desirable”
Hobbs Hart & Co v Grover  1 Ch 11 p.31 Notices should be
“...sufficiently clear and intelligible to enable the adjoining owner to decide what action to take”
Manu v Euroview Investments Ltd  1 EGLR 165 Notices should be construed benevolently
“...with regard to the fact that it is an instrument intended to take effect between practical men for a practical purpose” per HHJ Marshall.
However, it should also be noted that HHJ Marshall also stated, “I have come to this conclusion on the particular facts of this case, and it does not mean that professionals can afford to relax their standards when drafting notices in accordance with the 1996 Act requirements”
(2) Waiver of Irregularities; Estoppel
Manu v Euroview Investments Ltd  1 EGLR 165
“In my judgment, therefore, a party wall surveyor can by his acts or conduct in appropriate circumstances waive a defect in a notice or create an estoppel that would binds his appointing owner by accepting to act as though the notice were valid.” Sunsaid Property Company Ltd v Omenaka & Omenaka “It seems to me it is far too late now,...to argue that they can set aside the notice now...because the whole process is invalid. That cannot be done. You cannot blow hot and cold. Where a party is willing to overlook deficiencies in the other party’s application and it is to that other party’s advantage that they do so, that other party cannot then say when the going gets a bit rough, “Well, that’s all right, it’s not valid, all the assumptions you have been working under do not apply.” That cannot be right and the party asserting that would be stopped from saying that the notice is of no effect whatsoever.”
Compare Lehmann v Herman,  1 EGLR 172 (ChD) “...a notice...served by or on behalf of only one of two joint tenants is not served by a building owner within the meaning of the section and is invalid”
(3) Expiry of a notice – time limits
Sections 3(2)(b) “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 months beginning with the day on which the notice is served; and
(iI) is not prosecuted with due diligence.”
Section 6(8) is in similar terms.
In the second case of Leadbetter v Marylebone Corp  1KB 661, decided under the London Building Act 1894, Lord Justice Cozens-Hardy said:
“It is a very reasonable provision that the building owner who has served such a notice, to which the adjoining owner has consented, should not be at liberty to exercise those rights after allowing a long period of time say for instance, two years, to elapse without acting on the notice. But different considerations appear to me to apply to a case where, differences having arisen, further proceedings have to be taken, and surveyors appointed to settle those differences under section .91. In that case the rights of the parties under the Act would appear to depend not so much on the party wall notice as on the award made by the surveyors.”
Accordingly, it would appear that the time limits prescribed above only apply when the notice is consented to, and not when a dispute has arisen and surveyors are seized of the matter.
APPOINTMENTS & SELECTIONS
(1) Must be in writing
Section 10(2) of the 1996 Act applying.
Gyle Thompson v Wall Street (Properties) Ltd  1 All ER 295 “...the procedural requirements of the Act are important and the approach of surveyors to those requirements ought not to be casual. It would be a wise precaution for the surveyor of the building owner and the surveyor of the adjoining owner to inspect each other’s written appointment before they perform their statutory functions. Neither of them has power to concur in an award unless both of them have been duly appointed....It would be wise precaution for the third surveyor on accepting office to inspect the written appointments of those selecting him; unless they have been duly appointed, they have no power to select a third surveyor; if the third surveyor has not been validly selected in writing, he has no power to concur in an award.” “...I am not concerned with any question of the extent to which an irregularity is capable of being waived, or cured by estoppel.”
(2) The appointment is personal, and should not be of a company.
Section 10(3)(c) & 10(9)(c) – reference to ‘death’
Loost v Kremer West London County Court, 12 May 1997, “Under the Act it is quite clear that an individual has to be appointed. He has to be a person, and under the Act there is the possibility catered for that he may die. It is absolutely clear that he must be an individual”
(3) Conditional Appointments / Prior to dispute are arising.
Manu v Euroview Investments Ltd  1 EGLR 165, para. 85.
“... an appointment under section 10(1)(b) can be made before the service of a party wall notice in respect of the proposals to which it relates, and if this is sufficiently shown, the appointment will operate to take effect under the 1996 Act as and when a dispute arises or is deemed to have arisen.”
Loost v Kremer West London County Court, 12 May 1997,
“The appointment ... is put in that conditional way ‘I would appoint’....The matter is quite sensibly put in terms of it being a conditional appointment and then condition arose, because the building owner does not know for sure that there will be a dispute.”
