Party Wall Act replacement appointment power limited

Court holds as invalid the appointment by the adjoining owner’s surveyor of a replacement building owner’s surveyor and their subsequent award

In Property Supply & Development v Verity (2015), a building owner wished to develop a site.  It served a party structure notice under the Party Wall Act 1996 on the adjoining owner.  After the appointment of three surveyors – the building owner’s surveyor (“BOS”), the adjoining owner’s surveyor (“AOS”) and a third party surveyor (“TPS”) – an initial award was made that permitted the demolition of the building owner’s property and the provision of temporary protection to the adjoining owner’s property.  The building owner carried out the demolition and erected the temporary protection in accordance with the award but then left the site for 20 months.

The adjoining owner became concerned that the temporary protection was not designed to shield their property long-term.  The AOS therefore proposed that there be a further addendum award dealing with matters relating to the temporary protection of the unfinished works.  At the time that the addendum award was proposed, the BOS had ceased to act and the building owner had not appointed a replacement despite a direct request from the AOS.  The AOS then purported to appoint a new BOS on behalf of the building owner and said that he was able to do so under s.10(4)(b) of the 1996 Act.  The new BOS and the AOS then together produced an addendum award.  The building owner challenged the validity of the addendum award on the basis that the new BOS was not properly appointed.  The court agreed with the building owner.

The Court said that s.10(4)(b) only applied to initial appointments, not replacement appointments.  The relevant provisions for the appointment of replacement surveyors were contained in s.10(5) under which the appointing party “may” appoint a replacement.  It dismissed the suggestion that there was a gap in the legislation that had to be filled by the courts and said that the problem of the failure by the building owner to appoint a replacement BOS and the need for an addendum award could have been dealt with in two ways.  Firstly, the AOS and the TPS could have together made an award under s.10(10) which permitted the making of an award by any two of the three appointed surveyors.  Secondly, the AOS could have called upon the TPS to make an award by himself under s.10(11).

The Court thus declared the addendum award invalid.

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