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England and Wales High Court (Technology and Construction Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Porter & Anor v Morgan [2016] EWHC B25 (TCC) (13 October 2016)
URL: http://www.bailii.org/ew/cases/EWHC/TCC/2016/B25.html
Cite as: [2016] EWHC B25 (TCC)
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IN THE COUNTY COURT AT BIRMINGHAM

Appeal No BM50160A, Claim No A20BM075

(TCC LIST)

On 13 October 2016

Before HHJ David Grant

 

 

BETWEEN:

 

 

(1) MR. GRAHAM PORTER

(2) MRS. LEMA PORTER

Appellants

-v-

 

MRS. MEGAN MORGAN

Respondent

 

 

________________________________________

 

JUDGMENT ON APPEAL

________________________________________

 

 

Mr Graham Porter appeared in person on behalf of himself and his wife, the appellants

Mr Stuart Frame of counsel appeared on behalf of the respondent, instructed via the Bar Council Direct Public Access scheme.

 

1.            The appeal

This is an appeal, brought by notice of appeal dated 7 September 2015, against the award of two Party Wall Act ("PWA") surveyors, Mr Ian Mulvaney the building owner's surveyor, and Mr Simon Biggs the adjoining owner's surveyor. That award was made on 17 August 2015 (A/10-80). The building owners are Mr Graham Porter and Mrs Lema Porter; and the adjoining owner is Mrs Megan Morgan. The building is No 3 King Street, Brynmawr, NP23 4RE in South Wales.

 

2.            By paragraph 1 of the order for directions made on 20 April 2014 (A/207-8) I made an order that "because of the nature of the matters in issue set out in the appellant's notice and the skeleton arguments, the appeal should proceed by way of rehearing rather than a review". At the appeal Mr Porter appeared in person on behalf of himself and his wife; Mr Porter told me that he is now 72 years of age, and had spent many years running a retail business as a shoe repairer from which he was in the process of retiring. He also told me that during the past four years he has attended a part-time course in law at Coventry University, from which he will receive his degree later this year. So while he is not legally qualified in the professional sense of the word, Mr Porter does have some familiarity with legal principles. Mr Stuart Frame of counsel appeared on behalf of Mrs Morgan, instructed through the medium of the Bar Council's direct party access scheme. Mrs Morgan told me that she is 59 years of age, and works as a receptionist in a local practice of medical general practitioners.

 

3.            During the life of the appeal Mr Porter has served and filed three separate skeleton arguments. The first is dated 21 October 2015 (page A/80A-D), shortly after the notice of appeal was filed. The second is dated and 2 March 2016 (page 80E-H), shortly before the main directions hearing. The third is dated 16 August 2016 (pages 81-95), prepared shortly before the hearing of the appeal. Shortly after he received the appeal bundles on 31 August 2016, Mr Frame noticed that Mr Porter's third skeleton argument was included within those bundles; as a result Mr Frame served and filed a further skeleton argument which is dated 8 September 2016. Mr Porter and Mr Frame agreed at the outset of the hearing of the appeal that the grounds of appeal were to be treated as those identified in Mr Porter in his various skeleton arguments, all of which are summarised in Mr Frame's further skeleton argument, which thus provided a convenient and comprehensive agenda for the hearing of the appeal.

 

4.            It was also accepted by both Mr Porter and Mr Frame that the key issue raised in the appeal is the nature of information which Party Wall Act surveyors could require from the parties so as to enable them to deliver themselves of the award.

 

5.            The building

No 3 King Street is one of a terrace of three properties comprising Nos 1-3 King Street; it adjoined or abutted No 4 King Street. The run of Nos 1-3 King Street was set back from the front elevation of No 4 King Street: see plate 01 in the archaeological report prepared by Dr Phillips (page B/361), which shows an "early photograph" of No 3 King Street, and the more contemporaneous photographs of both the front and rear elevations of No 3 King Street before demolition at pages B/364-5.

 

 

 

6.            Mr Porter's scheme for redevelopment of No 3 King Street

A material factor in the history of this matter is the fact that Mr Porter's plans for developing No 3 King Street have developed over time. The first set of drawings, which was prepared by Laurence Clarke of Plan-it Design a firm of architectural designers in Cardiff, is dated 14 May 2014 (pages A/212-218). Those drawings show that the front elevation of No 3 King Street was to be brought forward to meet the line of the front elevation of No 4 King Street: compare the existing plan at page 212 with the proposed plan at page 218. The proposed plan shows a new side wall to the left hand side of the proposed extension to No 3 King Street (when viewed from the front) touching or abutting throughout the length of the front part of the flank wall of No 4 King Street which was originally proud of the front elevation of No 3 King Street.

The construction notes on the proposed plan at page 218 provide:

"Provisional wall spec.

'U' value to be min 0.21 W/m2k

30 insulated PB & skim

40 x 10 battens

[vapour membrane - tba with BC]

142 SIP

Breather membrane

25 x 50 battens & 400 c/c

10 OSB/Ply/calcium silicate bd.

Thin coat polymer finish"

 

 

The construction notes in the proposed elevation drawing at page 215 provide:

"Walls :

Structural Insulated Panel System

To be specified and designed by manufacturer

Site dimensions to be checked prior to manufacture ..."

 

This set of plans also shows an elevated roof line for No 3 King Street, which is to be brought up to meet the higher roofline of No 4 King Street: compare the existing elevation of page 213 with the proposed elevation at pages 215-6.

 

7.            Laurence Clarke then prepared a number of section drawings, some of which are at pages A/219-222. They are dated 4 November 2014. the construction notes on page 219 provide:

"Cavity walls:

Outer leaf: Concrete block, rendered and painted to match existing

Inner leaf (masonry walls): 100 Celcon SOLAR

Inner leaf (timber framed walls): 47 x 115/100 C 16 studs at max

400 c/c with top and bottom plates & noggins @ 120O above FFL

100 PIR insulation between studs, 11 OSB board with TLX Gold multifoil

insulation and breather membrane, or similar, between stud and external leaf

Cavity (masonry walls): Weak concrete fill to ground level

50 clear, 60 King span/Celotex or similar

Cavity (timber frame): TBC on-site/agreed with building inspector

12.5/9.0 PB on dabs/patterns with skin, internally

'U' value (masonry walls): 0.2 1 W/m2 K (Celotex U-value calculator

'U' value (timber frame walls): TBC by energy assessor"

 

It is to be noted that this is a different method of construction from the "SIP" method referred to in the construction notes on the proposed plan dated 14 May 2014 at page 218, and from the "Structural Insulated Panel System" referred to in the construction notes on the proposed elevation drawing at page 215.

 

8.            The third set of drawings prepared by Laurence Clarke was prepared on or about 6 June 2016, which is well after the date of the award; they are at pages B/343A-E. In his covering letter dated 6 June 2016 Laurence Clarke wrote:

" ... it is not my practice to update the drawings with every amendment date and in some cases, as has been the case with No 3 King Street, I do not put any amendment date on the drawings."

 

While that may explain why these revised or amended drawings are dated 15 May 2014, in my judgment such dates are nevertheless misleading; they should instead have been dated 6 June 2016. Of particular relevance to the issues in this appeal is the change to the alignment of the new wall to the left hand side of the proposed front extension to No 3 King Street (when viewed from the front), where that wall is now shown to run a little inside the flank wall of No 4 King Street, touching or abutting No 4 King Street only at or about the location of the corner where the original front wall of No 3 King Street adjoined or abutted No 4 King Street. The construction notes on this revised or amended proposed plan drawing however remain much the same as they were in the proposed plan drawing dated 14 May 2014. They provide:

"Provisional wall spec.

'U' value to be min 0.21 W/m2k

12.5 PB & skim

40/50 x 10 battens

144 SIP

Breather membrane

25 x 50 battens @ 400 c/c

10 OSB/Ply/calcium silicate bd.

thin coat polymer finish"

 

The construction notes on the proposed elevation at page B/343B were the same as those on the earlier proposed elevation drawing dated 15 May 2014 at page A/215.