SURVEYORS’ ROLES AND DUTIES
(1) Dispute Resolution
Section 10 is headed “Resolution of Disputes”
Reeves v Blake  EWCA Civ 611.
“They are intended to constitute a means of dispute resolution which avoids recourse to the courts” – p. 14. “The purpose of the Act is to provide a mechanism for dispute resolution which avoids recourse to the Courts” – p.22. “Bearing in mind that the purpose of the 1996 Act is to provide a means for avoiding litigation...” p.24
Manu v Euroview Investments Ltd  1 EGLR 165
“The 1996 is intended to provide an efficient procedure to enable building works that will affect neighbouring owners to be put in hand promptly and on a fair and reasonable basis.”
This is of course, is to be achieved by way of an award. This will need to be done effectively, as ‘costs’ (namely professional fees) must be ‘reasonable’ – s.10(13)
(2) To be Impartial
As with most matters where professionals are engaged, there is a duty on party wall surveyors to proceed both with care and with diligence.
However, the definition of a ‘surveyor’ in section 20 of the Act also implies that there is a duty of impartiality:
‘20. “Surveyor” means any person not being a party to the matter appointed or selected under section 10 to determine disputes in accordance with the procedures set out in this Act.’ [emphasis added].
The fact that a surveyor must not be ‘a party to the matter’ means that some degree of impartiality is envisaged from the appointed surveyors. This notion is further reinforced by section 10(8)(b) of the Act which curtails a local authority’s appointing officer’s power to select a third surveyor in circumstances where he or his employer is a party to the dispute. The appointed surveyor is therefore certainly not just an advocate for his appointing owner.
(3) To have due regard to their appointing owner’s interests
Gyle Thompson v Wall Street (Properties) Ltd  1 All ER 295 para. 303a
“...surveyors are in a quasi-judicial position with statutory powers and responsibilities”.
Chartered Society of Physiotherapy v Simmonds Church Smiles  1 EGLR 155,
“...decisions...are consistent with a judicial or quasi-judicial process...if three surveyors are to be appointed, a party-appointed surveyor, while no doubt retaining his professional independence, is not obliged to act without regards to the interests of the party who appointed him.”
Manu v Euroview Investments Ltd  1 EGLR 165, para. 113
“...a party wall surveyor is acting as an independent expert and not as the agent for his appointing party. However, in my judgment, his functions are mixed. Given that he will also conduct the procedural aspects of the party wall procedure, he does there, in my judgment, act as the agent of his appointing owner in the sense that the appointing owner effectively authorises him to take procedural decisions which will bind the appointing owner in that context.
(4) To inform
Surveyors have a duty to inform their appointing owners of their relevant rights under the Act. Note in particular section 10(11), and also the right to claim security in section 12(1)
(5) Professional Negligence
Party Wall Surveyors are probably not immune from such actions:
Arbitration Act 1996 – probably does not apply to allow party wall surveyors to claim immunity under the Arbitration Act 1996 Arenson v Casson Beckman Rutley & Co  3 All ER 901, HL Jones v Kaney UKSC 13 –expert witnesses no longer immune to actions in negligence.
(1) Retrospective Awards
Treat with extreme caution!
Acceptable if all parties agree to be so bound by the Act’s dispute resolution procedures - Adams v Marylebone BC  2 KB 822
Damage caused by unauthorised works is outside the jurisdiction of the surveyors and actionable only at common law - Woodhouse v Consolidated Property Corp. Ltd. (1992) 66 P&CR and Louis v Sadiq  1 EGLR 136 - both Court of Appeal cases, but under the London Building Act (Amendments) Act 1939 UNLESS the parties so agree to resolve the matter using the Act’s dispute resolution procedures.
However retrospective awards may be acceptable if no damage has been caused by the works - Rodrigues v Sokal  EWHC 2005 (TCC).
Such awards remain highly susceptible to validity challenges if damage has been caused by unauthorised works and the surveyors seek to award compensation on such damage.
However, to add to the confusion, note Crowley v Rushmoor BC  EWHC 2237 (TCC),
“Firstly the relevant arbitration provisions provided for by the Party Wall Act can always be operated retrospectively...The surveyors so appointed would have jurisdiction to award appropriate compensation for any damage resulting from...work...which could have and should have been, but had not been made subject to an appropriate award prior to work starting...(see sections 7(2), 10(1), 10(12), 10(13(c) and 17 of the party Wall Act)...”
