Whispers. Issue 50. Winter 2022.

WHISPERS O F The Pyramus

& Thisbe Society

ISSUE 50

Contents ISSUE 50

p04 Welcome

p06 ‘Who, me?’

BY N ATA S HA D E M IR B AG

BY FA R EED F E E TO

p08 “The Appointed Surveyor”: Agent, Advocate, Agitator, Arbitrator?”

p24 Alistair Redler

BY A L A N G I LL E T T

BY D ON A L D J E S S OP

p25 NUTT vs VEDA Road Ltd and George Podger

p26 The Matter with Reserved Matters

BY K E ITH D OU G L A S

BY A I DA N SM Y T H

p28 The Adjoining Occupier

p29 From the vaults

BY J O H N A N ST E Y

BY K E ITH D OU G L A S

p32 Engineering Sketches

p36 Let me introduce

BY J A KU B N OW IKOWS K I

M I CH A EL AU ST I N

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© Dim Hou Unsplash.com. Cover image © Sabrina Mazzeo Unsplash.com

Save the date

Announcing

for the first National Conference

Where___The Mermaid London, Puddle Dock, London EC4V 3DB

pyramusandthisbesociety.org 4 The Pyramus & Thisbe Society

Welcome

by Natasha Demirbag MPTS BSc(Hons) MRICS

© The Church of England Newspaper

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queries that were submitted. We have also been treated to some excellent engineering sketches by Jakub Nowikowski and allowed to publish a sketch of Alistair Redler by Alan Gillett.

Lastly, and on behalf of the whole editorial team I would like to send a big thank you to David Moon for all his work on Whispers. Having worked with David Moon and the rest of the Whispers editorial team for the past 6 years, I know that David’s shoes certainly are very big shoes to fill, but I will try my best with my tiny size fives!

AV I D M O O N M E N T I O N E D C H A N G E I N

his last editorial for Whispers in issue 49.

Since that time an even greater change has happened both in terms of the evolution of the Club to a Learned Society, but also with the passing of HM Queen Elizabeth II. Another less far-reaching change is the new format that we have for Whispers, which has been a long time coming, and we hope to develop further. I sincerely hope that you enjoy reading the new format and agree that it is a big step forward for Whispers. As always, I would welcome any feedback that you may have as well as material for publication.

Somethings, however, seldom change, and to this end I can report that a few members of the editorial team enjoyed a long-awaited afternoon tea back in May and a tour of the Globe Theatre.

This long-awaited bumper issue includes Fareed Fetto’s Chairman’s Column, not one but two articles from Keith Douglas, an article on reserved matters by Aidan Smyth, and a concise write up by Don Jessop of his talk given on 28th January 2022 by Zoom and his answers to the many

natasha@natashademirbag.com

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“Who, me?”

by Fareed Fetto FPTS CEng MIStructE CBuildE MCABE MFPWS AaPS

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against the wind and the tide, to bring about this radical change. They must feel justifiably proud, and, if I may speak for those in agreement, so, indeed are we, both of them, and of their achievements.

FE W Y E AR S AG O, I WA S S IT T ING I N A

café in France with one of my granddaughters. We were in a tiny village not far from Calais. It was an exceptionally beautiful warm sunny day. We sat outside, facing the high street. I do not remember any vehicle passing by for the whole time we were there. Sipping delicious coffee, my granddaughter turned to me and said: “Why don’t we all pack up and come and live here? It is so nice and we would be so happy” “Lovely idea, but I do not think we would be all that happier than we are now”, I replied, “Oh, why?” she glanced at me with a wide-eyed disappointed look, “Because we would bring ourselves along!”

“What do you mean?”

“Unless we are prepared to change ourselves to adapt to such an exciting future, then nothing will work.”

“Oh” “You know what? I don’t really understand. Let’s just enjoy our coffee!”

What happened?

Because of the efforts of the pioneers and torch-bearers, we have managed to change ourselves, from an inwardlooking Club (as a club usually is) into an outward-looking learned society, with a purpose; indeed with a variety of useful purposes. This is not to say such things did not exist when we were a club, but that they are now more prominent and plentiful, and, what is more significant, is that they constitute a new vision to which all can subscribe.

We are all ‘champions’ of this formidable Society, building and nourishing it as we develop, constantly outstripping and breaking our own record of being the leading authority on party wall and associated matters.

With such a body of enthusiastic, energetic and dedicated champions, new and long-standing, diverse and vibrant, I hope you will agree that we can be quite justified in believing firmly in the success of the Society.

The New Us

“We didn’t feel a thing!”

Understand it or not, a new regenerating breeze has been blowing away the old ‘Us’, bringing a refreshing and welcome change. From the vantage point I have been graciously accorded as chairperson, I see, with a wideangled lens, the enthusiastic participation of members, committed to building a Society which we can all ‘own’ and be very proud of!

We owe this to the few who with herculean might rose

No, but we have indeed changed, in name, constitution, protocols, and management. My senses give me to understand that there is a radical change, not only by identity, but in how we do things we have done in the past, and how we intend to do things in the future. Of the things which subsist and those which are new, here are some of the highlights:

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Diversity and Inclusion

• Education will continue to be at the centre of our regular meetings, together with our seminars at venues such as The Counting House.

• Submitting a CPD return will no doubt present an effective incentive to keep our own knowledge up to date!

• A group now exists to consider how the Society can be, and demonstrate itself to be, one which does not discriminate between its members on the basis of colour, sex creed or age, but rather welcomes and rates its members highly with the utmost courtesy and respect.

• It is imperative that every member and every visitor to every Society event will never experience a cold shoulder, but will feel welcomed, respected and appreciated, whether a novice or a mature highly experienced and knowledgeable person.

Publications

• Under a Publications Director and working groups, our immense wealth of knowledge and experience will be accessible to members in various forms, including Whispers, a legal library, and an annual journal. The library will be kept up to date. For those who agree that finding relevant Case Law has always been challenging, this regenerated aspect of the our new selves should offer a pleasant wind of change!

Pyramus & Thisbe Society Website

• It is envisioned that our website will be the comprehensive hub and nerve centre of all our communications and other business we have with the Society. The website has been launched and is now live.

Yes, there were some delays, and many hiccoughs, but it is there, thanks to the efforts of the champions who pushed it through, in this case, one particular champion who shouldered it practically single-handed.

• The launch of the website heralded only the beginning: there is much more to come and many pages to browse through, which we will see popping up as they come to readiness, together with a mobile ‘app’ for even quicker access.

• Anticipation and patience are the order of the day, bearing in mind that the work is being done largely by volunteers.

How does the artist know when to stop painting?

Hopefully we will never find out! It is essential that the Society continues to develop and expand. This requires an ongoing effort from every one of us, sacrificial at times, to produce, and continue producing this engaging work of art which we can proudly stand back, admire, appreciate, and yet continue to improve. There will never be a time when the Society will drop the brush!

Finally

Before I conclude, I would like to pay tribute to our outgoing chairperson, who should have been the person writing this article, but who had to stand down sadly due to an unforeseen event, by consequence of which I received an invitation to stand for the position, which, in turn prompted the title “Who, Me?” Apart from all the great champions of the P&T over the years, including our amazing administration support, who are all worthy of the highest praise, honour and respect (we know who you are!), I salute our founder, the late John Anstey, an inspiring leader and visionary, fondly remembered by many, not least by me, as one whom he ‘booted’ into the Club as it was then.

It is an honour to act as chairperson, a position I

Branches – Busted!

• Yes, busted is the myth: ‘Everything is done by London’!

• Branches have always been at the centre of the P&T’s vision, achieved by our chief pioneer, John Anstey (more about him later), with each Branch being represented at what was the National Council.

Chairpersons are now represented at Fellowship level.

There was never a time when Branches were not represented and appreciated, however it is now anticipated that their engagement will be more tangible.

• The new Branch regime has been designed to increase their involvement in the affairs and management of the Society, encouraged by the new position of Fellow –do it or lose it!

interpret to be, above all, that of a servant.

Education

• To my knowledge, this aspect of the P&T, together with marketing has been a widely discussed issue, and has now been more thoroughly addressed with the introduction of Branch Education Officers working together with the Society Education Director. It is intended that the Society will be a source of education for practitioners, the public, and, notably, educational establishments.

ffetto@faredfetto.co.uk

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© Tingey Injury Law Firm Unsplash.com

“The Appointed Surveyor”: Agent, Advocate, Agitator, Arbitrator?”

by Donald Jessop BSc FRICS MCIArb

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values for Civil Servants.

The truth is, that when John Anstey posed his question, in the Surrey Branch of Pyramus & Thisbe, on Friday varying ways and in differing degrees, Appointed Surveyors 28th January 2022: Donald Jessop offers this acted in a rather jambalaya Jack of all trades way, albeit extended version of his talk, re-edited to include always concerned not to call an appointing owner, a client. a discussion of the inquisitorial nature of the And this is no criticism because building projects in process, with all of the Questions as these were submitted on Central London are mostly large, and the desire was (as it is) the day.. plus one, and with expanded Answers.

Agent, Advocate, Agitator, Arbitrator, in no particular to get as much done of good use, by way of impartial inquiry, in the shortest possible time. And Demolition Awards, and order: This was a question posed, perhaps a little light Foundation Awards, and Superstructure Awards with plenty heartedly, by John Anstey some 25 years ago in the final days of other Interim Awards in any one project venturing to the of the London Building Acts (Amendment) Act 1939; and in centre of the earth and into the stratosphere, with many the wake of the 1995 case of the Chartered Society of adjoining owners and quite a few surveyors, was (and is) Physiotherapy -v- Simmonds Church Smiles, with commonplace.

Humphrey Lloyd QC’s judgment handed down in the Appeal against an Award that John Anstey had produced, as a Third But there’s more: On a domestic level pre-1996, sometimes Surveyor. the owner parties would appoint themselves in person, to act The Appointed Surveyors were John Anderson and John as surveyors under the Act, to produce their own aspired Webb … and I offer this address in respectful memory of the “Awards”! Hence the advent of the interpretive exclusion three surveyors. under section 20 of the present legislation for the meaning of And; I ask, in just what capacity does a Third Surveyor or an Agreed Surveyor act? Is this a different role from that of “surveyor”.

