Home Courts in the Act reported cases and commentary

Courts in the Act reported cases and commentary

PARTY WALL etc ACT 1996

SYNOPSIS OF SIGNIFICANT LEGAL DECISIONS

YEARS 2001-2011


2001 Frances Holland School - v - Wassef
2001 Rees - v - Skerrett
2002 Saunders - v - Williams
2002 Godwin - v - Swindon Borough Council
2002 Patsalides - v - Foye
2003 Arena Property Services Ltd - v - Europa 2000 Ltd
2004 Roadrunner Properties Ltd - v - Dean and Suffolk and Essex
2004 Dust - v - Marioni, Greenaway and MacNulty
2006 Zissis - v - Lukomski
2006 Davies and Sleep - v - Wise and Wise
2007 Manu - v - Euroview Estates Ltd
2007 Udal - v - Dutton
2008 Onigbanjo - v - Pearson and Curson,
see also 2009. Blake - v - Reeves
2008 Rodrigues - v - Sokal
2008 Bradford and Bradford -  v - James and others
2009 Mannon - v - West Greenwich Developments LLP
Sunsaid Property Company Limited - v - Omenaka (added 30/08/11 courtesy of R. Ainsworth)
2009 Blake - v - Reeves
2010 'Ormerod' Moot - suing for fees
2010 Kaye –v- Lawrence
2011 Seef - v - Ho
2011 Grand - v - Gill (added 30/08/11)
2011 Breuer - v - Leccacorvi

Frances Holland Schood – v - Wassef – 2001

The Wassef’s were statutory tenants under the Rent Acts of 1977 and not therefore owners thus they had no right to receive notice and no right to appoint a Surveyor.However, both parties had proceeded without query and under the doctrine of ‘Estoppel by Convention’ the parties were prevented from denying the validity of the earlier Awards which the Court was unwilling to declare invalid.

Rees – v - Skerrett – 2001

Dating from before the Party Wall etc Act 1996 this case concerned the extent of easements for support and the existence of common law duties between owners of adjoining properties separated by a common flank wall.

Skerrett demolished a terraced house without adequate shoring or weatherproofing of the exposed party wall and as a result there was damp penetration and structural movement.

Rees won damages but lost in the High Court

On appeal Rees succeeded on the grounds that the structural movement to his property was a manifestation of the instability of the flank wall caused by the infringement of the right to support and so could form the basis of a damages claim in nuisance (distinguished from Phipps and Pears wherein there were two adjacent walls, one of which was exposed but not rendered unstable by the demolition of the other wall whereas in this case there was a single wall the stability of which had been compromised)Damp penetration could not lead to a damages claim for breach of an easement as there was no right to protection from the weather as such. The Court applied the principle established in Leakey –v- National Trust 1980 that failure to take reasonable precautions to prevent foreseeable damage to neighbouring land could give rise to a claim in nuisance. If a claim could be made in respect of naturally occurring events then it must apply equally in the case of a man-made variety.

The underlying duty is to take reasonable steps in the circumstances to minimise risks that are known or ought to have been known of damage to adjoining property arising from the proposed activity. The Court found that Skerrett had failed in his duty.

The Party Wall etc Act Section 2 (2) (n) now requires adequate protection for an exposed wall or face liability to pay compensation (Section 7) so that there is, at least in theory now, a statutory remedy in addition to those of common law.

Saunders – v - Williams – 2002 

Mr Williams, a builder, was employed to carry out work on a semi-detached house and in so doing caused damage to the other property To carry out a repair it was necessary to completely rebuild the wall which Mr Williams failed to do.8 years later the aggrieved Adjoining Owner, Mrs Saunders, sued Mr Williams in negligence. She claimed the cost of repairs, distress and inconvenience due to the loss of two rooms. The claim also included damages representing the loss of rent for the two rooms, which she had intended to let to tenants.

The Court awarded £24,500 damages for the cost of repairs and a further £1,000 for consequential losses.The reason for the relatively low consequential loss figure was that Williams could not have reasonably foreseen that the wall would have remained damaged for 8 years The figure of £1,000 was arrived at by a single joint expert stating that the value of the loss of the rooms was £1,000 per annum.

The appeal was against the Court’s Award of £1,000 consequential loss.

The Court of Appeal stated that foreseeable damage caused to an unforeseeable degree is recoverable.To decide whether the normal measure of damages should be reduced Williams would have to prove that Saunders had failed to take reasonable steps to mitigate her loss.

Saunders did not have any money so she was unable to carry out the repairs expeditiously and therefore it would have been difficult for Williams to have provided the necessary proof.

In the event the Court substituted the sum of £8,000 for the original £1,000 awarded.

Godwin – v - Swindon Borough Council – 2002 

A Claimant posted the Court Claim Forms on a Thursday, the limitation period expiring on the Friday.The Defendant received them on the Friday and then claimed that they were served out of time.The Court of Appeal held that the Claim Form was served out of time because the deemed date of service was two days later ie the following Monday. The deemed date of service could not be contradicted by evidence of the date of actual service.The message being that it is impossible for a time limit set by any Act of Parliament to be extended by a Court.

ContrastSatish - v- Harpalasin 2010 – date of service of a Third Surveyor’s Award is NOT the date of posting but the date of receipt.

Patsalides – v - Foye - 2002

Mr Foye, the Building Owner, wished to build an extension to his property against the Adjoining Owner’s flank wall. A Party Structure Notice was improperly served and a falsely dated notice was then faxed, over a month later, to the Adjoining Owner’s Surveyor who had no authority to receive notices.Two days later the Two Surveyors signed a document entitled Party Structure Award. The Court decided that the Award was invalid as no notice had been served.

Arena Property Services Ltd – v - Europa 2000 Ltd – 2003 CA

This case concerned easements, access to neighbouring land, claim for compensation for severance of soil pipe and the existence of an easement.

Arena Property Services Ltd, leaseholder of 96 Farringdon Road and the Respondent in the Appeal wished to extend their property and in order to do so they removed a boiler flue and soil vent pipe which protruded onto the property of 96 Farringdon Road. The soil and vent pipe came from 98 Farringdon Road and passed across the party wall at first floor level and travelled to near ground at which point it passed through the party wall back onto the property forming part of 98 Farringdon Road.It then ran, or should have run, to the mains drainage.A soil and vent pipe served the upper floors of 98 Farringdon Road, which subsequently became the subject of a leasehold interest created in favour of the Appellants, Europa 2000 Ltd.It was argued that the water flow through the pipe was an easement but the Court held that there was insufficient evidence to suggest that water had flowed through the pipe and therefore the Appeal was dismissed.This left a number of unanswered questions.Europa never had the opportunity to adopt the procedures in the Act.

Award served to cut off pipe projecting over Adjoining Owner’s land

Roadrunner Properties Ltd – v - Dean and Suffolk and Essex – 2004 CA

Without having served notice the Building Owner cut into the party wall with a kango hammer in order to create a chase for pipework. There was an allegation of damage being caused to the Adjoining Owner’s premises by the Kango hammer and although the evidence presented to the Court that the Adjoining Owner’s tiled floor had been badly damaged was inconclusive the Court of Appeal held that the lack of evidence itself was the Defendant’s fault for not having complied with the Act and that in the circumstances the Claimant had provided sufficient proof to succeed.

Dust – v - Marioni Greenaway and MacNulty – 2004

Mr Dust claimed fees totalling £6,171.12 in connection with the insertion of steel beams into a party wall.In carrying out the work cracks were occasioned to the adjoining flat. The work commenced without service of notice.

Mr Dust informed the Adjoining Owners that any shortfall in his fees would have to be met by them.The Third Surveyor awarded a fee of £950 plus VAT. The complaint against Mr Dust was, to use the words of the Judge, that he made a three course banquet out of which should have been a snack and spent many more hours doing work than was reasonably necessary. The Judge found that Mr Dust had lost a sense of proportion in his approach to the case.He decided that work beyond the provisions of the Party Wall etc Act had been carried out by Mr Dust but reduced his claim down from around £6,000 to £3,000 to be paid proportionately by the three Adjoining Owners.

The Judge summed up the situation:-

“If you have an absolutely wonderful case and you instruct a solicitor, for example, in ordinary life and the solicitor is a marvellous solicitor and wins the case for you, having run up a bill for whatever it is, £10,000 legal costs, and it turns out that the person you have got a judgement against cannot pay because they have gone bankrupt or dead or whatever, you have still got to pay your solicitor even though it was never your fault that you should have started the case. So if there are difficulties you have to pay a proper fee to the professionals you instruct even if you are entirely right.”

The message for Surveyors is that to protect both parties interests proper notices must be served and Schedules of Condition taken.

Zissis – v - Lukomski and Anor – 2006

The Court of Appeal decision in this case has settled that the proper procedure for an Appeal under Section 10 (17) is under part 52 of the CPR and its associated Practice Direction 52.The general rule is that new evidence cannot be adduced at an Appeal but fresh evidence may be admitted only in exceptional circumstances these are 1) where events subsequent to the hearing are relevant to the Appeal and 2) where the evidence fulfils the following criteria:-
  • it could have been obtained with reasonable diligence for use at the Trial.
  • it must be such that, if given, it could probably have been an important influence on the results of the case though it may not be decisive.
  • it must such as is presumably to be believed; it must be apparently credible though it need not be decisive.


Davies and Sleep – v - Wise and Wise - 2006

This was a case in the Barnett County Court. Mr and Mrs Wise wanted to demolish their garage on the boundary of the property belonging to Mr Davies and Miss Sleep and then erect a single storey extension in its place.

A Section 1 (5) notice was served on the Adjoining Owners and subsequently a notice under Section 8 (1) was served stating their intention to exercise a right of access.

The notice was rebutted and the matter referred to the Third Surveyor who purported to authorise access.

The question for the Court was the proper interpretation of Section 8 (1) which states “A Building Owner, his servants, agents and workmen may during usual working hours enter and remain on any land or premises for the purposes of executing any work in pursuance of this Act and may move any furniture or fittings or take any other action necessary for that purpose”.

The key point was whether Section 1 (5) works are works “in pursuance of this Act” and if a distinction was drawn between works in pursuance of the Act and works that are in pursuance, not of the Act, but in pursuance of common law rights, albeit regulated by the Act. The Appeal was allowed with costs.

In 2009 a Moot was held in the Reading County Court and the Judge’s Opinion was that access is available to a Building Owner on service of notices under Section 1 (5) and 8 (1), however, there are a number of objections to the reasoning behind the opinion, which of course is not binding.

Manu – v - Euroview Estates Ltd – 2007 

The Surveyor served a single document notice under Sections 3 and 6. As required under Section 6 the notice was accompanied by a plan, cross section. A Method Statement was also provided. The drawing was insufficient to comply with the requirements of Section 6 to show the position and depth of the excavation.

The Adjoining Owner’s solicitor appointed himself as the Adjoining Owner’s Surveyor and since the Building Owner’s Surveyor arranged for the appointment letter to be signed by Mr Manu this was not an issue at trial.

The Adjoining Owner’s Surveyor (solicitor) then proceeded to nitpick his way through the procedures, in particular challenging the validity of the Building Owner’s appointment, requiring undertakings for his fees and by failing to agree the selection of the Third Surveyor requiring the Local Authority to do so under their default powers.

