Awards and Determinations: More Power to the Party Wall Surveyor

The Party Wall etc Act 1996 confers on property owners wishing to conduct construction works at or near the boundary (“the building owner”) far reaching powers to interfere with the property rights of the owner of its adjoining property (“the adjoining owner”), including rights of access over the adjoining owner’s land. The Act is a self-contained code which builds on a venerable statutory history. Centuries of legislation have culminated in an Act of a mere twenty two sections which attempts to define the scope of the owners’ rights and obligations. The Act is administered by party wall surveyors who require no formal qualification for the purpose: a party wall surveyor can be any person, provided that he is not a party to the dispute between the owners.

A dispute between the owners can arise in one of two ways: either by service on the adjoining owner of a notice describing the building owner’s proposed works under section 3 or 6 followed by the adjoining owner’s failure to consent to those works (“a deemed dispute”); or an actual dispute in respect of any matter connected with any work to which the Act relates. If a dispute arises or is deemed to arise, the owners, broadly speaking, may appoint a joint party wall surveyor or each appoint their own surveyor and the surveyor(s) will ultimately make an award to resolve the matters in dispute. Most commonly, those matters relate to the manner and timing of the building owner’s proposed works and the nature of the protections to be afforded to the adjoining owner while the works are being conducted. The Act is widely described as an “enabling Act” and is administered exclusively by the party wall surveyors. Lawyers are rarely involved. Thus, it represents a valuable form of alternative dispute resolution: it relieves the courts of the burden of dealing with numerous relatively low value disputes between neighbouring owners relating to construction matters. The Act’s predecessors applied only to the inner London boroughs but the scope of the 1996 Act is broadened to cover the entirety of England and Wales. 

It has long been accepted ( at least since Selby v Whitbread & Co [ 1917} 1 KB 7 3 6) that the Act’s predecessors dealt with the common law in a revolutionary manner and, in effect, amounted to an exhaustive code, implicitly repealing the common law and suspending the parties’ common law rights in relation to works which engage the Act. This principle has been followed in a number of cases since then, for example, Louis v Sadiq [1996} 74 P&CR 325: Kaye v Lawrence [2011} 1 WLR 1948; and Blake v Reeves [2010} 1 WLR 1. Perhaps understandably, the judiciary have shown a willingness to treat the jurisdiction of party wall surveyors as being very wide in scope and a corresponding unwillingness to place a technical and legalistic constructions on its wording.

The surveyors’ power to make awards under the Act is nevertheless susceptible to judicial scrutiny: any owner can appeal an award to the county court, provided that the appeal is brought within 14 days of service; and the court has untrammelled power to rescind or to modify the award as it sees fit – section 10 (17). Recent years have seen a sharp increase in such appeals despite the fact that the value of the matters in issue is frequently very modest and insufficient to justify litigation.

Party wall awards almost invariably make provision for payment of the surveyors’ fees in making the award ( and, sometimes, the fees of professionals, such as strnctural engineers, retained by the surveyors). Usually, but not invariably, the award will specify that the building owner will be responsible for the adjoining owner’s surveyor’s fees, and will specify what those fees should be. Generally, the award will make no provision for payment of the building owner’s surveyor’s fees because, where the costs of the award are payable by the building owner in any event, the amount of the building owner’s surveyor’s fees is only of interest as between the building owner and its surveyor; it is not a matter in dispute between the owners. It had therefore been thought that it is accordingly not a matter on which the party wall surveyors could award.

Section 17 of the Act provides that any sum payable in pursuance of the Act shall be recoverable summarily as a civil debt, meaning that payment of such sums can be enforced by a civil complaint to a magistrates’ court. This course of action is clearly open to an owner who has the benefit of an award, but there had been some doubt as to whether a surveyor (as distinct from an owner) could similarly enforce the terms of an award where the award makes provision for payment of his fees. It had long been considered doubtful that he could do so: firstly, he is not a party to the award and therefore has no obvious standing to enforce it; and, secondly, the building owner’s surveyor’s fees are entirely a matter between the building owner’s surveyor and the building owner; they cannot be the subject of a dispute “between a building owner and an adjoining owner” for the purposes of section 10 (1) and so, it was thought, could not be the subject of an award.

These matters were considered by Mr Justice Holgate in the High Court in February of this year in the Queen on the application of the Farrs Lane Developments Limited v Bristol Magistrates’ Court when he concluded, in line with the judicial trend referred to above, that a party wall surveyor is indeed entitled directly to enforce payment of his fees under an award despite the apparent legal difficulties.

In short (and simplifying the facts) that case involved a development in Bristol where a series of similar awards were made, which all provided that the building owner should pay the building owner’s surveyor’s fees. The building owner did not do so, believing the fees were excessive, but it did not appeal the award. Subsequently, the surveyor brought a complaint before the Bristol magistrates to enforce payment to him of those fees. The building owner argued that the surveyor was not entitled to do so because: (i) he was not a party to the award; and (ii) that the question of his fees was not a matter in issue between the owners; but the magistrates rejected those arguments and the application was granted. The building owner applied to the High Court for judicial review of that decision.

The judge gave short shrift to both of the building owner’s objections. He held that, whilst the surveyors must of course settle any matters which are in dispute between the owners, they are also entitled to “determine” any other matters which are incidental to the dispute. The surveyors’ power to make a determination in respect of those other matters is very broad in scope, reflecting the surveyors’ task of providing a complete package of provisions, some of which may relate to disputed matters and others of which may not. This appears to be consistent with the surveyors’ obligation to make an award under section 10 (1) in respect of matters which are in dispute between the owners and their discretion under section 10 (12) to determine any other matter incidental to the dispute, including the costs of making the award. The judge had no difficulty in finding that the surveyor making the award could enforce its provisions even though he is not a party to the award; he took the view that, where an award requires that an owner shall pay a surveyor’s fees directly to that surveyor, there is no reason why the surveyor should be precluded from invoking section 17: if a sum payable under an award is “recoverable summarily as a civil debt” it must be recoverable by the person entitled to receive it. 

The judgment will be welcomed by party wall surveyors who can now be confident that their jurisdiction is indeed as wide-ranging as it needs to be to enable them to adjudicate on all aspects of works within the Act without having to distinguish between those aspects which are formally “in dispute” and those which, whilst not being in dispute, nevertheless require determination in order to achieve a complete package of provisions. Moreover, they can now be confident that they can directly enforce their own right to receive payment of their fees by taking direct action in their own name.

However, there were aspects of the decision which were clearly intended to ensure the courts can still exercise control over party wall surveyors who utilise the Act for their own benefit, rather than for its proper purposes. The judge made it clear that he considered, contrary to the previously and generally accepted position, that, in appropriate cases, the party wall surveyor(s) making an award could be made parties to an appeal brought under section 10(17), whether for the purposes of ensuring they are bound by that decision themselves – i.e. primarily where fees are to be cut down by the appeal – or, more worryingly for surveyors, for making costs orders against surveyors whose inappropriate award has caused the appeal to be necessary in the first place.

An edited version of this article was published by the Estates Gazette on 7th May 2016.

Andrew Smith is a partner at Child & Child and Nick Isaac is a barrister at Tanfield Chambers.