In Part 2 of this blog, Icon Surveyors will be looking at the powers provided to surveyors under the Party Wall Act. That is to say, we will be considering the extent of the power that has been bestowed upon surveyors to make binding decisions under the Act.
Before you start reading part 2, just go through part 1 of this blog...
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.
Icon Surveyors are happy to provide free consultation on party wall matters to any building or adjoining owners who may be affected by the subject matter raised in this blog.