The Building Owner’s Surveyor was eventually able to send the Adjoining Owner’s Surveyor a draft Award which provided for Mr Manu, the Adjoining Owner, paying 50% of the underpinning costs the reason being underpinning was required as a result of the poor condition of the wall. The Adjoining Owner’s Surveyor took exception to this stating that it was contrary to Section 6 (3) of the Act, which provides for excavations to be carried out at the Building Owner’s expense.

The Adjoining Owner’s Surveyor’s interpretation of the Act was that whereas the Building Owner believed that under Section 3 works include all that is necessary to underpin the party wall including excavations required to get to it and that Section 6 covers other excavations, the “correct view” was that since Section 2 (2) (a) does not mention the word “excavation” but only “underpinning”, underpinning but not the excavation was covered by Section 2. Of course this position was adopted because the cost of works under Section 2 (2) are potentially divisible between the owners whereas under Section 6 they are at the cost of the Building Owner.

The notices were served in August 2005 and in January 2006 the Adjoining Owner’s Surveyor started commenting on the Section 6 notice.

The Adjoining Owner’s Surveyor also claimed that the poor condition of the party wall was due entirely to root damage caused when trees had been removed before the Building Owner had purchased the property. To add fuel to the fire the Adjoining Owner’s Surveyor was still demanding undertakings to secure his fees.

Later in January 2006 the Building Owner’s Surveyor informed the Adjoining Owner’s Surveyor that he thought enough was enough and enclosed an Ex Parte Award relating to the Section 6 works.The Award specifically stated that it did not deal with the party wall matters.

The Award was appealed and the Adjoining Owner instructed his Surveyor as his Solicitor.

Later on the Third Surveyor made his Award in respect of the party wall stating that it required underpinning and that the cost “should be borne equally between the owners since they were equally responsible” within the meaning of Section 11 (4) (b).The Third Surveyor also stated that nothing would prevent the Adjoining Owner from exercising their right to damages under common law in respect of any neglect by the Building Owner or their predecessor.The Third Surveyor’s and the ex parte Awards were appealed.


The questions to be decided at trial were as follows:-
  1. Was the Building Owner’s appointment invalid on the ground that it had preceded the notice?
  2. Does the word “underpin” in Section 2 (2) (a) include the excavation work necessary to underpin?
  3. Was the notice invalid with regard to the Section 6 works because it did not comply with Section 6 (6)?
  4. Did the Adjoining Owner’s letter of 12 January 2006 constitute “a refusal to act effectively”?
  5. Was the Building Owner’s Surveyor entitled to act ex parte under Section 10 (6) or does that sub-section confer no power on the other Surveyor to act alone? This question was not pursued.
  6. Was the Third Surveyor wrong in holding that the Building Owner was not “responsible” for the defect requiring underpinning of the party wall?
  7. Was the Third Surveyor’s Award challengeable on the grounds of internal inconsistency or of allocating costs illogically?

The answers to the foregoing questions were as follows:;
  1. “Given that …… the Building Owner is likely to engage the services of its Party Wall Surveyor before serving a Party Wall notice it would be nonsensical in my judgement, to hold that he could not make a valid appointment until after any difference had actually arisen”.
  2. I have no hesitation in rejecting this argument. It seems to me to be perfectly clear that by “underpinning” Section 2 (2) (a) contemplates whatever works are required in order to effect underpinning including the obvious need to excavate, in order to be able to get at the location for the underpinning.The Judge found that Section 3 governed the excavations necessary to install the underpinning.
  3. The Judge found that the Section 6 notice was invalid because the depth of the excavation was improperly shown   In fact all the parties accepted that they could work out for themselves what was intended by the notice and there had been no problems arising out of this element of non-compliance.“In my judgement, even construing this notice benevolently with regard to the fact that it is an instrument intended to take effect between practical men for practical purposes, this document cannot be fairly regarded as including information that Section 6 (6) requires it to include.The drawings are sloppy in this regard and the notice was not valid in so far as it related to Section 6 works.That, however, is not the end of the matter.It is a fact that invalid notices lead to invalid Awards (Gyle-Thompson –v- Wall Street (Properties) Ltd, however, “in my judgement, therefore, a Party Wall Surveyor can by his acts or conduct in appropriate circumstances waiver defect in a notice or create an Estopel that would bind his appointing owner by accepting to act as though the notice was valid notwithstanding.

    The main point here is that if you wish to take a point you must do so quickly, the Courts to not like ambushes.“In that context any points that are to be taken concerning the alleged inadequacies of a notice served by a party are expected to be taken promptly, as soon as they are apparent.It will not therefore not take much for a party to be taken to have waived a right to rely upon some deficiency in a notice”.
  4. The Adjoining Owner’s Surveyor demanded a fresh notice be served in circumstances where, as it was subsequently heard, no fresh notice was needed. On the face of it this does not appear to constitute “refusal” however “although the bare refusal contained in a letter might, in a different context, have amounted to no more than a statement of position, given the combined facts that it was raised so late in the day, more as part of a negotiating strategy than for general good reasons and against the background of taking a succession of pedantic and difficult points, I find that, in this situation it did not do so --- I therefore hold that the Adjoining Owner’s Surveyor’s letter was, in all circumstances, a refusal to act effectively.
  5. This matter was not pressed
  6. So far as third parties are concerned, the Judge “said the 1996 Act is quite clearly contemplating that the question of “responsibility” is decided between the actual parties to the procedures and not with regard to other persons, such as predecessors in title or third parties”.

    As between the parties themselves the Judge took the view that the Act is not intended to require the Surveyors to embark on a legal analysis “it is not being contemplated that a Party Wall Surveyor who makes an Award as an expert should have to investigate, consider or decide the niceties of legal liability as though he were a Judge in a Court of Law.I consider that the word “responsibility” was intended to provide a simple and practical yardstick, capable of being applied in a relatively summary way as a matter of commonsense impression.
  7. It was argued that the Award should be set aside because it contains some apparent minor internal inconsistencies and because the cost of the work had been allocated illogically, both arguments being dismissed.

In summary:-
  1. Surveyors can be appointed before service of Notice.
  2. Underpinning under Section 2(2)(a) includes excavation.
  3. That the purpose of a Section 6 Notice was for an Adjoining Owner to assess risk to stability of their building.
  4. Party wall underpinning due to subsidence – costs apportioned 50/50.
  5. A Party Wall Surveyor can waive a defect in a Notice by accepting to act as if the Notice were valid.
  6. Waiting too long to declare notice invalid = estoppel
  7. Acceptable to serve a composite Notice – ie under different sections
  8. It is dangerous for an unqualified “surveyor” to be appointed to act ie lawyer.
  9. The Courts take a dim view of Surveyors failing to act until their fees have been guaranteed.
  10. Judge’s Opinion – 10 (4) applies only to initial failure to appoint – not a failure to appoint a suitable Surveyor.
  11. Unreasonableness of Adjoining Owner’s Surveyor can be reflected in an Award.
  12. Predecessor responsible for damage caused prior to current Adjoining Owner’s involvement.Preceding damage not responsibility of the new owner.
  13. Appeal to County Court by way of re-hearing – under CPR52.
  14. Re-appeal – new evidence may be admissible.
  15. No requirement for Surveyor to receive Building Control Plans

Udal – v - Dutton – 2007 

An interim Injunction was granted against the Building Owner who had demolished parts of a party fence wall separating the gardens of two properties with a view to rebuilding the wall without an Award.

An earlier Award did not contemplate this work and whilst the Two Surveyors were in the process of negotiating a Further Award the details had not been agreed at the stage where the Building Owner commenced demolition.

The Judge stated “the Defendants are guilty of trespass and wrongful interference with the Claimant’s property:- unhappily all too often in these circumstances the party doing the work goes ahead with those works before the agreement has been completed.The whole point of the Act is to provide a mechanism by which agreements can be reached or disputes identified and to avoid this sort of sly destruction”.

Onigbanjo –v - Pearson and Curson – 2008. Blake - v - Reeves

The Building Owner served notice on the Adjoining Owners who consented to the work, which then proceeded.

Resulting from the work by the Adjoining Owners’ property was damaged. Although the Architect agreed that the damage would be made good by the Building Owner it was never carried out and the Adjoining Owners then appointed a Surveyor under Section 10 (1) (a). The Building Owner was called upon to appoint a Surveyor but failed to do so.A Surveyor was subsequently appointed, on his behalf, under Section 10 (4) (b). The two appointed Surveyors then made an Award determining that the Building Owner was responsible for paying a sum of money to the Adjoining Owner in lieu of making good the damage and also to pay various fees incurred by the Adjoining Owner.

The Building Owner appealed on the grounds that there was lack of jurisdiction and as to the costs.

The Appeal was dismissed with the Judge concluding that the Surveyors did have the necessary jurisdiction to make their Award. In particular he was satisfied that the Solicitor’s and Barrister’s fees were directly incurred only in the giving of advice on and the operation of the procedure under Section 10 of the Act.

Conventionally there has never been any difficulty in recovering Structural Engineer’s fees but that is not the case in respect of legal fees.Where legal input is genuinely and reasonably required in order to deal with issues arising out of the works then there is no reason in principle why those fees should not be awarded and the Judge said “there can be nothing wrong in principle with the Adjoining Owners (who are not professionally qualified) using their own Surveyors, Solicitors and Counsel. The limitation in Section 10 (13) is that costs should be reasonable” The Judge sidestepped any other matters arising out of this dispute in this case, however, in the following case of

Rodrigues –v - Sokal – 2008

The Building Owner commenced works in advance of serving notices under Sections 2 and 6 of the Act.

Two Surveyors were appointed and the Third Surveyor selected.

The matter in dispute concerned an allegation that the Building Owner’s work had damaged the Adjoining Owner’s premises. The Third Surveyor found that no such damage had been occasioned and issued an Award to that effect.The Award was appealed.The Appeal was not upheld.

The decision in this case cannot be reconciled with Louis v Sadiq and Woodhouse v Consolidated Property Corporation Ltd, however, if both parties authorise the procedure to make an Award, the Court of Appeal willtreat it as effective.

Bradford and Bradford – v -  James and Others – 2008

Lord Justice Murray started his judgement in this case concerning litigation between neighbours with the following words “there are too many calamitous neighbour disputes in the Courts.Greater use should be made of the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution. At attempt at mediation should be made right at the beginning of a dispute and certainly well before things turn nasty and become expensive. By time neighbours get to Court it is often far too late for the Court based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties or possibly both.The extreme acrimony between these neighbours is nothing new.”

Van Maanen – v - West Greenwich Developments LLP – 2009

Five Adjoining Owners appointed a Surveyor to act on their behalf. That Surveyor made ex parte Awards in which he awarded himself fees of a little under £10,000. He then made further ex parte Further Awards and brought proceedings against the Building Owner based on those Awards for fees amounting to just under £13,000. In the meantime the Building Owner’s Surveyor made an ex parte Award, which provided for a total of a little under £600 in respect of the Adjoining Owner’s fees. The defence to the claim was that the Claimant, the Adjoining Owner’s Surveyor, had no legal relationship with the Defendant, either contractual or statutory, entitling the Claimant to seek payment directly from the Defendant. That much was obvious since the Claimant was appointed by the Adjoining Owners and not by the Defendant.