Please let me spell this out; “surveyor” means any person an Appointed Surveyor?” not being a party to the matter appointed or selected under I say that John Anstey posed his question ‘perhaps a little section 10 to determine disputes in accordance with the light heartedly’, because I suspect many practitioners know procedures set out in this Act. and feel, as I believe he did, that whatever an ‘Appointed So, it certainly looks like the Statutory aspiration is for Surveyor’ may be, he or she, at the very least, must be independent of the parties … which rather knocks out Agent, surveyors to act independently of a party, and with impartiality, “… to determine disputes …”, noting here that Advocate and Agitator … But: ‘Arbitrator’, I think deserves a dispute is pluralised, because the model procedure does little closer look, which I shall come to later. embrace a ‘continuity of events’, which I will come to in And: Ought not an Appointed Surveyor act with integrity looking at just what a Dispute is in the context of the Act. in the management of an Act of Parliament, meaning that And, at this juncture, may I throw into the melting pot, a public service is put above personal interest? And, ought he probability that on closer scrutiny, the section 20 expression or she not apply objectivity and base decisions on an impartial analysis of the facts gathered by making diligent ‘party to the matter’ may carry a wider meaning in its given context, than the section 10 expression ‘party to the dispute’. inquiry?

By example, it seems to me to make sense that ‘an I would say so, and these happen to be the published core A S E D O N T H E ZO O M A D D R E S S G I V E N TO

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Even the Judiciary call ‘Appointed Surveyors’...

‘Party Wall Surveyors’ ... even though the expression ‘Party Wall Surveyor’ is nowhere to be found in the Statute.

Are we not all influenced to some degree by the common expectations that arise out of customary practices, even if it might be said these practices are not altogether ‘pure’.

Even the Judiciary call ‘Appointed Surveyors’ … ‘Party Wall Surveyors’ … even though the expression ‘Party Wall Surveyor’ is nowhere to be found in the Statute.

Nor, may I say, does the Act cite in any place, the perhaps less pure still, colloquial expressions … ‘Building Owner’s Surveyor’ and ‘Adjoining Owner’s Surveyor’ … which cause most, if not all lay appointing Parties, some expectation of favour from the surveyor they appoint, as though they have a client/adviser/principal/agent, relationship.

Hands up those who take appointments under the Act, and sign off their Awards in this way, rather than as ‘Appointed Surveyor’; arguably a practice that might perhaps change.

And, amongst other things: Surveyors seek and obtain Party Authority to serve and receive Notices as a part of their ‘section 10 appointment’, which it seems to me is rather putting the cart before the horse.

But the Court has found, a Party may pre-emptively appoint a surveyor in name, to determine Disputes by virtue of the Statutory Model, before the Dispute has been ‘defined’, which does not happen in Arbitration.

A contract arbitration clause will not come into effect unless the parties have first ‘defined’ their dispute, and then commonly there will be an application to the President for the time being of the Chartered Institute of Arbitrators, to appoint the Arbitrator.

But then in distinction, the Act is modelling a ‘fast track, low cost, settlement process’, upon the Presumption of a Dispute, that is designed to set an Inquisitorial process in motion, that will overtly authorise party wall building changes to be made, with the very aim of avoiding an Actual or Real Dispute developing between the Owners, which I shall come to discuss in more detail.

occupier’ is to be regarded as a ‘party to the matter’, which I think rather begs the question, if there might not be other non-owner persons, also falling into the category of ‘party to the matter’, and thereby not strictly eligible for appointment under the Act? Maybe family members, and/or persons in business with, or employees of, the party owners.

And, since the advent of the Party Wall etc Act 1996, now over the last 25 years, are we practicing things in a materially different way to that done under the London Building Acts (Amendment) Act 1939?

Well, of course parties to the dispute no longer appoint themselves in person to act as surveyors to produce their own aspired Awards, but otherwise please let me say, I do not think things have changed that much.

But then should the adopted common practice habits for what they are, change that much, if these habits ‘pragmatically’ get the job done in a fast track cost effective way, and all parties to the matter benefit in a fair measure as accords with their lot, which surely occurs in the vast majority of cases.

Of all of the hundreds of Awards that are produced, very few are subjected to legal scrutiny, because the Act is being managed, by enlarge, very well by surveyors’ pragmatism.

And, where and what does an Appeal most often get an Appellant?

Not surprisingly, very little is said about the pyrrhic victory aftermath that trial by battle can bring, and has brought in quite a number of Party Wall Award Appeals, and I believe there have been instances where litigants have had to sell their houses to pay the legal costs. I do wonder if there might not be some limitation put on Appeals against Party Wall Awards, as there is in Arbitration?

Are not surveyors put in charge of the Statute for their earthly ‘pragmatism’ … surely, it is in heaven that angels may dance on the head of a pin.

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given for ‘surveyor’ under section 20.

Section 10(12), does extend, I would say, a wide ‘pragmatic’ discretion to Appointed Surveyors, about what they “may determine” in their Awards, but in this wide jurisdiction, I do not see the word “design” included anywhere.

Turning if I may, to some useful observations made by Judge Backhouse in the recent case of Evans -v- Paterson and Others 2019, and accepting that the Statutory Model admits the rightful ‘appointment’ a surveyor with good ‘capacity’ to act, before a dispute is deemed or otherwise.

It is of importance to note by the mandatory provisions of section 10(10), that the appointed surveyors’ determinative jurisdiction per section 10(12), will not come into effect, until such time the owner parties are in Dispute; which in the context of the Statute means they are either ‘Deemed’ to be in ‘Dispute’, or are factually in an ‘Actual and Real Dispute’, in both circumstances by operation of the Act, and in the latter by their conduct as well.

But, in my opinion this case is to be distinguished from the earlier case of Lion Homes (Sussex) Ltd v Brighton & Hove City Council [2018], in which the Appellant’s also averred in part, that a Further Award had been made in the absence of a Dispute under section 10 and was therefore without jurisdiction; causing His Honour Judge Richard Simpkiss to virtuously admit the dicta of Lord Denning in Monmouthshire County Council v Costelloe & Kemple (1965), wherein his Lordship provided, there must be a claim that is then rejected, for there to be a dispute.

Reading between the lines of what these cases and other related cases say, does beg the question:

Let’s have a look at the 2007 case of Manu -v- Euroview Estates Limited. I think Her Honour Judge Hazel Marshall QC handed down an enlightened judgement that cut through the Tomfoolery.

In the very particular circumstances, there was little doubt about Mr Manu’s, colloquially called “adjoining owner’s party wall surveyor”, bias; who amongst other things told Her Honour that he had a degree in Nuclear Physics and above it all legally represented Mr Manu as his retained solicitor in the Appeal. He certainly didn’t pass the ‘fair minded informed observer test’ !

And the Appeal arose, of course because he was unable to manage the Statutory process in a way that embraced the fast track cost effective impartial ethic sought by the Act for the benefit of ALL of the parties to the matter; which is certainly one reason why the process gives an ex-parte procedure.

But, I still cannot see the provisions in the Act that actually extend any jurisdiction for Appointed Surveyors to serve Notices, and nor do I see this function is implied.

So, I ask: Should ‘Appointed Surveyors’ serve Notices?

And: Appointed Surveyors undertake Schedules of Condition, albeit this function is not expressly extended under section 10, nor do I think this function is implied?

So I ask: Should ‘Appointed Surveyors’ take Schedules of Condition?

And: Some Practitioners are employed by the Building Owner Party to undertake the Planning and Architectural, and/or the Engineering Design of the scheme, that they then make the subject of a Notice they are authorised to serve, pre-emptively Appointing themselves as a Surveyor under the Act to Determine Party Disputes.

But, Design is not a function I can see expressly extended to Appointed Surveyors under section 10, nor do I think this function is implied; and, as I’ve alluded, I do wonder if such practitioners can be validly authorised by a Building Owner, to then appoint themselves as a surveyor, by the meaning

What are Disputes under the Party Wall Etc Act 1996?

This Act, really does present an unusual Resolution Model, because I offer it extends two prongs which embrace a

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Surveyors advocating their considered opinions with respect to their appointing parties position, and the Third Surveyor’s Award that then follows, I think in probability will also be an Expert Determination, settled by inquiry. And as said, the reason a ‘Deemed Dispute’ is not an ‘Actual’ or a ‘Real’ Dispute, is because it is given by the Act to prevent any implication of Acquiescence to a Notice arising; recognising that sometimes an Adjoining Owner may be away and absent and thereby silent; or, if present, then either not able, or not prepared to express consent to the Notice, (which in passing an occupier must also do). And such absence or silence should not unfairly hold up the progress of good and fair building work.

So that, in these cases of absence and silence, my said 1st prong dispute resolution process comes into full swing 14 days after the Notice has been served; requiring ‘appointed surveyors’ to ‘settle’ terms to enable the work to proceed by way of an Official document called an ‘Award’, which perhaps might be referred to as a ‘Statutory Award’.

Whilst the Statutory aspiration is for ‘fast tracking’, there is no march that may be stolen by any Building Owner from the best interest of an Adjoining Owner. What is to be done must be openly done and for the world to see, and be vetted by surveyors applying fair and proper building management expertise.

And lest, may I say, the timber built party wall London shanty town of pre-the Great Fire should ever re-appear, by virtue of the Rebuilding of London Act 1667, make no mistake, all party walls shall be built in masonry, and I do not believe this position has changed.

In distinction: Prong No.2, anticipates the possibility of an ‘Actual or Real Dispute’ arising between the Owner Parties, rather more of the kind, it was argued before His Honour Judge Richard Simpkiss in the Royal Pavilion case, that was contemplated by Lord Denning in Monmouthshire County Council v Costelloe & Kemple (1965).

But then, is this really quite right? Just what does amount to a ‘claim’ that must be ‘rejected’, for there to be a ‘dispute’, in the context of the Inquisitorial process extended by the Act, for resolution?

On the face of it, the kind of Dispute contemplated by Lord Denning is one that is defined by the parties. By example, it might well be the kind of dispute arising under section 1 of the Act, then leading to the appointment of surveyors, which has nothing at all to do with my theorised 1st Prong as invokes the ‘deemed dispute’ to bar acquiescence, nor the 2nd Prong that may follow on this.

Unlike section 1, in all cases where surveyors have already made an enabling Award in settlement of the Deemed Dispute under the ‘1st Prong’, and the duly authorised work is in progress, about which an actual or real dispute arises between the Parties, more often than not the Appointed Surveyors will be drawn into the fray by their party agency relationships of having served Notices, undertaken schedules of condition, and maybe even having designed the scheme?

‘continuity of events’, unlike other Resolution Models.

That is, it presents the potential for more than just one ‘Dispute’ to arise, which is probably why section 5 provides for “Disputes arising under sections 3 and 4”, and I add that Appointed Surveyors contemporaneously will often manage a Dispute arising under section 6. There is also a provision for ‘any’ Dispute arising under section 1 as well.

And whichever one of my theorised two prongs happen to be engaged, which I shall shortly come to; the Statutory Model surely admits an “Inquisitorial” approach, which I did not discuss during the event of my address on 28th January.

