Practice Changing Party Wall Case Law – Onigbanjo v Pearson (2008)

This is part of our series on court judgments that significantly changed the way that surveyors administer the Act.

The Background

The owner of 15 Urswick Road, London E9 6EG, Mr Femi Onigbanjo (the “building owner”), carried out works falling within the scope of the Act and notified the adjoining owners at No 17, Mr & Mrs Mark Pearson (the “adjoining owners”).

The works comprised basement excavation, including underpinning the party wall between the two properties and the construction of a rear extension.

The adjoining owners consented to the notices and the works commenced in approx. June 2005.

While the works were in progress, the adjoining owners noticed what is described as “extensive cracking“ to their property. The adjoining owners made the building owner aware of the damage, via their consultant, confirming their belief that the necessary making good was the sole responsibility of the building owner.

By September 2007 the damage had not been made good and the owners had failed to agree a payment in lieu of making good. The adjoining owners made the building owner aware of their intention to appoint a surveyor in accordance with section 10 of the Act and invited the building owner to concur in that appointment (which would have made him the “agreed surveyor”) or appoint his own surveyor.

The building owner did not respond so the adjoining owners used the provisions of section 10(4) of the Act to appoint a surveyor to act for the building owner. The building owner did not engage with his appointed surveyor, believing the appointment to be invalid.

The two appointed surveyors agreed and served an award in March 2008, the crux of which was a requirement that the building owner should make a payment to the adjoining owners in lieu of making good damage to their property in the sum of £13,490 plus VAT (plus the associated surveyors’ and legal fees).

The building owner appealed the award.

The full judgment, including the award, is available on this link.

Question to be Determined by the Court

The building owner claimed that the appointed surveyors did not have jurisdiction to make the award as appointments could only be made where a dispute had arisen under section 5 of the Act (further to the service of notice of works).

The adjoining owners argued that there were in fact several sections of the Act that could give rise to a dispute requiring the appointment of surveyors.

The Decision

HHJ Birtles agreed with the adjoining owners that were several sections of the Act that could give rise to a dispute requiring the appointment of surveyors and listed them as section 7, section 11(2), section 11(8) and section 12(1).

The surveyors had cited section 11(8) in their award which is the section that requires the building owner to make a payment in lieu of making good damage (see note below).

The appeal was therefore rejected.

How the Decision has Changed Procedures

Until this judgement it was assumed that consent to a party wall notice completed procedures under the Act meaning any later disputes would have to be dealt with at common law. Surveyors can now confidently accept appointments in relation to disputes following consent, typically relating to the cause or cost of making good damage, and our team have done so on many occasions.

An owner cannot simply withdraw a consent, there must be a specific dispute for a surveyor or surveyors to be appointed following a consent.

The case also highlighted the importance of making any consent subject to a schedule of condition being prepared prior to works commencing. While our team would never encourage an adjoining owner to dissent to a notice, we will always advise them to make their consent subject to the building owner paying for a schedule (that schedule will typically be prepared by the surveyor who prepared the notice(s) on behalf of the building owner).

Final notes

The 2017 case of Lea Valley Developments Limited v Derbyshire clarified that section 11(2) of the Act only relates to rights which come with a specific requirement to make good (which does not include section 6). The surveyors in this case may not therefore have been technically correct to award the full sum as a “payment in lieu”.

A few years later, Mr Onigbanjo notified Mr & Mrs Pearson of further works falling within the scope of the Act relating to a loft conversion. On that occasion, they were taking no chances and appointed one of our team to act as their surveyor. Mr Pearson was bemused to hear that he’d become something of a celebrity in party wall circles!

Written by Justin Burns BSc (Hons) MRICS – Director of Peter Barry Surveyors

If you require advice on a party wall matter, you are welcome to contact us on 020 7183 2578 or via email.