1.An appeal is a rehearing

An appeal against a party wall award under s.10(17) Party Wall Act 1996 (‘the Act’) will usually be a rehearing. That means that the Judge conducting the appeal considers all the issues afresh and in doing so may take into account any matter relevant to the issues at stake whether dealt with by the Award or not. Occasionally the appeal may proceed by way of a review rather than a rehearing. This will usually be where there are purely technical legal matters in issue. In a review hearing it will not be possible for the appellant to reopen decisions in the Award made on the facts. Appeals by way of review are rare.

2. However, although the appeal may be rehearing, there is no point at all in appealing an Award on a ‘I don’t like the result and I’d like another go’ basis. There is a strong presumption that the Party Wall Surveyor(s) got it right, and an Owner wishing to appeal should aim to show either that there is some technical flaw in the process leading to the Award or that something went wrong in the surveying, engineering or legal reasoning leading to the Award.

3. Essential background matters

There are three essential background matters which any intending appellant must bear in mind before launching an appeal.

First; the Act grants rights to Building Owners. Most of these rights are set out in s.2 of the Act and relate to works carried out to an existing party wall. An Adjoining Owner (or occupier) may be upset that his neighbour has these rights and wishes to make use of them, but no Party Wall Surveyor or Court may take these rights away. There is no purpose in launching an appeal which in effect is a complaint that the Building Owner is exercising his statutory rights. However, having granted rights to the Building Owner the Act controls the way in which those rights may be exercised. This control is in part statutory, but is essentially through the making of an Award by Party Wall Surveyors.

It is the way in which the Building Owner’s rights are exercised, not the fact of the existence of the rights, that may be the subject of an appeal.

4. The second essential background matter is the role of the Party Wall Surveyor. In the ordinary course both Building Owner and Adjoining Owner will appoint a surveyor. But that surveyor is not there to act as an advocate for the appointing owner, although he should ensure that the appointing owner’s interests are protected. The Party Wall Surveyor is in a quasi-judicial position, and must act in a manner in which a judge would act, favouring neither one side or the other when resolving any contentious matter. As it is sometimes put, ‘the party wall surveyor owes his duty to the wall’. (Although it should be pointed out that the Award may not always deal with works to the party wall itself.) It is the responsibility of the Party Wall Surveyor to ensure that the Building Owner’s works, when completed, leave the party wall and/or the Adjoining Owner’s land and premises in a safe and sound condition, and that the works are carried out safely and without causing unnecessary inconvenience to the Adjoining Owner. It follows that an appeal which, in essence, is a complaint that “My Party Wall Surveyor did not make the Award that I wanted” is doomed to failure.

An owner-appointed Party Wall Surveyor acts in a quasi-judicial capacity; his role is not simply to advance the interests of the owner who appointed him.

5. The third essential background matter is that the Act, and the Party Wall Surveyor, is concerned only with those building works which relate to matters arising under the Act. The Building Owner’s works will frequently extend well beyond party wall matters, eg the construction of an extension or the general refurbishment of the property. Any complaint the Adjoining Owner may have as to those works of the Building Owner which do not come within the terms of Act are governed by the common law and not the Act.

Works to which the Act does not relate cannot be the subject of an Award, and accordingly cannot be the subject of an appeal under the Act.

6. Technical flaws.

A technical flaw in the appointment of a Party Wall Surveyor or in the procedure leading to the Award or where the Party Wall Surveyors exceed their remit under the Act may well be the basis of an appeal. But an intending appellant does need to think carefully whether a successful appeal on a technical matter will in the long run result in a different result. A flawed process may have to be repeated, but if the result is the same or very similar Award being made properly the appealing party is unlikely to be any further forward.

7. Safety and security.

Appeals which challenge the safety and security of the finished structure, or of the buildings and occupants as the works progress, will have their own intrinsic merit. Such appeals will however almost invariably require expert advice and assistance.

8. Inconvenience.

The Act provides that a building owner must not exercise any statutory right “in such a manner or at such time as to cause unnecessary inconvenience to any adjoining owner or to any adjoining occupier”, s 7(1). The word ‘unnecessary’ is important. The Act recognises that building works are frequently an inconvenience to a neighbour. A successful appeal will require the appellant to show that the inconvenience he has suffered goes beyond that which will inevitably arise from the proposed works carried out in a careful and proper manner.

9. Loss and Damage.

The Act provides a statutory right to compensation to any Adjoining Owner or occupier “for any loss or damage which may result to any of them by reason of any work executed in pursuance of this Act”, s 7(2). Where the Owners cannot resolve such matters between themselves, it is part of the role of the Party Wall Surveyor to determine whether there has been any such damage, and what is necessary by way of remedial works. Such a determination has to have regard to common law principles governing the assessment of damage.

Where damage has been caused by the works, the Building Owner may be required to repair the damage, but the Adjoining Owner has the right to do the work himself in which event the Party Wall Surveyor must determine the appropriate cost of the work which is then charged to the Building Owner. Arguments as to the cause of damage and or the cost of putting it right are suitable issues to be taken on appeal. Other than physical damage, the Adjoining Owner must also be compensated by the Building Owner for losses incurred as a result of the works. Such losses may also include unnecessary inconvenience caused by the works, see above, as well as damage to the Adjoining Owner’s property or chattels.

10. Security for Expenses.

Where the Building Owner’s proposed works carry a real (as opposed to fanciful) risk of damage to the Adjoining Owner’s property it is open to the Adjoining Owner to serve a notice before the start of the work requiring the Building Owner to provide security for expenses. Such a security may be by way of a bond, or a payment of a sum of money to an independent stakeholder, or in some other suitable manner. A dispute as to whether security for expenses should be given or, if so, in what sum or manner must be determined by an Award, and this determination may properly be the subject of an appeal.

11. Party Wall Surveyors’ Costs.

The Party Wall Surveyors’ costs in making the Award are usually included in the Award. In the normal course the Building Owner will have to pay the costs of both surveyors, as the works are for his benefit. However, an Adjoining Owner who behaves obstructively or unreasonably may also be made liable for some of the surveyors’ costs. Either way, the paying party may be dissatisfied at the amount of those costs. The amount of costs any surveyor is awarded may also be the subject of an appeal.
The Act provides that the surveyors’ costs must be ‘reasonable’ in relation to the making of the award, proper inspections of work to which the award relates and any other matter arising out of the dispute between the owners. Generally speaking, costs will be reasonable if they are proportionate to the scale and complexity of the awarded works. But additional costs may be incurred arising out of any demands placed upon the surveyors by the owners. The court will usually require expert evidence in such appeals in order to determine the reasonableness or otherwise of party wall surveyors’ costs.

12. Legal Advice.
These observations cannot possibly cover all the possible aspects of an Award that might be the subject-matter of an appeal. Owners contemplating an appeal should seek advice, always remembering that the time for issuing an appeal is extremely limited, namely 14 days including the day on which the Award is served on the appellant. The Party Wall Mediation Scheme has a list of Direct Access Counsel and Solicitors who are experienced in Party Wall and Boundary matters and who may be contacted to give speedy and expert advice to any owner considering an appeal against an Award.