Party walls; third surveyor award; jurisdiction; procedural irregularity
Summary:
On a party wall appeal, the judge rejected challenges to a third surveyor’s award based on allegations that (1) the works which caused the damage complained of were not notifiable works, and (2) various procedural challenges, including the fact that the third surveyor did not undertake a site visit and did not actively investigate the dispute beyond the scope of the evidence provided to him.
Facts:
May and Crown Limited (“M&C”) owned 20-22 Station Road (“20SR”) and were the building owners for the purposes of the Act. The Shiptons owned adjoining shop premises at 18 Station Road (“18SR”). The Shiptons alleged that the sewage pipe serving 18SR had been damaged by notifiable excavation and piling works undertake by M&C and sought compensation under section 7(2). M&C asserted that the sewage pipe had in fact been damaged by non-notifiable excavation works and that, therefore, the party wall surveyors had no jurisdiction.
A referral to the third surveyor, Alex Frame, was made in respect of the compensation claim, and Mr Frame made an award dated 6 April 2021 in favour of the Shiptons in the sum of £16,850.72 (“the Award”)
M&C appealed the Award on grounds that: (1) the Award was made without jurisdiction because the damage complained of had not been caused by notifiable works; (2) there were procedural irregularities which made the Award unjust, and (3) the third surveyor had made errors in calculating the sum to be awarded.
The procedural irregularities relied on were (1) the third surveyor’s failure to visit the site; (2) a failure to take account of evidence, and (3) that the third surveyor was not qualified to assess business or other losses.
The Shiptons accepted that there were calculation errors in the compensation awarded such that the sum should be reduced to £8,890.28, but resisted the remaining grounds of appeal.
Decision:
HHJ Johns QC allowed the appeal in so far as it was conceded by the Shiptons, but dismissed the remaining grounds of appeal.
The judge held that the third surveyor had been entitled to reach the finding of fact he did, to the effect that “the major damage was caused by works under the Act”, on the evidence before him, which included evidence from the builder who had repaired the sewage pipe to the effect that “The piles for the next-door site had been driven through the clay sewer pipe, completely destroying it and stopping foul waste passing through”.
As to the procedural irregularities, the judge held:
(1) that it was not a serious irregularity not to visit the site. Not only do judges often decide dispute without a site visit, but the damage had been repaired by the time of the referral, and the third surveyor had photographic evidence of the damage in any event;
(2) the evidence which it was said the third surveyor failed to take account of was evidence which could have been obtained by M&C, but was not in fact obtained. Further, the third surveyor was under no duty to investigate matters himself. Finally, in so far as the third surveyor did not explicitly mention items of evidence before him, the presumption would be that he had had regard to all such evidence;
(3) As to lack of qualifications on the part of the third surveyor to assess business or other losses, the Act requires surveyors to make awards. Surveyors, like judges, must arrive at conclusions on evidence in areas where they are not themselves qualified, and the third surveyor was right to do so.
Comment:
The author understands that M&C is seeking permission to appeal HHJ Johns’ decision to the Court of Appeal. In the circumstances, no comment is made at this time.
A full copy of the judgment can be found here
