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Party Wall Questions #12

Saturday, 3rd September 2011 | by: Peter Barry

Question

Does the Adjoining Owner’s surveyor

a)    Have any responsibility to ensure that the design of the notified works is adequate?

b)    Have any power to insist that structural calculations etc. are checked by an engineer acting for the Adjoining Owner and that the Building Owner pays the cost of that engineer’s fees?

Additional information from author of question

In relation to the first point, section 7 (5) (a) states that works executed shall comply with the provisions of statutory requirements. If building control approval has been obtained, whilst BC does not have any liability to the Building Owner for ensuring that design is correct, can the fact that approval has been obtained be regarded as a reasonable assurance that structural design is satisfactory, thereby absolving the AO’s surveyor from any liability if the design subsequently proved not to be satisfactory and damage were caused to the Adjoining Owner’s property?

Specifically, in respect of excavation for foundations, if the BO’s engineer is not proposing to underpin or otherwise strengthen the Adjoining Owner’s foundations, does the Adjoining Owner have a right to obtain independent advice at the BO’s expense, as to whether this is necessary? Section 6 (3) states that:

the building owner may, and if required by the adjoining owner shall, at his own expense underpin or otherwise strengthen or safeguard the foundations of the building or structure of the adjoining owner so far as may be necessary.

Who decides whether such work is “necessary”? Again, can the Adjoining Owner engage an engineer at the Building Owner’s expense to determine the question?

This is another question that was raised at a recent FPWS North London forum meeting which I helped to organise. I would welcome the views of other surveyors. If you are a surveyor involved in party wall matters and would like to attend future meetings please email me at justin.burns@peterbarry.co.uk and I’ll keep you updated.

Comment

As mentioned above, the Act specifically states that the notified works must comply with the provisions of the relevant statutory requirements and the primary requirement is compliance with the Building Regulations. Where a ‘Full Plans’ application is made to Building Control the details of the work will be checked in advance but the Building Inspector’s duty does not extend to checking the quality of the workmanship.

Where compliance with Building Regulations has a direct effect on the Adjoining Owner’s property (and it normally will when the work is notifiable) it follows that the surveyors (there should be no differentiation between the Building and Adjoining Owner’s surveyor)  have a duty to check compliance where possible (often the works are covered up at the time of the final inspection). Whether or not an interim visit is justified will depend on the nature of the works and must be agreed between the surveyors.

As well as checking for Building Regulation compliance the surveyors have a duty to ensure that the works are carried out in a manner that limits the inconvenience to the Adjoining Owner. This is confirmed in Section 7(1) of the Act:

A building owner shall not exercise any right conferred on him by this Act in such a manner or at such time as to cause unnecessary inconvenience to any adjoining owner or to any adjoining occupier.

If an Adjoining Owner’s property gets damaged that is obviously inconvenient so everything possible must be done to avoid that scenario. That will normally include careful consideration of the sequence of the works and possibly checking the structural details and calculations.

Most Party Wall Surveyors are not engineers so where engineering advice is necessary the 2 surveyors should agree upon a single checking engineer to provide advice. The need for a checking engineer will again depend upon the nature of the works and must be agreed by the 2 surveyors, or failing that by the Third Surveyor.

So, to answer part b) of the question the Adjoining Owner’s surveyor cannot ‘insist’ on the involvement of a checking engineer but may suggest it and seek agreement as detailed above. If it is agreed that the checking engineer’s involvement is necessary his fee should be paid by the Building Owner and will normally appear as a disbursement on the invoice of the surveyor that requested his involvement (normally the Adjoining Owner’s surveyor).

Where an Adjoining Owner requests that his property be underpinned as a safeguard in accordance with Section 6(3) of the Act and the Building Owner does not consider it necessary, the Act’s dispute resolution procedures kick in (Section 10).