Accordingly, I introduce a discussion about this, by virtue of a post event question raised to me, by Shirley Waldron, who was involved in a delegated capacity, with the case of Lion Homes (Sussex) Ltd v Brighton & Hove City Council [2018], “The Royal Pavilion Case” … and by my answer to her, please see the Questions & Answers.

Continuing with my thesis of two ‘prongs’, which possibly produces a reflection of John Morton?

Prong No.1, presents the notion of a ‘Deemed Dispute’ by section 5, and also by section 6(7), and a Deemed Dispute cannot possibly arise without the service of a Notice. A Notice invokes the Act’s Presumption of Disputes to arise in preventing any implication of an acquiescence arising by silence to a Notice at first instance, which might otherwise arise by the operation of common law.

With a Notice served, then kick starting the process into fast track motion, with the wide discretionary pragmatic determinative jurisdiction extended to Appointed Surveyors by virtue of section 10(12) upon the application of section 10(10), it seems to me of little wonder that the Appointed Surveyors, myself included and I certainly cast no stones, will go off on a complete frolic of their own, making inquiry and deeming for themselves what is to go into their Award, one trusts with good and aspired impartial intent for both Owner Parties according with their lot, in authorising the Notified Work to proceed, often acting like Agents and Advocates, and maybe Agitating a little too.

It is the Party Appointed Surveyors who are surely defining the “Deemed Dispute”, by “Inquiry” of the Parties, and by their own “Investigative” research and knowledge of customary building industry practice codes.

In my view, they are definitely not Arbitrating a ‘Deemed Dispute’.

And, their Award that follows represents a ‘settlement’ of what’s to be done with terms for its safe prosecution that seek to minimise the kind of disruption and inconvenience building works knowingly and foreseeably bring … it seems to me expertly determined by inquiry.

However, if the Appointed Surveyors fall into difficulty during this 1st prong process (which in my experience is rare), what are they to do, other than advise the parties of the reasons for their difficulty, and without delay call upon the Third Surveyor.

When this happens, in my experience the Third Surveyor will usually take representations from the two Appointed

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In passing, I make the observation that Appointed Surveyors do need to know just how and when to draw a line under the process, and conclude their Officer-Ship of the Act, such that the Parties will be in no doubt about this, which is something it appears is rarely done in current practice.

And, it seems to me a so called 1st Prong Enabling Award, In this way they will often find themselves participating with the Parties in defining the ‘actual or real dispute’ for that authorises the Notified Work to proceed, could make a provision for this … perhaps using words to the effect of: ……. what it is … I say, in an inquisitorial way.

Most of these ‘actual or real dispute’ cases are about ‘The Building Owner shall notify the Adjoining Owner in writing of the Completion of the Authorised Work on the day damage occasioned by the authorised work falling for it is completed (the Adopted Completion Date), supplying ‘settlement’, by Further Award, mostly after the work has been completed; or the issue could be about a ‘permissive’ the Adjoining Owner with any relevant Certificates confirming its Conformity with the Award terms herein given provision for a deviation to the authorised work whilst it is in progress, or about settling a remedy for its consequences …. *(see example in Q&A about basement construction) .… and in the absence of the Building Owner receiving any upon a 0 discovery of the unauthorised deviation (such as written Complaint from the Adjoining Owner about the said subterranean concrete spillage into the adjoining land).

In the vast majority of cases the Appointed Surveyors will Work done within a period of 10 days of the Adopted Completion Date, the Building Owner may apply to the be able to agree the issues in consensual liaison, and by Appointed Surveyors in writing to issue a Certificate of inquiry with the Party Owners, and others.

Discharge of the Statutory Process, and the Appointed Please do note the Act uses the expression “… shall settle Surveyors Office shall become ‘Functus Officio’ ….. by award ...” (my emphasis), and the Further Award that BUT: What if the Appointed Surveyors can’t get things commonly follows, will ‘determine’ these ‘settled’ issues for agreed, as in the Chartered Society of Physiotherapists case, what they are; and may I suggest, it might possibly resemble which was an Actual and Real Dispute issue about damage more of what is called a “Consent Award” in other circles. occasioned to the adjoining premises, by the execution of the In this way I offer that a Further Award, may possibly be authorised work done, and the two Appointed Johns could akin to a “Tomlin Order”, of course given that by the parties not agree, and necessarily referred to the third John. consensus there is no Appeal made against it.

In that there is no conflict by the ‘fair-minded informed And, I suggest this Further Award, given as it is, as a record observer test’, cannot a Third Surveyor, by his or her of settlement, will also draw a line under the Statutory selection, represent an “Impartial Tribunal” as a sole process, unambiguously declaring it discharged and Arbitrator of the kind provided by section 1(a) of the complete, and without any further issue pending.

But, it still remains for the Parties to do what the Further Arbitration Act 1996 which reads: 1. General principles.

Award says … who remain at liberty to apply to the Court for “The provisions of this Part are founded on the following its Enforcement, as with a Tomlin Order, should this prove principles, and shall be construed accordingly: necessary, which in itself of course has nothing to do with the (a) The object of arbitration is to obtain the fair role of the Appointed Surveyors. resolution of disputes by an impartial tribunal without In passing, I make the observation that Appointed unnecessary delay or expense” Surveyors do need to know just how and when to draw a line under the process, and conclude their Officer-Ship of the Act, Then reading on, section 1(b) of the Arbitration Act provides: “(b) The parties should be free to agree how their such that the Parties will be in no doubt about this, which is disputes are resolved, subject only to such something it appears is rarely done in current practice.

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Like it or not, Appointed Surveyors do often behave like Agents and Advocates and probably sometimes may also Agitate a little as well...

constitution, the surveyors refine for the Parties Who may do What, Where, When, Why, and to Whom, and How, in an easy to understand way, putting the party wall building work onto a pedestal of authority, representing “work in pursuance of this Act”, by the Award they produce.

And the way in which this Practical Tribunal operates it seems to me, can embrace all four roles, and a little bit more besides.

Like it or not, Appointed Surveyors do often behave like Agents and Advocates and probably sometimes may also Agitate a little as well … but that they all make Inquiry, whether they are seeking to settle a ‘deemed dispute’ or settle an ‘actual or real dispute’.

And, it may be available for a Third Surveyor to proceed as an Arbitrator, and deserve the Immunity that comes with this.

But that ‘Disputes’ in the context of the Act, I consider ought to be read differently from the kind of Dispute that demands a claim to be rejected, before it is born, as Lord Denning had in mind. His Lordship respectfully was considering whether or not a contract Arbitration Clause had come into effect, which required the opposing parties to have defined their dispute for impartial resolution on the presumption that they were well informed, and maybe well informed enough to be reluctant to reveal information they knew might be disadvantageous to their cause!

In distinction, the Statutory model procedure by the Party Wall Act, admits uncertainty about how well informed the interested Parties are, and accordingly extends an ‘inquisitorial ‘ process for resolution.

The parties are deemed to be submitting their ‘difficulties’ for definition by ‘inquisition’ that then presents itself for ‘impartial expert determination’.

Maybe it’s a delicate step I take, but I offer: On the one hand, the Act by its 1st prong, which can be operated either ‘unilaterally’ by section 10(4) or ‘multilaterally’ by section 10(1), deems a dispute to arise lest

safeguards as are necessary in the public interest” So that, if on the condition the Parties are in agreement with the Surveyors they have Appointed, that their 2nd Prong dispute is to be referred to the duly selected Third Surveyor for impartial resolution, would this not satisfy section 1(b) of the Arbitration Act 1996 ?

And with these conditions then met, would not section 1(c) of the Arbitration Act apply: “(c) In matters governed by this Part the court should not intervene except as provided by this Part” I merely offer this for a discussion, as I think John Anstey would have quite liked this, because in the Physiotherapists case, I believe the Appointed Surveyors did behave as Advocates do, but they also applied their own Building Expertise by the Representations they made, having Inquisitorially made inspection of property and gathered other expert evidence which was commissioned and paid for by the Parties, all of which was adduced to the Third Surveyor.

In this way, might it not have been said that the Parties did get a Hearing?

If this happens, and the Third Surveyor does then go on to produce a “Speaking Award”, which is to say an Award with Reasons, I do think that the Third Surveyor will be behaving a lot more like an Umpire/Arbitrator does, and probably deserve Immunity along with it?

In distinction, I think that an Agreed Surveyor, may be managing matters a lot more like that of an Independent Expert making Inquiry and inspecting property, but then in a pure world this would mean, not meeting one party without the other present, and corresponding with both contemporaneously, from the time of accepting appointment … and in my experience surveyors do not meticulously do this … they proceed more casually, albeit with integrity.

The Three Surveyors or The Agreed Surveyor, judicially have been called a “Practical Tribunal”, and by its

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to unilaterally impose its resolution process: And, must then seek satisfaction for any wayward building work done, by funding the expensive process of litigation; albeit these funds may be returned in the event of the building owner’s behaviour attracting an indemnity costs Order, but otherwise their recovery will be in part only.

I sincerely therefore think that this position might be reviewed by Parliament, along with some limitation to the grounds on which Party Wall Awards may be Appealed.

there be any implication of acquiescence arising in the absence of expressed consent to a Notice, and the Act mandatorily requires the party appointment of surveyors who are to make all due inquiry and define and determine the deemed dispute circumstances (including connected matters), and settle these matters by making an Award for the Parties.

Whereas, on the other hand, the Act by its 2nd prong, which can only come into ‘multilateral’ operation by section 10(1), in the actual event of any of the real dispute circumstances that the Act cites might in probability arise (including connected matters), then re-awakens the appointed surveyors inquisitorial jurisdiction, to make all due inquiry and define and determine the dispute for what it is, and settle the matters by making a Further Award for the Parties.

Questions&Answers Note: I have introduced Shirley Waldron’s post talk question first of all, below; and, whilst all of the following questions are reproduced as these were tendered in writing on the day with some small edit corrections, my answers do not reproduce the off-the-cuff responses I gave verbatim, but are instead offered as considered replies, with some expansion and qualification.

Activate the 1st prong by Notice, then in my opinion you deservedly get the 2nd one … perhaps a little in John Morton’s reflection, by his rationalised tax for Henry VII, reasoning that someone living modestly must be saving money and therefore could afford the tax; whereas someone S H I R L E Y W A L D R O N May Appointed living extravagantly was obviously rich, and therefore could Surveyors delegate their duties to an assistant? afford the tax as well!

And: If damage is occasioned to the adjoining And when the appointed surveyors jurisdiction is premises by and during the progress of the Authorised multilaterally activated, it may only be multilaterally work, and the Adjoining Owner engages the Surveyor they de-activated, leaving then the appointed surveyors to close have Appointed by complaint of the damage, who then their Statutory office, thereby vetting no stone has been left involves the other who in turn alerts and engages the unturned.