Section 10 (13) provides that the reasonable cost in making or obtaining an Award shall be paid by such of the parties as the Surveyors may determine. The Act is silent as to who is to be paid.This point had been considered in the Onigbanjo case where the Judge said “in my judgement a proper reading of the Award and in particular paragraphs 3 to 6 made it clear that what the Surveyors are doing is itemising the sums which the Appellant should pay to the Respondent. I do not read paragraphs 4 to 6 as an instruction to pay (a) the Adjoining Owner’s Surveyor’s fee or (b) the Adjoining Owner’s Barrister’s fee directly to the Adjoining Owner’s Surveyor and the Adjoining Owner’s Barrister.They are Awards of fees, which the Adjoining Owners have incurred in dealing with and resolving this dispute.The commonsense view is that the Appellant would pay the Adjoining Owners those monies which would then be, in due course, remitted to their Surveyor or Barrister.” That analysis was accepted by the Court and the Judge went on to say “it may well be that as a matter of convenience the Building Owner pays the Adjoining Owner’s Surveyors fees directly but that is not the legal position. The Claimant therefore must look to the Adjoining Owners who appointed him for payment of his fees and for the reasons stated he is not entitled to claim them from the Defendant.”

See also Ormorod Moot 2010.

IN THE STOCKPORT COUNTY COURT
Thursday, 27th August 2009
Before:
HIS HONOUR JUDGE TETLOW

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Between:

SUNSAID PROPERTY COMPANY LIMITED Claimant
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(1) I L OMENAKA
(2) O G OMENAKA Defendants

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The Claimant appeared in person.
The Defendants appeared in person.

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JUDGMENT

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  1. This is a case where the claimant, Mrs Saidi, or her company I think it is, own number 15 Mauldeth Road West. Mr and Mrs Omenaka, who I will call the defendants, own number 13 Mauldeth Road West, and, as so often happens in cases where the properties are joined together by a common wall, one party wishes to create improvements and, insofar as they may affect the persons next door, they have to go through a procedure.
  2. In this case the defendants, and when I say the defendants, Mrs Omenaka is joint owner of the property number 13 with her husband, although her husband does not deal with the property and Mrs Omenaka does; he has another occupation even though he is a joint owner. At all events, the defendants wanted to extend or deepen the cellar of the house to make it more useful certainly for letting purposes, and that meant that the joint wall would need to be underpinned and deepened. So Mrs Omenaka got some plans from a builder. The plans appear at exhibit RA1 to Mr Ainsworth’s statement, and they purported to have been prepared or approved by Mr Haynes, a structural engineer.
  3. Mrs Omenaka, knowing something about the Party Wall Act, whether from her previous experience or from what she was told by the builder who prepared the quotation for the work, realised she should notify the claimant and she did so on the 12th August 2008, sending the plans and saying what she proposed to do.
  4. That was meant to be a notice under the Party Wall Act and in fact the letter which she sent on 12th August enclosing the plans had that reference, “Party Wall Acknowledge of Notice.” That may not be quite the right sort of heading but it certainly was purporting to be a notice under the Act. The letter was sent after a conversation with Mrs Saidi. The letter stated the cellar company, Cellar Vision I think they were called, had done several cellar conversions in the area, including one in the same block; she expected Mrs Saidi would sign and return the Acknowledgement of Notice.
  5. Mrs Saidi, whether she was worried about the insurance implications of the proposed work or not, was obviously a little bit concerned about the plans and the effect that those plans if carried out would have upon her own plans for doing something similar in the basement cellar of her own property and so she asked Mr Ainsworth, a surveyor, to advise. He agreed to act as her surveyor and it seems to me that in doing so he was then acting under the Party Wall Act and she was the appointing party, rather than that he was advising her about what she should do in order to start the procedure going, which would be a different function. So as far as I can see he was always acting within the provisions of the Act.
  6. He also agreed that the plans looked a little bit inconsistent and he was concerned. So it was felt that clarification was necessary, and indeed there were telephone calls and correspondence between the two sides, Mr Ainsworth to Mrs Omenaka, also to the builder and to Mr Haines, and indeed to an architect. Mr Ainsworth’s concerns were made the greater because it transpired from a telephone call to Mr Haynes that he had said, “I have not designed this. It is nothing to do with me.” Then Mrs Omenaka had the difficulty that the builder, Cellar Vision, decided not to communicate at all. So there was a problem.
  7. It seems to me that there was a dispute between the parties in the sense that, unless acceptable plans were produced, Mrs Saidi was not going to agree to the works going ahead. Mrs Omenaka accepts that that was the case, and I can quite understand that she was having difficulty in getting somebody certainly at short notice to produce acceptable plans; it was mooted at one point that perhaps Mr Ainsworth should be the joint surveyor which would have satisfied the requirement under section 10(1)(a) of the Act that the parties should concur in the appointment of one surveyor. That could have been Mr Ainsworth. Indeed eventually Mrs Saidi was happy for Mr Ainsworth to act for both sides.
  8. There was a dispute which I do not think I am able to resolve between Mrs Omenaka and Mr Ainsworth as to whether in a phone call between November 08 and January 09 he said, “I have authority to act as a joint surveyor,” or not. She says not, he says, “I did.” It was predicated upon the basis that he could do so but only if there were acceptable plans or designs and, sadly, that never came about.
  9. It is clear that earlier this year Mr Ainsworth was asking, “Are we going ahead (and if so produce suitable plans please) or not?” There was also mention of his fees. I know that Mrs Omenaka was not happy about those fees and she refers to the fact that he had quoted some £500 as being the likely cost but I note that from his note it was on the basis that the plans were all right and they clearly were not.
  10. In the end Mrs Omenaka sent a notice withdrawing her application so that brought matters to an end, and that was in February I think of this year.
  11. The only matter then outstanding was the question of Mr Ainsworth’s charges. I think Mrs Omenaka in argument accepted that he was entitled to charge but she took issue with some of the charges on the basis that he may not have been acting in his capacity as a surveyor but rather answering queries of a general nature. I think Mr Ainsworth would agree that if, for example, there was an enquiry as to whether he would act jointly, that would not be chargeable as such, but he disagrees as to the items that are complained about as to his entitlement to charge.
  12. So the only argument is over the fees. It is perhaps just worth checking through the correspondence at exhibit RA 7.3 and onwards to his statement. 7.3 is a letter of the 2nd January 09. Mr Ainsworth notifies Mr and Mrs Omenaka about the cost. He said that was simply a record keeping exercise. Certainly his mention of fees caused Mrs Omenaka some concern as to the amount and she even wrote to the Royal Institute of Chartered Surveyors about that.
  13. There was correspondence about that and then on the 13th February (7.9) Mr Ainsworth wrote on behalf of Mrs Saidi saying, “It is now over six months since your agent served notice under the Party Wall Etc Act in respect of the proposed works,” and saying that the claimants had “declined to consent to the work, in fact dissented to them, therefore a deemed dispute arose under the Act and under the provisions of section 10(1) of the Act I was appointed …. as their Party Wall surveyor…. Despite several exchanges with you, your architect, your contractor and engineer …. I have been unable to solicit any amended or appropriate details of your proposed works. It also appears from other correspondence that you dispute responsibility for and/or the reasonableness of the costs incurred by Sunsaid Property Company in lawfully pursuing the statutory requirement directly as a consequence of the notice served. Whilst it is not for me or my appointing owner to encourage you to submit suitable details for your work, without which you cannot lawfully carry out that work, my appointing owner does wish to resolve the dispute in respect of the costs incurred singularly as a consequence of the statutory notice served on them.” Then he says, “On behalf of Sunsaid Property Company Limited and with their authority as enclosed, I hereby serve you with a written request to appoint a surveyor in writing within the next ten days to determine the statutory dispute. In the absence of written confirmation of such appointment my appointing owner will under the provisions of section 10(4) of the Act make the appointment on your behalf. Thereafter I will liaise with that surveyor to determine responsibility for and the reasonable quantum of the adjoining owner’s costs to date…”
  14. So that letter basically says there is a dispute as to the fees as well as about the proposed works but principally because of the stalemate he was instructed to deal with the dispute as to the fees.
  15. Then there is a letter of 20th February 2009 from Mrs Omenaka saying, “I have been to Citizens Advice,” and containing further argument and a reply but that does not further the matter.
  16. Then on the 26th February there was a letter containing withdrawal of the notice given under the Party Wall Act: “I wish to withdraw the Party Wall Notice I served on the 12th August 08 to Sunsaid Property. I do not have a contractor to do the cellar conversion yet.”
  17. As Mrs Omenaka pointed out, of course, she need not have withdrawn that notice, she could have left the matter open until the guillotine came down at the end of the anniversary of the original notice.
  18. Then Mr Ainsworth wrote to her on 28th February in reply saying his fees were £662.40 inclusive of VAT,” and said: “…. to avoid the additional costs which the appointment of another surveyor and the drawing up of an Award will generate, that appointment will be delayed for a further 7 days only to give you chance to accept the offered agreed termination of proceedings by sending a cheque for £662.50 thereby avoiding further inconvenience to all.” So there was the opportunity given to pay what was asked for or incur the extra cost of having an award.
  19. Then a letter of the 9th March from Mrs Omenaka saying she, “…. did not sign any consent to your fees which is an expected practice of professionals. I am willing to pay your reasonable costs according to the Party Wall Act. I am, however, not willing to pay for any non-professional activities which could have been performed by a supporting clerical staff. In the past few years I have instructed surveyors and solicitors and they have always had me sign an agreement specifying what their terms are etc and that I agree to pay their fees. Party Wall Act must be governed by such good practice so that doubt is avoided. You should have made it very clear that you charged for phone calls, especially as this is not the usual practice of surveyors. I have been billed for an inquiry call I made and which my architect made also without prior warning.”
  20. That is one of the objections raised, that there are no written contract terms or a list of terms as between Mr Ainsworth and Mrs Omenaka. Had Mr Ainsworth been directly engaged by her or acted jointly, that might well have been a criticism, but, since he is only acting for Mrs Saidi, I do not think that is something which can be raised as a complaint in these proceedings.
  21. At all events, no surveyor was appointed by Mrs Omenaka to deal with this dispute and section 10(4) of the Act says this: “If either party to the dispute - (a) …. (b) neglects to appoint a surveyor under section 1(b) for a period of ten days beginning with the day on which the other party served a request on him, the other party may make the appointment on his behalf,” which is what Mr Ainsworth warned might happen in his letter just referred to.
  22. So it was that Mrs Saidi delegated the task to Mr Ainsworth to appoint Mr Kilpin as the other surveyor. There was also Mr Scanlon who was appointed and agreed upon as the umpire, in case Mr Kilpin and Mr Ainsworth disagreed about the amount of dispute. As it happened, the amount was agreed between them. There was no need for Mr Scanlon’s services to be called upon and the award was made in a sum rather larger than before because of the cost of carrying out the procedure for the award.
  23. That award was made on the 20th March 2009 and, since there has been no request for that to be looked at again within the 14 day period allowed for; the award is now final unless this Court (strictly it may not be this Court) can say that it is otherwise invalid. As Mr Ainsworth says, it may be a matter for judicial review rather than this Court but, be that as it may, I will consider the objections made as to invalidity because none can be made under the award itself because no objection has been made within 14 days.
  24. It follows from that that, even if there are items charged by Mr Ainsworth which would otherwise not be chargeable that is no longer something which can be complained of given the expiry of the period allowed for.
  25. I note that Mr Ainsworth did say in the fact finding exercise carried out this morning, that the charges are for professional services and they are not of the sort of enquiry nature or non-chargeable nature that Mrs Omenaka talks of.
  26. Be that as it may, that is water under the bridge now.
  27. The defendants’ case is this. Firstly, the notice that they served under the Party Wall Act was not in fact a valid notice. I think that is right. Mr Omenaka’s name was not on it. There were other details that were wrong. But it is quite clear that Mrs Saidi and Mr Ainsworth, who were aware of the deficiencies in the notice, did not want to be difficult or put obstacles in the way of Mr and Mrs Omenaka’s perfectly proper wish to extend or increase the size of the premises; so they turned a blind eye to deficiencies. They did not take the point; had they done so Mr and Mrs Omenaka would have had to get a proper notice out. But they did not worry about that and they were happy to deal with it informally.
  28. As is quite clear, it was intended to be a notice under the Party Wall Act, although it was deficient; in fact Mrs Omenaka never realised it was deficient until January of this year. Even then she did not tell the other side that it was deficient and did not do so until these proceedings were brought. Mrs Omenaka very clearly says, “I accept that the claimant accepted it as a valid notice, as I thought it was, and nobody has been troubled by it.”
  29. It seems to me it is far too late now, whether upon the authority which Mr Ainsworth has referred to in his statement or otherwise, to argue that they can set aside the notice now, or that Mr Ainsworth is not entitled to his fees because the whole process is invalid. That cannot be done. You cannot blow hot and cold. Where a party is willing to overlook deficiencies in the other party’s application and it is to that other party’s advantage that they do so, that other party cannot then say when the going gets a bit rough, “Well, that’s all right, it’s not valid, all the assumptions you have been working under do not apply.” That cannot be right and the party asserting that would be estopped from saying that the notice is of no effect whatsoever. It is of effect. It was intended to be and treated as a valid notice and is in law, therefore, a valid notice. Had the point been taken by the other side then it would not have been a valid notice Sunsaid Property Co Ltd v Omenaka & Omenaka and the Omenakas would have had to start again. It is as simple as that. I am not persuaded that there is any invalidity in the award subsequently made.
  30. There is also complaint that in effect the surveyor for the claimant cannot start acting where there is a dispute until another one has been appointed by the other side. I do not think that can be right. Section 10(1) says, “Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter …. either - (a) both parties shall concur in the appointment of one surveyor; or (b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor…”
  31. So that is where there is a dispute; there has been a dispute in this case as to the efficacy of the design. But, as I read the Act, that does not mean you have got to down tools straight away and get surveyors in to resolve it. It just means this, that at some stage if you cannot sort it out then you will need to go through this process. There is nothing in the section, as far as I can see, which says that Mr Ainsworth cannot do anything until the other side does something by appointing a surveyor. That cannot be right. In this case months have gone by whilst one side has been trying to get the other to produce satisfactory plans. I can see that there has been difficulty in doing that for Mrs Omenaka, as she has described, but it does not mean that Mr Ainsworth is not entitled to act for the other party, the appointing party on his side, because that would make a nonsense of the whole procedure. They were waiting for further plans and trying to get somewhere. It was not to be.
  32. That dispute in fact has never been resolved and indeed no surveyor was appointed by Mrs Omenaka for that purpose. It would be a ludicrous thing to do because the plans, by all accounts and by the agreement of all parties, were not sufficient so there was nothing you could do about them by appointing another surveyor. But there was a dispute before the notice of withdrawal as to the fees and a notice given that there was a dispute, clearly identified by Mr Ainsworth in the correspondence I have referred to. Mrs Omenaka was asked to nominate her own surveyor to deal with the dispute as to the amount so that Mr Ainsworth and Mrs Omenaka’s surveyor could look at his fees and see whether Mrs Omenaka’s surveyor agreed with them or disagreed. If he disagreed then Mr Scanlon or the likes of him would have come along to resolve the matter and make the final decision, whichever way it would go.
  33. The consequence of there not being an appointment made under section 10(1)(a) or (b) was that section 10(4) came into play and subsection (b) thereof provides that where there is a neglect by the party to appoint a surveyor for a period of ten days then the other party can do the job for them, in effect. That is what happened here. Mr Kilpin has agreed to act. Mr Scanlon has not been needed. There is nothing in the Act that would make the whole procedure invalid because Mr Ainsworth got on with his work whilst there was no corresponding surveyor on the other side. That was outwith the claimant’s control. It was within the power of the defendants to deal with. In the event that dispute has been dealt with under the procedure of section 10 and there is nothing in the point that Mr Ainsworth has been working for one party without there being a corresponding surveyor appointed.
  34. All in all it seems to me there are no grounds for saying that the award is tainted by a problem as to the whole procedure. It seems to me it has been a perfectly valid procedure. It is not invalid. There may have been irregularities but that has not invalidated the procedure. Irregularities have been waived by one party and the other party has relied upon the first party doing just that and allowed them to proceed to do so. In short, this award is enforceable and I am satisfied that since no application has been made within the requisite 14 days then the award bites and I have no power to go behind it or put forward my own views as to what is or is not a reasonable amount.
  35. Therefore, there must be judgment for the sum claimed. I am afraid I do not see a way round it.