(2) Ex parte awards
Section 10(6) and 10(7) provide for such, but be sure that the grounds on which the ex parte award is made (refusal and /or neglect) are expressly set out on the face of the award.
Frances Holland School v Wasseff  2 EGLR 88,
“The relevant grounds must be expressed accurately in the ex parte award. In this case, there was no reference to neglect to act by Mr. Johnson after the written request in the ex parte award. The only reference was to a refusal to act. Accordingly, the ex parte award is inconsistent with the reference to the 10-day time limit in the letter of 21 January 2000. The award accordingly refers to a ground, namely refusal, upon which Mr. Davies did not rely. In those circumstances, I consider that the ex parte award is bad on its face and invalid”
Be sure that the subject matter of a request under section 10(7) is sufficiently particularised. Ex parte awards can be used solely with respect to one surveyor’s fees – Bansal v Myers, Romford County Court, 26 October 2007
“(1) A notice or other document required or authorised to be served under this Act may be served on a person –
(a) By delivering it to him in person;
(b) By sending it by post to him at his usual or last-known residence or place of business in the United Kingdon; or
(c) In the case of a body corporate, by delivering it to the secretaru or clerk of the body corporate at its registered or principal office or sending it by post to the secretary or clerk of that body corporate or at that office.”
Judgment in the recent case of Freetown Ltd v Assethold Ltd was handed down on 21 May 2012, the case dealing with the interpretation of section 15(1) of the Party Wall etc Act 1996 (“the Act”), and in particular section 15(1)(b). The case decided that when documents (notices/awards etc) under the Act are served by post, the date of service is taken to be the date that the document is consigned to the post and NOT when it is received. In particular, this will affect the calculation of the 14 day appeal period for awards, laid down in section 10(17).
If post is the chosen method of service, then certainty of the date of posting is therefore required, and best practice dictates that this can be evidenced by simply obtaining a certificate of posting from the post office. Additionally, surveyors should perhaps also inform the intended recipient of the date of posting in their covering letter serving the relevant document. In the case of an award that is to be served by each of the two surveyors on their respective owners, it is also advisable to liaise with the other surveyor to ensure that the date of posting for each award is the same, since different dates for service of an award are not desirable.
This point was actually mentioned by Mr. Justice Brightman in his judgment in the well- known case of Gyle-Thompson and others v Wall Street (Properties) Ltd  1 WLR 123 (decided under the London Building Acts (Amendment) Act 1939) where he said,
“It seems to me highly desirable that surveyors who are performing their statutory duties under s.55, should bear in mind that important matters may turn on the date of the delivery of the award and I think that they should take practical steps to ensure that there is no doubt what is the date of such delivery, and that the date is the same for the building owner as for the adjoining owner.”
RECOVERY OF FEES
It is generally now accepted that a surveyor cannot sue a party who was not his appointing owner directly for his fees.
Deed of Assignment of the cause of action may therefore generally be required as a belt and braces measure, although this point is yet to be tested in the courts - see the wording of section 17, below.
The enforcement of an award via CPR Part 70.5 is not permissible - Zissis v Lukomski  EWCA Civ 341,
“CPR 70.5 creates a procedure, which can be initiated by a court officer without the intervention of a judge, for the enforcement of an award of a sum of money made by any court, tribunal, body or person other than the High Court or a county court so long as an enactment provides that the award may be enforced as if payable under a court order, or that the decision may be enforced as if it were a court order. The 1996 Act contains no such provision, so that an award made under that Act cannot be enforced through the CPR 70.5 procedure.”
Section 17 of the Act however means that recovery proceedings can be taken via the magistrates’ courts:
“Any sum payable in pursuance of this Act (otherwise than by way of fine) shall be recoverable summarily as a civil debt”
- No automatic transfer to defendants’ court.
- Generally faster listing.
- Recovery of legal costs is easier.
- 6 month time limit from when the debt becomes “due and payable”.
- Magistrates and court staff are generally ignorant of their jurisdiction to determine such matters.;
Whichever route is taken, ensure that the date of service of awards is known, that a copy of the covering letter so serving is produced, and that a signed copy of award is also produced.
Stuart J. Frame
Staple Inn Chambers 9 Staple Inn London WC1V 7QH
Tel: 020 7242 5240 Fax: 020 7405 9495 Dx: 132 Chancery Lane Email: firstname.lastname@example.org
Stuart is a lawyer and is happy to be contacted with respect to legal issues relating the Party Wall.
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