 

9.            The essential history

The parties have prepared an agreed chronology, which enables the following key dates to be identified. On 25 January 2015 Mr Porter served a "Line of junction" notice under section 1 (5) of the PWA on Mrs Morgan (page A/229). With that notice Mr Porter also served a document entitled "Further information to be read as part of the Party Wall Notice" (A/230) in which he wrote as follows:

"Following discussions with building control at Blaina, I am exploring the ramifications and advantages of re-building No 3 using the Structural Insulated Panel Method (SIP). ... This has several benefits: the whole house can be rebuilt in days rather than weeks, greatly reducing the inconvenience of the traditional methods and adjoining properties have a greatly enhanced level of insulation between the party walls i.e. both houses are warmer.

To assist in understanding the extent of each part of the changes at the boundary of our properties I will elaborate on the drawings commencing with the extension to the front elevation of No 3.

The plans show a 'thin' yellow line projecting forward from the present front elevation of No 3(I have marked it 'A' on page 3 of the plans). This is a single SIP panel which will be fixed to battens which will in turn be fixed on my side of our party wall between Nos 4 & 3 after the render on No 4 has been removed ... This SIP panel will rise the full height of No 3. This panel will have no effect on the structural integrity or loading on the party wall of Nos 4 & 3.

The weight of the panel will be taken on a line of new foundations alongside, but not under, the party wall side of Nos 4 & 3 ... The depth of the foundations will be decided on site during an inspection by building control ...

 

....

 

As mentioned previously in my letter of 14 January 2015 ... I hacked off the plaster of No 3 at the joint between No 3 and No 4. I enclose ...photographs ... The dark stuff between the stones has turned out to be very old lime mortar, which by its nature has remained soft. It can be raked out with the finger. Further the two sets of walls simply butt up to one another. It seems reasonably clear now that the front wall of No 3 offers no support nor does it receive support from the party wall of Nos 4 & 3. Therefore demolition of the front elevation of No 3 will not affect the structural integrity of the party wall of Nos 4 & 3."

 

10.            On 20 February 2015 Mr Porter requested Mrs Morgan that she appoint a party wall surveyor, which she did on 24 th of March 2015; that was Mr Simon Biggs.

 

11.            On 26 March 2015, on behalf of Mr Porter, Mr Mulvaney served two notices: a "Party Structure Notice" under section 3 of the PWA (page A/144); and a "Three Metre Notice" under section 6 (1) of the PWA (page A/145).

12.            On 9 April 2015 the two party wall surveyors carried out an inspection of No 4 in order to compile a schedule of condition.

 

13.            On 12 April 2015 Mr Mulvaney wrote to Mr Porter advising him that because he was " ... building up and along enclosing part of the wall not currently occupied by your property (he was) essentially benefiting from works paid for by No 4 ..." and as a result he was likely to be liable to pay Mrs Morgan, as adjoining owner, around £1,700 in respect of compensation or expenses pursuant to section 11 (11) of the PWA: see page A/239. Mr Porter disagreed with that analysis, substantially on the ground that there was a time when Nos 4 & 3 were in common ownership: see his reply to Mr Mulvaney of the same date (page A/242). Mr Mulvaney conveyed Mr Porter's views to Mr Biggs, who responded to the effect that Mrs Morgan understood that No 4 was originally a detached property, and therefore that the wall "...that your owner is proposing to enclose upon is an external wall, and not even a party wall.: See Page A/244.

 

14.            Then on 13 April 2015 Mr Biggs wrote to Mr Mulvaney by e-mail as follows (page A/245:

"Ian,

Further details/information required as follows:

-                       demolition plan

-                       drainage plan and details

-                       section indicating the difference in floor and pa levels between the two properties

-                       demolition methods statement. The one provided is in adequate and non-specific

-                       drainage method statement

-                       excavation method statement

-                       roofing method statement for the abutment

..."

 

15.            Mr Mulvaney wrote to Mr Porter by e-mail the same day as follows:

"Can you please provide all of the following information as outlined in AO surveyors e-mail below please."

 

16.            Mr Porter declined to provide that information: by e-mail the same day he wrote to Mr Mulvaney as follows (page A/246):

"Ian,

I am afraid this chap is tending to act ultra vires.

Most of these requests are the province of the planners and/or the building Inspector and/or the various bodies concerned.

Demolition plan ... not called for by planning. Not his concern (NHC).

Drainage plan ... discussed at length over two meetings with Welsh Water ... final plan agreed for disposable water. NHC except rainwater will not be joined to No 4

Section to FE ... NHC

Floor levels. Details of No 3 floor clearly shown on plans. Maybe a few mm difference. Of no concern to either party

Demolition statement ... passed by planning. NHC

Drainage methods statement ... see Welsh Water above ... NHC

Excavation methods statement ... not called for by planners, but because the site restrictions will all be dug by hand. NHC

Roofing method statement ... detailed in plans but I am happy to accommodate any reasonable request."

 

Mr Porter then stated about four and five paragraphs below as follows:

 

"Clearly this individual is asking for information outside the remit of the PWAct. Any further requests (and I suggest that these are just the start of a prolonged delaying tactic) must be referenced to the precise clause in the Act.

 

Once again I am obliged to point out that the original bricks and mortar build was abandoned on the advice/suggestion of the building inspector.

Final plans, drawn to a tolerance of 3mm will be drawn by SippsEco. In order to achieve this fine tolerance it is necessary to commission a laser measured building survey. This cannot be done until the present building is down."

 

17.            On 18 April 2015 Mr Porter wrote a long letter by e-mail to Mr Mulvaney (pages A/248-9) at the end of which he wrote,

"FINALLY

I have a calendar/timetable to work to keep the project on course. I shall be on-site on Monday 20 th for the week and we will be demolishing No 3. Until the place is down I cannot commission the laser survey without which the final plans can be drawn by the SippsEco people. They have a lead time of 8 weeks. This will all take us well into the summer."

 

18.            Mr Mulvaney replied the following day. Within his e-mail (page A/250) he wrote:

"5. Programme - you need to hold on demolition until the award is in place. I can't be any clear on that and I have to again advise that you will probably be served with an injunction ..."

 

19.            On 20 April 2015 Mr Porter wrote another long letter by e-mail to Mr Mulvaney (pages A/251-2) at the beginning of which he wrote:

"Just had a meeting on site with building control - Sean Paggett. Very helpful. He suggested that I no longer build onto wall of No 4 but change the foundation design to a raft. This will enable me to build right up to No 4 wall at the front but not attached to it.

I have contacted Lawrence that his opinion and then a redesign."

 

Later in that letter he wrote:

 

"Tomorrow we will be removing more of No 3. I am aware that strictly speaking the newly exposed wall of No 4 cannot be sealed until an agreement is in place. It will be sealed when we get to it as I cannot return to site for several weeks.

Clearly the best course of action will be to conclude an agreement before I reach that point. ..."

 

20.            On 21 April 2015 Mrs Morgan wrote to Mr Biggs enclosing the photograph at page A/254 and stated:

"I've attached photos of some of the work Mr Porter has been carrying out next door. Just a quick question: is Mr Porter allowed to remove his roof before any agreement is in place, because they have removed the majority of the roof to No 3 ... and I wonder if it is at all possible if you could arrange with Ian to gain access to survey the party wall from No 3 side and find out how they're going to proceed will be demolished."

 

21.            That led Mr Biggs to write to Mr Mulvaney the following day as follows (Page A/259):

"Attached are copies of photographs taken by my owner yesterday.

As you will see, your owner is proceeding with the works, including notifiable works, without the award and information requested, as per the e-mail below, being in place.

There is an inherent risk to my owner's property ...

Please liaise with your owner and request that further works are suspended until the information requested and the award is in place."

 

22.            On 24 April 2015 Mr Mulvaney wrote to Mr Biggs as follows (page A/260):

"I have informed the BO that he must stop works and provide all details as requested to agree the award. If he does continue then your AO must do what is necessary.

He is trying to argue that the eaves detail is de minimis to him, but it is trespass!

He is now proposing to use a raft foundation, so again I am awaiting drawings update.

In respect of the bulge on the garden wall, the AO has informed me that the cost of this to rectify by removal and reinstating would be £850. I would suggest that this is offset to the expenses claim under section 11."