Blake –v - Reeves

The Court of Appeal held that litigation costs are outside the jurisdiction of the Surveyors. The Building Owner commenced excavation without service of notice and the Adjoining Owner spent a considerable sum on a professional team in the preparation of an Application for Injunction.Proceedings were not issued since the Building Owner gave undertakings to the Adjoining Owner. The Surveyors awarded the costs of the team leading up to the Application for an Injunction and this was appealed. Proceedings in Court to enforce common law or equitable remedies such as damages or an injunction of trespass or nuisance, or a threat of them, fall wholly outside the 1996 Act.That is equally true of preparation for such proceedings. That conclusion is consistent with practice and policy. The purpose of the 1996 Act is to provide a mechanism for dispute resolution, which avoids recourse to the Courts. The power of the appointed Surveyors under the 1996 Act to make provision for the cost incurred for the purposes of actual contemplated litigation in Court would be inconsistent with that statutory objective,such litigation resulting from non-compliance with the dispute resolution mechanism falling entirely outside the statutory dispute resolution framework.


'Ormerod' Moot – 2010

This Moot was held in the Technology and Construction Court wherein the Judge expressed an opinion, that an Adjoining Owner’s Surveyor could not sue the Building Owner directly for payment of his fees. In the Judge’s Opinion the Adjoining Owner’s Surveyor should seek his fees from his appointing owner and if the Building Owner did not pay the Adjoining Owner then it was open to the Adjoining Owner to commence proceedings for recovery.

In essence the Judge said that there was a contract between the Adjoining Owner’s Surveyor and his appointing owner.

The Judge also stated that in his opinion an Engineer advising an Adjoining Owner’s Surveyor should look to his instructing Surveyor for payment of his fees.

In practical terms if an Adjoining Owner’s Surveyor is not paid by the Building Owner and his appointing owner will not pay then the Surveyor should obtain from his appointing owner a formal letter assigning the debt.

11 January 2011

Excepting Sunsaid the notes above were prepared as the basis of a talk to RICS members in Oxford on the 10th January 2011. 

Seef – v - Ho.  24 February 2011 EWCA Civ 186

The Appellants, Mr and Mrs Seef,  in this case lived at 316 Whitchurch Lane, Edgeware and

Mr and Mrs Ho lived next door at 314 Whitchurch Lane, the houses being separated by garages.Mr Ho’s garage roof took bearing on the side wall of Mr and Mrs Seef’s garage.

It was claimed that in order to form a study Mr and Mrs Ho agreed with Mr and Mrs Seef that they could raise the height of their garage roof.

Planning Permission was obtained and on the face of the Consent document Mr and Mrs Ho were required to follow the procedures of the Party Wall etc Act 1996 with specific reference to works on the boundary or to the party wall. Mr and Mrs Ho did not follow that advice.It appears that the Seef’s did not object to the Planning Application apart from making it clear that they did not want the wall between the properties to become a party wall.

Work commenced in the late summer of 2007 and this included cutting and drilling into the Seef’s garage wall to install shoes as support for the joists of the Ho’s new roof and fixing timbers and forming lead flashings. It appears that they also bonded their new wall directly to the Seef’s wall.

On completion of the works the Seef’s then sought an injunction to demolish the Ho’s work or pay £20,000 compensation. The Ho’s endeavoured to settle the claim by offering £500 plus the Court fees but the offer was rejected by the Seef’s who had already incurred £2,000 in costs.

The County Court found that Mr Seef had consented to most of the works and that there had not been any damage to Mr Seef’s property. The Seefs were, however, awarded £200 damages and ordered to pay the majority of the costs of proceedings.

The Court of Appeal took a different view, confirming that in an ideal world neighbours should talk to one another and make decisions on an amicable basis, however, any neighbour would expect that proper statutory procedures would be followed particularly since it is important to avoid the source of disputes that constantly develop between neighbours.

The Court held that the Seef’s had not given consent for the particular works undertaken, not only had they failed to comply with the provisions of the Party Wall etc Act but had also built a different form of roof from that for which Planning Consent had been granted and thus Mr and Mrs Ho were liable for trespass.

The Court decided that it would be inappropriate to demolish the new roof, presumably having regard to the fact that the Seef’s had watched it being built and taken no action.Furthermore evidence had been given to confirming that there had been no loss of value resulting from the works, thus the Court awarded £500 damages for the trespass, a mere uplift of £300 above that awarded in the Court.

The Court decided the question of liability to pay costs. The Ho’s had properly offered to mediate. The Seef’s had failed to obtain an injunction for substantial damages and thus the Court of Appeal ordered that the parties bear their own costs.

It follows from this judgement that it is still acceptable for parties to reach agreement prior to the service of any notice under the Act but in so doing that agreement must be properly documented.

KD/mk/22.03.11

Grand - v - Gill  EWCA Civ 554 [2011]

This case concerns the question - what constitutes structure?

The Court was asked to decide whether or not plaster on internal walls forms part of the structure. They decided that plaster is an essential part of the ceilings and walls which give adwelling house its appearance and shape.It was not merely decorative as had been suggested and therefore formed part of the actual structure pf the building for the purposes of Section 11 (1) (a) of the Housing Act 2004.

Rimmer J said " In the days when lath and plaster ceiling and internal partition walls were more common than now, the plaster was, I should have thought, an esssential part of the creation and shaping of the ceiling or partition wall, which serve to give a dwelling house its essential appearance and shape. I would also regards plasterwork generally. including that applied to external walls, as being ordinarily in the nature of a smooth constructional finish to walls and ceilings, to which the decoration can then be applied, rather than a decorative finish in itself. I would therefore hold that it is part of the 'structure'. "

Comment

Using the common and natural building industry meaning of structure as 'support for loads' if plaster is 'structure' partitions previously considered non-loadbearing plastered on one side or both must now be 'structural' ?

Kaye - v - Lawrence 

EWHC2678(TCC)
CASE NUMBER OPH00296


At issue were three points:-


  1. Whether the High Court has jurisdiction to hear Appeals under Section 10 (17)?
  2. Whether an Adjoining Owner is entitled to request security under Section 12 (1) where the Building Owner does not intend carrying out works on the Adjoining Owner’s land?
  3. Whether rights granted under the 1966 Act have replaced the corresponding rights of Common Law in respect of works under Sections 2 and 6?
The Judge decided that Appeals from Awards made under the PWA 1996 could only be heard in the County Court but for the purposes of this case he decided that he was entitled to sit as a Judge in the County Court

The case concerned the Building Owner’s intention to contiguously pile for a basement in granular soils where there was an admitted potential for vibration and the need to prevent de-watering. There was also a concern that the method of piling would permit the granular material (sand) to run through between the piles and thereby destabilising the Adjoining Owner’s building.