Building Owner; and the two Appointed Surveyors then The corollary invites the mantra: ‘No Notice No Act’ … by jointly proceed together to ‘define’ the issues for what they the very recently published case of Shah v Power and Kyson are, with a view of settling an Award … and the parties, and [2022]. But of course this in itself requires some qualification. their solicitors know this is going on, but at no time seek to And, I think it could be available for the Third Surveyor to “stop” the surveyors … does this not amount to an actual act as an Arbitrator in determining a 2nd prong Actual Dispute by your so called 2nd prong circumstance?

Dispute, once this has been clearly defined by Inquiry, for the Appointed Surveyors advocacy, but that this will surely come A: Thank you Shirley: These are two valuable questions you down to the Third Surveyor being quite sure of the parties have raised with me since my talk; and I realise I omitted to willingness and knowledge, that he or she is proceeding in offer some discussion about the differences between the this way, and that in doing so, the Parties will be aware they “adversarial” resolution process and the “inquisitorial” are consensually supplanting the Party Wall etc Act 1996 with resolution process, which I hope I’ve addressed at least to the Arbitration Act 1996. some degree in my extended paper, above.

Concerning the Agreed Surveyor, as said, I believe it more Taking your Second question first: I am conscious of the likely that he or she, will at all times be proceeding as an fact that you have first-hand knowledge and experience of Independent Expert, and probably should not serve notices, what went on in the case of Lion Homes (Sussex) Ltd v nor take schedules of condition, and more certainly should Brighton & Hove City Council [2018] - “The Royal Pavilion” not design. case.

But that it may well be available for a member of the I have re-visited the judgment handed down by His Building Owner’s development team to adopt the role of a Honour Judge Richard Simpkiss, and with great deference to ‘party wall surveyor’ and serve notices, and take schedules of him, I can see he expressed considerable condition, and maybe even design as well. concern that insufficient time had been allotted to try the In conclusion I make the observation by Shah v Power issues, and that there was insufficient evidence submitted, and Kyson [2022] where Mr Shah did party wall work certainly for all of the three counts as these were presented without engaging the Act and caused damage, that if a for trial. building owner does not invoke the Statutory resolution Accordingly he was only able to address the first one of model by serving a Notice, refusing its gifts, then an three counts: And of course, unlike Appointed Surveyors who adjoining owner, albeit with good intention, will not be able may and do make their own Inquiries, I believe His

Q

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But I do not think Appointed Surveyors can delegate their ‘duty’, which will remain theirs under the Act, and no one else’s; and they must scrutinise what their assistants have done, and perhaps enter into their Awards, who has done what and when and so on … and of course the Appointed Surveyors must put their hands to the Award, and see it served.

structural engineers representing the parties, and the parties solicitors, and insurers’ loss adjusters, and the main contractor and others.

Maybe I am taking a daring step, but it does seem to me that if a Notice has been served thereby engaging the Statutory Model; it engages no less than the whole Statutory Model; and the Statutory “presumption of dispute” comes into effect simultaneously on both of my theorised prongs, but that the list of foreseeable disputes under the Act, per Lord Justice Etherton’s rational are inchoate until born by an actual event that causes the parties to multilaterally engage and activate the inquisitorial process … as it seems to me in fact happened in the Royal Pavilion case.

The crucial thing it seems to me is that the parties will be multilaterally engaged in their struggle, since you cannot have a unilateral struggle! … And that a Further Award is thereby their expectation.

In distinction, there was no multilateral struggle in the case of Evans -v- Paterson and Others 2019, because the Appellant Building Owner Ms Jenifer Evans had no idea at all that the Appointed Surveyors were engaged on a 2nd prong course of Inquiry about damage, some 6 months plus, after the work had been completed, until their Further Award dropped though her letterbox. She must have been quite astonished!

Please forgive my repetition, but my so called 2nd prong cannot be ‘unilaterally’ invoked. The Statutory Dispute will remain embryonic until such time the parties multilaterally participate in the Surveyors Inquiry, even if this is just to say to the Appointed Surveyors … ‘get on with it, in whatever way you think fair and fit’ !

There is then a clear expectation by all concerned, that a Further Award will be made and served.

This was not so in Ms Evans case, who had no opportunity of involving her Design Team and Contractor and no doubt Loss Adjusters and so on … whereas Lion Homes and the

Honour was rather bound by the rules to find judgement according with what was adversarially presented to him by way of a battle, which I do not think rightly gave him quite the whole picture, in the limited time allotted.

The ground for Appeal that was tried, averred: That the 3rd Award was made in the absence of a dispute under section 10 of the Act, and therefore without jurisdiction …. which the Appellants won for the reason it was found that no actual or deemed dispute capable of being settled under the Act had arisen in fact or in law.

But there was actual damage, and the Appellant Adjoining Owners had reported this to the surveyor they had appointed, thereby engaging him on a course of Inquiry, and in a customary way his first port of call was to the surveyor appointed by the building owner and the Respondents then participated; and the two surveyors were both overtly engaged by the parties and known to be on a customary course of Inquiry … the “matter” was “born”.

And it does seem to me, that the very engagement of a Statutory ‘Deemed Dispute’ at first instance by a Notice served, in itself embraces the probability of a continuity of events to come, by the number of potential ‘circumstances’ the Statute gives for resolution by Lord Justice Etherton’s rational in the Court of Appeal case of Reeves v Blake [2009], which is to say these are all potentially Real Dispute circumstances under the Act, but that these circumstances are ‘embryonic’ … that is to say inchoate until something happens causing both parties engagement of the appointed surveyors to define the matter for what it is, by making all due inquiry. This conduct in my opinion delivers the matter into this world for Statutory Dispute resolution, by the settlement of a Further Award.

I am told that in the Royal Pavilion case, the damage caused by the work, led to several site meetings involving no less than 14 persons ... namely the Parties themselves and the Appointed Surveyors and/or their expert assistants,

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And: If an actual dispute is expressed, or perhaps simply an expression indicating no written consent will be given to the notified works,when can the appointed surveyor(s) commence their deliberations - immediately or do they have to wait 14 days from the date of the notice?

And: I agree with post 14 day consent, but what I query is what might constitute express ‘dissent’?

Royal Pavilion clearly did.

Turning now to your First Question: I do think the Appointed Surveyors can either jointly or independently of one another, delegate a lot of things for expert assistants to gather and do.

These things though will be things that the Appointed Surveyors would customarily do for themselves if they had no such assistance, and with the benefit of assistance, so then may this ensure good expedition and reduce costs.

And, very often expert assistants will gather information about the scheme, and they will inspect the buildings that adjoin noting the way in which they are occupied, and they will attend meetings, and also maybe dare I say, even do schedules of condition, and so on.

But I do not think Appointed Surveyors can delegate their ‘duty’, which will remain theirs under the Act, and no one else’s; and they must scrutinise what their assistants have done, and perhaps enter into their Awards, who has done what and when and so on … and of course the Appointed Surveyors must put their hands to the Award, and see it served.

This does actually lead me just to make a comment about so called ‘Checking Engineers’, who might possibly be better referred to as ‘Tribunal Assessors’.

And the question is: Can appointed surveyors off their own bat employ them and expect to recover their cost as a disbursement in the Statutory process?

I think great care needs to be taken here, and the question I beg is: What is it they are being employed to check?

If the answer is the Building Owner’s ‘Design’, then my view is, I do not think Appointed Surveyors can take it upon themselves to have this ‘checked’. But the Building Owner may sanction this if so advised by the design team by example, that the geotechnical issues discovered are especially complex and it would be a valuable thing to have the Design independently checked. River bed, and sand and loosely back filled gravel and so on might represent good examples … but then this is down to the Building Owner, not the appointed surveyors However, as I have aired above and expand on below, inmy answers to questions that follow, in the case of Basement Construction, I do think that the Appointed Surveyors can validly cause the Building Owner to have the Work Certified as it progress, by an Independent Engineer.

That is to say the subterranean Party Wall work that is rendered hidden on its completion, is to be ‘checked’ whilst in progress, for its Compliance with the Design; lest the rather sad things that happened in Welter v Keeves, and have happened in many other cases of which I am aware, and I imagine a good many more besides, but have not been subjected to legal scrutiny … should continue to arise.

A: Thank you Robin. Firstly: I think your section 10 observation is right, but I would say section 1(8) does require an expression of dissent, which will produce a ‘real or actual dispute’, defined by the ‘Owners’ including ‘any Occupier’ (or their representatives), for the appointed surveyors determination.

A lot more can be said about section 1, but I think this deserves an analytical paper in its own right, with a look back at London’s 19th century expansion with reference to the building legislation of the time.

Secondly: Upon an appointment, whether this is by a preemptive appointment or not, in my opinion the Appointed Surveyors should proceed forthwith upon the expression of Dispute between the Parties and select a Third Surveyor, which will then trigger the application of their Statutory Jurisdiction; because the Statutory process by its timetable, is given to be a fast track process.

Thirdly: Thank you for your assent; and if I may just expand a little in our concurrence by adding to your question; and: Why does the Statutory presumption of a dispute to a Notice, not irretrievably lock the parties into the Statutory presumption for Disputes?

So then, about your question, let us say the building owner has pre-emptively appointed a surveyor by including this in the Notice that is served, and the adjoining owner’s response to this, as is often the case, comes from a surveyor attaching a copy of the adjoining owner’s written appointment in dissent of the notice.

This will constitute an expression of dissent.

Or: The adjoining owner may just acknowledge the Notice in writing, and by example say: “Dear Sparky, Thank you for your notice of intended building work. I do not consent.

Yours sincerely, Hugh Dougthathole”.

And, as said, the first thing the two appointed surveyors must do is immediately select a third surveyor in writing, which will then trigger their jurisdiction to proceed, which they ought to do straight away.

And about my added question … The Parties by their written Consent can, ‘stop’ the resolution process, so long as their expression of Consent leaves no stone unturned, which I shall come to in more detail in answer to later questions …

Noting at this juncture, that Surveyors’ Statutory Appointments may not be rescinded by either Party, meaning that it remains for the Appointed Surveyors to responsibly bring their term of Statutory Office to a timely close.

Q

R O B I N A I N S W O R T H The Act does not explicitly deal with expressing dissent, simply an absence of written consent, however section 10 does identify ‘disputes’, as well as ‘deemed disputes’?

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Q

It will be that the Surveyors retain their appointment which cannot be rescinded, but that the Parties notification to them of their Consensus, will remove the Surveyors Jurisdiction to proceed any further.

But, I do not think this extinguishes what may have transpired up and until that point.

The proper course I suggest, is that the Parties must request the Appointed Surveyors in writing, to “stop” the resolution process on account of their Consensus, and request the Surveyors to record this by way of what might be akin to a Consent Award (so called in arbitral circles).