 

23.            On 28 April 2015 Mr Porter wrote a long six-page letter to both party wall surveyors (pages A/261-6). The content of that letter is summarised in the agreed chronology as follows:

"(Mr Porter) complaining about the lack of progress. Informs that No 3 is no longer to be attached to No 4 due to section 11 demand, there will now be a small gap between properties. States no further correspondence on the matter. Foundations to now be raft design. Accepts No 4 laid on shallow foundations; assert wall is safe. Laser survey to be conducted once raft foundations in place. Complains of conduct of surveyors; suspects delaying tactics. (Asserts) details required by Mr Biggs are ultra vires, and raises concerns over Mr Biggs' fees. Wants agreement on bulging wall. Wants meeting with the surveyors and then get an award."

 

On internal pages 3 & 4 of that letter Mr Porter expanded on the reasons he declined to provide the information which Mr Biggs had requested. Then, at the top of internal page 5, he wrote:

"It would also serve to progress the work harmoniously if the repeated threats to trot off to court were to cease. I have lost count of the number of times such an action has been threatened. If the two surveyors are unable to reach an agreement over this pifflingly small site of 4x3 metres, the next correct step provided for in the PWA 1996 is to appoint a third surveyor. Court is the last resort not an interim one. Further, Reeves v Blake [2009] EWCA Civ 611 ruled that costs involved in going to court are not recoverable under the PWA. Being a CA case the result is binding."

 

In the bottom half of page 5 of that letter, and overleaf at the top of page 6, Mr Porter referred to matters of trespass, and it was in that context that he wrote "no further correspondence will be entered into on this point". He then concluded on page 6 as follows:

"Comment from lawyers that the PWA 1996, having been drawn up by surveyors as opposed to the Law Commission, and as a result offers inordinate benefit to surveyors, would seem to be pertinent. The e-mails, alleged concerns and spurious demands must cease.

I suggest that both surveyors and I meet at a mutually convenient time and place to clear up any remaining matters of concern, and that a PW agreement is then issued

Failing that I suggest it is time to engage the third surveyor.

Only if the third surveyor cannot assist will it be time to approach the court.

I have set out my timetable. It will be adhered to.

I look forward to a meeting to resolve matters."

 

24.            There was then further correspondence between the surveyors: by e-mail dated 29 April 2015 Mr Biggs suggested that they proceed to prepare a conditional award, asking Mr Mulvaney to "please revise the draft and resubmit".

 

25.            On 4 May 2015 Mr Mulvaney wrote to Mr Porter (page A/269):

"I am sorry that you feel the process has been frustrating but this has unfortunately been caused by the lack of 'build' information regarding your new development

The purpose of the party wall act is essentially to serve and protect the 'wall' of dividing properties and it is the duty of the party wall surveyors to act essentially as arbitrators ensuring that matters are conducted properly

Whilst I agree that the PWA does not specifically list information that needs to be provided, the information that has been requested here is to prove/demonstrate that the proposed works have been designed and will be built in a manner that satisfies the party wall surveyors, and will not lead to damage to the 'party wall'/adjoining structures of the AO. This includes how any structure attached to the party wall or near a party wall/structure will be demolished; how a new drain (which is within 3 m and requires an excavation) will be undertaken to prevent the excavation undermining the AO property and how it will be constructed; the levels of the new construction to the existing; how the property will abut the existing. These are not unreasonable requests. Your designer should be able to provide the basic details on such issues.

...

Award - please note that unless you can provide the additional information as requested than myself Mr Biggs will have to prepare and serve a ' conditional award' setting out the requirements of the additional information that is needed to allow demolition and works to proceed. Once information is received a further final award will be prepared which gives you the right to proceed with your works. ..."

 

26.            In June and July 2015 there was further correspondence relating to revised raft foundation plans, the bulge in the wall between the gardens at the rear, and realignment of phone lines.

 

27.            On 16 July 2015 Mr Biggs wrote to Mr and Mrs Porter (page A/279), enclosing an interim invoice and requesting payment; Mr Porter replied by letter dated 21 July 2015 (pages 8/282-3) making a number of points, and declining to pay the invoice.

 

28.            Then on 30 July 2015 Mr Mulvaney wrote to Mr Biggs enclosing a draft "revised conditional award", and stating "I will get the schedule through in the next day or so we can be in a position to sign off end of the week".

 

29.            In July 2015 Mrs Morgan instructed solicitors, Irwin Mitchell (Jeremy Thomas). Jeremy Thomas prepared a pre-action protocol letter of claim, asserting that Mr Porter was carrying out work within the meaning of the PWA; that however no award been prepared pursuant to the PWA; and that such work was "likely to cause damage to and trespass upon our clients property": see pages A/286-7. By letter dated 1 August 2015 Mr Porter stated that "the site has now been sealed and all work stopped": see page A/289.

 

30.            On 11 August 2015 Mr Biggs wrote to Mr Mulvaney stating "... we appear to be nearly there with the award ...", and attaching an updated draft (page A/195). The following day Mr Mulvaney responded "Comments noted and revised award enclosed. I have left the amendments highlighted until we have final agreement on content."

 

31.            That same day Mr Porter wrote to both party wall surveyors complaining that no award had yet been made, and giving them seven days to appoint a third surveyor, as well as making a number of other points.

 

32.            On 15 August 2015 the surveyors made their award: it is at pages A/11-79.

 

33.            On 24 August 2015 Mr Porter wrote to Mr Mulvaney a four-page letter (pages A/293-6), asserting that the award was defective and stating that it would be appealed

 

34.            With that history by way of background, it is now convenient to turn to consider the 20 or so grounds of appeal raised by Mr Porter.

 

35.            Preamble

In his third skeleton argument Mr Porter cites the recital in the award which records the appointment of the third surveyor. He then submits" the appellant has had no contact or dealing with this individual. He has not been involved in any way. It follows that he has no part to play in this matter and the preamble is superfluous comment dressed up as fact".

 

36.            In paragraph 12 of his skeleton argument Mr Frame submitted that "the naming of the surveyors who form the statutory tribunal is common practice among party wall surveyors, and is recommended in the RICS standard draft award on such matters ..."

 

37.            In his oral submissions Mr Frame submitted that there was no merit in this point.

 

38.            I accept Mr Frame's submissions. In my judgment there is indeed no merit in this point; furthermore it reveals a misunderstanding on Mr Porter's part of the wide discretion which party wall surveyors have when setting out the terms of their award.

 

39.            Clause 1 (a)

Clause 1 (a) of the award provides:

"NOW WE, being two of the three surveyors so appointed ... DO HEREBY AWARD AND DETERMINE as follows:

(a) That the wall separating the Building and Adjoining Owners premises is deemed to be partially a party wall within the meaning of the Act."

 

40.            The essence of Mr Porter's complaint about this clause is that, as a matter of fact, the wall between Nos 4 & 3 is not a party wall. In paragraph 7 of his skeleton argument he submitted:

"The exposed wall is the interior wall of No 3 with the true party wall some approximately 2 to 3 feet behind it inside the present footprint of No 4 ..."

 

In paragraph 9 of his skeleton argument he submitted:

"(i) .... Within the thickness of the boundary wall between No 3 and No 2 is the now remnant of the stone stairs up to the bedroom which once went round the back of the fireplace. The identical fireplace with flue and entrance to the stairs for No 3 is shown in the photograph ...

(ii) .... The schedule (of condition) is dated 9 April 2015. It will have been obvious from the survey of the inside of No 4 that the interior side elevation wall did not follow a straight line rearwards. At some point the wall must show a dramatically increased thickness to accommodate the original fireplace and stairs of No 3"

 

In paragraph 9 (iii) he referred to the archaeological survey carried out by Dr Phillips and to plate 01 of the terrace, and submitted:

" ... it shows all four properties, each with a chimney. The chimney serving No 3 is shown apparently emerging through the roof of No 4. The real chimney for No 4

Is shown on the far left hand side of No 4 ..."

 

Mr Porter concluded by submitting in paragraph 10 that:

"It follows that paragraph 1 (a) is incorrect as the true nature of the alleged party wall was evident at the time of writing, and that paragraph is therefore wholly inaccurate and should be struck out."

 

41.            Mr Porter did not refer to any of this material in his witness statement at pages A/106-7, which instead dealt with more general matters. Nor did Mr Porter adduce any expert opinion evidence in the appeal, whether on this or any other issue.

