Category Archives: Party Walls Legislation

Party Walls Act restricts works a neighbouring owner can require

In the High Court case of Bridgland v Earlsmead Estates Ltd [2015] the claimant claimed breach of statutory duty in that:

1. Their neighbouring building owner failed to serve on them a notice under section 3 of the Party Wall Act 1996 (“the 1996 Act”), thereby depriving the claimant of the opportunity to avail herself of the counter-notice procedures in section 4 of the 1996 Act. Had the claimant been allowed this opportunity she would have been able to require the works to be performed in such a manner as to prevent the issues of damp arising from the demolition of the building owner’s gable.

2. In breach of section 7 (1) of the 1996 Act the neighbour had failed to carry out their demolition work in such a way as to avoid unnecessary inconvenience being caused to the claimant.

The court found that the claimant had misunderstand the nature and purpose of a counter notice served under section 4. Such “other work” as may be the subject matter of a counter notice is different from the work which the building owner proposes, and a counter notice has nothing to do with the manner in which the building owner’s proposed work is to be carried out.

The purpose of the notice was not to enable an adjoining owner to require that the building owner’s proposed work be carried out in a particular manner, but rather to enable an adjoining owner to require that additional work be carried out by the building owner, for the benefit of the adjoining owner, at the same time as the builder’s owner carried out his own proposed work.

The expense of those additional works would have to be borne by the adjoining owner requesting the additional works, and not by the building owner: section 11(9) of the 1996 Act.

Also a counter notice could only relate to such other work to be carried out on the “party fence wall or party structure” as “may reasonably be required for the convenience of the adjoining owner” (section 4 (1) (a) of the 1996 Act). So such additional works can only be required to be carried out on the party wall itself, and not on the building owner’s land. It does not extend to any further work which the adjoining owner might wish to carry out, or have carried out on his own land either.

A counter notice therefore cannot, and does not, relate to such further work and a counter notice is not a medium for objection to the manner in which the building owner proposes to carry out his works.

So the claimant’s case had been incorrectly premised on the assumption that, had they served a counter notice, then they “… would have been able to require the works to be performed in such a way as to prevent the issues of damp arising”. What specific requirements could the claimants have made in their counter notice? Had there been a disagreement in relation to their requirements, could a surveyor appointed under the 1996 Act have made an award by which he directed the defendant to meet those requirements, and to carry out the works in the manner required by the claimants?” Had a section 4 counter-notice been served requiring French drains to be dug on the claimant’s property, that would have been outside the provisions of the Act.

On the second point the 1996 Act does not contain provisions enforcing performance of the obligation in section 7 (1) but the fact that it contains a specific mechanism or procedure for the resolution of disputes in relation to “any matter” connected with “any work” to which the 1996 Act relates strongly indicated that a breach of such obligation is only actionable through such mechanism or procedure.

In any event a breach of statutory duty is not actionable of itself, but only upon the occurrence of resultant damage. As regards section 3, a failure to serve a party structure notice would be a breach of the relevant statutory duty but it would not constitute the damage itself. Whether in relation to breach of section 3 or section 7, damage would be the physical damage caused by damp penetration to the flank wall of the claimant’s property. This was only likely to have occurred some time after demolition occurred but this could be assessed if the claimants sued the building owner for withdrawing any implied easements of protection their wall had acquired.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Did surveyor refuse or neglect to act effectively under Party Wall etc Act 1996 enabling other surveyor to award own fees?

The evident purpose of section 10 of the Party Wall etc Act 1996 (“the Act”) is to avoid delay caused by the failure of one of the parties’ surveyors to act effectively in relation to a particular matter.

Section 10 of the Act says that if a surveyor appointed by a party to the dispute:

– refuses to act effectively; or

– (for a period of ten days beginning with the day on which either party, or the surveyor of the other party, serves a request on him) neglects to act effectively,

the surveyor of the other party may proceed to act without him in respect of the particular matter; and

anything done by that surveyor shall be just as effective as if he had been a surveyor appointed jointly by the parties.

In Patel & Anor v Peters & Ors [2014] the central issue was whether the appellants’ surveyor refused or neglected to act effectively, within section 10(6) or (7) of the Act, with the consequence that the respondents’ surveyor was empowered to dispense with his participation in issuing awards in respect of his own fees.

The appellants had appointed Mr Burns as their surveyor, and the respondents had appointed Mr Wright as theirs. The two surveyors selected Mr Alex Frame as third surveyor.

Each of the awards made under the proceedings contained a clause providing that the appellants were to pay Mr Wright’s reasonable expenses in connection with the preparation of the award and one subsequent inspection, “the quantum of such expenses to be agreed or awarded by any 2 of the 3 surveyors”.

Whilst that clause claimed to lay down a specific machinery for fixing the expenses, the parties realised that that clause was not legally effective to replace the statutory provisions as to how costs were to be awarded.

By letters of 1, 13 and 21 December 2011, Mr Wright wrote to Mr Burns to agree appropriate fees. The last letter was relied on by the respondents as a formal request under section 10(7) of the Act. It had nevertheless agreed that the ten days’ time limit under Section 10(7) would not have expired until the public holidays had been adjusted for. It warned that Mr Wright would exercise his authority to either proceed without Mr Burns, or to get Mr Frame to progress the issue, if he did not receive an appropriate response.

Mr Burns did not respond within the 10 day period (adjusted for public holidays) specified in that request. However, he did respond soon afterwards, by letter dated 6 January 2012.

Had Mr Burns responded to the request in time?

The Court of Appeal accepted:

– that a valid response could in principle be made outside the 10 day period provided that the requesting surveyor had not already begun to act unilaterally in respect of the subject matter of the request; and

– that if that was the position the requesting surveyor could not nevertheless still proceed to act unilaterally without him.

Mr Burns had acted effectively by his letter of 6 January 2012. Whilst he refused to review Mr Wright’s timesheets, he had given a reasoned justification for that refusal and he had put forward a reasonable alternative basis on which he had said the fee should be calculated. He had engaged head-on with the subject-matter of the request and had set out his position in respect of it.

That came nowhere near to a refusal or neglect to act effectively. In fact, Mr Burns was acting effectively as the building owners’ surveyor in crystallising a dispute that had surfaced in the September 2011 email exchange and perhaps even earlier. That dispute had cried out for referral to the third surveyor.

By refusing to act on the “usual time basis” and by demanding the use of an alternative “summary assessment” method, Mr Burns was engaging with the issue of fees, not refusing to act effectively in relation to that issue.

Since the surveyor who had received the request acted effectively after the 10 day period but before relevant action had been taken by the requesting surveyor, the rationale for empowering the requesting surveyor to act unilaterally without him had disappeared and there was no reason why the normal procedures under section 10 should not apply.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.