This may be represented by a simple summary sheet of recitals, with a brief record about what has transpired to the point of the ‘stop’ request, and a comment to the effect that the notified work is to proceed by Consent according with the terms of the Act, with a statement of the reasonable Statutory Cost to that point.

On your second question, there can be no charge made by Appointed Surveyors in the name of any Statutory Cost, after this point, but the Document might include a provision, for the resolution of any future disputes arising about the way in which the work is prosecuted, such as a material deviation or damage, etcetera.

In this regard the appointed surveyors may retain their appointments under the Act, until they are multilaterally advised by the Parties that the Notified work has been completed and that there are no issue pending on it, with the request that the surveyors discharge the Act.

S T E P H E N C A R R E L L If the Adjoining Owner wishes to appoint you as their surveyor, can you refuse to act as an Agreed Surveyor, if the Building Owner makes this suggestion?

A: Thank you Stephen: Yes, I do believe you can refuse to take Appointment as Agreed Surveyor, and definitely should if you perceive any conflict of interest.

I make the observation in passing, you say the Adjoining Owner’s wish is to appoint ‘you as their’ surveyor, which rather shines some torch light on the not uncommon Party perception that you are to be appointed into a client/adviser relationship.

But then, the Building Owner steps forward and expresses a willingness to concur in your appointment as an Agreed Surveyor, done no doubt with the understandable aspiration of mitigating Statutory cost, which in my opinion, is a practice to be encouraged, as long as there is no conflict.

Notwithstanding, I think everyone has to agree, including you … meaning that even if the parties do concur in your appointment, I consider you are still at liberty to decline the appointment, and maybe steer them to P & T’s web site, “find a party wall professional”.

May I suggest that a feature of any surveyors’ appointment (or selection) … is that the surveyor must be “ready, willing and able to act “ … impartially in the given determinative role … to its full conclusion.

Q

H I S H O N O U R E D W A R D B A I L E Y Very sensible for surveyors to make a ‘Consent Award’ after an Adjoining Owner says he will Consent but as soon as the Adjoining Owner says “I Consent” … there is no Dispute and therefore no Appointed or Agreed Surveyors?

And: Is there not a real problem under the 1996 Act, of over charging for work after there is a Consent to the works by the Adjoining Owner, or indeed after any Consent between the Owners?

Section 10(10) only enables Surveyors to make an Award about “any matter which is in dispute between the building owner and the adjoining owner”. So on the face of it, once there is no Dispute there cannot be an Award. It seems to me that Appointed Surveyors need to draw their terms of acting in such a way as protects them in the event that the Owners reach Agreement before an Award is published?

A. Thank you your Honour: These are surely useful observations for my attention, and I think we are all very grateful of your participation. I think this rather enables me to re-iterate and expand upon my answer to the question I added into Robin Ainsworth’s third question.

I think the position is that if the parties have formally Appointed Surveyors and the Deemed Dispute process is in motion, but then the parties find a welcome consensus between themselves, the Statutory position of the Appointed Surveyors does not fall away as though it never existed.

Q

D E LW Y N J O N E S Is it excusable for a Surveyor not to make an effort to engage with the parties, to flush out what owners identify as being in dispute?

A. Thank you Delwyn: This question I think rather hinges on the word “effort”, and, I think the short answer is, in all cases, whether the Dispute is Deemed or Real, an ‘effort’ ought to be made, and whatever transpires, recorded in the Award.

Flushing out what the Parties may regarded pertinent to their dispute is all part and parcel of the ‘Inquisitorial’ process.

I rather think in all cases the Appointed Surveyors will engage with a Building Owner both directly and indirectly, and this ought not to be to the exclusion of an Adjoining Owner, nor an Adjoining Occupier.

Of course, in section 10(4) cases an Adjoining Owner may be absent and the premises unoccupied, vacant and bolted up; and, if so these details ought to be noted in the Award.

Just tell the story for what it is.

I can’t think of a case I have ever had where I’ve not had some liaison with the Party who appointed me, including section 10(4), since it is the building owner making the appointment who is very present, albeit in such cases the surveyor appointed pursuant to s.10(1)(b) will have first-hand engagement.

And there will be cases where it is crucially important to engage with the parties.

By illustration, I had a case where building works were

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I can’t think of a case I have ever had where I’ve not had some liaison with the Party who appointed me, including section 10(4), since it is the building owner making the appointment who is very present, albeit in such cases the surveyor appointed pursuant to s.10(1)(b) will have first-hand engagement.

proposed adjoining some BBC Radio Broadcasting Studios, and there was quite a lot we all had to carefully work out with both parties in order to minimise disruption.

And we the Appointed Surveyors, together with the Premises Manager and Technicians for the Broadcasting Studios, and the Building Owners Project Managers and Contractor had quite a number of meetings together to work it all out.

And I might add in this process we the Appointed Surveyors made no party distinction in our roles, putting it all together in our Award. We worked very much alongside one another, and enjoyed framing our settlement in an easy to understand way … which arguably represented more of a record of the parties Consent to the terms, than anything else.

And, there are a very good many cases where means of escape in the event of fire and so on must be consensually sorted out and maintained … which can be issues “connected” with the Dispute.

I throw this in, by my wish to demonstrate the Inquisitorial nature of the resolution process.

I think the whole purpose of an Enabling Award is to settle terms under which the work can be done in a way that will prevent a “real dispute” arising, but that if a “real dispute” does arise, then this may be referred to the surveyors to determine in a cost effective and timely way, as they will have quite a bit of knowledge about the circumstances.

In contrast may I say as a Third Surveyor, I generally do not meet the Parties, and mostly everything is done by written representation, but that if I do, then I regard it crucially important that either both Parties will be present or, if by example it concerns the inspection of Property and only one of the Parties is present, then crucially both Appointed Surveyors must be present.

And, it may often be that the Appointed Surveyors are arguably proceeding a little more like expert advocates,

having made all due inquiries.

Q

A S H L E Y PAT I E N C E When a Consent Award is

made, how should the costs be defrayed?

A. Thank you Ashley: I think I may have answered this, but please allow me to expand, and say in those cases where the Appointed Surveyors have been requested to stop the resolution process by the Parties representing their Consent, does not preclude the Appointed Surveyors determining all they may have deemed by their inquiry to have been in dispute up and until the time of the ‘stop request’.

So that the Appointed Surveyors will retain their jurisdiction to determine any modest Statutory Costs arising up and to the point of the ‘stop request’.

But let me add that the Parties Consent by definition must include their agreement about who is to pay for what, and in what proportion as may apply, for otherwise there will be no Consent; and the Appointed Surveyors will be at liberty to address the issue by making and serving an Award, which will probably add to the cost, meaning that the Parties will more likely prefer to settle a modest cost in their Consent!

Q

J E R E M Y G O L D N E Y How do you view the Statute of Limitations in regard to claims for damage ?

And: The current thinking appears to be costs for final inspections should not be included in the enabling award as it is unknown if there will be a dispute in the future?

A. Thank you Jeremy: If I may take your second question first: On the day, I think I suggested perhaps a little dogmatically, that there was a need of Appointed

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I do not think an Agreed Surveyor can presume to take a Schedule of Condition, and should seek the express leave of both parties to do this, because this is not a Determinative function expressly extended by the Act.

to a conclusion by them very shortly after the Building Owner has completed the work authorised by their Enabling Award.

Surveyors to make a Final Inspection, in order to draw a line under the process However, I must acknowledge that in cases where there is no issue arising on the authorised work done, then a Final Inspection will not be necessary. The receipt of a Certificate of Compliance in regard of Basement Party Wall work done might be an example, where there is no complaint of damage or other issue arising.

Accordingly, you can count me in with those that say appointed surveyors ought not to presume upon the necessity of a final inspection, in any Enabling Award done at 1st instance.

And, with grateful acknowledgement of your questioning, you may have seen that I have added a short commentary in this Whispers review above, about the way in which closure to the process might be provided, without the presumption of the need for a Final Inspection.

Turning to your first question: I suppose the easy answer to is: “I don’t”, because this is a legal question.

I believe the Statute of Limitations 1980 probably needs to be read in tandem with the Latent Damage Act 1986, and that it is principally given to protect Defendants against stale claims, that they may, through lost evidence, be in a lot of difficulty to disprove.

In the context of party walls, the 1983 case of Marchant v Capital & Counties plc comes to mind … where it was held that an Award may impose future liability for a Building Owner to maintain a party wall if this is what the Award directs … which I think means that an application for the Specific Performance of such a direction is unlikely to be considered time barred ... but I give this subject to legal qualification … because I think Lord Denning’s judgement also cautioned in practice, that it may be undesirable for surveyors to seek to impose continuing obligations by Award.

And, I do not think that the period of the Appointed Surveyors Statutory Office is eternal, and it should be brought

Q

A L A N R I L E Y I am not sure why Donald thinks an Agreed Surveyor should not prepare a Schedule of Condition, or have I misunderstood?

A. Thank you Alan: I don’t think you’ve misunderstood. I would say though I might better express my suggestion as, an Agreed Surveyor ‘probably’ ought not take a Schedule of Condition, but that he or she might gain the parties leave to delegate this.

Your question is rightly given though, because I think this deserves some exploration.

I do not think an Agreed Surveyor can presume to take a Schedule of Condition, and should seek the express leave of both parties to do this, because this is not a Determinative function expressly extended by the Act. But let us say the Parties have both given their Consent for the Agreed Surveyor to take the Schedule; a problem can still arise in the event of dispute about damage, where then either one, or both of the Parties, contend that the schedule of condition has in itself given rise to their dispute, because it is wholly inaccurate and wrong, which can put the Agreed Surveyor in some determinative difficulty.

It is of course available for the Agreed Surveyor to proceed nonetheless, and make a Further Award with reference to the schedule, tendering the parties leave for it to have been done in the first place and then acceptance of it, since there was no Appeal.

I think though that if both parties did not express their leave for the schedule to be done, then the Further Award may well be vulnerable on the grounds it represents an excess of jurisdiction. It’s not an especially comfortable position, so I say on balance an Agreed Surveyor ‘probably’ might be best not doing this, though their Award should recommend it, perhaps with advice about the burden of proof shift, if it is not done.

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M I C H A E L K E M P I think Donald is wrong.

In Welter v McKeeve, HHJ Bailey confirmed that historic disputes should be dealt with by the original surveyors, that were about concrete overspill?

A. Thank you Michael: Well it certainly wouldn’t be the first time I’ve been wrong about something, but I don’t think I am on this occasion!

The challenge Michael posits, I think is in reaction to my observation .. that appointed surveyors need to know just how and when to draw a line under their Officer-Ship of the Act.. or, to use an expression John Anstey quite liked … know just how and when to declare with great care, their role, “Functus Officio”.