 

42.            Mr Porter did however produce a number of photographs which he had taken, though as he accepted none (save one) were dated. It is not clear when Mr Porter took photograph 377C, though Mr Porter accepted that it must have been taken before 2 October 2015. In my judgment photograph 377A was taken some time after 377C. It is clear from looking at both photographs 377A and 377C that there is a fireplace in the wall, the front surface of which was internal to No 3, together with a further opening to the rear. Both of those openings can be seen, albeit at a more oblique angle, in photograph MM1 which was taken by Mrs Morgan on 4 September 2016. Both openings are shown more clearly in photographs 379A and 379B, which Mr Porter told me he had taken in July 2016. Photograph 378B, which Mr Porter told me he had also taken in July 2016, shows the internal faces of the flue which rises above the fireplace. In the course of his cross-examination of Mrs Morgan, Mr Porter asked the question "whether it was apparent that there was a void between the two walls", and explained to me that what he meant by such a void was the space inside the flue as shown on photograph 378B.

 

43.            In paragraph 14 of his skeleton argument, Mr Frame submitted that neither party had ever asserted to the party wall surveyors at any time before they made their award that the wall between Nos 4 & 3 was not a party wall. He further submitted in paragraph 15 that all parties had proceeded throughout on the basis that the wall dividing Nos 4 & 3 was a party wall. In that context, he referred to a number of instances where Dr Phillips had referred to such a wall as a party wall in his archaeological report. In paragraph 16 he submitted:

"The wall in question is the flank wall of No 4. It has never been asserted that the wall was a party wall which sits astride the boundary. The surveyors have proceeded on the basis that it is a party wall as defined by section 20 (b) of the Act, namely ' so much of a wall that separates buildings belonging to different owners'. The fact that the wall is described in the award ... as being deemed to be "partially a party wall within the meaning of the Act" is further evidence of this. It therefore matters not where the boundary lies within the wall, how thick the wall is in places, whether the wall has cross flues running through it, nor even a doorway. It is plainly a wall that separated buildings belonging to different owners, satisfying the definition of the party wall in section 20 (b) of the Act."

 

44.            In his oral submissions Mr Frame also submitted that the stone wall of No 4 shown in the photographs on page 363, which were taken before any demolition of No 3 occurred, was the same stone wall as that shown in the photographs on page 379.

 

45.            In my judgement Mr Porter has not established, on the evidence adduced in the appeal, that there were two walls between Nos 4 & 3, one being an internal wall of No 3, and another some 2 to 3 feet behind it and inside the present footprint of No 4. To the contrary: I find that photograph 378B of the inside of the flue simply shows a flue rising above the fireplace, and situated within a thick wall. It does not depict the existence of two separate walls. I therefore reject Mr Porter's case that the "true nature" of the wall between Nos 4 & 3 was that it comprised two separate walls. Instead I accept Mr Frame's submissions on this issue, both on the facts in his oral submissions, and the proper legal analysis as set out in paragraph 16 of his skeleton argument. I therefore find that this is a party wall within the meaning of paragraph (b) which is provided under the expression "party wall" as set out in section 20 of the Act. In those circumstances, this ground of appeal fails.

 

46.            Clause 1 (c)

Clause 1 (c) of the award provides:

"That prior to us ... inspecting the adjoining owners building the purpose of preparing the schedule of condition hereto, and prior to this award, the building owner had commenced demolition and excavation works, notifiable works pursuant to the Act."

 

47.            Mr Porter's submissions on this ground occupy two pages of his third skeleton argument. In the last subparagraph of paragraph 12 of dealing with demolition he submitted that "... the demolition referred to related to the agreement between No 2 and No 3 only." In paragraph 15, dealing with excavation, he submitted:

"Excavations, such as they were, consisted of hand digging out the earth to a depth sufficient to lay several tons of concrete in blocks tied together with rebar dowels against the interior boundary wall of No 3 ...

 

In paragraph 18, also dealing with excavation, he submitted:

"Whilst the use of the word 'excavation' may be technically correct as earth was certainly removed from the footprint of No 3, it serves only to inject an unnecessary element of drama into the award."

 

He concluded by submitting in paragraph 19:

"The paragraph is both inaccurate and overly dramatic, served only to unnecessarily worried the respondent, and should be struck out."

 

48.            In paragraph 17 of his skeleton argument Mr Frame submitted:

"This clause in the award is a correct statement of fact. The appellant obfuscates by referring to the consent provided by No 2 for his works ... The appellant commenced demolition of the property at No 3 in April 2015."

 

In paragraph 18 he submitted:

"Excavation works were also conducted prior to any award being made and served, such works falling within the remit of section 6 of the Act. The appellant admits to the fact of the excavations that took place in his third skeleton argument ...

 

In paragraph 19 he submitted:

"Further, it is perfectly proper that an award records works which have been conducted and which are works to which the Act relates, irrespective of whether or not such a clause 'reads as a criticism' ..."

 

49.            As regards demolition: it is to be recalled that on 18 April 2015 Mr Porter wrote a long letter by e-mail to Mr Mulvaney in which he wrote "... I shall be on site on Monday 20 th of the week and we will be demolishing No 3 ..." (see paragraph 17 above). It is to be noted that Mr Porter did not proffer any explanation in that letter to his building surveyor that such demolition would be confined to the side of No 2. The letter was written in connection with issues regarding Nos 4 & 3. I reject any assertion by Mr Porter that he only demolished No 3 on the side of No 2 at that time: such an assertion is simply inconsistent with the context and content of this letter to Mr Mulvaney of 18 April 2015. Such an assertion is also inconsistent with Mr Porter's own reference to this wall as being a party wall in paragraphs 3 and 7 of his further information at page A/230.

 

50.            As regards excavation: I accept Mr Frame's submission that the content of paragraph 15 of Mr Porter's skeleton argument effectively amounts to a concession by Mr Porter that he had indeed commenced excavation before any award had been made.

 

51.            In my judgment there is no merit in this ground of appeal, and accordingly it fails.

 

52.            Clause 1 (d)

This is a repetition of Mr Porter's submission that the wall between Nos 4 & 3 is not a party wall. For the reasons set out in paragraphs 39 - 45 above, I reject that submission.

53.            Clause 1 (f)

Clause 1 (f) provides:

"That additional photographs taken by the adjoining owner's surveyor on 9 April 2015 are held on the file of the two surveyors."

 

54.            in paragraph 21 of his skeleton argument Mr Porter submits:

"If such photographs are to form a material element of the award then they should be part of the award and shown as such. They do not feature in the award. It is not known when such photographs were taken except that they were not taken when the appellant was on site. Given the appellant's 'open site' policy it would have been far more helpful if the respondent could have popped round to chat about whatever topic the photographs covered.

The paragraph is superfluous, does no more than increase the cost of the award, and should be struck out."

 

55.            In his oral evidence at the hearing, Mr Biggs explained (DG/44):

"A: At the time of the schedule of condition, both Mr Mulvaney and I took photographs separately. I submitted my photographs to Mr Mulvaney, who prepared the schedule of condition. He incorporated photographs into the schedule which were relevant, but we both had other photographs.

Q: Why mention these photographs?

A: The more relevant photographs were included in the schedule of condition. The less relevant, or those which were duplicated, were not included, but as a matter of fact each surveyor kept a file copy of them."

 

56.            In paragraph 21 of his skeleton argument Mr Frame submitted:

"... There is no express requirement within the Act for surveyors to take a schedule of condition, or that it should form part of an award. Nevertheless it is a wise precaution in the event the damage is caused by the works to the adjoining owner's property."

 

57.            In my judgement there is no merit in this ground of appeal. The surveyors were simply recording that, in addition to the photographs which were attached to the schedule of condition, Mr Biggs had taken other photographs which were held on file by each surveyor. That was perfectly clear statement of a matter of record, and as such is not susceptible to any sensible criticism. I further reject Mr Porter's submission that it was not known when such photographs were taken: the text of clause 1 (f) expressly states that they were taken on 9 April 2015.

