Party wall time

Once planning permission (if necessary) has been granted to carry out construction works, if the works include work on or near the party wall boundary, the typical next step is for a surveyor acting for the building owner (the party who wishes to carry out the works) and the adjoining owner (the neighbour) to draw up a party wall award by following the process set out in the Party Wall Act 1996.

The award governs how the work will be carried out and deals with matters such as access, time of works, compensation and surveyors’ costs. The process for obtaining the award (as long as it is correctly followed) cannot stop or limit the scope of the work. It does not provide a forum for raising objections to the work. Instead the surveyor has a duty to be impartial when deciding the award.

Problems often arise at various stages of the process stemming from the fact that the adjoining owners are often not very happy about the work being carried out

This sounds great in theory. However, what happens in practice can be rather different. Problems often arise at various stages of the process stemming from the fact that the adjoining owners are often not very happy about the work being carried out. The act has various mechanisms in place to deal with disputes but these can be pretty sketchy and all kinds of challenging scenarios can arise.

A good example of this is the recent appeal case of Patel and another vs Peters and others. Here, the unusual situation had arisen where communication between the “impartial” surveyors had broken down. The breakdown arose from a dispute between the building owner and adjoining owners’ surveyors about how the calculation of the adjoining owners’ surveyor’s fees. This led to the building owner’s surveyor refusing to engage to resolve the issue.

Section 10(7) of the Party Wall Act calls this type of behaviour “neglect[ing] to act effectively”. It makes provision for resolving such stalemate via a 10-day notice procedure. After this time, if no response has been received, the “non-neglectful” surveyor can act without giving notice to the other surveyor (“ex parte”). The adjoining owners’ solicitor followed s10(7) serving a request on the building owner’s surveyor but extending the 10-day statutory deadline to take account of Christmas. The building owner’s surveyor did not respond until after the deadline expired but then did respond in full. The County Court held at first instance that the adjoining owners’ surveyor had the power to act ex parte as regards the cost awards. However, the Court of Appeal disagreed and allowed the appeal.

The Court of Appeal identified the key issues as being whether the extension of the statutory 10-day timeframe for response invalidated the request, if not, whether the building owner’s surveyor could respond outside the deadline and then whether the building owner’s response was effective. In line with the Country Court judgment, the Court of Appeal held that the statutory timeframe could be extended and the building owner’s surveyor could respond outside the deadline but in contrast to the County Court, held that the building owner’s surveyor’s response was “effective”.

So, what can be learnt from this? The key messages are twofold. Firstly, make sure you carefully choose your party wall surveyor. Secondly, engage fully and constructively in the party wall process. This should not only ensure that your rights are protected but also should save time, money and arguably, most importantly, good will, in the long run.

Laurence Cobb is head of construction at law firm Taylor Wessing