And respectfully, I have re-visited the 2018 case of Welter v McKeeve, which I consider highlights this need all the more.

Please forgive me, but I cannot find the ‘confirmation’ Michael alludes to, and just where His Honour makes any suggestion that ‘historic’ disputes ‘should’ be dealt with by the ‘original’ surveyors, which I say in itself presents a whole host of potential difficulty.

Allow me to say however, that such a suggestion may represent a favourable option, if the issue is not ‘historic’, and is a part of ongoing events, as was the position with Mr Welter and the McKeeves.

But even then, I do wonder that the appointed surveyors aren’t in a very difficult position for themselves in determining issues arising out of instances where it is later discovered a building owner’s contractor has hidden defective party wall building work done (‘hidden’, I say, because the contractor must have known the work was no good); and it can be said that the non-conforming unauthorised deviant work was ‘discoverable’ at the time it was done, by an appropriate provision for daily checking inspections of the work in progress, ‘hit and miss, pin by pin’, by a resident site engineer, and a requirement for its professional certification.

And, I do recall my answer on the day acknowledged that current practice guidelines concerning the now well-known issue of sub terranean ‘concrete spill’ into the land of adjoining owners during basement extension construction work, may very well require a special look.

As I’ve said, I do hold the view that Enabling Awards for this kind of work, ought to include some clear informative provisions for the parties, about just how the process is to be closed on completion of the work they authorise.

And, in the case of basement construction, I think this could include the requirement for the issue of a resident site engineer’s certificate, approving the party wall work to have been done in accordance with the design engineer’s specifications.

And this will be done very much at the building owner’s pleasure, because he or she will not want rebounding issues arising, if in the event of the adjoining owner building a basement and looking to share the use of the extended

party wall built.

And moreover, if the construction work is proceeding on borrowed finance, the building owner will need to know it is not in contravention of a finance agreement, or if in the event of wishing to raise finance against the property in the future; or if in the event of wishing to sell the property.

In all of these cases, bank surveyors and prospective purchaser surveyors, on seeing a recent basement extension will require assurance of its conformity; just as will the appointed surveyors on discharging the Awards they have made under the Act, as a part of having authorised the building of the subterranean reinforced concrete ground retaining party wall, necessary for the basement, in the first place.

Q

O L I V E R S T O R E Y How would you suggest

going about defining the scope of a Section 10(4) (b) dispute where a notified adjoining owner is apparently absent given reasonable attempts by the appointed surveyor(s) to engage this interest have come to nothing? Do you perhaps presume all the concerns/issues which are likely to be raised by the ‘reasonable’ person?

A. Thank you Oliver: By “reasonable” person of course you mean our good man on the Clapham Omnibus credited to Lord Bowen. This is a useful question, because I think it illustrates that it matters not which one of the Owner Parties deemed to be in dispute, makes the appointment, in emphasis of the Acts requirement for impartiality all the more.

Meaning that whether both of the surveyors appointments have been made pursuant to section 10(1)(b), or one of them necessarily has been appointed pursuant to section 10(4) either (a) or (b), they will apply the jurisdiction extended by the Act in the best way possible to suit the circumstances, for both parties impartially according with their lot.

This might include a note in their Award recording any written approach made by the building owner’s design team, contractor, or ‘party wall surveyor’, for entry into the adjoining premises, to take off an interior schedule of condition, making reference to any exterior schedule done.

And their Award might also air section 8(2), and what the Building Owner must do should Statutory Entry be required, noting perhaps the address of the nearest police station.

So that in answer to the second part of your question, the surveyors Award will contain the same things, as if the absent Adjoining Owner were present, with perhaps a few additional notes, since I think this is what our good man on the Clapham omnibus, would expect.

And service of the Award ought to be done by Royal Mail to the premises with proof of posting, because the owner may have instructed the post office to re-direct post, and the service letter may also advise that hand-delivery to the premises has also been made.

21 The Pyramus & Thisbe Society

I think the Act merits the time to trouble to selectively mark the few drawings relevant for the process, as arguably will save an electronic rainforest, or otherwise!

Q

mark the few drawings relevant for the process, as arguably will save an electronic rainforest, or otherwise!

Concerning your second question, I hope you may find the answer in my added text for Whispers, and maybe in my answers above and below. In my view once the Appointed Surveyors have declared their role under the Act ‘functus officio’, then that is the end of their story.

If an Adjoining Owner later advises of damage some six months down the line, this will not be a matter that can be administrated under the Act, nor do I believe the Act is given for this purpose.

I would expect this to be a matter for the Adjoining Owner to refer to the Building Owner direct, which is perhaps what the Adjoining Owner ought to have done in the recent case of Evans -v- Paterson and Others [2019].

It is then for the owners to decide how they might best proceed, and it may well be likely they will both involve their household insurers.

Loss adjusters may then be appointed to professionally assess the position for what it is, without Appointed Surveyors prejudicing their position with a wrongly presumed jurisdiction; but that the Loss Adjusters will I am sure be grateful of the Surveyors enabling Award record, and no doubt also grateful of an informative input from the building owner’s design team, engineers and contractor …. and it might be that the contractor will wish to alert its insurers, and all.

S T E FA N S M E R E K A I know I may be digressing a little but, Surveyors tend to include Architects and Engineer’s drawings in their awards, as have been presented to them. Do you think surveyors should ‘highlight’ on the drawings exactly where the notifiable works/conferred rights are, so that the Owners (and others) can understand them?

And: How would you recommend surveyors to bring a party wall process to an end (letter or Award?), and should they become involved again if an owner advises of damage 6 months later?

A. Thank you Stefan: Concerning your first question, may I say I don’t think you are digressing, since it’s all part and parcel of the role, and about the impartial way in which Appointed Surveyors are to proceed.

Part of an appointed surveyors discretionary jurisdiction per section 10(12) is to determine the right to execute the work.

Sometimes, in order to expedite an enabling Award, especially when the work is imminent or in motion, it will be expeditiously convenient to highlight the conferred Statutory right on such design drawings as may be in your possession, where this can be easily shown, or to make extract drawings, perhaps expressing that this is given for identification purposes only, albeit I think this will be implied anyway.

In my opinion, this is all a part of your expected Inquiry and Licence inherent with your appointment … who in their right mind would complain of that? It surely gets the message across to the parties in an easy to understand way.

Far too often may I say, do surveyors bundle in the whole unmarked design set of planning, building, and engineering drawings, 90% of which are irrelevant to the enabling Award ethic … not to mention maybe 250 pages or more, of complex geotechnical engineering method statements and the like, all of which our good man on the Clapham Omnibus would find utterly perplexing.

I think the Act merits the time to trouble to selectively

Q

CO S TA S A N OTO L I T I S In most cases, if you ask Adjoining Owners what is in dispute, they claim that they do not dispute anything in particular but still want a surveyor involved and an Award prepared. Are surveyors expected not to accept an appointment under Section 10 in this situation?

A. Thank you Costas: I don’t think I quite caught onto the essence of your question on the day, hoping you will forgive me, in that virtual conferences without audience feedback do

22 The Pyramus & Thisbe Society

present their own set of challenges.

My short answer to your question is, No! Please forgive me if this seems a tad tongue in cheek, because your question admits that the adjoining owner’s very expectation is for a surveyor to accept appointment and the expressed desire of wanting a surveyor involved, actually amounts to an expression of dissent, at least until a surveyor has vetted the position.

As Robin Ainsworth aptly seeks by his question to me, the Act requires an Adjoining Owner’s written Consent to a Notice, in the absence of which the Statutory condition of a Deemed Dispute arises, upon which surveyors must be appointed.

And if a surveyor is ready, willing and able to act, the expectation is that he or she will accept the appointment.

So your adjoining owner’s wish, will, in one way or another, come true, by virtue of the Act’s Model Procedure.

Q

and contains some safeguarding conditions, including a clause that says administrative cost £…not-very-much…, and I shall sign and date it in an authorised capacity for and on behalf of the adjoining owner and occupier, and hand it to them and say ….. ‘please give this to your neighbour’, with my account.

Of course the Building Owner neighbour does not have to pay my account, but then there will be a Dispute, because the Adjoining Owner will understandably protest, in which case an Award must be done to determine the dispute, costing £…a-lot-more…

May I respectfully say, it is no wonder, in my experience, that every single building owner I have known encounter this choice, have very gladly received the Consent and paid its modest Cost immediately.

I do think rather more can be said and aired about the practice of Statutory Consent, for the sensible administration of ‘small’ works, where the feeling has always been that the Act, is a bit of a mallet to crack an acorn … giving rise to many small works building owners, doing whatever they can to ‘avoid’ the Act, and worse still ‘evade’ the Act .. with bad building results.

And, I now end by saying I believe this may have been a reason why, the Law Society entered an objection against the London Building Acts (Amendment) Act 1939, being enacted in an amended form, to apply Nationally, as the Party Wall etc Act 1996.

A L E X F OT H E RG I L L With Consent, you are not

an Appointed Surveyor, and therefore not entitled to fees from the Building Owner?

A. Thank you Alex: Your question was listed in conclusion of the event, and it rather enables me to summarise my view about this, for Whisper’s.

It may seem pedantic of me to say that an Appointed Surveyor is never entitled to ‘fees’, but rather Statutory Costs; however I do think it is important to use the language of the Act. Statutory Cost must be reasonable, implying quantum meruit, whereas fees are negotiable according with supply and demand and ‘privilege’.

But as said, the practices adopted, are a bit of a mishmash!

In the majority of cases at first instance, the practice that has evolved is that a “Party Wall Surveyor”, with the Building Owner’s “authority”, will serve the required Notice, inviting the Adjoining Owner’s written Consent within 14 days, advising that in the absence of Consent,a Dispute will be Deemed to arise.

And, if in the event of Dispute, the same Notice advises that the very person that has made out the Notice in an ‘agency’ capacity, will be elevated into the impartial role demanded of an Appointed Surveyor, inviting the Adjoining Owner’s concurrence with this Appointment.

And, at the same time the Notice will advise the Adjoining Owner that if they cannot concur, then they must appoint surveyor of their own choosing within 10 days, for otherwise the Building Owner will do this.

It’s all quite a bit to take in really, and no wonder that Adjoining Owners will mostly seek out a local surveyor to ‘act on their behalf’ !

If the local surveyor is me, and the Notice is to cut 3 metres of lead flashing into the main roof party wall parapet, I will open my draw and pull out a single sheet of paper that is headed “Statutory Consent” which makes the basic recitals

donaldjessop@jessopassociates.co.uk

23 The Pyramus & Thisbe Society

Alistair Redler

by Professor Alan Gillett OBE DSc MA FRICS FCEM

Addressing the P&T Club on the subject of the Third Surveyor at The Connaught Rooms, 19 September 2011.

