“The Appointed Surveyor”: Agent, Advocate, Agitator, Arbitrator?”
by Donald Jessop BSc FRICS MCIArb
BASED ON THE ZOOM ADDRESS GIVEN TO the Surrey Branch of Pyramus & Thisbe, on Friday 28th January 2022: Donald Jessop offers this extended version of his talk, re-edited to include a discussion of the inquisitorial nature of the process, with all of the Questions as these were submitted on the day.. plus one, and with expanded Answers.
Agent, Advocate, Agitator, Arbitrator, in no particular order: This was a question posed, perhaps a little light heartedly, by John Anstey some 25 years ago in the final days of the London Building Acts (Amendment) Act 1939; and in the wake of the 1995 case of the Chartered Society of Physiotherapy -v- Simmonds Church Smiles, with Humphrey Lloyd QC’s judgment handed down in the Appeal against an Award that John Anstey had produced, as a Third Surveyor.
The Appointed Surveyors were John Anderson and John Webb … and I offer this address in respectful memory of the three surveyors.
And; I ask, in just what capacity does a Third Surveyor or an Agreed Surveyor act? Is this a different role from that of an Appointed Surveyor?”
I say that John Anstey posed his question ‘perhaps a little light heartedly’, because I suspect many practitioners know and feel, as I believe he did, that whatever an ‘Appointed Surveyor’ may be, he or she, at the very least, must be independent of the parties … which rather knocks out Agent, Advocate and Agitator … But: ‘Arbitrator’, I think deserves a little closer look, which I shall come to later.
And: Ought not an Appointed Surveyor act with integrity in the management of an Act of Parliament, meaning that public service is put above personal interest? And, ought he or she not apply objectivity and base decisions on an impartial analysis of the facts gathered by making diligent inquiry?
I would say so, and these happen to be the published core
values for Civil Servants.
The truth is, that when John Anstey posed his question, in varying ways and in differing degrees, Appointed Surveyors acted in a rather jambalaya Jack of all trades way, albeit always concerned not to call an appointing owner, a client.
And this is no criticism because building projects in Central London are mostly large, and the desire was (as it is) to get as much done of good use, by way of impartial inquiry, in the shortest possible time. And Demolition Awards, and Foundation Awards, and Superstructure Awards with plenty of other Interim Awards in any one project venturing to the centre of the earth and into the stratosphere, with many adjoining owners and quite a few surveyors, was (and is) commonplace.
But there’s more: On a domestic level pre-1996, sometimes the owner parties would appoint themselves in person, to act as surveyors under the Act, to produce their own aspired “Awards”! Hence the advent of the interpretive exclusion under section 20 of the present legislation for the meaning of “surveyor”.
Please let me spell this out; “surveyor” means any person not being a party to the matter appointed or selected under section 10 to determine disputes in accordance with the procedures set out in this Act.
So, it certainly looks like the Statutory aspiration is for surveyors to act independently of a party, and with impartiality, “… to determine disputes …”, noting here that dispute is pluralised, because the model procedure does embrace a ‘continuity of events’, which I will come to in looking at just what a Dispute is in the context of the Act.
And, at this juncture, may I throw into the melting pot, a probability that on closer scrutiny, the section 20 expression ‘party to the matter’ may carry a wider meaning in its given context, than the section 10 expression ‘party to the dispute’.
By example, it seems to me to make sense that ‘an
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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.
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.
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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.
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
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:
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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‘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
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?
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In this way they will often find themselves participating with the Parties in defining the ‘actual or real dispute’ for what it is … I say, in an inquisitorial way.
Most of these ‘actual or real dispute’ cases are about damage occasioned by the authorised work falling for ‘settlement’, by Further Award, mostly after the work has been completed; or the issue could be about a ‘permissive’ provision for a deviation to the authorised work whilst it is in progress, or about settling a remedy for its consequences upon a 0 discovery of the unauthorised deviation (such as subterranean concrete spillage into the adjoining land).
In the vast majority of cases the Appointed Surveyors will be able to agree the issues in consensual liaison, and by inquiry with the Party Owners, and others.
Please do note the Act uses the expression “… shall settle by award ...” (my emphasis), and the Further Award that commonly follows, will ‘determine’ these ‘settled’ issues for what they are; and may I suggest, it might possibly resemble more of what is called a “Consent Award” in other circles.
In this way I offer that a Further Award, may possibly be akin to a “Tomlin Order”, of course given that by the parties consensus there is no Appeal made against it.
And, I suggest this Further Award, given as it is, as a record of settlement, will also draw a line under the Statutory process, unambiguously declaring it discharged and complete, and without any further issue pending.
But, it still remains for the Parties to do what the Further Award says … who remain at liberty to apply to the Court for its Enforcement, as with a Tomlin Order, should this prove necessary, which in itself of course has nothing to do with the role of the Appointed Surveyors.