The Third Surveyor awarded that each member of the design team should have Professional Indemnity Insurance up to £2,000,000 (two million pounds) for two years. He further awarded that a bond or other form of security could not be requested under Section 12 (1) on the grounds that the Building Owner did not intend to carry out works on the Adjoining Owner’s property and in this he followed the Green Book advice under Section 12 (1).

The Third Surveyor’s Award was appealed.




The case for the Appellant

was that Section 12 (1) should be interpreted plainly, that is, that the Adjoining Owner has the right to request security from a Building Owner who intends to carry out “any work in the exercise of rights conferred by this Act”. There is no restriction to request security and it is not therefore limited. Rights conferred by the Act include rights derived under Section 6 (1) and 6 (2) as well as those in Sections 1 and 2 of the Act.

A Building Owner is an owner of land desirous of exercising rights under this Act. These rights include those under Section 6 (1) and 6 (2) notwithstanding that to build on your own land is a Common Law right.

There is no sense to differentiate between building on the Adjoining Owner’s land or on the Building Owner’s land.

In this case damage could foreseeably be caused to the Adjoining Owner’s land by virtue of the work on the Building Owner’s land due to the granular nature of the soil.




The Respondent’s case

was that works in exercise to the rights conferred by this Act refer to Sections 1 (3), 1 (6), 2, 6 (3) and 8 (1). None of these rights were proposed to be exercised in this case.

Section 6 does not confer a right; it restricts the Building Owner’s Common Law right because he now has to serve a notice even though he does not intend to build on the Adjoining Owner’s land. The Building Owner cannot build on his own land within the specified distance and depth without service of notice under Section 6 (5) and that cannot amount to the exercise of “conferred rights”.

A distinction should be drawn between the wording “before he begins any work in the exercise of the rights conferred by this Act” in Section 12 (1) and “in respect of any matter connected with any work to which this Act relates” which is used in Section 10 (1) to define the meaning of a dispute.

The wording of 12 (2) assists in demonstrating that security under Section 12 (1) is the exercise of one of the explicit rights, which are conferred by this Act. It follows therefore that the Third Surveyor was correct in saying that he did not have jurisdiction to make an Award for security.

Elsewhere in the Act the phrase “by reason of any work executed in pursuance of this Act” is used where a more general application is intended compared to the phrase “exercising any rights conferred by the Act” for example see Section 7 (2), Section 7 (3), 8 (1) and 12 (1).

The Judge then considered the history of the party wall legislation and in particular how the wording of the relevant clauses changed over time.




Decision

The rules for constructing statutes have been formalised but in essence Judges are required to follow the “plain meaning rule” They have to consider the natural or ordinary meaning of the word or phrase in the context of the statute. If that does not give a commonsense result then the Judges have to look at the intention other legislature. They are warned not to proceed by substituting some of the words with the words of the statute. With that in mind the Judge effectively dismissed the Respondent’s arguments relating to the development of the historical wording. The Judge did not find the wording ambiguous or obscure. He said that much of the debate centred on the meaning of the phrase “any work in the exercise of the rights conferred by this Act” in Section 12. The right of the Adjoining Owner to require the Building Owner to give security depends on notice being given to the Building Owner before he begins such work. Respondent’s Counsel submitted that Parliament chose to make a distinction between work carried out under the exercise of “rights” and works otherwise executed in pursuance to the 1996 Act and that where the rights are given under the Act they are almost always on land of the Adjoining Owner except under Section 2 (2) (f) where work is permitted to “cut into a party structure for any purpose” and such cutting into the party structure may be carried out entirely on the Building Owner’s land. he Respondent’s Counsel also submitted that under Section 10 (12) (c) the Third Surveyor is permitted to determine “any other matter arising out of or incidental to the dispute including the costs of making the Award”. That is a broad power permitting the Award to deal with such matters as insurance as it does in this case, however, it does not give the ability to award security when it is not given in Section 12.

The Judge thought that the distinction between the rights was artificial. The Act provides that the Building Owner must give notice if he wishes to carry out any work under Sections 1,2 and 6 and if the matter is not agreed between the parties it has to be resolved by Award of the Surveyors or the Third Surveyor. Unless and until that happens the Building Owner cannot carry out the work and then can only carry out the work in accordance with the agreement or the Award.

The Judge did not consider the use of different phrases within the Act leads to the conclusion that they were applying to different subject matter. In his view that in the context of Section 7 (1) and 7 (2) there is no commonsense reason why the obligation of the Building Owner in Section 7 (1) not to cause “unnecessary inconvenience” should not apply to Sections 6 (1) and 6 (2) works but the obligation in Section 7 (2) to compensate for any loss or damage should apply to Section 6 (1) and 6 (2) works.

He then went on to say that with great respect to the P & T the Green Book was wrong.

The Respondent’s Counsel sought to distinguish between rights that do not exist at Common Law and therefore only exist under the 1996 Act and rights that exist at Common Law and which are regulated by the 1996 Act. The Judge was referred to a number of cases for example Selby –v- Whitbread & Co 1917 and the more recent case of Louis and Louis –v- Sadiq 1997 and from these Authorities he formed the view that when the provisions of the relevant Act are operated the Common Law rights are “supplanted” or “substituted” by the rights under the Act in relation to matters dealt with under the Act and that this applies as much to Sections 6 (1) and 6 (2) as it does to Section 6 (3) or any other provision of the 1996 Act. He did not consider that there is proper distinction between rights that only exist under the 1996 Act and rights that exist at Common Law and which are regulated by the 1996. The Act creates new rights which do not exist at Common Law permitting the Building Owner to carry out work on the land of the Adjoining Owner, however, whilst at Common Law the Building Owner would have a right to carry out the work on his own land those rights in relation to the area within 3 or 6 metres of the boundary are “supplanted” or “substituted” by the provisions of Section 6 (1) and 6 (2) of the Act.

e further considered that this approach to be supported by the definition of Building Owner as being “an owner of land who is desirous of exercising rights under this Act”. This indicates that the Building Owner is exercising rights under the Act when he acts as such, which would include occasions when, under Sections 6 (1) and 6 (2) of the Act he carries out excavations within 3 or 6 metres of the boundary. In order to carry out that excavation he must give notice of his proposals and he has the right or, if required by the Adjoining Owner, the obligation to “underpin or otherwise strengthen or safeguard the foundations of the building or structure of the Adjoining Owner” under Section 6 (3). These are “supplanted” or “substituted” rights which he is exercising under Sections 6 (1) and 6 (2).

The Judge went on to say that in connection with Section 12 (1) it applies to all cases where the Building Owner is exercising rights under the Act and that includes exercising the “supplanted” or “substituted” rights under Sections 6 (1) and 6 (2).There is no reason why it should only apply to work on the Adjoining Owner’s land and the provisions of the statute do not draw a clear distinction in that respect. In principle and on the facts of the case the carrying out of the works within 3 or 6 metres of the boundary would be as likely to cause loss or damage so as to justify security as with works carried out under Section 6 (3) or other provisions of the Act.Furthermore in cases where work has been carried out under a number of Sections of the Act it does not make any sense to grant security for some works but not for other works when liability for loss or damage under Section 7 (2) would apply to all works.

Given the wide terms of Section 10 (12) (c) the Judge saw no reason why the Award could not also deal with security under that provision and under which such matters as insurance are included. He considered that the broad power is consistent with Section 12 (10) applying to all provisions of the Act, including Sections 6 (1) and 6 (2).

12.11.10







Kaye – v - Lawrence – 2010



SECURITY FOR EXPENSES

PARTY WALL ETC ACT 1996 


Section 12(1)

An Adjoining Owner may serve a notice requiring the Building Owner, before he begins any work in the exercise of the rights conferred by this Act to give such security as may be agreed between the owners or, in the event of a dispute, determined in accordance with Section 10.

What are expenses?

The actual cost of carrying out the work ie prime cost of the work including reasonable incidental fees and insurances (preliminaries).

What are the works “in the exercise of the rights conferred”? 

The rights are set out in Sections 1(6) and 2(2)

Definition of Building Owner

“Means an owner of land who is desirous of exercising rights under this Act”.  In the case of Section 6 whilst the Building Owner is exercising rights he is not exercising ‘conferred rights’ he already has the natural ‘right’ to excavate on his own land (non-conferred right).

What is security?  “An assurance.”  “A document held by a creditor as guarantee of his right to payment.”  (OED).  

Security is given for “expenses”.

How are expenses defrayed?

Expenses are generally defrayed in accordance with the provisions set out in Section 11 (Expenses) and in particular paragraphs 1, 3, 4, 5 and 9.

What if the Building Owner causes damage to the Adjoining Owner’s property?

Where damage is occasioned to an Adjoining Owner’s premises the Building Owner is required, under Section 7 (2),  to 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 and under Section 11 (8) where the Building Owner is required to make good any damage under this Act the Adjoining Owner has a right to require that expenses of such making good be determined in accordance with Section 10 and paid to him in lieu of the carrying out of the work to make the damage good.

Interpretation of Statute

Statute must be construed by reference to precedent and the ordinary and natural meaning of the word or phrase. “Where Parliament has continued to use words of which the meaning has been settled by decisions of the Court, it is presumed that Parliament intends the words to continue to have that meaning”. (London Corporation –v– Cusack Smith 1955).  

The Court of Appeal in Saul –v- Norfolk County Council concerning the Agricultural Act stated that “in pursuance” should be interpreted as “in exercise of the authority conferred by”.

The word “confer” is synonymous with “to give, bestow, grant or confer.” (OECD). One cannot sensibly grant a right to do something which the Grantor is already empowered to do, for example, excavate or build on his own land.  

Kaye –v- Lawrence

Mr Kaye sought security by way of a £2 million bond or project specific insurance policy against potential damage to his property by the Building Owner’s works.

Ramsey J found:- ….. “that in accordance with the authorities cited above, the common law rights are supplanted and substituted by the provisions of the Act and that this applies as much to Sections 6 (1) and 6 (2) as it does to Section 6 (3) or any other provision of the 1996 Act.  I do not consider that this is a proper distinction between rights that only exist under the 1996 Act and rights that exist at common law and which as regulated by the 1996 Act.”  There is no difference between “conferred” and “natural” rights.  This begs the question why in the drafting of the Act a variety of terms are used in reference to “rights”?

In taking this line the Court ignored the fact that Sections 1, 2 and 6 are disparate – each having its own notice and dispute resolution procedures in 1(8),5 and 6 (7). 

Sections 1 (5), 6 (1) and 6 (2) relate to the exercising of common law rights for which the Act imposes a statutory notice and without which the Adjoining Owner would be unaware of building work likely to affect him in some way.


In Kaye –v- Lawrence the Court was not asked to deal with the real concerns of the Adjoining Owner ie that his building was going to collapse into the Building Owner’s excavation ie ignoring Section 6 (3).which confers on the Building Owner the right to underpin etc the Adjoining Owner’s building and to the Adjoining Owner the right to have his property underpinned if necessary.

 It appears that the Third Surveyor in making his Award called for a different method of construction than originally proposed and that the Building Owner and his professional team should effect adequate insurance, requirements that did not satisfy the Adjoining Owner who then sought security for expenses.  

