Summary:
An unsuccessful attempt to challenge a third surveyor’s decision on three primarily technical and unattractive grounds.
Facts:
Mr Walsh was long leaseholder and occupier of 93 Grosvenor Road, London SW1 (“93GR”). PSB Management Ltd was the freehold owner of adjoining property at 92 Grosvenor Road (“92GR”). 92GR was split into 5 flats. Flat 1, on the ground floor, was owned under a long lease and occupied by Mr Yeh and Ms Kang (“the BOs”) who were the Second and Third Respondents to the appeal.
The BOs wished to demolish a conservatory and replace it with a single-storey extension, and served party structure notices in respect of the same on Mr Walsh. The BOs appointed Mr Campbell as their party wall surveyor. Mr Walsh appointed Mr Boyer as his party wall surveyor.
Messrs Campbell and Boyer initially selected Mr Maycox as third surveyor, but after he declared himself incapable of acting, Mr Alex Frame was selected as his replacement on 28 March 2020.
The background to that replacement included an exchange of email correspondence between Mr Campbell and Alex Frame (to which his barrister son, Stuart Frame, was also party) which was by any account highly unprofessional on the part of Mr Campbell, and in respect of which he has since publicly apologised. However, it was the familial connection between Alex Frame and Stuart Frame, combined with Stuart Frame having acted for the BOs’ predecessors in title in relation to an earlier appeal brought by Mr Walsh which gave rise to an allegation by him of “apparent bias” on the part of Alex Frame in respect of the award now being appealed.
That award was made on 13 April 2020 by Mr Campbell and Mr Frame under section 10(10) of the Act.
Mr Walsh appealed on three grounds, namely;
(1) the BOs were not building owners under the Act since they did not own the party wall in question, and therefore did not have standing to contest the appeal;
(2) Mr Frame should not have accepted selection as a third surveyor, as there was apparent bias in favour of Mr Campbell (and the award could not therefore stand);
(3) The award was invalid because the BOs had introduced changes in revised drawings for the proposed works which amounted to changes in design and which therefore required fresh party structure notices that had not been served.
Decision:
HHJ Monty held that:
(1) the BOs were indeed building owners for the purposes of section 20 of the Act. He noted that “there is nothing in the Act which requires the party wall to be owned by either the building owner or the adjoining owner” and referred to the definitions of both in section 20 to emphasise this;
(2) Neither the familial relationship between Stuart and Alex Frame, nor the fact that Stuart Frame had acted against Mr Walsh in a previous (settled) party wall appeal would lead a fair-minded observer to conclude that there was a real risk of bias in the appointment of Mr Frame. Consequently, there was no apparent bias, and the award could not be challenged on that basis;
(3) The changes in question – changing rendered panels to London stock brick panels – came about as a consequence of a request from Mr Walsh. Consequently even if they were a relevant change (which the judge rejected) Mr Walsh was estopped from relying on such changes to challenged the validity of the original party wall notices.
Comment:
This appears to have been an eminently sensible decision by the judge, touching on some interesting legal points along the way, but finishing in a judgment which any objective observer would commend.
A full copy of the judgment can be found here.