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, that authorises the Notified Work to proceed, could make a provision for this … perhaps using words to the effect of: ……. ‘The Building Owner shall notify the Adjoining Owner in writing of the Completion of the Authorised Work on the day it is completed (the Adopted Completion Date), supplying the Adjoining Owner with any relevant Certificates confirming its Conformity with the Award terms herein given …. *(see example in Q&A about basement construction) .… and in the absence of the Building Owner receiving any written Complaint from the Adjoining Owner about the said Work done within a period of 10 days of the Adopted Completion Date, the Building Owner may apply to the Appointed Surveyors in writing to issue a Certificate of Discharge of the Statutory Process, and the Appointed Surveyors Office shall become ‘Functus Officio’ …..
BUT: What if the Appointed Surveyors can’t get things agreed, as in the Chartered Society of Physiotherapists case, which was an Actual and Real Dispute issue about damage occasioned to the adjoining premises, by the execution of the authorised work done, and the two Appointed Johns could not agree, and necessarily referred to the third John.
In that there is no conflict by the ‘fair-minded informed observer test’, cannot a Third Surveyor, by his or her selection, represent an “Impartial Tribunal” as a sole Arbitrator of the kind provided by section 1(a) of the Arbitration Act 1996 which reads:
1. General principles.
“The provisions of this Part are founded on the following principles, and shall be construed accordingly:
(a) The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense”
Then reading on, section 1(b) of the Arbitration Act provides: “(b) The parties should be free to agree how their disputes are resolved, subject only to such
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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.
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
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
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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...
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.
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 living extravagantly was obviously rich, and therefore could afford the tax as well!
And when the appointed surveyors jurisdiction is multilaterally activated, it may only be multilaterally de-activated, leaving then the appointed surveyors to close their Statutory office, thereby vetting no stone has been left unturned.
The corollary invites the mantra: ‘No Notice No Act’ … by the very recently published case of Shah v Power and Kyson [2022]. But of course this in itself requires some qualification.
And, I think it could be available for the Third Surveyor to act as an Arbitrator in determining a 2nd prong Actual Dispute, once this has been clearly defined by Inquiry, for the Appointed Surveyors advocacy, but that this will surely come down to the Third Surveyor being quite sure of the parties willingness and knowledge, that he or she is proceeding in this way, and that in doing so, the Parties will be aware they are consensually supplanting the Party Wall etc Act 1996 with the Arbitration Act 1996.
Concerning the Agreed Surveyor, as said, I believe it more likely that he or she, will at all times be proceeding as an Independent Expert, and probably should not serve notices, nor take schedules of condition, and more certainly should not design.
But that it may well be available for a member of the Building Owner’s development team to adopt the role of a ‘party wall surveyor’ and serve notices, and take schedules of condition, and maybe even design as well.
In conclusion I make the observation by Shah v Power and Kyson [2022] where Mr Shah did party wall work without engaging the Act and caused damage, that if a building owner does not invoke the Statutory resolution model by serving a Notice, refusing its gifts, then an adjoining owner, albeit with good intention, will not be able
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.
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.
QSHIRLEY WALDRON May Appointed Surveyors delegate their duties to an assistant?
And: If damage is occasioned to the adjoining premises by and during the progress of the Authorised work, and the Adjoining Owner engages the Surveyor they have Appointed by complaint of the damage, who then involves the other who in turn alerts and engages the Building Owner; and the two Appointed Surveyors then jointly proceed together to ‘define’ the issues for what they are, with a view of settling an Award … and the parties, and their solicitors know this is going on, but at no time seek to “stop” the surveyors … does this not amount to an actual Dispute by your so called 2nd prong circumstance?
A: Thank you Shirley: These are two valuable questions you have raised with me since my talk; and I realise I omitted to offer some discussion about the differences between the “adversarial” resolution process and the “inquisitorial” resolution process, which I hope I’ve addressed at least to some degree in my extended paper, above.
Taking your Second question first: I am conscious of the fact that you have first-hand knowledge and experience of what went on in the case of Lion Homes (Sussex) Ltd v Brighton & Hove City Council [2018] - “The Royal Pavilion” case.
I have re-visited the judgment handed down by His Honour Judge Richard Simpkiss, and with great deference to him, I can see he expressed considerable concern that insufficient time had been allotted to try the issues, and that there was insufficient evidence submitted, certainly for all of the three counts as these were presented for trial.
Accordingly he was only able to address the first one of three counts: And of course, unlike Appointed Surveyors who may and do make their own Inquiries, I believe His
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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,
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
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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.
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.
QR OBIN AINSWORTH 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’?
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’?
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.
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QS TEPHEN CARRELL 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.
QH IS HONOUR EDWARD BAILEY Very sensible for surveyors to make a ‘Consent Award’ after an Adjoining Owner says he will Consentbut 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.
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.
QD ELWYN JONES 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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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.
QA SHLEY PATIENCE 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!
QJ EREMY GOLDNEY 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 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.
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
to a conclusion by them very shortly after the Building Owner has completed the work authorised by their Enabling Award.
QA LAN RILEY 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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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.
QMICHAEL KEMP 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.
QOLIVER STORE 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.
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QS TEFAN SMEREKA 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
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.
QC OSTAS
ANOTOLITIS
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
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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!
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.
QA LEX FOTHERGILL 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
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.
donaldjessop@jessopassociates.co.uk
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