The Court did not consider the reason for giving security (which is for “expenses”).  Generally in accordance with Section 11 expenses for work under the Act are to be defrayed by the Building Owner and if there is a dispute as to responsibility it has to be settled in accordance with the provisions of Section 10.  If we look carefully at how expenses are to be defrayed we see that in Section 1 (3) (b) the two owners of a party wall defray the expenses of construction as set down in the clause.  Similarly in Section 11 (4) expenses are to be defrayed in accordance with the use made of the structure or wall or the responsibility for the defect requiring repair.  A similar provision is found in Section 11 (5).  In Section 11 (9) where an Adjoining Owner requests work to be carried out on his behalf he is required to defray the expenses.  The pattern established here is that the Building Owner generally pays but where the Adjoining Owner is liable for the cost of works to a party wall he is required to contribute payment.  These are very different situations from a Building Owner excavating his own land in proximity to his neighbour’s property where in Section 6 ‘conferred’ rights are not granted.

Mr Kaye was apparently living in fear of his neighbour’s potential actions.  He wished to ensure that if something went wrong on the adjacent construction site he had sufficient funds to deal with the remedial work, however, it is submitted that he would not have had a right to enter the Building Owner’s site in order to, for example, prop up a retaining wall or perhaps install fulltime drainage.  His only potential remedy, if sufficient space allowed, would perhaps have been to install sheet piling, or something similar, on his own land.  That may not have been technically practical thus presumably the request for security was based upon an assessment of how much it would cost to rebuild Mr Kaye’s house in part or in whole if it collapsed. Was that a reasonable assumption?  Are all Section 6 works now to be subject to the presumption to a cataclysmic outcome?  Will Surveyors, regardless of all other circumstances, now advise their appointing owner to require security? 

The Act is specific that where a Building Owner causes damage to the Adjoining Owner’s premises the latter has an optional right to seek the “expenses” of repair. This is an expense to be defrayed by the Building Owner (see Section 11 (1). It is not a “right” conferred under Section 2 of the Act.  The Section 11 (8) provision can be contrasted with Sections 1 and 6 where damage occasioned to the Adjoining Owner’s premises as a result of exercising non-conferred rights is to be settled by the payment of “compensation”.

“Security” is not given for compensation but for “expenses”.  The conditions attached by way of clauses in Section 11 to “conferred” rights in Section 2 require any damage occasioned by the Building Owner to the Adjoining Owner’s premises to be made good.  They do not give the Building Owner a right to damage the Adjoining Owner’s building so that security may be requested.

Ignoring the personal standing of the Building Owner the second limb for seeking security relates to the proposed work and if this poses a risk to the Adjoining Owner’s property the Surveyors should first take steps to eliminate or ameliorate that risk.

Resulting from Kaye –v- Lawrence it is likely that Surveyors will be confronted with requests for security that hitherto had been rare and generally confined to offshore companies and individuals wishing to carry out potentially risky work to party walls and in this regard one immediately thinks of excavating and underpinning for sub-basements? In practice these risks are managed by insurance and Surety Bonds.

It is submitted that security for expenses can only be properly given when a “conferred” right is to be exercised and that the terms of that right have been settled, the Surveyors having decided that security may be appropriate and has been properly quantified; all before work commences.  The County Court decision in the case of Kaye -v- Lawrence has not altered this procedure.





The following Article and Notes were presented by Keith Douglas and Jeremy Price to the Thames Valley Branch of Pyramus & Thisbe meeting on 6 March 2013.  



SECTION 11: EXPENSES

“…the prime cost of work (and) reasonable incidental processional fees, fees paid to statutory authorities and insurance related to the work.” – S Bickford-Smith, Party Walls Third Edition paragraph 11.2.2.

GENERAL RULE

S 11(1) – “except as provided by this section expenses of work under this Act shall be defrayed by the Adjoining Owner.”

S 11(2) – “dispute as to responsibility to be settled as provided in section 10.”

The section then sets out a number of cases where the general rule does not apply – ie where the Adjoining Owner is required to contribute to the Building Owner’s expenses of work.

S 11(3) – expenses of constructing a new party wall part to be apportioned according to the use to be made by each owner.

S 11(4) – the Building Owner can recoup a proportion of costs from the Adjoining Owner for works to a party wall under section 2(2)(a) – (underpinning thickening raising) – necessitated by defect or want of repair.

S 11 (5) – the Building Owner can similarly recoup an apportionment from the Adjoining Owner of the cost of works to a party wall under section 2(2)(b) – (making good repair, demolish and rebuild) – if necessitated by defect or want of repair.

S 11(7) – the Adjoining Owner to pay a proportion of the cost to the Building Owner where the Building Owner wishes to reduce the height of a party wall under section 2(2)(m) but the Adjoining Owner requires the existing height to be maintained.

S 11(9) – where the Adjoining Owner requests or requires work to be done by the Building Owner, the Adjoining Owner to pay the Building Owner the appropriate cost.  The exception to this is strengthening or underpinning of foundations if required by the Adjoining Owner under section 6(3).

S 11(11) – the Adjoining Owner to pay for use subsequently made of work carried out at the expense of the Building Owner.

Expenses to be paid by the Building Owner to the Adjoining Owner (specific instances supplementing the general rule)

S 11(6) – the Building Owner to pay the Adjoining Owner or occupier a fair allowance in respect of disturbance and inconvenience where premises are laid open – right under section 2(2)(e) relating to a party structure.

S 11(8) – where the Building Owner is required to make good damage under the Act the Adjoining Owner has a right to require that the Building Owner’s expenses of making good be determined and paid to him in lieu of the Building Owner carrying out the work.

S 11(10) – the Adjoining Owner to receive payment from the owner of the adjoining building if the cost of the Adjoining Owner’s construction is increased by the presence of special foundations (if previously consented).

S 11(11) – where use is subsequently made by the Adjoining Owner of work carried out solely at the expense of the Building Owner, the Adjoining Owner is to pay a due proportion.

Other expenses not referred to in Section 11

S 1(4) – the Building Owner to build wall on his land at his expense.

S 11(7) – the Building Owner to build wall on his land at his expense. S 6(3) – the Building Owner to bear expenses of underpinning or strengthening foundations at the Adjoining Owner’s building if required to do so by the Adjoining Owner.

The Building Owner’s obligation to make good damage

Section 11(8) requires the Building Owner to make good damage or pay expenses to the Adjoining Owner if damage is caused by certain section 2(2) rights.  These are: (e), (f), (g), (h) and (j).

Note the obligation to pay a fair allowance is under 11(6) and 11(8). 

SECTION 12: SECURITY FOR EXPENSES


S 12(1) – “An Adjoining Owner may serve a notice requiring the Building Owner before he begins any work in the exercise of the rights conferred by this Act to give such security as may be agreed between the owners or in the event of a dispute determined in accordance with section 10.”

the judgement in Kaye –v- Lawrence considered “exercise of the rights conferred by this Act”.  The case confirmed that section 12(1) is not limited to section 2 rights and applies to all works in pursuance of the Act – ie section 1, section 2 and section 6.

In paragraph 63 of the Judgment, the Judge said:

“….the carrying out of works within three or six metres of the boundary would be as likely to cause loss or damage so as to justify security as would works carried out under section 6(3) or other provisions of the 1996 Act.  Further, in cases where work is being carried out under a number of sections of the Act, it does not make sense to grant security for some works but not other works when ……. liability for loss and damage under section 7(2) would apply to all works.”

The word “expenses” is not used in section 12(1); the term used is simply “security”.¹

Contrast sections 12(1) and 12(2).  In 12(1) security may be requested where the Building Owner “begins any work in exercise of the rights conferred by this Act…”.  In contrast s 12(2) :  Where “….an adjoining owner requires the Building Owner to carry out any work the expenses of which are to be defrayed…….by the adjoining owner, ..”

Section 12 (1) could have limited the Building Owner’s obligation to occasions where the Building Owner is exercising rights where the Building Owner has an ancillary obligation to make good damage and to pay expenses to the Adjoining Owner in lieu if requested.  It doesn’t, which suggests that the intended scope of 12(1) is wide.
See also Bickford-Smith paragraph 12.2:

“The right to claim security is not expressly limited in any way.  It is considered that it extends not only to the works which will be carried out, but to any claim to which their execution may give rise under the Act (including compensation under section 7(2) and an allowance for disturbance under section 11(6) or otherwise.”

AND
Andrew Smith, Child and Child – Compensation Disturbance Inconvenience – paper given to Thames Valley P & T 26 September 2007. 

“The surveyors’ power to give security is expressed in terms wide enough to include security for any compensation which they predict may be payable under the Act…….” - .

Matters to be considered

Bickford-Smith subdivides this into two parts:

Part 1 – related to work:

Costs that may fall on the Adjoining Owner if the Building Owner having commenced awarded work is unable to complete it

Amounts the Adjoining Owner may become entitled to by reason of works carried out – eg compensation under section 7 (see also A Smith’s views in above paper that the scope of compensation to be awarded is very wide, including potential loss of trade, loss of view etc.)

Amounts due to the Adjoining Owner under section 1(7)

Disturbance allowance under section 11(6)Note.  Bickford-Smith considers it to be appropriate for security to be awarded for anticipated damage either by way of section 11(8) or section 7(2).

Part 2 – relating to the Building Owner:

Financial standing

Geographical location Quality of documentation Standing of professional team and contractor

Calculation of amount

(Sum of potential liabilities relating to work) x (risk factor %) x (Building Owner factors %)

Conclusions in relation to security by the Building Owner for the Adjoining Owner

1. Works under sections 1 and 6 of the Act are works “in exercise of rights under the Act” – see Kaye v Lawrence.

2. The notion that Kaye –v- Lawrence did not consider the argument as to whether security can be awarded for compensation is wrong;  the issue was considered as paragraph 63 of the judgement makes clear. 

3. It may not be appropriate to award security for anticipated damage arising from works unless damage to the Adjoining Owner’s building is certain and/or the standing of the Building Owner is such that it is likely that any financial claim would not be honoured.

4. It is appropriate to award security for compensation due to Adjoining Owner under section 7(2) – because of item 1 above but also because section 7 (2) compensation applies to “any works executed in pursuance of the Act”.  This includes section 2(2) rights/works.

5. Debate about security has so far been limited to consideration of security against expenses of making good damage.  This is too narrow.  The Adjoining Owner’s rights for non damage-related compensation² must also be considered as must the Building Owner factors.³

6. Following notice by the Adjoining Owner to the Building Owner, the extent of security to be awarded should be calculated by reference to the formula above.These conclusions depart from established P & T opinion that security should only be awarded for fair allowance (s 11(6)), but does this matter?It must be remembered that although the Adjoining Owner may request security there is no automatic obligation for the Building Owner to pay it if he considers the sum wrong.  It is for the surveyors to award compensation and to do so after applying the factors set out above.  In most cases, therefore, security will be £nil or a very small sum because:

Work is unlikely to cause damage;
The Building Owner is of good standing and has competent contractor and professional team; Most works do not give rise to immediate compensation under section 7(2)

AND

If the Adjoining Owner disagrees with the Award it can be appealed.
 