 

58.            Clause 2 (a)

Clause 2 (a) provides:

"That fourteen days after the delivery of the signed award the building owner shall be at liberty if he so chooses, but subject to the following information being provided and to the satisfaction of the two surveyors

(a) provision of sufficient numbered and scaled (1:100 and/or 1:50) drawings of the proposed building owner's works

...

shall be under no obligation to carry out the following works:

... "

 

59.            In paragraph 22 of his skeleton argument Mr Porter submits:

"These were provided as early as January/February 2015 to both neighbours and surveyors. For highly qualified individuals to raise objections to plans drawn professionally is nit-picking and therefore a superfluous request. It serves only to add to the cost of the award and should be struck out."

 

60.            In his skeleton argument Mr Frame submits:

"22. The appellant relies ... on the plans and drawings served with a section 1 notice in January 2015 ... these plans show a full enclosure onto the wall of No 4, to a greater extent than the original dwelling. The plans were deemed by the two surveyors to be insufficiently detailed in order to show the relevant construction details on or near the party wall/flank wall of No 4

 

24. Reference is made by the appellant to these (SIP) panels as part of his further information ... sent to the respondent on 27 January 2015. It is stated in the third paragraph ... that one of these panels " will be fixed to battens which will in turn be fixed to my side of our party wall". Such works engage section 2 (2) (f) of the Act . As such it is perfectly acceptable for the surveyor to ask for drawings which explain in detail the new proposed work. Indeed, some two months later, a section 3 notice was served on the respondents ... This notice indicated that sections 2 (2) (f) (j) & (k) would be engaged, which cover works of cutting into and connecting into the flank wall of No 4. However, at the time of making the award, plans and sections for the redesigned works had not been provided.

 

25. Further, the appellant appears to have now accepted in his (second) skeleton argument ... that the provision of such drawings is relevant, but cannot be provided until such time as they are available, due to the requirement for the SIP contractors to conduct a laser measured survey. The survey was conducted in April 2016. The plans for the redesign development appear to have been provided in May ... and/or July 2016. In any event drawings were certainly not available for the redesigned development at the time of making the award in August 2015.

 

26. Clause 2 (a) of the award does not in any event require the provision of such plans immediately; simply that they be provided prior to the commencement of the works. ... It is ... difficult to see any practical reason why such a clause should be challenged."

 

61.            In his oral submissions (DG/45) Mr Frame drew attention to the provisions of section 10 (12) (a) & (b) of the Act. That subsection provides:

"An award may determine

(a) the right to execute any work;

(b) the time and manner of executing any work; and

(c) any other matter arising out of or incidental to the dispute including the costs of making the award."

 

62.            This ground of appeal involves consideration of two matters. The first is whether the surveyors were entitled to request the information sought. Section 10 (12) of the Act gives a wide jurisdiction to party wall surveyors to determine not just the right to execute any work, but also "the time and manner of executing" such work. As a consequence, party wall surveyors are entitled to require the parties to provide them with sufficient material in order to enable them to make an award determining such matters. I find that the material provided by Mr Porter in April 2015 was insufficient for those purposes, and accordingly the party wall surveyors were acting well within their jurisdiction in requesting such information. I therefore accept Mr Frame's submission in paragraph 24 of his written submissions; in my judgment, as regards the method of fixing the SIP panel to the wall, the party wall surveyors were not only entitled, but in the circumstances of this case were under a positive obligation, to ask for information which explained the proposed method of construction.

 

63.            The second point is that a building owner in the position of Mr Porter is not precluded from carrying out permitted works by also being required to provide such information. So long as such information is provided, a building owner may (subject to compliance with any other material condition) carry out such permitted work.

 

64.            Clause 2 (b)

Clause 2 (b) states that the building owner is to provide:

".. drainage plans and details to the proposed works"

 

65.            In paragraph 23 of his skeleton argument Mr Porter combines criticism of this sub-clause with criticism of the following sub-clause 2(c). It is however convenient to consider clause 2 (b) in this section of the judgment, and to consider the following sub-clause in the next section of the judgment. Mr Porter submits:

"The appellant has been unable to comply with the points until the arrangement shown on final plans which are now in the possession of the respondent. Finalising the details has involved protracted negotiations with Welsh Water and the architectural designer.

The reference to a 14 day period was therefore unrealistic from the outset. The surveyors should have made enquiries of the appellant to explore the progress of these issues. No such enquiries have been made and, as the documents show, repeated invitations to hold site meetings have been declined."

 

66.            In paragraph 27 of his skeleton argument Mr Frame submits:

"No 4 it is built off little to no foundations ... with three courses of brick footings laid directly on earth .... As such the excavations for the discharge of foul, grey and surface water will inevitably engage section 6 (1) of the Act. The fact that " the works entail no interference or changes to the property of the respondent" and "all take place in the footprint of No 3" as stated in the appellant's (second) skeleton argument ... is irrelevant for the purposes of section 6 of the Act."

 

67.            It is to be noted, and I find, that Mr Mulvaney explained the need for such details to Mr Porter in his e-mail dated for May 2015 (page A/269). I accept Mr Frame's submissions on this ground of appeal.

 

68.            As regards Mr Porter's reference to the 14 day period identified in the opening phrase of clause 2 of the award: Mr Biggs explained in his oral evidence that this reflected the 14 day period provided for in section 10 (17) of the Act within which an appeal against an award could be commenced. In other words, the party wall surveyors intended there to be a moratorium of 14 days after service of the award within which the adjoining owner could commence an appeal if she so wished and/or was so advised, and within which the building owner could not commence any of the permitted work. Although such a provision is not apparent in paragraph 2 of the form of draft award set out at appendix D to the RICS ' Guidance Note on Party Wall Legislation and Procedure', 6 th edition (GN27/2011), nor in the equivalent paragraph in the draft award annexed to ' The Party Wall Act Explained' , which is a commentary on the Party Wall Act published by the Pyramus and Thisbe Club, 2 nd edition apparently published in 2006 , and colloquially referred to as the " Green Book", one such does appear in the form of draft award included as a precedent in ' Bickford Smith & Sydenham: Party Walls: Law and Practice' 3 rd edition. In my judgment its inclusion is not only sensible, but generally desirable, reflecting as it does the relevant statutory provisions governing the commencement of an appeal against such an award.

 

69.            In my judgment Mr Porter is misguided in his submission that reference to such a 14 day period was "unrealistic from the outset". This was not a stipulation of the period within which he was to provide this information; instead it was a stipulation of the moratorium following service of the award within which he was not permitted to commence any of the permitted works.

 

70.            Clauses 2 (c) (e) & (g)

These sub-clauses state that the building owner is to provide:

"(c) ... a method statement and/or drawing details of the roof abutment between the two properties

(e) ... section drawing of the proposed building owner's front elevation extension abutting the adjoining owner's property

(g) ... external wall abutment details to the front and rear external walls."

 

71.            In his first skeleton argument, as regards clause 2 (c), Mr Porter submitted (page A/80B):

"(Mr Mulvaney) was informed in correspondence in March 2015 that the new build would not be joined (abut) to the wall of (Mrs Morgan). Instead a revised form of construction, as recommended by ... building control, is being utilised, which will create a small void between the side elevations and roof lines of the two properties. Asking for details of a roof abutment that will not exist it is ultra vires and cannot be complied with."

In his first skeleton argument, as regards clause 2 (e), Mr Porter submitted:

"For the reasons outlined at 2 (c) above, the front extension walls of the development will not abut the wall of (Mrs Morgan). Asking for these details that will not exist is ultra vires and cannot be complied with."

 

Mr Porter made a like submission in his third and final skeleton argument as follows:

"The surveyors were informed in a letter dated 28 April 2015, and therefore well before the preparation of the award, that the front elevation would no longer be joined to the respondent's property. Instead a SIP panel wall would be placed parallel to the respondent's property but would not touch it. This course of action was recommended by the building inspector as a means of resolving the problem.

 

The works referred to will never take place and not therefore notifiable. The surveyors do not have jurisdiction to resolve this point and the demand is ultra vires. It is of no consequence, superfluous, as to the cost of producing the award and should be struck out."

 

In his first skeleton argument, as regards clause 2 (g), Mr Porter submitted

"See 2 (c) and (e) above. This is virtually the same request being repeated. The answer is the same."

