In this blog, Icon Surveyors will be looking at the jurisdiction and powers provided to surveyors under the Party Wall Act. In other words, the extent of the power a surveyor has been given under the Act to make legal and binding decisions.
Statutory rights and duties
Under the Act, building owners are given a statutory right to carry out certain construction works at the boundary of an adjoining property. The Party Wall Act provides that any building owner who intends to exert their rights under the Act has a statutory duty to notify any adjoining owner of their intentions. This triggers the adjoining owner’s rights under the Act not to be unnecessarily inconvenienced by the notified works.
Additional Reads
Works of this nature can cause a varied array of disputes and, as such, the Act provides that the parties are required to appoint at least one surveyor to mediate and determine a resolution for any matters that are considered to be in dispute.
The surveyor’s decision is usually in the form of a statutory party wall award which, unless appealed, is binding on all of the named parties. Under the party wall act, the surveyors are given certain powers to deal with the disputes, some of which will be discussed later in this blog. As will be seen, a surveyor’s participation in achieving this goal is core to the legislative objective.
It should be noted that surveyors are not, under the Act, considered as appointed agents for those owners that appoint them and, as such, have no authority to contractually determine disputes in the capacity of an independent expert or arbitrator, nor under the Act can they contractually bind the parties by whom they are appointed.
A surveyor’s authority to determine disputes arises solely from the Act and any decision made in deviation from such authority may render it invalid.
Surveyor’s authority under the Act can be defined under the concepts of jurisdiction and power. A surveyor who lacks jurisdiction is powerless to make any decisions under the Act. This is also true if a surveyor makes a decision that they have not been given the power under the Act to make.
The Party Wall Surveyor as a 'practical tribunal'
A Party Wall Surveyor is effectively a practical tribunal that has the power to adjudicate between building and adjoining owners who are in disagreement about building works that will affect each of the owner’s property.
A surveyor’s adjudication culminates in what is termed as a Party Wall Award. In order to resolve the concerns being addressed, surveyors have the power to impose their decisions on both parties by way of a Party Wall Award.
A practical tribunal will be ineffective if it is not constituted in accordance with the Act. In other words, for it to be legally constituted, the surveyors, building and adjoining owners must comply with section 10(1) of the Act.
Firstly, a dispute must be deemed to have arisen under the Act. This can occur in a number of ways, the most obvious being an adjoining neighbour's refusal to consent to, or, failing to respond to, a Party Wall Notice. If either of these situations arises both of the owners are legally obliged to appoint a surveyor.
Additional Read
To form a tribunal, there must be an appointment of a ‘single agreed surveyor’ or of two party appointed surveyors and/or a third surveyor, in writing. The appointment in writing must clearly identify the dispute the tribunal has been asked to adjudicate over.
The dispute must be one that the surveyor has been given the power under the Act to address. That is, the purported works must be works to which the Act applies and any matters under dispute must arise as a result of those works. Failure to comply with the Act’s provisions pertaining to the formation of a tribunal would render such a tribunal, invalid and the surveyor(s) powerless.
Statutory powers under Section 10(12) of the Party Wall Act
Under section 10(12) of the Act, surveyors have been given statutory powers to make binding decisions relating to:
a) the right to execute work under the Act;
b) the time and manner of executing any such work; and
c) any other matter arising out of or incidental to the dispute referred to them including the costs of making the award.
If an Award purports to impose a binding decision on a matter that is not within section 10(12) or does so in a manner that is not fitting under the legislation, the Award will be deemed to be invalid.
Under section 10(12)(a) – the right to execute works under the Act can be said to be a limited power in that a constituted tribunal only has the power to determine the execution of works that are applicable under the Act.
For example, a surveyor cannot determine whether a building owner has the right to execute proposed works that will block an adjoining owner’s right to light. In order to build a structure that may interfere with an adjoining owner’s right to light a building owner would need to excavate the land to lay the foundations for the structure to be built.
The only matters that can be decided by a surveyor acting in accordance with the Act in this situation are those concerning the excavation. Any other matter may therefore be considered as ultra vires. In other words, the tribunal would be acting beyond its powers under the Act.
Under section 10(12(b) – the time and manner of executing work are central to achieving the Act’s objective. The objective of the Act is to attain a fair balance between the rights of the building and adjoining owners.
That is to say, the building owner can execute their rights under the Act to carry out certain works and the adjoining owner shall remain protected against any damage or unnecessary inconvenience that may result from such works.
Surveyors are given the power to restrict the times in which work is to be carried out, but should always maintain a fair balance. They are also given extensive powers to decide upon the manner in which building works must be carried out. This includes the workmanship, the materials and the method of execution of the works to be carried out. Once again, this is subject to a requirement to meet a fair balance between the parties.
Under section 10(12)(c) – other matters arising out of or incidental to the dispute are phrased in a manner that appears to give surveyors sweeping powers to adjudicate over an array of matters. However, the tribunal's power to adjudicate on ‘other matters’ must be read in context with the Act, such matters must ‘arise’ out of or be ‘incidental’ to the dispute.
That is to say, matters concerning compensation for damages, unnecessary inconvenience or costs, or an Award to make good any damage caused to an adjoining owner as a result of the building owner's works. It should be noted that such powers cannot be used to extend a tribunal's jurisdiction to adjudicate over matters that do not apply under the Act.
Free Consultation
Icon Surveyors are happy to provide a free consultation on party wall matters to any building or adjoining owners who may be affected by the subject matter raised in this blog.
