Does an Appointed Party Wall Surveyor have Ongoing Jurisdiction?

This is the second part of a post from a couple of weeks ago in which I discussed the jurisdiction of Appointed Party Wall Surveyors. In this post I’ll look at whether a surveyor appointed by one of the owners to resolve a principal dispute (which is usually non-specific) remains appointed should further disputes arise either during or following the works.

Surveyors have always assumed this to be the case, but the judgement handed down by HHJ Parfit in the 2021 case of K Group Holdings Inc v Saidco put the situation I doubt. It’s not necessary to go through the full details of that case, which are very complicated, but in relation to further disputes,  the Judge said “What cannot happen is for the surveyor to take for himself a sort of overarching jurisdiction to determine anything that might arise at any point…”

This suggests that surveyors must re-confirm their appointments before determining a further dispute. The first thing to say is that the judgement is not binding as it came out of an unreported county court case but, in light of who the judge was, it will be persuasive.

The role of an appointed surveyor is set out in section 10(13) of the Act:

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;

The “any other matter arising…” would appear to cover further disputes, as long as they relate to the original dispute (which encompasses the notified works) and indeed there are Sections of the Act that anticipate the further involvement of the appointed surveyors such as Section 8 (relating to access) and Section 12 (relating to Security for Expenses).

We also have Section 10(10) which confirms that the [surveyors] shall settle by award any matter which is connected with any work to which this Act relates, and which is in dispute between the building owner and the adjoining owner. The ‘any’ also appears in Section 10(1).

So, it’s hard to understand how HHJ Parfit reached the conclusion that he did but while we await clarification from a higher authority, it may be prudent for party wall surveyors to update their letters of appointment to make it clear to their appointing owner that they are being appointed to determine all disputes arising from the notified works.

One of the benefits of the Act is that owners have a ready-made tribunal of surveyors, already familiar with the works, to resolve further disputes much more quickly, and hopefully cheaply, than the courts.

There are practical issues with appointing new surveyors when a further dispute arises. Prior to any works commencing, the 2 appointed surveyors will have prepared a schedule of condition covering the parts of the adjoining owner’s property which are at risk from the works. This is not referenced in the Act, but it is considered to be good practice and is always done. The written documents will form part of the award which is served on the owners. but the supporting photos, which can be critical, do not.

The original two appointed surveyors will have selected a Third Surveyor but if appointments must be re-confirmed, presumably the Third Surveyor selection must be too. Third surveyors also act as appointed surveyors so their views on how the Act should be administered will be widely known within the profession. That’s not an issue when the dispute they are selected in connection with has not been defined but, with a further dispute, each appointed surveyor will be pushing to select a Third Surveyor that they believe supports their position. That will make it more difficult to make a selection.

On the plus side, if an owner has fallen out with their appointed surveyor while the principal award was being agreed at least they have the opportunity to make a fresh appointment. For that to happen currently, the surveyor would have to deem themselves incapable of acting.

If you live in the Cambridgeshire of north Essex area and require advice on a party wall matter, you are welcome to contact the author of this post on 01799 543532 or via email.