 

In his third and final skeleton argument Mr Porter further submitted:

"This sentence is incomprehensible, serves only to add to the cost of the award and should be struck out. In the alternative, as no abutment (joining) is taking place, as was known to the surveyors at the time of writing, then it is superfluous and should be struck out."

 

 

72.            In his skeleton argument Mr Frame submits:

"28. The appellant relies on the fact that (his) revised proposed works no longer entail a connection with the flank wall of No 4, and that there will now be a small void between the side elevations of the properties. The fact remains that the former internal party wall has now been permanently exposed, contrary to section 2 (2) (n) of the Act and adequate weathering needs to be agreed. This is evidenced by the fact that damp is now said to be penetrating through the wall into No 4 .... This therefore includes a weathering detail for the top of the void where the walls stand, which will also be required to prevent the accumulation of debris in the void between the walls ...

29. The appellant's interpretation of the word ' abut' ... is not agreed ... insofar as he asserts that 'abut' means ' to join' or' to connect to'. Further, it is submitted that a freestanding wall built up against the respondent's flank wall with a small void in between, is nevertheless a " wall erected against the wall or building of an adjoining owner" for the purposes of section 2 (2) (h) & (j) of the Act. Mr Mulvaney explained to the appellant that details of such an abutment would be required ..."

 

73.            The construction details of the way in which the proposed development of No 3 abutted, or joined, or connected to, No 4 were at all material times before the surveyors made their award, those shown in drawings prepared by Plan-It, both in the set of drawings dated 14 May 2014 at pages A/212-218, and in the set of drawings dated for November 2014 at pages A/219-222. It is the fact, and is common ground, that those drawings do not depict what Mr Porter now proposes to construct. They have been superseded by the set of drawings correctly to be understood as being dated 6 June 2016 at pages B/343A-E.

 

74.            There was, in addition, a material difference between the construction notes in the set of drawings dated 14 May 2014, which referred to walls being constructed using the Structural Insulated Panel System (see the proposed elevations drawing at page A/215), and the construction notes on the set of drawings dated 4 November 2014, which referred to walls being constructed as cavity walls, with an outer leaf of concrete blocks, and inner leaves comprising both masonry walls and timber frame walls (see the proposed sections drawing at page A/219). Such a difference was plainly capable of causing confusion; at the very least it called for clarification and/or a full and adequate explanation. It is hardly surprising that in such circumstances party wall surveyors would require clarification of the details of the relationship between Nos 4 & 3 as regards the construction of the new roof of No 3, the front elevation of No 3 and/or the front and rear external walls of No 3.

 

75.            In addition, I accept Mr Frame's submission in paragraph 28 of his skeleton argument that, because the former internal party wall has now been permanently exposed, it is necessary for adequate weathering details to be agreed. These are precisely the sort of details which Mr Porter should provide to the two building surveyors.

 

76.            I reject Mr Porter's submission that his revised plans avoid any 'abutment': it is plain from the latest set of drawings that there is at least one point where the SIP panels will join the flank wall of No 4 at the front. I have concluded that in general Mr Porter's submissions as regards these sub-clauses rather miss the point, namely that in the circumstances which obtained at the time they were preparing award, the party wall surveyors reasonably required the sort of details which I have described in the last sentence of paragraph 74 above.

 

77.            For all those reasons I reject these grounds of appeal.

 

78.            Clauses 2 (d) & (f)

Clauses 2 (d) & (f) state that the building owner is to provide:

"(d) .... a revised design to rectify the 'trespass' issue caused by the proposed over sailing of the building owner's roof guttering to the adjoining owner's property

(f) ... a revised foundation layout to rectify the 'trespass' issue caused by the indicated boundary line shown on the drawing referred to in section 1 (g) above."

 

79.            In his skeleton argument Mr Porter submits:

"24. (In the interest of goodwill the final plans show a bathroom window arrangement which obviates the need for such a gutter.

However, alleged trespass is not a party wall issue. It is a civil matter which, given the trivial nature of this complaint should it ever had been pursued in the court, would likely have attracted a token amount of damages.

It should not feature in the award. His inclusion is therefore ultra vires, superfluous, as the cost of producing the award, and should be struck out

 

27. The appellant is unable to identify any such trespass and none is identified in the award. No underpinning was carried out for the installation of the concrete blocks. It may simply be an error in the original plans. The foundations for the rear extension are all in place and are well within the footprint of No 3.

Yet again this is a simple issue that could have been resolved by a surveyor or the respondent troubling to visit the site."

 

80.            In his skeleton argument Mr Frame submits:

"31. It is accepted that party wall surveyors have no jurisdiction to award any form of relief for trespass ... However, that is not what clause 2 (d) is seeking. The surveyors have jurisdiction to authorise what works can and cannot be conducted, as per section 10 (12) (a) of the Act. The works for the rear extension as proposed by the appellant in the sectional drawings supplied with the January 2015 notice constitute a trespass, in that the guttering eaves and indeed the foundations to the flank wall of the proposed rear extension, will encroach beyond the boundary and into the airspace of No 4. This issue was raised by Mr Biggs with his counterpart Mr Mulvaney... The appellant maintained that the trespass was de minimis and therefore he would not redesign ... It has not been addressed to the satisfaction of the two surveyors, and it would plainly be wrong (negligent?) of them to authorise works which constitute a trespass.

 

32. Similarly ... the sectional drawings for the proposed rear extension where a new wall is being built on the line at the junction (the section 1 works) show the foundations of that wall encroaching beyond the boundaries between No 3 and No 4. The appellant has not demonstrated that such projecting foundations are necessary, and as such they cannot be permitted under the Act. Accordingly, the appellant was wrong to assert that 100% of his works are within the footprint of his land. Again this issue was raised by Mr Biggs with ... Mr Mulvaney ..."

 

81.            These matters have now been overtaken by events: since the award was made, Mr Porter has in fact redesigned his proposed works so that neither of these aspects of the proposed works will cause any trespass to No 4.

 

82.            Notwithstanding that, as regards "the manner of executing any work" the party wall surveyors were plainly entitled, and in the circumstances of the case were under a positive duty, to ask for information which explained the precise nature of the construction of these elements of the proposed works. In those circumstances I reject both these grounds of appeal.

 

83.            Clause 2 (h)

Clause 2 (h) is in fact that part of clause 2 which sets out the permitted works. As I observed in the course of the hearing, the use or inclusion of the letter (h ) in the text of this clause is superfluous. It states that Mr Porter as the building owner is permitted:

"To demolish all of the existing structure to No 3 King Street including external walls abutting the party wall. Excavate and reduce existing ground levels and construct new load bearing walls with concrete foundations including new ground floor construction abutting and enclosing the existing party wall and all other associated works to be identified on the drawings referred to in section 2 (a) above."

 

84.            In his skeleton argument Mr Porter submitted:

"At the time of writing the award ... the SIP method of construction had been known to the surveyors since late April 2015, together with the core fact that no wall of the new No 3 would be joined (abut) to the existing walls of No 4.

While the appellant is grateful for the brief summary of parts of the proposed build, the 'retrospective permission' it is difficult to follow given the preceding objections to some of the same factors, in particular - foundations and excavating for the new floor slab.

The paragraph serves no purpose and should be struck out. In the alternative the earlier objections to the works mentioned at 2 (h) should be struck out.

 

85.            In paragraph 33 of his skeleton argument Mr Frame submitted that this clause set out the permitted works, and that "without such a clause the award would be an irrelevant document". I accept that submission, and accordingly reject Mr Porter's submission that this paragraph serves no purpose and should be struck out for that reason.

 

86.            In paragraph 34 of his skeleton argument Mr Frame then submitted:

"The appellant states that 'the SIP method of construction had been known to the surveyors since late April 2015'. The SipsEcoPanels drawings were made up in July 2016, 11 months after the award was made."

 

87.            Those drawings are at pages B/341-342; they are each dated 14 July 2016. They were self-evidently prepared after the measured survey was carried out in April 2016: see the drawings of Ball & Co, chartered building surveyors, at pages B/339-340. Mr Porter contends that "the SIP method of construction had been known to the surveyors since late April 2015'. However in my judgment at that time the surveyors did not have any, or any sufficient, detail of the SIP method of construction. It is one thing for party wall surveyors to appreciate in general terms that a "SIP method of construction" is envisaged by the building owner; it is quite another thing for party wall surveyors to know what the construction details are of such a method of construction. It will be a matter for the surveyors to determine whether or not provision of the details contained in the recent SipsEcoPanels drawings satisfies the requirement for Mr Porter to provide the information set out in clauses 2 (a) and/or (e) of the award.