24 The Pyramus & Thisbe Society

NUTT vs VEDA Road Ltd(1) and George Podger(2)

by Keith Douglas MPTS FRICS MCIArb

Date

failing which the case would be restored for a further hearing with the option open to have the party wall reinstated.

The defendant was, on the evidence provided, liable for starting an uncontrolled fire in his garden The defendant allowed debris to fall onto the claimant’s property The defendant worked outside normal industry hours causing unnecessary inconvenience In consequence of these findings the Court ordered payment of damages by the defendant as follows:-

CCCL 28 April 2021

Subject matter

Works carried out to party wall without service of notice Nuisance occasioned to adjoining owners – fires, falling debris and excessive noise

Facts

This is an unreported case held in the County Court and therefore not a precedent.

The claimant lives in a terraced house on a hill adjacent to the defendant’s end of terrace property, uphill of the claimant’s house. The properties are separated by a brick party wall, the upper courses between the roof planes being exposed to the weather as, for example, can be seen in many a Welsh mining village .

The defendant failed to notify the claimant of intended works of, inter alia, a loft conversion.

The defendant removed and rebuilt his roof at a higher level, and in so doing filled the gap between the head of the party wall, on which the original slated roof was bedded, and the underside of the new slated verge. The infill was achieved by placing a deep rafter member on the claimant’s side of the party wall. The original weathering at the junction of the party wall and claimant’s roof has been replaced with a deep white ‘plastic’ board.

Three steel beams have been inserted into the party wall

Actual nuisance resulting from the works

Deprivation of the benefits afforded by the Act Nuisance caused by the irresponsible lighting of the fire and effective refusal to extinguish it Nuisance caused by unreasonable noise Nuisance caused by falling debris

£450 £750 £500 £2000 £250

Extra costs will be payable by the Defendant by way of two surveyor’s fees ( possibly third surveyor’s also) and the cost of the action.

Surveyor’s commentary

Sadly the facts in this case are common throughout the Country, most practising surveyor’s seeing the effects of cavalier building owner’s belligerence on an all to regular occasion. By and large it is the adjoining owner’s who suffer, being unable, mainly due to lack of funds, to protect their rights. Credit must be given to the few who, at personal emotional and financial cost, rise to the challenge.

This case serves to emphasise the penalties for failure to comply with the procedures in the Act. The costs of this action have yet to be assessed but will be substantial and adversely affect developer’s profits.

The Judge considered and dismissed the Defendant’s claim that notice was served verbally, underlining the need for written recorded notice.

Decision

The works were executed without following the procedures in the Act thereby disadvantaging the claimant and subjecting his family to nuisance.

Despite claims by the defendant to the contrary, notice was not served.

To reach a satisfactory conclusion on the party wall issues the Court ordered the parties to appoint surveyors whose duty is to make, within two months, a retrospective award,

info@keithdouglaspartnership.co.uk

25 The Pyramus & Thisbe Society

The Matter with Reserved Matters

R

Unfortunately, what often transpires is that as soon as a project gets the green light (i.e. upon planning consent being granted), a Building Owner wants to start work yesterday.

Regardless of whether any tender process ran in conjunction with planning matters, upon procurement of a contractor, there is an eagerness to start works at the earliest opportunity. Whilst this is understandable, and often driven by costs, it does pose an issue when it comes to Party Wall matters. Initial site set-up and lead-in periods may or may not be sufficient to bridge the gap in programme and timings required from a Party Wall perspective. And as I am sure most will attest, obtaining the necessary information from a design team is not always plain sailing.

In order to manage expectations, and ensure any Building Owner is aware of the timescales and programme risks associated with the addressing of Party Wall matters, it is key to set out the timescales for information requirements and provision pre-commencement of the works, so that where possible, this can be factored into the programme. All too often however, the making of such allowances within the programme is rarely implemented. This can ultimately lead to discussions over contractual liabilities for delays stemming from Party Wall matters before works have even begun on-site. The poor old Party Wall surveyor (get the violins out!) may well find themselves on the opposite end of pointed fingers in such a scenario, despite having been fighting a losing battle from the outset. It may be possible to

E S E RV E D M AT T E R S A R E N OT H I N G N E W.

As surveyors, we are regularly asked to allow for certain matters to be “reserved” within Awards.

This typically allows the commencement of certain activities, while deferring the provision and approval of other information until such time as it becomes available. I am no different, and from time to time, may also agree to or suggest that matters be reserved within an Award. There are however right ways and wrong ways for addressing such matters.

There are various reasons why it may seem appropriate to reserve matters within an Award. Construction programmes are quite often not geared up to cater for Party Wall matters, with adequate provisions for addressing them not factored into the programme. In the vast majority of instances, certain contractor information and input will be required in order to fully consider the matters in dispute under the Act. If you’re lucky, you may find that prior to entering into contract a contractor has been issued with a letter of intent, or has a pre-contract service agreement, creating (one would hope) a willingness on their part for early engagement with the Party Wall process. Often however, this won’t be the case, with certain elements of the information required in order to fully consider and address Party Wall matters not becoming available until some time after the building contract has been entered into (which is typically only a very short time prior to commencement of works on-site).

26 The Pyramus & Thisbe Society

© Shutterstock

by Aidan Smyth MPTS BSc(Hons)

mitigate the impact of such finger pointing with a simple recommendation at the outset that the Building Owner considers incorporating timescales for information provision within the programme and also the construction contract, and thereby earning a grateful pat on the back instead should matters end up getting slugged out in the contractual trenches.

So step in the reserved matter! A seemingly harmless and pragmatic solution to all your problems. A means of kicking the proverbial can down the road, often allowing an Award to be made in good time, and receiving the plaudits of the Building Owner as a result. A sensibly drafted reserved matters clause within an Award will also set out timescales for the provision of any outstanding information prior to the commencement of the relevant works, so that there is no expectation of proceeding as soon as that information has been provided (which in reality, may not be possible depending upon the adequacy of that information, and responsiveness of the appointed surveyors amongst other things).

But! And of course, there is a “but” (or else I wouldn’t be writing this article), the surveyors should be wary that when doing so, they are appropriately carrying out their duties under their statutory appointments. Typically, a reserved matter requires the prior review and approval of certain information by the appointed surveyors subsequent to the making of an Award. With the making and service of an Award however, Section 10(17) of the Act provides both owners with the right to appeal such an Award should they see fit. Taking certain matters outside of the parameters of an Award however, potentially denies an owner the opportunity to appeal those matters, should they so desire.

To put this another way: say for example a matter reserved within an Award related to a contractor’s methodology for certain works. Were the appointed surveyors to subsequently approve a method statement for those works, what would be the Adjoining Owner’s recourse should they feel that the approval of the same was inappropriate? If such approval wasn’t granted by way of service of a further Award, then an owner’s right to appeal that decision in accordance with S10(17) has essentially been taken away from them.

S10(1) of the Act also sets out that the surveyors’ authority to settle disputes between the owners is by way of the making of an Award. Thus, proceeding in such a fashion (i.e. not by way of an Award) is beyond the jurisdiction of the surveyors, and therefore potentially ultra vires. Were a Building Owner to proceed in the belief that such matters had been “discharged”, they are at risk of acting in breach of their statutory obligations and all that comes with that (i.e. possible recourse of the Adjoining Owner to seek injunctive relief).

Notwithstanding the above, I can’t imagine too many out there would thank me for suggesting that wherever a matter is reserved within an Award, that a further Award must automatically follow in each and every instance. Doing so

would likely have both cost and time implications for the Building Owner.

The important thing here, in my view, is ensuring that the owners are involved in the process. What I mean by this, and notwithstanding that the matters are already in dispute between the parties (or what would be the need for an Award in the first place), is that the owners should be consulted when considering reserving matters within an Award. The Building Owner should be made aware of the potential requirement for further Awards should the surveyors proceed on this basis, so that they are able to weigh this up against the potential programme benefits that this may bring about. On the other side, and perhaps more importantly, the Adjoining Owner should be provided with the information pertaining to the reserved matter once this becomes available. If this is acceptable to an Adjoining Owner (with or without the input and advices of their appointed surveyor), then this is no longer in dispute, and as such not a matter requiring settlement by way of a further Award.

Essentially, the surveyors should not be acting as judge, jury and executioner, and cutting the owners out of the Party Wall equation by denying them their right to appeal a determination relating to disputed matters. One should also be mindful of the fact that where matters are agreed outside the parameters of an Award (unless agreed directly between the parties), it could also be argued that the owners aren’t bound to adhere to any such matters agreed between the surveyors.

So, what’s the (reserved) matter with all of this then I hear you ask? Well, potentially very little. Providing you take note of the provisions of the Act, consult the owners if considering to reserve matters within an Award, ensure a reserved matter is actually in dispute before proceeding to further Awards, and make sure that where settling a disputed reserved matter this is determined by way of an Award (thereby affording the owners the right to appeal should they wish). And in a “help me to you help you” kind of way, if engaged at an early enough stage, it wouldn’t hurt to run through programme and procurement intentions with a Building Owner and the implications of and upon Party Wall matters, such that a proactive rather than reactive approach can be adopted, with no requirement for reserved matters in the first place.

aidan.smyth@gia.uk.com

27 The Pyramus & Thisbe Society

The Adjoining Occupier

by Keith Douglas MPTS FRICS MCIArb

Section 20

Section 11(6)

Adjoining owner and adjoining occupier respectively mean any owner and any occupier of land buildings storeys or rooms adjoining those of the building owner and for the purposes only of section 6 within the distances specified in that section The term occupier is not defined in the Act but will include anyone living or working on the property, whether for a few weeks or longer. They could be a shorthold tenant, licensee or even a trespasser. An adjoining occupier has no estate in law.

Where the adjoining premises are laid open in exercise of the right mentioned in section 2(2)e a fair allowance in respect of disturbance and inconvenience shall be paid by the building owner to the adjoining owner or occupier.

Section 16(1)

If – (a) an occupier of land or premises refuses to permit a person to do anything which he is entitled to do with regard to the land or premises under Section 8(1) or (5); and (b) the occupier knows or has reasonable cause to believe that the person is so entitled,

Section 7(2)

The building owner shall compensate any adjoining owner and any adjoining occupier for any loss or damage which may result to any of them by reason of any work executed in pursuance of this Act. For work to be executed in pursuance of the Act notice must be served.

An adjoining occupier does not have recourse to the dispute resolution process in section 10 to enforce compensation under section 7(2). Any claim would be for breach of statutory duty.

The scope of section 7(2) is very wide including claims for: • • • • •

the occupier is guilty of an offence.

An adjoining owner may not frustrate a statutory right of access.

