I recently arranged to meet a Building Owner’s surveyor on site to prepare a schedule of condition only to find that the foundations to the proposed rear extension had already been excavated and cast.
In light of recent case law were we within our rights to produce an Award authorising the excavation work retrospectively.
No damage had been caused at the time of our inspection and we were able to verify what had been done by speaking to the Building Inspector.
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 email@example.com and I’ll keep you updated.
Until the case of Rodriques v Sokal  it had been assumed by surveyors that the provisions of the Party Wall Act could not be enacted retrospectively.
The authority on the point seemed to be the case of Louis v Sadiq . In that case Mr Sadiq commenced work without serving a notice, failed to temporarily restrain the party wall following the removal of the front and rear walls of his house and as a result caused damage to the party wall. Mr & Mrs Louis, the Adjoining Owners, obtained an injunction to prevent any further works. A notice was later served, Awards were made and the damage repaired by Sadiq at his own expense. Mr & Mrs Louis later claimed special damages for losses that were suffered as a result of the works. At the time of the works they were due to sell their property but had been prevented from doing so as a result of the damage suffered. The court awarded damages covering the mortgage interest paid up to the date of the trial (which was well after the notice had been served) and the increased building costs of a new house that they were having built overseas.
Sadiq appealed the decision on the basis that Mr & Mrs Louis’ common law rights were supplanted when the notice was served. The appeal was dismissed on the basis that the Award had no retrospective curative effect on the earlier unlawful works.
In Rodriques v Sokal  the Building Owner (Sokal) commenced some substantial development works prior to serving notice. Rodrigues, the Adjoining Owner, claimed that the works had caused damage to his property. Approximately two and a half years later an Award was made by the Third Surveyor which concluded that no damage had been caused by the works.
Rodrigues then brought a claim for damages and Sokal relied upon the Third Surveyor’s unappealed Award as his defence. Rodrigues cited Louis v Sadiq as authority for the fact that an Award cannot relieve a Building Owner from liability at common law for works undertaken prior to the service of a notice. The Judge went on to say that if he were wrong he still would have found for the Building Owner as he’d seen no evidence of a link between the works and the damage.
The main difference with the later case is that the Third Surveyor confirmed that no damage had been caused by the works. The judge took that as confirmation that the works were completed to a reasonable standard and were therefore capable of being authorised retrospectively by Award.
The question states that the excavation works that had been completed at the time the surveyors inspected had not caused any damage. In addition, the surveyors were able to obtain independent verification of the work that was now concealed (the excavations). Those two points suggest that the work was capable of being authorised retrospectively by Award.