 

88.            For all those reasons, I reject this ground of appeal.

 

89.            Clause 4 (c)

 

Clause 4 (c) provides:

"That if the building owner exercises the above rights he shall ...

(c) ... provide temperate weather protection (felt and battens) to the exposed party wall of No 4 King Street for the duration of the proposed works or until such time that the party wall is fully enclosed by the new building of No 3 and to the satisfaction of the said two surveyors."

 

90.            In paragraph 31 of his skeleton argument Mr Porter first submitted that the wall in question is not a party wall. I have already found that it was a party wall: see paragraph 45 above. Mr Porter goes on to submit:

"... Therefore the weather protection has never been necessary as the actual party wall is not exposed to the weather. Further the bedroom wall of No 3 already has a render of cement which in turn is covered by a thin layer of plaster and is therefore in itself weatherproof.

This detail was available to the surveyors at the time of writing. It is therefore superfluous, not notifiable under the Act, adds to the cost of the report and should be struck out.

It is yet another indication that the actual conditions on the site never investigated by either surveyor."

 

91.            In paragraph 35 of his skeleton argument Mr Frame submits:

"... The surveyors have determined that the party wall that has been unlawfully exposed by the appellant should be temporarily covered until such time as it is enclosed again. Section 2 (2) (n) of the Act provides that a previously enclosed wall such as this should only be exposed subject to the provision of adequate weathering. Had the appellant complied with the law, the wall would not have been exposed (i.e. demolition not commenced) until such time as the award had been made and served. It therefore ill befits the appellant to accuse the surveyors of negligence in not having appraised themselves of works which the appellant should not have conducted until he had acquired the relevant statutory authority under the Act. It is noted that the appellant has in fact further removed the previously internal plaster from the wall and apparently re-pointed it, again conducting works to the party wall which are unauthorised. The exposure of the wall to the elements caused by the demolition of No 3 and the subsequent removal of plaster is now said to be the cause of damp penetration into the home of the respondent."

 

92.            In the course of his cross-examination of Mr Biggs (DG/38) Mr Porter asserted that he had in fact installed felting to the wall, but that it then blew down. I accept that evidence: it indicates an understanding or appreciation on Mr Porter's part that the wall did in fact require protection.

 

93.            In my judgement this was an eminently appropriate provision for the party wall surveyors to include in their award. I accept Mr Frame's submissions on the point. Accordingly this ground of appeal fails.

 

94.            Clause 4 (g)

 

Clause 4 (g) provides:

"That if the building owner exercises the above rights he shall ...

(g) ... permit the adjoining owner's surveyor to have access to the building owner's premises (the site) at all reasonable times during the progress of the said works. Permission to such access shall not be unreasonably withheld."

 

95.            Between paragraphs 32 and 39 of his skeleton argument Mr Porter makes a number of submissions under this ground of appeal. He refers to his 'open site' policy in paragraph 32; to difficulties in meeting with the surveyors in paragraph 33; to a disinclination on the part of Mr Biggs to meet Mr Porter in paragraph 34 ; to site visit is not being made in paragraph 34, and asserts that the level of access which he afforded exceeded the provisions of section 8 (5) & (6) of the Act. He concludes by submitting in paragraph 39:

"The surveyors are therefore ultra vires in attempting to grant themselves rights of access in excess of those provided for in the Act, the more so as they both failed to take advantage of their rights under the Act as well is the appellant's warm welcome should they have troubled themselves to visit.

The clause is superfluous, has added to the cost of the award and should be struck out."

 

96.            In paragraph 36 of his skeleton argument Mr Frame submits that this clause is a standard access clause, and further submits:

" ... such a clause is recommended in the RICS ' Guidance to Party Wall Legislation and Procedure' ... such access is not provided for by the access provisions in section 8 of the Act, but is nevertheless envisaged by the Act in section 10 (13) (b). Hence the need for such a clause

37. Additionally, the fact that to date the appellant has been content to allow access does not negate the need for a clause in the award which provides for such access in the future when the works are being conducted. There are no guarantees as to what level of access may or may not be provided to Mr Biggs in the future by the appellant. The access clause is a perfectly sensible and standard clause to include in any party wall award."

 

97.            I find that what Mr Porter meant by his 'open site' policy was that, on the occasions when he was present at the site, anyone could visit the site. That is not the same thing as permitting party wall surveyors reasonable access to the property. There is also some dispute as to whether or not Mr Porter gave his surveyor, Mr Mulvaney, a key to No 3 so as to afford access to the property. Mr Mulvaney was not called as a witness in the appeal. However, in the course of his cross-examination, when questioned about access, Mr Biggs stated that Mr Mulvaney had made no mention of his having such a key. I accept that evidence.

 

98.            In my judgment none of the points which Mr Porter raises under this ground of appeal establish that it was unreasonable or inappropriate for the party wall surveyors to include what I find was a standard access clause within the award. To the contrary: irrespective of what informal arrangements might have obtained up to the date of the award, the surveyors were acting entirely within their jurisdiction in including such a clause in their award. Accordingly this ground of appeal fails.

 

99.            Clause 4 (l)

 

Clause 4 (l) provides:

"That if the building owner exercises the above rights he shall ...

(l) Pursuant to section 2 of this award the building owner ... pay section 11 (11) 'expenses' to the adjoining owner in the sum of £1,790 ... for the right to enclose the portion of the adjoining owners external wall which has been deemed not to be a party wall by the said two surveyors."

 

100.            In the course of the hearing Mr Porter told me that it was the inclusion of this clause in the award that led him to decide to appeal the award: see paragraph 42 of his skeleton argument. However, when cross-examining Mr Biggs, Mr Porter stated that he read this clause as imposing on him an unfettered requirement to pay these expenses. The relevant exchange was as follows (DG/40):

"Q: I read it that 'I shall pay ...'

A: Only if you enclose the wall i.e. this is a payment you would make for the right to enclose."

 

101.            In my judgement Mr Porter has misread this clause. It does not impose on him and open-ended or unfettered obligation to pay these expenses irrespective of what course of action he undertakes. Instead it states that if, and only if, he does work which ".... enclose(s) the portion of the adjoining owners external wall which has been deemed not to be a party wall..." then, and only then, he becomes liable to pay expenses to the adjoining owner in the sum of £1,790.

 

102.            In those circumstances it is not necessary for me to set out the detailed submissions which Mr Porter made in his skeleton argument in respect of this ground of appeal. Nor is it necessary for me to set out many of the submissions of Mr Frame in answer. However in paragraph 40 of his skeleton argument Mr frame made a further submission:

"The appellant states that he has redesigned his works so that the wall is not 'enclosed upon'. Whilst 'enclose' is the term used in clause 4 (l) of the award, the right to payment in section 11 (11) of the Act 'relates to use of work' carried out solely at the expense of the other owner. Until such time as the appellant provides plans and drawings which demonstrate that there will be no such 'use' of the respondent's wall, the provision within the award is a perfectly acceptable one."

 

103.            I accept those submissions. Accordingly, for all the reasons set out above, this ground of appeal fails.

 

104.            Clause 8

 

Clause 8 provides:

"That the signed awards shall be delivered forthwith to the appointing owners. An unsigned copy of the documents shall be provided for the adjoining owner's surveyor. Additionally the building owner shall be responsible for delivering a copy of the award to the appointed contractor prior to the commencement of the works."

 

105.            As Mr Frame observed, Mr Porter does not refer to this clause in his final third skeleton argument. However in his first skeleton argument (page 80C) he submitted:

"Both the (surveyors) are fully aware that the project is being carried out as a self -build. There is no contractor to whom the appellant can deliver a copy of anything. This paragraph cannot be complied with. It is evidence of a formulaic construction of the award."