KAYE –v- LAWRENCE

SYNOPSIS

EDITED ARTICLES BY ROBIN AINSWORTH AND DON JESSOP


The case concerned an Adjoining Owner, Mr Kaye, requiring a two million pound bond or project specific insurance from Mr Lawrence, the Building Owner, for potential damage to his very expensive property in Sandbanks, Poole.  Mr Lawrence proposed constructing a basement in sand subsoil and below the adjacent sea level. 

Mr Justice Ramsey is a High Court Judge sitting in the Technology and Construction Court but his decision, having been made in the County Court, is not binding.

In essence Mr Justice Ramsey ignored the distinctions between Sections 1, 2 and 6, neither did he see any distinction in the meaning of different phrases in the Act.  He decided that the common law right to excavate on one’s own land has been supplanted by the statutory provision and, having dismissed the arguments to the contrary, he also concluded that the Appellant Adjoining Owner was entitled to security against work to be carried out on the Building Owner’s land ie the opinion in the Green Book is incorrect.

Robin Ainsworth was one of the first Surveyors to publicise his concerns:-

    1. The Third Surveyor did not consider any supplementary project – specific insurance was necessary beyond that actually already agreed or required in his Award.  The Court did not therefore consider whether adequate security had been provided and thus the parties were still in dispute on this issue.

    2. Section 12 (1) does not limit the request for security in respect of “works in the exercise of Act – conferred rights”.  A request for security may be made in respect of matters other than “the exercise of Act – conferred rights” including exercising pre-existing but now notifiable common law rights ie to excavate on one’s own land.

Even if security could be requested in respect of “works in the exercise of Act – conferred rights” Section 6 (3) confers a right on the Building Owner to necessarily underpin or otherwise strengthen or safeguard the foundations of an Adjoining Owner’s building or structure.  However, Section 6 (3) also places an obligation on the Building Owner to do so if required by the Adjoining Owner and therefore effectively confers a right upon the Adjoining Owner to have its foundations safeguarded as necessary.  As such it has always been possible for an Adjoining Owner to request security in respect of the safeguarding of its foundations even where that safeguarding is provided for by works wholly on the Building Owner’s land.  This does not, however, relieve the Building Owner of his duty to take necessary safeguarding measures in the design of his work.

Since security has always been available in respect of safeguarding works wholly on the Building Owner’s land it was unnecessary for the Judge to consider, or indeed conclude, that Sections 6 (1) and 6 (2) excavations are themselves Act-granted rights nor to formulate the amendment to the appealed Award in the manner that he did.  The consequences of this en-passant reasoning are considerable.  In the first instance the Act is divided into three sections setting out different circumstances under which work is notifiable.  In each Section there are variations to the Notices required, for example in Section 3 Notice is stated as being applicable only to Building Owners wishing to exercise the specific rights conferred by Section 2.  It therefore does not require Notice in respect of any other work where Section 2 may be applicable as described in Section 2 (1) but which does not involve the exercise of any of the rights conveyed by Section 2 and Section 2 (2). 

The Notice requirements identified in Sections 1 and 6 are inherently different in that the requirement is not to notify the exercise of the granted rights but to notify the intent to do work in the circumstances where that Section is applicable.  This Notice is required regardless of whether or not the Building Owner intends to (or is required to) exercise the specific rights within the Sections. 

Had the Act intended the right to dig holes in one’s own land in close proximity to the Adjoining Owner’s foundations to become statutory rights (or indeed to build wholly on one’s own land at the Line of Junction) then it would surely have expressed this unequivocally in the same terms used in Section 2 (2) of the Act – “the Building Owner has the following rights ……… and must serve Notice if intending to exercise them.”  If the works described in Sections 6 (1) and 6 (2) of the Act remain common law rights they are not “works in pursuance of this Act” and thus Section 7 (2) is applicable to any underpinning or safeguarding works but will not be applicable to Sections 6 (1) and 6 (2) excavations. 

Section 6 (10) clarifies that compliance with the statutory notice requirement relating to the Building Owner’s common law rights does not exonerate them from any common law liability in respect of the consequences of exercising common law rights to excavate on their own land.

If the work described in Section 1 (5) of the Act is a common law right, Section 7 (2) cannot be applicable to such works, only to any works related to the exercise of the right to project foundations under the Adjoining Owner’s land.

Dealing now with work in the exercise of rights CONFERRED by this Act, Section 12 (1) will be restricted to works for which the Act explicitly grants the right (to execute or request) and will exclude notifiable common law rights and any work a Building Owner is obliged to do by an Award to which the Act does not grant the right (eg shoring).  Robin stresses that in his view Section 12 (1) (Security) is not restricted to work in the exercise of rights granted by the Act nor even restricted to situations where such rights are being exercised. In considering the meaning of the words “work in pursuance of this Act” found in Sections 7 (2), 7 (5), 8 (1), 17 and elsewhere in the Saul –v- Norfolk County Council case the words were found to mean “in the exercise of the rights granted by”, however, Robin suggests that “in pursuance of” effectively means “as a direct consequence of “.  The words suggest that work in “pursuance of” excludes the pre-existing common law rights, the exercise of which is notifiable under the Act but for which the Act does not confer the right to exercise.

If the Judge is correct then the works described in Sections 6 (1) and 6 (2) are now statutory rights and so will be the notifiable works under Section 1 and particularly those under Section 1 (5).  It therefore follows that there will be little or no distinction between the first three of the expressions identified with the fourth simply including works including works required by the Surveyors in an Award additional to those proposed by the Building Owner. 

Section 1 (7) provides a simplified method of dealing with damage caused by the Building Owner exercising his common law right to build wholly on his own land at the boundary. 

If the Judge is right then Section 7 (2) would be applicable both to excavation and safeguarding works, thereby rendering Section 6 (10) meaningless and confusing.  Again if the work described in Section 1 (5) of the Act is (by implication) now a statutory right then Section 7 (2) would be applicable to such works, rendering Section 1 (7) a completely superfluous duplication of the provisions incorporated in Section 7 (2).

The Judge expressly stated that the rules of statutory interpretation require words and expressions used in statutes to be given their plain meaning.  By implication the rule suggests that where a statute uses different expressions the intent is to identify different circumstances or conditions.  There would certainly be confusion if a statute used a variety of expressions to describe the same thing. 

The relevant expressions used in the Act are:-

  • exercising rights UNDER this Act – Section 20 – definition of “Building Owner”.  See also Section 11 (1) – work under this Act.

  • work to which this Act relates – Section 10 (1) and Section 10 (10).

The Judge seems to have ignored the fact that Section 6 is constructed differently from Section 2 and further ignored the fact that by using a natural and ordinary meaning of the Section 6 wording the result is one which could reasonably be supposed to have been Parliament’s intent.

Robin does not consider that security can only be requested if the Building Owner is exercising the “rights conferred by this Act”.  The only part such works play in the application of Section 12 (1) is in respect of setting a deadline before which a request must be made and security given. 

The Green Book, although derided by the Court in the judgement concerning Section 12 (1), is correct in that had the Surveyors done their job properly security would have been minimal or indeed unnecessary. 

In essence Robin’s view is that the Judge was correct in that security can be requested when no works are proposed to the Adjoining Owner’s land but wrong in his reasoning and in respect of the latter we can be grateful that the Judgement was in the County Court and not in the High Court. 


Don Jessop, in his Whispers article, made the following points:-

  • The Court did not examine the reason for giving security which is for “expenses” to be given within the Act.  If it is proposed to, for example, underpin an adjoining premises then the Adjoining Owner will be exposed to an expense whereas if that is not proposed there is no expense for which security can be sought.

  • Mr Kaye’s concern was for potential damage.  The Court might have examined whether Mr Kaye had exposure to the expense of making good damage under the Act but did not do so because it was not argued.

  • Section 11 sets out what “expenses” are and adds the expression “fair allowance” and brings certain “costs” into the ambit of “expense”. 
In 11 (8) there is a reference to (making good damage) but the Adjoining Owner can insist upon receiving the expense of carrying out this repair.

Is this a good reason for Mr Kaye to have applied for security?  No, because the sub-section is conditional making good damage resulting from works under the Act and in particular the party wall rights conferred by Section 2 (2) whereas the remedy for “damage” under Sections 1 and 6 is “compensation”.  “Compensation” is notably absent from Section 11 as being an “expense”. 

Don then went on to consider whether the request for security is available for the “expense” of “money in lieu of making good damage to adjoining premises”.  He cites the worst case scenario of expenses being the equivalent reinstatement of an entire adjoining premises lock, stock and barrel and that this amounts to an abuse of the process because the extreme circumstance is one for which insurance is available. 

One cannot seek security for Sections 1 and 6 because the remedy for damage is compensation and not money in lieu of making good.  This leaves five of the thirteen Section 2 rights.

There is no right to damage an Adjoining Owner’s premises when exercising the conferred rights in Section 2.  If damage is occasioned the claim has to be substantiated beforehand and it is fairly obvious that there is a requirement to make it good.

The Act does not give the Adjoining Owner the right to convert the requirement of “making good” into the “expense” of money in lieu of making good before damage occurs.  It therefore follows that where a conferred right is to be exercised and an Adjoining Owner seeks security against future determination of the “expense of money in lieu of making good damage”, this could be illegal.  It is, however, possible for the Surveyors to make a contingency estimate to deal with the expense of planned foreseeable events but this is a “fair allowance” relating to the removal of a party wall.  Don does not consider that the exercise of any of the conferred rights under the Act can safely attract a valid Notice seeking security against a probability of making good damage.  He further believes that Security only relates to “the starkest of circumstances” where the Act permits “something to be physically removed which sustainably might not be returned”.

He concludes that (1) security for expenses can only relate to the exercise of a conferred right under the Act, (2) a conferred right cannot be exercised until a Notice has been served and the relevant work has been agreed between the parties or the subject of an Award, (3) the Surveyors, if satisfied by the circumstances, may determine security relating to the exercise of the conferred rights and, allow a 14 day period for Adjoining Owners to decide for themselves whether or not they would wish to make out and serve a Notice for security before the conferred right is exercised.

Don emphasises that any Notice for security is a serious issue because if effectively stops the work until the terms are settled.  An Adjoining Owner can only obtain security after a valid Notice which should specify the expense against which it is sought and quantify the exposure of expense. 

A Notice for security may not be given if based on the expense of envisaged damage arising through the exercise of a conferred right. 

_______________________

Breuer - v - Leccacorvi

County Court Judgement (February 2014)

The Court was asked to decide the proper measure of the expenses of making good under Section 7(2)

Decision - Diminution of value.

This decision is arguably incorrect. It was held in Kaye v Lawrence that the remedies in Common Law are supplanted by the statutory regime thus the measure of expenses should be based on the cost of rectification.

The decision runs against well-established surveying practice and a point of law.

The wording of Section 11(8) is clear - Where the building owner is required to make good damage under this Act the adjoining owner has a right to require that the expenses of such making good be determined in accordance with section 10 and paid to him in lieu of the carrying out of work to make the damage good

There could be a legitimate argument between one the cost to the building owner of making good and two the cost to the adjoining owner with the balance of opinion in favour of the former

The standard award format clause does not contemplate the assessment of damage as being limited to diminution in the value of the adjoining owner’s property.