Generally

An adjoining occupier has right to compensation and notice of entry An adjoining occupier has no right to be heard in the preparation of an award.

An adjoining occupier refuses access they are guilty of a criminal offence under subsection (1) and (2) are liable on summary conviction to a fine of an amount not exceeding level 3 on the standard scale.

Alternative accommodation Storage/removal costs Loss of earnings Loss of amenity An adjoining owner must take steps to mitigate their loss

Section 1(7)

© Jason Dent Unsplash.com

Where the building owner builds a wall wholly on his own land in accordance with subsection (4) or (5) he shall do so at his own expense and shall compensate any adjoining owner and any adjoining occupier for any damage to his property occasioned by(a) the building of the wall; (b) the placing of any footings or foundations placed in accordance with subsection (6)

28 The Pyramus & Thisbe Society

F

O L LOW I N G M O N T H S O F

hard work to get the new Society launched, it is an exciting time of transition and new beginnings. What better way to celebrate that than a look back at the original formation of The Club, the attitudes at the time and how we have become the community of professionals we are today…. Plus, how many other memberships do you know with a dedicated Luncheon Organiser?’

From

the

Vaults 29 The Pyramus & Thisbe Society

The Collected Papers of The Pyramus & Thisbe Club John Anstey, October 1995

T

entertainment should be provided for the December meeting, HE OPENING LET TER E XPL AINS HOW IT and so a tradition began which was lasted for twenty-one all began: I sent the same letter to forty-six years so far, thought it may be about to end. The works of surveyors with whom I was or had been involved many composers have been pilfered and parodied by John in party wall work. All but one came along to an initial meeting, at which a great uniformity of Anstey and Alan Gillett, and performed by a number of talented guest artists, plus the authors. The lyrics, though all opinion was voiced about everything except a name for the relating to party wall and allied subjects, have not been club. The Part VI Club, the Section 55 Club and, rather reproduced here, but mention should be made of the two prosaically, The Party Wall Surveyors Club, were all ladies who each attempted to seduce the District Surveyor in suggested and disliked. The matter was therefore left in the hands of a steering committee but, before they met, an “Wonderful DS, listen to me”, and the song which has almost become and anthem, “Surveyors, surveyors, surveyors are English teacher friend suggested the title that the club now best, I wouldn’t give tuppence for all of the rest”, in which bears, and it was enthusiastically adopted. every other profession is quite properly decried.

The rules set out in the second document were presented Despite a trawl through the records of many of the Club’s to and accepted by the next meeting, and the only changes original members, some lacunae still exist, but what follows is since have been the abolition of the limit on numbers, and as complete a record as seems possible at this date. Most of offices are held for one year, not two. We seem to function the items bear their original page numbering, but for the very well on a very loose constitution.

As it was widespread misunderstanding of the Gyle- purposes of this collection, the pages have been re-numbered consecutively in their totality, thus: 4 etc.., and it is to these Thompson case which had led to the formation of the Club, it numbers that the list of contents refers. Where I think it is was obviously the most appropriate subject for the first helpful, I have added hand written notes to the original business meeting. Donald Ensom, who had been the Third papers, which are otherwise reproduced in their original Surveyor in the case, delivered a paper on the subject. form.

In 1975, one of our members suggested that an

Agenda

The Original Club rules

4.

committee.

1.

2.

3.

Name of the Club Purpose and Activities Qualifications for membership Election of Officers

P U R P O S E The purpose of the club is to hold regular luncheon meetings for those interest in party wall matters.

M E M B E R S H I P Membership is open to all interested by application to be approved by the

N U M B E R S Membership shall be limited to 100.

I N AC T I V I T Y Because of the limitation on numbers, inactive members may be asked to resign by the committee.

G OV E R N A N C E The affairs of the club shall be controlled by the committee, in general, conformity with the Purpose set out above, and they shall have the power to fix and collect subscriptions, meeting costs and decide the programme etc.

CO M M I T T E E The committee shall consist of four officers, who shall hold office for two

years and shall be eligible for re-election. They shall have the power to co-opt additional members pro tem. The officers shall be: Chairman; Lunch Organiser; Programme Organiser; Treasurer.

30 The Pyramus & Thisbe Society

-

Founded 1795

ANSTEY,

12.Well Court,Oueen Street

Consultant Bryan Anstey BSc FRICS fl Arb

Our raf Your rel

telephone Ol-248 4274

Londonto EC4go in here, A quote HORNE Associated Offices 9kanwngerIen 563 21 SCP SJOE Queensbury. Middlesex it can17be number & CO. Chartered Surveyors Station any Pde.Kew Gardens 01·940 7676 Bournemouth. Hampshire of words or lines…

John Anstey BA FRICS I ii I 2 I 51188

T. Leach Esq., George Head & Co. , 10 Carlos Place, London W.C.l.

19th April, 1974

Dear

Mr. Leach,

My incompetent and incomparable assistants have suggested that it might be rather fun t o form a Party vVall Surveyors Club, the Chairman of which would be known, of c ourse, as "The Third Surveyor." Subscripti ons, naturally, would be ''a reasonable fee. 11 The number of specialists in party walls seems to be growing and it is apparently a concomit"1nt fact that party wall work is becoming more c oncentrated in the hands of specialists. I thought, therefore, that there might be many advantages in some sort of informal association in which those practitioners could exchange views and perhaps meet for an occasional lunch or supper.

Interesting papers, awards and notes of tricky situations could be circulated and there might be considerable sc o pe for settling of differences.

I would not propose that it should be a body with an examination qualification nor indeed that entry should be otherwise than by invitation, nor would I propose that entry be limited to principals, but that assistants (I am sure yo u will understand why I have to insert this sentence) who take an active hand in party wall matters should also be eligible.

If you would be interested and if you can think of other people who might be, and whom you would recommend for invitation, perhaps you would like t o write back and give me your views in general.

Yours sincerely,

John Anstey;------.J

31 The Pyramus & Thisbe Society

Engineering sketches

by Jakub Nowikowski MSc MIStructE © Elite Designers

jakub@elitedesigners.co.uk

Typical underpinning detail

Existing masonry wall

Dry pack

Trench box horizontal propping Trench sheeting to secure excavation

Sacrificial shutter Dowel bars between the pins

Mass concrete underpinning under the existing masonry foundation, cast in 1m sections in underpinning sequence

32 The Pyramus & Thisbe Society

Contiguous Piles

Secant Piles

Detail A

Reinforced concrete capping beam

Capping beam reinforcement

Reinforced concrete bored piles, either contiguous or secant, to resist surcharge load, vertical loads on piles and lateral soil and water pressures.

Typical piled retaining wall construction

Reinforced concrete capping beam

Reinforced concrete slab Reinforced concrete bored pile, either contiquous or secant

Detail A 33 The Pyramus & Thisbe Society

New wall construction Capping beam

Detail B Ground floor slab (precast or in-situ) Reinforced concrete piled retaining wall

Detail A

Reinforced concrete basement slab

34 The Pyramus & Thisbe Society

Contiguous Piles

Secant Piles

Reinforced concrete bored piles, either contiguous or secant, to resist surcharge load, vertical loads on piles and lateral soil and water pressures.

Insulation

Internal lining wall Waterproofing membrane Reinforced concrete lining wall Concrete screed

Detail A

Reinforced concrete basement slab Anti heave material Reinforced concrete capping beam Capping beam reinforcement

Waterproofing membrane Insulations

Internal lining wall

Detail B Reinforced concrete bored piles, either contiguous or secant, to resist surcharge load, vertical loads on piles and lateral soil and water pressures.

Lining wall reinforcing bars 35 The Pyramus & Thisbe Society

Let me introduce…

Michael Austin BA(Hons) MSC MRICS

Q

How did you come to be a surveyor?

A. My first job was an assistant role at a local authority, building control and planning department where I met important mentors who gave me good industry advice. I went on to study MSc Building Surveying at LSU which led to my first BS job after graduating.

is your favourite part of Q What your current role?

A. The variety. I appreciate that all my time isn’t spent at a desk. It is nice (especially in sunny weather) to be able to go on site and see some of the grandest period buildings, but also modern structures.

is your most valued life Q What lesson?

A. You only ever have full control over your own actions. Always be diligent in all you do, treat people with respect and care, especially the people you work with, and you will see relationships transform. You can’t control what others do, but you can positively influence how others work with you.

is the best piece of advice Q What you have been given?

A. One of my secondary school teachers said to me never to dwell on my failures, appreciate the growth that takes place in dealing with them. As Frederick Douglas once said, ‘if there is no struggle, there is no progress.’

have you found most Q What enjoyable about being a member of the p&t?

P RO F I L E

A. Sharing stories and brainstorming ideas which will support the next generation of surveyors to really diversify the industry.

A built environment enthusiast, I currently work as a Senior Chartered Building Surveyor at Anstey Horne.

piece of advice you would Q One like to pass on to help others

G R E AT E S T AC H I E V E M E N T

when starting in the industry…

A. Be patient with your development and don’t be afraid to ask lots of questions. It’s okay to ask for help sometimes! As long as you’re using your initiative, doing research, nobody is expecting you to have all the answers straight away. It’s all part of the learning process of becoming a great surveyor.

We never stop learning. michaelaustin@ansteyhorne.co.uk

Quite recently, I went to a site visit for what I thought was a normal day. It turned out to be one of my most memorable days. I managed to save a client’s life from what could have been a fatal truck incident.

HOBBIES Travelling the UK and the world. I also enjoy watching movies and my favourite genre is animation.

FAVO U R I T E LANDMARK AND WHY? Adomi Bridge in the Eastern region of Ghana, West Africa.

I enjoy taking walks and admiring the environment around it. Adomi Bridge is the longest suspension arch bridge in Ghana and is a must see when visiting.

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MEMBERSHIP OFFICER

P U B L I C AT I O N S O F F I C E R

IT / WEBSITE OFFICER

Derek Bate

David Moon

Hannah Boyd

 email

 email

 email

Details of regional officers can be found on the website.

Whispers is published by The Pyramus and Thisbe Society exclusively for its members by Pongo & Matelot (info @ pongoandmatelot.co.uk).

All information correct at time of going to press. All rights reserved. Articles may not be reproduced without written permission from the author.

While every care is taken in compiling the content, neither the publisher nor The Pyramus and Thisbe Society assumes responsibility for effects arising from this publication. The opinions and subjects discussed in this publication are for editorial purposes only. No Members nor the Fellowship of The Pyramus and Thisbe Society accepts liability for any direct or consequential loss arising from the use of this document or its contents. The opinions expressed in this journal are not necessarily the views held throughout The Pyramus and Thisbe Society.

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Publisher and creative direction  info@pongoandmatelot.co.uk  pongoandmatelotstudio

37 The Pyramus & Thisbe Society

ISSUE 50