 

106.            In paragraph 45 of his skeleton argument Mr Frame submits:

"... this clause in the award remains applicable in the event that the appellant instructs a contractor to undertake the works or part of it. It is therefore a sensible precautionary requirement in the event that the works are conducted by others. In the event that the appellant does conduct the works entirely himself the requirement will have already been fulfilled. It does however seem obvious that the appellant will not be conducting all the works himself, and that there will be other contractors employed."

 

107.            Mr Porter's objection to this clause is misconceived. The obligation imposed by the clause on the building owner is for him to deliver a copy of the award to any appointed contractor. If there is no appointed contractor, then there is no such obligation. A nice point arises in the circumstances of the present case where Mr Porter has employed two labourers to work for him on the site. In my judgment it would be at least prudent of Mr Porter to provide those labourers with a copy of the award. If it is necessary, I would go on to hold that Mr Porter is under a duty to provide any person he employs to do work for him on the site with a copy of the award. Accordingly, for the reasons set out above, this ground of appeal fails.

 

108.            Clause 9

 

Clause 9 provides:

"That upon signing this award the building owner shall immediately pay the adjoining owner's surveyor's fees of £2,352.13 plus VAT (£470.43) in connection with the obtaining, making and serving this award. To review information required to comply with this award or in the event of damage being caused or other contingencies or variations arising, a further fee shall be payable at the rate of £100 plus VAT per hour and disbursements."

 

109.            Between paragraphs 43 and 47 of his skeleton argument Mr Porter makes a number of submissions under this ground of appeal. In particular he submitted in paragraph 43 that:

"No clause in the Act provides for the payment of fees to be included in an award."

He further submits in paragraph 45:

" ... the Act fails to make clear how costs are paid. What is the mechanism? The Act is loosely worded and falls silent on the point. It cannot be argued that such vague wording constitutes a discreet and self-contained statute.

In the absence of the Act ... setting out the mechanism of our fees are paid, it is arguable that the statute should be subjected to the normal rules of contract law ...

 

110.            In paragraph 47 of his skeleton argument Mr Frame submits:

"Surveyors costs in making an award can be included within the award and are payable by such of the parties as the surveyors determine in accordance with section 10 (12) (c) and 10 (13) (a) of the Act. In this instance the two surveyors have determined that the appellant should pay Mr Biggs the sum of £2352.13 plus VAT, and Mr Biggs is perfectly entitled to seek payment from the appellant directly. The Act is a discrete and exhaustive statutory code which supplants the common law. Accordingly there is no need for a contractual relationship between Mr Biggs and the appellant for the appellant to be liable for Mr Biggs' costs. This approach was confirmed in a recent administrative court case of Farrs Lane Developments Ltd v Bristol Magistrates Court [2016] EWHC 982 (Admin).

 

111.            I reject Mr Porter's submission that "no clause in the act provides for the payment of fees to be included in an award". Section 10 (12) (c) of the Act provides:

"An award may determine -

(c) any other matter arising out of or incidental to the dispute including the costs of making the award"

 

Section 10 (13) immediately following provides:

"The reasonable costs incurred in

(a) making or obtaining an award under this section;

(b) reasonable inspections work to which the award relates; and

(c) any other matter arising out of the dispute,

shall be paid by such of the parties as the surveyor or surveyors making the award determine."

 

I also reject Mr Porter's submission that there has to be a contractual relationship between himself and Mr Biggs; instead there is a statutory framework which enables party wall surveyors to determine that the reasonable costs incurred in making or obtaining an award "shall be paid by such of the parties as the ... surveyors making the award determine". Here the surveyors decided that Mr Porter was to pay Mr Biggs' fees in the stated sum.

 

112.            I accept Mr Frame's submission that Mr Biggs' costs are reasonable. Mr Biggs provided Mr Mulvaney with a breakdown of those costs; Mr Mulvaney agreed that they were reasonable. That is the evidence in the appeal, and absent any evidence to the contrary, or anything plainly and obviously unreasonable in the figures themselves, I find that Mr Biggs' costs which he incurred in making or obtaining this award were reasonable. Accordingly, for the reasons set out above, this ground of appeal fails.

 

113.            Matters alleged to be omitted: ingress of water and bulge in the rear garden wall

In paragraphs 48 and 49 of his skeleton argument Mr Porter makes some introductory submissions in respect of these grounds of appeal. He then makes submissions as regards the alleged failure of the surveyors to include matters relating to an ingress of water between paragraphs 50 and 56, and as regards the alleged failure of the surveyors to include matters relating to a bulge in the rear garden wall in paragraphs 57 & 58.

 

114.            So far as the alleged ingress of water is concerned, in paragraph 50 of his skeleton argument Mr Frame submits:

"The appellant asserts that the rear boundary wall is a party (fence) wall, namely sitting astride the boundary. The appellant has not however provided any admissible or meaningful evidence to prove such an assertion. Further, the issue the appellant complains of has nothing to do with this wall, irrespective of its status. The issue is a common law one, involving the alleged escape of water from the respondent's land at No 4 onto the appellant's land at No 3. The damage alleged is the filling of a hole excavated for the purposes of foundation. Again, it should be noted that such excavation works should not have been conducted prior to the award being made and served, and are notifiable works pursuant to section 6 of the Act. The appellant's complaint about 'damage to the appellant's property' is therefore actually about water that was allegedly discharging into his unlawfully conducted excavations. On any view this is not a matter that falls within the remit of the Act and is outside the jurisdiction of the surveyors toward upon."

 

115.            So far as the alleged bulge in the rear garden wall is concerned, in paragraph 52 of his skeleton argument Mr Frame submits:

"Insofar as the wall is not a party wall, or has not been proved to be a party wall, then rectifying a bulge in it cannot be a party wall matter. It was therefore not within the surveyors' jurisdiction to deal with such... "

 

116.            In his witness statement Mr Biggs stated as regards both the water escape and the Openreach cables (page A/124):

"These matters fall outside of the Act and hence outside the surveyors' jurisdiction. It would have been incorrect to include in the award."

 

117.            I accept Mr Frame's submission, and the implicit submission contained in Mr Biggs' evidence. Nuisance does not fall within the subject matter of the Act, and no evidence was adduced in the appeal to establish that the rear garden wall was in fact a party wall. For those reasons, these grounds of appeal fail. In any event, I note that these matters have now been resolved to the parties' satisfaction: see both paragraphs 51 and 56 of Mr Porter's skeleton argument, and the final sentence of paragraph 52 of Mr Frame's skeleton argument.

 

118.            Matters alleged to be omitted: Openreach cables

While this was a matter which Mr Porter advanced in his first skeleton argument dated 21 October 2015, he makes no reference to it in his final skeleton argument prepared in August 2016. At the hearing of the appeal, Mr Porter accepted that this matter did not fall within the ambit of the Act. Accordingly this ground of appeal, where to be pursued, would fail. In any event Mr Frame informed me in the course of his closing submissions this matter is also currently being resolved by agreement between the parties.

 

119.            Matters alleged to be omitted: over-sailing aerial

This was another matter which Mr Porter advanced in his first skeleton argument, but no longer pursues in his final skeleton argument.

 

120.            In his skeleton argument Mr Frame submits:

"54. It is accepted that the respondent's aerial fixed to her flank wall over-sails the appellant's land at No 3. The appellant's analysis of section 2 (2) (g) is also a correct one.

55. Further, section 9 of the Act provides that the Act cannot authorise interference with easements. The respondent accordingly reserves her position as to whether she has acquired an easement to over-sail her aerial by virtue of long use."

 

121.            Further, in paragraph 56 of his skeleton argument Mr Frame stated that:

"... the issue of the aerial has been resolved, with the respondent providing consent for it to be removed. The (appellant) does not now appearing to be pursuing this argument."

 

In the course of his closing submissions Mr Frame stated that this was no longer a matter in issue between the parties, and Mr Porter confirmed that was so. In circumstances where this ground of appeal is no longer being pursued, it will be dismissed.

 

122.            Overall conclusion

For the reasons set out above, this appeal fails. I shall therefore approve the award, with a modification to clause 11 that the award shall be null and void if the permitted works are not commenced within 12 months from the date when this judgment is handed down.

123.            I shall also hear submissions from the parties as to costs when the judgment is handed down.

 

DG

13.10.16

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