In Kaye v Lawrence, LJ Ramsey stated that interpretation of Statute should be based on the ordinary meaning of the word or phrase in its context. The ordinary meaning of Section 11 is clear, also:-

Common Law rights are ‘supplanted’ or ‘substituted’ by the rights under the Act in relation to matters dealt with under the Act. LJ Ramsey accepted that although Section 6(10) preserves rights for injury it does not do so for loss or damage dealt with under Section 7(2)

Lastly see P&T Green Book interpretation of Section 11(11)
   

_______________________

LINE OF JUNCTION NOTICE AND ACCESS

Section 1 (5) and 8 (1)

The latest advice given by P & T in the Green Book states in a comment under Section 1 (5) (5) a Building Owner may enter and remain on adjoining land in order to build such a wall. He may do so upon the expiration of the one month and fourteen day notice periods, under Sections 1 and 8 respectively, unless an actual dispute arises, in which case the matter must be determined by a Surveyor or Surveyors appointed under Section 10.

It is recommended that a notice served under Section 1 (5) also states any requirements for access in sufficient detail to satisfy the requirements of Section 8 to have a right of access on expiry of the notice period.

Access must not cause the Adjoining Owner, or any adjoining occupier, unnecessary inconvenience: and the Adjoining Owner, and any adjoining occupier, are entitled to compensation for any damage to their property under Section 1 (7) (a) and for damage and loss as set out in Section 7 (2).


In Stephen Bickford-Smith’s Party Walls Law and Practice BY Stephen Bickford-Smith he states in Section 3.4.4 rights of entry under Section 8 the Building Owner is given special rights of entry on the Adjoining Owner’s land in aid of works “in pursuance of this Act”. Works in conformity with notices served under Section 1 will be works in pursuance of the Act, but where the work is a wall placed wholly on the Building Owner’s land the scope of the right of entry has been questioned. Is it limited to entry for the purposes of putting in the projecting footings, or does it also extend to the purpose of building a wall against a boundary? It is considered that the right applies to the building of the wall as well. Building wholly on the Building Owner’s side of the boundary is expressly authorised by Section 1 (4) (b) and (4), so that it is scarcely arguable that such building is not in pursuance of the Act. Indeed it is possible view that the only reason for this apparently unnecessary authority is to enable the rights of entry to be invoked in support of it. This opinion is supported by Nicholas Isaac in The Law and Practice of Party Walls in Section 3.35 – Access. Since the work of building of a new wall by any of the three routes provided for by Section 1 would be “work in pursuance of” the Act, the Building Owner or his builders would have a right to access the Adjoining Owner’s land for the purposes of building the new wall. He further supports the view that ideally a notice under Section 8 should be served.

Both of these highly experienced lawyers and the P & T base their opinion on the works of building a wall at the Line of Junction are “works in pursuance of this Act”. Without doubt this interpretation is strengthened by the Judge’s comments in the case of Kaye-v- Laurence.

Added paragraphs from tape (typed 25/04/17)

In support of access being available by right under Section 1 (5) it is argued that, if denied there would be many cases where developers would be obliged to set back their building from the boundary by the width of the scaffold and thereby create unsightly gaps between buildings, particularly in urban areas. Furthermore many construction schemes would become unviable if full site coverage could not be obtained. It could be further argued that if damage were occasioned by the erection of scaffolding etc then compensation could be awarded under the provisions of the Act.

On the other side of the argument work in pursuance of this Act means work in exercise of the authority conferred by the Act. The Act does not confer authority to build a wall wholly on the Building Owner’s land : he is entitled to do this anyway without the sanction of the Act (compare this with Section 2 where the Act confers rights to raise a party wall, which would otherwise be a trespass). A wall built under Section 1 (5) is therefore not work in pursuance of this Act and Section 8 (rights of entry) does not apply. The Act simply requires the Building Owner to notify the Adjoining Owner before building at the Line of Junction so that the Adjoining Owner is given an opportunity to dispute the position of the intended wall and for a dispute to be determined by Surveyors in accordance with Section 10. If an Adjoining Owner does not respond to a Section 1 (5) notice the Building Owner can proceed to build the wall after the expiration of the one month period but he may not enter on any adjoining land without the express consent of the owner of that land.

The building of the wall itself on a Line of Junction cannot be considered work in pursuance of the Act since it does not fall for any form of statutory settlement under the provisions of Section 10, the Building Owner wishing to build a wall entirely for his own benefit, at his own cost and on his own land he cannot be prevented from building it and there is therefore no reasonable expectation for access onto the neighbouring land. The situation is different in respect of Section 1 (6) since it would be impossible to place normal foundations on the land of the Adjoining Owner without gaining access to it but clearly the extent would be severely limited to the extent of the projecting foundation only.

It is inherently unreasonable for an Adjoining Owner to be forced into a position of accepting scaffolding being placed on their land, sometimes for a month or years, for the purposes of building a property, perhaps of considerable value which, if scaffolding access were denied, could not be built in the same form, thereby reducing its value. Consider, for example, an hotel with ten or twelve bedrooms next to the boundary that could not be constructed in that form without the scaffold being placed on the neighbouring land. To accommodate scaffold on the Building Owner’s land would involve a loss of these bedrooms. This contrasts with the position where a party wall is involved. That is shared structure and it must be correct that, where appropriate, access for the purposes of carrying out lawful work to a party wall, a right is granted to access the Adjoining Owner’s property.

Justice Brightman in Gyle Thompson and others –v- Wall Street Properties Ltd (1973) stated on a similar issue having regard to the function of surveyors under Section 55 (now Section 10) and their power to impose solutions to building problems on non-assenting parties the procedural requirements of the Act are important and the approach of Surveyors to those requirements ought not to be casual. The Act is not a developer’s charter. There is no public interest in a developer being granted statutory rights of access over a neighbouring land for the purposes of increasing their profit.

Legislation drafted to have similar intent to the Party Wall etc Act, in reducing costly disputes, the Access to Neighbouring Land Act 1972 (ANLA) enables property owners to gain access onto neighbouring land for the purposes of maintenance and repair only – not for development. The ANLA encourages owners to reach agreement on access for maintenance and repair and avoid the costs/risks associated with owners being difficult and obstructive. It cannot therefore be right that the Party Wall etc Act 1996 would have been drafted four years later to undermine the ANLA by allowing access onto the neighbouring land in order to carry out development work on the Line of Junction.

As far as rights of access are concerned the Act has been in a similar form to the 1996 legislation for over 160 years and has always concerned itself with the rights of both Building Owners and rights of Adjoining Owners. In the context of the works themselves, as distinct from the process, the 1996 Act covers this under Sections 1, 2 and 6. Each of these Sections grants certain rights and they are not exclusively granted to Building Owners.

Under Section 1, no right exists to build a party wall. A Building Owner may serve a notice with the intention of building a party wall astride the boundary but this can only be constructed with the consent of the Adjoining Owner. Section 1 (5) does not grant a right for a Building Owner to build a wall wholly on his own land at the Line of Junction because the Building Owner cannot be prevented from building on his own land. There is only an obligation on the Building Owner to serve a notice informing the Adjoining Owner of his intention and after one month has expired the Building Owner may proceed and build that wall without any requirement to obtain the Adjoining Owner’s consent. The Adjoining Owner has no right to challenge the Building Owner’s choice of building materials, design or height of the wall or require the Building Owner to agree any of these details with him. The only right granted exists under Section 1 (6) which includes the right to project footings onto the land of the Adjoining Owner but only to the extent that these are necessary.

Section 2 of the Act requires a Building Owner to serve a “party structure notice”. Section 5 states and if the Adjoining Owner dissents in writing within fourteen days after the service of the party structure notice, a deemed dispute arises. Because this specifically relates to a “party structure notice” as opposed to “notice” it can only relate to notice under Section 2.

Under Section 6, which gives the Building Owner extensive rights to underpin, strengthen or safeguard the foundations of an Adjoining Owner’s building following the obligation to serve a notice under Section 6 (1) and 6 (2), Section 6 (7) defines the procedure regarding deemed disputes having arisen. A right is also granted to the Adjoining Owner to dispute the necessity of any of the above. In the case of both Section 2 and 6 there is a specific deemed dispute if the Adjoining Owner, having received a notice, takes absolutely no action. The Section 10 resolution process then falls into place to achieve a statutory determination.

In essence the rights granted in Section 2 and Section 6 are essential because they authorise the Building Owner to undertake work, which would otherwise constitute a trespass, for example:-

(a) Underpinning, strengthening and safeguarding the Adjoining Owner’s foundations.
(b) Raising the half of the party wall that stands on the Adjoining Owner’s land.
(c) Underpinning the half of the party wall footing that stands on the Adjoining Owner’s land.
(d) Cutting into the party wall because there is nothing in the Act that requires the cutting being limited to the centre line of the wall.

Access onto the Adjoining Owner’s land may reasonably be required to undertake any of these works and for some of the obvious works which would be an absolute requirement.

Section 1 is fundamentally different. The Section 3 and 6 (7) provisions regarding deemed disputes do not apply to Section 1; there can be no deemed dispute under Section 1. There is no requirement for Surveyors to be appointed or for any other kind of Award of statutory consent. Section 1 (6) is different insofar as it grants a right to trespass with projecting foundations. Clearly the granting of this right could lead to local difficulties involving a dispute resolution process.

Section 1 (8) permits any actual rather than deemed dispute that arises between the owners being determined under Section 10 procedure.

If one looks at the processes outlined under Section 1, the only potential disputes could be:-

1) Where the Line of Junction might be. This is a boundary dispute and not one for determination under the Act. Surveyors may advise but the Courts decide.
2) Whether the extent of any projecting footings under Section 1 (6) are “necessary”.
3) What level of compensation will be paid for damage under Section 1 (7).

It is interesting to note that the 1855 Act did not require notification of, what is now a Section 1 (5) wall. It required notice of an intention to build a party wall astride the Line of Junction and in the absence of a consent which was required to prevent a trespass, the Building Owner had to proceed to build entirely on his own land. Of further interest is that the access provisions existing in the 1855 Act under Section 36, a power of entry was granted for “the execution of any works authorised by this Act”. It went on to define what constituted authorised works by the words “that if such work has been duly authorised either by the consent of the parties competent to give such consent or by the Award”. It follows that if the Building Owner’s works were not works which required the Adjoining Owner’s consent or an Award made in accordance with the Act, they were not works authorised by the Act because they were works that the Building Owner did not need to rely upon statutory rights to undertake. Since the 1996 Act is essentially the same as preceding Acts is there a reason to believe that the fundamental principles have changed? Building a 1 (5) wall is something a Building Owner can do because he is entitled to build on his own land. No Party Wall legislation has ever stated or even implied that he needs to seek his neighbour’s consent to build a wall on his own land. It is not work authorised by the Act and never has been, so it cannot be work he can only undertake because the Act grants him a right to do so and it cannot therefore be said to be work in pursuance of the Act (Alex Schatunowski).

The arguments for and against the Act’s provisions being interpreted to authorise access have been rehearsed and it is for the reader to make their decision on the merit of the cases. The opinion of High Court Judges, whilst sitting in the County Court, is difficult to dismiss but he was not dealing with the Section 1 rights and it would be beneficial if Surveyors could be given certainty on this issue. The writer believes that the case for access via Section 8 on service of a Section 1 notice has not been made and advises his appointing owners accordingly.

The current de facto position can probably be summed up as one of pragmatism. Where on the four occasions an Adjoining Owner decides, following advice for and against a right of access, that the Building Owner will be denied access, deals are done or other methods of construction employed. Most developers do not have the time nor money to pursue the matter through the Courts.

Updated 25/04/17
Updated 02/05/17
Updated 16/05/17
Updated 30/05/17